Nevada National Pollutant Discharge Elimination System Permit (14-NV-b)

Information current as of 2022

In Nevada, a developer may need to apply for a National Pollutant Discharge Elimination System (NPDES) permit issued by the Nevada Division of Environmental Protection (NDEP) if their project discharges a pollution from a point source.

As authorized by the United States Environmental Protection Agency (EPA) under the Clean Water Act, the 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)).

On October 22, 2019, the EPA and USACE published a final rule to repeal the 2015 Rule defining “waters of the United States” and re-codify the regulatory text that existed prior to the 2015 Rule. This final rule became effective on December 23, 2019, but was replaced by the Navigable Waters Protection Rule on June 22, 2020. The final rule establishes categorical bright lines to improve clarity and predictability for regulators and the regulated community by defining “waters of the United States” to include the following four categories: (1) The territorial seas and traditional navigable waters; (2) tributaries of such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters (other than waters that are themselves wetlands). The final rule eliminates the case-specific application of the agencies' previous interpretation of Justice Kennedy's significant nexus test in the Rapanos Guidance, and instead establishes clear categories of jurisdictional waters that adhere to the basic principles articulated in the ‘’Riverside Bayview’’, ‘’SWANCC’’, and ‘’Rapanos’’ decisions while respecting the overall structure and function of the CWA.

On November 18, 2021, the U.S. Environmental Protection Agency and the Department of the Army announced the signing of a proposed rule to revise the definition of “waters of the United States.” On December 7, 2021, the proposed rule was published in the Federal Register. The public comment period closed on February 7, 2022. Developers should 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.