White House Reviewing NPDES Update Rule Minus Problematic Expired Permit Provision

NPDESlogo_forweb(October 16, 2018) - Consistent with NACWA’s recommendations, an EPA rule that will finalize only some of the less controversial provisions from a May 2016 proposed update to the National Pollutant Discharge Elimination System (NPDES) permitting program is currently under review by the White House’s Office of Management and Budget (OMB).

The proposal sought to “eliminate regulatory and [permit] application form inconsistencies; improve permit documentation, transparency and oversight; clarify existing regulations; and remove outdated provisions.” NACWA provided additional information on the proposed rule in Advocacy Alert 16-08.

One of the more controversial proposed provisions would have allowed the Agency’s Regional Administrators to designate certain expired NPDES permits, which are deemed “environmentally significant,” as “proposed permits.” This provision would have allowed the regions to do an “end run” around the state, and start a new permitting process, despite the state’s decision to administratively continue the permit. EPA indicated that the provision only sought to address those expired permits that had been administratively continued for an extended period of time, and that involved discharges to sensitive waters or were otherwise determined to be environmentally significant.

NACWA’s comments, filed August 2, 2016, raised concerns with this new authority and recommended that EPA not adopt this provision in the final rule. NACWA learned earlier this year that EPA had in fact decided to split the rule into two pieces, advancing the less controversial fixes to the permitting program first, and then working to address the provisions that raised more objections afterward. The rule currently under review by OMB is the first of these rules.

At this point in the process, it is unclear what the timeframe is for the second rule, or whether EPA will revive the conversation about attempting to give the regions greater authority over administratively continued permits. NACWA continues to track this issue closely, and members with any questions can contact Chris Hornback