WYOMING WATER & ENERGY LAW

NPDES Permitting Issues

Kara Brighton

Hageman & Brighton, P.C.

Cheyenne, WY

Today’s Presentation

Introduction

Large Construction General Permit (LCGP) Storm Water Pollution Prevention Plan (SWPPP)

Notable Changes to the LCGP

CWA Permits for Pesticide Application Background

Permitting Information

Conclusion

Introduction

Clean Water Act

Discharge of any pollutant from a point source

into surface water of the United States

WYPDES Program

Wyoming Pollutant Discharge Elimination System

Storm Water Discharges - Construction

Non-Storm Water Discharges - Pesticides

Introduction

“General Permit”

A Single Permit Issued to Cover a Large Number

of Similar Discharges within an Area

WDEQ Reviews WYPDES Permit Applications

Determines if an individual permit is required

Large Construction General Permit

Wyoming Water Quality Rules & Regulations Chapter 2 Minimization or Elimination in Storm Water Runoff

Including Sediment

Land Disturbance of Five or More Acres Does Not Have to be Contiguous Smaller Construction part of Larger Development

LCGP Continues Until Site is “Finally Stabilized” Re-vegetated to 70% of Natural Cover

Storm Water Pollution Prevention Plan

LCGP Requires a SWPPP Must be submitted with Notice of Intent (NOI) to

WDEQ 30 Days Before Construction Begins NOI - Describes the construction project

SWPPP Describes Potential Pollution Sources Best Management Practices (BMPs)

Notable Changes to LCGP

LCGP was renewed March 15, 2011 5 Year Permit - Expires March 15, 2016

Revised Definitions “Finally Stabilized” - Vegetation Must be Adaptable

“Operator” - Expanded Entities that have the ability to modify project plans

“Reportable Quantity” - Reporting of Spills to WDEQ

Notable Changes to LCGP

SWPPP must be Consistent with TMDL Total Maximum Daily Load

Sediment, Suspended Solids, or Turbidity

NOI Requirements Expanded “Common Plans of Development or Sale”

Must Identify Potential Storm Water Discharges to

Waters with an Approved TMDL or on 303(d) List

Potential Discharges to Class 1 Waters

Notable Changes to LCGP

Effluent Limitations - New Federal Regulations Erosion & Sediment Control Minimum Standards

Removal of Sediment Transported Offsite

Protection of Storm Drain Inlets

Offsite Tracking of Sediment to Paved Areas

Stabilization of Disturbed Areas for Stalled Activity

Notable Changes to LCGP

SWPPP Requirements Expanded

Joint SWPPPs Minimum Standards

Changes Made within 30 Days of Inspection

Uniform Format - SWPPP Template

Site Map Requirements

BMP Minimum Standards

Maintenance of Inspection Records

CWA Permits for Pesticide Application

FIFRA / CWA

Federal Insecticide, Fungicide & Rodenticide Act

Litigation National Cotton Council v. EPA - Sixth Circuit

Chemical Pesticides Regulated Under NPDES

Program

January, 2009: Vacated EPA Rule February, 2010: U.S. Supreme Court Denied Cert EPA Requested Two Year Delay

CWA Permits for Pesticide Application

Effective Date: April 9, 2011

Extension: October 30, 2011

Wyoming Issued: March 14, 2012

Expire December 31, 2015

Regulatory Burden Affects 5.6 Million Applications Annually 365,000 Applicators

Major Pesticide Discharge General Permit

General Permit Authorizes Discharges of Pesticides TO, OVER, IN Water of surface waters of state associated with:

Mosquitoes and Other Flying Pests

Aquatic Weed and Algae Control

Aquatic Nuisance Animal Control

Forest Canopy Pest Control

Discharges to Class 1 Waters

Treatment Thresholds

Mosquitos and Other Flying Insect Pests 640 Acres of Treatment Area

Weeds and Algae 80 Acres of Treatment Area 20 Linear Miles at Water’s Edge

Forest Canopy 6400 Acres of Forest Canopy

Opt-In

Permit Categories

None Minor

Pesticide Applications that do NOT Exceed Thresholds OR

Major Pesticide Applications that DO Exceed

Thresholds Any Pesticide Application near Class 1

Streams of State

Minor Permit

No Fees No Notice of Intent No Annual Reporting Requirements “Honor System” Permit Only Need to Show if Complaint Filed

and DEQ Investigates

Minor Permits

Permit Conditions Narrative rather than Numeric Based on Best Management Practices Reference FIFRA Label Instructions Equipment: Maintenance, Calibration and

Cleaning Required Monitoring Record Keeping Adverse Incident Documentation &

Reporting

Major Permit

Filing Fee = $100 per year Notice of Intent Authorization Annual Report due February 28th

Covers Previous Calendar Year Pesticide Pollution Prevention Plan

Notice of Intent

When to File Contact Information Location of Records Treatment Area Locations Type of Pesticide Use Pattern Map Other Information Certification

Annual report

Form Available from DEQ later this Year Application Information

Weather Conditions Calibration/Repair Documentation Adverse Incidents

Pesticide Pollution Prevention Plan

Deadlines Know or Should Know: Prior to First

Discharge Did not Know or Should Not have Known:

Prior to Exceeding Threshold Emergency: No Later than 90 Days 2012: By December 31, 2012

Signature Must Identify Responsible Individual Must be Updated Once per Year

P4 Requirements

Protocols Spill and Adverse Incident Response

Procedures Application Equipment Lowest Effective Amount of Pesticide

Treatment Areas Use Patters and Application Dates Names of Product and Amount Used Environmental Conditions

P4 Requirements (cont)

Document Unusual Effects to Non-Targets

Document Equipment Calibration, Cleaning and Repairs

Prior to First Application Identify Target Species Identify Factors Contributing to the Problem Establish Densities of Target

P4 Requirements (cont)

Implement Efficient Means to Minimize Discharges from Pesticides No Action Prevention Mechanical or Physical Methods Biological Control Agent Used Pesticide Use

P4 Requirements (cont)

If Pesticide Selected: Conduct Surveillance Assess Environmental Conditions Evaluate using Pesticides against the Most

Susceptible Development Stage of Target Pest

Questions

Kara Brighton

Hageman & Brighton, P.C.

222 E. 21st Street

Cheyenne, WY 82001

307-635-4888

kbrighton@hblawoffice.com

www.hblawoffice.com