NCG530000 EPA specific objection 20231215

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REGION 4
ATLANTA, GA 30303
December 15, 2023
Mr. Richard Rogers
Director, Division of Water Resources
North Carolina Department of Environmental Quality
1617 Mail Service Center
Raleigh, North Carolina 27699-1617
Re: EPA Specific Objection for a Draft Modification to the National Pollutant Discharge Elimination
System (NPDES) General Permit for Aquaculture and Seafood Packing Facilities in North Carolina
(NCG530000)
Dear Mr. Rogers:
On October 6, 2023, the Environmental Protection Agency Region 4 (EPA) received the public notice for
the above -referenced draft permit modification, completing the North Carolina Department of
Environmental Quality's (NCDEQ) submittal of the draft permit modification for EPA review. The EPA
has reviewed the draft permit under the EPA/North Carolina Memorandum of Agreement (MOA) and
the NPDES implementing regulations at 40 Code of Federal Regulations (CFR) § 123.44.
On November 15, 2023, the EPA sent a letter to NCDEQ outlining our preliminary concerns regarding
how the draft permit did not comply with the Clean Water Act (CWA) and its implementing regulations.
In our letter we recommended that NCDEQ withdraw the draft permit modification from EPA review,
and either leave the current permit in place without modification or resubmit a draft permit
modification that adequately addressed the concerns. The EPA has not received a notification from
NCDEQ that the draft permit has been withdrawn from our review.
Therefore, this letter provides notice of our specific objection to the draft modified general permit in
accordance with MOA Section IV.B and 40 CFR § 123.44. The EPA determined that the draft permit was
prepared without following several CWA procedural requirements, and that the draft permit fails to
meet certain substantive CWA requirements. The EPA provides the specific reasons for the objection in
enclosure 1.

To address EPA's specific objections, NCDEQ must submit a revised permit and fact sheet which
addresses and meets the terms of these objections in accordance with the MOA Section III.B.6 and 40
CFR § 123.44(j).1 Within 90 days of the receipt of this letter, NCDEQ may request that a public hearing
be held on any of the specific objections in accordance with MOA Section IV.B.7 and 40 CFR § 123.44.2
If a public hearing is not held and NCDEQ does not submit a proposed permit that has been revised to
meet our specific objection within 90 days of receipt of this objection, exclusive authority to issue a
modification to the permit passes to the EPA for the remainder of the permit term in accordance with
40 CFR § 123.44(h).
Generally, when authority to issue a permit passes to the EPA following a specific objection, EPA
proceeds to issue the permit in a manner that meets applicable CWA requirements. In this case,
however, there is a valid existing general permit that does not expire until November 30, 2026. In
these circumstances, where EPA has not identified any deficiencies with the existing general permit,
and no basis for modification of the existing general permit meeting the criteria of 40 CFR § 122.62(a)
has been identified, instead of proceeding to issue its own permit modification, EPA will simply leave
the current permit in place which will continue to authorize discharges from facilities covered by the
current permit. Under this scenario, NCDEQ will remain the permitting authority with respect to the
already existing current permit, which will remain in force.
In the event NCDEQ issues a modified general permit pursuant to the NC legislation after EPA's specific
objection, EPA's objection nullifies the permit modification for CWA NPDES purposes. If such a
modified permit is issued by NCDEQ it will have effect only under State law and will not authorize
discharges under the CWA. Any permittee who proceeds to discharge under a State -law -only permit
and does not comply with the general permit that remains in effect for CWA NPDES purposes will be
potentially subject to enforcement action by the EPA, NCDEQ, or a citizen. Should NCDEQ proceed to
issue the modified general permit because it believes that it has a mandatory duty to do so under the
State legislation, we request that NCDEQ clearly specify in the fact sheet and permit, and in any
publicity regarding the modified permit, that it is effective for state law purposes only, that it does not
authorize any discharges for CWA NPDES purposes, and notify all permittees that the existing general
permit remains in effect for CWA NPDES purposes.
Additionally, pursuant to MOA Section IV.C.3, the EPA hereby terminates the waiver to review any
aquaculture or seafood packing draft individual permits developed by NCDEQ so that the EPA can
confirm that future permits issued to these industrial sectors in North Carolina are issued in
compliance with CWA requirements. All such draft individual permits shall be submitted for the EPA
review in accordance with MOA Section IV.B.
'Notification by NCDEQthat is electing to formally withdraw the draft permit modification and leave the existing permit in place will
also adequately address this objection.
2 Any request for a hearing on an objection and the procedures for resolving any objection shall be governed by 40 CFR § 123.44, as
provided in MOA Section IV.B.7.

Should you require any further information, please have your staff contact Mr. Kip Tyler at (404) 562-
9294 or [e-mail]. Questions regarding legal concerns can be directed to Mr. Paul Schwartz at
[phone] or [e-mail].
Sincerely,
Digitally signed by
CESAR
CESAR ZAPATA
ZAPATA 14:4102-0500'S 3
Cesar Zapata, Acting Director
Water Division
Enclosures
1. Basis for EPA's Specific Objection
2. EPA letter identifying preliminary concerns sent to NCDEQ on November 15, 2023
cc: Mr. Keith Larick
North Carolina Farm Bureau (via email)
Mr. Steven Troxler
North Carolina Department of Agriculture and Consumer Services (via email)

Enclosure 1
Basis for EPA's Specific Objection:
1. The procedures followed in development of the draft modification failed in material respects to
comply with procedures required by the CWA and its implementing regulations.
According to the draft fact sheet developed by NCDEQ, the draft permit modification ("draft
modification") is based on the North Carolina Senate Bill 582 (legislation). The legislation dictates
that NCDEQ reopen and modify the above -referenced general permit, which was issued in 2021
(the "current permit"), to be "substantively identical" to the previous version of the permit issued
in 2018 ("2018 permit"). The draft modification would result in replacement of the current permit
with a permit that reduces the requirement to conduct quarterly monitoring of nine parameters
with the previous permit's monitoring provisions requiring only annual monitoring for four
parameters. The draft modification would also eliminate enhanced best management practices
(BMP) provisions that are included in the current permit.
As explained in an EPA letter to NCDEQ dated November 15, 2023, the legislation effects changes
to North Carolina's authorized NPDES Program and inappropriately requires NCDEQto modify a
permit and prohibits NCDEQ from following the necessary process for permit development in
accordance with CWA Section 402 requirements. As an NPDES Program revision, the legislation
must be submitted to EPA for review and approval pursuant to 40 CFR § 123.62. Furthermore,
pursuant to 40 CFR § 123.62(b)(4), a state program revision is not effective until approved by EPA.
The legislation has not been submitted to EPA for review, nor has it been approved by EPA.
Therefore, NCDEQ has improperly developed the modified general permit based on new NPDES
state program requirements that have no legal effect for CWA purposes. Moreover, by following
the legislation's direction to include only permit conditions that have been pre -determined by the
state legislature, NCDEQ has failed in material respects to comply with permit development
procedures required by the CWA and its implementing regulations. The legislation has prevented
NCDEQ from developing the permit based on the application of its judgment and expertise to the
facts in consideration of the various CWA regulatory requirements.
The permit development procedures for the draft modification do not comply with required
procedures in the following ways:
a. According to the approved NPDES Program description submitted to EPA pursuant to 40 CFR §
123.22(a) and (b), NCDEQ is the entity responsible for administering North Carolina's
authorized NPDES program and developing NPDES permits, in accordance with procedures
outlined in the submitted program description. According to the fact sheet for the draft
modification, the terms and conditions of the permit have instead been mandated and pre-
determined by an act of the State legislature, in violation of the State's approved NPDES
program and the approved procedures for development of NPDES permits. Accordingly, the
draft permit failed in material respects to comply with permit development procedures
required by the CWA and its implementing regulations.

b. According to 40 CFR § 122.48, state NPDES programs are required to establish appropriate
monitoring conditions in NPDES permits based on the permitting agency's consideration of a
variety of factors, including determination of the type, intervals, and frequency of monitoring
sufficient to yield data which are representative of the monitoring activity. Because all of the
terms and conditions of the draft modification were pre -determined and mandated by act of
the State legislature, NCDEQ has failed in material respects to comply with permit development
procedures required by the CWA and its implementing regulations for development of
monitoring conditions.
c. According to 40 CFR § 122.44(d), State permitting authorities are required to use specific
procedures to determine the need for, and include, when needed, effluent limits and
monitoring necessary to achieve State water quality standards established under the CWA.
Because all the terms and conditions of the draft modification were pre -determined and
mandated by act of the State legislature, NCDEQ has failed in material respects to comply with
permit development procedures required by the CWA and its implementing regulations for
determining the need for and developing effluent limits necessary to achieve water quality
standards.
d. According to 40 CFR § 124.11, State permitting agencies are required to have a public comment
period on proposed NPDES permits and consider all public comments in making a final permit
decision. Because all the terms and conditions of the draft modification were pre -determined
and mandated by act of the State legislature, NCDEQ has failed in material respects to comply
with permit development procedures required by the CWA and its implementing regulations for
accepting and considering public comment. As a result of the legislation, NCDEQ is prevented
from meaningfully involving the public in the permit development process, as required by 40
CFR § 124.11.
e. According to CWA Section 402(b) and 40 CFR § 123.24(b)(2), State permitting programs are
required to submit proposed NPDES permits to EPA for review and comment. Because all the
terms and conditions of the draft modification were pre -determined and mandated by act of
the State legislature, NCDEQ has failed in material respects to comply with permit development
procedures required by the CWA and its implementing regulations for review by EPA and
consideration of EPA comments. As a result of the legislation, NCDEQ is prevented from
meaningfully considering EPA comments in the permit development process, as contemplated
by 40 CFR § 123.24.
The foregoing is not an exhaustive list of the procedural deficiencies in the permitting process but
rather highlights some of the significant ways that the legislature's act of pre -determining permit
terms and prohibits NCDEQ from utilizing its judgment to develop permit terms consistent with
applicable regulations. Because the legislation bypasses so many procedural requirements of the
NPDES permit development process, the draft modification is subject to objection pursuant to 40
CFR § 123.44(c)(3), which authorizes an EPA objection when "the procedures followed in
connection with formulation of the proposed permit failed in a material respect to comply with
procedures required by CWA or by regulations thereunder or by the Memorandum of Agreement."

2. The draft modification fails to ensure compliance with water quality standards (WQS) as required
by 40 CFR § 122.44(d).
As described above, the draft modification would reduce the monitoring frequency and eliminate
effluent monitoring for five of the nine parameters that are required to be monitored for under the
current general permit.3 Additionally, the draft modification would remove the prohibition of
specific discharges and practices,4 as well as eliminate certain BMP conditions that were not
included in the 2018 permit. As a result of these changes, the draft modification fails to ensure that
the permit includes limitations or conditions that are as stringent as necessary to meet WQS, as
required by CWA Section 310(b)(1)(C) and 40 CFR § 122.44(d), and is therefore subject to objection
under 40 CFR § 123.44(c)(8).
Based on the fact sheet for the current permit, certain new effluent monitoring and enhanced BMP
provisions in the current permit were included, in response to the results of an aquaculture
industry study, to ensure compliance with North Carolina's WQS. Specifically, from 2017-2020,
several State agencies and private groups studied effluent water quality and BMPs at fish farms
throughout North Carolina.' NCDEQ documented in the fact sheet for the current permit that these
monitoring conditions were based on EPA's effluent limitation guidelines for concentrated aquatic
animal production (CAAP) facilities at 40 CFR Part 451,E best professional judgement to achieve
water quality protection, North Carolina's guidelines and regulations, State WQS, and the "State's
need to know potential impacts to a receiving waterbody." Data generated through the permit's
monitoring provisions, and added protections afforded by the enhanced BMPs, could inform future
decision -making by NCDEQ regarding the establishment of appropriate permit limits for the
facilities subject to the permit. The added protections afforded by the enhanced monitoring
requirements and enhanced BMPs in the current permit ensure that the current permit includes
limitations that are as stringent as necessary to meet WQS.
Significantly, under 40 CFR § 122.28(b)(3), permitting authorities could require specific facilities to
obtain an individual permit if information developed through monitoring shows that a facility is
causing or contributing to a WQS violation and more stringent conditions are necessary to meet
applicable WQS. For example, data developed through monitoring could inform a future decision to
require individual permits with more stringent effluent limits or to create subcategories of
dischargers that might appropriately be subject to different permit requirements, either more or
less stringent. Because the draft modification eliminates monitoring provisions that would alert
NCDEQ of the need for enhanced controls to protect water quality and eliminates certain BMP
permit conditions that were developed in part to meet WQS, the draft modification fails to include
3 The currently effective permit contains monitoring for the receiving stream condition on a weekly frequency and quarterly monitoring
for the effluent flow rate, temperature, pH, total ammonia nitrogen, settleable solids, total suspended solids, total phosphorus,
dissolved oxygen, and turbidity. The draft modified permit reduces the monitored parameters to effluent flow rate, settleable solids,
total suspended solids, and dissolved oxygen to an annual sampling frequency.
4 NCDEQ's 2021 draft permit record states that Permit Part I added prohibited discharges and prohibited practices "based on EPA's
individual CAAP [concentrated aquatic animal production] permit." These prohibited discharges and practices are not specified within
the draft modified permit or the 2018 permit.
5 The study included effluent sampling and BMP improvements at multiple aquaculture facilities. The study was a collaboration between
NCDEQ, NC Department of Agriculture and Consumer Services, NC Aquaculture Association, NC Farm Bureau, and NC State University.
6 The 2018 permit referenced the CAAP regulations at 40 CFR Part 451 but also contained language which described the BMPs
inaccurately. The current permit more clearly and accurately incorporates the CAAP requirements, an improvement from the previous
permit.

requirements necessary to meet WQS, as required by 40 CFR § 122.44(d)(1) and CWA Section
301(b)(1)(C), and is therefore subject to objection under 40 CFR § 123.44(c)(8).
3. Annual effluent sampling is not representative of the monitored activity.
Under 40 CFR § 122.48, permits are required to include monitoring provisions of "type, intervals,
and frequency sufficient to yield data which are representative of the monitored activity, including,
when appropriate, continuous monitoring." 40 CFR § 122.41(j)(1) also requires sampling to be
"representative of the monitored activity." EPA's NPDES Permit Writers' Manual provides national
guidance on establishing an appropriate monitoring frequency on a case -by -case basis. It states
that "to establish a monitoring frequency, the permit writer should consider the variability of the
concentration of various parameters by reviewing effluent data for the facility (e.g., from discharge
monitoring reports) or, without actual data, information from similar dischargers. A highly variable
discharge should require more frequent monitoring than a discharge that is relatively consistent
over time" (see Section 8.3). Effluent monitoring results at aquaculture facilities can be variable
and are dependent on when the sampling occurs (i.e., during feeding, cleaning, or harvesting) and
other facility specific factors like effluent flow rate, aquatic species production amounts, feed rates
and feed types, and the degree that BMPs are implemented. Annual monitoring frequencies are
typically not sufficient for continuous discharges unless a comprehensive facility -specific evaluation
is performed to determine if it is appropriate to reduce effluent sampling frequencies.'
The current permit and draft modification records do not contain a justification for reducing the
effluent sampling frequency. In the absence of a project specific performance -based analysis that
considers effluent sampling results taken during critical periods, the draft modification's reliance on
annual monitoring is inadequate and not representative of the monitored activity. The draft
modification's elimination of effluent monitoring for five of the nine parameters that are required
to be monitored for under the current permit and its decrease of the frequency of monitoring to
only annual monitoring for four pollutant parameters is insufficient to meet these regulatory
requirements. The effluent pollutants being monitored in the current permit are relevant
parameters for the aquaculture industry that are clearly connected to North Carolina's numeric and
narrative WQS.
Therefore, the draft modification is subject to objection pursuant to 40 CFR § 123.44(c)(5), which
authorizes EPA objections when permit provisions relating to monitoring or sampling are
inadequate.
4. The draft modification violates the anti -backsliding provisions of 40 CFR § 122.44(1).
EPA regulations require that the effluent limitations, standards, or conditions in NPDES permits
must be at least as stringent as the effluent limitations, standards, or conditions in the previous
permit, except under limited circumstances when grounds for "backsliding" apply (40 CFR §
7 EPA published a guidance document that provides a recommended approach for permitting authorities to evaluate if it is appropriate
to reduce monitoring frequencies under certain circumstances. EPA's Interim Guidance for Performance -based Reductions of NPDES
permit Monitoring Frequencies is available at: www.epa.gov/sites/default/files/2014-08/documents/interim-guidance-for-performance-
memo-1996.pdf
4

122.44(I). As described above, the draft modification contains less stringent effluent limitations
than the existing permit because of the removal of certain BMP requirements, discharge
prohibitions and prohibitions of certain practices. The draft modification also substantially reduces
the monitoring conditions compared to the existing permit.
Such relaxation of the current permit's limits and monitoring requirements can be made under 40
CFR § 122.44(I) only when "the circumstances on which the previous permit was based have
materially and substantially changed since the time the permit was issued and would constitute
cause for permit modifications or revocation and reissuance under 40 CFR § 122.62." The only
reason cited for the changed provisions in the draft permit modification's fact sheet is a statutory
change to the State's NPDES permit program that has not yet been submitted to EPA for review
and approval and is therefore not effective for CWA NPDES purposes. Because this does not
constitute grounds for permit modification under 122.62 (see item 5 below), there is not a
legitimate basis for relaxing permit provisions and thus the draft modification violates the anti -
backsliding provisions under 40 CFR § 122.44(I). The draft modification is therefore subject to
objection under 40 CFR § 123.44(c)(1) and (7).
S. Cause does not exist to modify the current permit under 40 CFR § 122.62.
40 CFR § 122.62 provides the reasons that a NPDES permit can be modified and states that if cause
does not exist to modify a permit under 40 CFR § 122.62 (modification, revocation, and reissuance)
or 40 CFR § 122.63 (minor modifications), "the director shall not modify or revoke and reissue the
permit."
The draft modification record does not identify any applicable grounds for such modification under
40 CFR § 122.62. As noted above, the only reason cited to modify the permit is a statutory change
to the State's NPDES permit program effected by the legislation, a program revision that has not
yet been submitted to the EPA for review and approval and is therefore not effective for
CWA/NPDES purposes.
To justify a permit modification, the NCDEQ must provide an explanation in the fact sheet
describing the applicable "cause" for permit modification that meets the criteria established under
40 CFR § 122.62. Because NCDEQ has not done so, the draft modification is subject to objection
under 40 CFR § 123.44(c)(1) and (7).

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REGION 4
ATLANTA, GA 30303
November 15, 2023
Mr. Richard Rogers
Director, Division of Water Resources
North Carolina Department of Environmental Quality
1617 Mail Service Center
Raleigh, North Carolina 27699-1617
Re: Preliminary Review of Draft Modification to National Pollutant Discharge Elimination System
(NPDES) General Permit for Aquaculture and Seafood Packing Facilities (NCG530000); Senate Bill 582
Dear Mr. Rogers:
On October 6, 2023, the U.S. Environmental Protection Agency received the public notice for the
above -referenced draft permit modification completing the North Carolina Department of
Environmental Quality's (NCDEQ) permit submittal for EPA review.' The fact sheet accompanying the
draft permit modification indicates that the North Carolina Legislature, in Senate Bill 582, dictated the
specific terms of the draft permit modification and directed NCDEQ to issue the permit modification by
December 24, 2023. However, EPA's 90-day review period for the draft permit does not close until
January 4, 2024. EPA will attempt to complete its review prior to the December 24, 2023, deadline set
by the legislation, but EPA's Clean Water Act (CWA)-based right to take the full 90-days for review
cannot be circumscribed by state legislation. The permit will not be effective for CWA purposes if the
state chooses to issue the permit without affording EPA its full review opportunity.
Based on a preliminary review, EPA has significant concerns that the substantiative terms of the draft
modification to the NPDES permit do not comply with CWA requirements, as outlined below, and is
potentially subject to EPA objection. We suggest that NCDEQ withdraw the draft permit modification,
and either leave the current permit in place without modification or resubmit a draft permit
modification that adequately addresses the concerns outlined in this letter below. EPA will continue its
review and intends to follow this letter with more detailed comments and, potentially, a specific
objection, if the draft permit modification is not withdrawn by the NCDEQ.
'The public notice is among the documents that must be submitted to EPA to commence EPA's review period pursuant to Section V.6.2
of the EPA -NC NPDES Memorandum of Agreement (MOA). EPA has 90 days to review all general permits pursuant to MOA Section IV.B.10
and 40 CFR § 123.44(a)(2).

Unapproved Program Revision
As an initial matter, Senate Bill 582 effects changes to North Carolina's authorized NPDES Program. The
legislation dictates that NCDEQ reopen and modify the above -referenced permit to be "substantively
identical" to the previous version of the permit issued in 2018. This would result in replacement of the
current permit with a permit that reduces the requirement to conduct quarterly monitoring of nine
parameters with the previous permit's monitoring provisions requiring only annual monitoring for four
parameters. The modification would also eliminate enhanced best management practices (BMP)
provisions that are included in the current permit. By preempting the normal NCDEQ permit
development process with statutorily dictated permit provisions, the legislation changes the
authorized NPDES program. Such changes include, with respect to this permit:
a. Replacement of NCDEQ with the state legislature as the entity determining permit terms. Under
40 CFR § 123.22 (a) and (b), the authorized state program description must include a
description of the processes of the State program and a description of the organization and
structure of the State agency responsible for administering the program. The state legislature
has not previously been identified to EPA as having responsibility for administering the
program, nor has development of permit terms through state legislation been described as part
of the process of permit development. Thus, the legislation changes key aspects of the North
Carolina NPDES program;
b. Elimination of the ability of NCDEQ to ensure compliance with all permitting requirements
specified in CWA Section 402(b) and in 40 CFR § 123.25, including requirements established in
40 CFR § 122.43 (establishing NPDES permit conditions), and 40 CFR § 122.48 (establishing
monitoring requirements);
c. Elimination of the ability of NCDEQ to consider water quality impacts in development of the
permit conditions (as required in 40 CFR § 122.44(d));
d. Elimination of the opportunity for the required public participation process to affect the final
permit, as required by 40 CFR § 124.11 ("All comments shall be considered in making the final
decision..."). Because the legislation dictates permit terms, it removes NCDEQ's ability to fairly
consider public comments in making a final decision and makes the public participation process
meaningless; and
e. Elimination of any opportunity for EPA's comments or objections to affect the final permit, in
violation of CWA Section 402(b) and the Memorandum of Agreement established pursuant to
40 CFR § 123.24. Because the legislation dictates permit terms, it removes NCDEQ's ability to
fairly consider EPA comments in making a final decision; in effect making the EPA comment
process meaningless.
The legislation applies only to a single general permit, but the legislation changes North Carolina's
authorized NPDES program in how the permit was developed; therefore, it is subject to the procedural
requirements governing NPDES program revisions in 40 CFR § 123.62. Under 40 CFR § 123.62, program
revisions must be submitted to EPA for review and approval. Furthermore, pursuant to 40 CFR §
123.62(b)(4), a state program revision is not effective until approved by EPA. According to the NCDEQ
fact sheet, the draft permit is based on the North Carolina legislation, curtailing EPA's review, and
approval role for the underlying program revisions. The legislation inappropriately limits the State's
ability to develop this permit in accordance with CWA Section 402 requirements. Even if the legislation

was submitted for EPA review and approval as required, it would be unlikely to receive approval
because of the many ways it deviates from CWA requirements.
Preliminary Identification of Concerns with Terms of Draft Permit Modification
EPA has the following substantive concerns relating to the terms of the draft permit modification.
1. Water Quality Concerns
As described above, the modified permit would reduce the monitoring frequency, reduce the
number of parameters to be monitored' and eliminate certain BMPs. According to the fact sheet
for the current permit, the effluent monitoring and enhanced BMP provisions in the current permit
were included to address water quality concerns and regulatory requirements. Specifically, from
2017-2020, several state agencies and private groups studied water quality and BMPs at fish farms
throughout North Carolina. The provisions in the current general permit were based on the results
of this study to ensure compliance with North Carolina's water quality standards. Data generated
through the permit's monitoring provisions, and added protections afforded by the enhanced
BMPs, increase water quality protection and inform future decision -making by NCDEQ regarding
permitting for this industry.
Under 40 CFR § 122.28(b)(3), permitting authorities can require specific facilities to obtain an
individual permit, if information developed through monitoring shows that a facility is causing or
contributing to a water quality standards violation and more stringent conditions are necessary to
protect water quality. The current permit also includes a reopener (the reopener is not included in
the draft modified permit) that would allow additional requirements to be added to the permit to
address information developed through the required monitoring. For example, data developed
through monitoring could inform a future decision to create subcategories of dischargers that
might appropriately be subject to different requirements, either more or less stringent. Because
the modified permit reduces or eliminates the monitoring and BMP permit conditions, EPA is
concerned that the modified permit will not afford adequate water quality protections.
2. Adequacy of Monitoring
Under 40 CFR § 122.48, permits are required to include monitoring provisions of "type, intervals
and frequency sufficient to yield data which are representative of the monitored activity, including,
when appropriate, continuous monitoring." 40 CFR § 122.41(j)(1) also requires sampling to be
"representative of the monitored activity." The draft permit modification's specification of only
annual monitoring for four pollutant parameters raises questions of adequacy under these
regulatory provisions. The effluent pollutants being monitored in the currently effective permit are
relevant parameters for the aquaculture industry that are clearly connected to North Carolina's
numeric and narrative water quality standards.
Effluent sampling results at aquaculture facilities can be variable and are dependent on when the
sampling occurs (i.e., during feeding, cleaning, or harvesting) and other facility specific factors like
' The currently effective permit contains monitoring for the receiving stream condition on a weekly frequency and quarterly monitoring
for the effluent flow rate, temperature, pH, total ammonia nitrogen, settleable solids, total suspended solids, total phosphorus,
dissolved oxygen, and turbidity. The draft modified permit reduces the monitored parameters to effluent flow rate, settleable solids,
total suspended solids, and dissolved oxygen to an annual sampling frequency.

flow rate, aquatic species production amounts, feed rates and feed types and the degree that BMPs
are implemented. Annual monitoring frequencies are typically not sufficient for continuous
discharges unless a comprehensive facility -specific evaluation is performed to determine if it is
appropriate to reduce effluent monitoring frequencies. The currently effective permit and draft
modified permit records do not contain a justification for reducing the effluent sampling frequency.
In the absence of a project specific performance -based analysis that considers effluent sampling
results taken during critical periods, the modified permit's reliance on annual monitoring is
inadequate and not representative of the monitored activity.
3. Prohibited Backsliding and Permit Modification Without Cause
By replacing the current permit's monitoring requirements with less stringent monitoring and BMP
requirements, the draft permit violates the anti -backsliding provisions of 40 CFR § 122.44(I). Such
relaxation of existing monitoring requirements can be made under 40 CFR § 122.44(I) only when
"the circumstances on which the previous permit was based have materially and substantially
changed since the time the permit was issued and would constitute cause for permit modifications
or revocation and reissuance under 40 CFR § 122.62."
The draft permit modification does not identify any applicable grounds for such modification under
40 CFR § 122.62. In fact, due to the compliance schedule in the currently effective permit that
allowed two -years before certain pollutants were sampled on a quarterly basis, there is a very
limited amount of new effluent data available at this time. The only reason cited for the changed
provisions is a statutory change to the State's NPDES permit program effected by Senate Bill 582, a
program revision that has not yet been submitted to EPA for review and approval and is therefore
not effective for CWA/NPDES purposes. Moreover, to the extent that the statutory provision
constitutes "new information" within the meaning of section 40 CFR § 122.62(a)(2), this provision
does not "justify the application of different permit conditions," as it seeks to dictate permit
provisions in a way that preempts required CWA permitting processes. This is not a legitimate basis
for relaxing permit provisions that have been previously justified under EPA's applicable statutory
and regulatory requirements and applicable water quality standards.
As noted above, EPA will continue review of the draft permit modification and provide further
comments, and potentially an objection, within the 90-day period for review of the draft permit
modification. In the event EPA follows this letter with a specific objection to the draft permit, and
NCDEQ does not submit a revised permit that addresses EPA's objection, then authority to issue the
permit modification would pass to EPA pursuant to CWA Section 402(d) and 40 CFR § 123.44(h).
However, since the existing general permit will not expire for several years, EPA may elect in that event
to simply leave the current general permit in place rather than issuing a modification. Authority to
modify the permit would pass to EPA, and NCDEQ would be blocked by the specific objection from
issuing any further modification to the general permit for the remainder of its term.
For the reasons described above, we request that NCDEQ consider withdrawing the draft permit
modification and allowing the current permit to remain in place. EPA further requests that, before
implementing the NPDES program modification effected by Senate Bill 582, that NCDEQ submit the
proposed modification for review by EPA in accordance with the procedures specified in
4

40 CFR § 123.62. Should you require any further information or have any questions, please feel free to
give me a call at [phone], or have your staff contact Mr. Kip Tyler at [phone] or
[e-mail].
Sincerely,
CESAR
Digitally signed by
CESAR ZAPATA
ZAPATA
Date: 203.1
16:33:28-05'00'S
Cesar Zapata
Acting Director
Water Division
cc: Mr. Keith Larick, North Carolina Farm Bureau
Mr. Steven Troxler, North Carolina Department of
Agriculture and Consumer Services