©Lloyd Gosselink Rochelle & Townsend, P.C. Presented by: LAUREN KALISEK (512) Congress Avenue Suite 1900 Austin, Texas (512) (512) Fax WATER QUALITY UPDATE TWCA 66 TH ANNUAL CONVENTION March 3, 2010

©Lloyd Gosselink Rochelle & Townsend, P.C. COVERED TOPICS I.Federal Caselaw and Programs II.Texas Surface Water Quality Standards and Implementation Procedures III.Pharmaceutical Disposal Advisory Group

©Lloyd Gosselink Rochelle & Townsend, P.C. I. Update on Federal Caselaw and Programs A.Jurisdictional Determinations B.Raw Water Transfer Rule C.Construction Stormwater Rule D.Pesticide General Permit E.EPA Enforcement Program F.EPA Nutrient Standards

©Lloyd Gosselink Rochelle & Townsend, P.C. I.Update on Federal Caselaw and Programs A. Jurisdictional Determinations Rapanos holding Joint Corps/EPA guidance 5 th Circuit interpretations Congressional action

©Lloyd Gosselink Rochelle & Townsend, P.C. I.Update on Federal Caselaw and Programs B.Raw Water Transfer Rule Promulgated by EPA in response to South Florida Water Management District v. Miccosukee Tribe, 541 U.S. 95 (2004) (holding that an NPDES permit is not needed if waterbodies subject to the transfer are “meaningfully distinct”). Rule effective August 12, 2008 and exempts raw water transfers that do not subject the water to an intervening use. Rule was upheld in Friends of the Everglades v. South Florida Water Management District 570 F3d 2010 (11 th Cir. 2009).

©Lloyd Gosselink Rochelle & Townsend, P.C. I.Update on Federal Caselaw and Programs C.Construction Stormwater Rule Issued December 1, 2009 and effective February 1, Establishes nationally applicable effluent limitation guidelines and new source performance standards for construction activities including BMPs and numeric limits for turbidity. Will need to be incorporated into Texas general permit.

©Lloyd Gosselink Rochelle & Townsend, P.C. I.Update on Federal Caselaw and Programs D.Pesticide General Permit EPA 2006 rule exempting pesticide application from NPDES permitting is overturned in National Cotton Council v EPA. Court granted 2 year stay for EPA to develop general permit by April 9, General permit would also need to be adopted as part of TPDES program.

©Lloyd Gosselink Rochelle & Townsend, P.C. I.Update on Federal Caselaw and Programs E.EPA Enforcement Program EPA National Enforcement Initiative for “Keeping raw sewage and contaminated stormwater out of our Nation’s waters.” Focus on reducing discharges from CSOs, SSOs and MS4s.

©Lloyd Gosselink Rochelle & Townsend, P.C. I.Update on Federal Caselaw and Programs F. EPA Nutrient Standards 1998 EPA determination that numeric nutrient criteria are needed. Environmental groups sue EPA in 2008 over lack of numeric criteria in Florida. January 2009 EPA determines numeric criteria are needed for Florida because current state program is not sufficiently protective of uses. January 2010 EPA proposes numeric nutrient criteria for Florida. Under consent decree, EPA must promulgate complete final criteria by October 15, 2010 unless Florida submits is own criteria before EPA takes final action.

©Lloyd Gosselink Rochelle & Townsend, P.C. II. Texas Surface Water Quality Standards and Implementation Procedures A.Schedule and Comment Process B.Significant Revisions 1.Bacteria and Recreational Uses 2.Whole Effluent Toxicity (WET) 3.Nutrient Criteria and Screening

©Lloyd Gosselink Rochelle & Townsend, P.C. II.TSWQS and IPs A.Schedule and Comment Process Proposed TSWQS and IPs approved January 13, Public hearing scheduled for March 11, 2010 in Austin. Comments due March 17, Target adoption date is July 14, 2010.

©Lloyd Gosselink Rochelle & Townsend, P.C. II.TSWQS and IPs B.Significant Revisions 1.Bacteria and Recreational Uses Current Standards do not provide enough distinctions for recreational uses. Proposed revisions would expand recreational use categories from 2 to 4 and revise associated criteria for E. coli, enterococci, and fecal coliform.

©Lloyd Gosselink Rochelle & Townsend, P.C. II. TSWQS and IPs B.Significant Revisions 2.Whole Effluent Toxicity When does WET testing data demonstrate a “reasonable potential” for exceeding toxicity standards? Dispute over EPA approach as set out in the Technical Support Document. Move to impose WET limits based on sublethal test results. Recent correspondence from EPA Region 6 addressing backlog on 30 permits on WET limit issues.

©Lloyd Gosselink Rochelle & Townsend, P.C. II.TSWQS and IPs B.Significant Revisions 3.Nutrient Criteria and Screening Under directive from EPA. TCEQ is proposing to establish site-specific nutrient criteria for certain lakes and reservoirs. Criteria are to be specified in terms of concentrations of chlorophyll a. The criteria are proposed to be applicable at specified monitoring sites in the main pool.

©Lloyd Gosselink Rochelle & Townsend, P.C. II.TSWQS and IPs B.Significant Revisions 3.Nutrient Criteria and Screening IPs propose new screening procedures for determination of TP limits for discharges to streams and rivers. Screening factors include: size of discharge, dilution, type of bottom, depth, clarity, observations of vegetative growth, shading and sunlight, streamflow sustainability, impoundments and pools, consistency with other permits in area, and listings in 305(b) Report.

©Lloyd Gosselink Rochelle & Townsend, P.C. III. Pharmaceutical Disposal Advisory Group Implements SB 1757 from 2009 Legislative Session requiring the study of and recommendations on disposal methods for pharmaceuticals to prevent their entrance into wastewater systems. Report due by end of year. Members represent state and federal agencies, local governments, water utilities, pharmaceutical manufacturers, health care providers, solid waste managers, farmers and ranchers and consumers. For more information, see TCEQ website at:

©Lloyd Gosselink Rochelle & Townsend, P.C. Thanks For Your Participation LAUREN KALISEK (512) QUESTIONS