ADEQ Awaits EPA Approval to Administer NPDES

Meanwhile NPDES Phase II Deadline Looms

The National Pollution Discharge Elimination System is an issue of timely importance in today's state water quality news, with two newsworthy NPDES events getting attention. For one, the Arizona Department of Environmental Quality awaits U.S. Environmental Protection Agency approval for authority to administer the NPDES program. Also, with a March 10, 2003 deadline just around the corner, a number of Arizona entities need to gear up to comply with NPDES Stormwater Phase II regulations.

ADEQ's application for NPDES primacy is in the works. With all requirements duly met, ADEQ expects EPA approval will be forthcoming to enable the agency to administers NPDES. At present, EPA administers the program in Arizona, in cooperation with ADEQ, with permits jointly drafted by EPA and ADEQ. The federal agency, however, actually issues the permits. Arizona now is among only six states without NPDES primacy.

In 2000, ADEQ began its initiative to replace NPDES with AZPDES (Arizona Pollutant Discharge Elimination System). In June 2002, a final application was submitted to EPA. The following month EPA determined that AZPDES was complete, and according to the Clean Water Act, the agency then had 90 days to make a ruling. Oct. 9 marked the end of the 90-day period.

Chris Varga, manager of the Surface Water Permits Unit at ADEQ, says, "EPA did not rule, nor have they asked for an extension thus far. The current status therefore is that no one in Arizona is authorized to sign permits, neither EPA nor ADEQ, until a decision is made about our program. We have every expectation that EPA will approve our application."

The final issue to be resolved is between EPA and the U.S. Fish & Wildlife Service and relates to the Endangered Species Act obligations with respect to "indirect" effects of NPDES permits; i.e. those not directly related to water quality discharges.

When AZPDES takes charge a few changes will occur. The most obvious will be that instead of EPA, ADEQ will now issue permits and have enforcement authority, with records and monitoring reports submitted to the state agency. Further, Varga says AZPDES applications will be handled more directly. He says, "We are a state agency, subject to permitting time frames by rule. We have to process things quickly, within certain timelines or get penalized."

Also Varga says that ADEQ will be able to keep closer tabs on situations since the agency will be closer to permitted sites or facilities applying for permits. Inspections can more readily take place and meetings arranged with interested parties. He says, "We think by being closer to the regulated parties, we will be able to do a better job."

Some controversial issues also arise with Arizona assuming NPDES primacy. For example, the state, in taking on a what was previously a federal responsibility, will not at the same time have responsibility or authority to implement or enforce the federal Endangered Species Act. If the U.S. Fish & Wildlife Service now has objections to an EPA action, the permit might be withheld or mitigating activities required. It will be different with the state.

Varga says, "When we get the program we will send draft permits to USFWS as a matter of public notice as we would to any other interested party. If we get comments we may incorporate them or try to resolve them, especially if they deal with water quality. If issues are not resolved the Service can then go to EPA and ask the agency to object to our permit. So there is still a way for the Service to get involved but it is not a direct nexus anymore. "

In issuing stormwater permits the state also will not be bound by restrictions relating to the National Environmental Protection Act nor the National Historical Preservation Act. Regardless of whether the state or the federal government is in charge, however, the same water quality standards are enforced.

In assuming primacy for the NPDES program, ADEQ will not get any additional federal funding. Federal funds already pay about 40 percent of the state's expenses in its role as program partner. No additional federal funding is anticipated to be available when the state becomes the sole NPDES administrator.

When the state Legislature authorized ADEQ during the 2001 regular session to pursue NPDES primacy it established nine new full-time AZPDES positions. The people filling these positions are now gearing up to take on NPDES responsibilities and will perform AZPDES duties when the state has program primacy.

Arizona's NPDES primacy bid is being finalized at about the time that NPDES Stormwater Phase II is scheduled to be implemented. Phase II follows Phase I, which was promulgated in November 1990, and targeted stormwater discharges from communities with a population of at least 100,000. Also subject to Phase I regulations were certain industrial activities and construction sites of five acres or more.

Promulgated in December 1999, the final NPDES stormwater regulations for Phase II focus on small municipalities and construction sites, with the intent of broadening the law's coverage. Municipalities and construction site operators must apply to the permitting authority for authorization to discharge by Mar.10, 2003.

That Phase II is coming due during a transitional period has raised some logistic concerns. General permits were scheduled to be available by December for Phase II municipalities and construction sites, with a March filing date. With the state primacy issue still not officially resolved, questions arise whether EPA or ADEQ will be the permitting authority. In an attempt to resolve the issue, the two regulatory agencies worked together to develop permits for Phase II municipalities. The documents were co-noticed in both the Federal Register and the Arizona Register. Either EPA or ADEQ can therefore sign off on a permit, depending upon which agency is in charge at the time.

EPA, however, is currently not expected to issue Phase II construction permits until February despite a December deadline. Both agencies are drafting versions of the permit but are not at the point of co-noticing them.

The adjustments taking place as part of the transitional period has added to the confusion of some entities confronting Phase II compliance. They should, however, be seriously preparing to meet the upcoming Phase II compliance requirements. For more information about Phase II compliance contact ADEQ, either Robert Wilson (602-771-4574) or Karyn Moldenhauer (602-771-4449).

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