Colorado State Pollutant Discharge Elimination System Permit (14-CO-b)
As authorized by the United States Environmental Protection Agency (EPA) under the Clean Water Act, the National Pollutant Discharge Elimination System (NPDES) permit program controls water pollution by regulating point sources that discharge pollutants into waters of the United States. Point sources are discrete conveyances such as pipes or man-made ditches. Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge do not need an NPDES permit; however, industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters. Stormwater discharge permits are required for certain activities by EPA regulations at 40 CFR § 122.26(b)(14).
The Colorado Department of Public Health and Environment (CDPHE) Water Quality Control Division (WQCD) requires a discharge permit from the WQCD to discharge any pollutant into any state water from a point source under the Colorado Water Quality Control Act and 5 CCR 1002-61 Colorado Discharge Permit System Regulations. While, 5 CCR 1002-62 Colorado Regulations for Effluent Limitations contains regulations pertaining to effluent limitations for discharge permits.
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, 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)).
"Waters of the United States" is defined broadly by regulation under the Clean Water Rule as developed by the EPA and USACE. The effective date for this new rule is August 28, 2015. The new rule modifies the regulatory definition to more precisely define jurisdictional waters under the CWA. In most states the rule took effect immediately, however, a number of states have initiated litigation to challenge implementation of the new rule.
On August 27, 2015, the District Court of North Dakota issued a preliminary injunction halting the implementation of the new rule (see North Dakota, et al. v. EPA, Memorandum Opinion and Order Granting Plaintiffs' Motion for Preliminary Injunction). In light of the order, EPA and USACE will continue to implement the CWA through the prior regulatory definition under 40 CFR 230.3(s) in the following States: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.
On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a stay halting implementation of the new rule nationwide pending its own determination of its own exclusive jurisdiction to review the rule (see Ohio, et al. v. EPA, Order of Stay). If the court determines it has exclusive jurisdiction the stay will likely remain in place pending a determination on the merits of the case. The court anticipates it will make a jurisdictional determination within a few weeks of the date of its order to stay. Given this uncertainty, developers should anticipate continued litigation on this matter and continue to monitor the issue at the state and national level. The EPA provides information on the ongoing effort to implement the EPA Clean Water Rule Website.
State Pollutant Discharge Elimination System Permit Process
14-CO-b.1 – Pre-Application Conference and Site Inspection
The CDPHE strongly encourages applicants for a discharge permit to schedule a pre-application meeting and site inspection with the WQCD, in order for the division to evaluate the proposed discharges and to determine the applicability of 5 CCR 1002-61. The WCQD will use the pre-application meeting and site inspection to identify the appropriate information required for a complete discharge application.
14-CO-b.2 – Colorado Discharge Permit Application
Developers seeking to discharge a pollutant from a point source into Colorado waters must submit a completed CDPHE Industrial Individual Wastewater Discharge Permit Application at least 180 days before the beginning the discharge. The application must follow the signature requirements of 5 CCR 1002-61.4(1)(e) and be signed as follows:
- In the case of corporations, by a responsible corporate officer. For purposes of this section, the responsible corporate officer is responsible for the overall operation of the facility from which the discharge described in the form originates;
- In the case of partnership, by a general partner;
- In the case of a sole proprietorship, by the proprietor; or
- In the case of a municipal, state, or other public facility, by either a principal executive officer or ranking elected official. For purposes of this section, a principal executive officer has responsibility for the overall operation of the facility from which the discharge originates.
Unless the WQCD determines otherwise, a complete application must include:
- A description of the activities conducted by the applicant which require it to obtain a permit;
- Identification of the facility name, location, and telephone number;
- The owner(s) and the operator(s) name, mailing address, and telephone number;
- Up to four SIC codes which best reflect the principal products or services provided by the facility;
- A general legal description, map location, and site diagram of the treatment facility and discharge locations;
- A topographic map (or other map if a topographic map is unavailable) extending one mile beyond the property boundaries of the source, depicting the facility and each of its intake and discharge structures; each of its hazardous waste treatment, storage, or disposal facilities; each well where fluids from the facility are injected underground; and those wells, springs, other surface water bodies, and drinking water wells listed in public records or otherwise known to the applicant in the map area;
- Identification of the type of discharge, and the receiving waters for each discharge point;
- A listing of all active permits or construction approvals received or applied for the site under any of the following programs:
- (a) Hazardous Waste Management program under RCRA;
- (b) UIC program under the Safe Drinking Water Act;
- (c) National Pollutant Discharge Elimination System program under the Clean Water Act;
- (d) Prevention of Significant Deterioration program under the Clean Air Act;
- (e) Nonattainment program under the Clean Air Act;
- (f) National Emission Standards for Hazardous Pollutants under the Clean Air Act;
- (g) Dredge or fill permits under Section 404 of the Clean Water Act;
- (e) Other relevant environmental permits, including state permits.
- Whether the facility is located on Indian lands; and
- Additional information the WQCD deems necessary to evaluate the discharge, including quantitative and qualitative date related to the discharge, levels of production, best management practices, plans or specifications for the facility, process or activity which is the source of the water discharge, groundwater data, and reasonably available existing water quality data of the affected waters.
14-CO-b.3 – Publish Notice of Colorado Discharge Permit Application
The CDPHE WQCD must publish notice of every application for a discharge permit, send the notice to the applicant, and circulate the notice in a manner designed to inform interested and potentially interested persons of the proposed discharge. The WQCD must circulate the notice as follows:
- The WQCD must circulate the notice in a newspaper distributed within the geographic area of the proposed discharge and may also publish a press release that is accessible to media throughout the state;
- The WCQD must send notice to any other state whose water may be affected by the issuance of the proposed permit, with the request that the State submit recommendations to the Division concerning the proposed permit within a specified time period. Thereafter the WCQD must either adopt the recommendations or provide written explanation of why the division is not accepting the recommendations;
- The WQCD must send notice to any interstate agency which may have an official interest in the discharge permit, with the request for comment within a specified time period. Thereafter the WCQD must either adopt the recommendations or provide written explanation of why the division is not accepting the recommendations;
- The WQCD must send notice to all other appropriate government agencies and must provide such agencies an opportunity to submit their views and recommendations. The agencies notified, must include any agency responsible for the preparation of any approved water management plan under Section 208(b) of the Clean Water Act and appropriate public health agencies;
- The WQCD must add the name of any person or group upon request to the mailing list to receive copies of notices for all discharge applications within Colorado or within a certain geographical area;
- The WQCD must maintain a copy of the permit application and the draft permit (when applicable), along with the WQCD’s preliminary antidegradation determination in the office of the county clerk and recorder of the county in which the proposed discharge will take place.
The contents of the public notice should include at least the following:
- The name, address, and phone number of the WQCD;
- The name and address of each applicant, and if different, of the facility or activity regulated by the permit;
- A brief description of each applicant’s activities or operations which result in the discharge described in the permit application or draft permit;
- The name of the waterway to which each discharge is made and a short description of the location of each discharge on the waterway indicating whether the discharge is a new or existing discharge;
- A statement of intent to issue or deny a permit (when applicable);
- A brief description of the procedures for the formulation of the final permit, including the thirty day period for public comment;
- The address and phone number of the state or interstate agency premises at which interested persons may obtain additional information or request a copy of the permit application, analysis, or draft permit;
- The name, address, and telephone number of the Water Quality Control District Engineer for the WQCD that oversees the area where the discharge is located; and
- A description of the comments and hearing request procedures.
14-CO-b.4 to 14-CO-b.5 - Review Application Materials for Completeness
The WQCD must begin to review a discharge permit application within forty-five days after the WQCD receives the application and must notify the applicant within ninety days after receipt of the application with a determination as to whether the application is complete. If the WQCD determines the application is incomplete, the WQCD may require the applicant to submit additional information. If the applicant submits additional information, the WCQD has fifteen days after the applicant submits the information to determine whether the additional information satisfies the request. The WQCD may not issue a discharge permit until the application is deemed complete. A final determination that the application is incomplete is a final agency action subject to judicial review. The 180 day deadline for the WQCD to issue a discharge permit must be extended by the number of days that an applicant takes to submit additional information plus the fifteen days the WQCD has to review the additional information. 5 CCR 1002-61.5(1)
14-CO-b.6 – Review Application Materials, Prepare a Preliminary Analysis, and Make Tentative Determination
The WQCD evaluates the complete discharge permit application to determine whether the proposed discharge will comply with all applicable federal and state regulatory requirements. The WQCD may require a site visit(s) to evaluate the discharge and make a determination. The WQCD then prepares a preliminary analysis and makes a tentative determination to issue or deny the discharge permit and advises the applicant of the analysis. 5 CCR 1002-61.5(1)
14-CO-b.7 to 14-CO-b.10 – Does the CDPHE Tentatively Determine to Approve the Discharge Permit
The WQCD makes a tentative determination to approve or deny the discharge permit. If the WQCD decides to deny the permit, the WQCD publishes notice of the tentative determination to deny the discharge permit following the procedures in 14-CO-b.3 above and informs the applicant of the reasons for the proposed denial. If the WQCD decides to approve the discharge permit, the WQCD formulates a Draft Colorado Discharge Permit with the terms and conditions applicable to the permit. The WQCD must also publish notice of the draft permit following the procedures in 14-CO-b.3 above. The draft permit and the permit rationale must be available for public inspection and must include:
- Proposed effluent limitations for each discharge point for those pollutants proposed to be limited;
- Delineation of the service area based on population and design capacity of the treatment and sewer system for domestic permits and delineation of the maximum expected production rate for industrial permits;
- A proposed schedule of compliance, including interim dates and requirements, for meeting the proposed effluent limitations if the permittee is not presently doing so;
- All monitoring requirements under 5 CCR 1002-61.8(4);
- All terms and conditions under 5 CCR 1002-61.8 through 5 CCR 1002-61.8(10) and all applicable terms and conditions under 5 CCR 1002-61.8(11) and 5 CCR 1002-61.8(12); and
- For major facilities, any additional information which may be required pursuant to 40 CFR 124.8 or 40 CFR 124.56.
14-CO-b.11 – Comment on Draft Colorado Discharge Permit
Interested parties may submit written comments to the WQCD on the draft permit and may request a public meeting within thirty days after the WQCD publishes notice of the draft permit. If the WQCD holds a public meeting on the draft permit, the public comment period is extended to a total of 60 days. 5 CCR 1002-61.5(2)
14-CO-b.12 to 14-CO-b.14 – Does an Interested Party Request or Petition for a Public Meeting
The WQCD must provide an opportunity for the applicant, any affected State, any affected interstate agency, the Regional Administrator, or any interested agency, person, or group of persons to request or petition for a public meeting with respect to the draft permit. All requests for a public meeting must be filed within thirty days of the public notice, indicate the interest of the party filing the request, and the reasons why the draft permit warrants a meeting. The WQCD must hold a meeting if there is significant public interest in holding a meeting. Instances of doubt should be resolved in favor of holding a meeting on the draft permit. Any public meeting held on the draft permit must take place within sixty days after the draft permit's public notice in the geographical area of the proposed discharge or other appropriate area at the discretion of the WQCD. If the WQCD decides to hold a public meeting, the WQCD must provide a public notice that includes:
- The name, address, and phone number of the agency holding the public meeting;
- The name and address of each applicant whose application will be considered at the meeting;
- The name of the waterways to which each discharge is made and a short description of the location of each discharge on the waterway;
- A brief reference to the public notice issued for each tentative permit determination, including the identification number and date of issuance;
- Information regarding the time and location of the public meeting;
- The purpose of the public meeting;
- A concise statement of the issues raised by the persons requesting the meeting;
- The address and phone number of a location at which interested parties may obtain further information and inspect and copy permit forms and related documents; and
- A brief description of the nature of the meeting, including the rules and procedures that must be followed at the meeting.
14-CO-b.16 – Modify Permit (As Necessary) and Send Copies of Proposed Permit to EPA
After the close of the public comment period and any public meetings the WQCD may make modifications in the terms and conditions of the draft permit as appropriate. Thereafter, the WQCD must send copies of the proposed permit to the Region VIII Administrator of the United States Environmental Protection Agency for review, as specified in the Memorandum of Agreement between the EPA and the WQCD.
14-CO-b.17 to 14-CO-b.18 – Colorado Discharge Permit/Notice of Denial
The WQCD either issues the discharge permit to the applicant or notifies the applicant of the decision to deny the permit. Any permit issued to the applicant becomes effective and final thirty days after the WQCD issues the permit or on a later date as specified by the WQCD. Permits not issued within 180 days after the receipt of the discharge permit application (unless extended for additional information in the case of an incomplete application) receive a temporary permit. The WQCD must also provide notice of the issuance or denial of the discharge permit to any person who participated in the public meeting and to appropriate persons on the mailing list established under 5 CCR 1002-61.5(2) and (3).
Under 5 CCR 1002-61.6(a) the applicant or any other person affected or aggrieved by the Air Pollution Control Division's final determination may demand an adjudicatory hearing within thirty days of the division issuing the final permit determination. Any adjudicatory hearing must be conducted pursuant to CRS 24-4-105 and CRS 25-8-401. Only issues of law or fact raised by the applicant or other person prior to an adjudicatory hearing may be raised at the hearing. The person requesting the hearing has the burden of proof in all hearings held under this section, except the Air Pollution Control Division has the burden of proof where:
- The division initiated a permit revocation or modification; and
- The division denies renewal of a permit or changes the terms of a renewed permit and that denial or change is not based either upon significant changes in the facts relevant to water quality considerations or upon changes in the applicable statutes or regulations.
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