NPDES one

Under the Clean Water Act, all point source discharges of pollution require a permit. This basic principle is the foundation of water pollution prevention and control in the United States. Generally, anyone who discharges pollutants from a point source without a Clean Water Act permit is breaking the law (40CFR122.1(b)(1)). There is, of course, a corollary: it is perfectly legal to discharge pollutants if you have a valid permit and comply with its terms. Understanding how the permitting system works is critical for anyone wanting to use the Clean Water Act.

Citizen involvement is important in all phases of the permit process. You don’t have to be a lawyer to make a difference, but you do need to understand the system’s basics. By developing a solid grasp of the following terms and concepts, you will be much better able to help prevent and control water pollution in your watershed.

Controlling point source pollution

The Clean Water Act’s primary point source control program is the National Pollutant Discharge Elimination System (NPDES). This system rests on the definition of point source: “any discernible, confined, and discrete conveyance” of pollutants to a water body. The definition of discrete conveyance includes, but is not limited to, “any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel or other floating craft from which pollutants are or may be discharged” (40CFR122.2).

As we will see, the definition of “point source” covers a wide and expanding variety of activities, beginning with direct discharges from factories and sewage treatment plants, and extending to a multitude of other sources. The Act provides one major exception to the point source definition: it specifically excludes “return flows from irrigated agriculture or agricultural storm water runoff” (40CFR122.3). This exempts many but by no means all, agricultural activities from the NPDES program.

Over the years, the EPA has regulated more sources of point source pollution. For example, in the early years of the Act, municipal stormwater pollution, or “urban runoff,” was considered an unregulated, nonpoint source. Much of it is collected in and discharged through stormwater pipes — clearly, in Clean Water Act parlance, “discrete conveyances.” The recognition of this fact (thanks to citizen suits in the 1980s) has led to the development of regulations and programs to control many forms of stormwater runoff under NPDES permits (see Lesson 2b: Stormwater Pollution Control Permits).

“Nonpoint source pollution”

The term “nonpoint source pollution” has been used in many different ways and in many different contexts over the past twenty-five years. Some define it as “polluted runoff from rain or snow,” others as pollution from “diffuse sources,” and still others, colorfully, as “poison runoff.” The most accurate, complete and enduring definition of the term is the very simplest. A “nonpoint source” is exactly what the words say: any source of pollution that is not a point source. (See Lesson 7: Nonpoint Source Pollution Control)

The Goal: Eliminate Discharge of Pollutants

In order to achieve the ultimate goal of the Clean Water Act, “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters,” several other goals and policies, including the following, were established: “it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985” (CWA101(a)(1)).

The NPDES has greatly reduced the impact of many existing discharges, but it certainly has not eliminated point source water pollution in the United States. In fact, while most pollution discharges have come under greater control since the Act was passed (with a few approaching “zero impact” ) very few have actually been phased out. Moreover, thousands upon thousands of new discharges — including many with significant impacts — have been permitted.

The NPDES performs admirably in those places where a well-informed public (a) keeps an eye on Clean Water Act goals, (b) monitors watershed activities, (c) understands how the NPDES and other CWA tools are supposed to work together, and (d) plays an active role in their ongoing implementation. In the absence of an ever-vigilant public, however, the NPDES can produce results that are quite the opposite of those intended.

The Clean Water Act calls for permits to be reviewed, adjusted as necessary, and renewed at least every five years. Far too often, however, the permit cycle is much longer than this. Delays in reviewing, adjusting and renewing permits are usually attributed to limited agency funding and staff.

EPA Runs Some NPDES Programs

The EPA has delegated primary NPDES program responsibility in most states to a state pollution
control agency. There are a few exceptions where the EPA retains lead responsibility for developing and/or enforcing NPDES permits. These are Idaho, Massachusetts, New Hampshire, New Mexico, the District of Columbia, Puerto Rico, the Pacific Territories and all tribal lands. The Virgin Islands are partially authorized.