By: Sophie Lewis
Image courtesy of Unsplash
The United States has many forms of legislation created to protect our oceans and keep them clean. An important program that regulates the conditions of our waterways is the NPDES: the National Pollutant Discharge Elimination System Permit Program. Before diving into what the NPDES is, it's necessary to start with the Clean Water Act. The Clean Water Act (CWA) was created to establish the basic structure for regulating the discharge of pollutants into our waters here in the US. The CWA was then used to create an entire framework for the Environmental Protection Agency (EPA) to regulate water pollution. Under this act, the EPA has authorized multiple pollution control programs such as setting standards for wastewater industries and creating NPDES.
The origins of the Clean Water Act were created in 1948, under the name of the Federal Water Pollution Control Act, but in 1972 the act was updated, expanded, and reorganized and was given the new name “Clean Water Act”. The Clean Water Act prohibits anybody from discharging "pollutants" through a "point source" into a "water of the United States" unless they have an NPDES permit. A point source is defined as, “any discernible, confined, and discrete conveyance”. Since this is defined very broadly, it has been the subject of 25 years of litigation. Some examples of a point source are a pipe, channel, container, or tunnel. This means that it is prohibited to pollute a point source that goes to any source of water without a specific NPDES permit.
In the Clean Water Act, pollutants are defined as “any type of industrial, municipal, and agricultural waste discharged into water”. A more detailed categorization of pollutants as defined by the CWA is solid waste, chemical waste, discarded equipment, radioactive materials, and more. It is important to note that by law, the definition of a pollutant is not sewage from vessels or incidental discharges from an Armed Forces Vessel. Armed Forces vessels are not penalized for their ‘accidental discharges’ of pollutants into the ocean. The CWA is used to define what is recognized as a pollutant and a point source and is a crucial structural element of the National Pollutant Discharge Elimination System Permit Program
The NPDES is a permit program that addresses water pollution through the regulation of point sources that distribute pollutants to bodies of water in the US. The CWA made it unlawful to put any pollutant into navigable waters through a point source without an NPDES permit. These permits are either issued by the EPA or by certain authorized states. A map showing which states are authorized to issue these permits can be found here.
There are three steps to obtaining an NPDES permit. First, an application must be submitted to the permitting authority, either the EPA or the authorized state. Second, the application is reviewed for accuracy, and the permitting authority begins a public notice period where anyone can submit comments on the draft permit. In the final step, the permitting authority reviews all the public comments and decides whether the draft needs additional opportunities for public involvement. If the permit is issued by the EPA, there are additional steps. For example, every federal applicant must provide a State Water Quality Certification stating that the proposed activity complies with the Clean Water Act. The National Environmental Policy environmental assessment makes sure that the action will not have a “significant impact”, however, it is not defined what this would look like. Finally, for EPA-issued permits, if individuals are unsatisfied with the terms of their permit they may petition the Environmental Appeals Board to review their application. These permits are typically effective for five years and can be renewed at any time.
NPDES permits are enforced by the EPA and individual states via analyzing discharge samples, requiring accurate reports, and reserving the right to impose actions against violators of permit requirements. The facility must sample its discharges and provide the results to the state regulatory agency. If it is determined that the samples are not in compliance with the permit standards, they are legally bound to report this to the EPA and the state regulatory agency. Furthermore, agencies will send inspectors to facilities to confirm they are acting per the conditions outlined in the permit. If they are not, the EPA and state agencies may issue orders that require them to correct violations and pay fines. The EPA also holds the right to pursue civil and criminal actions against the facility including mandatory penalties and even jail time if persons are found willfully violating requirements and endangering the health of the environment.
In the last few decades, there have been several petitions for the EPA to withdraw the delegated authority for certain states to give NPDES permits. There have been NPDES withdrawal petitions that are complaints about alleged deficiencies in state programming. For example in 2010, a group of Alabama environmentalists filed a petition for the EPA to remove Alabama’s NPDES program. They outlined twenty-six problems from failure to inspect discharges to failure to timely prosecute permit violations. Failure to inspect discharges threatens the health and quality of our water and failure to prosecute permit violations further pollutes our waters from that same source. Around the same time of the petitions in Alabama, there were similar complaints from groups in Kentucky and Illinois. Furthermore, two withdrawal petitions filed in Maine and Florida outline that the state authorities have a conflict of interest that puts the NPDES programs in jeopardy.
It is important that the EPA uses a collaborative approach, such as the one they used to address the problems in Illinois where they worked with their office to reshape and strengthen their program using a cooperative work plan. When NPDES was created in 1972, only one-third of our water was considered healthy. But within the first 30 years of this program, the number of waters deemed healthy rose to two-thirds. This demonstrates the effectiveness of this program. As our world develops and puts more stress on the systems that protect our oceans, it becomes increasingly important to spread knowledge about this problem and safeguard the infrastructure protecting our waters.
Environmental Protection Agency. (2013). Public Participation in the NPDES Permit Issuance Process.
Environmental Protection Agency. (2022a, July 6). Summary of Clean Water Act. EPA. https://www.epa.gov/laws-regulations/summary-clean-water-act
Environmental Protection Agency. (2022b, December 23). NPDES Permit Basics. EPA. https://www.epa.gov/npdes/npdes-permit-basics
EPA. (2021). NPDES Program Authorizations. NPDES Authorized States 2021. Retrieved May 11, 2023, from https://www.epa.gov/sites/default/files/2021-02/documents/authorized_states_2021.pdf.
Flannery, E. A. (2012, January 1). Emerging Trends In Clean Water Act NPDES Withdrawal Petitions. American Bar Association. https://www.americanbar.org/groups/environment_energy_resources/publications/trends/2011_12/january_february/emerging_trends_clean_water_act_npdes_withdrawal_petitions/
Office of Water, Protecting the nation’s waters through effective NPDES permits: A strategic plan FY 2001 and beyond 1–19 (2001). Washington, D.C.; United States Environmental Protection Agency, Office of Water.