The Clean Water Act provides the framework for regulating sources of pollutants into the waters of the United States.[1] Section 402 of the Clean Water Act prohibits discharge of any pollutant to the “Waters of the Unites States” (or “WOTUS”) unless authorized by permit. 33 U.S. Code § 1342. This permit program is known as the National Pollutant Discharge Elimination System (or “NPDES”).[2]
An NPDES permit is required for all construction projects which disturb one or more acres, or that are part of a larger common development. Permits for stormwater discharges associated with construction activity are obtained through individual state permits or general permits. Individual permitting involves the submittal of specific data on a single construction project to the appropriate state agency—in Tennessee, that agency is the Tennessee Department of Environment & Conservation (TDEC). Tenn. Code Ann. § 69-3-102. NPDES coverage under a general permit involves the submittal of a Notice of Intent (NOI) by the regulated construction project that they intend to comply with a general permit. In Tennessee, information relating to an NPDES Stormwater Construction Permit can be found here.[3]
For developers, designers, and contractors, failure to obtain, and abide by, the requirements of NPDES permits can be significant. For example, on March 4, 2021, the EPA reached settlement agreements with three construction companies who the EPA alleged violated permits by failing to implement practices to limit the release of construction pollution into Mill Creek in the Kansas City area. In that settlement, the companies were required to pay $122,000. In addition to federal enforcement, state agencies, like TDEC, are also empowered to enforce the requirements set forth in the NPDES permit as well the failure to obtain a required NPDES permit.
The bottom line is the Clean Water Act and NPDES permit requirements are not to be taken lightly. Whether you are the owner, developer, or contractor you should be aware of the NPDES permit requirements and ensure that you follow those requirements. You should also be aware that speaking with or responding to a request by an agency is akin to being interrogated by a law enforcement officer and, as such, consultation with your attorney before doing so is often warranted. Jones Law's attorneys have experience advising clients during governmental agency inquiries and investigations. If you would like to speak with us about the Clean Water Act or NPDES Permit requirements, call us at (931) 532-0665.
Footnotes:
[1] First enacted in 1948 as the Federal Water Pollution Control Act, the Act was overhauled and expanded in 1972 and reconstituted as the “Clean Water Act.” See www.epa.gov/laws-regulations/summary-clean-water-act (last visited 5/5/2021). Prior to the Clean Water Act, the Federal Water Pollution Control Act was one of the first major steps taken to address the pollution of American waters.
[2] What constitutes the WOTUS has been the source of much debate, in particular has been the disagreement about groundwater discharge. For more info on this issue, see “EPA Issues Clean Water Act Guidance Regarding Discharges to Groundwater.” http://www.jdsupra.com/legalnews/epa-issues-clean-water-act-guidance-4173879/#:~:text=Section%20402%20of%20the%20Clean,(Section%20402%20NPDES%20Permits) (last visited 5/5/2021).
[3] http://www.tn.gov/environment/permit-permits/water-permits1/npdes-permits1/npdes-stormwater-permitting-program/npdes-stormwater-construction-permit.html (last visited 5/5/2021).
