UNIFIED COMMENT

The [insert name of city] is concerned that the Texas Commission on Environmental Quality (TCEQ) use of the phrase “waste discharge permit” when referring to municipal separate storm sewer system (MS4) discharge permits will require discharges from these systems to meet numeric effluent limitations defined in Chapter 319, Subchapter B, of Title 30 the Texas Administrative Code (TAC). The imposition of numeric limitations on discharges from MS4s would be contrary to the provisions of the Clean Water Act, EPA policy and TCEQ’s own policies.

[Name of city] believes that the Clean Water Act does not authorize EPA or any delegated state to impose effluent limitations of any type (numeric or narrative) on discharges from MS4s [see 33 U.S.C. Sec. 1342 (p)]. To avoid the imposition of numeric limits within Chapter 319, without conceding its position that it is not appropriate to impose effluent limitations of any type on discharges from MS4s, and because current TCEQ regulations require the imposition of default numeric effluent limitations for certain metals unless a waste discharge permit specifies effluent limitations for those metals, [name of city] urges the Commission to include language in discharge permits for MS4s explicitly stating that the control approaches and best management practices detailed in the permittee’s Storm Water Management Program shall be viewed as effluent limitations for all pollutants for purposes of compliance with Commission regulations.

Section 319.28 of Title 30 of the TAC¹ states in part that “[i]n all waste discharge permits that the commission may issue, renew or amend, the quality levels specified in this subchapter shall apply where the commission does not establish specific effluent limitations regarding a particular hazardous metal.” Sections 319.22 and 319.23 of that subchapter specify maximum allowable numeric concentrations of twelve metals for discharges to inland and tidal waters.

Commission staff has indicated that it intends to use the San Antonio MS4 permit as a “template” for all subsequent discharge permits for medium and large MS4s (also known as “Phase I MS4s”). The draft discharge permit for the City of San Antonio ’s MS4 states that it is a “PERMIT TO DISCHARGE WASTES”. Further, the draft San Antonio MS4 permit does not explicitly specify effluent limitations for the twelve metals specified in Chapter 319. As a result, pursuant to the provisions of Section 319.28, the City of San Antonio could be subject to the numeric effluent limitations in Section 319.22 for inland waters. Further, if the San Antonio MS4 permit is used as a model for other medium and large MS4 discharge permits, [name of city] and other Phase I MS4s could be subject to these numeric effluent limitations as well.

[Name of city] believes the application of specific numeric effluent limitations in our and other’s Phase I MS4 permit is inappropriate and contrary to national and state policies and procedures for the following reasons:

First, unlike the Clean Water Act provisions for industrial storm water discharges that explicitly require that those discharges meet effluent limitation requirements, the Clean Water Act instead requires that permits for MS4s require controls to reduce the discharge of pollutants to the maximum extent practicable. See 33 U.S.C.§ 1342(p)(3) [emphasis added]. Had Congress intended that discharges from MS4s must meet effluent limitations, they could have said so. Given that they did not, TCEQ should not exceed Clean Water Act requirements by imposing numeric effluent limitations on MS4 discharges.

Second, Section 307.8(e) states that “controls on the quality of storm water discharges shall be based on best management practices, technology-based limits, or both in combination ….” The draft permit appears to incorrectly implement this provision of the state water quality standards. [name of city] believes that in this context “controls” are synonymous with “effluent limitations” and an explicit acknowledgement of this in MS4 permits would facilitate clearer implementation of TCEQ policy and avoid the incorrect application of 319 numeric limits.

Third, in Procedures to Implement the Texas Surface Water Quality Standards, TCEQ Publication RG-194 (January 2003), TCEQ states on page 128 that “TPDES storm water permits do not contain numerical water quality based effluent limits. Instead they emphasize requirements that facilities must prevent or effectively reduce exposure of storm water to pollution.” Application of the numeric limits in Chapter 319 to MS4 discharges would be contrary to this provision of the Implementation Procedures.

While imposing numeric effluent limitations on MS4 discharges is not appropriate, treating the control approaches and best management practices in an MS4’s Storm Water Management Program as effluent limitations is supported by the Clean Water Act, other TCEQ regulations and EPA policy. Both the Clean Water Act and TCEQ regulations define the term “effluent limitations” as “[a]ny restriction imposed on quantities, discharge rates, and concentrations of pollutants which are discharged from point sources” into waters of the United States or in the state. [33 U.S.C. § 1362(11)], [CWA § 502(11)], and 30 TAC § 305.2 [emphasis added[. The requirement to develop best management practices constitutes a restriction on the MS4’s discharges and so should be viewed as an effluent limitation. This interpretation is supported by EPA’s Interim Permitting Approach for Water Quality-Based Effluent Limitations in Storm Water Permits, Publication EPA 833-D-96-001 (September 1996), which notes in its discussion of Clean Water Act Section 502 on page 1 that “[t]he Clean Water Act does not say that effluent limitations need be numeric.” These sources provide additional evidence that our proposed remedy is sound.

Accordingly, the [name of city] strongly requests that the Commission insert the following language at the end of the third paragraph in Part III.A of the draft San Antonio MS4 permit, and all other Phase I MS4 permits, to avoid the automatic imposition of the Chapter 319 numeric effluent limitations:

The control approaches and best management practices included in the SWMP, which will reduce the discharge of pollutants to the maximum extent practicable, shall be viewed as effluent limitations for all pollutants for purposes of all TCEQ requirements and regulations.

[name of city] believes that the addition of this text will adequately address pollutant reduction objectives without imposing the numeric limits required by Chapter 319, which would be contrary to federal and state policies and implementation procedures. We urge the Commission to make our proposed revision.