Generally Illegal: NPDES General Permits Under the Clean Water Act

Abstract

Under the Clean Water Act, it is unlawful for a point source to discharge pollutants without a National Pollutant Discharge Elimination System (“NPDES”) permit. Most NPDES permits are issued to individual facilities, but since 1979, EPA and States have had a process of issuing “General Permits” to satisfy the requirements of the Clean Water Act. These General Permits may contain enforceable effluent limitations and other requirements, but, unlike individual permit, they may apply to large numbers of sources discharging into many different bodies of water. The conditions of a General Permit are developed through a “notice and comment” process similar to development of a regulation, but the application of the General Permit to an individual source differs dramatically from the process of issuing an individual NPDES permit. Sources seeking coverage under a General Permit generally need only submit a “Notice of Intent” to the permit authority, and they are then authorized to discharge under the terms of the General Permit without either government review or public participation. EPA has stated over 300 General Permits have been issued by EPA and states, and that “thousands” of point sources have been covered through General Permits. The Clean Water Act provides no special provisions applicable to the issuance or content of General Permits; they are subject to the same substantive and procedural obligations that are applicable to all NPDES permits. The use of General Permits to satisfy the otherwise applicable requirements of the Clean Water Act, however, raises significant issues. This article assesses the legality of the use of General Permits to satisfy the NPDES requirement of the Clean Water Act. After discussing the history of and regulatory provisions applicable to General Permits, it discusses a series of issues raised by the use of General Permits. These include issues associated with: 1) discharges into “impaired waters,” 2) discharges into “high quality” waters under EPA’s anti-degradation policy, 3) the use of unreviewed pollution prevention plans developed by the permittee, 4) the absence of public participation in permit issuance, and 5) the requirements under other statutes including NEPA and the Endangered Species Act. The article suggests that many of EPA policies and procedures for use of General Permits violate the requirements of the Clean Water Act and suggests a variety of revisions to the General Permit program that address some of the existing infirmities.

Keywords: Clean Water Act, NPDES, water quality standards, anti-degradation policy, General Permits, waste load allocations, TMDL