Archive for the ‘NPDES’ Category

A Sliver of an Exemption Left in Silviculture Rule

Photo by ッ Zach Hoeken ッ. Some rights reserved.

40 CFR 122.27 (the EPA’s “silviculture rule”) exempts from NPDES permitting all discharges from silvicultural (forestry) activities such as thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance resulting from natural runoff.

But recent opinions from the U.S. Court of Appeals for the Ninth Circuit have restricted the interpretation of this exemption.

In Northwest Environmental Defense Center (NEDC) v. Brown, 617 F.3d 1176,  the Northwest Environmental Defense Center brought suit against Oregon State Forester and members of the Oregon Board of Forestry in their official capacities and various timber companies for their failure to obtain permits for discharges from systems of ditches, culverts, and channels that receive stormwater runoff from two logging roads in the Tillamook State Forest. The Defendants argued that these discharges are “point source” discharges under the Clean Water Act (CWA) and that they therefore require permits under the National Pollutant Discharge Elimination System (“NPDES”).

The Ninth Circuit agreed, filing their original opinion in the case on August 17, 2010. According to Perkins Coie’s Update on the case, the silviculture rule’s exemption for natural runoff “ceases to exist as soon as the natural runoff is channeled and controlled in some systematic way through a ‘discernible, confined and discrete conveyance’ and discharged into the waters of the United States.”

On October 5, 2010, the defendants filed petitions (here and here) for rehearing and rehearing en banc, but just two weeks ago, the Ninth Circuit issued an order and opinion denying the petitions, and environmentalists everywhere rejoiced.

Hurrah!

Clearing Up Oregon’s Definition of Turbidity

Marten Law published an article earlier this week describing the challenges facing Oregon’s Department of Environmental Quality (DEQ) as they revise their 30-year-old definition of “turbidity.”

Photo by John Kratz. Some rights reserved.

What is turbidity? Turbidity is a measure of water clarity or cloudiness, caused by material that is suspended in the water. The material can range from soil particles from eroding watersheds to decaying plant matter to industrial waste discharges. High turbidity can be evidence of pathogens in drinking water, can increase water temperatures, impair photosynthesis, clog fish gills and otherwise harm aquatic life.

While increases in turbidity can often be attributed to human activities such as logging, agricultural practices, or construction, there is also substantial natural variability in a given water body’s turbidity from season to season (as big rains wash excessive sediment into the water) or in mountainous areas (where erosion and glacial flow can cause large changes in turbidity).

Turbidity, as a measure of water quality, is covered by the Clean Water Act (CWA). Under Section 303(c) of CWA, the EPA mandates individual states to develop water quality standards. While the EPA produces publications such as Quality Criteria for Water from time to time, these documents are not regulations in and of themselves, but rather offer data and guidance on which states can develop their own standards.

These standards are used in the evaluation of NPDES permits under CWA Section 402 and dredge and fill permits under CWA Section 404, in determining whether a body of water should be listed as “impaired” under CWA Section 303(d), and also in determining pollutant loading allocations under TMDL programs.

Ideally, states can come up with cold, hard numerical standards – limiting turbidity to a certain number and size of Nephelometric Turbidity Units (NTUs). Of course, actually determining useful absolute standards is much easier said than done. In addition to the inherent variability in a given water body, one must also establish a baseline “background” turbidity for each body of water, as well as grapple with the limitations of differences in instruments and techniques for gathering turbidity data.

Many states, like Oregon, apply a more “relative” approach for turbidity standards. Their current rule (OAR 340-041-0036) states that “No more than a ten percent cumulative increase in natural stream turbidities may be allowed, as measured relative to a control point immediately upstream of the turbidity causing activity.” According to Marten Law, DEQ hasn’t changed the water quality standard in more than 30 years! DEQ’s draft issue paper on the proposed revisions explains that the purpose of the review is to “incorporate best available science regarding the effects of increased turbidity levels.” For a clear explanation of the anticipated changes, don’t forget to check out the Marten Law article.

EPA Listening Session Today on Vessel General Permits

Today from 9-5 the EPA is holding a listening session to obtain feedback from the public on improving the next Vessel General Permit (VGP).

Photo by JamesCanby. Some rights reserved.

The VGP is a Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit that regulates discharges “incidental to the normal operation of vessels operating in a capacity as a means of transportation.” All vessels weighing 300 gross tons or more (or those that have to ability to hold or discharge more than 8 cubic meters of ballast) must apply for coverage under the permit. Vessel operators can submit the requisite Notice of Intent here.

The final version of the most recent VGP became effective in 2008 and is set to expire in 2013. As part of the process for developing the next version, the EPA is seeking input on questions such as “Were parts of the 2008 VGP confusing? Do certain sections need to provide additional guidance?” and “Did the 2008 VGP accurately identify and capture all the discharge categories of discharges incidental to the normal operation of a vessel in the vessel universe?”

The listening session will be held in the EPA East Building at 1201 Constitution Ave. NW, Room 1153, Washington, DC 20004. If you are unable to attend, you can submit comments by email to ow-docket@epa.gov, attention Docket ID No. EPA-HQ-OW-2010-0828.

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