Articles on Water Quality


U.S. EPA’s Proposed Rule Would Modernize NPDES Regulations

Water Quality

Earlier this month, the United States EPA proposed a rule (“Proposed Rule”) that would update and revise National Pollutant Discharge Elimination System (“NPDES”) regulations. Rather than epa-logoreopening the existing NPDES regulations for comprehensive revision, the Proposed Rule would make “specific targeted changes to the existing regulations” that align the regulations with statutory requirements and incorporate case law decisions.  Essentially the update would “modernize” the NPDES regulations.

The Proposed Rule covers 15 topics. These pertain to permit applications; the water quality-based permitting process; permit objections, documentation and process efficiencies; the “vessels exclusion” (which authorizes certain discharges incidental to the normal operation of commercial vehicles); and the Clean Water Act (CWA) section 401 certification process.

For a complete summary of the Proposed Rule, please click here.  Comments on the Proposed Rule will be accepted through July 18, 2016 and may be submitted here.

In the Heart of the Rainy Season: The New (Stayed) Clean Water Rule Covers Vernal Pools in California

Water Quality

After years of drought, the El Niño storms have been bringing much-needed rain and snow to California–albeit in quantities significantly less than we hoped for thus far.  In addition to the anticipated snow packs, flowing rivers, and replenished reservoirs, the California landscape has been marked by the return of ephemeral vernal pools, which may appear as seemingly insignificant ponds or puddles.

However, under the Clean Water Rule (“CW Rule”) which was promulgated mid-last year, and which defines which waters are “jurisdictional”—meaning, protected as “waters of the United States” under the Clean Water Act (“CWA”)—the reach of federal jurisdiction may include those seemingly insignificant ponds or puddles.

If such a pond or puddle is deemed a “vernal pool” that is covered by the CWA, then the pond or puddle is subject to a myriad of CWA regulatory requirements, including the federal prohibition on discharges of pollutants except in compliance with the CWA (§ 301), the requirement to obtain a permit prior to discharge (§§ 402, 404), water quality standards (§ 303), oil spill liability and oil spill prevention and control measures (§ 311), certification of compliance with State water quality standards (§ 401), and enforcement (§ 309).

This may seem like a whole lot of fuss about what may appear to be nothing more than large mud puddles.

This may seem like a whole lot of fuss about what may appear to be nothing more than large mud puddles.

The CW Rule specifically includes western vernal pools as potentially jurisdictional under the CWA and specifies how jurisdiction is to be determined.  In sum, western vernal pools may be deemed jurisdictional waters of the United States on a case-by-case basis depending on whether combined networks of vernal pools “significantly affect” the integrity of other jurisdictional waters.  This is in contrast to the five classes of waters which are deemed per se jurisdictional, or “jurisdictional by rule” under the CW Rule:  traditional navigable waters, interstate waters, the territorial seas, tributaries, and “adjacent” waters (as defined).

The CW Rule describes “western vernal pools” as

shallow, seasonal wetlands that accumulate water during colder, wetter months and gradually dry up during warmer, drier months;


seasonal wetlands from the Pacific Northwest to northern Baja California, Mexico associated with topographic depressions, soils with poor drainage, mild, wet winters and hot, dry summers.

Although the CW Rule does not categorically include western vernal pools as “waters of the United States,” the CW Rule categorizes them as waters that may be deemed waters of the United States when a case-specific determination has found a significant nexus between the pools in question and jurisdictional waters of the United States.

The significant nexus standard stems from a series of United States Supreme Court opinions, including Rapanos v. United States, 547 U.S. 715 (2006), which set forth several tests for determining when waters may be deemed “waters of the United States.”  In a fractured 4-1-4 decision, Justice Kennedy concluded in a concurring opinion that waters could be jurisdictional if they either alone or in combination with similarly situated waters in the region, “significantly affect the chemical, physical, or biological integrity” of traditional navigable waters, interstate waters, or the territorial seas.

Under the CW Rule, western vernal pools are deemed “similarly situated” for purposes of the significant nexus standard, and must therefore be considered as a whole rather than individually in making jurisdiction assessments.  Specifically, they are to be analyzed as a group in the watershed that drains to the nearest traditional navigable water, interstate water, or the territorial seas when making a case-specific analysis of whether these waters have a significant nexus to traditional navigable waters, interstate waters, or the territorial seas.  This is theoretically true irrespective of distance from jurisdictional waters, although to the extent that vernal pools are “adjacent” (as defined in the CW Rule) to jurisdictional waters, then they would automatically be deemed jurisdictional by rule which would obviate the need for a case-specific determination.

Under the prior regulatory scheme, western vernal pools were not specifically enumerated as a subclass of potentially jurisdictional waters, and it was unclear how they were to be evaluated (including whether they were to be evaluated separately or as a network).  This left stakeholders—predominantly those in the Central Valley where western vernal pools are most commonly found—scratching their heads over jurisdictional determinations.  See, e.g., Borden Ranch Partnership v. United States Army Corps of Engineers, 261 F.3d 810 (9th Cir. 2001) (reversing district court’s findings of liability with respect to isolated vernal pool in the Central Valley).

Despite the CW Rule’s potential for significant new designation of jurisdictional waters, the CW Rule states that it does not purport to add any additional CWA permitting requirements.  For example, with respect to agriculture, the CW Rule does not affect any of the exemptions stated in CWA section 404(f), including exemptions for “normal farming,” ranching, and forestry activities.  That said, the Economic Analysis document accompanying the CW Rule indicates that the CW Rule will result in an approximately 3% to 5% increase in claimed CWA jurisdiction compared to the current field practice.

The CW Rule has been challenged on multiple grounds, and is presently stayed nationwide.  Shortly after the CW Rule was issued, enforcement of the CW Rule was stayed in the Sixth Circuit (In re: Environmental Protection Agency and Department of Defense, Final Rule: Clean Water Rule: Definition of “Waters of the United States) pending a determination by the court on jurisdiction to review the rule.  As a result, federal regulators have not been implementing the CW Rule, and are instead using the 1986 regulations and associated guidance (those in effect prior to August 28, 2015) in making jurisdictional determinations.  Just last month, however, in a fractured 2-1 decision, a three-judge panel found that the Sixth Circuit has jurisdiction to hear challenges to the CW Rule.

The stay will fuel uncertainty as vernal pools begin to form throughout California this spring as to whether specific vernal pools will be considered “waters of the United States.”  This may be a source of significant frustration for those with development, grading, or other plans for land that could impact vernal pools.

When compounded with the possibility that threatened or endangered species may be lurking within vernal pools (such as the threatened fairy shrimp that have historically emerged when vernal pools begin to fill), vernal pools can present a complicated and expensive set of environmental challenges.

This may seem like a whole lot of fuss about what may appear to be nothing more than large mud puddles.  Nevertheless, property owners must exercise caution before they disturb those pools, as the penalties under the CWA can be significant.

State Water Board Approves Composting General Order

Water Quality

     Earlier this month, the California State Water Quality Control Board (“State Water Board”) approved a General Order for Waste Discharge Requirements (“WDRs”) for composting operations, which will streamline and standardize permitting processes and regulate water quality at new and existing composting facilities.  While the General Order was approved with very little fanfare or media coverage, its implications are significant.

General Order Coverage

    The General Order, which applies to State composting facilities that process at least 500 cubic yards of material per year, will impose a regulatory scheme on a large number of the organics facilities already operating in the State.  Moreover, the General Order’s facility coverage is likely to expand in the coming years, given the recent passage of California Assembly Bill 341 (“A.B. 341”) (2011), which encourages the addition and expansion of State composting facilities by establishing a State policy goal that at least 75 percent of the solid waste generated in the State be source-reduced, recycled, or composted by 2020.

Waste Disposal and Composting in California

     The State of California currently disposes of an annual estimated 35 million tons of waste in landfills, of which an estimated 32 percent is compostable organic material, 29 percent is construction debris, and 17 percent is paper.  Much of the organic material could be, but is not being, composted, which is leading to the excessive and unnecessary filling of State landfills.  Composting yields environmental benefits by preserving nutrients, diverting waste from landfills, improving soil, reducing runoff, and sequestering carbon.

Prior Regulatory Scheme 

     In the past, potential water quality issues arising from composting facilities were regulated by the State’s nine Regional Water Quality Control Boards through individual facility WDRs, or waivers of WDRs.  California Water Code section 13263 requires that the water boards prescribe WDRs that, among other things, implement water quality control plans and consider the beneficial uses to be protected.

     Historically, the principal water quality issue at composting facilities has been the control of “leachate,” a liquid byproduct of composting.  Leachate consists of a variety of pollutants, including salts, nitrates, pesticides, and metals, which have the potential to impact ground waters and surface waters of the State.

Permit Basics

     The General Order puts most composting facilities in either a Tier I or a Tier II category, with Tier II facilities being subject to heightened regulatory requirements.  Classification is predominantly based on feedstock type, total volume of materials, and hydrogeological siting.

     With respect to each tier, the General Order sets forth standards for depth to groundwater, distance to surface water, allowable and prohibited feedstocks, additives, surface pads, wastewater handling, berms, and facility monitoring.  Some composting facilities will fall into neither tier, necessitating the continued use of individual WDRs.

 Over-Regulation of Composting?

     A number of composting industry participants have suggested that the cost of compliance with the General Order is high compared to the relatively innocuous threats posed to water quality by composting activities.  Consequently, they argue, composting facilities may consider shutting down or raising fees—both of which would be detrimental to the State’s A.B. 341 goals.

     In response to industry comments, the State Water Board revised a number of the General Order’s more onerous regulatory requirements.   For example, in an earlier draft of the General Order, detention ponds at composting facilities were required to contain all runoff from working surfaces in addition to precipitation from a 25-year, 24-hour storm event.  Industry participants argued that the requirement lacked flexibility.  In response, the General Order was revised to indicate than an “equivalent alternative” to the detention pond requirement could be approved by a regional water board.

     Whether the General Order strikes the appropriate regulatory balance between encouraging composting and adequately protecting water quality is still in question.  Only time will tell whether the General Order accomplishes those dual objectives.

 Next Steps for Composting Facilities

     Existing composting facilities, except those with individual WDRs or conditional waivers of WDRs, are required to seek coverage under the General Order by submitting a Notice of Intent (“NOI”), filing fee, and technical report within one year of adoption of the General Order (as indicated above, the General Order was adopted on August 4, 2015).  New composting operations that propose to begin operating after adoption of the General Order, are required to seek coverage under the General Order by submitting a complete NOI, filing fee, and technical report at least 90 days prior to commencement of operations.

     After the appropriate regional water board determines that an NOI and technical report are complete and the operation can be appropriately regulated under the General Order, the regional water board will issue a Notice of Applicability (“NOA”) which will confirm the facility’s tier and a timeline for compliance with the General Order.  Existing facilities will have six years to come into full compliance with the General Order.

State Water Board Continues Deadline for Compliance with New California Industrial General Permit for Stormwater until August 14, 2015

Water Quality

As an update to a previous write-up on the deadline for compliance with the new California Industrial General Permit for Stormwater (General Permit), the State Water Resources Control Board (State Water Board) has continued the deadline for registration and compliance from July 1, 2015 to August 14, 2015.

In a notice circulated on the original deadline for compliance, July 1, 2015, the State Water Board acknowledged that its web-based database for stormwater compliance (SMARTS) was experiencing technical issues which were limiting registration access.

As a result, the State Water Board extended the deadline for registration from July 1, 2015 to August 14, 2015.  This extended deadline should enable those industrial facilities that were either unaware of the July 1, 2015 deadline or those struggling to meet that deadline to timely register.

As mentioned before, determining whether an industrial facility is subject to the General Permit and maintaining compliance with the General Permit can be complicated.  Simplifying that process can be done through enlisting the assistance of water quality professionals such as legal counsel or consultants.  If you haven’t already, it is important to identify water quality professionals with experience in stormwater permitting and compliance to ensure a facility appropriately complies with the new General Permit.






Christopher ‘Smitty’ Smith


Deadline For Compliance With New California Industrial General Permit For Stormwater Is A Week Away (July 1, 2015)

Water Quality

On July 1, 2015, the new California Industrial General Permit for Stormwater (General Permit) will take effect and along with it come a host of new compliance obligations. Chief among those obligations is the completion and submission of a notice of intent (NOI) to be bound by the new General Permit. The last time industrial facilities were obliged to submit an NOI was when the soon-to-be-expired General Permit was updated back in 1997.  Much has changed in the world of industrial stormwater compliance since then.

For those less familiar with the General Permit, it applies in California to the tens of thousands of industrial facilities throughout the state and serves to regulate stormwater emanating from those facilities. The application of the General Permit to any given facility is based on that facility’s Standard Industry Classification (SIC) code. The SIC code for a given facility is determined based on the primary industrial activity at the facility.

The first step in complying with the new General Permit is to determine if an industrial facility is subject to it.  For those industrial facilities that already have their own individualized permit for stormwater, the General Permit’s compliance obligations are inapplicable. And for those industrial facilities that are already operating under the soon-to-be-expired General Permit, the new General Permit’s compliance obligations may be inapplicable.  Oftentimes, industrial facilities will just re-notice their intent to be bound by a new permit without evaluating whether their facility should be subject to a permit. This common practice should be avoided, if possible, to ensure that a facility is not expending time and money to comply with a permit that is inapplicable. Finally, for those industrial facilities that are not already operating under the General Permit, it’s time to evaluate whether the General Permit applies.

Determining whether a facility is subject to the General Permit begins with identifying the primary operations at a facility and locating the associated SIC code. To determine a facility’s SIC code, the State Water Resources Control Board has included Attachment A to the new General Permit which matches up SIC codes with a facility’s primary activity. Generally, the SIC codes covered include industrial operations ranging from manufacturing, oil and gas, mining, hazardous waste, landfill and recycling, transportation, and sewage and wastewater treatment works.

Bear in mind that if it is determined that a facility was not previously obligated to comply with the General Permit because that facility fell under the light industry exemption, that exemption is not carried through to the new General Permit. It remains unclear how many new facilities will be obligated to comply with the new General Permit based on the removal of this exemption, but the estimates are in the tens of thousands statewide. Despite doing away with the oft-utilized light industry exemption, the new General Permit provides a separate carve out from coverage known as the no exposure certificate (NEC). An NEC is available to a facility if that facility does not expose stormwater to industrial activities.  Practically, obtaining an NEC serves to circumvent the obligations associated with compliance with the General Permit.

Assuming an industrial facility is obligated to comply with the new General Permit, then along with completing and submitting an NOI, that facility must ensure registration in the stormwater multiple application and report tracking system (SMARTS). SMARTS is a web-based database for stormwater compliance and reporting. Instituting SMARTS is a change from the old model which involved submitting quarterly and annual reports in hardcopy. While SMARTS will make it easier and less expensive to maintain compliance with regulators, it will equally enable concerned citizens and environmental groups to have instant and up-to-date access to a facility’s records of compliance. A facility’s stormwater pollution prevention plan (SWPPP) may serve as the best example of how SMARTS may change the landscape for stormwater compliance.  Historically, some industrial facilities have been lax about maintaining and updating SWPPPs.  Prior to SMARTS, this lax effort may have gone unnoticed, but now that same lax effort is more likely to garner the attention of regulators, concerned citizens and environmental groups, or both.  And with the recent spike in Clean Water Act citizen suits filed in federal courts around the state, garnering the attention of any one of these groups can prove to be very costly and time consuming.

Determining whether your facility is subject to the General Permit and maintaining compliance with the General Permit can be complicated. Simplifying that process can be done through enlisting the assistance of water quality professionals such as legal counsel or consultants.  If you haven’t already, it is important to identify water quality professionals with experience in stormwater permitting and compliance to ensure a facility is afforded the protections available for compliance with the General Permit.



 Christopher ‘Smitty’ Smith

Guiding Us Through the Waters of the United States: New Guidelines Proposed Clarifying What Waters are Protected by Clean Water Act

Water Quality

WaterfallOn May 2, the Environmental Protection Agency (EPA) and Army Corps of Engineers formally proposed new guidelines for determining which waters and wetlands are “waters of the United States” and are, therefore, protected under the Clean Water Act (CWA).

According to the notice, jointly published in the Federal Register, the new guidelines will provide clarity and predictability regarding the scope of the “waters of the United States.” The agencies saw this as needed since the waters have become somewhat murky (terrible pun, I know…) after the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) in 2001 and Rapanos v. United States in 2006.

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Sorry Sixth Circuit – You Just Got Housed: House passes a bill taking pesticides out of CWA’s jurisdiction

Water Quality

CongressOn Tuesday, the House of Representatives passed a bill sponsored by Rep. Bob Gibbs (R-Ohio) known as the Reducing Regulatory Burdens Act of 2011 (or H.R. 872). The bill would amend the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and the Clean Water Act (CWA) such that CWA permits, known as National Pollutant Discharge Elimination System permits (or NPDES permits), would not be required when a pesticide is applied to or near a navigable waterway in accordance with its FIFRA label.

Essentially, the bill takes pesticides out of the definition of pollutant such that these permits are not mandated.
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Can Construction Site Webcams Be Far Behind?

Water Quality

New Construction Water Quality Regulations Impose Tough Numeric Limits And Internet Reporting Requirements

The State Water Resources Control Board (“State Water Board”) recently adopted toughened standards for water flows generated by construction sites under a new statewide storm water construction general permit, Water at Construction Siteeffective July 1, 2010. The new permit (the “2010 Permit”) replaces the storm water construction general permit in place since 1999 (the “1999 Permit”) and imposes heightened requirements for managing water during construction. The 2010 Permit applies to construction sites of at least one acre and smaller sites that are part of a common development plan.

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EPA Holds Hearings on Hydraulic Fracturing

Water Quality

Hydraulic FracturingAs part of a broad investigation into the practice of pressurized injection of water, sand, and chemicals to extract natural gas from shale, known as hydraulic fracturing or fracking, the Environmental Protection Agency (EPA) held several public hearings this week in Binghamton, New York. Hydraulic fracturing operates by the pressure of the injected materials exceeding the rock strength and the fluid then opening or enlarging fractures in the rock. As the formation is fractured, a “propping agent,” such as sand or ceramic beads, is pumped into the fractures to keep them from closing as the pumping pressure is released.

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EPA Takes Steps Under The Clean Water Act to Protect California’s Coastline

Water Quality

On August 25, 2010, the Environmental Protection Agency (EPA) proposed the nation’s largest coastal “No Discharge Zone,” covering California’s entire 1,624 miles of coastline. Pursuant to the federal Clean Water Act, states may request EPA to establish vessel no-discharge zones to protect and restore water quality. Non-sewage discharge from vessels is regulated under state law. Acting pursuant to California’s Clean Coast Act of 2005, the State Water Resources Control Board requested EPA to adopt the protective zone.
San Francisco Cruise Ship

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