August 21, 2018 Article

Environmental Alert: EPA Announces Availability of Draft General Permits for Hydroelectric Facilities in NH and MA

Environmental Alert

On August 20, 2018, the U.S. Environmental Protection Agency, Region 1 (EPA) announced the availability of new draft National Pollutant Discharge Elimination System (NPDES) general permits for discharges from hydroelectric generating facilities to certain waters of the Commonwealth of Massachusetts and the State of New Hampshire.  EPA is the Clean Water Act permitting authority for those states.  The draft general permits (MAG360000 for Massachusetts facilities and NHG360000 for New Hampshire facilities) are to replace administratively continued general permits that expired on December 7, 2014.  Public comments on the draft general permits are due on October 18, 2018.

The general permits are for the following discharges: Equipment-related cooling water (both contact and non-contact); equipment and floor drain water; maintenance-related water from sump dewatering; facility maintenance-related water during flood/high water events; and equipment-related backwash strainer water.

The draft general permits establish Notice of Intent (NOI), Notice of Change (NOC), and Notice of Termination (NOT) requirements, effluent limitations and requirements, standard conditions and best management practices (BMP) plan requirements.  Existing hydroelectric facilities that received coverage under the current general permits must submit an NOI to receive coverage under the new general permits within 60 days of the effective date of the new permits.

Notable changes from the current general permits include the following:

  • All NOIs will be posted on EPA’s publicly available NPDES website for a minimum of 30 days, after which EPA may grant authorization, request additional information, or deny authorization under this permit and require submission of an application for an individual permit.
  • New and existing facilities that withdraw more than 2 MGD and which use at least twenty-five (25) percent of the water withdrawn exclusively for cooling are not eligible for general permit coverage and must seek authorization under an individual permit.
  • Facilities that withdraw cooling water must use one of several specified Best Technology Available (BTA) methods and provide information on the selected method in their NOIs.
  • Permittees must notify EPA and the states of any new chemicals or proposed substitution of previously approval chemicals through submittal of an NOC.  Substitute chemicals may not be used until allowed by EPA in writing.
  • Permittees will be required to monitor their discharges for Total Suspended Solids (TSS).
  • Discharge monitoring reports must be submitted to EPA via an electronic portal (NetDMR).
  • NOIs must submit documentation of eligibility for facilities that discharge to areas where species and/or critical habitats listed under the Endangered Species Act are present or adversely affect properties listed or eligible to be listed on the National Registry of Historic Places.
  • The general permits provide a revised form for the NOI and new forms for the NOC and NOT.

Subject to review and concurrence by National Marine Fisheries Service (NMFS), EPA has concluded that the proposed reissuance of the draft permits is not likely to adversely affect the shortnose sturgeon, Atlantic sturgeon, or designated critical habitat for Atlantic sturgeon.

EPA is also seeking concurrence from the U.S. Fish and Wildlife Service (USFWS) regarding its determination of effect on endangered species under USFWS jurisdiction.  EPA has tentatively determined that the draft permits will have no effect, because each NOI that is submitted must assess site-specific endangered species impacts using the USFWS’ Information, Planning, and Conservation (IPaC) website.  EPA asserts that by using this website, applicants can either make a determination of impacts or, if there are questions, seek input from USFWS directly.

Firm Highlights

News

David Van Slyke Named to 2024 Lawdragon Green 500: Leaders in Environmental Law

Preti Flaherty’s Managing Partner David Van Slyke has been recognized by Lawdragon as one of the top 500 environmental lawyers in the U.S. It’s the third time he has been named to this prestigious...

News

David Van Slyke Reappointed by Governor Mills to New England Interstate Water Pollution Control Commission

Van Slyke is one of five Commissioners from the state of Maine overseeing NEIWPCC PORTLAND—Preti Flaherty’s Managing Partner, David Van Slyke, has been reappointed by Governor Janet T. Mills to the New England Interstate...

Publication

How Much Permitting "Reform" Comes from the New Debt Ceiling Legislation?

Without fanfare or ceremony, on Saturday June 3 rd , President Biden signed the bitterly-negotiated Fiscal Responsibility Act of 2023 (FRA), also known as the Debt Ceiling Limit legislation. While most of the media...

News

Preti Flaherty Welcomes Attorneys Michelle Amidzich Fritz and Kat Mail to the Firm

Preti Flaherty is pleased to announce the arrival of attorneys Michelle Amidzich Fritz and Kat Mail. Michelle Amidizich Fritz joins the firm’s Environmental Practice Group in the Boston office. She is a graduate of...

Publication

Post Sackett: What Is the Scope of the Clean Water Act?

The Supreme Court of the United States (SCOTUS) rendered a decision in Sackett et ux. v. EPA addressing what Justice Alito referred to as a “nagging question” of what water bodies are covered under...