CHINKS IN THE "ARMOR" OF NPDES PERMITS
As a general matter, NPDES permits serve to insulate permittees from liability under the Clean Water Act by serving as “authorization by law” to discharge pollutants into the Waters of the United States (WOTUS). Increasingly, however, this protection is being circumscribed by open-ended permit provisions that are strictly interpreted by courts. In several cases, courts have held that permit applications which do not fully disclose pollutant (or potential pollutant) discharge afford no protection for the permittee with regards to the particular unregulated pollutant at issue. This highlights the need to ensure that the language of a given permit is sufficiently precise regarding limitations of otherwise unregulated pollutants and what occurs if the discharge is causing a standard’s violation of a previously unregulated pollutant.
One of the simplest measures permittees can take to protect themselves is to make sure that the testing methods which they use for DMRs are sensitive enough to register pollutants at the concentrations which EPA regulates. For instance, a test which has a sensitivity of parts per billion (ppb) will likely not provide sufficient information to protect the permittee if EPA (or the relevant state agency) regulates the pollutant at parts per trillion (ppt) concentrations and the permit includes a “no violation of water quality standards” provision.
Integrated planning provides a structured approach to meeting regulatory requirements and CWA obligations. This methodology stresses the prioritization of immediate and long term CWA objectives while considering a variety of solutions, optimizing time and resource efficiency and incorporating sustainable practices such as green infrastructure. The six elements of an integrated plan are:
A description of the water quality, human health and regulatory issues to be addressed in the plan.
A description of existing wastewater and stormwater systems under consideration and summary
information describing the systems’ current performance.
A process which opens and maintains channels of communication with relevant community
stakeholders in order to give full consideration to the views of others in the planning process and
during implementation of the plan.
A process for identifying, evaluating, and selecting alternatives and proposing implementation
Measuring success – As the projects identified in the plan are being implemented, a process for
evaluating the performance of projects identified in a plan, which may include evaluation of monitoring data, information developed by pilot studies and other studies and other relevant information.
Continual consideration of improvements to the plan.
EPA has begun hosting integrated planning workshops with state agencies to promote this as a method for setting enforceable schedules of compliance. If applied flexibly, integrated planning could provide a basis for communities to maintain better control over the timing of federally mandated expenditures.
LAKE ERIE NUTRIENT REDUCTION STRATEGY
FEDERAL FUNDING FOCUSED ON NON-POINT SOURCES, MONITORING
In early August, an extensive harmful algal bloom (HAB) in Lake Erie contaminated the drinking water source for 500,000 residents of Toledo, OH and neighboring areas. In the wake of this HAB, state and federal agencies announced the availability of funding to expand water quality monitoring and HAB forecasting, reduce nonpoint source nutrients, and prevent future HABs. EPA and the Great Lakes Restoration Initiative (GLRI) allotted $12 million to Ohio, Michigan, and Indiana, focusing on western Lake Erie and its tributaries. Ohio announced more than $150 million in zero-interest loans available to local POTWs for facility upgrades aimed at preventing HABs and their effects on drinking water.
CONTROLLING PERIPHYTON IN STREAMS
IS CANOPY COVER RESTORATION MORE EFFECTIVE, ECONOMICAL?
Nutrients are often pinpointed as the primary cause of excessive algal growth (e.g., periphyton, macroalgae) in surface waters. However, numerous examples in the US and the European Union indicate that stringently regulating point source nutrient discharges may not have the desired effect of reducing periphyton (fixed) algal growth. This results in unnecessary expenditures of time and capital and increased operation and maintenance costs for POTWs. Alternative opportunities, not involving nutrient reduction, are being researched to reduce periphyton in streams. It is common knowledge that plants require sunlight to survive and photosynthesize. Increasing riparian shading and restoring canopy cover can greatly limit periphyton growth in streams.
Several studies indicate that this is an effective and economical method, regardless of nutrient concentrations. One study (Hutchins et al. 2010) of northeastern England rivers even recommended that achieving EU Water Framework Directive compliance “could be attained more cost-effectively by controlling light conditions through riparian shading rather than curtailing nutrient inputs.” In another study (Greenwood and Rosemond 2005), moderate nutrient concentrations were maintained in a shaded headwater stream (400 μg/L DIN, 45 μg/L SRP) in southwestern North Carolina and compared with another local non-shaded reference stream (<30 μg/L DIN, <5 μg/L SRP). The study concluded that even with moderately elevated nutrient concentrations, the lack of light reaching the stream severely limited long term periphyton levels. These studies provide compelling evidence that limiting light availability to streams and rivers should be considered an alternative to nutrient reduction in controlling periphyton.
ENVIRONMENTAL COMPLIANCE JEOPARDIZES EXISTING AND FUTURE FARM LOANS
In December 2014, the US District Court for the Eastern District of Arkansas determined that the Small Business Administration (SBA) and Farm Service Agency (FSA) provided loan guaranties to C&H Hog Farms, Inc. (C&H) without complying with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). The plaintiffs, composed of environmental organizations, argued that in constructing a large C&H confined animal feeding operation (CAFO) along a tributary to the Buffalo National River, C&H, SBA, and FSA failed to adequately assess the environmental impacts, particularly the impacts on endangered gray bats which have been observed to feed and reside nearby. As a result, the SBA and FSA are prohibited from making payments on their loan guaranties until reaching full compliance with NEPA and ESA, a process which could take an entire year. In addition, the Court’s decision may allow for the rewriting of the loan agreements, over two years after the funds were allocated. This raises serious concerns for those involved in existing and future farm loan guaranties as the statute of limitations for NEPA claims lasts six years.
CWA REGULATION OF STORMWATER IN TMDLS AND PERMITS
Environmental groups are advocating for increased issuances of stormwater permits for properties contributing runoff to Massachusetts' Charles River and Rhode Island's Mashapaug Pond and Spectacle Pond. These groups argue that EPA officials and permit writers are obligated, in these instances, to issue stormwater permits necessary to meet water quality standards. These cases hinge on the judges’ interpretation of the CWA mandate for MS4s to reduce pollution in stormwater discharges "to the maximum extent practicable.”
However, regulation of stormwater in TMDLs is also being contested in the U.S. District Court for the District of Vermont (City of Rutland v. EPA, D. Vt., No. 15-00035, 2/18/15). The City of Rutland argues that the Moon Brook TMDL for stormwater flow to address biological impairment is in exceedance of EPA’s authority, arbitrary and capricious, and based on a flawed data analysis. Rutland cites to Virginia Dep't of Transp. v. EPA (2013 BL 2384 (E.D. Va. 2013); 44 ER 99, 1/11/13), where EPA argued that because sediment was highly correlated with stormwater flow, a “surrogate approach” could be used to determine the protective stormwater flow to the aquatic life-impaired Accotink Creek by comparing flows in reference streams with no impairments. The federal court decided that stormwater flow could not be regulated in the Accotink Creek TMDL because stormwater is not a pollutant.
EPA PROPOSED RULE TO UPDATE ANALYTICAL METHODS FOR WASTEWATER EFFLUENT
On February 19, 2015, EPA proposed Clean Water Act Methods Update Rule for the Analysis of Effluent, a rule updating the analytical methods for wastewater effluent analyses. The purpose of this rule is to improve data quality, stay up-to-date with technological advances, and clarify the process for alternate test procedure (ATP) requests. The update also includes a revision to the derivation methodology for method detection limits (MDL). Once finalized, the rule will dictate test methods to be used in demonstrating compliance or violations of NPDES permits. The comment period for this proposed rule ends on April 20, 2015.