MEMORANDUM

TO:		Public Record for the NPDES Electronic Reporting Rule
		EPA Docket Number EPA-HQ-OECA-2009-0274 (www.regulations.gov)	

FROM:	Carey A. Johnston, P.E.
            USEPA/OECA/OC
            ph: (202) 566 1014
            johnston.carey@epa.gov

DATE:		17 November 2012

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SUBJECT: 	Description of the NPDES Program [DCN 0005]
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      As authorized by the Clean Water Act, the NPDES permit program controls water pollution by regulating point sources that discharge pollutants into waters of the United States. Point sources are discrete conveyances such as pipes or man-made ditches. For example, NPDES permits control municipal and industrial sources of wastewater pollution. NPDES permits typically require monitoring and reporting, and limit a facility's discharge of specific chemicals, bulk parameters, and flow to ensure the protection of water quality.
      
      With very few exceptions (e.g., 40 CFR 122.3), point sources require NPDES permit authorization to discharge. The requirement for permit authorization applies to, among other discharges, the discharges from concentrated animal feeding operations that discharge or propose to discharge (40 CFR 122.23), concentrated aquatic animal production facilities (40 CFR 122.24), aquaculture projects (40 CFR 122.25), silviculture (40 CFR 122.27), and certain storm water discharges (40 CFR 122.26, 122.32). NPDES permit authorization is required for discharges from certain municipal separate storm sewer systems (MS4s), storm water discharges associated with industrial activity, and storm water discharges from construction sites with certain acreage thresholds (40 CFR 122.26(c)). Additional storm water discharges also may be designated on a case-by-case basis and required to be authorized under an NPDES permit (40 CFR 122.26(a)(9)). 
      
      In general, facilities are categorized as municipal or non-municipal (a.k.a., "industrial").  In addition, EPA has developed criteria to determine which of the sources should be considered "major" facilities. The distinction was made initially to assist EPA and states in setting priorities for permitting and compliance and enforcement activities. The regulations at 40 CFR 122.2 define major facility as, "any NPDES facility or activity classified as such by the Regional Administrator, or in the case of approved state programs, the Regional Administrator in conjunction with the [s]tate Director." All facilities that are not designated as majors are considered non-major facilities. Through guidance, EPA has established working definitions for POTW and nonmunicipal major facilities. For POTWs, major facilities are those that have a design flow of one million gallons per day or greater or serve a population of 10,000 or more or cause significant water quality impacts. Non-POTW discharges are classified as major facilities on the basis of the number of points accumulated using the NPDES Permit Rating Work Sheet.
      
      The worksheet evaluates the significance of a facility using several criteria, including toxic pollutant potential, flow volume, and water quality factors such as impairment of the receiving water or proximity of the discharge to coastal waters. Historically, EPA has placed greater priority on major facilities, and has required authorized states to provide more information about the compliance status of these dischargers. Specifically, EPA policy created the expectation that the permitting authority enter DMR information from "major discharges" into one of two EPA databases (PCS or ICIS-NPDES).
      
      NPDES permit authorization to discharge may be provided under an individual NPDES permit, which is developed after a process initiated by a permit application (40 CFR 122.21), or under a general NPDES permit, which applies to one or more categories of dischargers (e.g., oil and gas extraction facilities, seafood processors).  (40 CFR 122.28(a)(2)). Authorization to discharge under a general NPDES permit typically occurs upon submission of a "notice of intent" (NOI) to be authorized under the permit (40 CFR 122.28(b)(2)), though submission of a notice of intent is not required for certain types of discharges under certain circumstances (40 CFR 122.28(b)(2)(v)).
      
      NPDES permits may be issued by EPA or by a state, territory, or tribe authorized by EPA to implement the NPDES program. Currently, 46 states and the Virgin Islands have been approved by EPA to administer the NPDES program as well as the general permits program; no tribe is currently approved to administer the NPDES program. States may also receive authorization from EPA to administer the pretreatment program and the biosolids program, two NPDES subprograms. In addition, states may receive approval to regulate federal facilities. Currently, 36 states have been approved by EPA to administer the pretreatment program, 8 states have been approved by EPA to administer the biosolids program, and 42 states and the Virgin Islands have been approved by EPA to regulate federal facilities.  EPA administers the NPDES program in states, territories, and tribes that have not applied for or received approval to implement the program. Under CWA § 402(a)(3), the NPDES permit program administered by EPA is subject to the same terms, conditions, and requirements as apply to a state permit program under CWA § 402(b).
      
      In the early years of the NPDES program, EPA and the states focused on reducing pollutants from specified large municipal and industrial point sources, also known as major facilities. In order to support development of appropriate permit limits and conditions, issuance of effective permits, compliance monitoring, and appropriate enforcement actions, EPA developed measures to track, on a nationwide basis, the information necessary to measure, evaluate and report on these efforts. Over the last twenty-five years, these efforts to establish significant pollutant controls have resulted in important pollutant discharge reductions from traditional major sources. 
      
      Although large municipal and industrial point sources continue to be significant sources of pollution, analysis has shown that smaller point sources also contribute significant amounts of pollutants to our nation's waters. Nonmajor facilities are generally smaller sources and are often regulated under general permits rather than individual permits. In many cases, nonmajor facilities use pollutant control measures based on operational activities rather than on implementation of pollutant control technologies, which are measured with numeric effluent limits on pollutant discharges. The universe of nonmajor dischargers is very large compared to the number of major dischargers. The universe of nonmajor dischargers also includes some large volume discharges that had not previously been regulated with the same types of individual permits used to regulate discharges from major facilities.
      
      EPA is moving toward evaluating water pollution issues on a watershed basis, as it has become clear that the nonmajor municipal and industrial dischargers and storm water dischargers in violation may have significant impacts individually or collectively in specific watersheds. The most recent state reports submitted under CWA § 305(b) and compiled by EPA in the National Water Quality Inventory Reports indicate the growing significance and link between these nonmajor sources and impairments in water quality, particularly from precipitation-induced or "wet weather" point sources of pollutants. These sources include discharges of storm water associated with industrial activity including construction, discharges from concentrated animal feeding operations (CAFOs), and overflows from combined sewer systems (CSSs) and sanitary sewer systems (SSSs). Under Section 305(b) of the CWA, states have consistently reported wet weather point sources as contributors of water quality impairment to U.S. surface waters. Storm water discharges may include a variety of pollutants, such as sediment, oil and grease, chemicals, nutrients, metals, and bacteria. Discharges from CAFOs often include nutrients, organic matter, pathogens, and trace metals.  Overflows from combined and separate sanitary sewer systems pose a significant threat to public health and the environment due to high concentrations of bacteria from fecal contamination, as well as disease-causing pathogens. The pollution controls for wet weather sources are often best management practices (BMPs) rather than traditional end-of-pipe controls. These wet weather sources are high priorities for EPA's enforcement and compliance program and have been for over a decade. 


