In a news release, the EPA recently announced it fined The Cliff Corp. and Grupo Caribe, LLC, a total of $50,000 for violations of the Clean Water Act (CWA) relating to their ongoing construction project for an 86-villa development in the Borinquen Ward of Aguadilla, Puerto Rico.

 

“The companies failed to comply with a water permit, called the National Pollutant Discharge Elimination System (NPDES) Construction General Permit, for stormwater discharges. This permit requires that steps be taken to reduce pollution going into local waterways,” the news release says.

“Uncontrolled stormwater runoff can have serious consequences for both the environment and public health, jeopardizing safe fishing and swimming,” said EPA Regional Administrator Lisa F. Garcia in the release. “It's crucial to manage stormwater from construction sites consistent with the [CWA] to protect Puerto Rico’s waterways and communities.”

According to the Agency, The Cliff Corp. and Grupo Caribe started construction on a site at the Cliff Villas Hotel and Country Club in Aguadilla without obtaining the necessary permits or taking steps to control erosion from their construction site. That allowed stormwater to carry sediment and pollutants from the site and run into local water bodies, potentially impacting water quality.

In addition to the monetary fine, the EPA is requiring the companies to take additional actions, including the following:

• Submit a Notice of Intent permit application.
• Implement erosion and sediment controls.
• Develop a stormwater runoff control plan.
• Conduct regular site inspections to ensure compliance with the CWA.
• Provide compliance reports to the Agency describing the status and progress of the actions taken to comply.

NPDES permits

Cliff Corp. and Grupo Caribe’s first mistake was their failure to obtain a permit.

Discharging “pollutants” through a “point source” into a “water of the United States (WOTUS)” is prohibited by the CWA without obtaining an NPDES permit.

These permits contain discharge limits, monitoring and reporting requirements, and other provisions to ensure the discharge doesn’t hurt water quality or people's health.

“In essence, the permit translates general requirements of the [CWA] into specific provisions tailored to the operations of each person discharging pollutants,” states the EPA NPDES Permit Basics webpage. “An NPDES permit will generally specify an acceptable level of a pollutant or pollutant parameter in a discharge (for example, a certain level of bacteria). The permittee may choose which technologies to use to achieve that level. Some permits, however, do contain certain generic ‘best management practices’ (such as installing a screen over the pipe to keep debris out of the waterway). NPDES permits make sure that a state's mandatory standards for clean water and the federal minimums are being met.”

The requirement to obtain an NPDES permit depends on where pollutants from a project will be sent. Discharging pollutants into a municipal sanitary sewer system doesn’t require an NPDES permit, but the municipality may have its own permit requirements.

But, discharging pollutants from a point source into WOTUS requires an NPDES permit.

Point source

The CWA defines “point source” very broadly as any discernible, confined, and discrete conveyance, such as a pipe, ditch, channel, tunnel, conduit, discrete fissure, or container. It also includes vessels or other floating craft from which pollutants are or may be discharged.

“By law, the term ‘point source’ also includes concentrated animal feeding operations, which are places where animals are confined and fed. By law, agricultural stormwater discharges and return flows from irrigated agriculture are not ‘point sources,’” according to the EPA.

Pollutant

“Pollutant” is also broadly defined in the CWA to include any type of industrial, municipal, and agricultural waste discharged into water. Examples include:

• Dredged soil
• Solid waste
• Incinerator residue
• Sewage
• Garbage
• Sewage sludge
• Munitions
• Chemical wastes
• Biological materials
• Radioactive materials
• Wrecked or discarded equipment
• Rock
• Sand
• Cellar dirt
• Industrial waste
• Municipal waste
• Agricultural waste

“By law, a pollutant is not sewage from vessels or discharges incidental to the normal operation of an Armed Forces vessel, or certain materials injected into an oil and gas production well,” according to the EPA.

Applying for an NPDES permit

In many cases, the EPA has granted states the authority to issue NPDES permits. NPDES permit authority can vary from state to state, with some states having full permitting authority and other states having only partial NPDES permitting authority. In states that don’t have permitting authority, NPDES permits are issued by EPA regional offices. The EPA is the sole permitting authority in three states (Massachusetts, New Hampshire, and New Mexico) and for certain discharges in other states, territories, and Indian country.

See the EPA NPDES state authority map for more information.

Additional details are provided on the EPA NPDES State Program Authority webpage.