Monday, January 19, 2009

Non Stormwater Discharge - Illicit Discharge Prohibition – Basis in Clean Water Act

Most stormwater discharge permits included sections discussing the prohibition on non stormwater discharges. Municipal stormwater permits (MS4 permits) also refer to “illicit discharges”; illicit discharges are equivalent to non stormwater discharges. The municipality must develop programs to detect illicit discharges and to eliminate illicit discharges from entering their system.

Stormwater discharge permits address the discharge of stormwater; so why do stormwater permits also address non stormwater discharge? The answer is in the original “Clean Water Act” passed in 1972. One of the most controversial requirements of the Act was a prohibition on all discharges to the waters of the US unless it was covered under a National Pollution Discharge Elimination Systems (NPDES) permit (the NPDES program was also developed under the Act), or was otherwise specifically allowed. This prohibition was so controversial that Congress had to override a veto of President Richard Nixon to pass the Clean Water Act with this requirement.

Unlike other environmental acts, such as RCRA or Clean Air Act, the Clean Water Act does not recognize a “deminimis” discharge. Any discharge to the Waters of the US must be specifically permitted, no matter how small.

Therefore, the prohibition of “non stormwater discharge” simply reinforces a requirement stemming directly from the Clean Water Act. However, in order to allow certain low risk discharges, stormwater discharge permits will also typically list specific “allowable non stormwater discharges”, again to comply with the intent of the Act. Without being specifically allowed, these types of discharges would also be prohibited without an NPDES permit.

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