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** Updated: EPA has extended the deadline for public comment to August 2. **

On May 18, EPA published a proposal to update certain elements of its National Pollutant Discharge Elimination System (NPDES) regulations.  The stated intent of the draft rule is to modernize the NPDES program and increase transparency, while adding additional clarification to key provisions. While a number of the changes are simple modifications that help to bring the NPDES program into the 21st century, the proposal also includes certain amendments that could result in additional burden for permitting authorities and permittees, including clean water agencies. Several substantive provisions could alter how states set water quality based effluent limits (WQBELs). The true potential impact of many provisions, however, will depend on how a particular authorized state is currently implementing the permit program.

One of the more controversial proposals is a provision that would give the EPA Regions additional leverage to compel states to address permits that have been administratively continued for extended periods of time. Below is an at-a-glance look at the major relevant proposed changes to parts 122, 123, and 124 of 40 CFR.  EPA is seeking comment on the proposal, and NACWA is soliciting input from its members for the Association’s comment effort. Please send any feedback on the items below to This e-mail address is being protected from spambots. You need JavaScript enabled to view it by June 30. Several stakeholders plan to request more time from EPA to submit input, but the current comment period ends on July 18.

Summary and Specific Requests for Comment

The basic premise behind much of this proposed rule comes down to two things: 1) bring the NPDES regulations into the 21st century by eliminating outdated references and form components, aligning NPDES requirements with existing regulations that have been updated over the last 30 years, and allowing use of technology for notification and data purposes; and 2) require permit writers to “show their work” more clearly when making decisions during the permit writing process.  The bulk of the impact from these changes will be felt most directly by the state NPDES permitting programs, but there are important exceptions where elements of the proposal may have more significant implications for permittees as outlined below.

Permit Application Requirements

• NPDES Program Definition of Whole Effluent Toxicity Definition (40 CFR 122.2);
  • EPA proposes to revise the existing definition of whole effluent toxicity (WET) to refer to both acute and chronic WET test endpoints. The preamble for this provision notes that the “proposed clarification would not change any existing regulatory requirements” and that the limits must be written to meet the applicable water quality standards. EPA argues that this change is consistent with the Agency’s current interpretation, but not every state is implementing the WET program as EPA has envisioned. For those states already imposing acute and chronic endpoints, this will have little impact. In those states that may not currently impose both acute and chronic WET endpoints, this would be an additional pressure point from EPA to make the state fall in line.  

• Changes to Existing Application Requirements (40 CFR 122.21);
  • POTWs will be required to provide the latitude and longitude of the discharging facility to the nearest second, along with the method of data collection. Currently POTWs are only required to provide basic location information of the facility. CSOs are already required to report the latitude and longitude of their CSO outfalls, but would be newly required by this rule to report the method of data collection used. EPA seeks comment on the availability of this information and any other considerations.
  • The proposal clarifies that POTWs are required to submit, in their application, all relevant information from all significant and nonsignificant industrial users (SIU and NSIUs). This change is intended to align the permitting regulations with the pretreatment regulations at 40 CFR 403.3(v). 
  • The proposal requires permittees to notify the permitting authority whether they are requesting any variances in their permit application. As described by EPA, this is essentially adding a check box on the form indicating the discharger is requesting a variance.

Water Quality-Based Permitting Process
EPA’s proposals on antidegradation, dilution allowances, and reasonable potential appear to establish more rigid parameters for writing permits than the flexibility that has existed in the past.  According to EPA staff, many of these elements were identified through EPA’s regular permit review efforts where the Agency audits state permitting programs to ensure consistency with the federal program.  These are areas where EPA has raised concerns with certain states during their permit reviews and the Agency feels that including more explicit language in the NPDES regulations will help to address the inconsistences they have found. 

• Antidegradation Reference (40 CFR 122.44(d));
  • The proposal adds a reference in 40 CFR 122.44(d)(1) to include “the state antidegradation requirement” as a water quality standard (WQS) that must be applied when deriving WQBELs.  Here EPA is looking for states to better document how they have applied their antideg requirements in the permitting process. This provision could result in more scrutiny on dischargers in states not currently considering antideg provisions to EPA’s satisfaction.

• Dilution Allowances (40 CFR 122.44(d));
  • EPA proposes to replace the current language that allows consideration of dilution “where appropriate” with language specifying that any dilution allowances must comply with applicable dilution and mixing zone requirements, low flows established in state WQS, and be supported by data or analyses quantifying or accounting for the presence of each pollutant in the receiving water. This would require that the assimilative capacity of receiving waters be backed up by data and analysis. Here again, EPA is primarily looking for the states to better justify their permitting decisions and provide more extensive documentation.  More robust analysis might allow POTWs more flexibility in scenarios where arbitrary background levels used by the permit writers unfairly penalize the discharger. On the other hand, in areas where permit writers assume background levels of pollutants as zero, setting lower assimilative capacities could result in tighter WQBELs. Although this is consistent with current EPA guidance, the ability for NGOs and public monitoring consortia to submit data to use in dilution analysis could raise data quality issues. It would be up to the permit authorities to verify and substantiate any data.

• Reasonable Potential Determinations for New Discharges (40 CFR 122.44(d));
  • This proposed revision states that while the permitting authority has the discretion to prioritize the importance of available data when making a reasonable potential determination, the permit writer may not disregard valid information. This would most frequently apply to new industrial dischargers, where there is no historical flow data. If there were nearby similar facilities, the permitting authority must use available discharge data from nearby permittees.

• Anti-backsliding (40 CFR 122.44(l));
  • EPA is incorporating anti-backsliding sections from the CWA into the NPDES regulations verbatim. The provisions were added to the CWA in the 1980s, but EPA never changed its regulations.  EPA is not seeking comment on this change, however NACWA will seek to clarify some confusion over the proposed regulatory text that suggests a different interpretation of the statutory language.

• Design Flow for Publicly Owned Treatment Works (40 CFR 122.45(b));
  • Revisions would provide permit writers with additional flow options, not just design flow, for modeling and calculating WQBELs for POTWs. This is an area where NACWA specifically plans to comment as limits based on actual flows versus design flows could restrict the ability to use existing infrastructure to its full capacity.  For example, mass-based limits set using actual flows instead of design flow could be exceeded if the POTW’s flow increases due to growth in the community. 

Public Notice and Fact Sheet Requirements

• The proposal makes minor revisions that would allow permitting authorities to public notice both general and individual NPDES permit actions via a publically available website in lieu of the newspaper publication requirement. In many cases, permitting authorities already use their websites to publically notice their permitting activities, and in regions with near-ubiquitous connectivity, there would be considerable cost savings to eliminating the newspaper notification. An alternative option, on which EPA is seeking comment, would require NPDES permitting authorities to public notice all NPDES notice and hearings on their website.

• EPA is also proposing new language under 40 CFR 124.56 that more precisely outlines the information and documentation required in fact sheets prepared by the permitting authority for each individual and general NPDES permit. It is NACWA’s understanding that the level of detail contained in fact sheets varies significantly across permit types, as well as within and between states. Consistent fact sheets would require that the state include documentation and background information about how each limit and determination was made. It would also streamline those fact sheets that are too complicated. More detail in permit fact sheets would provide permittees with a clear record and documentation of how limits were derived, and in cases when there is no limit, the analysis in the fact sheet could provide needed legal cover in the event of a permit challenge by an outside stakeholder.

Objection to Administratively Continued Permits

• EPA proposes to revise section 40 CFR 123.44 to allow its regional administrators to designate certain expired NPDES permits that are deemed “environmentally significant” as “proposed permits”. After the initial five-year state-issued NPDES permit term, if the permit has not been reissued within a certain period, either 2 or 5 years after expiration (EPA is seeking comment on both time frames), then EPA could deem the expired permit to be a “proposed permit”. At that point, EPA could formally object to it as not containing appropriate permit limits and conditions. The state would have to address concerns raised by EPA, which could include the need for new limits based on new water quality standards that have been adopted since the permit was first issued, by issuing a new permit containing the new conditions. If the state is unable or unwilling to do so, then EPA could take over the permit and issue the permit as a federal EPA permit. 

This provision raises obvious legal concerns. EPA has stated that it would only exercise this authority when a permittee has filed a timely application for a new permit and the state has not acted for a substantial period of time. One concern is that, during this review, EPA would be examining the existing, expired permit - which could be significantly out of date - and not the new permit application from the permittee. This raises important questions regarding the compliance status of the permittee operating under a permit that has received an EPA objection. More clarity is needed to ensure permittees are not penalized by the state’s failure to renew their permits. 

Currently, EPA can only identify expired permits as priorities and work with the states to get them revised and reissued. The proposed rule change would give EPA more leverage with the states for those permits it considers “environmentally significant.” It is not entirely clear what could be deemed “environmentally significant”; the proposal highlights public health issues as an example. However, some of EPA’s potential triggers for use of this provision are basic elements of the CWA program, such as whether there is a new or revised water quality standard that has not been implemented in the permit. Given the frequency with which EPA revises its water quality criteria, this provision could pull in hundreds if not thousands of the approximately 17,000 facilities operating under expired permits as of September 2015, including POTWs and MS4s. NACWA will seek to clarify how and when EPA would exercise this authority.

Background and Pre-Proposal Engagement on the Rule

In January 2015, NACWA convened a sub-group of the Water Quality Committee to provide input to the EPA staff writing the proposal. After the initial conference call with the rule team at EPA, the sub-group requested that the final proposal not specify that WET endpoints include both acute and chronic effects, acknowledging that a permit needs to be consistent with the WQS. As noted above, the preamble explaining the proposed change to the WET definition underscores that EPA is not intending to change any regulatory requirements and that limits must be written to comply with WQS.  The sub-group also requested that the Office of Wastewater Management coordinate with the program offices responsible for promulgating the Final Rulemaking to Update Water Quality Standards Regulation and the Final NPDES e-Reporting Rule to ensure permittees are not asked to incorporate conflicting changes into their programs. Based on the proposal language, it appears consistency with the two rulemakings has been considered as requested.

Member Input Requested on Proposal

NACWA will coordinate with the Association of Clean Water Administrators (ACWA) to better understand the state permitting authority’s perspectives on these provisions. NACWA intends to submit comments on the draft rule and requests that any member with thoughts, questions, or reactions to the document please provide input to help inform the Association's comment effort. Comments should be sent to This e-mail address is being protected from spambots. You need JavaScript enabled to view it  by June 30, 2016. Members are also encouraged to submit their own comments directly to EPA via the instructions provided on the proposal.