Clean Water Act Requirements for Airports (2016)

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3 Governing Federal Programs This section describes the background of water-related regulations, and the federal pro- grams that are the regulatory drivers for airport stormwater and water resources management programs. 2.1 Regulatory Background Initial efforts to regulate water pollution in the United States were enacted in the Federal Water Pollution Control Act of 1948 (FWPCA). The FWPCA was significantly amended in 1961, 1966, 1970, and 1972. With the 1972 amendments, the FWPCA became more commonly known as the CWA. The CWA establishes the basic structure for regulating discharges of pollutants into the waters of the United States (WOTUS) and regulating quality stan- dards for surface waters. In addition to the CWA, the Oil Pollution Act, Safe Drinking Water Act, and Rivers and Harbors Act have applicability to water issues at airports. These regulations are enacted through a variety of federal programs. 2.2 Waters of the United States Key in determining the applicability of CWA programs is an understanding of what consti- tutes WOTUS. The term “waters of the United States” has caused much confusion and contro- versy and has resulted in a number of U.S. Supreme Court rulings. In 2006, the U.S. Supreme Court determined that WOTUS includes: • Traditional navigable waters; • Wetlands adjacent to traditional navigable waters; • Non-navigable tributaries of traditional navigable waters that are relatively permanent; and • Wetlands that directly abut non-navigable tributaries. This and subsequent rulings do not appear to provide necessary clarity. On June 29, 2015, EPA and the U.S. Army Corps of Engineers (USACE) issued a final regulation attempting to clarify what is and what is not a WOTUS. That rulemaking was challenged by states, regulated parties, and non-governmental organizations in various federal district and appellate courts across the country alleging that EPA and USACE had unlawfully expanded their CWA jurisdiction through the rulemaking. As of the time of this writing, all of those C H A P T E R 2 The EPA’s NPDES Permit Writers’ Manual is an excellent source of in-depth information on NPDES permits, permitting considerations, and how permits are developed by federal and state authorities. Search using the following key words: NPDES Permit Writer’s Manual Additional and updated informa- tion on the WOTUS regulations and definition can be found on EPA’s website. Search using the following key words: Waters of the United States Clean Water Rule

4 Clean Water Act Requirements for Airports cases have been consolidated into the Sixth Circuit Court of Appeals, which ordered a national “stay” of the effective date of the new WOTUS definition. In response, EPA and USACE issued a joint memorandum requiring nationwide use of the prior regulations defining WOTUS. The current applicable definition of WOTUS is: • All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide. • All interstate waters including interstate wetlands. • All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natu- ral ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters. – Which are or could be used by interstate or foreign travelers for recreational or other purposes; or – From which fish or shellfish are or could be taken and sold in interstate or foreign com- merce; or – Which are used or could be used for industrial purposes by industries in interstate commerce. • All impoundments of waters otherwise defined as waters of the United States under this definition. • Tributaries of waters identified in paragraphs (s)(1) through (4) of this section. • The territorial sea. • Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not WOTUS. WOTUS do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the CWA, the final authority regarding CWA jurisdiction remains with EPA. 2.3 NPDES Permit Program CWA Section 402 created the National Pollutant Discharge Elimination System (NPDES) pro- gram to authorize point-source discharges of pollutants to WOTUS consistent with the CWA. Point sources include treated wastewater from domestic, commercial, and industrial sources. The Water Quality Act of 1987 amended the CWA to include regulation of certain discharges of pollutants in stormwater runoff under the NPDES program. Under the CWA, airports are required to obtain an NPDES permit for any direct discharges of process wastewater and various, but not all, types of stormwater runoff. Other indirect dis- charges of deicing or other industrial wastes sent to a publicly owned treatment works (POTW) for treatment require authorization and often a permit from the POTW’s operating authority. Regulatory topics that frame the context for specific requirements in these permits are discussed in the following subsections. Details on the various permits issued under the CWA are provided in Chapter 3. 2.3.1 Direct and Indirect Discharges Pollutant discharges to WOTUS may be direct or indirect depending on site-specific circum- stances and proximity to WOTUS. Direct sources discharge pollutants directly into receiving water bodies. Indirect sources discharge pollutants to POTWs, which in turn discharge into

Governing Federal Programs 5 receiving water bodies. Airports that capture runoff from deicing operations for treatment or recycling (or that have other onsite operations that generate wastewater that is captured and sent to POTWs) may have both direct and indirect discharges subject to regulation under the CWA and NPDES program. The NPDES permit program requires that direct dischargers of pollutants to WOTUS obtain an NPDES permit from EPA or an authorized state equivalent. All but four states have applied for and been authorized to administer the NPDES program in their state. EPA retains this author- ity and issues NPDES permits in Idaho, Massachusetts, New Hampshire, and New Mexico, as well as in other territories including Washington, DC, Puerto Rico, and Native American and federally owned properties. Indirect discharges are regulated by the CWA’s National Pretreatment Program. EPA or delegated state NPDES pretreatment programs authorize local municipalities to perform per- mitting, administrative, and enforcement tasks for discharges into the municipalities’ POTWs. 2.3.2 Effluent Limitations in NPDES Permits NPDES permits contain two types of effluent limitations to control pollutants in discharges. The first is technology-based limitations, which are established nationally on an industry-specific categorical basis. The other is water quality–based limitations, which are determined by the per- mitting authority to reflect site-specific requirements to protect local water quality. Technology- based limitations do not exist for all types of discharges, but where they have been established by EPA they set the technology floor for all NPDES permits for that type of discharge. Water quality–based limitations are applied in situations where the permitting authority has deter- mined that technology-based limitations are insufficient to protect local receiving water bodies to maintain minimum water quality goals and uses. Both types of limitations may be expressed in terms of concentration or mass-based numerical limits or quantitative performance require- ments, or, in certain circumstances, best management practices. Best management practices are particularly applicable when it is difficult to calculate or justify numeric limits, as is often the case with many variable and intermittent stormwater discharges. 2.3.2.1 Technology-Based Limitations Section 304(m) of the CWA mandates the development and implementation of technology- based effluent limitations (TBELs) for industrial sectors where EPA has determined that nation- ally applicable and economically achievable best available technologies exist for similarly situated industry categories. TBELs are promulgated through Effluent Limitation Guidelines (ELG), which establish minimum national technology-based requirements to control discharges from the target industry. EPA may also establish new source performance standards (NSPS) as part of the ELG process for certain categories of new dischargers. The philosophy underlying NSPS is that new facilities are uniquely able to implement technologies that may not be practical to implement at existing facilities. It is important for permittees to understand that, although TBELs are based on specific available treatment technologies, the NPDES program allows the discharger to use any available control technique to meet the ELG standards or limitations. In 2012, EPA promulgated Effluent Limitations Guidelines and New Source Performance Standards for the Airport Deicing Category (FR 77:95 [29167–29205]), sometimes called the Deicing ELG, which established TBELs for airport discharges containing aircraft and airfield deicing products. EPA determined that the best available technology for controlling pollutants in airfield pavement deicing operations is to prohibit airfield deicers that contain urea or, in the alternative, to force airports that use urea to collect and treat all stormwater discharges to strict numeric limits. As a result, existing and new primary airports with 1,000 or more annual jet departures (non-propeller aircraft) that generate wastewater associated with airfield pavement

6 Clean Water Act Requirements for Airports deicing are required to either use non-urea-containing deicers or meet a max- imum daily numeric effluent limitation of 14.7 mg/L for ammonia as nitrogen. The Deicing ELG also established NSPSs for aircraft deicing at all new airports, with the exception of those located in Alaska. These standards only apply to certain entirely new (i.e., green field) airports. To be subject to the NSPS, a new airport must be in an area with more than 3,000 annual heating degree days and have an anticipated 1,000 or more annual departures within 5 years of commencing operations. The NSPSs consist of both a collection standard and an effluent limitation concentration. Qualifying new airports are required to collect 60 percent of available ADF, defined as “75 percent of the normalized Type I aircraft deicing fluid and 10 percent of the normalized Type IV aircraft deicing fluid, excluding aircraft deicing fluids used for defrosting or deicing for safe taxiing.” The reader is cautioned that the NSPS for aircraft deicing may be misunderstood or misinterpreted to assert that the Deicing ELG requires collection of aircraft deicing runoff associated with existing or new facilities at existing airports, when that is not EPA’s intent or what the final Deicing ELGs require. Other TBELs may be applicable to an airport’s stormwater discharges if there are non-aviation industrial activities for which TBELs exist located at the airport. The adjacent call out box describes how the complete listing of industrial categories for which ELGs have been promul- gated can be obtained. In the absence of TBELs, permit writers may, on a case-by-case basis, use their best professional judgement (BPJ) in setting discharge limitations. Such determinations are a special type of TBELs. 2.3.2.2 Water Quality–Based Limitations Water quality–based effluent limits (WQBEL) are site-specific limitations determined on the basis of the unique characteristics and needs of the discharge and the receiving water body. WQBEL are typically employed to protect the designated uses of a particular water body where TBELs are judged to be insufficient. WQBELs are commonly developed where discharges are to waters that do not currently meet water quality standards (i.e., are impaired). The limits are derived from an analysis of existing upstream water quality, the characteristics of the discharge, and the water quality criteria applicable downstream of the discharge. In most, but not all cases, these limits are more stringent than nationally applicable TBELs. Where both TBELs and WQBELs are available for a given parameter, the more restrictive of the two will typically be incorporated into the final NPDES permit. 2.3.2.3 Total Maximum Daily Load Program The total maximum daily load (TMDL) program can be another basis for WQBELs. States are generally responsible for characterizing their protected waters by establishing what are called designated uses. Examples of designated uses include Protection of Aquatic Life, Public Water Supply, and Water Contact Recreation, but generally may be referred to as fishable or swimmable. When a water body is not meeting its designated use, usually demonstrated by failure to con- sistently maintain water quality standards associated with those uses, it is considered impaired. Under Section 303(d) of the CWA, states are required to periodically prepare and submit lists of impaired waters to EPA, and initiate efforts to ensure that the waters will ultimately meet their designated use, or failing that, change the designated use. These efforts are formalized through the development and issuance of a water body-specific TMDL, essentially a “pollutant diet” for that water body. A TMDL identifies and describes the sources of pollutants causing the impairment in a water body, and the maximum amount of those pollutants that the water body can receive while A complete listing of industrial categories for which ELGs have been promulgated is available on EPA’s ELGs webpage. Search using the following key words: EPA Effluent Limitation Guidelines

Governing Federal Programs 7 supporting all designated uses. The TMDL allocates that total allowable amount among the reg- ulated and unregulated sources. For regulated discharges, these allocations are incorporated into their NPDES permits. TMDLs take precedence over TBELs or more localized WQBELs, and can require regulated sources to meet more stringent permit limits than a similarly situated source on an unimpaired water body. As is the case with other NPDES discharge permit restrictions, limits based on TMDL allocations may take the form of concentration or mass-based numerical limits, quantitative performance requirements, or best management practices. 2.3.3 Anti-Degradation and Anti-Backsliding Anti-degradation provisions in the CWA are intended to prevent waters that currently meet standards from becoming impaired as the result of new or increased existing discharges. These provisions require that the current level of water quality be maintained and protected unless it can be shown that allowing a reduction in water quality is “necessary to accommodate important economic or social development in the area where the waters are located.” (40 CFR 131.12) This is accomplished through preparation of an anti-degradation demonstration, the structure and details of which are outlined in the applicable state or federal regulations. Even with a successful demonstration, existing uses must be fully protected and assurance is required that there will be a high level of control imposed on the new or increased discharges. The CWA also contains anti-backsliding provisions that generally prohibit reducing the strin- gency of limits in an existing or subsequently issued permit for a discharger. Anti-backsliding is a serious obstacle to an airport seeking to correct limits or requirements in an existing permit that are outdated, inappropriate, or unnecessary to protect water quality. To justify less strin- gent limits, the anti-backsliding provisions require demonstration that specific anti-backsliding exceptions apply: either technical mistakes were made, new information is available that was not previously available, and/or significant changes have been made to the facility. 2.3.4 Incidental Discharges from Commercial Vessels In addition to stormwater and wastewater discharges, CWA Section 402 establishes authority for the NPDES permitting program to regulate discharges incidental to the normal operation of a commercial (i.e., non-military, non-recreational) vessel when operating as a means of trans- portation. “Incidental discharges” covered under these regulations include ballast water, bilge- water, graywater (e.g., water from sinks, showers), and deck washdown and runoff. Airports that operate work boats, ferries, or other vessels may be subject to the Vessel General Permit (VGP). 2.4 Pesticide General Permit In 2003, EPA took initial steps to resolve issues pertaining to pesticides reg- ulated under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) that apply to WOTUS. In 2010, EPA published a draft NPDES permit for point-source discharges from the application of pesticides to WOTUS, other- wise known as the Pesticide General Permit (PGP). The PGP provides cov- erage for discharges where EPA is the NPDES permitting authority. States authorized to administer the NPDES permitting program for pesticide dis- charges issue their own NPDES permits. On October 31, 2011, the EPA issued its final PGP applicable in the geographic areas where the EPA is the NPDES permitting authority. In the remaining areas, EPA authorized the state or territory to develop and issue pesticide permits. The 2011 PGP expired on October 31, 2016. EPA published the draft PGP in the Federal Register on Details on the PGP and its current status may be found on the Pesticide Applications page of EPA’s NPDES website. Search using the following key words: EPA Pesticide General Permit

8 Clean Water Act Requirements for Airports January 26, 2016. The comment period for the draft closed on March 11, 2016, and EPA indi- cated its intention to reissue the PGP no later than October 31, 2016. Because this process is in progress at the time of this writing, the most up-to-date information is available on the NPDES website. 2.5 Section 404 Permits Program CWA Section 404 was established in 1972 under EPA’s guidance for discharges of dredge or fill materials into WOTUS, including wetlands. The USACE is responsible for administering CWA Section 404 although EPA has oversight authority. USACE has developed 49 nationwide permits for various activities that may affect wetlands. The most common situation where Section 404 applies to an airport is where airport prop- erty contains wetlands that are within WOTUS (see Section 2.1). Prior to beginning construc- tion, development activities, or other activities that affect the physical or biological properties of these areas, the airport must confirm if the wetlands are federally regulated (i.e., WOTUS). Where wetlands are determined to be federally regulated, the airport may be required to obtain a Section 404 permit. The need for a permit is based on wetland acreage impacts. Impacts that are below regulatory thresholds may not need a permit. Permit options are either a nationwide permit (if applicable) or an individual permit, as discussed in Section 3.7. 2.6 Rivers and Harbors Act Section 10 of the Rivers and Harbors Act of 1899, as amended, established a permit program for activities that might create obstruction to the navigable capacity of traditional navigable WOTUS, including wetlands. Examples of obstructions include jetties, breakwaters, piers, booms, and bulkheads that adversely affect navigation. USACE is responsible for enforcing the provisions of Section 10 pursuant to 33 CFR Part 322. If work in traditional navigable WOTUS or structures affect navigation, a Section 10 permit is required to be issued by USACE before activities commence. Although small streams located on airport property may not appear to be navigable, if they are tidal or otherwise designated as a traditional navigable water by USACE, they are covered under Section 10. Section 10 jurisdiction extends up to mean high water in tidal areas and the width of the waterway where designated as a navigable water. Wetlands and waterways above mean high tide and adjacent to tidal waters, including hydraulically connected streams and wetlands, are also regulated by USACE but under CWA Section 404, as discussed previously. 2.7 Other Relevant Federal Programs There are several additional federal programs that apply to water-related issues at airports as summarized below. 2.7.1 Oil Pollution Act and SPCC The Oil Pollution Prevention regulation was promulgated in 1973 under CWA Section 311. Its purpose is to prevent oil from reaching navigable waters and adjoining shorelines, and to contain discharges of oil. The prevention aspect of the rule required facilities with certain threshold oil storage capabilities to develop Spill Prevention, Control, and Countermeasure (SPCC) plans. The SPCC regulations were revised significantly in 2009 (40 CFR Part 112).

Governing Federal Programs 9 In 1990, the Oil Pollution Act (OPA) amended the CWA to require significant oil storage facilities to prepare and submit a Facility Response Plan (FRP) to EPA, outlining the facility’s plan for addressing a worst-case discharge of oil. These three conditions must be met for a facility to be subject to the SPCC rule. 2.7.1.1 Non-Transportation-Related Facility The term transportation-related pertains specifically to the transport of oil in commerce, such as a commercial tanker truck transporting oil from its bulk oil terminal to a gas station over public roads. Non-transportation-related facilities involve oil that is distributed from bulk storage containers or vehicles operating solely within the confines of the facility. This distinc- tion is often a source of confusion for airport operators because they may mistakenly consider an airport a transportation-related facility and therefore exempt from EPA’s SPCC program. However, storage of oil (including gasoline) at an airport for use at the airport is considered non-transportation-related for purposes of SPCC. 2.7.1.2 Oil Storage Capacity Thresholds Exceeded Thresholds consist of total aboveground oil storage capacity greater than 1,320 gallons or a completely buried oil storage capacity greater than 42,000 gallons. Tanks and containers with individual oil storage capacity of 55 gallons or greater, and not associated with the propulsion of a vehicle (i.e., its gas tank), are included in the determination. Completely buried oil storage tanks, such as underground storage tanks (UST) are exempt from the SPCC rule if they are regu- lated under a state- or federally approved UST program and fully compliant with all applicable UST requirements. However, some UST are not subject to all of the technical requirements of the federal or state UST requirements (e.g., emergency generator UST, heating oil UST) and therefore may be subject to SPCC. The typical regulated containers at airports include aboveground storage tanks (AST), drums, emergency generators, mobile refuelers, towable equipment (including snow melters), and oil-filled operational equipment (e.g., transformers, elevator reservoirs, and hydraulic lifts). 2.7.1.3 Reasonable Potential to Discharge into WOTUS To assess the potential for a discharge to reach WOTUS, an airport must consider its proximity and various possible pathways for spill conveyance (e.g., storm drain, drainage ditch, sheet flow, etc.). Since many airports are located near streams or rivers, or have drainage that conveys to these resources, the potential for a discharge to WOTUS typically exists. Types of airport operations that may result in a discharge of oil include fueling, maintenance activities, drum handling, and AST/UST filling. Floor drains or other sanitary piping at an airport that may be conveyed to a POTW should also be considered a potential discharge pathway. An airport that satisfies all three conditions is subject to SPCC requirements, including the development and implementation of an SPCC plan. SPCC plans are maintained on site and subject to inspection by qualified federal, state, or local inspectors. In addition, the SPCC regu- lations allow an airport to subdivide its property and require tenants in various areas to assume SPCC plan obligations and responsibilities. 2.7.2 Safe Drinking Water Act The Safe Drinking Water Act (SDWA) was established in 1974 to protect public health through regulation of drinking water supplies. The SDWA was amended in 1986 and 1996 to protect the sources of drinking water, such as rivers, lakes, reservoirs, and ground water. Today, the SDWA applies to every public water system in the United States. Responsibility for implementation

10 Clean Water Act Requirements for Airports of the SDWA is shared between EPA, states, territories, and tribes. Currently, all states and territories, except Wyoming and the District of Columbia, have been delegated authority for implementation of the SDWA. One of EPA’s major responsibilities under the SDWA is establishing National Primary Drink- ing Water Regulations (NPDWR) for public water systems. Contaminant concentrations at which there are no known health risks, called maximum contaminant level goals (MCLGs) are the basis for primary drinking water standards to protect human health. Each contaminant has a designated concentration level for drinking water, called a maximum contaminant level (MCL). Drinking water contaminants must not exceed the established MCL and may require treatment to ensure MCLs are met. Secondary maximum contaminant levels (SMCLs) have also been established based on aesthetic drinking water qualities, such as color, odor, and taste. These standards are not enforced by the EPA, but are recommended to be implemented by drinking water suppliers. State drinking water programs, or EPA in the case of Wyoming and the District of Columbia, ensure water systems are tested for contaminants, review plans for water system improvements, conduct onsite inspections and sanitary surveys, provide training and technical assistance, and take action against water systems that do not meet standards. Airports are classified as noncommunity water systems, regardless of whether they obtain their drinking water from a municipal system or operate their own drinking water treatment and dis- tribution system, and must periodically test drinking water to ensure water quality requirements are met. Testing parameters depend on drinking water source and treatment technologies (i.e., disinfection). Reports of the analytical data may be required to be sent to the EPA or state resource agencies responsible for ensuring drinking water quality requirements are adequately met. Air carriers typically board aircraft drinking water using designated watering points, which are regulated by the Food and Drug Administration (FDA). Once water is onboard the aircraft, the EPA is responsible for regulating the distribution of water for consumption. In 2011, EPA published the Aircraft Drinking Water Rule (ADWR, 40 Code of Federal Regulations [CFR] 141.800), which designated air carriers as transient, noncommunity drinking water systems and provided specific regulations for ensuring adequate drinking water quality from aircraft. Under the ADWR, air carriers supplying drinking water are subject to sampling, maintenance, report- ing, and recordkeeping requirements, and may be subject to audits or inspections to ensure drinking water boarding operations are adequate. In most cases, an airport will not be subject to drinking water permitting requirements under the SDWA. 2.7.3 Groundwater/UIC Program An injection well may be used to dispose of fluid underground into porous geologic forma- tions, which may range from deep sandstone or limestone, to a shallow soil layer. These are some of the uses of injection wells: • Storing water; • Storing CO2; • Disposing of waste fluids; • Enhancing oil production; and • Preventing salt water intrusion. Injected fluids may include water, wastewater, brine (salt water), or water mixed with chemicals.

Governing Federal Programs 11 When the SDWA was originally passed in 1974, it included requirements for EPA to establish a federal–state system to protect public health and pre- vent contamination of underground sources of drinking water (USDW) from underground injection of contaminants. The resulting Underground Injec- tion Control (UIC) program protects USDW from endangerment by setting minimum requirements for injection wells. All injection must be authorized under either general rules or specific permits. Injection wells are overseen by either a state, tribal agency, or EPA regional offices. States and tribes may apply for primary enforcement responsibility (i.e., primacy) to implement the UIC program. EPA has delegated primacy for all well classes to most states and territories. EPA shares responsibility or solely implements programs for all well classes in the remaining states, territories, the District of Columbia, and for most tribes. If a state or tribe does not obtain primacy, EPA implements the program directly through one of its regional offices. For airports, the primary relevance of the UIC program will be in conjunction with Class V injection wells, which are used to inject non-hazardous fluids underground. Most Class V wells are shallow disposal systems that depend on gravity to drain fluids directly in the ground. Storm- water drainage wells that might exist at an airport in various forms are in the Class V category. Stormwater drainage wells are “authorized by rule” which means that a permit is not required as long as the well doesn’t endanger USDW and it complies with federal or state UIC program requirements. Current information on the UIC program can be found on the EPA’s UIC program website. Search using the following key words: EPA underground injection program