Update on Water Issues 2013 Kentucky Tennessee WEA Watershed Webinar Peter Goodmann, Assistant Director Kentucky Division of Water March 21, 2013

Update on Water Issues DOW Triennial Review status Wastewater Laboratory Certification Regulations Federal Clean Water Act Rulemaking New legislation 2013 Session: HB-378/SB-190 –What does this legislation mandate? TMDL status Nutrient Reduction Strategy Status of General Permits Status of PCS to ICIS Transition Management Changes at DOW

Triennial Review of WQS –Revisions to 401 KAR 10:002 Definitions, 401 KAR 10:026 Designated Uses of Surface Waters, 401 KAR 10:030 Antidegradation Policy Implementation Methodology, and 401 KAR 10:031 Surface Water Standards –Update OSRW and Exceptional Waters 27 New OSRWs 14 New Exceptional Waters –Criterion update for Acrolein and Phenol

Triennial Review of WQS –Clarified narrative criterion for “nutrients” Nutrients shall not be elevated in a surface water to 4 a level that results in a eutrophication problem. –Clarified definition of “eutrophication” Eutrophication" means the enrichment of a surface water with nutrients nitrogen and phosphorus resulting in adverse effects on water chemistry and the indigenous aquatic community. Resulting adverse effects on water chemistry manifest by daily dissolved oxygen supersaturation followed by low dissolved oxygen concentrations and diurnal increase in pH. Resulting adverse effects on the indigenous aquatic community include: (a) Nuisance algae blooms; (b) Proliferation of nuisance aquatic plants; (c) Displacement of diverse fish or macroinvertabrate community by species tolerant of nutrient-enriched environments; or (d) Fish kills brought on by severe, sudden episodes of plant nutrient enrichment.

Triennial Review of WQS –Revised 401 KAR10:031 Section 8 (1)(a) Automatic inclusion as OSRWs. –Ensure that these all link to water quality/habitat –Revised 401 KAR10:031 Section 8 (2) Clarify procedures and standards for allowing discharges into/dredge and fill of OSRWs such that existing water quality and habitat will be maintained and protected. –Revised 401 KAR10:031 Section 9 (1)(a): D.O. criterion applies to in-stream, not end-of-pipe. –Proposed new criteria for Selenium

Triennial Review of WQS Proposed New Water Quality Criteria for Selenium Chronic: 5 µg/L threshold; if exceeded → fish tissue sampling – 8.6 mg/g whole body fish tissue (dry wt) – 19.3 mg/g egg/ovary tissue (dry wt) Acute: 258 µg/L

Wastewater Lab Certification Regulations –Authorized by KRS –Establishes certification program for laboratories and facilities submitting compliance data –Establishes tiered fee structure –Developed with stakeholders; numerous meetings and versions of the regulation –Regulation filed with LRC March 14, 2013 –DOW receiving public comment through April 30 th –Public hearing: Thursday, April 25 6p.m. –Likely at ARRS Committee July 2013

Federal Clean Water Act Rulemaking New Stormwater Rule –Propose: June 2013 Final: Dec (originally, EPA was supposed to propose by Dec & promulgated by Apr. 2012) –Revision to NPDES Stormwater (MS4) regulations to address post-construction discharges, informed by recommendations from the National Research Council stormwater study. Other issues under consideration are retrofits, MS4 definition, redevelopment, and green infrastructure. This rule is part of EPA's legal settlement with the Chesapeake Bay Foundation. Construction & Development Stormwater Discharge Rule –Propose: Apr Final: Feb. 2014Final Rule (published ELGs) for construction and development as a category of point source was issued Dec NPDES Application and Regulation Update Rule –Propose: 2013Final: TBD Sufficiently Sensitive Methods Rule –Propose: June 23, 2010Sent to OMB: Aug. 2011Final: TBD

Federal Clean Water Act Rulemaking Waters of the U.S. Rule –Originally was to be proposed in Mar. 2012, but as of 12/12, EPA remains on a course to finalize a WOUS Guidance first. Water Quality Standards Rule –Sent to OMB: Nov. 30, 2011ACWA OMB Meeting: Feb Propose: 2013 –The proposed rule will provide clarity in the following six key areas: (1) antidegradation, (2) Administrator's determination, (3) uses, (4) variances, (5) triennial review scope and requirements, and (6) updating regulation to reflect court decisions. Guidelines Establishing Test Procedures for the Analysis of Pollutants under the CWA –Propose: Sept. 2010Notice of Data Availability: Dec. 2011Final: Published May 18, 2012 –Rule modifies the testing procedures approved for analysis and sampling under the CWA. Rule incorporates several water contaminant testing methods into its CWA regs, but deferred or rejected inclusion of other methods based on stakeholder comments & questions about the method's viability SSO Rule –Met with stakeholders in July 2011 No date set for further activity –For some time, EPA has explored revising NPDES permitting regulations to address SSOs and possibly permit municipal collection systems. Last formal activity was an EPA July 2011 workshop for stakeholders to discuss issues in greater detail. Given other priorities, it appears an SSO rule is unlikely.

Federal Clean Water Act Rulemaking NPDES Electronic Reporting Rule –OMB: Jan. 2012Propose: 2013 –Proposed rulemaking would require electronic submission of existing and new NPDES reporting requirements to a centralized, national data system (i.e., ICIS-NPDES). Four Components of the rule - eDMR, eNOI, State Data, eProgram Reports. Appendix A will include all of the data elements by universe.

HB 378 What does HB 378 require? –Cabinet maintain a website listing: Impaired waters Waters for which TMDLs –In plain and unambiguous words that are easily understood by laymen, of the basis for the listing –Sources of information utilized, sources and methods of data collection and analysis, and the age of the data utilized in assessing waters and developing TMDLs A listing of local, state, and federal resources, along with contact information, available to communities in efforts to enhance compliance with applicable water quality standards. –60 day public comment period of the 303(d) list and data on which the assessment was based –Public input throughout TMDL development –More accessible information/data regarding impaired water listings and TMDLs

HB 378 What is behind HB 378? –Recent TMDLs and Impaired Stream Listings In particular: Floyds Fork nutrient TMDL –Lack of effective understanding about the listing and TMDL process –Lack of opportunity for input –Some do not want any other TMDLs or stream listings –Recnet criticism of TMDLs suggesting that there is a better way –DOW agrees that there are alternatives that may be preferable to TMDLs; TMDLs are not magic bullets Depends on circumstances Alternatives approaches to addressing impairments (e.g. 4B, 5R, Watershed Plans) do not remove the obligation to do a TMDL under CWA, but allow EPA to set aside that obligation Alternatives require local engagement and funding

HB 378 – Outcome for DOW Evaluate and retool the stream assessment and listing process –This pprocess needs to be revisited anyway Develop a website with assessment, listing, and TMDL information –Sophisticated –Accessible –Intuitive Geographically based

Why is DOW developing TMDLs? Identify waters for which effluent limitations required by section 301(b)(1)(A) and 301(b)(1)(B) are not stringent enough to implement applicable water quality standards (WQS) Establish a priority ranking for these waters –303(d) List (“Impaired Waters List”) –Submit for EPA approval every two years –Consider the severity of pollution, sensitivity of Designated Uses & other factors Establish TMDLs for these waters –EPA policy to develop TMDL 8-13 years from first listing. –TMDL must be established at a level necessary to implement WQS with seasonal variations and a margin of safety

TMDLs: Litigation as a Driver 22 STATES IN WHICH EPA IS UNDER COURT ORDER OR IN CONSENT DECREE TO ESTABLISH TMDLs IF STATES DO NOT ESTABLISH TMDLs –Alabama (1998; 5 yr schedule) –Florida (1999; 13 yr schedule) –Georgia (1997; 7½ yr schedule) –Tennessee (2001; 10 yr schedule) –Mississippi (1998; 10 yr schedule) 2 STATES WITH RESPECT TO WHICH PLAINTIFFS HAVE FILED LITIGATION SEEKING TO COMPEL EPA TO ESTABLISH TMDLs (OH, WY) 16 STATES (13 ACTIONS) DISMISSED WITHOUT ORDERS THAT EPA ESTABLISH TMDLs (SOME CASES WERE RESOLVED WITH SETTLEMENT AGREEMENTS) –North Carolina (Joint Stipulation of Dismissal filed June 1998; EPA agreed by letter to ensure development of a TMDL for the Neuse River by date certain)

TMDLs: Litigation as a Driver EPA and Division of Water did not want to be a “Consent Decree” state DOW agreed to establish TMDL “Pace” to demonstrate real effort to meet obligations under CWA (a condition of Section 106 Grant obligations) Additional 100% federal CWA Section106 funding TMDL Section established in DOW –Began developing TMDLs –Guess which impairments were addressed by TMDLs first? –Did it make any difference?

Approved TMDLs

Approved TMDLs by Year

Status of TMDLs 2459 pollutant/waterbody combinations (PWCs) TMDLs for which data collection has commenced: 775 Number PWCs Assigned for Development: 206 Approved TMDLs Total: 286

Approved TMDLs

TMDLs Under Development or for which DOW is collecting data

TMDL Obligations

TMDLs going forward Where do we go from here? –What are DOW’s TMDL obligations 2459 pollutant/waterbody combinations (PWCs) –Is the pace of TMDL development keeping up with obligations (8-13 years after listing)? –Are TMDLs resulting in improvements in water quality? Generally we have not seen that to be the case –How best to use the TMDL tool? Where? Effluent-dominant streams? What about the rest of the TMDL obligations? What makes the best practical sense?

TMDL 10-Year Vision Need flexibility from EPA relative to TMDL PACE* so that DOW can explore approach of combining TMDLs and TMDL implementation plans (e.g. watershed based plans, etc.) as one document and coupling this approach with a long-term monitoring strategy. *This is key! –Must show progress with TMDL development: 33 U.S.C. §1365 lawsuits are still a possibility (e.g. NOI regarding Floyds Fork TMDL in 2010) Focus the TMDL program to more actively restore impaired waters to meeting designated uses. –Current pace metrics do not serve a more holistic approach to TMDL development and implementation, and, in fact, encourage the production of lower quality and lower value TMDLs. EPA needs a more sophisticated TMDL progress metric. Interested in implementing a more holistic monitoring approach to causal and source identification to aid in the development and implementation of more comprehensive watershed TMDLs and watershed plans. Considering developing statewide or regional TMDLs for at least one category of impairment (E. coli).

Important TMDLs under development next 2 years Fayette County South Elkhorn (Bacteria) – MS4 North Elkhorn (Bacteria) – MS4 Cane Run (Bacteria) – MS4 Jefferson County Floyds Fork (Bact. and Nutrients) – MS4 Beargrass Creek (Organic Enrichment) – MS4 Ohio River Multi-jurisdictional TMDL EPA Region 5 and Tetra Tech have the lead on this project that includes KY, OH, IN, IL, PA and WV (bacteria – secondary contact recreation)

Important TMDLs challenges Development of complex TMDLs –Nutrients –Sediments –Metals TMDL implementation in MS4 permits –Develop WLAs that are appropriate –Implementing WLAs without end-of-pipe limits and using MEP

Why is Floyds Fork TMDL Important? Effluent-dominant stream* –73 WWTPs; 4 major WWTPs –Nearly entire watershed is MS4 TMDL necessary per Clean Water Act and to inform management decisions in this watershed EPA, DOW and MSD received a Notice of Intent to Sue (33 U.S.C. §1365) for failure to have TMDL and base regulatory decisions on a modern TMDL (also other litigation) *Nutrient TMDL in effluent dominant stream should improve water quality

Why is Floyds Fork TMDL Important? Model for future TMDLs? Public meetings prior to development Technical Advisory Committee –Ad Hoc Subcommittees Nutrient Target Development –Numeric Interpretations of Narrative Standards –Estimate of in-stream conditions that result in use support/water quality standards being met Watershed Specific –Regional ecological, geological and hydrological variation –Variations in the effect of the nutrients on water quality and habitat –Empirical: Effects based –Reference conditions –Literature and Guidance

Watershed Approach: 4B, 5R, WBP Category 4B demonstrations with their Section 303(d) list or Integrated Report submission and the demonstration should address the following six elements: 1. Identification of segment and statement of problem causing the impairment. 2. Description of pollution controls and how they will achieve WQS. 3. An estimate or projection of the time when WQS will be met. 4. Schedule for implementing pollution controls. 5. Monitoring plan to track effectiveness of pollution controls. 6. Commitment to revise pollution controls, as necessary. *Under 4B, the adequacy of water quality control and their “requirements” must be demonstrated up front *4B waters are not included on the 303(d) list

Watershed Approach: 4B, 5R, WBP Waters placed in 5R on a State’s 303(d) list may defer a TMDL while water quality restoration plans are implemented to attain water quality standards –Adaptive management approach, with “course corrections” based on new data and information –6-year pilot with the expectation that implementation will result in significant water quality improvements or restoration –Demonstrate the adequacy of the WQ restoration plan through the 5r approach, waters may be reviewed for acceptance under 4b and removed from the State’s 303(d) list –If waters show no improvement, 5r waters would be re-prioritized for TMDL development on the State’s 303(d) list* * This is where DOW takes a somewhat different approach

Watershed Approach: 4B, 5R, WBP In lieu of 5R, DOW is conducting Watershed Based Planning with local watersheds –Does not obligate DOW to the reporting, etc. requirements that come with 5R –DOW simply re-prioritizes the PWC for TMDL development * No objection to either 5R or 4B; just simpler to not designate and move forward with WBP

Watershed Plan A strategy that provides assessment and management information for a geographically-defined watershed, including the analyses, actions, participants, and resources for developing and implementing the plan. The watershed approach to planning uses a series of cooperative, iterative steps to characterize existing conditions, identify and prioritize problems, define objectives, develop protection or remediation strategies, and implement and adapt actions as needed. DOW provides funding through the federal §319(h) Nonpoint Source Pollution Control Grant for watershed plan development and implementation. Funding has been allocated to these projects since Plans funded with 319(h) funds must meet 9 criteria (a-i) established by EPA. Watershed Planning Guidebook for Kentucky Communities* *

319(h) Watershed Plan criteria (a-i) a.Identification of causes of impairment and pollutant sources or groups of similar sources that need to be controlled to achieve needed load reductions, and any other goals identified in the watershed plan. Sources that need to be controlled should be identified at the significant subcategory level along with estimates of the extent to which they are present in the watershed (e.g., X number of dairy cattle feedlots needing upgrading, including a rough estimate of the number of cattle per facility; Y acres of row crops needing improved nutrient management or sediment control; or Z linear miles of eroded streambank needing remediation). (Chapters 5, 6, and 7.) b.An estimate of the load reductions expected from management measures. c.A description of the nonpoint source management measures that will need to be implemented to achieve load reductions in paragraph 2, and a description of the critical areas in which those measures will be needed to implement this plan. d.Estimate of the amounts of technical and financial assistance needed, associated costs, and/or the sources and authorities that will be relied upon to implement this plan.

319(h) Watershed Plan criteria (a-i) e.An information and education component used to enhance public understanding of the project and encourage their early and continued participation in selecting, designing, and implementing the nonpoint source management measures that will be implemented. f.Schedule for implementing the nonpoint source management measures identified in this plan that is reasonably expeditious. g.A description of interim measurable milestones for determining whether nonpoint source management measures or other control actions are being implemented. ( Chapter 12.) h.A set of criteria that can be used to determine whether loading reductions are being achieved over time and substantial progress is being made toward attaining water quality standards. i.A monitoring component to evaluate the effectiveness of the implementation efforts over time, measured against the criteria established under item h immediately above.

Watershed Planning Currently the Kentucky §319(h) program has funded 31 watershed planning projects resulting in: –16 approved plans –8 plans under development –7 partially completed plans Of the 16 approved plans, currently 13 have additional §319(h) funding for implementation. New EPA NPS guidance focuses on implementation of TMDLs and watershed plans SRF funding provides additional points for communities with watershed plans

Nutrient Reduction Strategy Kentucky is developing a statewide nutrient reduction strategy Address the issues identified in the Nancy Stoner memo of March 17, Utilize data, relationships and tools that Kentucky has available (e.g. AWQA) Develop new tools and initiatives to better manage nutrients from both point and non-point sources

Status of General Permits 1.Industrial “Other” Stormwater (KYR00) ~1100 coverages –Public Notice of draft KYR00 in fall, 2012 –Significant comments received –Met with key stakeholders to review concern –Amended draft KYR00; at public notice until end March, Expect final May 1 2.Individual Residences (KYG40) ~1470 coverages –At public notice this week –Removes sampling requirements 3.Non Coal Mining (KYG84) ~230 coverages –Expire 12/31/2012 –In drafting

Status of General Permits 4.DOT Maintenance Facilities (KYG50) 129 coverages –Expired 3/31/ KYG11 Ready Mix Concrete Products (New) ~50 coverages –KRMCA has provided input 5 –In Drafting Others covered under broaden scope of KYR00 –KYR20 Primary Metals –KYR25 Wood Preserving –KYR30 Coal Pile Runoff –KYR31 Oil and Gas –KYR50 Landfills KYG04 Coal Mining expires 7/31/2014 KYG2 – Stormwater MS4 expires 3/31/2015

PCS to ICIS Transition DOW converting from Permit Compliance System (PCS) to Integrated Compliance Information System (ICIS-NPDES) Data conversion from PCS to ICIS-NPDES for all but ~200 permits (seamless to permittees) NetDMR: production submittal of DMR data via NetDMR (online): ~315 permits –Represents about 15% of the permits that will be going into NetDMR –Any permit that gets DMR, except Coal, KYR00 Voluntary participation in NetDMR: encouraging facilities to participate –Cheaper; easier –Instant feedback on compliance –Can view the reporting requirements on line –File upload: flat file upload option to NetDMR –Online training available from EPA –Contact –Signature agreement: CROMMER security requirements

Changes in DOW Management Jon Trout is now the manager of the Resource Planning and Program Support Branch Elizabeth Coyle is now the supervisor of the Wet Weather Section in Surface Water Permits Branch Shane Cook is now the supervisor of the Dam Safety Section in the Water Infrastructure Branch