NCG530000 EPA Preliminary Review Comments 20231115

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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objection, if the draft permit modification is not withdrawn by the NCDEQ.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