D.C. WATER AND SEWER AUTHORITY S PHASE II COMBINED SEWER OVERFLOW NPDES PERMIT

1. 1 D.C. WATER AND SEWER AUTHORITY’S “PHASE II” COMBINED SEWER OVERFLOW NPDES PERMIT DAVID E. EVANS MCGUIREWOODS, LLP RICHMOND, VIRGINIA

2. 2 ORIGIN First part of a two-part settlement package between WASA and the United States In addition to the Phase II permit, the package includes a consent decree providing for LTCP implementation

3. 3 BASIC ELEMENTS OF THE PHASE II PART OF THE SETTLEMENT Water quality standards compliance determination by EPA LTCP-derived numeric performance standards Nine minimum controls conditions that reflect a settlement arising out of an earlier permit appeal WASA retained the right to appeal any Phase II permit condition not resolved in the settlement

4. 4 EFFECT OF THE PHASE II PART OF THE SETTLEMENT Provides WASA with reasonable assurance that if it designs and builds the selected CSO controls in accordance with its LTCP, it will be in compliance with its permit and consent decree obligations Minimizes the potential for future citizen suits during and following LTCP implementation Minimizes the potential that WASA will have to change the basic design of the selected controls even if standards change in the future or post-construction monitoring fails to confirm standards compliance

5. 5 WATER QUALITY-BASED CSO CONDITIONS INCLUDED IN THE PHASE II PERMIT LTCP-derived numeric performance standards General narrative water quality standard TMDL-derived numeric effluent limits Monitoring requirements for the TMDL-derived limits

6. 6 CONTESTED PHASE II PERMIT CONDITIONS WASA appealed the general narrative standard and the TMDL-derived limits and monitoring requirements Friends of the Earth and the Sierra Club appealed the same limits and monitoring requirements WASA appealed EPA’s refusal to include a LTCP implementation schedule in the permit

7. 7 ISSUES PRESENTED BY THE APPEALS What are the limits of EPA’s legal authority to include water quality-based requirements in Phase II permits in addition to LTCP-derived numeric performance standards? (WASA) Do the added water quality-based requirements advance the goals of the CSO Policy? (WASA) Does the general narrative standard violate WASA’s right to due process? (WASA)

8. 8 ISSUES PRESENTED BY THE APPEALS (cont) Is EPA legally required to set CSO outfall specific daily load limits in Phase II permits? (FOE/Sierra Club) What is the proper method for determining compliance with waste load allocations (expressed as effluent limits) based upon a wet weather TMDL? (WASA & FOE/Sierra Club)

9. 9 ISSUES PRESENTED BY THE APPEALS (cont) To what extent can Phase II permits incorporate representative CSO outfall monitoring? (FOE/Sierra Club) Is EPA legally required to include a LTCP implementation schedule in WASA’s Phase II permit? (WASA)