An Uncertain Outlook for General Permitting Under the Clean Water Act NPDES Program

General NPDES permitting is under assault. Ironically, the same citizen groups that suggested Clean Water Act general permits over 25 years ago – and as a practical matter forced EPA to utilize them – have come full circle and are now challenging their legality. While the key recent court decisions do not apply directly to any of the Clean Water Act general permits relied upon by the mining industry, they have struck down some fundamental general permitting concepts that underlie all EPA general permits in the Clean Water Act's National Pollutant Discharge Elimination System (“NPDES”) – including those for mines.

NPDES General Permits

 EPA adopted the use of general permits in the late 1970s following litigation by the Natural Resources Defense Council (“NRDC”) that challenged EPA's failure to require permits for stormwater discharges. When EPA pointed out that issuing NPDES permits for stormwater would burden EPA with the duty to administer hundreds of thousands of new permits, NRDC argued to the court that EPA's complaints rang hollow because EPA had the authority to issue general permits. The court ruled in NRDC's favor and suggested to EPA that it use general permits.

Following that ruling, EPA issued regulations in 1979 that authorized the issuance of a general permit applicable to categories of discharges, such as stormwater discharges, without the need for EPA to process a permit application from each discharger. Typically, EPA will draft and issue a general permit to the public for notice and comment, and the permit will contain the terms and conditions (also known as “effluent limitations”) that must be followed in order for the particular category of discharges to occur legally. Once the permit is finalized, dischargers will submit a “notice of intent” to EPA, in which the regulated party notifies EPA of its intent to be covered by the general permit's terms and conditions and agrees to develop and maintain a site-specific plan that demonstrates how the general permit will be implemented at a particular facility.

EPA has issued general permits for decades using this procedure, and many courts over the years have recognized the importance of general permits to Clean Water Act implementation and enforcement. The general permitting system has proven effective in regulating large numbers of similarly situated dischargers. Moreover, EPA and the states lack the resources to regulate these varied and diffuse discharges through individual permits.

General Permits for the Mining Industry

A variety of NPDES general permits under § 402 of the Clean Water Act apply to the mining industry, including:

• Stormwater Multi-Sector General Permit for Industrial Activities (EPA);
• General Permit for Wastewater Discharges from Coal Strip Mining Activities (Ohio);
• General Permit for Stormwater Discharges Associated with Mine Dewatering and Process Wastewater (North Carolina);
• General Permit for Stormwater Discharges Associated with Mining or Extraction Activity (North Dakota);
• General Permit for Stormwater Discharges Associated with Industrial Activity from Metals Mining Activities (Nevada);
• General Permit for Nonmetal Mineral Mining Discharges of Groundwater, Stormwater, and Mine Process Waste (South Carolina);
• General Permit Authorization to Discharge Stormwater Associated with Mineral Mining Activities (Wyoming);
• General Permit for Nonmetallic Mining Operations (Wisconsin);
• General Permit for Nonmetallic Mineral Mining (Virginia);
• General Permit for Coal Mining (Utah);
• General Permit for Surface Coal Strip Mines (Oklahoma);
• General Permit for Sand and Gravel Mining Wastewater (Michigan);
• General Permit for Sand and Gravel Mining and Processing (Colorado);
• General Permit for Placer Mining Operations (Colorado); and
• General Permit for Mechanical Placer Mining (Alaska).

(Note: These are in addition to the Nationwide General Permit issued to mines under Clean Water Act § 404 for valley fills from mountaintop mining operations. The § 404 program is distinct from the NPDES program under § 402, and Congress specifically authorized general permits in § 404. The Nationwide General Permit is facing its own litigation challenges by citizen groups opposed to mountaintop mining.)

Like many general permits, the § 402 mining general permits specify various best management practices (“BMPs”) that must be implemented and documented to comply with the permit and minimize or eliminate discharges. The required documentation varies, but it generally involves some sort of plan (e.g. , a storm water pollution prevention plan or “SWPPP”) that contains site-specific information that illustrates how the BMPs are implemented at a particular facility.

Recent Judicial Decisions That Question EPA's General Permitting Procedures

Two recent decisions from U.S. Courts of Appeals cast doubt on the legality of the above-described general permitting procedures. First, in Environmental Defense Center, Inc. v. EPA , the Ninth Circuit in 2003 agreed with the plaintiff citizen groups and found that EPA violated the Clean Water Act when it failed to require agency review and public review and comment on stormwater management plans developed by small municipal separate storm sewer systems as a condition of applying for coverage under the applicable general permit.

Next, in Waterkeeper Alliance, Inc. v. EPA , the Second Circuit more recently invalidated EPA general permitting regulations for concentrated animal feeding operations (“CAFOs”) because the nutrient management plans (“NMPs”) used by CAFOs to comply with the BMPs were not subjected to agency review prior to permit issuance, were not incorporated as permit terms, and were not subject to public notice and comment. The court based its rulings on its finding that the NMPs themselves were effluent limitations, not just planning tools used to implement the effluent limitations in the regulations.

Finally, in the Seventh Circuit, the general permit for stormwater discharges from construction activities is currently being challenged by citizen groups (including NRDC) on the same grounds. In that case, Wisconsin Builders Association v. EPA , the citizen groups are arguing that the permit is invalid unless the SWPPPs are made available for public review and comment. Briefing and oral argument in the case have concluded and the parties are awaiting a decision.

The Second and Ninth Circuit decisions dismantled the general permitting procedures for small municipalities and CAFOs, respectively. They are forcing EPA to treat general permits more like individual permits, by requiring public participation and agency review of site-specific documentation for a discharger prior to permit issuance. These decisions create problems for both EPA (and other permitting agencies) and their permittees. Not only does EPA lack the administrative resources to implement such a program (and will therefore force major permitting delays upon the affected industries), but the permitted parties will have to make public their SWPPPs and NMPs – documents that have traditionally been private except for agency inspections.

Also, requiring these documents to become part of the permit's terms and conditions means that any amendments to them can only be accomplished through EPA's burdensome permit modification procedures. The nature of SWPPPs and NMPs, however, require them to be organic documents that constantly change with site conditions, so unless EPA amends its permit modification regulations, these permits will be unworkable.

Arguments in Support of General Permitting

But all is not lost for general permitting. If another circuit court of appeals rules in EPA's favor on this issue (and the Seventh Circuit has such an opportunity), it would create a “split” among the circuits that could attract the attention of the U.S. Supreme Court. EPA continues to argue aggressively that rulings like those from the Second and Ninth Circuits misapprehend the purposes and functions of general permitting. The Agency's position is well-founded.

First, the rulings ignore the clear congressional intent in the Clean Water Act to allow dischargers to choose and develop their own site-specific technology to implement EPA's limitations on discharges. Congress intended for NPDES permits to contain only the discharge limits and for the permittee to meet those limits in the way it thought best, in part to encourage innovation. Plans such as SWPPPs and NMPs document that implementation process, and they are meant to be amended as a permittee changes its practices over the course of a permit's 5-year term. EPA never intended for the plans to be effluent limitations themselves because that is contrary to what Congress intended for the NPDES program. However, the Second Circuit held that NMPs are effluent limitations, and gave no deference to EPA's reasonable interpretation, despite its consistency with Congressional intent.

Also, EPA has the authority to issue non-numeric limitations on discharges when appropriate fixed numeric limits are impossible to determine (as they are with irregular discharges like those of stormwater). The courts nevertheless found that EPA's general, descriptive BMP requirements for stormwater and CAFO discharges were insufficient non-numeric effluent limits. The courts implied that CAFO and municipal stormwater permittees could not be trusted to implement the general, descriptive BMPs. They required the detailed written plans to be subject to agency and public review, despite the fact that dischargers in numerous industries have implemented hundreds of EPA effluent limitations over the past three decades without such scrutiny.

Finally, the Second and Ninth Circuits gave too little weight to the existing public participation process for general permits. Such permits are not shielded from public scrutiny. In fact, the public has an opportunity to review and comment on each effluent limitation in a general permit. First, when an effluent limitation guideline regulation is promulgated, those regulations are subject to public comment. Second, members of the public may comment when permit terms and conditions are proposed for a draft general permit. They can also seek judicial review of such regulations and draft permits , subject to the usual prerequisites such as standing and ripeness.

These are the same public participation rights afforded for NPDES permits for industries with numeric effluent limitations -- the public has never had review and comment opportunities on how those effluent limitations are implemented at a particular factory or plant. Thus, for those industries guided by BMPs in their Clean Water Act permits, the Second and Ninth Circuits are demanding a higher level of public participation than is required for permits with numeric effluent limitations. Nothing in the Clean Water Act or EPA's regulations requires this disparate treatment.

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The Second and Ninth Circuit decisions may be aberrant interpretations of EPA's general permitting authority, but they apparently reflect a growing judicial hostility toward general permits. If their reasoning is widely adopted, the procedures for the next round of general stormwater permits – including those for the mining industry – may impose much more agency review and public input than has occurred in the past. Moreover, the associated, greatly expanded administrative burden may compel EPA and the other permitting authorities to make other changes to the general permit process to enable them to shoulder an administrative burden that they do not have the resources to carry. Unless this trend of judicial decisionmaking can be contained, the outlook for general permits and their permittees could be far from rosy.

[The authors represented the National Pork Producers Council in the Second Circuit in Waterkeeper Alliance, Inc. v. EPA . In addition, Ellen Steen and other Crowell & Moring attorneys represented the National Association of Home Builders in both the Ninth Circuit and Seventh Circuit cases.]