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National Pollutant Discharge Elimination System : Proposed Rule on Applications and Program Updates


On May 18, 2016, the US EPA published a proposed rule in the Federal Register to propose revisions to the National Pollutant Discharge Elimination System (NPDES) to eliminate regulatory and application form inconsistencies; improve permit documentation, transparency, and oversight; clarify existing regulations; and remove outdated provisions. The 45-day comment period ended on July 18, 2016.

The proposed regulatory changes cover 15 topics in the following major categories: permit applications; the water quality-based permitting process; permit objection, documentation, and process efficiencies; the vessels exclusion; and the Clean Water Act (CWA) Section 401 certification process. The proposal would provide for specific, targeted changes to the existing regulation and would not re-open the regulation for comprehensive revision. Entities potentially affected by this action are States, Territories, and Indian Tribal Governments authorized to administer the NPDES permitting program; municipal publically owned treatment works (POTWs) that are required to apply for and seek coverage under an NPDES individual or general permit; and industrial facilities that are required to apply for and seek coverage under an NPDES individual or general permit.

Summary Table I: Proposed Topics for Revision and Public Comment

Category Proposed Topic for Revision
Permit Application Requirements Purpose and Scope (40 CFR 122.1); NPDES Program Definition including: Pesticide Applications to Waters of the United States, Proposed Permit, New Discharger and Whole Effluent Toxicity Definitions (40 CFR 122.2); Changes to Existing Application Requirements (40 CFR 122.21).
Water Quality-Based Permitting Process Anti-degradation Reference (40 CFR 122.44(d)); Dilution Allowances (40 CFR 122.44(d)); Reasonable Potential Determinations for New Dischargers (40 CFR 122.44(d)); Best Management Practices (40 CFR 122.44(k)); Anti-backsliding (40 CFR 122.44(l)); Design Flow for Publically-Owned Treatment Works (40 CFR 122.45(b)).
Permit Objection, Documentation, and Process Efficiencies Objection to Administratively Continued Permits (40 CFR 123.44); Public Notice Requirements (40 CFR 124.10(c); Fact Sheet Requirements (40 CFR 124.56); and Deletion of  40 CFR 125.3(a)(1)(ii).
Vessels Exclusion Vessels Exclusion (40 CFR 122.3(a))
CWA Section 401 Certification Process CWA Section 401 Certification Process (40 CFR 124.55(b)).


Summary Table II: Summary of Changes

40 CFR Section Summary of Proposed Changes
40 CFR 122.1 Update contact information, deleting outdated references to program information that are no longer available.
40 CFR 122.2 (a)     Define the term “pesticide applications to waters of the United States.”

(b)     Revise the definition of “proposed permit.”

(c)      Correction of typographical error (NDPES to NPDES).

(d)     Revise existing definition of Whole Effluent Toxicity (WET) to refer to both acute (lethal) and chronic (lethal and sub-lethal) WET endpoints.

40 CFR 122.21 Update and clarify permit application requirements to remove outdated forms and improve consistency, accuracy, and usability. Proposed changes include updates to NPDES contact information; the addition of a facility’s North American Industry Classification System (NAICS) codes; addition of permit discharge latitude and longitude information; revision to length of time for new dischargers to submit effluent information; ensuring data submission requirements for non-POTWs match those for POTWs; requesting applicants email address; clarify reporting requirements for Significant Industrial Users and Non-Significant Categorical Industrial Users; requirement to indicate if facility uses cooling water and to identify the source of cooling water; require applicants to indicate if they are requesting any variances permitted under 40 CFR 122.21(m) for non-POTWS and 40 CFR 122.21(n) for POTWs.
40 CFR 122.3(a) US EPA to clarify which vessel discharges are excluded from the requirement to obtain NPDES permits; incorporate language regarding discharges incidental to normal operation of vessels of the Armed Forces
40 CFR 122.44(d) Include a reference to 40 CFR 131.12 to ensure consistency with State Anti-degradation requirements; specify that any allowances for dilution must comply with applicable dilution and mixing zone requirements and low flows established in State WQS, specify that a “reasonable potential” determination for new dischargers must consider relevant qualitative and quantitative data, analyses, or other valid and representative information for pollutants or pollutant parameters that could support the need for effluent limitations for new discharges.
40 CFR 122.44(k) Correction of publication contact information for a number of BMP information sources.
40 CFR 122.44(l) Incorporate the anti-backsliding provisions currently in the CWA that have not yet been incorporated in the NPDES regulations.
40 CFR 122.45(b) Clarify permit writer’s requirements to calculate permit effluent limits for POTWs using design flow only where limits are based on technology standards.
40 CFR 123.44 Revise to allow US EPA to designate certain administratively continued permits as “proposed permits.”
40 CFR 124.10(c) Revise to allow permitting authorities to provide public notice of permitting actions for NPDES Major individual and general permits on the permitting authority’s publicly-available website in lieu of the newspaper publication requirement.
40 CFR 124.55(b) Addresses the circumstances under which a State may issue a modified CWA Section 401 certification in connection with a US EPA-issued NPDES permit and the effect of a modified Section 401 certification on such a permit.
40 CFR 124.56 Require specific documentation in the fact sheet developed to support an individual or general permit.
40 CFR 125.3(a)(1)(ii) Propose to delete, as the statutory authority supporting this provision was repealed in 1981.

Following issuance of this rule, authorized States have up to 1 year to revise, as necessary, their NPDES regulations to adopt the requirements of this rule, or 2 years if statutory changes are needed.

This summary has been prepared based on information provided on the Federal Register website. Please consult the Federal Register for more detailed information at: