WASTE LOAD ALLOCATION RELATED LIMITS AND OTHER TMDL IMPLEMENTATION PERMITTING ISSUES -- NEW YORK STYLE

ISSN： 1938-6478

Source： Proceedings of the Water Environment Federation, Vol.2005, Iss.3, 2005-01, pp. : 1140-1150

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Abstract

New York, like many states, is moving from deriving TMDLs to implementing them. As it does, many of the issues and questions which have been raised in theoretical discussions are now being asked, and answered, in the context of implementation. For example, the New York State Department of Conservation (“NYSDEC” or the “State”), the permitting agency, is modifying State Pollution Discharge Elimination System (“SPDES”) permits to incorporate Total Maximum Daily Load (“TMDL”) related provisions.Issues being explored during New York permit negotiations and sometimes being resolved through the Administrative Permit Appeals Process include: Can a permittee use a permit appeal to challenge a TMDL-based requirement, especially a Waste Load Allocations (“WLA”) based permit limit? Does NYSDEC have any flexibility, or must WLAs be immediately inserted into permits as permit limits? What role does time, i.e. permit modification and compliance dates, play in establishing permit limits? In New York, these and other issues are being decided primarily through permit challenges. Drawing upon work done on POTW permit modifications triggered by both the Long Island Sound Nitrogen and the Lake Champlain Phosphorus TMDLs, the paper presents the current “New York Style” answers to these questions, largely as determined by New York Administrative Law Judges.