Preparing for Regulatory Change

1. Preparing for Regulatory Change WATER RESOURCES WORKSHOP February 20, 2004 Donald J. Brady, Ph.D.

2. Today • Listing guidelines; • The prospects for a new TMDL rule; • The connection between TMDLs and wastewater permits; and • The connection between TMDLs and MS4 permits.

3. Contemporary Water Program: • Attention focused on: • Impaired waters and managing our programs to restore them • Significance of meaningful, attainable water quality goals • Science underlying our efforts, especially ability to predict responses and timeframes • Management task of dealing with many, complex sources

4. Water Quality Standards Monitor/Assess WQS Attainment List Impaired Waters Integrated Watershed Plan • TMDL Minimum Elements • Identify Watershed • Identify/locate pollutant sources • Estimate existing pollutant loading • Determine assimilative capacity Continuing Planning Process Point Source NPDES Permits Control Nonpoint Sources Clean Water Act Wastewater Permits Stormwater permits

5. Watershed Rule • Existing (and still applicable) regulations – 1985/92 • Promulgated July 2000 regulation-Congressional prohibition-withdrawn, litigation dismissed • Watershed Rule – informal review

6. Why An Integrated Assessment? CWA 303(d) and 305(b) Assessment and Reporting Based on Different: Purposes Histories Constituencies Uses of Data/Information Methodologies Conclusions Coverage Comprehensiveness 305(b) Report 303(d) List

7. Integrated Report Guidance 1. State assessment methodology 2. Integrated list of all State waters categorized according to • water quality standards attainment status • need for a TMDL, and • availability of data and information to make attainment determinations 3. Data and information supporting the listing of each water including • Geo-referenced location based on NHD • pollutant causing impairment(s) and source(s) of pollutant • TMDL schedules, and • monitoring schedules 4. Summary of public comments and how addressed

8. Integrated Report Guidance Listing Categories 1. Attaining standards for all designated uses 2. Attaining some designated uses, and insufficient or no data and information to determine if remaining uses are attained 3. Insufficient or no data and information to determine if any designated use is attained 4. Impaired or threatened for one or more designated uses but not needing a TMDL a. TMDL has been completed b. Expected to meet standards in a reasonable time c. Not impaired by a pollutant 5. Impaired or threatened by pollutant(s) for one or more designated uses and requiring a TMDL 305 (b) Report 303(d) List

9. Integrated Reporting • 2002- 12 States • 2004 - 15 States • 2006 - 30 States • Preliminary information from 2004 • Increase in numbers of listed waters • Continuing increase in metals listing • Issues • Data adequacy/statistical approaches • Alternatives to TMDLs

10. 1996 - 264 1997 - 358 1998 - 371 1999 - 496 2000 - 1668 2001 - 2746 2002 - 2408 2003 - 1671* Total - 10000* 5679 in CD states 55-60% established by EPA TMDLs Established *Based on GPRA reporting, not shown on website yet

11. NPDES • 1.2 million NPDES permits • 1.1 million are stormwater, general permits • 200,000 – 400,000 construction sites per year requiring general permit coverage

12. Sediment TMDLS – Setting the Stage

13. Relationship to Wastewater Permits • Existing regulations-permits have to be consistent with “assumptions and requirements” of any TMDL • TMDL schedules v. permit issuance schedules • Water quality standards attainment-no longer assume discharge limits alone will do the job • Quality, on time, TMDLs • Wasteload allocations present and easily implemented in effluent limits • Municipal infrastructure

14. TMDLs/Stormwater • TMDL = Wasteload Allocation (WLA) + Load Allocation (LA, including background) + Margin of Safety (MOS), with seasonal variation considered • Many TMDLs have identified NPS/Stormwater in LA, usually in form of gross allotment • SW categories: municipal, industrial, construction

15. Relationship to StormwaterEPA’s Memorandum on WLAs and Stormwater (Nov. 22, 2002) • NPDES-regulated stormwater discharges must be addressed by the WLA, not the LA. • Stormwater discharges from sources that are not currently subject to NPDES regulation may be addressed by the LA. • Allocations for NPDES-regulated stormwater discharges from multiple point sources may be expressed as a single categorical WLA. Where WLAs are developed for discharge categories, these categories should be defined as narrowly as available information allows. • The WLA and LA are to be expressed in numeric form in the TMDL. • NPDES permit conditions must be consistent with the assumptions and requirements of available WLAs.

16. EPA’s Memorandum (cont’d) • WQBELs for NPDES-regulated stormwater discharges that implement WLAs in TMDLs may be expressed in the form of BMPs. • EPA expects that most WQBELs for NPDES-regulated MS4 and construction stormwater discharges will be in the form of BMPs, and that numeric limits will be used only in rare instances. • When a non-numeric WQBEL is imposed, the permit’s administrative record needs to support that the BMPs are expected to be sufficient to implement the WLA. • Where effluent limits are specified as BMPs, the permit should also specify the monitoring necessary to assess if the expected load reductions attributed to BMP implementation are achieved. • The permit should provide a mechanism to make adjustments to the required BMPs as necessary to ensure their adequate performance.

17. Integrating General Permits & TMDLs: A Challenge • Typical GP sources are nonpoint source-like • Source characterization is difficult and often overlooked • Controls are BMP-based, and less conducive to numeric targets • Conflict between the need to maintain general permits as an administrative option to individual permits, and the need to impose effluent restrictions and/or WLAs which are water body and discharger-specific • Difficulty of developing general permit language for a permittee population that is largely unknown or that doesn’t exist yet • Difficulty of ensuring that the issuance of GPs does not “cause or contribute” to a WQS violation and that permit conditions are “consistent w/ the assumptions and requirements of any available WLAs” • How to integrate programs with narrative standards (e.g., MEP standard for MS4s) into a programs with more quantitative standards (i.e., TMDLs, WQBELs)

18. Integrating General Permits & TMDLs • What type of monitoring is appropriate for general permits to determine compliance • Lack of communication between permitting and TMDL staff at EPA and States; municipalities • GP is “ passive” – once issued, dischargers apply by submitting notices of intent (NOIs) to be covered • Discharger must meet eligibility conditions (e.g., WQS, TMDLs, ESA, etc) • Review of NOIs by permit authority is minimal • Discharge authorization may be immediate or subject to waiting period • TMDL is “active” – predicts and assigns individual loadings and describes conditions necessary to attain WQS, in some cases in advance of the activity

19. NPS – Added Complexity -Need to understand all the sources influencing water quality -Need to deal on watershed scale

20. One Additional Complication: Litigation • For TMDLs alone: 22 Consent Decrees • Listing • Establishing TMDLs • Monitoring • Water Quality Management Plans • Continuing Planning Processes • Other

21. What Can We Do? • Increasing reliance on general permits and rapid development of TMDLs. • Uncertainty regarding legality of permitting new sources and uncertainty in how to adjust general permit to account for TMDLs. • Sources covered by general permits are sometimes overlooked in TMDL process.

22. Suggestions • General permit template language • Guidance, including recommendations for TMDL implementation and process integration w/ general permits • Recommendations on appropriate monitoring for general permits • Compile case studies, sample permits, technical support documents and guidance, etc http://cfpub.epa.gov/npdes/gpwg/gpwg.cfm

23. Things to Consider • Potential options for expressing WLAs in general permits: • “Presumptive BMPs”-Define presumptive set of BMPs which are endorsed by TMDL/permit authority as compliant with WQS or TMDL • Quantitative Benchmark • Possible performance goals might include: % reduction, concentration or numeric effluent standard or benchmark, zero discharge • Use in combination w/ monitoring or inspections to provide assurances that benchmarks are met • Permit Activity Tracking System • Limit no. of sources and/or manage offsets? • Compliance w/ Current Permit (e.g., current CGP)

24. Things to Consider • Is it reasonable for the permit authority (as distinct from the TMDL authority) to be expected to know how to employ other options for expressing WLAs once the TMDL is complete? • Even where a specific WLA has been assigned to a stormwater source, how does the permittee comply where its technology-based compliance standard is non-numeric (i.e., MEP for municipal separate storm sewer systems)? • One conceptual model of a TMDL envisions a theoretical cap for a waterbody, with a tracking system used to ensure that permits are only issued where the resulting loading would be less than the overall loading capacity of that system. • Is this a realistic model for stormwater sources given the unpredictable nature of storms and stormwater runoff? • What information from the permittee would be required to set up such an approach?

25. Things to Consider • What other options exist for expressing WLAs for regulated storm water sources so that they can be easily understood and implemented by individual operators applying for coverage under general permits? • What types of monitoring schemes (e.g., chemical, biological, ambient, end-of-pipe) have you seen that have been effectively used to demonstrate the relationship between a stormwater-specific discharger and attaining/maintaining standards?