NPDES four

The Clean Water Act provides for public comment and involvement in the NPDES permitting process. You will find several different formal opportunities for input, as well as a number of more informal opportunities.

Individual permits

It is essential to comment on NPDES permits in detail during the narrow (usually 30-day) public review period. If you decide to appeal (or otherwise contest) a permit decision to the agency or before a judge, you can usually raise only those issues that you raised during the initial public comment period. Therefore, if you do not have time to elaborate on an issue or concern during the public review period, it is important to at least raise it at that time. If you do go to court later, you may have to show that you have “exhausted all administrative remedies” for addressing your concerns.

General permits

The only times you can comment on general permits is when they are first developed (before any actual dischargers are applying for coverage) and every time they are up for renewal (which should be every five years). Even though general permits address the majority of activities covered under NPDES, once a general permit is finalized, the public is usually not given any notice or opportunity to comment on each particular activity or discharge submitted for “coverage” under that permit. Therefore, public comments on general permits may have to be based on hypothetical scenarios. Imagine the worst-case scenario when commenting on a general permit. How might an activity allowed under this general permit violate water quality standards? You can and should document the adverse impacts of general permitted activities. Such documentation can be used to improve the general permit or require individual permits in certain cases.

Preparing for NPDES permit review

1) Learn which permits have already been issued, or are proposed, for your area of interest — a stretch of your river, your whole watershed or your entire state. Your state agency and regional EPA (when the program is not “delegated” to the state) can provide this information. State and EPA websites will provide valuable information about discharge permits in your state. EPA maintains a Permit Compliance System online database that is worth examination.

2) Get on the mailing lists for public information. There should be a public notice that announces the public comment period when any new or renewing permit is drafted. Many states now post public notices on their websites. You may be able to request notification when permits in your watershed are under consideration. However, few states are able to notify by watershed.

3) Find out ahead of time when permits are due for renewal (theoretically every five years), or when new ones are open for public comment. Public comment periods are usually only 30 days, but you may be able to request an extension from the agency. Give it a try! Every day counts when you are trying to address a technical or legal question and build public awareness and support for your position.

4) Collect current state standards and data such as state water quality standards, the water quality inventory for your state (305(b)), the threatened and impaired waters list (303(d)), and any relevant Total Maximum Daily Load plans (see Lesson 4: Restoring Impaired Waters with TMDLs).

5) Set up a monitoring program. Design a monitoring program that fits your resources and answers your questions. If your questions include whether a facility is in compliance with its permit or whether a discharge is harming a water body (even if it is in compliance), you can monitor upstream and downstream of the discharge as well as in any defined mixing zone at the point of discharge. You don’t necessarily have to collect detailed scientific data. Watershed residents can provide valuable information about water quality problems to a state water quality agency and a permittee by paying attention to, documenting and reporting visual changes in the receiving water body. For example when is the water muddy? What species of fish and wildlife are present? What is noticeable downstream of each point source? If you can follow your state’s monitoring requirements, any data you collect will be more credible in the eyes of the water quality agency.