Clean Water Program, continued

Point Source Controls

Point sources are issued permits to discharge pollution into public waters through the Clean Water Act's National Polluant Discharge Elimination System (NPDES). An NPDES permit is required for any discharge of a pollutant to a waterbody of the state. The U.S. EPA has delegated this federal program to most states, including Oregon and Washington. In addition, states issue state permits that prohibit discharges. States also issue general NPDES permits. In order for a discharger to be covered by a general permit, it need only fill out an application.

[4J] NPDES Permits Discharge Restrictions

The Clean Water Act prohibits the discharge of any pollutant or pollution from a point source into waters of the United States without an National Pollutant Discharge Elimination System (NPDES) permit, issued pursuant to CWA section 402. CWA § 301(a), 33 U.S.C. § 1311(b). The statute contains numerous requirements for technology-based controls, controls that are intended to reduce pollution regardless of the effect of the discharge on the receiving stream due to other sources, the size or flow of the stream, and other circumstances. See e.g., CWA § 301(b), 33 U.S.C. § 1311(b). In addition to meeting technology-based effluent limitations, NPDES permits must also contain "any more stringent limitation, including those necessary to meet water quality standards ... or required to implement any applicable water quality standard established pursuant to this chapter." CWA § 301(b)(1)(C), 33 U.S.C. § 1311(b)(1)(C). Likewise, the Act requires that where a permitting authority determines that "discharges of a pollutant from a point source ... would interfere with the attainment or maintenance of [applicable] water quality [standards], ... effluent limitations (including alternative effluent control strategies) for such point source ... shall be established which can reasonably be expected to contribute to the attainment or maintenance of such water quality." CWA § 302(a), 33 U.S.C. § 1312(a).

EPA's implementing regulations require that the effluent limitations incorporated in NPDES permits meet any additional standards and state requirements. 40 C.F.R. § 122.44(d). Specifically, "each NPDES permit shall include conditions meeting [w]ater quality standards and State requirements." Id. This section establishes the need for "any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under [other sections of the CWA] necessary to: (1) Achieve water quality standards established under section 303 of the CWA, including State narrative criteria for water quality." 40 C.F.R. § 122.44(d)(1). These required effluent limitations "must control all pollutants or pollutant parameters (either conventional, nonconventional or toxic pollutants) which the Director determines are or may be discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any State water quality standard, including State narrative criteria for water quality." 40 C.F.R. § 122.44(d)(1)(i). In order to determine whether a discharge causes, has the reasonable potential to cause or contribute to an in?stream excursion above either narrative or numeric criteria, "existing controls on point and non-point sources, the variability of the pollutant or polluting parameter in the effluent * * * and where appropriate, the dilution of the effluent in the receiving water" must be accounted for. 40 C.F.R. § 122.44(d)(1)(ii).

Once a TMDL is in place, assuming that waste load allocations (WLA) for specific NPDES permit holders are included, those WLAs will generally be incorporated at least in the renewal of existing permits if not earlier through a reopener clause. Technical issues in translating the TMDL's annual or seasonal loads to effluent limits will be addressed through the NPDES permit issuance process. The need for compliance schedules to attain these WLAs may be established in the TMDL and/or built in to NPDES permits (if the term is under five years), or in administrative orders (where the term is beyond five years). However, where there is no TMDL in place, permit writers claim to issue water quality-based permits although their findings are restricted to localized dilution analyses, known as "mixing zones," which are intended only to protect the beneficial uses at the point of discharge. Without the cumulative impacts analysis embodied in the TMDL, states cannot ensure they are issuing permits with effluent limits that are not causing or contributing to water quality standards violations. Where a receiving stream is listed as impaired under CWA section 303(d)(1), NPDES permitting agencies are unable to determine the appropriate effluent limits to meet the statute and regulations if there has been no TMDL to determine the relative responsibilities of the polluting sources.

This raises the specter of uncertainty for point sources. While many NPDES permit holders view TMDLs as a negative development that is more likely than not to result in increased pollution controls for existing discharges, others know that TMDLs also increase certainty for the future and provide protection from third party lawsuits. Such suits can be based, for example, on failure of the permit holder to meet the narrative conditions of its NPDES permit that prohibit its discharges from causing or contributing to water quality standards violations. See e.g., Northwest Environmental Advocates v. City of Portland, 56 F.3d 979 (9th Cir. 1995). One area of vulnerability comes in the definition of water quality standards. In the absence of a TMDL, state permit writers generally ignore the application of narrative criteria, beneficial use support, and the antidegradation policy in setting effluent limits. Because designated uses and numeric criteria to protect them are often not protective of existing uses (e.g., salmonid temperature requirements are not protective of amphibians), where standards are not fully applied at the time of permit issuance, a TMDL may require more stringent effluent limits based on a full application of all components of water quality standards.

The absence of a TMDL has an impact on point sources that seek to discharge new or expanded loads into water quality limited streams and all point sources that will suffer from the uncertainty of not knowing the extent of future regulatory controls. EPA regulations prohibit issuance of permits "when the conditions of the permit do not provide for compliance with the applicable requirements of CWA, or regulations promulgated under CWA." 40 C.F.R. § 122.4(a). This includes "[w]hen the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected states." 40 C.F.R. § 122.4(d). Where there is no TMDL in place, EPA regulations prohibit the issuance of a permit for a "new source" or "new discharger" if the discharge from its operation will "cause or contribute to the violation of water quality standards." 40 C.F.R. § 122.4(i). EPA regulations may allow a new load if a TMDL has been developed that demonstrates there "[1] are sufficient remaining pollutant load allocations to allow for the discharge; and (2) The existing dischargers into that segment are subject to compliance schedules designed to bring that segment into compliance with applicable water quality standards." 40 C.F.R. § 122.4(i).

NWEA's Comments on Draft NPDES Permit for the Satsop Gas Combustion Plant
NWEA's Comments on Draft NPDES Permit for the Chehalis Gas Combustion Plant
NWEA v. City of Portland, 9th Circuit Decision (Combined Sewer Overflows)
At Issue: NWEA Newsletter, Raw Sewage Dumping to Stop, July 1995

[4G] Washington NPDES Permits


[4H] Oregon NPDES Permits


[4I] Animal Feeding Operations


[4K] Oregon General NPDES Permits


[4L] Washington General NPDES Permits


[4M] Oregon Water Pollution Control Facilities (WPCF) Permits


[4N] Washington State Permits



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