ENV-06-168 Permitting New or Expanded Discharges in Impaired Waters

Description:

The Clean Water Act and federal regulations prohibit states and the US EPA from permitting “new source or a new discharger if the discharge from its construction or operation will cause or contribute to the violation of water quality standards.”3 Federal regulations also prohibit issuing permits for new and existing discharges when “the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected States.”4 In many states, this is taken to mean that “expanded” discharges – where the mass of pollutants proposed to be discharged is greater than mass of pollutants already permitted – are also prohibited in waters that are listed as impaired. So what’s a new or expanding business to do? Fortunately there are ways in which to obtain discharges for “new sources,” “new discharges,” and “expanded discharges” in waters that are impaired, while complying with state and federal water regulations. This paper presents some strategies which have been used successfully, or which are in the process of being used in areas where impaired waters exist, and where litigation against the state has imposed a de factor “moratorium” on issuance of permits for new or expanded discharges. The following examples are from real clients with real discharges. However, because many of these examples either have applications pending, or because there is a very real concern about appeals of issued permits, either to the Environmental Appeals Board or through judicial review, clients have asked that names and identifying characteristics not be divulged.