Nevada National Pollutant Discharge Elimination System Permit (14-NV-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). In compliance with this regulation, the Nevada Division of Environmental Protection (NDEP) (a division of the Nevada Department of Conservation and Natural Resources) issues NPDES permits in accordance with EPA regulations. However, in the relevant Nevada Administrative Code sections, "the Department" refers to the Nevada Department of Conservation and Natural Resources. NAC 445A.031.
More information can be found on the NPDES permit program on the EPA’s NPDES Permit Program Website, along with links to forms and guidance documents. Nevada uses the Federal NPDES Discharge Permit Program forms. NDEP provides links to the appropriate NPDES Permit Forms which links directly to the EPA's.
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-NV-b.1 – NPDES Permit Application
The discharge of a pollutant by a point source into the waters of the state of Nevada is prohibited by NRS 445A.465 unless a permit has been issued by the Nevada Department of Conservation and Natural Resources (NDCNR) to do so. The NDCNR has delegated authority for administering the NPDES program to the Nevada Division of Environmental Protection which is an agency within NDCNR.
NAC 445A.228 does provide the following exemptions from the requirement to obtain a permit for discharge:
- Persons utilizing an individual sewage disposal system or other system that uses a soil adsorption system for the treatment and disposal of domestic wastes;
- Persons discharging pollutants into a publicly owned or privately owned sewerage system, if the owner has a valid permit for such system (the owner of the system assumes the ultimate responsibility for controlling and treating the pollutants)
- Discharges of pollutants from agricultural and silvicultural activities
Discharge permits are prohibited when the U.S. Army Corps of Engineers finds that the activity would substantially impair anchorage and navigation of navigable waters, or the United States Environmental Protection Agency objects in writing to issuance of the permit.
Any person wishing to commence the discharge of a pollutant must file a completed permit application no less than 180 days in advance of the date in which the person wishes to commence the discharge of pollutants, unless the NDCNR has granted permission for a later application date. Fees associated with the various types of discharges for discharge permits can be found in the Nevada Regulations at NAC 445A.232.
14-NV-b.2 to 14-NV-b.3 – Does the NDCNR Tentatively Approve Proposed Discharge Activities
The NDCRN must prepare and formulate a tentative determination regarding the permit prior to public notice which must include the following components, organized into a draft permit:
- Proposed determination to issue or deny the permit described in the application;
- If the proposed determination is to issue, the following must also be included;
- The proposed effluent limitations for pollutants proposed to be limited
- Proposed schedule of compliance, including interim dates and requirements for meting proposed effluent limitations
- A brief description of any other proposed special conditions
14-NV-b.4 – Public Notice and Comment
Public notice must be issued for every discharge permit except temporary permits of permit for pre-treatment discharge in a manner designed to inform interested persons of the proposed discharge. Public notice must include at least the following measures:
- Circulated within the geographical area of the proposed discharge by publishing in a local newspaper/periodical;
- Notice must be mailed to any person or group on the mailing list maintained by the NDCRN or upon request;
- All parties requesting so shall be put on the mailing list to receive copies of notices for permit applications;
A brief description of the procedures for the final determination and the 30-day comment period and any other means by which an interested person may comment upon the permit will also be included in the public notice.
The Director of NDCRN will also notify other appropriate governmental agencies of each complete application for a permit and provide the agencies with an opportunity to submit written views and recommendations. The Director must either incorporate any agency written recommendations or provide a written explanation of the reasons for failing to accept any of the written recommendations.
Confidentiality: NAC 445A.237 allows some degree of confidentiality through the public notice and discharge application process. The NDCRN must keep confidential all information and records other than effluent data necessary for the permit. Any information given confidential status will not be protected from disclosure to the EPA Regional Administrator during his/her review process.
14-NV-b.5 to 14-NV-b.6 – Has a request for public hearing been filed
Any interested agency, person or group, or affected state may request a public hearing within the applicable 30-day public notice and comment period. The request must indicate the interest of the person requesting the hearing and include reasons why the hearing is warranted. Any hearing held must be within the geographic area of the proposed discharge if possible.
Public notice for the hearing must be made at least 30 days prior to the hearing and notice of the hearing must be provided to all those who were provided notice of the proposed discharge permit.
14-NV-b.7 to 14-NV-b.8 – Does the NDCNR Make Final Approval of Discharge Permit
If a permit is issued, the applicant must be notified in writing of the specific limitations and conditions in the permit along with a copy of the permit issued. If the Department decided not to issue the permit, the applicant must be notified of the denial and reasons for denial. A copy of each application and each issued permit must be made available to the public. NAC 445A.240.
‘’’Discharge Permit’’’ Duration of discharge permits issued are fixed and do not exceed 5 year terms. The expiration date will be recorded on each permit. New applications must be filed with the NDCNR to obtain renewal or modification of a permit at least 180 days prior to expiration of the permit. NAC 445A.241. The same procedures for issuance of a new permit are followed for the renewal of a permit.
14-NV-b.9 to 14-NV-b.10 – Notify EPA Regional Administrator of Issued Permit
In accordance with NAC 445A.242, every issued permit must be transmitted to the Regional Administrator of the EPA immediately following its issuance along with all terms, conditions, requirements, or documents which are a part of such permit. Ultimately, the EPA has the authority to administer the NPDES program and has the power to veto any specific discharge permit issued by the state of Nevada if the discharge presents “a substantial risk to human health and the environment.”
14-NV-b.11 – Commence Discharge and Monitoring Compliance Schedule
Comply with all listed conditions and compliance measures in individual discharge permit along with all NAC regulations for verification of water quality, inspection, testing and sampling, monitoring, recording and reporting effluent levels. NAC 445A.228-445A.263.
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