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Know the Law: When Do You Need a CWA Permit?

Written by: Rebecca S. Walkley

Published in the Union Leader (8/1/2016)

Q:  I am running a small business in New Hampshire. Do I need a Clean Water Act stormwater discharge permit? 

A:  A light, spring, shower may result in a discharge that requires a Clean Water Act (“CWA”) stormwater permit. Stormwater, at a basic level, is rain or melting snow that runs across the land instead of seeping into the ground. As it travels over the land, stormwater runoff may take up pollutants associated with certain activities. 

The CWA absolutely prohibits the discharge of any pollutant by any person to a water of the United States. However, the act authorizes the issuance of permits for certain discharges. Under Section 402, a permit is required for any “stormwater discharge associated with industrial activity.” 

A stormwater permit is required, if a facility is: (1) engaging in industrial or construction activity, and (2) discharging stormwater from a point source to a water of the United States. In New Hampshire, the Multi-Sector General Permit (“MSGP”) covers general stormwater discharge associated with 29 different industrial sectors. 

Before applying for a permit, a facility must first develop a site-specific Stormwater Pollution Prevention Plan (“SWPPP”). The SWPPP outlines control measures for stormwater runoff and best management practices. After developing a SWPPP, the business must electronically file a Notice of Intent (“NOI”) with EPA. Permit coverage begins 30-days after filing the NOI. A regulated facility must comply with all monitoring and sampling requirements contained in the MSGP and continue to implement all control measures in its SWPPP.

In addition to the MSGP, Section 402 also includes point source specific stormwater permits, National Pollution Discharge Elimination System (“NPDES”) Permits. Additionally, municipalities must apply for a Municipal Separate Storm Sewer Systems (“MS4”) Permit. The EPA is currently in the process of reissuing the MS4 Permit for New Hampshire. If a business discharges to a municipal sewer system, covered under an MS4 Permit, the business must still obtain an NPDES outfall permit and monitor the point of discharge to the MS4. Under the CWA, the government and private groups may pursue enforcement actions for failure to apply for or comply with a stormwater permit. The frequent use of electronic filing has made it is easier for private groups to track and monitor compliance. In addition to seeking significant penalties, parties that bring citizen suits may also seek attorney’s fees. Before a citizen suit can commence, written notice of the alleged violation must be given 60 days prior. A business may be able to come into compliance with all conditions within the notice period.

Rebecca Walkley can be reached at rebecca.walkley@mclane.com.

Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association.   We invite your questions of business law.  Questions and ideas for future columns should be addressed to:  McLane Middleton, 900 Elm Street, Manchester, NH 03101 or emailed to knowthelaw@mclane.com.  Know the Law provides general legal information, not legal advice.  We recommend that you consult a lawyer for guidance specific to your particular situation.

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