RAPID/Roadmap/14-AK-b
Alaska State Pollutant Discharge Elimination System Permit (14-AK-b)
The Alaska Department of Environmental Conservation (ADEC) has the authority to regulate domestic, industrial, stormwater, and mining-related discharges of pollutants into surface waters of the United States that are within Alaska or which occur in its territorial seas (within three miles of shore).
Waters of the United States
The definition of waters of the United States is applicable to the NPDES permit process through 40 C.F.R. § 122.2. Waters of the United States for purposes of the Clean Water Act, Clean Water Act, 33 U.S.C. § 1251 et seq., and its implementing regulations is defined in 40 CFR 230.3(o), establishing the jurisdictional waters under the Act. The definition of waters of the United States includes all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide. Also included are tributaries, lakes and ponds, impoundments of jurisdictional waters, and adjacent wetlands.
The definition of waters of the United States extends to certain waters associated with jurisdictional waters. See 40 CFR 230.3(o)(1)(iv) through (vii). The definition includes all impoundments of jurisdictional waters. The definition includes waters adjacent to jurisdictional waters within a minimum of 100 feet and within the 100-year floodplain to a maximum of 1,500 feet of the ordinary high water mark. The definition also includes waters with a significant nexus to jurisdictional waters including, Prairie potholes, Carolina & Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands; and those waters within the 100-year floodplain of a traditional navigable water, interstate water, or the territorial sea, as well as waters within 4,000 feet of jurisdictional waters.
The waters of the United States do not include numerous sources of water even where they otherwise meet the terms of 40 CFR 230.3(o)(1)(iv) through (vii). Generally not included are waters associated with waste treatment systems, prior converted cropland, ditches, numerous types of artificial features, groundwater, stormwater control features, and structures related to wastewater recycling (for a detailed description, see 40 CFR 230.3(o)(2)).
On October 22, 2019, the EPA and USACE published a final rule to repeal the 2015 Rule defining “waters of the United States” and re-codify the regulatory text that existed prior to the 2015 Rule. This final rule became effective on December 23, 2019, but was replaced by the Navigable Waters Protection Rule on June 22, 2020. The final rule establishes categorical bright lines to improve clarity and predictability for regulators and the regulated community by defining “waters of the United States” to include the following four categories: (1) The territorial seas and traditional navigable waters; (2) tributaries of such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters (other than waters that are themselves wetlands). The final rule eliminates the case-specific application of the agencies' previous interpretation of Justice Kennedy's significant nexus test in the Rapanos Guidance, and instead establishes clear categories of jurisdictional waters that adhere to the basic principles articulated in the Riverside Bayview, SWANCC, and Rapanos decisions while respecting the overall structure and function of the CWA.
State Pollutant Discharge Elimination System Permit Process
14-AK-b.1 - Will Project Fall Under an Existing General Permit's Characterization?
APDES permits establish conditions and limits for the discharge of pollutants from domestic and industrial sources in Alaska. Alaska Admin. Code tit 18 § 83.015(a). A general permit regulates discharges from more than one facility with similar wastewater characteristics in a defined geographical area (which can be statewide). An operator of a facility that meets the eligibility requirements of the general permit will be authorized to discharge waste after filing a Notice of Intent (NOI) with ADEC, so long as all conditions of the permit are met. Alaska Admin. Code tit. 18 § 83.990(31).
If the conditions for an existing general permit are not met, the developer must file an individual APDES permit application or petition the ADEC to issue a new type of general permit.
14-AK-b.2 to 14-AK-b.3 - Notice of Intent
A developer seeking coverage under a general permit must submit a written notice of intent (NOI) to be covered by a general permit. Alaska Admin. Code tit. 18 § 83.210(b). A discharger who fails to submit a NOI is not authorized to discharge under a general permit unless the ADEC determines that notice of intent is not required for that specific general permit or the discharger is notified that it is covered by a general permit by the Department. Alaska Admin. Code tit. 18 § 83.210(g).
14-AK-b.4 - Does Proposed Discharge Meet Eligibility Requirements of General Permit?
Each general permit issued by ADEC will specify the contents of the NOI required to be submitted by a developer seeking coverage under that general permit. Alaska Admin. Code tit. 18 § 83.210(c).
If the proposed discharge does not meet the specific eligibility requirements of the general permit, ADEC will notify the developer that either, they do not require coverage under the APDES system, or the development will require an individual permit.
14-AK-b.5 - General Discharge Permit
ADEC will notify the applicant if their NOI has complied with all of the requirements to be covered under the specific general permit. Upon receiving notification that their project is in compliance with general permit conditions, the developer has authority to discharge under the conditions specified in the general permit.
14-AK-b.6 - Individual APDES Permit Application
An individual permit is issued to a single facility and its terms, limits, and conditions are specifically tailored to the unique aspects of that facility and the receiving water body.
14-AK-b.7 to 14-AK-b.8 - Review Application Materials for Completeness
The ADEC will not review application materials unless they are complete and include all applicable required documents and fees. Alaska Admin. Code tit 18 § 83.110(d).
14-AK-b.9 - Draft Discharge Permit and Fact Sheet for Public Notice
Prior to formal public notice of a draft APDES permit, ADEC regulations require that they post a preliminary draft permit on its website in conjunction with the permit applicant’s 10 day review of such permit. Alaska Admin. Code tit. 18 § 83.115(f). While this review is primarily intended for the permittee to review and discuss the preliminary draft permit with ADEC, it also gives the public an early opportunity for review of the developing draft permit.
Notice that a draft permit is available for public review and comment is provided by a combination of mailings to agencies, local governments, and mail lists, newspaper advertisements, online public notice web posting, and other manners constituting legal notice. The public notice initiates a minimum 30-day public review and comment period. Alaska Admin. Code tit. 18 § 83.120(b). Any unit of local government having jurisdiction over the area within which the facility or proposed facility is to be located must also be mailed a copy of the public notice. Alaska Admin. Code tit. 18 § 83.120(c)(1)(G). The permit application and a fact sheet describing the terms of the permit are also made available during the public comment period.
14-AK-b.10 - Public Notice and Comment Period
Public notice is given through ADEC’s Water Permit Search webpage, which allows you to find information about permits, authorizations and certifications by facility name, site/facility, permit type, owner/operator, permit number, city, or zip code. The preliminary draft permit, fact sheet, and all associated documents will be posted during the 10-day applicant review period prior to formal public notice as well. However, all public comments must be submitted only during the 30-day minimum formal comment period.
14-AK-b.11 to 14-AK-b.12 - Is there Significant Interest in the Permit or a Public Request for a Hearing?
ADEC may schedule one or more public hearings on the draft permit if there is significant public interest, to describe the permitting decision, or for other good reason. Alaska Admin. Code tit. 18 § 83.120(l).
14-AK-b.13 - Individual Discharge Permit and Response to Comments Document
After the close of the minimum 30-day public comment period, ADEC considers information provided by the public, prepares a document summarizing the public comments received on the draft permit, and may make changes to the draft permit. The resulting proposed final permit is made available to the applicant for a five-day review unless the review period is waived in part or in whole by the applicant. Alaska Admin. Code tit. 18 § 83.120(m). At the same time, ADEC posts the proposed final permit and supporting documentation on the ADEC web page where it is available to the public.
14-AK-b.14 - Proceed with Project Under Permit Conditions
The developer should proceed with their proposed development of geothermal resources in accordance with all permit conditions including reporting and notification requirements.
14-AK-b.15 - Apply for Re-Issuance or Authorization 180 Days Prior to Expiration of Permit
An APDES permit is effective for no more than five years. The permittee has the responsibility to apply for reissuance of a permit or authorization 180 days prior to the expiration date of the permit. In some cases, ADEC may administratively extend a permit beyond five years. If a permit is administratively extended, the permittee is required to continue to follow the permit conditions until the new permit has been issued and to continue to pay annual permit fees.
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Alaska Department of Environmental Conservation
Alaska Pollutant Discharge Elimination System Permit Contact
907.465.5257
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