Lake Erie HABs Workshop Bill Fischbein Supervising Attorney Water Programs March 16, 2012 – Toledo March 30, 2012- Columbus

The Big Picture Clean Water Act Goal – Restore chemical, physical and biological integrity of nation’s waters

Getting There – 1,000 Foot Perspective 1. Adopt water quality standards 2. Issue permits that are protective of water quality standards (as well as technology limits for some pollutants) 3. Determine which waters are not meeting standards 4 Develop and implement TMDLs for waters that are not meeting standards

Water Quality Standards CWA Section 303(c) – States adopt water quality standards US EPA approves state’s water quality standards US EPA can adopt water quality standards in states that fail to do so.

Water Quality Standards – 2 Components Designated (Beneficial Uses) Primary Contact Recreation Industrial use Aquatic Life Numerical/Narrative Criteria Designed to Protect Uses Ohio has adopted both chemical criteria and biological criteria. Bio criteria are used to evaluate attainment for aquatic life use. Become one of the drivers for permit limits and defining if waters are meeting CWA goals.

“Free Froms” – OAC 3745-1-04 The Alamo of water quality standards Free from materials/substances entering water that…. 3745-1-04(E) Free from nutrients entering the waters as a result of human activity in concentrations that create nuisance growths of aquatic weeds and algae No current specific water quality standard for nutrients

NPDES Permitting Program Key Jurisdictional Terms Discharge of a “Pollutant” From a “Point Source” To “Navigable Waters” Ohio’s definition of waters is broader

NPDES Permits Ohio EPA receives delegation in 1974 Over 3,000 individual NPDES permit in Ohio Many other facilities covered by general permits Controlling point sources is largely a success but there are issues and challenges

Types of NPDES Permits Municipal Wastewater Treatment Facilities Industrial Wastewater Facilities/Businesses Household sewage system that discharges Concentrated Animal Feeding Operations (CAFOs) Certain Storm Water Discharges

Nutrient Limits in NPDES Permits Lake Erie Discharges – discharges over 1 million gallons per day, required to meet total phosphorus of 1 milligram/liter as 30 day average Other permits if TMDL or need identified as part of permit renewal process Considering changes to antidegradation rule that require new or modifications biological treatment with design of .5 mgd to meet technology limits for TP and N

CSO Communities

Storm Water NPDES Permits Congress amended CWA in 1987 to establish NPDES permit requirements for Storm Water Phase I - regulates certain industrial activities MS4 serving populations of 100,000 or more – BMPs to control pollutants Construction Activities for sites 5 acres or larger Phase II – pulls in smaller MS4s and reduces construction threshold to 1 acre

Are We Back to This?

Ohio’s Nutrient Strategy Draft Strategy Document sent to US EPA Region V November 15, 2011; “Conditions in Ohio’s surface waters have reached a critical situation with regards to pollution impacts caused by nutrients.” “This urgent situation requires the immediate attention of State and federal agencies, all affected stakeholders and the public at large.” “However, an honest assessment of the situation reveals that just doing more of the same will not be good enough.”

Key Points Research – fill in gaps where we don’t know. Require technology limits for certain discharges. Adopt Water Quality Standards for Nutrients. More specific direction for nutrient impaired streams in TMDL process.

US EPA’s Focus on Adoption of Nutrient Criteria For over a decade, USEPA has made nutrient pollution and the adoption of State WQS for nitrogen and phosphorus one of the top water program priorities. To date, very few States have adopted WQS for nutrients but are somewhere in the process. (Ohio included) Conflict in approaches between states and US EPA

Why the Absence of Detailed Standards? Challenges in streams: Lack of traditional dose-response curve Many variables at play such that a traditional number does not correlate to accurate picture of whether it will be under or over protective.

Nutrient Study Results and Implications Measurable changes to stream systems occur along a nutrient gradient Complexity of relationship precludes adoption of a single numeric criterion and independent application Problem Exceeding a single threshold or change point does not always result in impairment Solution Include response indicators (e.g., benthic chlorophyll, dissolved oxygen, biocriteria) in a multi-metric water quality criteria

Rulemaking Schedule Ongoing discussions with US EPA on preferred approach; Expect to see interested party activities begin in 2012

Other Efforts Lake Erie Phosphorus Task Force II Director’s Agricultural Nutrients and Water Quality Working Group Point Source Urban Work Group