Transcript Antidegradation Implementation Procedures

Antidegradation
Implementation Procedures
HB153 58-0101-1002
Clean Water Act Framework
• Roles:
– State development of WQS
• Proposal for Rulemaking
• Negotiated Rulemaking
– EPA Approves
• Must meet minimum requirements of CWA
– Protect Designated Uses: Appropriate Uses
– Criteria to protect uses: Numeric/Narrative
– Antidegradation Policy and Implementation Policy
• If EPA disapproves or state fails to adopt
– EPA may promulgate for the state
Origin of antidegradation in CWA
• CWA Objective is to restore and maintain
the chemical, physical and biological
integrity of the nations waters.
– 303(d)/305(b) Reports
– TMDL
• Antidegradation policy/implementation
– Meant to ensure WQ is maintained
Antidegradation Requirements in
CFR
• Must have an antideg policy and
implementation methods
• Policy –Idaho has the policy, identical to
the federal requirement– both regulations
and statute
Policy sets 3 tiers of WQ protection
• Tier 1 – botom level: waters at or below
criteria.
– At least protect that level of WQ necessary to
protect uses
• Meet criteria to protect uses
• Applies to all state waters
• Tier 2—High quality waters: WQ better
than necessary to support uses.
– Better than criteria
– May still allow degradation but some process:
• Through public process
– Necessary to accommodate importan social or economic
development in the area in which the waters are located.
– Assure controls for other point and nonpoint sources are
achieved—those limitations set by CWA for point
sources; BMPs described in WQS for nonpoint sources.
• Tier 3—Outstanding Resource Waters
– Exceptional national resource:
• High water quality
• Exceptional recreational/ecological significance
– WQ in ORWs can not be lowered.
– ORWs in Idaho are designated by the
legislature…There are no Outstanding
Resource Waters designated in Idaho.
Antidegradation Implementation
Procedures
• Required by Federal Regulations
• Idaho has not fully met this requirement
– Do have a process for designating ORWs
– Do have provisions addressing how to
ensure, at least for NPS, water quality is NOT
degraded.
Vulnerability Detected
• NOI sent by ICL in September 2009 to
EPA identifying EPA has a mandatory duty
to promulgate antideg implementation
procedures because Idaho has failed to do
so.
• Lawsuit filed April 2010
– DEQ started negotiated rulemaking to
develop antideg implementation procedures in
the WQS
• Lawsuit has been stayed pending outcome
of rule: 6 rulemaking meetings produced a
rule adopted by DEQ board Nov 2010.
Legislature rejected parts of the
rule
• And approved the remainder; also adopted
legislation that amended Idaho Code to address
antideg.
• New sections correspond to those sections of
the rule rejected
• Ruled adopted by DEQ and approved by
Legislature. DEQ believes the rule:
meets CWA requirements; will be approved
by EPA; and will withstand a court challenge.
Included in the Rule
• How the state will categorize the waters of
the state into 3 tiers—by a waterbody
approach—looking at overall water quality
– Could categorize on pollutant basis
• Since tier 1 applies to all waterbodies, this
is really about identifying tier 2 high quality
waters
Use of the Integrated Report
• IR category 5 (303(d) list tier 1 (with
exceptions))
• Category 2 (full support) tier 2
• Can split uses: tier 1 for one use/tier 2 for
other use
– Certain pollutants—DO, pH, and temperature,
even if on 303(d) list for aquatic life, can
elevate to tier 2 if biology tells us uses are
supported.
Activities to which antideg applies
• Those activities that require a federal
permit and discharge to waters within the
jurisdiction of the CWA
– NPDES permits
– 404 permits
– FERC licenses
How the state will determine when degradation
of high quality water will occur
• Compare permit limits; new permit allowance and effect
to WQ in receiving WB
• How to determine important social or economic
development that justifies degradation of high quality
waters
– Is degradation necessary to developmnent that justifies
degradation of high quality waters
– Are there reasonable alternatives and is it necessary to
important social or economic development
List of factors to review
• Includes provision that allows insignificant
discharges to occur without the tier 2
analysis.
– If discharge will not cumulatively decrease
assimilative capacity by more than 10%, it is
determined to be insignificant.
Adopted Rule before EPA
• EPA has 60 days to approve; 90 days to
disapprove
• ICL publically has made it known that it will
challenge the rule if approved by EPA
ICL issues
• Determining degradation based on limits in
permit rather than existing discharge
levels if permittee is discharging at levels
less than limits. ICL believes should use
existing discharge levels.
• Waterbody by waterbody approach vs.
pollutant by pollutant approach: ICL
believes p by p is only approach allowed
by CWA
Why this is important
• Without these procedures in place, EPA
takes the position it will not issue any
permit in ID that allows degradation in a
High quality water.
• Most important for new or increased
dischargers to high quality waters.
– Either no degradation or must make showing
that degradation is justified
• Done, or Not Done?
Proposed Rule: Point Source Wastewater Treatment Requirements
401. POINT SOURCE WASTEWATER TREATMENT
REQUIREMENTS.
• Unless more stringent limitations are necessary to meet the applicable
requirements of Sections 200 through 300, or unless specific exemptions are
made pursuant to Subsection 080.02, wastewaters discharged into surface
waters of the state must have the following characteristics:
• 01. Temperature. The wastewater must not affect the receiving water outside
the mixing zone so thata. The temperature of the receiving water or of
downstream waters will interfere with designated beneficial uses.
• b. Daily and seasonal temperature cycles characteristic of the water body
are not maintained. (7-1-93)
• c. If the water is designated for warm water aquatic life, the induced variation
is more than plus two (+2) degrees C.
• d. If the water is designated for cold water aquatic life, seasonal cold water
aquatic life, or salmonid spawning, the induced variation is more than plus
one (+1) degree C.
•
•
•
•
ec. If temperature criteria for the designated aquatic life use are exceeded in the
receiving waters upstream of the discharge due to natural background conditions,
then Subsections
401.01.c. and 401.01.d. do not apply and instead wastewater must not raise the
receiving water temperatures by more than three tenths (0.3) degrees C. (4-11-06)(630-11)T
02. Turbidity. The wastewater must not increase the turbidity of the receiving water
outside the mixing zone by: (7-1-93)
a. More than five (5) NTU (Nephelometric Turbidity Units) over background
turbidity, when background turbidity is fifty (50) NTU or less; or (7-1-93)
b. More than ten percent (10%) increase in turbidity when background turbidity
is more than fifty(50) NTU, not to exceed a maximum increase of twenty-five
(25) NTU. (7-1-93)
03. Total Chlorine Residual. The wastewater must not affect the receiving water
outside the mixing zone so that its total chlorine residual concentration exceeds
eleven one-thousandths (0.011) mg/l. (1-1-89)