Lake Erie HABs Workshop
Bill Fischbein
S u p e r vi s i n g At t o r n e y Wa t e r P r o g r a m s
M a r c h 1 6 , 2 0 1 2 – To l e d o
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.
 2.
 3.
4
Adopt water quality standards
Issue permits that are protective of water quality
standards (as well as technology limits for some
pollutants)
Determine which waters are not meeting
standards
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 doseresponse 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