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 28 th  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. 21 st Street Cheyenne, WY