Section 49-255.04 - Special provisions for discharges to non-WOTUS protected surface watersA. Permits and conditions of permits for discharges to non-WOTUS protected surface waters shall not implement any sections of the clean water act, including sections 301, 302, 306, 307, 308, 312, 318 and 405, and shall not be subject to review, approval or enforcement by the United States environmental protection agency.B. The director shall apply the rules established pursuant to sections 49-255.01, 49-255.02 and 49-255.03 to non-WOTUS protected surface waters until the director adopts rules for discharges to non-WOTUS protected surface waters, except the director is not required to follow any provisions related to United States environmental protection agency review, approval or involvement in permit review or approval. The director shall not adopt or apply rules regarding the following discharges to non-WOTUS protected surface waters:1. Except as applied to discharges from publicly owned treatment works, requirements specific to new sources or new dischargers under the clean water act.2. Except as applied to discharges from publicly owned treatment works, technology-based effluent limitations, standards or controls, including new source performance standards, under sections 301(b), 304(b), and 306 of the clean water act.3. Requirements to express all permit limitations, standards or prohibitions for a metal solely in terms of total recoverable metal.4. Requirements for review and approval of permits by the United States environmental protection agency before issuance.C. The director shall issue general permits or authorize coverage under existing general permits, subject to the limitations prescribed in subsection B of this section and section 49-221, subsection A, paragraph 1 for point source discharges of storm water from industrial or construction activity to non-WOTUS protected surface waters. The director shall use a best management practices approach when issuing and implementing general permits for storm water discharges from industrial or construction activity to non-WOTUS protected surface waters and may include analytical monitoring and discharge limits if best management practices cannot achieve applicable surface water quality standards. The director may issue an individual permit for those discharges only if the director determines, using reasonably current credible and scientifically defensible data, that a particular discharge is a significant contributor of pollutants to a non-WOTUS protected surface water that causes the water to exceed one or more applicable water quality standards. When making this determination, the director shall consider the location of the discharge with respect to the non-WOTUS protected surface water, the size of the discharge and the quantity and nature of the pollutants discharged. If the director determines that an individual permit is required for a discharge of storm water from industrial or construction activity to a non-WOTUS protected surface water, the discharger must be notified in writing and informed of the reasons for the determination and the right to appeal the individual permit determination.D. The director shall issue general permits or authorize coverage under existing general permits, subject to the limitations in subsection B of this section and section 49-221, subsection A, paragraph 1 for other categories of potential point source discharges, including de minimis discharges, to non-WOTUS protected surface waters that involve the same or substantially similar types of operations, contain the same or substantially similar types of pollutants and are more appropriately controlled under a general permit than under an individual permit.E. The director may adopt rules for point source discharges to non-WOTUS protected surface waters. The rules adopted by the director under this subsection shall not include any requirement that is more stringent than requirements of the clean water act, shall provide for issuing, authorizing, denying, modifying, suspending or revoking individual or general permits and shall establish permit conditions to carry out the permit program established by this section.F. The director shall not construe any rule to require oversight by the United States environmental protection agency of permits or portions of permits for discharges to non-WOTUS protected surface waters, and a rule shall not apply if it would require review, approval or enforcement by the United States environmental protection agency of discharges to non-WOTUS protected surface waters.G. In permits for discharges to WOTUS and non-WOTUS protected surface waters, the director shall not impose duplicative permit requirements.H. The director shall not delegate to any city, town or county the authority to require permits for point source discharges from construction activity to non-WOTUS protected surface waters.Added by L. 2021, ch. 325,s. 22, eff. 9/29/2021.