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National Pollutant Discharge Elimination System (NPDES) Permit (14-FD-b)

Information current as of 2020

In the United States, any person (developer) may need a National Pollutant Discharge Elimination System (NPDES) permit from the United States Environmental Protection Agency (EPA), or a state agency with EPA delegated authority, to discharge pollutants into waters of the United States pursuant to the Clean Water Act, 33 U.S.C. §§ 1251 – 1388 and 40 C.F.R. §§ 122.1 – 122.64, EPA Administered Permit Programs: The National Pollutant Discharge Elimination System.

The National Pollutant Discharge Elimination System (NPDES) regulations require that any person, who discharges pollutants or proposes to discharge pollutants to waters of the United States must apply for a NPDES permit. 40 C.F.R. § 122.21(a). The EPA administers the NPDES program. However, the EPA has delegated authority to most states in the country to administer their own discharge permit programs. To see the status of the state for your proposed project, see the State NPDES Program Authority Map. This flowchart covers the process for states that do not have their own NPDES program (currently Idaho and New Mexico).

Waters of the United States

“Waters of the United States” is defined to include:

  • The territorial seas, and 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;
  • Tributaries;
  • Lakes and ponds, and impoundments of jurisdictional waters; and
  • Adjacent wetlands. 33 C.F.R. § 328.3(a).

Tributaries must be perennial or intermittent within a typical year, which the rule defines as a year "when precipitation and other climatic variables are within the normal periodic range for the geographic area of the applicable aquatic resource based on a rolling thirty-year period." 33 C.F.R. § 328.3(c)(13).

"Waters of the United States" do not include:

  • Waters or water features that are not identified in paragraph (a)(1), (2), (3), or (4) of this section;
  • Groundwater, including groundwater drained through subsurface drainage systems;
  • Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools;
  • Diffuse stormwater run-off and directional sheet flow over upland;
  • Ditches that are not waters identified in paragraph (a)(1) or (2) of this section, and those portions of ditches constructed in waters identified in paragraph (a)(4) of this section that do not satisfy the conditions of paragraph (c)(1) of this section;
  • Prior converted cropland;
  • Artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease;
  • Artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non-jurisdictional waters, so long as those artificial lakes and ponds are not impoundments of jurisdictional waters that meet the conditions of paragraph (c)(6) of this section;
  • Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel;
  • Stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;
  • Groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds, constructed or excavated in upland or in non-jurisdictional waters; and
  • Waste treatment systems. 33 C.F.R. § 328.3(b).

Developers should be aware of ongoing litigation on this matter and continue to monitor the issue at the state and national level. For example, the state of Colorado won a preliminary injunction preventing the new WOTUS definition going into effect in the state. The EPA provides up-to-date information on the Environmental Protection Agency - Clean Water Rule Website.</div>

National Pollutant Discharge Elimination System (NPDES) Permit Process

14-FD-b.1 - Will the Project Require an Individual or a General NPDES Permit

A developer does not need to apply for an individual NPDES permit, if they have an existing general permit, which will encompass all of the proposed activities at the site. General permits are permits developed for a specific category of dischargers within a specified geographic or political boundary. 40 C.F.R. § 122.28. Using a general permit could simplify the permitting process for both EPA and the discharger. Unlike Section 10 and Section 404 general permits, which are under the purview of the U.S. Army Corps of Engineers, NPDES permits are authorized by the EPA. Owners /operators may seek coverage under a general permit only if one has been issued that is applicable to the type of facility for which coverage is sought and the permit covers the facility’s activities. However, a facility that otherwise qualifies for a general permit may opt to apply for an individual NPDES permit.

14-FD-b.2 to 14-FD-b.3 - Notice of Intent (NOI)

A developer should submit a Notice of Intent (NOI) to the appropriate EPA regional office for a general permit. The following information is the minimum that must be provided in the NOI (however, specific general permits may require additional information):

  • legal name and address of the owner or operator
  • name and address of the facility
  • type of facility or discharges
  • the receiving stream(s)

The EPA has developed the Electronic NOI (eNOI) system for construction and industrial facilities that need to apply for coverage under the EPA's Construction General Permit (CGP) or Multi-Sector General Permit (MSGP).

14-FD-b.4 to 14-FD-b.5 - Is the Project Covered Under the Applicable General Permit

General permits may be adopted and approved by the EPA to regulate one or more categories or subcategories of discharges or disposal practices or facilities (40 C.F.R. § 122.28). The general permits must clearly identify the applicable conditions for each category or subcategory of discharges and may exclude specified sources or areas from coverage (40 C.F.R. § 122.28). Every general permit will also specify the required contents of each NOI to be covered under a general permit along with required deadlines.

The EPA will review the submitted NOI and make a determination whether the proposed project can fall under the regulation of the general permit.

14-FD-b.6 - Notify Applicant that Individual NPDES Permit is Necessary

If the project is not covered by the general permit, the EPA will notify the applicant that they will be required to submit an individual permit application. Notification that your project does not comply with a general permit is not a denial of the permit, the EPA is instead requiring that the project be reviewed under the individual permit regulations.

14-FD-b.7 - NPDES Permit Application

When a facility needs an individual NPDES permit, the developer must submit a permit application to the EPA. Application forms and requirements are specific to the type of facility and discharge. NPDES permit application requirements may be found in 40 C.F.R. §§ 122.1 – 122.64 as well as on the EPA's Permit Applications and Forms webpage.

14-FD-b.8 to 14-FD-b.9 - Review Application Materials for Completeness

The EPA reviews the NPDES application materials for administrative and technical completeness. Every application submitted to the EPA for a new source is reviewed for completeness within 30 days of its receipt and applications for existing sources are reviewed within 60 days of receipt. 40 C.F.R. § 124.3(c). After this review, the EPA must notify the applicant in writing whether the application is complete. If the application is incomplete the EPA will include information necessary to make the application complete.

After the initial application review, the permit writer may request that an applicant submit other information needed to decide whether to issue a permit and for permit development. The requested information could include the following:

  • Additional information, quantitative data, or recalculated data.
  • Submission of a new form (if an inappropriate form was used).
  • Resubmission of the application (if incomplete or outdated information was initially submitted).

14-FD-b.10 - Develop Effluent Limitations Based on State Water Quality Standards

Before developing a draft permit and fact sheet, the EPA permit writer assembles and reviews any additional background information on the facility including:

  • the current permit (in applicable)
  • the fact sheet or statement of basis for the current permit (if applicable)
  • discharge monitoring reports (DMRs)
  • compliance inspection reports
  • engineering reports
  • correspondence or information on changes in plant conditions, problems, and compliance issues

The EPA may also require facility site visits to obtain additional information about the facility's operations, equipment or management practices. Site visits are also used to very application information.

Based on the relevant proposed facility characteristics and the applicable state water quality standards, the EPA will set individual effluent limitations for the proposed activity and incorporate them into the individual permit. Individual effluent limitations will vary dependent on the type of facility, location, and type of pollutants involved in the proposed activity.

14-FD-b.11 to 14-FD-b.12 - Has the State Issued a Section 401 Water Quality Certification for Proposed NPDES Permit

If the state has not issued a Section 401 water quality certification, the developer should seek to initiate the process immediately. EPA NPDES permits cannot be effective without state approval that the proposed activity will comply with state water quality standards. Section 401 of the Clean Water Act provides states with the legal authority to review an application or project that requires a federal license or permit (in this case a NPDES permit) that will result in a discharge into a water of the U.S.

Section 401 Water Quality Certification Process:

14-FD-b.13 - Draft Permit and Fact Sheet/Statement of Basis

40 C.F.R. § 124.6 requires the Director of the EPA to create a draft permit once a preliminary decision on the proposed activity has been made. The draft permit includes the conditions specified within 40 C.F.R. § 122.41 as the conditions applicable to all NPDES permits along with any additional site-specific requirements.

The draft permit must be prepared along side a statement of basis which sets forth the reasoning for the EPA decision to issue or deny the permit (40 C.F.R. § 124.7). The statement of basis should describe the derivation of the conditions of the permit, reasons for them, reasons supporting the tentative decision and should be sent to the applicant and any other persons, upon request.

Finally, a fact sheet must be prepared for every major NPDES permit (40 C.F.R. § 124.8).

14-FD-b.14 to 14-FD-b.15 - Public Notice and Comment Period

The EPA provides public notice of the draft permit, fact sheet, and statement of basis and provide for at least 30 days of public comment on the tentative decision (40 C.F.R. § 124.10(b)).

14-FD-b.16 - Public Hearing

If, during the comment period, any person files a request for a public hearing, the EPA will hold a public hearing in accordance with 40 C.F.R. § 124.12. The EPA Director may also hold a public hearing at their own discretion whether a hearing might clarify one or more issues involved in the permit decision.

14-FD-b.17 - Prepare Final Permit, Fact Sheet, and Administrative Record

At the close of the public comment period and any public hearing, EPA considers all the information presented through comments and the public hearing in conjunction with all of the application materials and prepare the final permit, a revised fact sheet, and the administrative record. Final permits and the accompanying information for existing NPDES permits may be found at the EPA's online Permit Compliance System (PCS).

14-FD-b.18 - Final NPDES Permit

The developer should proceed with their proposed development of geothermal resources in accordance with all permit conditions including reporting and notification requirements. All NPDES permits are valid for no more than 5-year terms, so the developer should be aware of their duty to re-submit a NPDES application when the current permit expires.


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