Revisions to the National Pollutant Discharge Elimination System Program and Federal Antidegradation Policy in Support of Revisions to the Water Quality Planning and Management Regulation

SUMMARY: Today's action revises, clarifies and strengthens the

Environmental Protection Agency's (EPA's) National Pollutant Discharge

Elimination System (NPDES) Program and Water Quality Standards (WQS)

Regulation under the Clean Water Act (CWA). Today's proposed rule is

intended to achieve two objectives. The first objective is to achieve

reasonable further progress toward attaining water quality standards in

impaired waterbodies prior to EPA approval or establishment of a Total

Maximum Daily Load (TMDL). To achieve this objective, EPA is proposing

explicit language describing the Agency's discretionary authority to

object to, and reissue, if necessary, State-issued expired and

administratively-continued permits authorizing discharges into impaired

waterbodies in the absence of an EPA approved or established TMDL. EPA

would exercise this authority to ensure that those permits are

consistent with water quality standards. Also to achieve this

objective, EPA is proposing to require that selected dischargers offset

any increase in mass loadings of a pollutant(s) causing the

nonattainment of water quality standards in an amount that would result

in reasonable further progress toward attainment of water quality

standards.

The second objective is to achieve reasonable assurance that an

established TMDL will be implemented. To achieve this objective, EPA is

proposing explicit language describing EPA's discretionary authority to

object to, and reissue, if necessary, State-issued expired and

administratively-continued permits authorizing discharges into impaired

waterbodies with established and approved TMDLs. EPA would exercise

this authority to ensure that those permits are consistent with

applicable wasteload allocations in a TMDL. Also to achieve this

objective, EPA is proposing explicit language describing the authority

of both EPA and States with approved NPDES programs, to designate

certain currently unregulated sources as sources that would require an

NPDES permit.

DATES: Comments on this proposal must be received, postmarked or

delivered by hand on or before October 22, 1999.

ADDRESSES: Send written comments on the proposed rule to W-99-04,

NPDES/WQS, Comment Clerk, Water Docket, Environmental Protection

Agency, 401 M Street, SW, Washington, DC 20460. Comments can also be

submitted electronically to OW-D[email protected] (see ``DOCKET'' section

below). A copy of the supporting documents cited in this proposal is

available for review at EPA's Water Docket; 401 M Street, SW, Mail

code: EB57, Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Kim Kramer, Office of Wastewater

Management, 401 M St., SW, Washington, DC 20640, Mail Code 4203, e-

mail: Kramer.K[email protected], telephone: (202) 260-9541 for information

regarding the NPDES provisions, or Susan Gilbertson, Office of Science

and Technology, 401 M St., SW, Washington, DC 20460, Mail Code 4305, e-

mail: Gilbertson.S[email protected], telephone: (202) 260-7301 for information

regarding the water quality standards provisions.

SUPPLEMENTARY INFORMATION:

A. Table of Contents of This Preamble

I. Purposes and Objectives of Today's Proposed Rules

II. Proposed Requirements for New and Significantly Expanding

Dischargers Located on Impaired Waters

A. Who Would Be Subject to This Proposal?

1. Which Sources Discharge New Pollutant Loads to a Waterbody?

2. Would Dischargers Who are Currently Discharging but Move

Their Outfall(s) to Another Waterbody Be Subject to This Proposal?

3. Will The Proposed Changes to the Definitions of a New

Discharger and an Existing Source Affect Their Application Elsewhere

in the Regulations?

4. Would Any Existing Dischargers Be Subject to This Proposal?

5. How is EPA Proposing to Define A ``Significant Expansion'' of

an Existing Discharger?

B. What are the Proposed Changes to the Federal Antidegradation

Policy?

1. What is the Current Federal Antidegradation Policy?

2. What Were the Recommendations of the TMDL Federal Advisory

Committee?

3. What Revisions is EPA Proposing Today?

i. Why is EPA Proposing to Require Dischargers Subject to This

Proposal to Achieve Reasonable Further Progress Toward Attaining

Water Quality Standards?

a. How Does This Relate to the TMDL FACA Committee's

Recommendations?

b. Has This Approach Been Used in Other Statutes?

ii. How is EPA Proposing to Define Reasonable Further Progress?

a. Has Reasonable Further Progress Been Defined Under Other

Statutes?

iii. What Offsets Would Affected Dischargers Need to Obtain to

Ensure Reasonable Further Progress?

a. Could Offsets be Obtained From Existing Nonpoint Sources?

b. Could the Director Vary the Amount of the Offset?

iv. Would the Reasonable Further Progress Requirements Apply to

Affected Dischargers Proposing to Discharge to All Waters of the

U.S.?

v. Why is EPA Proposing to Subject Only New Dischargers and

Existing Dischargers Undergoing a Significant Expansion to These

Requirements?

vi. Would All New Dischargers and Existing Dischargers

Undergoing a Significant Expansion Be Subject to These Proposed

Requirements?

a. How Would This Proposal Facilitate the Establishment of

Trading Markets?

C. How Would EPA Ensure any Needed Changes to the

Antidegradation Policies in State, Territorial and Tribal Water

Quality Standards?

D. How Would These Changes Be Implemented Through NPDES Permits?

1. Must the New or Significantly Expanding Discharger Obtain an

Offset of the Same Pollutant(s) the New or Significantly Expanding

Discharger Would Be Required to Offset?

2. From What Geographic Area Would the Pollutant Load Reductions

Need to Be Obtained?

3. Could the Pollutant Load Reductions Come From a Source With

Existing Requirements to Reduce its Loads?

4. When Would the Pollutant Load Reductions Need to Be Obtained?

5. How Long Would the Pollutant Load Reductions Need to Be

Maintained?

6. What Would Be Required When the Source of the Offset is an

Existing Point Source?

7. What Would Be Required When the Source of the Offset is an

Existing Nonpoint Source?

8. How Would Offsets Be Obtained From Sources Seeking Coverage

Under a General Permit?

i. What Options is the Agency Considering?

ii. What If a Notice of Intent Form is Not Required?

iii. Who and Under What Circumstances Would Need to Submit a

Supplemental Certification?

iv. How Would Offsets Be Determined for Dischargers Regulated

Solely by BMPs?

E. Additional Proposed Modifications to Related NPDES Provisions

1. How is EPA Proposing to Modify the Water Quality-Based

Permitting Regulations?

[[Page 46059]]

2. How is EPA Proposing to Modify the Regulations Pertaining to

the Statement of Basis and Permit Fact Sheet?

III. Proposed Authority to Designate Additional Sources of

Pollutants to the NPDES Program

A. How Would Animal Feeding Operations and Aquatic Animal

Production Facilities Be Affected by Today's Proposal?

1. How Do These Sources Become Subject to the NPDES Program?

i. Under What Circumstances Are CAFOs Designated on a Case-By-

Case Basis?

ii. Under What Circumstances are CAAPFs Designated on a Case-by-

Case Basis?

2. Why is EPA Proposing Changes to the CAFO and CAAPFs

Jurisdictional Regulations?

i. How Do Animal Feeding Operations Impact Water Quality?

ii. How Do Aquatic Animal Production Facilities Impact Water

Quality?

3. What Changes is EPA Proposing to Make to the CAFO and CAAPFs

Jurisdictional Regulations?

i. When Would EPA Designate These Sources?

ii. How Will This Proposal Affect States?

iii. Who Would Issue Permits to These Sources Once Designated?

4. How Would EPA Revise Regulatory Text?

B. How Would Silvicultural Activities Be Affected by Today's

Proposal?

1. Which Sources Are Currently Excluded From the Definition of a

``Point Source?'

2. Are All Discharges From Silvicultural Activities Currently

Excluded From the NPDES Program?

3. Which Silvicultural Discharges Would Be Designated Under

Today's Proposal as Sources Subject to the NPDES Program?

4. Why is EPA Proposing to Remove the Regulatory Exclusion for

These Silvicultural Discharges?

5. When Would Silviculture Sources Be Required to Obtain an

NPDES Permit?

6. How Would States Be Affected by This Proposal?

IV. Proposed EPA Authority to Reissue State-Issued Expired and

Administratively-Continued NPDES Permits

A. Can EPA Object to State-Issued Expired and Administratively-

Continued Permits?

B. How Would EPA Review and Object to a State-Issued Expired and

Administratively-Continued Permit?

C. When Would EPA Withdraw its Objection?

D. When Could EPA Invoke This Authority?

E. Will EPA Work With the States Before Invoking This Authority?

F. What If a Permit Has Expired but the Permittee Has Not

Submitted a Timely and Complete Application for Renewal to the

State?

G. What Authority Supports Today's Proposed Changes?

H. Conclusion

V. Regulatory Assessment Requirements

A. Regulatory Flexibility Act, as amended by the Small Business

Regulatory Enforcement Fairness Act of 1996

B. Executive Order 12866

C. Unfunded Mandates Reform Act

D. Paperwork Reduction Act

E. Executive Orders on Federalism

F. Executive Order 13084: Consultation and Coordination With

Indian Tribal Governments

G. Executive Order 13045: Protection of Children From

Environmental Health Risks and Safety Risks

H. National Technology Transfer and Advancement Act

I. Executive Order 12898: Environmental Justice

B. Potentially Regulated Entities

Entities discharging pollutants to certain waters of the U.S. could

be regulated by this rulemaking if they are subject to National

Pollutant Discharge Elimination System (NPDES) program. Potentially

regulated entities include:

------------------------------------------------------------------------

Examples of potentially

Category regulated entities

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State, Territorial or authorized Tribal States, territories and

Governments. authorized Tribes issuing

NPDES permits

Federal Government..................... EPA

Industry............................... Industries, including municipal

construction sites,

discharging pollutants to

waters of the U.S.

Municipalities......................... Owners and operators of

publically-owned treatment

works, municipal separate

storm sewer systems, and

municipal construction and

industrial activities

discharging pollutants to

waters of the U.S.

------------------------------------------------------------------------

This table is not intended to be exhaustive, but rather provide a

guide for readers to identify entities that EPA believes could

potentially be affected by this action. Other types of entities not

listed in this table could also be regulated. To determine whether your

facility may be regulated by this proposed action, you should carefully

examine the applicability criteria in 40 CFR 122.4, 122.23, 122.24,

122.26, 123.44 and 131.12 of today's proposed rulemaking. If you have

any questions regarding the applicability of this action to a

particular entity, consult one of the persons listed in the FOR FURTHER

INFORMATION CONTACT section.

C. Docket

The record for this notice has been established under docket number

W-99-04 and includes supporting documentation. EPA requests that

commenters submit any references cited in their comments. EPA also

requests that commenters submitting written comments include an

original and 3 copies of their written comments and enclosures.

Commenters that want receipt of their comments acknowledged should

include a self-addressed, stamped envelope. No facsimiles (faxes) will

be accepted.

Electronic comments are encouraged and may be submitted to the

Water Docket (see ADDRESSES section above). Electronic comments must be

submitted as an ASCII file or a WordPerfect file. Electronic comments

must be identified by the docket number, (W-99-04). Comments and data

will also be accepted on disks in WP8 format or ASCII file format. No

confidential business information (CBI) should be sent via e-mail.

For access to docket materials, call EPA's Water Docket at (202)

260-3027 between 9:00 a.m. and 3:30 p.m. for an appointment. An

electronic version of this proposal will be available via the Internet

at: http://www.epa.gov.

I. Purposes and Objectives of Today's Proposed Rules

Today's proposed rule is intended to clarify and strengthen EPA's

NPDES and WQS regulations governing discharges into waterbodies that

are not attaining water quality standards. Today, EPA is separately

proposing revisions to its Total Maximum Daily Load regulations so that

TMDLs can more effectively contribute to improving the nation's water

quality. Today's proposal complements that effort by ensuring that two

objectives are met. The first objective applies in impaired waterbodies

prior to the establishment of a TMDL. The purpose of this objective is

to achieve reasonable further progress toward attaining water quality

standards. The second objective applies in impaired waterbodies after

the establishment of a TMDL. The purpose of this objective is to ensure

more effective implementation of TMDLs.

To meet the reasonable further progress objective, EPA is adding a

new antidegradation requirement and revising the NPDES permitting

regulations to implement that requirement. Today's proposal would

require all large new dischargers and existing dischargers undergoing a

significant expansion proposing to discharge the pollutant(s) of

concern into an impaired waterbody, to offset that new or increased

discharge. This requirement is in addition to otherwise applicable

requirements of the CWA and will ensure that there will be reasonable

further progress toward attaining water quality standards despite the

addition of the new load from those dischargers. Today's

[[Page 46060]]

proposal also establishes a number of requirements, under the NPDES

program, to ensure compliance with the antidegradation offset

requirement. Those requirements include boundaries on when and where

pollutant load reductions would need to be obtained. Therefore, today's

proposal will result in reasonable further progress toward attainment

of water quality standards. In some cases, such progress may even

result in the attainment of water quality standards so that a TMDL is

no longer required.

The Agency notes that this requirement is in addition to existing

requirements found at 40 CFR 122.44(d)(1)(vii) and 122.4(i). Section

122.44(d) requires dischargers, where necessary, to receive limits that

derive from and comply with water quality standards. Section 122.4(i)

requires that no permit be issued to a new source or a new discharger

if the discharge will cause or contribute to a violation of water

quality standards.

Today, EPA is also proposing to explicitly describe a Regional

Administrator's authority to trigger existing provisions for reviewing

and objecting to State-issued NPDES permits. Under the proposal, the

Regional Administrator will have the discretion, under certain

circumstances, to trigger these review and objection procedures when a

State fails to reissue an expired, State-issued permit that has been

administratively continued for more than 90 days. This proposal is

designed to address lengthy administrative continuance of permits that

authorize discharges into impaired waterbodies and which contain limits

that are insufficient to protect applicable water quality standards. By

not reissuing these permits, there is a delay in the implementation of

needed water quality-based effluent limitations. This provision will

serve both purposes of today's proposal. Prior to the establishment of

a TMDL, the provision can be used to ensure that more stringent

effluent limitations which derive from and comply with water quality

standards are implemented. Subsequent to the establishment of a TMDL,

this provision will enable the Regional Administrator to ensure that

existing dischargers receive permit limits consistent with wasteload

allocations in a TMDL.

EPA is today proposing additional revisions to the permitting

regulations to ensure that TMDLs are implemented. These revisions

include changes to the NPDES jurisdictional regulations regarding

designation of point sources for regulation under the NPDES permitting

program. EPA is proposing explicit language describing its authority,

in States with approved NPDES programs, to designate animal feeding

operations (AFOs) and aquatic animal production facilities (AAPFs) as

sources subject to NPDES requirements on a case-by-case basis. EPA is

also proposing to eliminate the current regulatory exclusion for

certain discharges from silvicultural activities. These discharges may

also become subject to NPDES requirements on a case-by-case basis. EPA

is constraining its discretion to exercise the authority to subject

these sources to the NPDES program to those circumstances when EPA

establishes a TMDL for a waterbody and determines that designation is

necessary to ensure that the wasteload allocations and load allocations

under the TMDL are achieved. The proposed rule does not place any

constraint on the discretion of State program Directors, in NPDES

delegated States, to designate silvicultural activities as point

sources. EPA recommends however, that States use this authority only on

a limited basis, in circumstances similar to those in which EPA intends

to use it (i.e., when there is no other means of providing reasonable

assurance that a load allocation or wasteload allocation in a TMDL will

be met).

Each of today's proposed revisions is designed to achieve the water

quality goals of the Clean Water Act. EPA believes that today's

proposal will ensure that those goals are met more quickly and that one

of the most important tools for achieving those goals, a TMDL, will be

implemented more effectively.

II. Proposed Requirements for New and Significantly Expanding

Dischargers Located on Impaired Waters

A. Who Would Be Subject to This Proposal?

EPA is today proposing to establish new requirements for

dischargers proposing to add new pollutant loads to an impaired

waterbody in the absence of a TMDL. These new requirements are located

in 40 CFR 122.4(j) and 131.12(a)(1)(ii). Section 122.4(j) applies to

all new dischargers and existing dischargers undergoing a significant

expansion proposing to add new pollutant loads to a waterbody. Section

131.12(a)(1)(ii) applies to large new and significantly expanding

dischargers proposing to add new pollutant loads to an impaired

waterbody for which EPA has not approved or established a TMDL. EPA is

also proposing to modify the definitions of a new discharger and an

existing source under 40 CFR 122.2 and 122.29.

EPA intends these new requirements to apply only to those

dischargers who are proposing to add new loads of pollutants to a

waterbody. Because the current definition of a new discharger can be

read to include some dischargers who are not adding new loads to a

waterbody, EPA is proposing to modify the existing definitions of both

a new discharger and an existing source. The definition of a new

discharger is currently found at 40 CFR 122.2 and the definition of an

existing source is currently found at 40 CFR 122.29. EPA is also

proposing to define the term ``significant expansion.'' All of these

definitions will be moved to 40 CFR 122.2.

A new discharger, as currently defined in 40 CFR 122.2, means any

building, structure, facility, or installation from which there is a

discharge of pollutants which commenced after August 13, 1979; which is

not a new source; and has never received a finally effective NPDES

permit. An existing source, as defined in 40 CFR 122.29, is any source

which is not a new source or a new discharger. The plain reading of the

current definition of a new discharger would subject certain sources to

today's proposed sections (122.4(j) and 131.12(a)(1)(ii), including the

proposed offset requirements explained below). Under the current

definition, these sources would be subject to today's proposal even

though they would not propose to discharge new pollutant loads to a

waterbody. Such sources include sources that have been and currently

are discharging pollutants that are not now subject to the NPDES

program but may in the future become subject to the NPDES program.

These sources would be subject to the requirements of the NPDES program

once designated.

Designation of sources can be made on a case-by-case basis

involving an individual source. For example, an individual medium-sized

animal feeding operation (AFO) may be designated as a medium-sized

concentrated animal feeding operation (CAFO).1 Designation

can also be made

[[Page 46061]]

by category. For example, sources that will become subject to the NPDES

program under the Storm Water Phase II rule will be designated on a

categorical basis.2 Although these sources have been

discharging before and at the time of designation, they would fall

within the current definition of a new discharger. As a result, unless

EPA amends the definitions of a new discharger and an existing source

for this purpose, these sources would be subject to the proposed

requirements of 40 CFR122.4(j) and 131.12(a)(1)(ii). As mentioned

above, EPA intends these sections to apply only to sources proposing to

discharge new pollutant loads to a waterbody.

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\1\ An example of a source that may be designated as a point

source on an individual basis and which at the time of designation,

would fall within the current definition of a new discharger, is a

medium-sized animal feeding operation (AFO) designated as a medium-

sized concentrated animal feeding operation (CAFO). This would be

the case where that AFO started discharging pollutants after August

13, 1979. This source is not a new source (there is no applicable

NSPS yet) and this source has never received a finally effective

NPDES permit. As an AFO, the source is not subject to the NPDES

permit program because AFOs are exempt from permit requirements

under 40 CFR 122.3(e). However, if that source is designated as a

CAFO (under 40 CFR 122.23) at any time in the future, it would fall

within the current definition of a new discharger.

\2\ An example of a source which may become subject to the NPDES

program as a result of a categorical designation of point sources

and which would fall within the current definition of a new

discharger is any Storm Water Phase II source that currently is and

has been discharging pollutants at any point after August 13, 1979.

These sources are not new sources (there is no applicable NSPS) and

these sources have never received a finally effective NPDES permit.

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1. Which Sources Discharge New Pollutant Loads to a Waterbody?

Sources that are proposing to discharge new pollutant loads to a

waterbody are dischargers that have not yet begun discharging but are

proposing to discharge. Also discharging new pollutant loads are those

dischargers that have been discharging to one waterbody and, for

example, propose to move their outfall to another location not within

the ``same body of water.'' Existing dischargers that expand or

increase their loads, discharge new pollutant loads to a waterbody as

well.

For proposed 40 CFR122.4(j) and 131.12(a)(1)(ii) to apply only to

dischargers that propose to discharge new pollutant loads to a

waterbody, EPA is proposing to modify the definition of a new

discharger. In addition, EPA is proposing to delete the current

definition of an existing source at 40 CFR 122.29 and replace it with a

new term, ``existing discharger,'' which will be defined in 40 CFR

122.2. EPA believes that consolidating these definitions into one

section provides greater clarity. The proposed modifications would

result in dischargers that fall into two classes, those that are

currently discharging to the same body of water (or existing

dischargers) and those that are not now discharging but wish to

discharge in the future (or new dischargers). For purposes of 40 CFR

122.4(j) and 131.12(a)(1)(ii), however, although dischargers would be

classified as either ``new dischargers'' or ``existing dischargers,'' a

new discharger may also be a new source and an existing discharger may

also be a new source.3

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\3\ The definition of a new source remains unchanged. A new

source is a source which began construction after the promulgation

of applicable new source performance standards (NSPS). Under this

unchanged definition of a new source, existing dischargers and new

dischargers (under this proposal) can be new sources subject to

NSPS. For example, if a discharger is a new discharger under this

proposal and that discharger began construction after the

promulgation of applicable NSPS, then that discharger would also be

a new source (subject to NSPS). Likewise, if a discharger is an

existing discharger under this proposal and that discharger began

construction after the promulgation of applicable NSPS, then that

discharger would also be a new source (subject to NSPS). If there

are no applicable NSPS for either discharger, then neither would be

a new source.

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2. Would Dischargers Who Are Currently Discharging but Move Their

Outfall(s) to Another Waterbody Be Subject to This Proposal?

Some dischargers move their outfalls from one waterbody to another

waterbody. In order to protect impaired waterbodies, EPA believes it is

appropriate to subject these dischargers to the new requirements

reflected in today's proposal. This is consistent with the Agency's

intent to subject sources introducing new pollutant loads to a

waterbody to today's new requirements. An outfall would not be subject

to today's new requirements if it was moved within the ``same body of

water'' as the existing outfall location. In determining whether the

outfall is moved within the ``same body of water'' as its original

location, the permitting authority should consider whether: (1) The

background concentration of the pollutant in the receiving water

(excluding any amount of the pollutant in the facility's discharge) is

similar at and between both outfall points; (2) there is a direct

hydrological connection between outfall points; and (3) water quality

characteristics (e.g., temperature, Ph, hardness) are similar at and

between both outfall points. Dischargers who move an outfall(s) within

the same body of water would remain existing dischargers.

The proposed modifications to the definitions of a new discharger

and an existing source will capture these sources as sources that would

be subject to proposed 40 CFR 122.4(j) and 131.12(a)(1)(ii).

3. Will the Proposed Changes to the Definitions of a New Discharger

and an Existing Source Affect Their Application Elsewhere in the

Regulations?

In modifying the definition of a new discharger, deleting the

definition of an existing source and proposing a definition for a new

term, an existing discharger, EPA does not intend to affect any other

existing regulations or effluent guidelines, including EPA's permit

decisionmaking regulations. Under 40 CFR 124.16 and 124.60 of EPA's

permit decisionmaking procedures, a ``new discharger,'' whose permit is

the subject of a pending administrative appeal, is without a permit

until the appeal process has concluded and the Agency's action has

become final. On the other hand, an existing facility, whose permit is

the subject of a pending administrative appeal, is not without a permit

until the appeal process has concluded. The uncontested terms of an

existing facility's permit take effect pending the conclusion of an

administrative appeal. Although today's proposal would change the

definitions of a new discharger and an existing source, EPA does not

intend to change the application of 40 CFR 124.16 or 124.60 at this

time. Accordingly, a discharger who, under the existing definitions, is

a ``new discharger'' and who, under the definitions in today's

proposal, would be an ``existing discharger,'' would be treated as a

``new discharger'' for purposes of 40 CFR 124.16 and 124.60. That is, a

discharger who would become an ``existing discharger'' by virtue of the

changes in today's proposal, would still be without a permit pending

the conclusion of an administrative appeal of the discharger's permit.

EPA believes that this interpretation of 40 CFR 124.16 and 124.60 makes

sense because dischargers who become ``existing dischargers'' by virtue

of the changed definitions proposed today would not have been operating

under an existing permit (this class of dischargers are those that are

discharging and not subject to NPDES regulation (discharging legally

without a permit) but are designated as sources subject to NPDES

regulation at some point in the future). EPA has long required that

those who wish to contest permit terms do so on their own time. 43 FR

37,087 (Aug. 21, 1978). This principle is especially compelling when

the Agency has never acted to approve the discharge on any set of terms

or conditions.

EPA believes that an amendment to 40 CFR part 124 would clarify how

EPA intends the stay provisions in 40 CFR 124.16 and 124.60 to apply to

``existing dischargers''; however, EPA has not included revised

language in today's proposal because the Agency has,

[[Page 46062]]

elsewhere, proposed changes to 40 CFR 124.16 and 124.60 which have not

yet been finalized. 61 FR 65,268 (Dec. 11, 1996)(Amendment to

Streamline the National Pollutant Discharge Elimination System Program

Regulations: Round 2). EPA proposes to amend 40 CFR 124.16 and 124.60

in a way that more clearly reflects its understanding of their

applicability to ``existing dischargers'' and which will conform to the

revisions made to these provisions in the Round 2 NPDES Streamlining

Rule once the contours of those revisions have become final. EPA

solicits comment on whether or not a new discharger that would become

an existing discharger under the definitions in today's proposal should

be treated as an existing discharger for purposes of 40 CFR 124.16 and

124.60.

EPA also invites comment on whether the modifications to these

definitions will have an effect on their application elsewhere in the

NPDES regulations. EPA may amend the respective sections so that these

definitional changes do not affect those sections.

4. Would Any Existing Dischargers Be Subject to This Proposal?

EPA has consistently believed that the mere fact that an existing

discharger currently discharges does not give them the privilege to

discharge any amount of additional loads without consequence.

Therefore, EPA is also proposing to subject existing dischargers

undergoing a significant expansion to proposed 40 CFR 122.4(j) and

131.12(a)(1)(ii). The term ``significant expansion'' will be newly

defined in 40 CFR 122.2.

5. How Is EPA Proposing To Define What Constitutes a ``Significant

Expansion'' of an Existing Discharger?

EPA is proposing to define the term ``significant expansion'' to

mean a twenty percent or greater increase in loadings above the

discharger's current permit limit. Twenty percent is consistent with

EPA's ``Guidance Manual for the Use of Production-Based Pretreatment

Standards and the Combined Wastestream Formula,'' September 19, 1985.

There, the Agency stated that an industrial user (IU) is required to

notify the Control Authority immediately where the IU's average

production and flow rate data have ``significantly'' changed. The

guidance further explains that as a general rule, the average rate is

considered to have changed significantly if the change is greater than

twenty percent. Where there is a significant change in these rates, it

is suggested that the Control Authority reevaluate the limits in the

IU's permit. In the preamble to the revision to the General

Pretreatment Regulations for Existing and New sources, FR 40562, 40565,

October 17, 1988, EPA confirmed the use of twenty percent as the level

at which an average rate is considered to have changed significantly.

The Agency stated that ``for purposes of today's rule, any increase or

decrease in production (or flow) rates will generally be deemed

significant if the change is equal to or greater than twenty percent of

the long term average production (or flow) rate at the facility.''

Therefore, in order to maintain consistency with its current guidance,

EPA is proposing a twenty percent increase in loadings above the

discharger's current permit limit as the threshold level which defines

a significant expansion.

The Agency believes however, that using an increase in ``loadings''

rather than ``production or flow rates'' is more appropriate. Today's

proposal is applicable to dischargers proposing to discharge new

pollutant loads into a waterbody and there may be cases where an

increase in production rates may not result in a corresponding increase

in pollutant loads. EPA invites comment on the appropriateness of a

twenty percent increase in loadings above the discharger's current

permit limit as the threshold level which defines a significant

expansion.

EPA is also considering the use of a fifty rather than a twenty

percent increase in loadings above the discharger's current permit

limit as the threshold level to define a ``significant expansion.'' A

threshold level of fifty percent is consistent with other Agency

guidance. On December 18, 1984, EPA put out guidance on the

``Calculation of Production-Based Effluent Limits'' (Memorandum from J.

William Jordan to Regional Branch Chiefs). The purpose of the guidance

was to clarify the procedure for calculating production-based effluent

limitations and to provide guidance on the use of alternate

limitations.

Effluent limitations guidelines are often derived from production

rates and are set at levels which include some variations in

production. However, certain facilities may have large random or cyclic

fluctuations in production rates where it would be appropriate to have

alternative effluent limitations which are applicable at some increased

production rate. The guidance mentioned above suggests that if

production rates are expected to change ``significantly'' during the

life of the permit, the permit should include alternate limits. The

guidance identifies that it is generally agreed that a ten to twenty

percent fluctuation in production is within the range of normal

variability and thus, would not need alternate limits. Further, it

states that changes in production rates which are substantially higher,

``such as fifty percent,'' would warrant the consideration of alternate

limits. EPA seeks comment on whether a fifty percent increase in

loadings above the discharger's current permit limits should be used to

define a significant expansion.

Other statutes and regulations also establish thresholds over which

a source cannot change without incurring different requirements. The

Resource Conservation and Recovery Act (RCRA) permit regulations hold

that ``reconstruction'' occurs when capital investment in the changes

to the facility exceed fifty percent of the capital cost of a

comparable entirely new hazardous waste management facility. 40 CFR

270.72(b). An interim status facility (a facility that is in existence

on the effective date of statutory or regulatory amendments that render

the facility subject to the requirement to have a RCRA permit), is

treated as having been issued a permit and may make changes short of

reconstruction, but cannot make changes amounting to reconstruction

until the facility receives a permit.

Under the Clean Air Act, new source review applies to new major

sources and modifications to existing major sources. 42 U.S.C. 7411. A

modification of an existing major source triggers review if it is a

physical or operational change that increases emissions by a

``significant'' amount. By regulation, EPA has defined ``significant''

based on the pollutant emitted. 40 CFR 51.165.

EPA invites comment on whether a threshold level other than twenty

or fifty percent should trigger the applicability of 40 CFR 122.4(j)

and 131.12(a)(1)(ii). One option would be to allow the permitting

authority to determine what constitutes a significant expansion on a

case-by-case basis, without establishing a specific threshold level.

The Agency notes that where an existing discharger undergoes a

``significant expansion,'' only the expanded portion of the discharge

(the new loadings) would be subject to the offset requirements under 40

CFR 131.12(a)(1)(ii). For existing dischargers with a current permitted

load, the definition of a significant expansion and the amount for

which offsets are required would be based on the increase in the

permitted load.

Based on an initial analysis of potentially affected sources, EPA

believes that the cost to dischargers of using a threshold of twenty

percent to

[[Page 46063]]

define a significant expansion would not be significantly greater than

the cost of using a threshold of 50 percent. EPA requests comment on

this initial conclusion and any supporting data commenters can provide.

EPA also invites comment on how to measure a significant expansion

and to calculate the corresponding offset requirements for those

dischargers who increase the loadings of a pollutant for which the

waterbody is impaired but for which there is no current permitted load

(there is no effluent limit for that particular pollutant in the

discharger's permit). It is EPA's intent that the offset requirements

apply to new pollutant loads and in the case of an existing discharger,

``significant'' new pollutant loads.

B. What Are the Proposed Changes to the Federal Antidegradation Policy?

EPA is proposing to amend 40 CFR 131.12(a) to require a new

discharger, or an existing discharger undergoing a significant

expansion, proposing to discharge to a waterbody not attaining water

quality standards, the pollutant(s) causing the nonattainment, to

achieve reasonable further progress toward attaining water quality

standards. This requirement, in addition to otherwise applicable

requirements of the CWA, would apply where there is no EPA approved or

established Total Maximum Daily Load (TMDL). When EPA has approved or

established a TMDL, a new discharger proposing to discharge the

pollutant(s) for which the TMDL was established, may discharge only in

accordance with that TMDL or a revised, approved TMDL. It would apply

only to new dischargers and existing dischargers undergoing a

significant expansion that are not a small business or entity as

defined in 5 U.S.C. 601(6). Therefore, a new discharger or existing

discharger undergoing a significant expansion which is not a small

business or entity, would need to comply with a permit limit that

derives from and complies with water quality standards and this new

requirement for reasonable further progress. With this proposed change,

EPA intends to ensure reasonable further progress toward restoring

water quality standards in impaired waters prior to the completion of

TMDLs. EPA emphasizes that this is an interim approach to attaining

water quality standards; these requirements apply only until the TMDL

is approved or established by EPA, and the TMDL is implemented with

respect to the discharger subject to these requirements.

1. What Is the Current Federal Antidegradation Policy?

Section 303(c) of the CWA establishes the basis for federal water

quality standards. EPA regulations implementing section 303(c) are

published at 40 CFR part 131. Under these rules, the minimum elements

that must be included in a State's water quality standards include: use

designations for all waterbodies in the State, water quality criteria

sufficient to protect those use designations, and an antidegradation

policy. See 40 CFR 131.6. States may also include in their standards,

policies generally affecting the standards' application and

implementation. See 40 CFR 131.13. These policies are subject to EPA

review and approval.

The current federal antidegradation policy performs an essential

function in protecting and maintaining water quality. Designated uses

establish the water quality goals for the waterbody, water quality

criteria define the minimum conditions necessary to achieve those goals

and the antidegradation policy specifies the framework to be used in

making decisions regarding changes in water quality. The intent of an

antidegradation policy is to ensure that in all cases, at a minimum:

(1) Water quality necessary to support existing uses is maintained

(Tier 1); (2) that where water quality is better than the minimum level

necessary to support protection and propagation of fish, shellfish and

wildlife, and recreation in and on the water (``fishable/swimmable''),

that water quality is also maintained and protected unless, through a

public process, some lowering of water quality is deemed to be

necessary to allow important economic or social development to occur

(Tier 2); and (3) where waterbodies are of exceptional recreational or

ecological significance, water quality is maintained and protected

(Tier 3). Antidegradation plays a critical role in allowing States and

Tribes to maintain and protect the finite public resource of clean

water and ensure that decisions to allow reductions in water quality

are made in a public manner and serve the public good. States and

authorized Tribes are required to adopt antidegradation policies at

least as stringent as the federal antidegradation policy.

Section 131.12(a) of the antidegradation policy, contained in the

federal water quality standards regulation, requires that existing uses

and the water quality necessary to protect them be maintained and

protected. This provision, in effect, establishes the floor of water

quality for all waters of the U.S., and that all waters of the U.S. are

subject to Tier 1 protection. In general, waters that are subject only

to Tier 1 antidegradation policies are those waterbodies that do not

exceed the CWA section 101(a) goals. These waters either do not have

any remaining assimilative capacity to receive additional loads of

pollutants without causing the loss of the existing use or the water

quality already is degraded below that necessary to maintain an

existing use. ``Existing uses'' are defined at 40 CFR 131.3(c) as those

uses actually attained in the waterbody on or after November 28, 1975,

whether or not they are included in the water quality standards.

Antidegradation policies are generally implemented for Tier 1 by

reviewing and determining whether a discharge would impair an existing

use. Tier 1 currently requires that water quality necessary to protect

existing uses shall be maintained and protected. In addition, the State

or Tribe should ensure that all existing uses are designated in

accordance with 40 CFR 131.10(i).

2. What Were the Recommendations of the TMDL Federal Advisory

Committee?

The Federal Advisory Committee on the Total Maximum Daily Load

Program recommended a number of ways to improve the effectiveness and

efficiency of EPA, State, Territorial and Tribal programs under section

303(d) of the CWA. These recommendations address many of the TMDL

program's complex technical and policy issues, and include

recommendations on several new policy and program directions. In

particular, the Committee recognized that there could be a considerable

time lag between the initial listing of a waterbody on a section 303(d)

list of impaired or threatened waters and the actual completion,

approval and implementation of the TMDL. Some on the Committee noted

that water quality should not be allowed to further degrade during that

time period. The Committee recommended that EPA actively encourage and

support stakeholders stabilizing and enhancing water quality before a

TMDL is in place (Committee Report at page 17). The Committee noted

that the most successful stakeholder efforts would lead to the full

restoration of water quality and attainment of water quality standards

and ultimately the water's removal from the section 303(d) list before

a TMDL is developed. The Committee recommended an optional

stabilization plan that would identify mechanisms that might allow for

[[Page 46064]]

exceptions from point source discharge restrictions upon demonstration

that the optional stabilization plan results in parameter specific net

progress in water quality through means other than those restrictions.

EPA believes that further degradation of already impaired

waterbodies must be prevented and also recognizes the need for progress

toward attaining water quality standards in this interim period.

Therefore, EPA believes that by creating a new requirement under the

federal antidegradation policy as reflected in today's proposal, not

only will further degradation of water quality be prevented, but

reasonable further progress towards restoring water quality standards

will be achieved.

3. What Revisions Is EPA Proposing Today?

i. Why Is EPA Proposing to Require Dischargers Subject to This

Proposal to Achieve Reasonable Further Progress Toward Attaining Water

Quality Standards?

Water quality standards serve as the foundation for the water-

quality based approach to pollution control and are a fundamental

component of watershed protection. Under the Clean Water Act, States,

Territories and authorized Tribes adopt water quality standards to

protect public health or welfare, enhance the quality of the nation's

water and serve the purposes of the Act. A primary objective of the Act

is to ``restore and maintain the chemical, physical and biological

integrity of the Nation's waters.'' CWA section 101(a). To date, EPA's

implementing regulations at 40 CFR 131 have addressed the mandate for

restoring the nation's waters through the specification of designated

uses. Designated uses are defined as those uses specified for each

waterbody or segment, whether or not those uses are being attained.

Designated uses focus on the attainable condition of the waterbody, in

contrast to existing uses which focus on the past or present condition

of the waterbody. It is through the designation of uses that the

environmental goals for specific waterbodies are established. States,

Territories and authorized Tribes have the flexibility to establish

goals for waters that require improvements in water quality, thus

establishing a requirement for restoration. Today's proposal

supplements the restoration provisions of the current regulations. By

establishing the requirement for reasonable further progress as a

component of the federal antidegradation policy, EPA believes the

objectives of the Act will be advanced.

Prior to today's proposal, Tier 1 of the federal antidegradation

policy has been aimed at protecting and maintaining existing uses of

waterbodies. EPA believes extending the protection of existing uses to

include a provision aimed at promoting reasonable further progress

toward restoring water quality in impaired waterbodies is both

consistent with the goals of the Act, and is a logical means for

meeting those goals.

The Agency's policy choice is supported by the Act's legislative

history. The Senate Report states:

In those waterbodies which are not pristine, it should be the

national policy to take those steps which will result in change

toward the pristine state in which the physical, chemical and

biological integrity of the waterbody can be said to exist. Striving

toward, and maintaining the pristine state is an objective which

minimizes the burden to man in maintaining a healthy environment,

and which will provide for a stable biosphere that is essential to

the well-being of human society. S. Rep. No. 92-414, 92d Cong. 1st.

Sess. at 76-77 (1971).

Establishing a requirement for reasonable further progress will result

in improvements in water quality and progress toward attaining water

quality standards, pending the establishment, approval and

implementation of the TMDL.

Today, EPA is proposing to require large new and significantly

expanding dischargers proposing to discharge to nonattained waterbodies

to achieve reasonable further progress toward attaining water quality

standards before discharging additional loadings of the pollutant

causing the nonattainment. In effect, certain dischargers will be

required to show net progress toward improving water quality as a

condition of being authorized to discharge to a nonattained waterbody.

EPA believes this proposal is consistent with the recommendations of

the Federal Advisory Committee on the Total Maximum Daily Load Program,

and the approach chosen by the Agency when faced with the need to

address a similar problem under the Clean Air Act.

a. How Does This Relate to the TMDL Federal Advisory Committee's

Recommendations?

As noted above, the Committee recommended that EPA actively

encourage and support stakeholders stabilizing and enhancing water

quality before a TMDL is in place. While EPA is not adopting all of the

Committee's recommendations, the Agency believes that progress toward

the section 101(a) goals of the Act should occur before allowing some

new and significantly expanding dischargers to add new loads of the

pollutant causing the nonattainment to an impaired waterbody.

b. Has This Approach Been Used in Other Statutes?

Just as the Clean Water Act establishes the goal to ``* * * restore

and maintain the chemical, physical and biological integrity of the

Nation's waters,'' the Clean Air Act declares its purpose is ``to

protect and enhance the quality of the Nation's air resources so as to

promote the public health and welfare and the productive capacity of

its population.'' CAA section101(b)(1). Given these similar goals, the

actions and reasoning of the Agency and Congress in dealing with areas

which are not meeting air quality standards can serve to guide EPA's

policy choices when dealing with waterbodies which are not attaining

water quality standards.

In 1970, the Clean Air Act required generally, that State programs

had to ensure that new sources did not interfere with the attainment of

national ambient air quality standards (NAAQS). In 1976, EPA issued an

interpretive ruling on the preconstruction review requirements for

major new stationary sources proposing to locate in an area that

exceeded a NAAQS. Given a standard and an area not in attainment with a

standard, the Agency believed that it was reasonable to allow a new

addition of the pollutant causing the nonattainment only if the new

source ensured that reasonable progress was made toward meeting that

standard. 41 FR 55524. Congress agreed that EPA's requirement was

reasonable. As a result, Congress clarified in the Clean Air Act

Amendments of 1977 that, in general, a new permit to construct and

operate a new major stationary source or a major modification to an

existing source proposing to emit the pollutant of concern in a

nonattainment area may only be issued if reasonable further progress

toward attainment of the NAAQS was made and the source met the most

stringent emissions limits. CAA section 173.

Given the similar statutory goals and the similar circumstances,

EPA again believes it would be reasonable to require new and

significantly expanding existing dischargers proposing to discharge

additional loads of the pollutant(s) causing the nonattainment of water

quality standards to ensure that progress is made toward attainment of

the standards in the future. EPA believes that establishing a similar

requirement for reasonable further progress as a component of the

federal antidegradation policy is the best way to meet the goals of the

Clean Water Act

[[Page 46065]]

when faced with new and significantly expanding existing dischargers

wishing to locate on impaired waterbodies.

EPA invites comments on this proposed change to Tier 1 of the

federal antidegradation policy. EPA also invites comment on whether

some other approach could serve as an appropriate means to ensure

reasonable further progress toward restoring water quality standards in

the interim period between listing of waterbodies under CWA section

303(d), and the establishment, approval and implementation of the TMDL.

ii. How is EPA Proposing to Define Reasonable Further Progress?

As stated above, EPA is proposing to require reasonable further

progress as a means of achieving the objectives of the Clean Water Act.

EPA is also today proposing a definition of reasonable further progress

for some new and existing dischargers. EPA believes reasonable further

progress is best achieved by offsetting any new loading of the

pollutant of concern to an impaired waterbody by reducing loads of the

same pollutant from existing sources located on the same waterbody. EPA

further believes that an offset of at least one and a half to one is

generally appropriate as means of ensuring reasonable further progress.

Offsets are not only the most feasible means to achieve reasonable

further progress for new and significantly expanding dischargers, they

are a logical means to actually achieve such progress. Further, they

are a means the Agency has chosen in similar circumstances.

EPA is thus proposing that, in general, pollutant load reductions

must be one and a half times the new loads of the pollutant to the

waterbody (see discussion below). Under such a requirement, reasonable

further progress toward meeting the applicable water quality standard

would be achieved because the total load of the pollutant to the

waterbody is reduced. An added benefit of requiring offsets as the

means for achieving reasonable further progress is that the requirement

creates an incentive for pollution prevention. A discharger subject to

the requirement can reduce the burden of finding sufficient offsets by

reducing the amount of pollutant(s) the discharger is proposing to add

to the impaired waterbody.

EPA also believes that this proposed requirement will serve as a

catalyst for the establishment of a trading market between large new

dischargers and existing dischargers undergoing a significant

expansion, and existing point source dischargers or nonpoint sources.

(See discussion below). EPA believes that the establishment of a

trading market will give dischargers more options to achieve any future

permit limits required by TMDLs more efficiently.

a. Has Reasonable Further Progress Been Defined Under Other

Statutes?

In 1977, Congress amended the Clean Air Act and adopted the general

requirements for a new permit to construct and operate a new major

stationary source or a major modification to an existing source

proposing to emit the pollutant of concern in a nonattainment area.

Such permits may be issued if, by the time the source begins operating,

sufficient offsetting emissions reductions have been attained such that

the total emissions in the area will be sufficiently less than the

emissions from existing sources prior to the application for a new

permit so as to represent reasonable further progress. CAA section 173.

The term ``reasonable further progress'' was defined as ``such annual

incremental reductions in emissions of the relevant air pollutant as

are required by this part or may be reasonably required by the

Administrator for the purpose of ensuring attainment of the applicable

national ambient air quality standards by the applicable date.'' CAA

section 171(1). Congress adopted this new provision ``to allow

reasonable economic growth to continue in an area while making

reasonable further progress to assure attainment of the standards by a

fixed date. * * *'' 95 Cong. House Report 294 at *211.

EPA believes that the Agency's experiences under the Clean Air Act

serve as a useful guide for its policy choices with respect to

treatment of new loads of pollutants to impaired waterbodies under the

Clean Water Act. EPA's proposals today are, therefore, similarly

designed to allow continued growth in areas which are not meeting water

quality standards while ensuring that progress toward meeting water

quality standards is not halted or reversed.

iii. What Offsets Would Affected Dischargers Need to Obtain to

Ensure Reasonable Further Progress?

EPA is proposing to require that large new and significantly

expanding dischargers obtain and maintain offsets, i.e., pollutant load

reductions, in general, in the amount of one and a half to one. In

other words, these dischargers would need to obtain and maintain an

offset of least of one and a half times the amount of the new or

additional pollutant loadings they are proposing to discharge. The

specific requirements for an individual discharger would be dependent

upon the type of pollutant for which the waterbody is impaired (which

is also the pollutant the discharger is proposing to discharge), the

source from which the discharger is proposing to obtain and maintain

the offsetting load reductions, and the large new or significantly

expanding discharger itself. In addition, EPA is proposing specific

permitting requirements to implement this offset requirement. (See

discussion below).

In considering the amount by which a proposed discharge should be

offset, EPA considered the burdens associated with achieving the

necessary pollutant load reductions. Based upon the Agency's analysis

of the costs, discussed below in section VI. A, EPA believes that in

most cases an offset in the amount of one and a half times the proposed

discharge is both reasonable and achievable.

a. Could Offsets Be Obtained From Existing Nonpoint Sources?

EPA believes further that this proposed requirement will result in

load reductions from sources that EPA and States authorized to

administer the NPDES program can not regulate under the NPDES program.

Under today's proposal, large new or significantly expanding

dischargers would need to obtain and maintain pollutant load reductions

to compensate for their proposed increases in pollutant loads. These

reductions would need to be obtained from existing point source

discharger(s) or nonpoint sources located on the same waterbody as the

discharge from the new discharger or existing discharger undergoing a

significant expansion. EPA believes the ability to obtain offsets from

nonpoint sources, in addition to point source dischargers, is a crucial

element in ensuring reasonable further progress toward restoring water

quality pending the completion of a TMDL. Nonpoint sources, in some

areas, are significant contributors of pollutants to waters of the

United States, and high pollutant levels persist in many waterbodies.

Furthermore, in many cases it is more cost effective to obtain

significant reductions from non-point sources than to impose more

stringent limitations on point sources.

b. Could the Director Vary the Amount of the Offset?

Today's proposal generally requires that the amount of the proposed

discharge be offset by pollutant load reductions of one and a half

times the increase in mass loadings. The amount of the offset however,

could be varied, at the discretion of the Director. The Director may

determine that an offset greater than one and a half times the proposed

discharge is necessary in order

[[Page 46066]]

to ensure reasonable further progress toward restoring water quality

standards. The Director may also determine that an offset less than one

and a half times, but at least more than, the amount of the proposed

discharge will ensure reasonable further progress. Each of these cases

is discussed below.

EPA recognizes the potential for a significant amount of

uncertainty in both obtaining and maintaining the pollutant load

reductions, depending on the source of the reductions. For example, if

the discharger enters into an agreement with an existing point source,

the discharger would be presumed to have an offset requirement of one

and a half times the amount of the proposed discharge. However, when

entering into an agreement with a nonpoint source, it may be somewhat

more difficult to determine exactly how much reduction will be achieved

and whether the reductions would be maintained over time, due to the

uncertainties regarding the effects of management practices designed to

reduce loads from nonpoint sources. In addition, since nonpoint sources

are not subject to an NPDES permit, the permitting authority may have

less ability to ensure that offsets are implemented and maintained. EPA

notes however that many States have additional authorities beyond those

specified in the CWA, to implement load reductions from nonpoint

sources.

The location of the offsetting source(s) within the impaired

waterbody may also impact the potential for achieving reasonable

further progress in attaining water quality standards. If the source(s)

of the offsetting pollutant load reductions are located at the margins

of the impaired waterbody, the overall impact of the pollutant load

reductions in terms of attaining water quality standards is more

difficult to determine. In such cases, the Director may require that a

greater amount of reductions must be realized and require an offset

greater than one and a half to one. Specifically, the final offset may

be determined by factors such as how great a pollutant load reduction

the offsetting source(s) would actually be able to realize; the

likelihood that the offsetting source(s) will be able to maintain the

offset; and the location of the offsetting source(s) within the

impaired waterbody.

EPA believes allowing the Director the discretion to require an

offset greater than one and a half times the amount the discharger is

proposing to discharge is appropriate in order to compensate for

uncertainties associated with obtaining load reductions from offsetting

sources. EPA also believes this discretion is appropriate to account

for other factors which may include the type of pollutant and the

degree of impairment of the waterbody.

EPA also recognizes that situations may exist where offsets of one

and a half times the proposed discharge are difficult to obtain, such

that an offset of less than one and a half to one (but greater than one

to one) may satisfy the requirement for reasonable further progress.

For example, there may only be a few other sources of the pollutant

causing the impairment, the other sources may discharge a very limited

amount of the pollutant, or it may be very costly to control the

discharge. While EPA believes these situations are limited in number,

allowing the Director the discretion to require an offset less than one

and a half times the proposed discharge but at least more than the

amount of the proposed discharge will still ensure reasonable further

progress toward restoring water quality standards in the interim.

To assure appropriate implementation of the offset provisions by

authorized State permitting authorities, EPA would implement its

oversight role though the permit objection provisions of CWA section

402(d) (The Agency proposes changes to the permit objection regulations

elsewhere in today's notice. Those changes involve EPA's authority to

object to expired and administratively-continued permits). Under CWA

section 402(d), EPA may object to the issuance of an NPDES permit by an

authorized State if the permit would be outside the guidelines and

requirements of the Act. If the issuance of a State NPDES permit to a

source required to obtain an offset would not result in reasonable

further progress toward attainment of water quality standards, EPA

could object to such a permit.

EPA envisions two instances when an objection might be warranted:

specifically, when the State Director would propose to issue a permit

with an offset less than 1.5 and, as discussed further on in today's

notice, when the State Director would waive the offset provision

concluding that the offset would result in further degradation of water

quality. The 1.5 offset criterion is not absolute and the Director has

discretion to require a lesser offset. The exercise of that discretion,

however, would still need to ensure reasonable further progress toward

attainment of water quality standards. If a lesser offset would not

ensure reasonable further progress, today's proposal would maintain the

Agency's authority to object to the issuance of the permit.

Today's notice does not propose changes to the regulatory text

describing the Regional Administrator's grounds for permit objections

because the Agency believes the existing regulations would provide the

bases for such objections. If the Agency were to object to a State

permit for failure to ensure reasonable further progress, the objection

would be based on 40 CFR 123.44(c)(1), (3), (4), (7) and/or (8).

Subsection (c)(1) refers to a permit that fails to apply or ensure

compliance with any applicable requirement of 40 CFR part 123. Though

the 1.5 offset criterion would not be a requirement, today's proposal

would require offsets that ensure reasonable further progress. If an

offset less than 1.5 would not ensure reasonable further progress, the

permit would fail to apply a requirement of 40 CFR part 123 (section

123.25 specifies the NPDES permitting requirements in 40 CFR part 122

that apply to State NPDES programs, including 40 CFR 122.4). Subsection

(c)(3) refers to a permit issued using procedures that fail to comply

with procedures required by the CWA, implementing regulations, or by

the Memorandum of Agreement. If a State did not adequately explain why

an offset less than 1.5 would ensure reasonable further progress, the

issuance of such a permit would not comply with applicable procedural

requirements. Subsection (c)(4) refers to a permit that misinterprets

the CWA or any guidelines or regulations or misapplies them to the

facts. Issuance of a State permit that would not ensure reasonable

further progress would misinterpret the CWA or misapply applicable

requirements. Subsection (c)(7) restates the statutory standard that

the issuance of the proposed permit could not be outside the

requirements of the CWA or implementing regulations. Finally,

subsection (c)(8) refers to the effluent limits of a permit that fails

to satisfy the requirements of 40 CFR 122.44(d) (section 122.44(d)

requires that effluent limits achieve water quality standards). The

issuance of any permit to a source required to obtain an offset would

not satisfy the requirements of 40 CFR 122.44(d) if the permit would

not ensure reasonable further progress toward attainment of water

quality standards.

While the Agency believes that changes to regulatory text are

unnecessary, EPA invites comment on whether to include an explicit

basis for objection in any final rule. The purpose of any explicit

regulatory text would be to clarify that the Agency could object to the

issuance of a State permit to a source required to obtain an offset if

the issuance would not ensure reasonable further progress toward

attainment of water quality standards.

EPA also recognizes there may be limited circumstances where

requiring

[[Page 46067]]

offsets will result in further degradation of water quality, and loss

of an existing use. Therefore, EPA is proposing that the Director also

have the discretion to not require an offset, if it is determined that

any offset would result in further degradation of water quality. Such

degradation may occur, for example, when the sole NPDES discharger,

with a low volume but high concentration of a pollutant such as

phosphorus, discharges to an ephemeral or low flow waterbody which is

currently not attaining the water quality criteria for phosphorus and

where the only other sources of phosphorus are from irrigation return

flows. If the sole discharger negotiates a reduction of irrigation

return flows to offset its phosphorus loads, it may result in increased

ambient phosphorus concentrations due to the loss of volume in the

waterbody, and further degradation of water quality. In circumstances

such as these, although limited and infrequent, EPA believes the

Director should have the discretion to waive the requirement for any

offset in order to prevent further degradation of water quality and the

loss of an existing use. For the reasons described earlier, the Agency

also proposes to retain authority to object to the issuance of a State

permit for a source required to obtain an offset if the State Director

inappropriately waived the offset requirement concluding that the

offset would result in further degradation of water quality.

Finally, the new provision at 40 CFR 131.12(a) proposes that

reasonable further progress for large new dischargers and existing

dischargers undergoing a significant expansion means, at a minimum, an

offset greater than the amount of the proposed discharge. The proposed

regulation, therefore, provides the permitting authority with the

discretion to require additional measures to attain reasonable further

progress. The permitting authority may choose to exercise this

discretion depending upon, for example, the severity of the impairment

of the waterbody, the type of pollutant, or the distance of the offsets

from the new discharge. Such additional measures could include

pollution prevention plans or conservation easements which could ensure

continued reasonable further progress. EPA invites comment on what

measures, in addition to the offset requirement, permitting authorities

should consider requiring of large new dischargers and existing

dischargers undergoing a significant expansion.

EPA believes an offset requirement of one and half times the amount

of the increased loading the discharger is proposing to discharge (with

exceptions) is appropriate and invites comment on whether a different

amount would be better suited to ensuring reasonable further progress

toward restoring water quality standards prior to the approval or

establishment by EPA of TMDLs. EPA invites comment on whether there may

be reasons, other than uncertainty, why the Director may find it

necessary to adjust the offset requirements in amounts greater than one

and half times the proposed discharge. EPA also invites comments on

whether the Director should have the discretion to allow an offset less

than one and half times the proposed discharge, but at least greater

than the amount of the proposed discharge and if so, for what reasons.

One option would be to require an offset at least equal to the amount

of the proposed discharge, but allow the Director the discretion to

determine how much progress beyond a one to one offset is necessary to

ensure reasonable further progress. Finally, EPA invites comment on

whether the Director should have the discretion to waive the

requirement for an offset if any offset would result in further

degradation of water quality. If not, for what reasons and also, if the

concurrence of EPA should be required before the Director makes such a

determination.

iv. Would the Reasonable Further Progress Requirements Apply to

Affected Dischargers Proposing to Discharge to All Waters of the U.S.?

EPA is establishing a new provision at 40 CFR 131.12(a)(1)(ii) that

requires a new discharger or existing discharger undergoing a

significant expansion discharging into a waterbody that does not meet

water quality standards, and for which EPA has not yet approved or

established a TMDL, the pollutant(s) causing the non-attainment to

achieve reasonable further progress toward attaining water quality

standards. Thus, this provision applies to a new discharger or existing

discharger undergoing a significant expansion discharging into any

waterbody of the United States that does not attain water quality

standards (as defined in 40 CFR 131). Where a waterbody receives a

thermal discharge from one or more point sources, impaired means that

the waterbody does not have or maintain a balanced indigenous

population of shellfish, fish, and wildlife. Exceedance of a narrative

criterion in a waterbody means that the waterbody does not attain water

quality standards.

v. Why is EPA Proposing to Subject Only New Dischargers and

Existing Dischargers Undergoing a Significant Expansion to These

Requirements?

EPA is proposing today to establish the offset requirement

discussed above only for large new and significantly expanding

dischargers of the pollutant of concern into an impaired waterbody. EPA

believes that this new requirement is appropriate for these dischargers

because it will enable discharges to occur in impaired waterbodies

while ensuring that progress toward attaining water quality standards

is achieved in those waterbodies. EPA believes that subjecting large

new and significantly expanded dischargers to more stringent water

quality standards is supported by the same logic which led Congress to

establish more stringent technology based requirements for new sources

under other provisions of the CWA.

Given that this offset provision would be a requirement only until

a TMDL is approved or established by EPA for a waterbody not attaining

water quality standards, it makes sense as a practical matter to apply

this requirement only to large sources which are adding new loads of

the pollutant of concern to the waterbody. Existing dischargers are

likely to be in a poorer position to bargain for offsets because they

may not have a realistic option to locate on a different waterbody.

Furthermore, it might be very disruptive to existing dischargers if

they were required to offset their discharge before a TMDL is

established only to possibly receive different permit limits and

conditions once wasteload allocations and a margin of safety are

established in a TMDL. EPA seeks to avoid these disruptions if

possible. Finally, new dischargers will be undertaking construction and

will be in a better position to modify their design so as to minimize

pollution, and thus minimize the amount of their offset.

EPA also believes that subjecting for new and significantly

expanding dischargers to these new requirements is consistent with the

CWA more generally. In its technology-based provisions, the Act

provides a higher standard (best available demonstrated technology

under new source performance standards) for new sources than for

existing sources (best available technology economically available).

Although in this regulation, EPA is addressing new dischargers and

significantly expanding dischargers rather than ``new sources,'' EPA

believes Congress' rationale for its treatment of new sources applies

equally to new dischargers and significantly expanding dischargers.

Congress chose to place more stringent technology based requirements on

new sources both to

[[Page 46068]]

prevent new water quality impairments and because imposing stricter

standards on new sources would be the most efficient means of solving

existing water quality problems. Here, the Agency is proposing to

regulate more stringently two types of dischargers which are adding new

loads of a pollutant of concern to ensure reasonable further progress

toward attaining of water quality standards.

First, consistent with other provisions in EPA regulations, EPA is

proposing to treat new dischargers more stringently than existing

dischargers. An example of such treatment is the extent to which

variances to water quality standards are available to new dischargers

when compared to existing dischargers. See 63 FR 36761. Compliance

schedules have also not been available to new dischargers to the same

extent that they are available for existing dischargers. 40 CFR 122.47.

EPA is proposing to further develop this differential treatment of new

dischargers by creating new provisions at 40 CFR 122.4(j) and

131.12(a)(1)(ii). These provisions together will subject new and

significantly expanding dischargers proposing to discharge into

impaired waterbodies to the new requirements outlined but not existing

dischargers under the same or similar circumstances.

Second, EPA also believes that it is appropriate to extend these

requirements to significant expansions of existing discharges due to

the similar impacts which occur as a result of significant new

pollutant loads. EPA believes this is consistent with the general

approach of the CWA to prevent new water quality pollution problems.

Although these sources are existing sources, their ``significant

expansions'' will have the same or similar effect with respect to

creating new water quality impairments as the truly new source.

Undertaking a significant expansion may provide certain opportunities

for a discharger to achieve efficiencies in solving water pollution

problems, similar to the opportunities available to new sources. EPA's

proposed definition of ``significant expansion'' is discussed above

(see Section A5).

EPA invites comments on whether the requirement for offsets should

apply to both new and significantly expanding dischargers, and reasons

why the requirement should apply to one class of discharger versus

another.

vi. Would All New Dischargers and Existing Dischargers Undergoing a

Significant Expansion Be Subject to These Proposed Requirements?

EPA is proposing today to subject only those new and significantly

expanded dischargers not meeting the definition of a small entity under

the Regulatory Flexibility Act (see 5 U.S.C. 601(6)) to the offset

requirements of this rule. The Regulatory Flexibility Act (``RFA'')

states that the term ``small business'' has the same meaning as the

term ``small business concern'' under section 3 of the Small Business

Act (SBA). This meaning holds unless an agency, after consultation with

the Office of Advocacy of the Small Business Administration and after

opportunity for public comment, establishes one or more definitions of

such term which are appropriate to the activities of the agency and

publishes such definition(s) in the Federal Register. 5 U.S.C. 601(3).

EPA has not proposed to establish a different definition of the term

for this proposed rule.

The SBA defines ``small-business concern'' as one which is

independently owned and operated and which is not dominant in its field

of operation. 15 U.S.C. 632. Pursuant to the SBA, the Small Business

Administration has specified additional detailed definitions or

standards by which a business concern may be determined to be a small

business concern. Also under the RFA, the term ``small organization''

means any not-for-profit enterprise which is independently owned and

operated and is not dominant in its field. This meaning holds unless an

agency establishes, after opportunity for public comment, one or more

definitions of such term which are appropriate to the activities of the

agency and publishes such definition(s) in the Federal Register. 5

U.S.C. 601(4). The term ``small governmental jurisdiction'' means

governments of cities, counties, towns, townships, villages, school

districts, or special districts, with a population of less than fifty

thousand. This meaning also holds unless an agency establishes, after

opportunity for public comment, one or more definitions of such term

which are appropriate to the activities of the agency and which are

based on such factors as location in rural or sparsely populated areas

or limited revenues due to the population of such jurisdiction, and

publishes such definition(s) in the Federal Register. 5 U.S.C. 601(5).

Again, EPA has not proposed alternative definitions for purposes of

this rule. Finally, the term ``small entity'' has the same meaning as

the terms ``small business'', ``small organization'' and ``small

governmental jurisdiction'' defined in the RFA. 5 U.S.C. 601(6).

EPA is proposing to limit the scope of this new provision because

it is a new requirement which is needed only in the interim before

TMDLs are approved or established by EPA. Also, such narrowed coverage

is more likely to ensure development of a successful market for

pollutant trading.

In today's proposal, EPA is requiring large (i.e., not meeting the

definition of a small entity under the Regulatory Flexibility Act (see

5 U.S.C. 601(6)) new and significantly expanding dischargers to offset

any increase in mass loadings. EPA believes this is an important step

toward achieving the CWA goal to ``* * * restore and maintain the

chemical, physical and biological integrity of the Nation's waters.''

Section 101(a). In exercising its discretion to impose this new

requirement on large dischargers, EPA notes that all dischargers will

continue to need permit limits that derive from and comply with water

quality standards (see 40 CFR 122.44(d)). In evaluating the significant

number of the nation's waters on State section 303(d) lists, and the

amount of time necessary for States to establish and implement TMDLs,

EPA concluded that in the interim period before a TMDL is approved or

established by EPA, it is necessary to establish a new requirement in

an effort to ensure reasonable further progress toward attaining water

quality standards, consistent with the goals of the Act. The

requirement is thus, both incremental and interim, and at this time EPA

is choosing to impose it only on those dischargers the Agency believes

are in the best position to achieve offsets.

a. How Would This Proposal Facilitate the Establishment of Trading

Markets?

In developing these revisions to the federal antidegradation

policy, EPA considered the most likely approach by which to establish a

trading mechanism between new and existing dischargers undergoing a

significant expansion, and existing sources of pollutants. In effect,

EPA is seeking to establish a market for pollutant trading, in the

hopes of creating more effective and efficient mechanisms for restoring

water quality. EPA believes that requiring offsets from facilities

which are not small entities, as defined by the Regulatory Flexibility

Act, will focus the initiation of such a market on those entities which

have the greatest likelihood of securing offsets. Large dischargers are

more likely to have access to data and information, both environmental

and economic, that can be used in identifying, analyzing and allocating

offsets. Large dischargers are also more likely to have the resources

to devote to negotiating offsets with other entities.

[[Page 46069]]

EPA recognizes that establishing the framework for such a market in

pollutant trading presents many challenges. Nonetheless, EPA believes

that creating the offset requirement would provide a valuable mechanism

for ensuring reasonable progress toward attaining water quality

standards. EPA believes the expenditure of resources to establish a

market in pollutant trading will be compensated for by such factors as

reduced overall costs in meeting water quality standards, the ability

to locate a new enterprise or expand an existing enterprise, and

increased flexibility in designing pollution control systems. Such a

market, once established, would also provide other, more efficient

opportunities for improving water quality, as States and Tribes

implement watershed protection programs. EPA has developed draft

guidance on how to conduct watershed-based trading which addresses the

benefits and types of trades and how trading can be implemented to

attain and maintain water quality standards. Draft Framework for

Watershed-based Trading, EPA 800-R-96-001, May, 1996.

Trading in pollutant discharges is not a retreat from the CWA

goals. It can be a more efficient, market driven approach to meeting

these goals. EPA supports only trades that meet CWA requirements.

Through trading, EPA seeks to encourage innovative approaches and the

flexibility to implement load reductions in ways that maximize water

quality improvements and minimize costs. In allowing offsets as the

means to ensure reasonable further progress toward attaining the water

quality standard, EPA is seeking to generate environmental benefits in

the most cost-effective manner.

EPA invites comments on whether the requirement for offsets as a

means of ensuring reasonable further progress should be limited to

entities which are not small entities as defined by the Regulatory

Flexibility Act. EPA also invites comments on extending this

requirement to other entities which may be small entities under SBREFA.

C. How Would EPA Ensure Any Needed Changes to the Antidegradation

Policies in State, Territorial and Tribal Water Quality Standards?

With this notice of proposed rulemaking, EPA is initiating

development of Federal water quality standards pursuant to section

303(c)(4)(B) of the CWA. EPA intends to promulgate, as the EPA

Administrator determines necessary, Federal water quality standards for

any State, Territory or Tribe which does not adopt or already have in

place water quality standards which include provisions consistent with

40 CFR 131.12(a)(1)(ii) as ultimately promulgated. EPA believes such a

Federal promulgation could be necessary to ensure consistent,

nationwide application of any final provisions of 40 CFR

131.12(a)(1)(ii) in the period before the establishment of TMDLs for

waterbodies that do not meet water quality standards. EPA is today

providing notice of the Agency's intent for the Administrator to make a

determination whether a Federal promulgation is necessary for any

State, Tribe or Territory. EPA will delay this determination to allow

States, Territories and Tribes the opportunity to adopt their own water

quality standards. Any State, Territory or Tribe which expeditiously

acts to adopt standards consistent with the Agency's final promulgation

of this section would not be included in the proposed Federal water

quality standards. Further, EPA would initiate withdrawal of any

Federal promulgation for a State, Territory or Tribe that adopts

standards consistent with 40 CFR 131.12(a)(1)(ii).

EPA acknowledges that many States, Territories and Tribes may face

difficulties in completing adoption of water quality standards in the

time frame envisioned by the Agency. Nonetheless, EPA believes it is

important to have this mechanism firmly established in State,

Territorial or Tribal water quality standards in order to ensure

reasonable further progress toward restoring designated uses in the

period of time prior to the completion of TMDLs. This requirement would

only apply prior to the establishment and implementation of the TMDL

for a waterbody not meeting water quality standards.

D. How Would These Changes Be Implemented Through NPDES Permits?

New dischargers or existing dischargers undergoing a significant

expansion are required, under 40 CFR 122.4(i), to have permit limits or

conditions that ensure that they will not cause or contribute to a

violation of water quality standards. A new discharger or an existing

discharger undergoing a significant expansion required to offset their

proposed discharge pursuant to 40 CFR 131.12(a)(1)(ii), would also be

subject to additional requirements relating to the mechanics of

obtaining and maintaining an offset. EPA believes that these

additional, new requirements are necessary to ensure that the offsets

will in fact be realized. Each of these requirements are specified in a

new section 40 CFR122.4(j)(2), and explained in detail below.

1. Must the New or Significantly Expanding Discharger Obtain an Offset

of the Same Pollutant(s) the New or Significantly Expanding Discharger

Would Be Required To Offset?

Proposed 40 CFR 122.4(j)(2)(i) would require the discharger seeking

an offset to obtain the pollutant load reductions from one or more

sources of the pollutant(s) for which the waterbody is impaired. This

pollutant(s) must also be the same pollutant(s) the new or existing

discharger undergoing a significant expansion would be required to

offset. For example, the waterbody may be impaired by both copper and

lead. If a new discharger wishes to discharge copper (and not lead),

the discharger must obtain the requisite amount of pollutant load

reductions from a source(s) that is currently discharging copper into

the waterbody.

EPA recognizes that there may be circumstances where reasonable

further progress toward attaining water quality standards could best be

served by allowing the Director the discretion to offset a new or

expanded discharge of one pollutant with a load reduction of a

different pollutant for which the waterbody is also impaired. EPA,

however, is concerned with the technical difficulties of implementing

such an option and therefore, is not proposing it. EPA requests comment

on the possibility of allowing such discretion and on how the technical

difficulty of determining an appropriate offset for a different

pollutant could be resolved.

2. From What Geographic Area Would the Pollutant Load Reductions Need

To Be Obtained?

Proposed 40 CFR 122.4(j)(2)(ii) would require the discharger to

obtain the pollutant load reductions from one or more sources located

on the same waterbody as the discharge from the new discharger or

existing discharger undergoing a significant expansion. To determine if

a source(s) is located on the same waterbody, for purposes of obtaining

an offset under 40 CFR 131.12(a)(1)(ii), there would need to be a

direct hydrological connection between two sources. For example, there

must be a direct hydrologic connection between the outfall of the

existing point source where the reductions are realized and the outfall

of the proposed discharge.

States should be able to assist in the determination of whether a

source is located on the same waterbody. States often identify their

waters and assign waterbody identification numbers to specific

hydrologic units, often called

[[Page 46070]]

segments. States are also required to identify all waterbodies not

attaining water quality standards for the purposes of establishing a

TMDL. For the purposes of section 303(d) listing, a waterbody pollutant

combination will have a unique identifier so that the status of each

listed waterbody can be tracked over time. States often delineate these

segments based on hydrologic features, such as the presence of a dam,

the confluence of two rivers, or gradations of salinity in an estuary.

If a source is located on a waterbody with the same identification

number, this would be a good indication that it is located on the same

waterbody for purposes of obtaining an offset. EPA invites comment on

other conditions that would identify whether a source is located on the

same waterbody. EPA believes this requirement is reasonable, as is 40

CFR 122.4(j)(2)(i), because it ensures that the results from the offset

will be effective in benefitting waterbodies not attaining water

quality standards for a particular pollutant(s).

EPA intends the offset to result in reasonable further progress

toward attaining water quality standards. The most appropriate

hydrologic unit, and therefore geographic area within the same

waterbody, depends on site-specific hydrologic conditions such as water

chemistry, ecological parameters, and the location, number and types of

sources already discharging to that waterbody. An offset can be

obtained from a source located downstream from the new or significantly

expanding discharger provided that source is discharging to the same

body of water. An offset would not be appropriate if obtained outside

of the impaired waterbody in which the new or significantly expanded

discharger is located. EPA would also like comment on whether sources

providing pollutant load reductions for offsets, should be located only

upstream of the new or significantly expanding source.

EPA recognizes that air deposition contributes to some of the water

quality problems that exist today. EPA is considering whether to allow

an offset from an air pollution source emitting the same pollutant the

new or significantly expanded discharger is proposing to discharge. EPA

would consider this only where the air pollution source directly

affects the waterbody in the vicinity of the new or significantly

expanded discharge. EPA invites comment on how some of the additional

requirements related to obtaining an offset would be met if EPA allowed

dischargers to obtain offsets from an air pollution source(s). In

particular, EPA invites comment on whether the requirement in 40 CFR

122.4(j)(2)(v) (discussed below) to modify an offsetting source's NPDES

permit to reflect the required reductions should be expanded to require

permit modifications when offsets are obtained from permitted air

pollution sources. 40 CFR 122.4(j)(2)(v) would require the permit

regulating the source from which the offset is obtained to be modified

to reflect the pollutant load reductions.

3. Could the Pollutant Load Reductions Come From a Source With Existing

Requirements To Reduce its Loads?

Proposed 40 CFR 122.4(j)(2)(iii) would require that the pollutant

load reductions be the result of pollutant control measures implemented

by, or secured and assured by, the new discharger or existing

discharger undergoing a significant expansion. To satisfy this

requirement, the discharger must obtain the reductions from one or more

sources discharging the pollutant(s) of concern to the same waterbody.

If the discharger wishes to obtain the reductions from another source

in the same waterbody, the pollutant control measures must be the

result of an entirely new agreement and/or requirement for the

offsetting source. In other words, if the offsetting source, for any

reason other than to satisfy the proposed discharger's offset

requirements, was already required to construct or install the

pollutant control measures, the proposed discharger could not receive

credit for the resulting reductions. EPA believes this requirement is

reasonable because the load reductions would be a new requirement on

the offsetting source intended to result in reasonable further progress

toward attaining water quality standards where such progress was not

otherwise required.

4. When Would the Pollutant Load Reductions Need To Be Obtained?

Proposed 40 CFR 122.4(j)(2)(iv) would require the discharger to

achieve the pollutant load reductions on or before the date the new or

significantly expanding discharger begins to discharge. For reductions

to be achieved on or before the discharger begins to discharge, the

pollutant control measures would have to be in place. The discharger

would also need to satisfy any requirements that the Director

determined were necessary to demonstrate that the pollutant control

measures were in place and the requisite amount of pollutant load

reductions are and will continue to be realized. Such requirements

might include sampling, either at the discharge point or instream, and

reporting the results of those samples both before and after the

pollutant control measures were put in place. The results would need to

show that the requisite amount of pollutant load reductions are and

will continue to be realized. EPA invites comment on other ways the

discharger may make this demonstration.

EPA is also proposing to give the Director the discretion to not

require that the pollutant load reductions be obtained on or before the

date the discharge commences. The Director would have this discretion

in circumstances where the Director determines that a different time

frame for obtaining and maintaining the offset would best serve the

goal of reasonable further progress toward attaining water quality

standards. One example of such circumstances is where it is not

possible for the new or significantly expanding discharger to

demonstrate that the pollutant load reductions are being realized on or

before the date the discharge commences. An example of such a case is

where the source of the offset involves a reforestation effort. In this

instance, it will take time to produce reduction results because of the

time required for trees and/or shrubs for example, to grow.

In exchange for not requiring that the offsets be achieved on or

before the date the discharge commences, the Director must require that

the discharger obtain pollutant load reductions by an amount of at

least twice the amount of the new or expanded discharge. The Agency

believes this requirement is reasonable because in exchange for the

degree of uncertainty involved in whether the pollutant load reductions

will in fact be realized, the discharger will be able to discharge

prior to obtaining the reductions. In addition, it ensures that the

Director's discretion will be exercised in a way that best serves the

goal of reasonable further progress toward attaining water quality

standards.

Also, to provide assurances that the offsets will be achieved there

would need to be an enforceable and defined schedule with milestones

identified and sufficiently laid out in the proposed discharger's

permit. The use of this discretion would not be permitted in instances

where the TMDL is scheduled to be established before the offset is

fully realized. EPA invites comment on this aspect of the proposal

including whether the Agency should provide for these exceptions to the

requirement that the pollutant load reductions be achieved on or before

the date the discharge commences.

[[Page 46071]]

5. How Long Would the Pollutant Load Reductions Need To Be Maintained?

Reductions would also need to be maintained until the TMDL for the

waterbody is approved or established by EPA or until the new or

significantly expanding discharger ceases to discharge. Where a TMDL

has been approved or established by EPA, the new or significantly

expanding discharger would need to maintain the reductions until its

permit contained effluent limits or conditions consistent with its WLA

in the TMDL. To maintain the reductions, regular monitoring reports

would need to be submitted to ensure their continued achievement.

Depending on the source(s) from which the discharger is obtaining the

reductions (see discussion below under sections D6 and D7), the reports

might be submitted by either the discharger or the offsetting

source(s). The permitting authority would determine the appropriate

number of samples and how often monitoring reports would need to be

submitted. The Agency emphasizes that it is not sufficient for the TMDL

to be approved or established by EPA; the new or significantly

expanding discharger would also need to have limits or conditions in

its NPDES permit that reflect its WLA in the TMDL. At that point, the

discharger's WLA under the TMDL would supercede the offset

requirements.

Also, if the discharger stops discharging prior to the time a TMDL

for the waterbody is approved or established, the discharger would no

longer be required to maintain the reductions. For example, if a new

construction operation is expected to last eight months and the TMDL

will not be established for six years, the new discharger (construction

operation) need only maintain the reductions for the time in which the

discharge from the operation is ongoing (eight months).

EPA believes this requirement is reasonable because the offset is a

condition of being permitted to discharge. Therefore, it should be in

place on or before the discharger starts to discharge, unless this

requirement is modified by the Director under 40 CFR

122.4(j)(2)(iv)(B), and remain in place until the discharger either

stops discharging or until the TMDL is established and implemented with

respect to that discharger. Again, EPA intends that this requirement be

an interim measure and notes that the TMDL process is the appropriate

means of determining WLA/LAs that are necessary to attain and maintain

water quality standards. EPA does, however, invite comment on requiring

the offset to be maintained indefinitely (before and after the TMDL is

established). Requiring the offset to be maintained both before and

after the TMDL would prevent reintroducing pollutants to a waterbody

where they have already been removed, although this issue should be

addressed in the development of the TMDL itself.

6. What Would Be Required When the Source of the Offset Is an Existing

Point Source?

Proposed 40 CFR 122.4(j)(2)(v) would require that where a

discharger obtains pollutant load reductions from an existing point

source(s), as defined in the CWA, that existing point source(s)'s NPDES

permit would need to be modified to reflect the reductions. The

permitting authority would also need to consider the need for any

additional monitoring and reporting requirements to ensure that the

reductions are being maintained. This modification would need to take

place on or before the date the new permit is issued to the proposed

discharger. EPA believes this requirement is reasonable because

requiring that the permit for the existing point source(s) be modified

to reflect the reductions creates a level of accountability. This

accountability stems from the reductions being contained as permit

limits in an enforceable permit. If the existing point source(s)'s

discharge monitoring reports do not show that the reductions are being

realized, the point source(s) would not be in compliance with its

permit and thus, would be subject to an enforcement action.

The Agency again, notes that because the existing point source(s)'s

permit would be modified to reflect the reductions, the offset

requirement would be accounted for as a result of that modification.

Therefore, it would not be necessary to incorporate the offset

requirements in the new or significantly expanding discharger's permit.

The Agency recognizes that there may be additional costs and delays

associated with modifying the offsetting source's permit to reflect the

reductions and therefore, requests comment on suggestions for a

streamlined approach to accounting for the offset requirements. In

particular, the Agency invites comment on incorporating the offset

requirement in the new or significantly expanding discharger's permit

rather than the modifying the existing point source(s)'s permit.

Today's proposal would require the existing, offsetting point

source(s)'s permit to be modified to reflect the pollutant load

reductions on or before the date a permit is issued to the new or

significantly expanding discharger. EPA notes that there may be a time

period during which the existing offsetting point source(s)'s permit

has been modified but the proposed discharger has not yet begun

discharging. EPA expects that this time period, if any, would be short-

term. However, if there is a significant delay before the new or

significantly expanding discharger starts to discharge, one option

would be to place alternate effluent limits in the existing

discharger's permit. One limit would be applicable before the proposed

discharger starts to discharge and the other limit would be applicable

after the proposed discharger starts to discharge. EPA invites comment

on the idea of placing alternate effluent limits in the permit for the

offsetting source.

EPA also recognizes that the source from which the offset is

obtained may be discharging at levels less than their current permit

limits. In these cases, the baseline used to calculate the appropriate

reductions would be the offsetting source's actual and current loads

not their current permit limit. It is EPA's intent that the offsets

result in corresponding reductions in actual loads despite the

existence of a higher permit limit. The offsetting source's permit

would then need to be modified to reflect the corresponding reductions

in actual loads. This does not necessarily mean that the permit limits

would be adjusted to match the new actual load. Sources often target a

discharge level below the permitted amount in order to ensure

continuous compliance. In fact, EPA believes that well operated sources

should do this. It is likely that a source which was discharging below

its original permit limits would continue to target a discharge level

below any new permit limits designed to implement an offset. The exact

permit limits necessary to implement the offset would be determined on

a case-by-case basis by the permitting authority.

7. What Would Be Required When the Source of the Offset Is an Existing

Nonpoint Source?

Proposed 40 CFR 122.4(j)(2)(vii) would require that where a

discharger obtains pollutant load reductions from an existing nonpoint

source(s), the discharger's NPDES permit would need to contain any

conditions necessary to ensure that the load reductions from the

nonpoint source will be realized. These include such things as the

offset requirements themselves and any accompanying monitoring and

reporting requirements to ensure continued achievement of the pollutant

load

[[Page 46072]]

reductions (from the nonpoint source(s)). The Director may also wish to

establish alternate effluent limits in the permit for the new

discharger that would become effective if and when the pollutant load

reductions are not maintained. EPA invites comment on whether to

require the permitting authority to include alternate effluent limits

in the new or significantly expanded discharger's permit.

EPA believes the requirement in proposed 40 CFR 122.4(j)(2)(vi) is

reasonable for the same reasons stated above for 40 CFR 122.4(j)(2)(v).

Requiring the offset and accompanying monitoring and reporting

requirements to be placed in the proposed discharger's permit creates a

level of accountability as a result of being contained in an

enforceable permit. If the discharger's monitoring reports do not show

that the reductions are being realized or if the discharger is not in

compliance with an alternate permit limit, the discharger would not be

in compliance with its permit and would be subject to an enforcement

action. Assuming there is an enforceable contract between the new or

significantly expanding discharger and the nonpoint source (the

agreement under which the pollutant load reductions will be achieved

and maintained), in the event that there is a lack of reported

reductions which is at the fault of the nonpoint source, the discharger

should have an enforceable remedy against the nonpoint source (e.g.,

under contract law). Contract law may allow the new or significantly

expanding discharger to recover costs or other remedies they negotiated

in their agreement (any remedies the new or significantly expanding

discharger may have against the nonpoint source would be a product of

State contract law, outside of the NPDES permitting context).

8. How Would Offsets Be Obtained From Sources Seeking Coverage Under a

General Permit?

Determining whether and in what amount an offset would be required

from dischargers seeking coverage under a general permit would

necessarily differ from the same determinations for dischargers

applying for individual permits. Several issues arise with respect to

dischargers seeking coverage under a general permit when the discharge

would be to a waterbody not attaining water quality standards. The

first issue is whether and how the discharger would know if the

receiving water is one that does not meet water quality standards. Most

discharges seeking coverage under a general permit are required to

submit a notice of intent (NOI) form to claim authorization to

discharge. However, there is typically no information requested on the

NOI, other than identifying the latitude and longitude of the facility

that would help to identify the water quality status of the receiving

water. The second issue is whether the discharger and/or permitting

authority would know if the discharger's proposed effluent would

contain the pollutant(s) causing the impairment. The third issue is if

the pollutant(s) of concern is detected, how would the permitting

authority obtain the information indicating the amount of that

pollutant(s) the discharger is proposing to discharge. An NOI form

typically does not request information on the pollutant(s) expected in

the discharge. Absent any explicit information requirement for NOI

forms, it is unlikely that the discharger or permitting authority could

determine whether a discharger would be required to obtain an offset

under proposed 40 CFR 131.12(a)(1)(ii). EPA invites comment on how to

fill this information need.

i. What Options Is the Agency Considering?

One option that the Agency is considering to fill this information

need would be to amend the general permit regulations at 40 CFR

122.28(b)(2)(ii) and 40 CFR 122.28(b)(2)(v) to require the general

permit applicant to provide this additional information. Section

122.28(b)(2)(ii) discusses the contents of an NOI. For purposes of

notifying the permitting authority about the localized attainment of

water quality standards and to determine whether a proposed discharger

would be required to obtain an offset, EPA is considering whether the

following language should be included in the general permit provision:

``New dischargers or existing dischargers undergoing a

significant expansion (as defined in 40 CFR 122.2) but not those

that are small entities (as defined in 5 U.S.C. 601(6)) (see

discussion under proposed 40 CFR 131.12) must determine whether the

receiving water meets water quality standards. Operators that are

discharging or proposing to discharge to a waterbody that does not

meet water quality standards and for which a TMDL has not been

established and approved must certify that the discharge does not

add the pollutant(s) for which the waterbody is impaired.

Dischargers that do add the pollutant(s) for which the waterbody is

impaired and for which a TMDL has not been established or approved

must apply for an individual permit and are subject to the

requirements in 40 CFR 122.4(j).''

EPA notes that the Director already has authority to require a general

permit applicant to apply for and obtain an individual permit under 40

CFR 122.28(b)(3)(i).

To determine whether the receiving water is impaired, the applicant

could contact the appropriate State agency or check the State's 303(d)

list of waters not attaining water quality standards. The State may

have several ways for the public to access the information in the

303(d) list, including access via the World Wide Web.

The supplemental certification could request the applicant to

provide information on the expected contents and amount of pollutant(s)

in its proposed discharge. This type of information would assist the

applicant and the permitting authority in identifying whether the

pollutant of concern is in the proposed discharge and if it is, to

determine what, if any, offset is required. The contents of this

supplemental certification could be similar to the contents of Item V

on Form 2D but focused on the pollutant(s) for which the waterbody is

impaired. Some new applicants for EPA-issued individual permits use

NPDES application Form 2D. EPA Form 3510-2D (9/86). The permit

application regulations at 40 CFR 122.21(k)(5) (as reflected at Item V

on Form 2D) require each applicant to estimate and report data on the

pollutants that the applicant expects to discharge (per outfall).

Sampling and analysis are not required for purposes of the application

requirement. If data from such analyses are available, however, then

that data should be reported. Section 122.21(k)(5) and Parts A-C of the

application require the applicant to provide an estimate of the maximum

daily and average daily value for certain identified pollutant(s). This

estimate is based on the applicant's determination of whether a

pollutant will be present in their discharge. The applicant could base

this determination on knowledge of the proposed facility's raw

materials, maintenance chemicals, intermediate and final products,

byproducts, and any analyses, if available, of their effluent or of any

similar effluent.

Other sources upon which to base the estimate could include

available in-house or contractor's engineering reports and any other

studies performed on the proposed facility. Also, if an effluent

guideline applies to the facility or similar facilities, then the

development document to the effluent guideline may provide additional

information. If there is an applicable effluent guideline and the

pollutant(s) of concern is not addressed in the guideline, however,

this would not be conclusive evidence that the pollutant(s) of concern

is not present. If

[[Page 46073]]

the applicable effluent guideline does address the pollutant(s) of

concern, that recognition should be considered as a rebuttable

presumption that the pollutant(s) of concern will, in fact, be present

in the discharge.

EPA is also considering another option to fill this information

need. This option would require these dischargers to submit a

supplemental certification that they have already obtained and are

continuing to maintain the requisite offset requirements. However, EPA

has concerns about how this would work. In particular, EPA is concerned

with how this permit applicant would determine the amount of the

pollutant(s) of concern in its proposed discharge and in turn,

determine the amount of required offset. When determining the proper

offset required in an individual permit, the Director would have

discretion to consider a number of variables. For example, if the

applicant decides to obtain offsets from a nonpoint source, maintenance

of the offset could remain highly uncertain. To compensate, the

Director could appropriately require the applicant to obtain and

maintain a greater offset (see discussion above in section

(B)(3)(iii)(b)). Given discretionary considerations such as these,

offset determinations may be difficult to implement for general

permittees. EPA requests comments on how such compensation could be

implemented, where necessary, for general permit applicants under this

option.

EPA is considering a third option for general permittee offsets.

This option would allow the general permits themselves to contain

alternative sets of requirements depending on whether the discharge

would be to a waterbody meeting water quality standards or a waterbody

not meeting water quality standards. For permitted discharges to

waterbodies not meeting water quality standards, requirements would be

more stringent and/or prescriptive than those required for discharges

to waterbodies that do meet water quality standards. Some general

permits currently provide such differing requirements. For purposes of

satisfying an offset requirement, an option might be to establish the

more stringent and/or prescriptive requirements for discharges into

impaired waterbodies in lieu of an individualized offset. The

reductions needed to ensure reasonable further progress toward meeting

water quality standards would be ``built in'' to the general permit. As

with the second option discussed above, the permitting authority would

not be able to tailor the offset requirements to the specific

circumstances and discharge of the individual new or significantly

expanding discharger. However, this option could allow the permitting

authority to establish conditions in the general permit necessary to

ensure that collectively, new and significantly expanding dischargers

obtained offsets sufficient to achieve reasonable further progress

toward attaining water quality standards. EPA invites comments on

whether to allow more stringent and/or prescriptive requirements for

discharges into impaired waterbodies in the general permit in lieu of

requiring an individual permit.

General permitting also creates complications regarding the

requirements in 40 CFR 122.4(j)(2). In particular, the Agency

anticipates it would be difficult to implement the specific

requirements applicable when offsets are obtained from an existing

nonpoint source(s). In these cases, an individual permit would need to

include conditions necessary, including the offset requirements and any

accompanying monitoring and reporting requirements, to ensure continued

achievement of the reductions. EPA invites comment on how this

requirement should be addressed in general permits.

EPA requests comment on these three options as well as other

possible approaches for satisfying the offset requirements for new or

significantly expanding dischargers applying for a general permit and

proposing to discharge into impaired waterbodies. In particular, EPA

requests information on the burdens these options impose on regulated

entities and State permitting authorities. EPA also requests comment on

the water quality benefits of the three options and on whether the

definition of a significant expansion should be different for general

permittees than for individual permittees.

ii. What If a Notice of Intent Form Is Not Required?

General permitting presents additional implementation problems when

an NOI form is not required. One option would be to amend 40 CFR

122.28(b)(2)(v), which authorizes the Director to allow certain

dischargers to be covered under a general permit without submitting an

NOI. This section also identifies some sources for which the Director

does not have this discretion. EPA is considering including new

dischargers and existing dischargers undergoing a significant expansion

(but not those that are '`small entities'' as defined in 5 U.S.C.

601(6)), in the list of sources for which the Director would not have

the discretion to waive the submission of an NOI. EPA invites comment

on how this additional concern might be addressed.

iii. Who and Under What Circumstances Would Need To Submit a

Supplemental Certification?

EPA recognizes that the language suggested above for an amendment

to 40 CFR 122.28(b)(2)(ii) would require only new dischargers and

existing dischargers undergoing a significant expansion that are not

small entities as defined in 5 U.S.C. 601(6) to provide an additional

certification for discharges to a waterbody not attaining water quality

standards. Not requiring all new dischargers and existing dischargers

undergoing a significant expansion to make this certification is

consistent with the proposed requirements at 40 CFR 131.12(a)(1)(ii)

because the offset requirement would only apply to those dischargers

who are not considered ``small entities'' (as defined in 5 U.S.C.

601(6)). Dischargers who do not fall within the definition of a small

entity would be able to seek coverage under a general permit.

iv. How Would Offsets Be Determined for Dischargers Regulated

Solely by BMPs?

Once it is determined that an offset is required, the amount of

offset required must be determined as well. This issue is particularly

important for applicants seeking coverage under a general permit. This

issue involves how to determine the appropriate offset requirements (or

offset equivalents) for dischargers regulated solely by best management

practices (BMPs). For example, would it be appropriate to require more

stringent BMPs, or additional ``offsetting'' BMPs from other sources in

lieu of a pound-for-pound offset? EPA invites comment on how to address

this issue as well.

E. Additional Proposed Modifications to Related NPDES Provisions

1. How Is EPA Proposing To Modify the Water Quality-Based Permitting

Regulations?

EPA is today proposing to include the phrase ``State

antidegradation provisions'' in its water quality-based permitting

regulations at 40 CFR 122.44(d)(1). Section 122.44 contains the

requirements for establishing limitations, standards and other permit

conditions in NPDES permits necessary to ensure that NPDES permits are

protective of water quality standards. Including this phrase is

clarifying only and not intended to create a substantive change.

Including this phrase in these provisions gives added notice and

clarification to EPA's longstanding policy which is well understood by

the

[[Page 46074]]

States and the public, including regulated entities, that

antidegradation policies and implementation procedures are required

elements of State water quality standards.

2. How Is EPA Proposing To Modify the Regulations Pertaining to the

Statement of Basis and Permit Fact Sheet?

EPA is also proposing to change both 40 CFR 124.56 and 124.7. EPA

believes this is necessary in light of the proposed changes to 40 CFR

122.4(j) and 131.12. Section 124.56 lists specific items which must be

placed in the fact sheet required by 40 CFR 124.8 of the NPDES

regulations. EPA believes it is necessary to include, in the fact

sheet, an explanation of how and why any decision was made by the

Director with respect to any offsets required under 40 CFR 131.12.

These include such things as the amount of the proposed discharge the

new or significantly expanding discharger is required to offset as well

as any monitoring and reporting requirements. Section 124.7 requires

that a statement of basis be prepared in all situations where a fact

sheet is not required. The contents of a statement of basis are similar

to that of a fact sheet. EPA believes including this information in the

fact sheet or in the alternative, the statement of basis, is

appropriate for several reasons. The decisions regarding any offset

will be dependent upon the specific facts and circumstances of a given

scenario and therefore, those facts and circumstances should be made

apparent. The public has a right to know how and why these decisions

were made. EPA, to facilitate its authority to review permits, needs

this information as well. This information is necessary for any appeals

brought against the issuance of the permit or conditions therein

contained.

III. Proposed Authority To Designate Additional Sources of

Pollutants as Subject to the NPDES Program

The NPDES regulations, in several provisions and under certain

circumstances, allow the permitting authority and/or EPA to subject

certain previously non-designated sources to NPDES program

requirements. EPA established these jurisdictional regulations in 1973

when the Agency and the States focused permitting resources primarily

on continuous discharges, for example, industrial and municipal

sources. Also, in the early stages of CWA implementation, the Agency

and the States focused on implementation of technology-based standards.

At that time, EPA attempted to limit the scope of the NPDES permitting

program to certain types of point sources. The D.C. Circuit rejected

that attempt, however, and explained that EPA could not exempt point

sources from the NPDES program. NRDC v. Costle, 568 F.2d 1369, 1377

(D.C. Cir. 1977). Although the Court rejected this attempt, it did

recognize the Agency's discretion to define ``point source'' and

``nonpoint source.'' The existing NPDES regulations identifying animal

production and silvicultural sources represents an early attempt to do

so.

Today EPA is proposing certain changes to the NPDES regulations

regarding designation of point sources for regulation under the NPDES

permitting program. These point sources include discharges from animal

production and silvicultural activities. EPA is proposing explicit

language describing its authority, in States with approved NPDES

programs, to designate animal feeding operations (AFOs) and aquatic

animal production facilities (AAPFs) as sources subject to NPDES

program requirements on a case-by-case basis. EPA regulations currently

provide that ``the Director'' may, under certain circumstances,

designate such facilities as point sources subject to NPDES

requirements. The term ``Director'' is defined as the EPA Regional

Administrator or the State Director, as the context requires, or an

authorized representative. See 40 CFR 122.2. The definition explains

that when there is an approved State program, ``Director'' normally

means the State Director but that in some circumstances, EPA retains

the authority to take certain actions even when there is an approved

State program. Today's proposal includes explicit language describing

EPA's authority, under certain conditions, to designate animal

production facilities as sources subject to NPDES permitting. Today's

proposal would also modify the regulation that identifies silvicultural

point sources.

A. How Would Animal Feeding Operations and Aquatic Animal Production

Facilities Be Affected by Today's Proposal?

Some of the sources that would be affected by today's proposal

include animal feeding operations (AFOs) and aquatic animal production

facilities (AAPFs) located in States authorized to administer the NPDES

program. In a 1995 guidance document, entitled ``Guide Manual on NPDES

Regulations for Concentrated Animal Feeding Operations,'' EPA stated

that in authorized States, only the State Director may designate an AFO

as a concentrated animal feeding operation (CAFO). Today, EPA proposes

to revise the regulations to state that EPA may, under certain

circumstances, designate AFOs as CAFOs and also designate AAPFs as

concentrated aquatic animal production facilities(CAAPFs), in NPDES-

authorized States. The revised regulations would facilitate EPA's

provision of reasonable assurance that EPA-established TMDLs will be

implemented where States fail to establish an approvable TMDL.

This proposal applies to aquatic animal production facilities and

not aquaculture projects. Although both types of operations produce

aquatic livestock, aquatic animal production facilities differ from

aquaculture projects. Aquaculture projects confine aquatic stock within

jurisdictional waters of the United States. An aquatic animal

production facility does not confine aquatic stock in jurisdictional

waters of the United States. The aquatic area of confinement (e.g.,

manmade pond, raceway, etc.) may, however, discharge to jurisdictional

waters of the United States. Aquaculture is specifically addressed in

the CWA. CWA section 318. The statute does not specifically address

aquatic animal production outside of waters of the United States,

however, it is addressed in EPA regulations, as discussed above.

1. How Do These Sources Currently Become Subject to the NPDES Program?

Under existing regulations, concentrated animal feeding operations

and concentrated aquatic animal production facilities are subject to

the NPDES program. One situation in which an animal feeding operation

or an aquatic animal production facility is considered ``concentrated''

and thus subject to NPDES permitting, is when the Director so

designates the operation or facility on a case-by-case basis. See 40

CFR 122.23(c) and 122.24(c). Case-by-case designations are based on a

determination that the operation or facility is a significant

contributor of pollutants to waters of the United States. In

designating an operation or facility as a significant contributor of

pollutants, the Director essentially finds that the facility's

discharges are more like point sources already subject to NPDES

regulation than those agricultural nonpoint sources that are not.

i. Under What Circumstances Are CAFOs Designated on a Case-By-Case

Basis?

EPA regulations define which AFOs qualify as CAFOs based on various

criteria set out in the regulations. These criteria were established

for a ``basic national standard and practical administrative

approach.'' See 40 FR

[[Page 46075]]

54182, 54183 (11/20/75). To supplement this approach, EPA included a

designation mechanism in the regulations. Through this mechanism, even

where a source did not meet all of the regulatory criteria to become a

CAFO, the Director, upon determining that the source is a significant

contributor of pollutants to waters of the United States, could

exercise its discretion and designate the source as a CAFO to ensure

that the source would be regulated. In making this determination, the

Director conducts an on-site inspection of the facility and considers

the following factors: (1) The size of the animal feeding operation and

the amount of wastes reaching waters of the United States; (2) the

location of the animal feeding operation relative to waters of the

United States; (3) the means of conveyance of animal wastes and process

waste waters into waters of the United States; (4) the slope,

vegetation, rainfall, and other factors affecting the likelihood or

frequency of discharge of animal wastes and process waste waters into

waters of the United States; and (5) other relevant factors. 40 CFR

122.23(c). One such relevant factor could be the water quality of the

receiving water including the degree of nonattainment.

ii. Under What Circumstances Are CAAPFs Designated on a Case-by-

Case Basis?

Permitting authorities can also designate any warm or cold water

aquatic animal production facility for regulation under the NPDES

permitting program on a case-by-case basis. 40 CFR 122.24. The

Director, upon determining that the source is a significant contributor

of pollutants to waters of the United States, may designate an aquatic

animal production facility as a concentrated aquatic animal production

facility. To make this determination, the Director conducts an on-site

inspection of the facility and considers the following factors: (1) The

location and quality of the receiving waters of the United States; (2)

the holding, feeding and production capacities of the facility; (3) the

quantity and nature of the pollutants reaching waters of the United

States; and (4) other relevant factors. 40 CFR 122.24(c).

2. Why is EPA Proposing Changes to the CAFO and CAAPFs Jurisdictional

Regulations?

In some areas, pollutant contributions from small unregulated (by

NPDES) animal production sources (terrestrial and aquatic) are the

primary cause of impairment in some water segments. As indicated in

the1996 Report to Congress under CWA section 305(b), agriculture,

including both animals and cropland, is the leading source of water

quality impairment of rivers and lakes. Based on data collected by the

States and Territories, EPA estimated that, of the waters assessed, 25

percent of the impaired river miles, 19 percent of the impaired lake

acres, and 10 percent of the impaired estuarine square miles are

polluted due to agricultural nonpoint sources of pollutants (EPA,1996).

Thirty-eight of the States included specific agricultural sources of

pollution in rivers.

i. How do Animal Feeding Operations Impact Water Quality?

Studies show that animal feeding operations, and particularly a

concentration of these facilities in a single watershed, can increase

nutrient pollution to a river or stream. A study of Herrings Marsh Run

in the coastal plain of North Carolina showed that nitrate levels in

streams and ground water were highest in areas with the greatest

concentration of swine and poultry production. (Hunt, P.G., et al.

1995. Impact of animal waste on water quality in an eastern coastal

plain watershed. IN: Animal Waste and the Land-Water Interface, Kenneth

Steele, Ed., Lewis Publishers, Boca Raton, FL, 589 pp.). Ortho-

phosphate levels were affected only slightly by animal waste

applications because most of the phosphorus was bound by the soil.

(Hunt, et al.,1995).

Results from an Illinois case study indicated that two types of

activities at small to medium-sized swine operations contributed to

water quality problems. First, many producers had constructed open-

front facilities without including manure collection systems to contain

feedlot runoff. Second, many producers practiced ``misting''and/or used

on-site watering systems to cool off animals, which in turn generated

conditions that caused uncontrolled pollutant runoff. This case study

demonstrated how even small operations contributed significant amounts

of pollutants to the receiving waters. (Ackerman and Taylor, 1995,

Stream Impacts due to Feedlot Runoff. IN: Animal Waste and the Land-

Water Interface, Kenneth Steele, Ed., Lewis Publishers, Boca Raton, FL,

589 pp.).

AFOs can also cause catastrophic effects locally. In June 1995,

animal waste contained in an eight-acre lagoon in North Carolina burst

through its dike, spilling approximately 22 million gallons of animal

waste into the New River. The spill reportedly killed fish along a 19-

mile downstream area. This was the worst of six reported spills in the

State during the summer of 1995. (EPA Office of the Inspector General,

March 1997, Animal Waste Disposal Issues, Audit Report No. E1XWF7-13-

0085-7100142).

Several case studies have also been performed to document the water

quality benefits of installing animal waste management systems. In

South Dakota, for example, 9 feedlots were monitored to determine which

most negatively impacted water quality through increased loads of

nutrients. After installation of animal waste management systems,

several feedlots exhibited evidence of improving water quality in

streams. (South Dakota Association of Conservation Districts, South

Dakota Department of Environment and Natural Resources, and USDA

Natural Resources Conservation Service, 1996, Final Report--Animal

Waste Management Team). EPA invites commenters to identify and submit

additional data to support or refute these conclusions.

ii. How Do Aquatic Animal Production Facilities Impact Water

Quality?

Other studies also indicate that aquatic animal production

facilities cause significant adverse impacts on water quality. Such

impacts include but are not limited to, oxygen depletion in surrounding

waters, degradation of benthic (bottom) ecosystems, and increases in

the severity of toxic algae blooms. The impact on water quality,

however, varies per fish species and production facility. Pond and tank

systems, for example, often discharge pulses of highly concentrated

waste discharges during cleaning and harvesting. (Bergheim, A., A.

Sivertsen, and A.R.Selmer-Olsen. 1982. Estimated Pollution Loading From

Norwegian Fish Farms. I. Investigations 1978-1979. Aquaculture 28:347-

361). Catfish ponds, for instance, release effluents containing high

concentrations of nutrients, often at concentrations exceeding water

quality limits set by EPA and state governments. (Tucker, C.S. 1996.

The Ecology of Channel Catfish Culture Ponds in Northwest Mississippi.

Reviews in Fisheries Science 4(1):1-55). EPA invites commenters to

identify and submit additional data to support or refute these

conclusions.

3. What Changes Is EPA Proposing To Make to the CAFO and CAAPFs

Jurisdictional Regulations?

As stated previously, currently only the ``Director'' may designate

these sources as subject to the NPDES program on a case-by-case basis

and ``Director'' is defined as the EPA Regional Administrator or the

State Director, as the context requires. 40 CFR 122.2. EPA foresees the

need to make

[[Page 46076]]

future designations itself in authorized States in particular

circumstances, although the Agency has only done so on occasion.

Therefore, EPA is proposing to revise 40 CFR 122.23 and 122.24 to

include explicit language describing that the Agency has the authority

(under certain circumstances discussed below) to make such designations

in instances when the State has not already done so.

i. When Would EPA Designate These Sources?

The proposed regulatory change would limit the exercise of this

discretion to the situation when EPA establishes a TMDL for a waterbody

in an authorized State and determines that designation is necessary to

provide reasonable assurance that the wasteload allocations and load

allocations under the TMDL will be achieved. By restricting the

exercise of its discretion to this high priority circumstance, the

Agency recognizes its own resource limitations, as well as the special

role of authorized NPDES States in the federal system.

States must submit each TMDL they establish to EPA for approval.

Elsewhere in today's Federal Register, EPA proposes regulations to

require States to submit a plan to implement the load allocations and

wasteload allocations of a TMDL as a component of the TMDL. EPA would

evaluate the adequacy of the implementation plan (a required element of

a TMDL) in determining whether to approve a TMDL. If EPA disapproves a

TMDL based on a determination that the implementation plan is

inadequate, EPA would establish the TMDL itself, including an

implementation plan.

One of the proposed required elements of the implementation plan is

that it contain reasonable assurance that the control actions and/or

management measures required to implement the load allocations and the

wasteload allocations established by the TMDL will be put in place and

the load allocations and wasteload allocations will be met. Thus, EPA

may disapprove the TMDL if it determines that the implementation plan

lacks reasonable assurances. For example, EPA may determine that the

implementation plan lacks reasonable assurances that certain animal

feeding operations will achieve and maintain their respective pollutant

load allocations. If working with the State to achieve reasonable

assurance has failed, EPA would disapprove the TMDL and would be

required to establish a TMDL, including an implementation plan. EPA may

then determine that some animal feeding operations are significant

contributors of pollutants to waters of the United States and that the

best way for EPA to provide reasonable assurance that such an animal

feeding operation achieves and maintains its assigned pollutant load

allocation is through the issuance (and enforcement) of an NPDES

permit. Under today's proposal, EPA could then invoke its designation

authority and subject the animal feeding operation to the NPDES

program. In similar circumstances, EPA could designate an unregulated

aquatic animal production facility. The language in today's proposal

about the Agency's intention and authority to designate unregulated

animal production sources in authorized States--where EPA establishes a

TMDL--supports the fulfillment of the CWA goals to attain and maintain

water quality standards. The proposal also supports EPA's backstop

authority, as specified in CWA section 303(d)(2), to establish TMDLs

(including all required elements) for waterbodies for which the State

fails to do so.

ii. How Would This Proposal Affect States?

The proposed regulation limits the exercise of this discretionary

authority to situations where EPA establishes a TMDL. Many States have

opportunities to provide ``reasonable assurances'' to control nonpoint

source pollutants and/or pollution in ways (and based on authorities)

that are not available to the federal EPA. When EPA establishes a TMDL,

the federal authority to designate otherwise unregulated sources as

point sources would provide a federally enforceable ``reasonable

assurance'' that the allocation would be achieved. The Agency stresses

that the authority proposed today would be used only in those

circumstances where other means of working with the State have failed.

iii. Who Would Issue Permits to These Sources Once Designated?

EPA does not have authority to issue permits to the animal

production facilities that the Agency designates for regulation in a

State authorized to administer the NPDES program. That authority

remains exclusively with the authorized State. CWA section 402(c).

Instead, EPA relies on its authority to designate point sources under

the CWA in general and the specific authority provided by CWA section

501(a) to support the Agency's authority to designate point sources

subject to regulation under the NPDES program, even in States

authorized to administer the NPDES permit program. The interpretive

authority to define point sources and nonpoint sources was recognized

by the D.C. Circuit in NRDC v. Costle, 568 F.2d 1369, 1377 (D.C. Cir.

1977). This interpretive authority arises from CWA section 501(a) when

EPA interprets the term ``point source'' at CWA section 502(14).

4. How Would EPA Revise the Regulatory Text?

EPA recognizes that many State agencies have limited resources to

implement their NPDES programs and in many cases, a State's inaction in

the designation of additional sources is not a result of an authorized

State's unwillingness to assert regulatory authority over additional

sources, but rather the perceived inability to assure timely issuance

of individual permits for these sources in the face of competing

priorities. Given increased reliance and success in control of point

sources under State NPDES general permits, however, the Agency believes

that EPA designation in these jurisdictions and in these instances will

expedite the attainment of water quality standards without undue burden

on authorized States.

In order to achieve this result, EPA is proposing to modify 40 CFR

122.23(c)(1), (3) and (4) and 40 CFR 122.24(c)(1)-(3) as reflected in

proposed regulatory text. These modifications would specify that, in

jurisdictions where EPA is not the NPDES permitting authority, EPA

could (under certain circumstances) designate an animal feeding

operation as a ``concentrated animal feeding operation'' where the

Regional Administrator or his/her delegee makes a determination that

the operation is a significant contributor of pollutants to waters of

the United States. Similarly, today's proposal would accomplish the

same objective for the designation of an aquatic animal production

facility as a ``concentrated'' aquatic animal production facility

(i.e., the aquatic form of a concentrated animal feeding operation).

These modifications would also specify that EPA would only designate

these facilities where pollutants are discharged into waters for which

EPA establishes a TMDL to provide reasonable assurance that the

wasteload allocations and load allocations under the TMDL will be

achieved.

The Agency invites comments on this proposal, including the

limitation of the federal designation authority (in authorized States)

to discharges to waters for which EPA establishes a TMDL.

[[Page 46077]]

B. How Would Silvicultural Activities Be Affected by Today's Proposal?

1. Which Sources Are Currently Excluded From the Definition of a

``Point Source?'

EPA is today proposing to modify its current interpretation of the

term ``point source'' with respect to discharges associated with

silviculture. The term ``point source'' is defined in regulations at 40

CFR 122.3 to exclude certain discharges from NPDES requirements.

Section 122.3(e) specifically excludes ``Any introduction of pollutants

from nonpoint source agricultural and silvicultural activities,

including storm water runoff from orchards, cultivated crops, pastures,

range lands and forest lands.'' As a preliminary matter, the Agency

notes that, though the regulatory exclusions have existed since the

1970's, Congress did not enact the specific statutory ratification for

the agricultural exclusions, for ``return flows from irrigated

agriculture'' and ``agricultural storm water'' until 1977 and 1987,

respectively. Neither of the 1977 nor the 1987 amendments provided any

ratification of the silvicultural exclusions.

Since that time, the Agency and the States have begun the

implementation of regulatory controls on intermittent ``wet weather''

sources. In 1987, Congress directed EPA to focus on water quality

concerns associated with storm water. One of the types of storm water

discharges that the Agency identified as appropriate for regulatory

control under the NPDES program was storm water discharges associated

with construction activity, including clearing, grading, and excavation

activities. See 40 CFR 122.26(b)(14)(x). Storm water discharges

resulting from land disturbance have significant potential for water

quality impairment due for example, to excessive sediment loads.

Sediment adversely affects aquatic ecosystems by reducing light

penetration, impeding sight-feeding, smothering benthic organisms,

abrading gills and other sensitive structures, reducing habitat by

clogging interstitial spaces within a streambed, and reducing the

intergravel dissolved oxygen by reducing the permeability of the bed

material. (Everest, F.H., Beschta, J.C., Scrivener, K.V., Koski, J.R.,

Sedell, J.R., and C.J. Cederholm. 1987. Fine Sediment and Salmonid

Production: A Paradox Streamside Management: Forestry and Fishery

Interactions, Contract No. 57, Institute of Forest Resources,

University of Washington, Seattle, WA. pp. 98-142).

To date, NPDES regulation of storm water discharges associated with

construction activity has protected water quality from the runoff

associated with for example, the construction of roads. A gap in

regulatory coverage exists, however, in that the existing NPDES

regulations categorically exclude silviculutral road construction and

maintenance from the definition of ``point source.'' 40 CFR 122.27(b).

Therefore, the silviculture regulation excludes discharges from forest

roads from the universe of sources that can be regulated under the

NPDES permitting program.

2. Are All Discharges From Silivicultural Activities Currently Excluded

From the NPDES Program?

Not all discharges from silvicultural activities are currently

excluded from the definition of a ``point source.'' EPA regulations at

40 CFR 122.27(b)(1) specify which discharges associated with

silvicultural activities are point source discharges, namely,

discharges from rock crushing, gravel washing, log sorting and log

storage facilities. Discharges from these activities are categorically

subject to regulation under the NPDES program. EPA regulations at 40

CFR 122.27(b)(1) also currently identify certain discharges associated

with silviculture activities that may be ``nonpoint source''

discharges, thus, not subject to NPDES permits. These include runoff

from nursery operations, site preparation, reforestation and subsequent

cultural treatment, thinning, prescribed burning, pest and fire

control, harvesting operations, surface drainage, or road construction

and maintenance. Currently, runoff from these activities is

categorically excluded from the NPDES program. Also, as noted in the

regulation, some discharges associated with silvicultural activities

(such as stream crossing for roads) may involve point source discharges

of dredged and fill material. In these cases, a CWA section 404 permit

may be required. See 33 CFR 209.120 and part 233.

EPA acknowledges that CWA section 404(f)(1) exempts certain

discharges of dredged or fill material from CWA permitting requirements

for, among other activities, normal silvicultural activities and the

construction or maintenance of forest roads. The CWA section 404(f)

exemption for discharges of dredged and fill material applies to permit

requirements under both section 404 and section 402, except as provided

in section 404(f)(2). Section 402, however, does not regulate

discharges of dredged or fill material. EPA has consistently

interpreted the apparent inconsistency of including section 402 in the

section 404(f) ``exemptions'' to reflect the intent that discharges of

dredged or fill material that are exempt from section 404 permit

requirements would not be regulated under section 402 instead. EPA has

not interpreted the inclusion of section 402 in section 404(f) to mean

that discharges other than dredged or fill material (from the

activities listed in section 404(f)) are exempt from permit

requirements under section 402. Today's proposal would not address

dredged or fill material or otherwise affect the section 404(f)

exemption. Today's proposal would apply to discharges of pollutants

other than dredged or fill material, for example, from contaminated

storm water discharges.

EPA also notes that the section 404(f) exemption for discharges of

dredged or fill material associated with the construction or

maintenance of forest roads is dependent on case-by-case application of

best management practices. Best management practices provide effective

mechanisms to address potential adverse impacts to aquatic resources,

including degradation of physical, chemical, and biological

characteristics.

3. Which Silivicultural Discharges Would Be Designated Under Today's

Proposal as Sources Subject to the NPDES Program?

By today's action, the Agency proposes to remove the regulatory gap

in coverage with respect to those silvicultural discharges that are

currently identified as a discrete category of ``non-point sources''

excluded from the opportunity for regulation under the NPDES permitting

program. The only silvicultural discharges, however, that would be

subject to regulation under the NPDES program on a categorical basis

are those that are currently regulated as categories today: rock

crushing; gravel washing, log sorting, and log storage facilities. For

the sources that were categorically excluded previously (nursery

operations, site preparation, reforestation and subsequent cultural

treatment, thinning, prescribed burning, pest and fire control,

harvesting operations, surface drainage, or road construction and

maintenance), the categorical exclusion from the definition of ``point

source'' would be removed. Instead, on a case-by-case basis, selected

sources could be designated for regulation under the NPDES program for

storm water discharges under 40 CFR 122.26(a)(v). This case-by-case

designation, made by the Director or EPA, would be based upon a

determination that the source contributes to a violation of water

[[Page 46078]]

quality standards or is a significant contributor of pollutants to

waters of the United States. To make this determination the Director

could consider the following factors: (1) The location of the discharge

with respect to waters of the United States; (2) the size of the

discharge; (3) the quantity and nature of the pollutants discharged to

waters of the United States; and (4) other relevant factors. 40 CFR

122.26(a)(v).

4. Why Is EPA Proposing To Remove the Regulatory Exclusion for These

Silvicultural Discharges?

Silviculture contributes approximately 3 to 9 percent of nonpoint

source pollution to the Nation's waters. (Neary, D.G., and J.L.

Michaele, 1989, Effect of sulfometuron methyl on ground water and

stream quality in coastal plain forest watersheds. Water Resources

Bulletin. 25(3):617-623). Twenty-three States have identified

silviculture as a problem source contributing to nonpoint source

pollution in their 1996 water quality assessments submitted to EPA

under CWA section 305(b). (USEPA, 1996, EPA-841-R-97-008 April 1998).

Several types of silvicultural activities that are currently exempt

from NPDES regulation may cause significant adverse impacts on water

quality. These include, but are not limited to, road construction and

maintenance, site preparation, prescribed burning, clearcutting, and

harvesting operations. As mentioned above, the construction and

maintenance of roads, other than those constructed for silvicultural

operations, are currently subject to NPDES requirements. The

construction and maintenance of roads related to silvicultural

activities, however, is exempt. Studies demonstrate that some such road

construction may create significant water quality problems. Results of

a study on forest management activities in a small watershed indicated

that suspended sediment yields increased almost 8 fold in the first

year following road construction, and two-fold following logging in the

second year. (B. Anderson and D.F. Potts, 1987, Suspended Sediment and

Turbidity Following Road Construction and Logging in Western Montana,

Water Resources Bulletin, Vol. 23, No. 4).

Mechanical site preparation by large tractors that shear, disk,

drum-chop, or root-rake a site may result in considerable soil

disturbance over large areas and has a high potential to deteriorate

water quality. (Beasley, R.S. 1979. Intensive site preparation and

sediment loss on steep watersheds in the Gulf Coastal plain. Soil

Science Society of America Journal. 43(3):412-416). Site preparation

techniques that result in the removal of vegetation and litter cover,

soil compaction, exposure or disturbance of the mineral soil, and

increased stormflows due to decreased infiltration and percolation, all

can contribute to increases in stream sediment loads. (Golden, M.S.,

C.L. Tuttle, J.S. Kush, and J.M. Bradley, 1984, Forestry activities and

water quality in Alabama: Effects, recommended practices, and an

erosion-classified system. Auburn University, Agricultural Experiment

Station. Bulletin 555). Prescribed burning is another method used to

prepare sites that may also have effects on water quality as a result

of increased erosion and the altering of soil properties. Id.

The actual harvesting of timber can also contribute to water

quality problems. Results from studies have indicated that

clearcutting, which is often a method used for timber harvesting, can

have significant effects on the nutrient levels and temperatures of

nearby waters. The resulting impacts of a logging operation in the Bull

Rull Watershed of Oregon include increased nitrate-nitrogen levels for

up to 7 years after the harvest and an increase in annual stream

temperatures by 2-3 degrees Celsius for the following 3 years after the

harvest. (Harr, R.D., and R.L. Fredriksen. 1988. Water quality after

logging small watersheds within the Bull Run Watershed, Oregon. Water

Resources Bulletin. 24(5):1103-1111). EPA invites commenters to

identify and submit additional data to support or refute these

conclusions.

5. When Would Silviculutral Sources Be Required To Obtain an NPDES

Permit?

The effect of today's proposed elimination of the categorical

silviculture exclusion would be limited. The currently unregulated

silvicultural sources would only be required to obtain NPDES permit

authorization (1) upon a case-by-case designation by EPA or the

authorized State and (2) for the purposes of EPA designation, only for

sources that discharge to waters for which EPA establishes a TMDL to

ensure that the wasteload allocations and load allocations under the

TMDL are achieved. The existing regulations for storm water associated

with industrial activity (also known as ``Phase I'' storm water

regulations) issued pursuant to CWA section 402(p)(4)(A), would not

apply to the discharges that would become subject to regulation by the

revision to 40 CFR 122.27(b). For example, storm water discharges

associated with construction and maintenance of forest roads would not

be considered ``storm water discharges associated with industrial

activity'' under 40 CFR 122.26(b)(14). The construction of silviculture

roads would not be a category of storm water discharge that is

automatically subject to NPDES permitting like other kinds of road

building. Instead, point source discharges of storm water associated

with currently unregulated silviculture would only be designated for

regulation on a case-by-case basis pursuant to CWA section 402(p)(2)(E)

or 402(p)(6).

As noted above, EPA proposes that any final rule would limit EPA

designation of silviculture point sources to discharges to waters for

which EPA establishes a TMDL because, as a result of proposals

elsewhere in today's rule, these circumstances would provide a

considered and focused basis for regulation. The limitation on federal

designation would apply both in authorized States, as well as in States

where EPA administers the NPDES program. Given the Agency's limited

resources, as well as the potentially huge universe of silvicultural

sources that could become subject to NPDES permitting, today's rule

focuses those limited EPA resources on these priority waterbodies. In

States where EPA administers the NPDES program, the Agency does not

propose silviculture point source designation authority to the same

extent as would be available to authorized States. Unlike authorized

States that might designate silviculture point sources outside of the

TMDL context, EPA would only designate a source when the Agency

establishes a TMDL itself to ensure that the wasteload allocations and

load allocations under the TMDL are achieved. In addition, EPA would

work with and assist those States (where EPA administers the NPDES

program) in development of their nonpoint source control programs (so

that the State could provide its own reasonable assurances), rather

than federally designating silviculture point sources prior to that

State's establishment of its TMDLs. As noted above, EPA does not

propose to limit designation by authorized States, who may have other

opportunities to assure ``reasonable assurances'' that nonpoint sources

attain load allocations under TMDLs. Additionally, CWA section 510

preserves more expansive designation authority for States.

EPA expects that only in extremely rare circumstances would the

Agency need to exercise its authority to establish an NPDES permit

requirement for discharges associated with silvicultural activities.

Indeed, enhanced implementation of State programs and authorities

designed to

[[Page 46079]]

protect water quality from silvicultural activities may be strong

enough, in the aggregate, to satisfy ``reasonable assurance'' that

silvicultural sources would attain load allocations under TMDLs through

State means alone. EPA would only use the proposed new designation

authority as a ``last resort'' because EPA lacks authority to regulate

silvicultural sources directly through other means than through the

NPDES permitting program. As noted above, States might choose to use

the new authority more broadly, but EPA would encourage them to focus

their limited regulatory resources in the same limited manner that EPA

would use it.

6. How Would States Be Affected by This Proposal?

State capacity to address silvicultural sources is exemplified by

the breadth and depth of State programs. A significant number of States

have comprehensive forest practice management acts, while most others

have at least some sort of backup authority, such as enforceable water

quality standards or ``bad actor'' laws. At least ten States administer

regulatory programs that are as comprehensive as EPA anticipates would

be imposed if sources were designated under today's proposal for

regulation under the NPDES permitting program. (Olafson, PV, Cheng

A.S., and R.D. Moulton. 1995. Regulation of Private Forestry Practices

by State Governments. University of Minnesota, Minnesota Agricultural

Experiment Station. Bulletin 605). Nearly all States have developed and

published BMPs for silviculture, about half of the States conduct

annual compliance audits to determine landowner use of BMPs, and in

most States, the State forestry agency plays a role in the State

nonpoint source plan. (Stuart, Gordon W., 1996. The National

Association of State Foresters 1996 Progress Report, State Nonpoint

Source Pollution Control Programs for Silviculture. National

Association of State Foresters).

In general, EPA envisions that permits for silvicultural activities

would be based on an approach emphasizing the development of pollution

prevention plans and/or specification of best management practices

rather than quantitative discharge limits for specific pollutants. EPA

would work with States and stakeholders in developing these permits.

EPA invites comments on removing the categorical exemption for

runoff

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