NARRATIVE WATER QUALITY CRITERION UNDER NPDES GIEC Annual Meeting November 2, 2017 Patricia T. Barmeyer

What is the problem? The current narrative water quality standard provides: All waters shall be free from material related to municipal, industrial or other discharges which produce turbidity, color, odor or other objectionable conditions which interfere with legitimate water uses. Ga. Comp. R. & Regs. r. 391-3-6-.03(5)(c).

NPDES Permit Appeal to OSAH ALJ held that the narrative standard bars a wastewater discharge that interferes with the water quality expectations of any water user, whether reasonable or not, for any legitimate uses. Designated use of the River (Fishing) not taken into account. ALJ reversed the permit.

Appeal to Superior Court Superior Court reversed the ALJ and affirmed the NPDES permit. Held the narrative standard prohibits “unreasonable interference” with legitimate water uses. Does not prohibit a minor, insignificant interference. Extensive use of the River for fishing and recreation proves no “unreasonable interference.”

Court of Appeals Granted the discretionary appeal Briefs to be filed in late 2017 Amicus briefs will be considered Oral argument in February, 2018, if granted Decision by July, 2018

What is the Risk? Court of Appeals, or the Georgia Supreme Court, could agree with the ALJ’s overly literal reading of the narrative water quality standard. Opponents argue for the “plain meaning” interpretation of the narrative standard adopted by the ALJ.

Potential Implications for NPDES Program How can regulators, dischargers, ALJs or courts apply a standard that defers to the subjective views of even the most fastidious potential user of the waterbody? High risk of citizen suits—most POTW permits and some industrial permits include the narrative standard as a permit condition.

How to Address the Problem Strong amicus support in the Court of Appeals. Need the Court to understand the broad implications of the issue. Input from industries and from cities and counties will have an impact.

Clarify the Rule DNR Board can amend and clarify the narrative water quality standard, to make it clear that the rule prohibits only a discharge that unreasonably interferes with designated uses of the River. Would be consistent with the Water Use Classifications and different levels of protection.