On May 18, the EPA published a wide-ranging series of proposed changes to the National Pollutant Discharge Elimination System (“NPDES”) regulations. The proposed changes cover 15 topics in the following major categories: NPDES permit applications; the water quality-based permitting process; NPDES permit objection, documentation and process efficiencies; the vessels exclusion; and the Clean Water Act Section 401 certification process. Some of the more significant changes proposed by the EPA are discussed further below. The EPA is currently accepting comments from the regulated community on its proposed changes — all comments must be received by July 18, 2016.
EPA’s Proposed Changes
The EPA’s proposed changes include adding and revising several NPDES program definitions in 40 CFR 122.2, including:
- Adding a new definition for “pesticide applications to waters of the United States,” which would be defined to mean “point source discharges to waters of the United States resulting from the application of biological pesticides or chemical pesticides that leave a residue.” The EPA’s new proposed definition is to ensure that NPDES regulations are consistent with the 6th Circuit decision in National Cotton Council, et al. v. EPA, 553 F.3d 927 (6th Cir. 2009), which held that point source discharges of biological and chemical pesticides that leave a residue on waters of the U.S. require NPDES permits.
- Expanding the current definition of “proposed permit” to include a state-issued NPDES permit designated as a “proposed permit” under 40 CFR 123.44(k).
- Revising the existing definition of “Whole Effluent Toxicity” to specify that toxicity can include both acute and chronic effects.
The EPA is also proposing to revise its exclusion of certain discharges from NPDES permitting requirements (40 CFR 122.3(a)) to clarify the types of “vessel” discharges that do not require an NPDES permit. Under the proposed changes, a new subsection would be added to 40 CFR 122.3(a)(2) to explicitly state that discharges incidental to the normal operation of recreational vessels are not subject to NPDES permitting. In addition, proposed text changes to 40 CFR 122.3(a) would, in part, reiterate that the NPDES permitting moratorium under the Howard Coble Coast Guard and Maritime Transportation Act of 2014 does not extend to ballast water discharges or to other discharges that the permitting authority determines contribute to a water quality standards violation or that pose an unacceptable risk to human health/environment.
In an effort to update and improve the consistency and accuracy of NPDES application forms and to ensure the information required by the application forms across the different categories of facilities is consistent with the EPA’s current data standards and the NPDES Electronic Reporting Rule, the EPA has proposed numerous revisions to the application requirements at 40 CFR 122.21 and to the accompanying application forms. The EPA’s proposed revisions would include establishing a new timeframe of 18 months for both publicly owned treatment works (“POTW”) and non-POTW dischargers to submit effluent information to their permitting authority.
Additional proposed changes by the EPA include:
- Revising 40 CFR 122.44(d) to specify that any allowance for dilution provided under this paragraph must comply with applicable dilution and mixing zone requirements and low flows established in a state water quality standard and be supported by data or analyses quantifying or accounting for the presence of each assessed pollutant/pollutant parameter in the receiving water.
- Revising 40 CFR 122.44(d) to specify that a “reasonable potential” determination (referring to the process that a permit writer uses to determine whether a water quality-based effluent limit is required in an NPDES permit) must consider relevant qualitative or quantitative data, analyses or other valid and representative information for pollutants or pollutant parameters that could support the need for effluent limitations for new discharges.
- Revising 40 CFR 122.45(b) to clarify that permit writers would be required to calculate permit effluent limits for POTWs using design flow only where the limits are based on technology standards.
- Revising 40 CFR 124.10(c) to allow permitting authorities to provide public notice of permitting actions for NPDES major individual and general permits on the permitting authority’s publicly available website in lieu of the newspaper publication requirement.
While the EPA does not believe that its proposed revisions will generally result in new or increased workload or information collection by authorized states or the regulated community, regulated entities should familiarize themselves with the EPA’s proposed changes to determine any adverse or beneficial impact on their activities.
The below table, taken from the EPA’s May 18 proposed rule change, briefly summarizes the EPA’s proposed NPDES topics for revision.