Industrial Stormwater Permitting – Several States Have Renewals this Year

Do you live in Texas, Arkansas, or Louisiana? If the answer is yes, are you aware that your general stormwater permits are coming up for renewal in 2021? If you live in a state that is still regulated under the Environmental Protection Agency (EPA) (e.g., Massachusetts, New Hampshire, New Mexico, Idaho [changing 7/01/2021], District of Colombia), do you know that the Multi-Sector General Permit (MSGP) was approved in January 2021 and went into effect March 1st? (read more here)

There are other states to keep an eye out for this year, too, so be mindful of your state’s permitting status (below I have provided a link to find your state's permit status). Given the guidelines under the Clean Water Act (CWA) these types of permits are only good for five years, so it is good to remember that permitting is a continual process.

I have written on today’s topic several different times over the years; however, it is an issue Witt O’Brien’s observes more than you may think we would. The issue is a lack of familiarity by industry on its own requirements. In terms of regulations, stormwater is perceived as one of the “old guys”. It was part of the first set of regulations released by the EPA in the 1970’s – and, despite the countless changes over the years, these regulations are nothing that simply crept up on industry out of the blue. High-level summary: If classified as an industrial facility and have a Standard Industrial Classification (SIC) code that falls into the pool of regulated SICs, then your facility must permit … wait for it …rainwater. Okay, not just rainwater, but rainwater that runs off the facility’s site. We will come back to this in just a bit.

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So, why does water from the sky need regulating?

When I began my consulting career in 2001, I had no environmental background. As a result, my initial year was an orientation of sorts into the world of environmental regulations. I heard, “Read this,” and “Trust me, this is just how it is” more times than I can count. One set of regulations that was hard for me to fathom at face value was the stormwater permitting regulations. Twenty-plus years later, I still see these regulations causing questions for many. The conversation usually begins with: “What? Are you telling me I need a permit for water that comes out of the sky?” or “You are joking. I need a permit for something that happens naturally?” My response is always, “Yes, sounds silly, but it’s true.”

Permits for what? Who needs such permits? We are talking about state and federal operating permits for industrial facilities to cover stormwater runoff. The simple answer to these questions is that processes, storage, production, and other industrial activities can have a negative environmental impact. Rain acts like a washing machine, cleaning the surfaces of industrial properties. This cleaning action causes runoff that then enters the surrounding environments which can impact water quality, animal, and plant habitats, as well as a host of other issues that impact our ecosystems. Stormwater permitting programs are in place to minimize the amount of contamination in this runoff, and thus to ensure the future of our environment.

What brings us here today?

To frame this question better, below are two very common scenarios.

Scenario1: Phone rings: “We’ve had a visit by a local consultant stating we need a stormwater permit. Our understanding is we do not need one, but they are adamant. Can you confirm their statement?”

Scenario 2: During a lunch meeting, a client mentions that one of their consultants used elsewhere has been sending a specialist to their transportation facilities and claiming the entire operation is governed by stormwater permits -- though anyone with an understanding of water regulations would know this to be incorrect.

Where did the eager consultant go wrong in scenario 1? Quick disclaimer: To get to the answer I am oversimplifying the CWA. Under the National Pollutant Discharge Elimination System (NPDES) regulations, “regulated industrial” facilities are required to file for a stormwater permit. Every state is slightly different in its approach; however, all stem from the federal NPDES program. The keywords here are regulated industrial facilities. How do you determine which industry is covered and which is not? The NPDES regulations identify this through SICs, which is how the Occupational Safety and Health Administration (OSHA) classifies a company.

So, if your SIC is not listed under the regulations, then you are exempt. This can be difficult to understand when a facility looks and feels like it should require a stormwater permit. The SIC is determined when the company files for its incorporation paperwork. When starting a new project, we advise clients to confirm with their tax or human resource specialists to ensure we receive the correct SIC. The consultant in this case was making assumptions based on what he saw. In this scenario, our client’s SIC was not on the list. One exception to this is if less than 51% of your revenue or actual actives are driven from the regulated activity, then you can claim an exemption.

Scenario 2 is a very common mistake for consultants. Generally speaking, if a facility is regulated, then the entire property is as well. The keyword being “generally”. Under some sectors (sectors are letter designations given to industry types under the NPDES regulations to group requirements, such as sector P – Transportation and Warehousing), only certain areas where precise activities take place are regulated. The mistake often derives from not fully understanding the SIC of a facility or the permit language or being unfamiliar with the rule.

Brief History and Overview (Click here to learn more)

With some context from above, below is a quick overview of origins and requirements.

The NPDES permit program, created in 1972 by the Clean Water Act (CWA), helps address water pollution by regulating point sources that discharge pollutants to waters of the United States. The permit provides two levels of control: technology-based limits and water quality-based limits (if technology-based limits are not sufficient to provide protection of the water body).

• Learn about the CWA

Under the CWA, EPA authorizes the NPDES permit program to state, tribal, and territorial governments, enabling them to perform many of the permitting, administrative, and enforcement aspects of the NPDES program. In states authorized to implement CWA programs, EPA retains oversight responsibilities. Currently 47 states and one territory are authorized to implement the NPDES program.

• State Program Information

Types of Permits

An NPDES permit is typically a license for a facility to discharge a specified amount of a pollutant into a receiving water under certain conditions. Permits may also authorize facilities to process, incinerate, landfill, or beneficially use sewage sludge. The two basic types of NPDES permits issued are individual and general permits.

• An individual permit is a permit specifically tailored to an individual facility. Once a facility submits the appropriate application(s), the permitting authority develops a permit for that particular facility based on the information contained in the permit application (e.g., type of activity, nature of discharge, receiving water quality). The authority issues the permit to the facility for a specific time period (not to exceed five years) with a requirement that the facility reapply prior to the expiration date.
• A general permit covers a group of dischargers with similar qualities within a given geographical location. General permits may offer a cost-effective option for permitting agencies because of the large number of facilities that can be covered under a single permit.

The above-italicized text comes from the EPA’s NPDES home page. At face value, this topic is relatively easy. However, as noted, most of the states have been granted permission to administer their versions of these programs, which, in my experience, provides for a large landscape of variances across the U.S. as states tailor these for their individual needs. The key fundamentals everyone should know are:

• Number one rule of thumb: If your discharge does not come from the sky, it is a process discharge. This is not considered stormwater, it requires a wastewater permit, or what is more commonly referred to as an “Individual Permit”.
• Stormwater permitting covers facilities that are defined as industrial only – SIC. Meaning, if your operation does not fit one of the defined industrial categories (such as a shopping mall, for example), you do not need a stormwater permit. States may include additional definitions on who is covered; however, the EPA sets the minimum definition. Click here to learn more.
• Not sure what your SIC is? Click here.
• Often overlooked, construction activities also require stormwater permits, which is dependent on the size of the disturbed activity. Hereto, each state may add their variance to this; however, most follow the EPA guidance. Anything greater than one acre requires attention.

Need help with your state’s permit? Click here for the EPA’s state assistance tool.

EPA guidance on developing required program manuals (e.g., SWP3, BMP Plan) can be found here.

Regulated? Next steps?

• Develop a Stormwater Pollution Prevention Plan (SWP3), sometimes called a Best Management Plan (BMP Plan).
• Submit an application for coverage, known as a Notice of Intent (NOI).
• Comply with program-specific inspections, training, sampling, and other industry sector, and state-specific requirements.

For a complete listing of archived articles and compliance insights, click here. Past blogs cover training requirements, clarification on additional confusing elements within the above rules, and much more.

We are here to help solve your compliance questions and challenges. Need some compliance assistance, or just have a question? Please email John K. Carroll III ([email protected]) Associate Managing Director – Compliance Services or call at +1 281-320-9796.

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