NPDES permits are issued for a term not to exceed five years. Permits must be renewed before they expire for a discharge to continue. To begin the renewal process, a permittee must submit a renewal application to the Bureau of Water (Bureau) at least 180 days prior to their permit's expiration date. The Bureau may allow a renewal application to be submitted at a later date but in no case past a permit's expiration date. Requests for an extension of the application due date must be made before the renewal application due date. Also, the Bureau can only allow an extension of the renewal application's due date when a request is made before the reapplication due date. In other words, once a renewal application is late, the Bureau can not grant an extension of the due date such that the renewal application is considered a timely application.
If a complete renewal application is submitted in a timely manner and the permit is not reissued before it expires, the permit continues in effect until a final decision is made on the renewal. Please note that the continuation of the permit in effect does not extend the "term" of the permit. Therefore, since the NPDES regulations only allow a permit to be modified during its term, a permit that is continued in effect can not be modified except upon reissuance. All NPDES permits contain the requirement for the permittee to reapply for the permit at least 180 days prior to the expiration date of the permit.
As a service to the regulated community, the Bureau helps permittees make a timely and complete application for renewal of their NPDES permits by sending them letters advising them of their application due dates. Also, the appropriate NPDES applications and supplemental forms needed to reapply are included with the reminder letters. The reminder letters are sent to permittees 270 days prior to the expiration dates of their permits. This gives permittees a 90 day notice of their application due dates. Please note that these reminder letters are provided only as a customer service and, if for some reason a permittee does not receive a reminder letter, the permittee is still required to submit a timely and complete renewal application.
Also, the Bureau has prepared an informational sheet on "NPDES/ND Reissuance Applications" which discusses timeliness, completeness, and having all fees paid so as to avoid problems with renewal applications. This sheet also contains the applicable sections of the regulations on these subjects. This informational sheet is included with the first renewal notification letter so permittees will understand the importance of being on time, being complete, and being paid up.
For renewal applications that are not received within 210 days of the expiration dates, the Bureau sends a second letter advising permittees again of their application due dates. This gives permittees who have not filed for renewal of their permits 30 days notice of their application due date. The applications and supplemental forms are not included with the second reminder letter. However, they will be provided again upon request.
If a permittee does not file a complete and timely renewal application, the Bureau may take enforcement action, as necessary, to secure a renewal application. Also, permits are not continued in effect if the the permit expires. Therefore, if the renewal permit is not reissued before the previous permit expires, the discharge can not legally continue. If a discharge continues in this situation without receiving a renewal permit before the expiration date of the previous permit, enforcement action will be taken by the Bureau.
For discharges that have ceased, a renewal application does not have to be submitted. Instead, the permittee should advise the Bureau in writing that the discharge has ceased and that they will not be seeking renewal of the permit. The Bureau will inactivate the permit.
Permittees are not guaranteed that reissued permit conditions will be the same as the previous NPDES permit conditions. When NPDES permits are considered for renewal, all permit conditions are evaluated based on the regulations in effect at the time of renewal. The issuance of an NPDES permit does not create any vested right in any person. In other words, just because an NPDES permit was previously issued does not guarantee it will be issued again or, if it is reissued, that the reissued permit will remain the same. Any variances granted in the previous permit, such as thermal variances under Section 316(a) of the Clean Water Act, are also reevaluated to determine whether they will be allowed to continue. The reissued permit is basically redrafted as if the previous permit was not issued except that existing data gathered under the previous permit will be used by the permit writer, as appropriate, in determining permit limits and conditions. Another exception is the antibacksliding provisions of the NPDES program which are briefly presently below.
In some situations, the antibacksliding provisions of SC Regulation 61-9, Water Pollution Control Permits, and the federal Clean Water Act prohibit a permit from being reissued with less stringent limitations or conditions than the previous permit. Antibacksliding basically says if a discharge meets an established limit or condition then the limit or condition should not be relaxed when the permit is reissued even if the less stringent limit or condition would comply with all other provisions of the NPDES regulations, Water Classification and Standards regulations, and the Clean Water Act. There are exceptions to this general prohibition in both the Clean Water Act and the NPDES regulations. However, the overall presentation of this issue is beyond the scope of this brief presentation on renewal NPDES permits. Therefore, if you have specific questions about antidegradation issues, please contact us directly for information on your situation.
While a schedule of compliance is not normally allowed in a new discharge permit, an NPDES permit when it is reissued may contain a schedule of compliance, as appropriate. Generally speaking, schedules of compliance are appropriate in a renewal permit when the permit contains more stringent limits or conditions than the previous permit and the permittee cannot meet the more stringent limits or conditions without a performing a wastewater treatment facility upgrade or some other type of work. In these situations, the schedule of compliance must require compliance with the final limits and conditions as soon as possible. EPA has determined that compliance schedules should not exceed three years and the Bureau agrees that most type of work or upgrades of treatment facilities can be completed in three (3) years or less.