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EPA Clarifies How Permitting Agencies Should Establish Daily Discharge Limits
An Environmental Protection Agency memo clarifying how states and permitting agencies should set daily discharge limits for impaired waters was sent out Nov. 15 to all regional agency offices.
The final memo, sent in response to a recent federal appeals
court ruling, outlines how EPA plans to apply a daily limit, or daily budget,
for total daily maximum loads (TMDL) for impaired bodies of water. The memo was
provided to BNA Nov. 16.
It directs all state agencies to begin incorporating daily pollutant limits in
all future TMDLs and associated waste load allocations, and it provides examples
of "flexible" approaches that states can use to meet these requirements.
At the same time, the memo tries to alleviate concerns among National Pollutant
Discharge Elimination System permit holders that a daily TMDL limit as required
by the U.S. Court of Appeals for the District of Columbia Circuit would lead to
more stringent standards for discharging pollutants into impaired waterways.
"Our guidance emphasizes that EPA will continue to use TMDLs to protect the
nation's water quality and the environment in a manner that is fully consistent
with the recent court decision," EPA Assistant Administrator for Water Benjamin
H. Grumbles said in a statement to BNA.
The Clean Water Act requires NPDES permits to incorporate effluent limits for
pollutant discharges that are "consistent with the assumptions and requirements"
of any discharges of pollutants approved by the state and EPA pursuant to 40
C.F.R. ยง130.7.
A TMDL is a calculation of the maximum amount of a pollutant that a water body
can receive and still meet water quality standards. EPA has the authority to
approve or disapprove TMDL lists prepared by states in compliance with Section
303(d) of the Clean Water Act.
Clean Water Act Provides 'Flexibility.'
The D.C. Circuit held that EPA erroneously interpreted the Clean Water Act by
approving one TMDL based on annual limits for oxygen-depleting substances and
one seasonal TMDL based on limits for turbidity-causing total suspended solids,
or solid waste discharges, for the Anacostia River. The court said the term
"daily" means "every day" under the plain language of the Clean Water Act
(Friends of the Earth Inc. v. EPA, D.C. Cir., No. 05-5015, 4/25/06; 80 DEN A-1,
4/26/06 ).
On the other hand, the U.S. Court of Appeals for the Second Circuit ruled in
2001 that EPA did not need daily TMDL limits to protect water quality in
impaired water (NRDC v. Muszynski, 53 ERC 1289 (CA 2 2001); 198 DEN A-2,
10/16/01).
In the memo, EPA maintains that the Clean Water Act has "some flexibility" in
how daily TMDLs are expressed. In various examples, EPA stressed that it may be
"appropriate" for TMDLs to be expressed in terms of differing maximum values
depending on whether the stream flows are fast-moving due to heavy rains or slow
during a dry spell.
In fact, EPA said when the pollutant levels are changing rapidly owing to heavy
rains, then the controlling factor can be the "water flow" rather than the level
of pollutants that are entering the waterways.
The memo clarifies that NPDES permit regulations do not require that "effluent
limits in permits be expressed as maximum daily limits or even as numeric
limitations in all circumstances, and such discretion exists regardless of the
time increment chosen to express the TMDL."
Supreme Court Clarity Still Sought
The National Association of Clean Water Agencies, which represents the nearly
16,000 publicly owned treatment works, said the memo responds to comments
wastewater utilities submitted on the draft copy of the same memo that was
released in July, Alexandra Dunn, NACWA's general counsel, told BNA Nov. 16 (140
DEN A-11, 7/21/06 ).
Dunn said the final memo specifies EPA's authority to grant flexibility to
permitting agencies and permit holders in expressing daily TMDL limits. It also
provides more examples of how this flexibility can be implemented, she said.
Most important for NACWA, though, the memo clearly said the daily TMDL
requirement "doesn't impact or reflect the way NPDES permits have been
implemented," Adam Krantz, NACWA's managing director for government and public
affairs, told BNA.
However, Dunn added that NACWA will continue to support the District of Columbia
Water and Sewer Authority's petition asking the U.S. Supreme Court to resolve
the conflicting interpretations of the word "daily" by the D.C. and Second
Circuits (144 DEN A-12, 7/27/06 ).
She noted that even EPA acknowledges in the memo that the two court rulings have
resulted in "significant legal uncertainty."
"A memorandum to build a future TMDL program is concerning to us because it is
just a guidance document that could be changed by new officials and likely
result in more litigation over the TMDL program or permit appeals," Dunn said.
The Memo Clarifying EPA's Position on the Use of Daily Time Increment When
Establishing Total Maximum Daily Loads for Pollutants is published in the Text
section.
By Amena H. Saiyid