Changes Afoot in EPA’s Approach to NPDES Permitting?

Changes Afoot in EPA’s Approach to NPDES Permitting?

Whenever I hear a discussion about “something new” in the regulatory world, I expect to see an old idea rebranded with new graphics. On rare occasions, however, new approaches to old problems do arise and it appears US EPA – Region 1 is considering a truly new approach to regulating nutrient discharges in 303(d) impaired water bodies.

For the past two decades, NPDES permits issued for WWTP discharging to impaired water bodies that didn’t treat to the “limit of technology” (LOT) were regularly challenged by environmental advocates under the anti-degradation requirements of the Clean Water Act. Permitting authorities often lost the ensuing legal battles and NPDES permits were finalized with a LOT requirement. After repeated legal battles, regulators started drafting LOT requirements into permits without court orders. The regrettable extension of this practice, assuming treatment technology continues to improve, is that future permits will inevitably reduce discharge limits further, requiring additional plant upgrades. In water bodies where non-point sources (like stormwater runoff) are a significant contributor to nutrient enrichment, this approach often cripples utilities fiscally and does little to improve water quality. There must be a smarter, more cost efficient way to achieve the water quality improvements everyone desires.

So, what’s the smarter, alternative approach under consideration for nutrient management?

In EPA Region 1, a series of NPDES permits are being drafted for WWTPs, all of which discharge into a 303(d) water body, impaired due to low dissolved oxygen and high nitrogen. The cost of meeting LOT upgrade requirements would be significant for the communities and, since the primary nitrogen contribution comes from non-point sources, even the removal of 100% of the nitrogen from the WWTP discharges would not bring the receiving water out of non-attainment.

With the involvement of many stakeholders, including the Conservation Law Foundation, one of the communities is working to develop an alternative permitting framework with EPA Region 1 that may allow watershedreductions in NPS contributions to be taken into account during the NPDES permitting process. In other words, if the Town can remove nitrogen more efficiently from their watersheds, they will get credit for it in the NPDES permits at their WWTP. The approach, if successfully executed, will lead to lower capital costs for WWTPs in exchange for robust non-point sources management in the watershed.

This alternative framework is the natural evolution of the Total Maximum Daily Load approach to nutrients regulation and, in some cases, will offer significant capital savings in comparison to traditional permitting practices. For many utilities, this approach would be greatly beneficial and may finally provide an incentive for regulated entities to work towards managing non-point sources nutrient loads in their watersheds. Although the success of the approach will be determined over time, it potentially offers a huge win-win for all parties, reducing capital investments at WWTPs and providing receiving water quality improvements.

Since much of the regulatory framework under which our industry operates originated in EPA Region 1, it seems worthwhile to keep an eye on how this new idea progresses.

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