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Arizona State Pollutant Discharge Elimination System Permit (14-AZ-b)

Section 402 of the Clean Water Act (CWA) requires developers to obtain a National Pollutant Discharge Elimination System (NPDES) permit for all facilities which discharge pollutants into navigable waters of the United States. Section 402(b) of the CWA allows the Environmental Protection Agency (EPA) to delegate NPDES permitting authority to the states. Arizona received authority from the EPA to administer it’s version of the NPDES program in 2002. Arizona’s version of the NPDES program, called the Arizona Pollutant Discharges Elimination System (AZPDES), is authorized by A.R.S. 49-255 et seq.

The Arizona Department of Environmental Quality (ADEQ) is authorized under A.R.S. 49-255 et seq. to issue both individual and general AZPDES permits. An individual AZPDES permit applies to a single point source, a single facility, or a municipal separate storm sewer system, and is evaluated on a case-by-case basis. A General AZPDES permit authorizes an entire category of discharges. See A.A.C. R18-9-A901. This chart outlines the individual AZPDES permitting process. Arizona regulations governing the individual AZPDES permitting process can be found at A.A.C. R18-9-A901 – B907. Federal regulations governing the NPDES program, including regulations that apply to state programs, can be found at 40 CFR 122 et seq. and 40 CFR 123 et seq.

State Pollutant Discharge Elimination System Permit Process

14-AZ-b.1 to 14-AZ-b.2 – Contact ADEQ to Initiate Process; Is an AZPDES Permit Required?

According to A.R.S. 49-255.01(A), “[a] person shall not discharge except under either of the following conditions: (1) In conformance with a permit that is issued or authorized under A.R.S. 49-255 et seq.; or (2) Pursuant to a permit that is issued or authorized by the United States environmental protection agency until a permit that is issued or authorized under A.R.S. 49-255 et seq. takes effect.”

A “discharge” means any addition of any pollutant to navigable water from any point source. See A.R.S. 49-255(2).

“Pollutant” means “dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those regulated under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2014 et seq.), heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural waste discharged into water.” See A.A.C. R18-9-A901.

“Navigable water(s)” means the waters of the United States as defined by section 502(7) of the Clean Water Act. See A.R.S. 49-201(22). 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, 33 USC 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; all interstate waters, including interstate wetlands; and the territorial seas; as well as all tributaries to such waters.

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)).

A “point source” is “any discernible, confined and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation or vessel or other floating craft from which pollutants are or may be discharged to navigable waters.” See A.R.S. 49-201(28).

Therefore, if the proposed facility will discharge pollutants, and none of the exclusions listed in A.A.C. R18-9-A902(G) apply, the developer must obtain coverage under an AZPDES permit. A.A.C. R18-9-A902(B) contains examples of categories that result in the discharge of a pollutant. Developers that are unsure whether a facility will require an AZPDES permit should consult ADEQ.

If an AZDPES permit is required, the developer should contact ADEQ to set up a pre-application meeting and to determine what type of permit is needed.

14-AZ-b.3 to 14-AZ-b.6 – Does the Project Qualify for a General AZPDES Permit?

As stated above, general permits authorize entire categories of discharges. They are best suited for regulation of “numerous, very similar, and generally smaller facilities and sources that have emissions and discharges that post little environmental risk.” See the Arizona Department of Environmental Quality's General Permits Website. Unlike individual permits, general permits do not require developers to submit an application. Instead, the developer will typically submit a Notice of Intent (NOI) to be covered under the general permit. So long as the developer meets the eligibility requirements and agrees to comply with the conditions of the general permit, coverage will be granted. By issuing general permits, ADEQ avoids the need to develop a new permit for each individual discharge.

One of the most common types of discharge that is eligible for coverage under a general permit is construction stormwater discharge. Construction sites are often required to obtain an AZPDES permit for stormwater runoff, typically through obtaining coverage under the Construction General Permit (CGP). For more information regarding construction stormwater discharges and the CGP, see Construction Stormwater Permit:

A list of general permits, including the CGP, can be found on the Arizona Department of Environmental Quality's AZPDES Website website. Developers should contact ADEQ to determine whether their discharges may be eligible for coverage under a general permit, and if so, how to obtain coverage.

It should be noted that although an activity may be eligible for coverage under a general permit, developers may request an exclusion from the general permit by applying for an individual permit. See A.A.C. R18-9-C902(B).

14-AZ-b.7 – Hold Pre-Application Meeting

The developer should meet with ADEQ prior to filing an application for an individual permit in order to inform ADEQ about the project and any potential discharges. During the meeting, ADEQ reviews the application process with the developer and answers any questions the developer may have. See ADEQ’s Individual Permits website.

14-AZ-b.8 to 14-AZ-b.10 – Application for an Individual AZPDES Permit

According to A.A.C. R18-9-B901(A), “[a]ny person who owns or operates a facility covered by A.A.C. R18-9-A902(B) or A.A.C. R18-9-A902(C), shall apply for an AZPDES individual permit at least 180 days before the date of discharge or a later date granted by the [ADEQ], unless the person:

In addition, “[a]ny person who proposes a construction activity under A.A.C. R18-9-A902(B)(9)(c) or A.A.C. R18-9-A902(B)(9)(d) and wishes coverage under an individual permit, shall apply for the individual permit at least 90 days before the date on which construction is to commence.” See A.A.C. R18-9-B901(A).

Most individual permit applications require the use of specific forms that relate to the specific type of discharge. For example, developers applying for a new AZPDES individual permit for industrial and commercial operations that will discharge non-domestic wastewater must submit Form 1 (basic information) and Form 2D. For a complete list of application forms and instructions, see ADEQ’s Application Forms and Guidance website.

In addition, A.A.C. R18-9-B901(B) requires the following information to be included on the application forms obtained from ADEQ:

  • Discharges, other than stormwater.
    • The information required under 40 CFR 122.21(f) through (l);
    • The signature of the certifying official required under 40 CFR 122.22;
    • The name and telephone number of the operator, if the operator is not the applicant; and
    • Whether the facility is located in the border area, and, if so:
      • A description of the area into which the effluent discharges from the facility may flow, and
      • A statement explaining whether the effluent discharged is expected to cross the Arizona-Sonora, Mexico border.
  • Stormwater. In addition to the information required in subsection A.A.C. R18-9-B901(B)(1)(c) and (B)(1)(d):
    • For stormwater discharges associated with industrial activity, the application requirements under 40 CFR 122.26(c)(1);
    • For large and medium MS4s, the application requirements under 40 CFR 122.26(d);
    • For small MS4s:

The application forms must be submitted with the appropriate initial fees. Once received, ADEQ reviews the application for completeness. See ADEQ’s Individual Permits website; A.A.C. R18-1-525.

14-AZ-b.11 – Will a Draft Permit Be Prepared?

Once the administrative completeness review is complete, ADEQ conducts a substantive review and tentatively determines whether to prepare a draft permit or to deny the application. See A.A.C. R18-9-B903(A); ADEQ’s Individual Permits website.

14-AZ-b.12 – Draft Permit

If ADEQ tentatively decides to issue an AZPDES individual permit, it will begin by preparing a draft permit. The draft permit must include permit conditions, discharge limitations, and standards of performance that provide for compliance with the applicable requirements of A.R.S 49-255 et seq., the CWA and chapters 9 and 10 of the Arizona Administrative Code. See A.R.S. 49-255.01(C)(2); A.A.C. R18-9-A903. For more information regarding preparation of individual permits, see EPA’s NPDES Permit Writers' Manual.

14-AZ-b.13 to 14-AZ-b.17 – Send Draft Permit to the EPA; Does the EPA Object to the Draft Permit?; Individual NPDES Permit

A.A.C. R18-9-A908(C)(1) requires ADEQ to send a copy of the draft permit to the EPA for review. The EPA may object to the draft permit within 30 days of the receipt of the draft permit. If the EPA objects to the draft permit, the EPA’s comment period is extended to 90 days. See A.A.C. R18-9-A908(C)(1)(b). If the EPA objects to the draft permit, ADEQ or any other interested person may request a hearing within 90 days. If the EPA affirms or does not withdraw the objection, ADEQ may submit a revised version of the draft permit that addresses the objection. If ADEQ chooses not to submit a revised version of the draft permit, the EPA may issue the permit for one term, after which permitting authority returns to ADEQ. See A.A.C. R18-9-A908(D).

14-AZ-b.18 to 14-AZ-b.19 – Publish Notice of Draft Permit

A.A.C. R18-9-A907 requires ADEQ to publish notice that a draft individual permit has been prepared. The notice must be published in one or more newspapers of general circulation where the facility is located. ADEQ may also issue a press release or send a notification to parties on a mailing list. The notice must contain the following:

  • The name and address of the [ADEQ];
  • The name and address of the [developer] and if different, the name of the facility or activity regulated by the permit;
  • A brief description of the business conducted at the facility or activity described in the permit application;
  • The name, address, and telephone number of a person from whom an interested person may obtain further information, including copies of the draft permit, fact sheet, and application;
  • A brief description of the comment procedures, the time and place of any hearing, including a statement of procedures to request a hearing (unless a hearing has already been scheduled), and any other procedure by which the public may participate in the final permit decision;
  • A general description of the location of each existing or proposed discharge point and the name of the receiving water; and
  • For sources subject to section 316(a) of the Clean Water Act, a statement that the thermal component of the discharge is subject to effluent limitations under the Clean Water Act, section 301 (33 U.S.C. 1311) or 306 (33 U.S.C. 1316) and a brief description, including a quantitative statement, of the thermal effluent limitations proposed under section 301 (33 U.S.C. 1311) or 306 (33 U.S.C. 1316);

ADEQ must provide the developer with a copy of the draft permit and a copy of the notice must be provided to the entities listed in A.A.C. R18-9-A907(3).

After public notice is issued, interested parties have 30 days to comment on the draft permit. See A.A.C. R18-9-A908(A). ADEQ may extend the comment period to provide commentators a reasonable opportunity to participate in the decision making process. ADEQ may also reopen or extend the comment period if substantial new questions concerning a permit have been raised during the initial comment period. See A.A.C. R18-9-A908(A)(4).

14-AZ-b.20 to 14-AZ-b.21 – Conduct Hearing (if Necessary)

ADEQ conducts a public hearing if significant public interest in a hearing exists or if significant issues or information have been brought to the attention of ADEQ during the comment period that were not previously considered during the permitting process. See A.A.C. R18-9-A908(B)(1).

If ADEQ determines that a public hearing is required, it must publish notice of the hearing in one or more newspapers of general circulation where the facility is located. The notice must contain:

  • The date, time, and place of the hearing;
  • Reference to the date of a previous public notice relating to the proposed decision, if any; and
  • A brief description of the nature and purpose of the hearing, including reference to the applicable laws and rules.

See A.A.C. R18-9-A908(B)(2).

14-AZ-b.22 to 14-AZ-b.23 – Are Changes Made to the Draft Permit Based on the Comments or Hearing; Send Proposed Permit to the EPA

After the close of the public comment period, including the EPA review, ADEQ may make changes to the draft permit in accordance with the comments received during the comment period and the hearing. ADEQ must issue a “response to public comments,” specifying any changes made to the draft permit. See ADEQ’s Individual Permits website. The revised draft permit is called the “proposed permit.” See A.A.C. R18-9-A901(30).

If revisions are made based on public comments or a hearing, the proposed permit must be sent to the EPA for review. See A.A.C. R18-9-A908(C)(1)(c). The review process is identical to the one described in 14-AZ-b.13 through 14-AZ-b.17.

14-AZ-b.24 – Individual AZPDES Permit

ADEQ issues the Individual AZPDES permit pursuant to A.R.S. 49-255.01(C) if, “based upon the information obtained by or available to [ADEQ] under A.A.C. R18-9-A907, A.A.C. R18-9-A908, and A.A.C. R18-9-B901, [ADEQ] determines that the [developer] complies with A.R.S. 49-255 et seq. and Articles 9 and 10 of A.A.C. R18-9.” As stated above, the permit must contain conditions, discharge limitations, and standards of performance that provide for compliance with the applicable requirements of A.R.S 49-255 et seq.

The permit takes effect upon issuance of ADEQ’s decision unless changes to the draft permit were requested during the public comment period, in which case the permit takes effect 30 days after ADEQ’s decision is served upon the developer. ADEQ may also extend the effective date in the decision. See A.R.S 49-255.01(H).

ADEQ must send a notice of determination regarding its decision to any person who submitted comments or attended the hearing on the final individual permit determination. The notice must be sent at the same time ADEQ notifies the developer of its decision. The notice must identify changes made to the draft permit, identify the reasons for those changes, and describe and respond to all significant comments made during the public comment period and the hearing. See A.A.C. R18-9-A908(E)(1). ADEQ must make its responses to comments available to the public. See A.A.C. R18-9-A908(E)(3).

14-AZ-b.25 – Provide Developer Notice of Intent to Deny the Permit Application

A.A.C. R18-9-B903(C) requires ADEQ to provide the developer with written notice of its intent to deny the permit application. The written notice must include:

  • The reason for the denial with reference to the statute or rule on which the denial is based;
  • The [developer’s] right to appeal the denial with the Water Quality Appeals Board under A.R.S. 49-323, the number of days the [developer] has to file a protest challenging the denial, and the name and telephone number of the Department contact person who can answer questions regarding the appeals process; and
  • The [developer's] right to request an informal settlement conference under [41 A.R.S. 1092 et seq.: Uniform Administrative Hearing Procedures

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