Idaho National Pollutant Discharge Elimination System Permit (14-ID-b)
The NPDES program requires facilities discharging from a point source into waters of the U.S. to obtain discharge permits. (A point source is a conveyance such as a pipe or other point.) An NPDES permit contains limits on what can be discharged and other provisions to ensure that the discharge does not harm water quality or the public's health. (see Idaho NPDES Permits Webpage).
There are two basic types of NPDES permits:
- An individual permit is a permit written specifically for an individual facility.
- A general permit may cover multiple facilities within one industry, such as aquaculture, or may cover multiple facilities from different industries but that have a similar discharge, such as stormwater. General permits are only issued to dischargers within a specific geographical area.
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.
National Pollutant Discharge Elimination System Permit Process
14-ID-b.1 – NPDES Program Oversight in Idaho
In Idaho, the NPDES permit program is administered by EPA, which means EPA is responsible for issuing and enforcing all NPDES permits in Idaho. Idaho is one of only a handful of states where the NPDES program is administered by EPA. States are encouraged by EPA to attain primacy for the program. Primacy enables states to assume responsibility for administering certain federally mandated programs, such as the NPDES program. Over the past several years, various studies have been conducted on the pros and cons of transferring primacy for the NPDES program from EPA to DEQ. Several reports have been submitted to the Legislature outlining the benefits of doing so, but questions remain over potential costs and funding. As a result, responsibility for operating the program in Idaho continues to rest with EPA.
The state's role in this process is to certify that NPDES-permitted projects comply with state water quality standards. EPA typically provides a preliminary draft NPDES permit for DEQ to review and develop a draft certification. In order to streamline the public comment process, EPA will generally issue a joint public notice indicating the draft permit and certification are available for public comment. To facilitate review, EPA will generally append the draft certification to the fact sheet. However, DEQ may request public comment directly for general permits or individual permits for particularly large or sensitive projects. After the public comment period has ended, EPA provides DEQ with a proposed final permit for certification and generally requests DEQ provide a final certification decision within 30 days. EPA may provide a longer period of time to issue a certification decision in some cases. (see Idaho Clean Water Act Section 401 Certification Webpage).
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