TMDL General Permits Workgroup – Update

1. TMDL General Permits Workgroup – Update Chesapeake Bay Program Urban Stormwater Workgroup December 9, 2004 Greg Schaner (Office of Water)

2. General Permits Workgroup • EPA • OWM, OWOW, OST, OECA, Regional Storm Water and Water Quality/TMDL Coordinators • States: CA, FL, MD, MI, OR, RI, SC, WA • Monthly Conference Calls began in May 2003

3. General Permits Workgroup - Objectives • Develop policy memorandum, including recommendations for integrating TMDLs with general permits • Completed draft outline of memorandum based on Workgroup-supported concepts • Presented to Workgroup and Regional NPDES Branch Chiefs for feedback • Compile case studies, sample permits, technical support documents, and questions & answers • Drafted case studies document

4. Individual Permits Permit written to cover one facility Detailed application process and heavy involvement of permitting authority Greater oversight over permittee Provisions are discharger-specific Site-specific limits (WQBELs, WLAs) developed for 1 discharger Discharge must comply with WQS and any TMDLs General Permits Permit covers multiple sources Streamlined NOI and minimal involvement of PA after GP issuance Much less oversight over permittees Provisions apply to multiple dischargers Limits developed for broad discharge categories, sources, or watersheds Discharge must comply with WQS and any TMDLs Individual vs. General Permits

5. Types of General Permits • Stormwater (approx. 90% of all NPDES permits) • Municipal Separate Storm Sewer Systems (MS4s) • Construction (greater than one acre) • Industry • CAFOs • Offshore Oil and Gas • Others – Watershed General Permits

6. Requirements for Integrating TMDLs into GPs • No permit may be issued to a new discharger, if the discharge will “cause or contribute to the violation of WQS”, except: • Where sufficient pollutant load allocations remain; and • Existing dischargers into the waterbody are subject to compliance schedules. • If a pollutant discharge has the reasonable potential to cause or contribute to an exceedance of WQS, the discharger’s NPDES permit must contain a Water Quality Based Effluent Limit (WQBEL) for that pollutant. • WQBELs may be expressed as BMPs when it is infeasible to calculate a numeric limit, or when the permit authority determines that such requirements are necessary to carry out the purposes and intent of the CWA.

7. Requirements for Integrating TMDLs into GPs • WQBELs expressed as BMPs must ensure that “the level of water quality achieved by limits on point sources is … derived from, and complies with all applicable water quality standards.” • WQBELs must be “consistent with the assumptions and requirements of any available WLAs.”

8. Challenges to Using GPs to Address TMDLs Permitting Challenges • GPs are set up to cover multiple dischargers with uniform requirements • Mounting pressure for greater regulatory certainty from some groups related to WQS, and for less regulatory certainty from others • Expanding the use of WQBELs in GPs will require more tailored conditions and limitations, and potentially greater level of oversight • Administrative efficiencies of using GPs can be expected to be undermined • Shift of burden to permit authorities to show permit compliance accomplishes WQS • Permit authorities operate in “poor data” environment • Existing monitoring requirements are not tied to WQS compliance • Reconciling the need to retain the passive characteristics of GPs and NOIs with the need to make site-specific judgments about permitting individual dischargers

9. Challenges to Using GPs to Address TMDLs TMDL Challenges • Development of reliable and accurate WQBELs is challenged by the difficulty of conducting complete and accurate source assessments and estimating pollutant removals from typical GP sources and technology-based controls • The TMDL-to-Permits “handoff” process may not fully support the development of reliable and accurate WQBELs • Many TMDLs either: • Failed to account for GP sources in WLAs, • Did not differentiate between varying types of point sources, or • Include regulated point source allocations in the Load Allocation for nonpoint sources • Water quality and permitting programs are not typically well-coordinated

10. Preliminary Workgroup Findings • General permits must: • Be preserved as a critical wastewater management tool for permit authorities • Establish a stronger linkage to WQS and TMDLs in a way that acknowledges “adaptive management” and “iterative approach” concepts • TMDL-to-permit “handoff” process needs to be strengthened for linkage to work • Strategies are needed to help both TMDL and permit authorities develop WLAs which are more suitable to translation into permits • Endpoint must be WQBELs that are understandable to the permittee and reasonable to implement and enforce

11. Preliminary Workgroup Findings (cont’d) • EPA should offer recommendations on how to improve the use of WQBELs in general permits, such as: • TMDL should identify all point sources to be covered by general permit, by name or category • Better information should be developed to enable dischargers to determine whether their receiving water is impaired and has a TMDL • WLA should identify data needs to improve precision of allocation • Monitoring requirements in general permit should match data needs • Data would be used for adaptive management of TMDL

12. Preliminary Workgroup Findings (cont’d) TMDL NPDES • Linkage Options: • “Presumptive BMPs” • Quantitative Benchmark • Permit Activity Tracking System/Effluent Trading / Offsets • Compliance w/Current Permit (e.g., current CGP)

13. 1. “Presumptive BMPs” • Permitting authority selects suite of BMPs as the applicable WQBEL • Use of BMPs are considered presumptively compliant with WQS • Documentation must be include in administrative record to support rationale for applying the presumption • Permittee may choose different BMPs, but then must demonstrate that these practices are adequate to comply with WQS • Permitting authority should provide guidance on installation and maintenance of BMPs to ensure initial assumptions behind presumption are well-understood and followed • Appropriate monitoring and/or inspection protocols should be used to gauge the effectiveness of permittee’s BMPs

14. 2. Quantitative Benchmark • Permitting authority requires compliance with quantitative benchmark which serves as a performance indicator of pollutant removal • Permitting authority must document how use of the quantitative benchmark is expected to comply with applicable WQS • Quantitative benchmarks may be expressed in following ways: • percent reduction • concentration or numeric effluent limit (e.g., criteria end-of-pipe) or benchmark • zero discharge objective • Benchmarks should be used in combination with monitoring or inspections to provide indicator of effectiveness • Some States have developed “kick-outs” based on monitoring results

15. 3. Permit Activity Tracking System • Permitting authority uses information from the impaired waterbody’s TMDL or WQS to define maximum level of discharge activity that may occur at any time in watershed above which the WQS will not be met • Permitting authority uses this maximum level to limit number of permits that may be issued during specific time period or amount of pollutant loadings • Permitting authority should periodically assess whether maximum level of activity is set at right level and whether it is still effective • Trading or offsets can be used in conjunction with this option

16. 4. Compliance with Current Permit • Permitting authority determines that compliance with general permit and its pollutant removal program is assumed to be compliant with WQS • Permitting authority must include sufficient documentation in administrative record of permit to show why assumption can be made • Attempt should be made to estimate what level of pollutant reduction can be estimated from compliance with permit and demonstrate how this level compares with required limits established by TMDL or WQBEL • Permitting authority should periodically assess, through permittee or state-level monitoring, whether the assumption of compliance with WQS is still justified

17. Next Steps for Workgroup • Finalize Draft Joint Memorandum with Case Studies • Include discussion of how to improve how WLAs are expressed in TMDL, suggestions on how to address TMDLs which do not adequately address typical general permit sources, and potentially draft permit language • Conduct pilot studies to demonstrate options highlighted in memorandum • Conduct further research on BMP effectiveness • Summarize other applicable case studies

18. For More Information Greg Schaner Water Permits Division, Office of Water, U.S. EPA (202) 564-0721 or schaner.greg@epa.gov or TMDL information: http://www.epa.gov/owow/tmdl/ NPDES permitting information: http://cfpub2.epa.gov/npdes/