Water Quality Trading Internal Management Directive [Early DRAFT for policy forum discussion]

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1 Water Quality Trading in NPDES Permits Water Quality Trading Internal Management Directive [Early DRAFT for policy forum discussion] July 14, 2015 Water Quality Division 700 NE Multnomah St. Portland, OR Phone: (503) (800) Fax: (503) Contact: Courtney Brown DEQ is a leader in restoring, maintaining and enhancing the quality of Oregon s air, land and water. 1

2 Alternative formats (Braille, large type) of this document can be made available. Contact DEQ s Office of Communications & Outreach, Portland, at (503) , or toll-free in Oregon at , ext

3 Disclaimer This directive is intended solely as guidance for DEQ employees. It does not constitute rulemaking by the Environmental Quality Commission and may not be relied upon to create an enforceable right or benefit, substantive or procedural, enforceable at law or in equity, by any person. With written managerial approval, DEQ employees may deviate from this directive. DEQ anticipates revising this directive from time to time as conditions warrant. This directive is a draft document developed for discussion purposes at the July 14, 2015 Water Quality Trading Policy forum. Document Development Prepared By: Reviewed By: Approved By: Date: 3

4 Table of Contents 1. Introduction Focus of this IMD... X A. Purpose... X B. Basis for the IMD... X C. Primary Trading Focus: Developed for NPDES Permits... X D. Potential use of trading in other watershed approaches to comply with water quality standards... X 1.2 Water Quality Trading Background... X A. What is water quality trading?... X B. Legal authority... X C. Why has water quality trading developed as a compliance option?... X D. Trading objectives & guiding principles... X 1.3 Examples of Trading... X A. Trading in Oregon... X B. Trading activities nationwide... X 2. Criteria for Water Quality Trading Basic Requirements... X A. Consistency with existing regulations... X B. Federal treatment technology requirements... X C. Implementation through enforceable mechanisms... X D. Implementation according to quality standards... X

5 E. Public participation... X F. Public access to information... X G. EPA oversight... X 2.2 Compliance with antidegradation policy, anti-backsliding, and related federal provisions... X A. Antidegradation policy... X B. Antibacksliding... X C. Requirements for new source or new discharger... X 2.3 Where Trading May Occur... X A. Trading Area... X B. Ecological priorities within a trading area... X 2.4 Eligible Trading Scenarios: Waterbodies... X A. General... X B. High quality waters... X C. Water quality limited waters: before a TMDL or where a TMDL is not required... X D. Water quality limited waters: TMDL implementaiton... X 2.5 Eligible Trading Scenarios: Types of trades... E Intra-plant & intra-municipal point source trading... X F. single buyer Multi-party closed market group trading Multi-party open-market... X G. Pre-treatment... X 2.6 Eligible Credit Buyers... X A. General requirements for permitted buyers... X 1. Role of compliance history... X 2. No localized impacts... X 3. No trading to meet TBELs... X B. Non-permit buyers... X 5

6 2.7 Pollutants and Parameters that May be Traded... X A. Consistency with U.S. EPA Policy... X B. Temperature... X C. Oxygen-demanding parameters... X D. Nutrients... X E. Sediment and suspended solids... X 2.8 Pollutants not being considered at this time... X A. EPA priority pollutants and Oregon priority persistent pollutants... X B. Bacteria... X 2.9 BMP Guidelines & BMP Approval Process... X A. Necessary components of BMP guidelines... X B. Approving new & modified BMPs... X 3. Mechanics of Water Quality Credit Trading Credit Definition and Use... X A. Definition of a credit... X B. How are credits generated?... X C. Credit life... X D. Disposition of unused credits... X E. Duration of credits... X F. Purchasing credits from projects that pre-date approval of a trading plan... X 3.2 Credit Quantification... X A. Quantifying project site water quality benefits... X Calculating net water quality benefit... X B. Quantification methodology characteristics... X C. Quantification methodologies... X 3.3 Trading Baseline... X A. What is trading baseline?... X 6

7 B. Baseline for point sources... X 1. Existing statute, regulation, local ordinance... X 2. TMDLs... X C. Baseline for water quality certifications D. Nonpoint source baseline details 1. Establishing base year... X 2. Individual attainment... X 3. Timing... X 3.4 Trading Ratios... X A. What is a trading ratio?... X B. Ratios s for delivery & attenuation factors... X C. Ratios for pollutant equivalency... X D. Increasing credit values in priority areas... X E. Requirements imposed on the permittees to address program risk & uncertainty... X 3.5 Project Site Monitoring: Direct Measurement & Surrogates... X 3.6 Project Design & Management, Pre-Screening, Implementation Quality Assurance and Stewardship... X A. Background... X B. Initial project site screening... X C. Implementation consistent with other laws... X D. Project implementation and quality assurance... X E. Project design and management plans... X F. Project stewardship... X 3.7 Credit Verification... X A. Background... X 7 B. Process of verifying credits... X

8 C. Responsible entities... X 3.8 Credit Registration... X A. Overview... X B. Permittee responsible for permit compliance... X 3.9 Roles & Responsibilities of Third Parties... X 3.10 Trading Framework 4. Incorporating trades into NPDES permits DEQ Review of Trades... X A. Process for review of proposed trading plans... X B. Information needed from permittees for DEQ to evaluate proposed trading plan... X 4.2 Individual Permit Development... X A. General... X B. overview of permit conditions... X C. Monitoring, reporting & record-keeping... X D. Compliance schedules... X E. Trading placeholder... X F. Necessary components to be addressed in the trading plan... X G. Notice and comment on individual trades not typically required... X 4.3 Documentation of Necessary Details in Permit Evaluation Report (Fact Sheet)... X 4.4 Permit Compliance and Enforcement... X A. Permittee responsible for trading plan performance & deficiencies in performance... X B. Report credit use in Discharge Monitoring report... X C. Annual trading plan report & record-keeping... X D. Compliance schedule milestones... X E. Compliance with key trading plan components... X F. Enforcement of trading-related noncompliance... X 8

9 Appendix A: Protocols for Temperature Trading Riparian Shade Restoration Appendix B: Appendix C: Protocols for Temperature Trading Flow Augmentation... X Protocols for Inter and Intraplant BOD and Ammonia Trading... X Appendix D: Protocols for Nutrient Trading... X Appendix E: Issues for Further Consideration... X 9

10 1. Introduction 1.1 Focus of this IMD A. Purpose The purpose of this internal management directive (IMD) is to guide DEQ staff in their review of water quality trading plans. These plans may be developed and submitted by NPDES permittees, or other entities as a way to comply with water quality-based regulations. This version of the IMD includes new guidance for implementation of Division 39 of Oregon Administrative Rules and provides a consistent framework for evaluating water quality trades implemented through the Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit program. For the purposes of this IMD, a permittee 1 proposes a trading plan that details how that particular permittee plans to implement trading so as to meet its NPDES permit limits. DEQ supports and encourages water quality trading in NPDES permits as well as the development of trading in other water quality programs provided trading activities do not result in adverse impacts to water quality, existing or designated beneficial uses, can address the source or sources of a water quality pollutant, and do not circumvent minimum federal and state treatment requirements. This updated IMD replaces all previous guidance. As DEQ gains more experience with water quality trading issues, the IMD will be modified or new guidance developed as necessary. B. Basis for the IMD This IMD is based on Division 039 of Oregon Administrative Rules, input received during Water Quality Trading policy forums held in 2014 and 2015, and DEQ and stakeholder experience with water quality trading in Oregon. It is also informed by water quality trading policies developed by the Environmental Protection Agency (EPA): U.S. EPA 2003 Water Quality Trading Policy, 2 U.S. EPA s 2004 Water Quality Trading Assessment Handbook, 3 and U.S. EPA s 2007 Water Quality Trading Toolkit for Permit Writers. 4 Other U.S. EPA trading guidance may be viewed at: C. Developed for NPDES permits 1 For the purposes of this document permittee means NPDES permit holders as well as other regulated entities that participate in water quality trading to comply with water quality based regulations. This includes entities that demonstrate compliance with water quality standards as required in 401 of the CWA. 2 U.S. EPA, Water Quality Trading Policy, 68 Fed. Reg (Jan. 13, 2003), available at 3 U.S. EPA, Water Quality Trading Assessment Handbook: Can Water Quality Trading Advance Your Watershed s Goals?, EPA 841-B (2004), available at 4 U.S. EPA, Water Quality Trading Toolkit for Permit Writers (2007), available at 10

11 This IMD will be used by DEQ staff primarily to review and guide water quality trades conducted to comply with total maximum daily load (TMDL) wasteload allocations expressed as water quality-based effluent limitations or other NPDES permit limitations. The IMD is focused on NPDES permittees because DEQ expects the majority of trading activity to be driven by the need to comply with permit requirements developed to implement a TMDL. The IMD may also be used as a to guide staff on how to consider trading proposals in other situations such as trading for 303(d) listed parameters prior to development of a TMDL or for parameters that are not listed as impaired. D. Potential use of trading in other watershed approaches to comply with water quality standards This IMD may be useful to DEQ staff involved with re-certification of a hydroelectric project and development of watershed approaches to comply with water quality standards. However, it is not intended to provide explicit direction on these types of projects because of legal issues typically associated with hydroelectric projects and differences between NPDES permit program and Federal Energy Regulatory Commission regulations. This IMD may also be useful to DEQ staff involved with 401 certifications of fill/removal projects; however, DEQ has not yet explored the opportunities for trading within this program. 1.2 Water Quality Trading Background A. What is water quality trading? Water quality trading is an innovative approach for achieving water quality goals more efficiently than traditional methods. Trading is not appropriate for addressing many water quality challenges, and DEQ must evaluate a trading plan proposal before determining that trading can be successful in a particular situation. In the context of the NPDES permit program and with appropriate safeguards in place, water quality trading may allow a permittee that discharges wastewater to a stream or river to meet its regulatory obligations by: Obtaining equivalent or larger pollutant reductions from another permittee or non-permitted entity; Trading discharge loads between multiple outfalls at a single facility; or Restoring or creating wetlands, floodplains, aquatic or riparian habitat, or other instream conditions in a way that reduces the relevant pollutant loading in the watershed to an equal or greater degree than would occur if the permittee installed treatment technology at the discharge point. B. Legal authority The Clean Water Act provides authority for EPA, states, and tribes to develop a variety of programs and activities to control pollution. Water quality trading, as described in U.S. EPA s 2003 Trading Policy, is one of those tools. Oregon Revised Statute (ORS) 468B.555 directs DEQ to develop and implement a pollutant reduction trading program as a means of achieving water quality objectives and standards in Oregon in a manner that complies with state and federal water quality regulations, and promotes ecological improvements and economic efficiency. The Oregon Environmental Quality Commission adopted Oregon Administrative Rules Division 39 to establish policies, objectives and requirements for water quality trading in Oregon. As a state that has been delegated CWA authority, DEQ is using its authority under state law to incorporate provisions for water quality trading into NPDES permits, TMDLs, or watershed plans. 11

12 C. Why has water quality trading developed as a compliance option? Water quality trading programs have been developed throughout the U.S. to address situations with the following characteristics: A regulatory driver motivates NPDES permittees to seek pollutant reductions. This driver is usually a TMDL or similar cumulative effects analysis, or a more stringent water quality-based requirement contained in an NPDES permit. Pollutants in a water body come from both point and nonpoint sources, and the regulations that control these sources vary. Point sources that discharge wastewater to waters of the U.S. (primarily surface waters) are required by the CWA to meet stringent NPDES permit limits. In contrast, agricultural, urban, forestry and other activities may contribute pollutants to surface waters, but are not regulated directly by the CWA. So long as nonpoint sources first comply with all other applicable regulations (see Section 3 for a discussion on baseline) and meet the eligibility criteria described in this IMD, DEQ may consider trading plans that allow nonpoint sources to generate credits for sale to NPDES permittees. Each pollutant source will experience different costs to remove or reduce the pollutant of concern in a water body. For example, a NPDES permittee may be better equipped or funded to improve its treatment capabilities than another permittee located nearby. Similarly, additional wastewater treatment for an NPDES permittee may be more expensive to install and operate than a stream restoration project that would achieve the same or greater benefit. Water quality trading may therefore allow NPDES permittees to use lower cost, alternative compliance strategies to achieve equivalent or greater pollutant reductions than traditional controls and to generate ancillary benefits that improve watershed health. Some pollutant removal or reduction strategies may have negative external impacts and minimal ancillary benefits. For example, the cooling of Oregon NPDES permitted wastewater discharges will not result in significant improvement to stream conditions in many areas of Oregon because discharges are often a small part of the overall problem. Stream warming typically results from a combination of factors, including lack of streamside vegetation to provide for shading, withdrawal or alteration of instream flows, stream channel modifications, and warm wastewater discharges. Addressing this issue at the point source discharge through the operation of cooling technologies such as coolers or chillers could have negative impacts by significantly increasing greenhouse gas emissions as a result of power consumption and increased costs for their installation and operation. In contrast, stream restoration efforts can provide for equivalent or greater pollutant reductions and benefits such as riparian habitat and floodplain restoration that are better overall for the water quality and beneficial uses than costly conventional treatment technologies. Therefore, it may be appropriate to allow an NPDES permittee to undertake a water quality trading plan where it can offset the impacts of its warm discharge with trading activities. D. Water Quality Trading Purpose, Policy and Objectives OAR states It is the policy of EQC to implement water quality trading in a manner consistent with federal Clean Water Act and as a means for achieving water quality objectives and standards in Oregon. Rules for water quality trading in Division 39 and this guidance are intended to ensure water quality trading is conducted consistent with federal laws and regulations, the 2003 U.S. EPA Water Quality Trading Policy, Oregon statutes and rules, and promotes one or more of the following EQC policies: (a) Achieves early reductions and progress towards water quality standards pending development of TMDLs for impaired waters; (b) Reduces the cost of implementing TMDLs through greater efficiency and flexible approaches; 12

13 (c) Establishes economic incentives for voluntary pollutant reductions from point and nonpoint sources within a watershed; (d) Offsets new or increased discharges to maintain levels of water quality that support all designated and existing beneficial uses; (e) Achieves greater environmental benefits than those under existing regulatory programs; (f) Secures long-term improvements in water quality; and (g)achieves multiple environmental benefits that improve water quality and enhance beneficial uses. Thus water quality trading in Oregon is intended to provide regulated sources with optional pathways to comply with stringent water quality based regulations. Division 39 also provides clear objective requirements for trading to ensure the policies of the EQC are implemented correctly. OAR states that water quality trading authorized under Division 39 must: (1) Be consistent with antidegradation policies; (2) Not cause or contribute to an exceedance of water quality standards; (3) Be consistent with local, state, and federal water quality laws; (4) Be based on sound scientific principles; (5) Be designed to result in a net reduction of pollutants from participating sources in the trading area; (6) Be designed to assist the state in attaining or maintaining water quality standards; (7) Be designed to implement TMDLs when applicable; (8) Be based on transparent, consistent and practical quality standards so as to ensure that water quality benefits are generated as planned; and (9) Avoid the creation of localized adverse impacts on existing and designated beneficial uses. The remainder of this IMD further defines and develops the key concepts of water quality trading and identifies the minimum provisions and mechanics of trading so that DEQ staff successfully implement trading in accordance with these EQC policies and objectives. DEQ staff contacted about trading proposals should consult with the DEQ trading coordinator prior to establishing trading areas or approving trade plans. The trading coordinator will assist in reviewing trading proposals with assistance from DEQ regional basin coordinators and TMDL modelers. 1.3 Examples of Trading A. Trading in Oregon DEQ s experience is that trading in Oregon is most likely to occur as a cost-effective solution to a compliance issue or area-wide problem; however, trading may also offer opportunities to prevent problems before they occur by compensating for new or increased discharges of pollutants. DEQ has authorized water quality trades in the following NPDES permits: Clean Water Services NPDES Permit # ( 13 To comply with its temperature wasteload allocation from the 2001 revision Tualatin Basin TMDL, Clean Water Services is allowed to obtain temperature credits from nonpoint sources that restore riparian vegetation to increase stream shading, augment instream flows to increase base flows, and trade biochemical oxygen demand (BOD) and ammonia discharge loads between its two treatment plants. City of Medford NPDES Permit # (

14 To comply with its temperature wasteload allocation from the 2008 Rogue River Basin TMDL, the City of Medford is allowed to obtain temperature credits from nonpoint sources that restore riparian stream vegetation to increase stream shading. Port of St. Helens Port Westward Industrial Site NPDES Permit # ( The Port of St. Helens is allowed to implement riparian vegetation restoration projects to mitigate for heat load effluent limits that were developed to implement the temperature standard for the Columbia River. B. Trading activities nationwide Across the United States, a variety of trading models exist. Some of these efforts focus on a single pollutant, while others focus on two or more. The following parameters are currently represented among existing or planned programs: ammonia, biological oxygen demand, dissolved oxygen, mercury (pretreatment trading for indirect dischargers), nitrogen, phosphorus, sediment, selenium, and temperature. To learn more about trading activities nationwide, visit 2. Criteria for Water Quality Trading 2.1 Basic Requirements A. Consistency with existing regulation Water quality trades and trading programs must be consistent with the Clean Water Act (CWA), Code of Federal Regulation (CFR), Oregon Revised Statutes (ORS), Oregon Administrative Rules (OAR), and all other applicable laws and regulations, including local and tribal regulations. All WQBELs must meet the requirements of CWA 301(b)(1)(C), which requires that the limits be set at levels necessary to achieve water quality standards. B. Federal treatment technology requirements The 2003 U.S. EPA Water Quality Trading Policy and OAR states that water quality trading cannot be used by an NPDES permittee to meet existing federal treatment technology requirements, including EPA secondary treatment standards for publicly-owned treatment works (POTWs) and EPA technology-based effluent limitation guidelines (ELGs) for certain industries, 5 unless explicitly authorized in federal regulation. For example, the ELG found at 40 C.F.R authorizes the iron and steel point source category to conduct intra-plant trading of pollutants between outfalls at any single steel mill. Likewise, trading authorized under Division 039 may not be used to comply with TBELs. C. Implementation through enforceable mechanisms OAR describes the regulatory mechanisms for water quality trading in Oregon. DEQ may authorize water quality trading activities that are conducted to meet regulatory requirements through an enforceable mechanism such as a DEQ-issued permit or order. DEQ will rely on a combination of record keeping, monitoring, and reporting requirements to enforce the requirements included in the permit, or 5 U.S. EPA, Industrial Regulations: Existing Effluent Limit Guidelines, 14

15 order (see Section 4.4 of this IMD, describing monitoring, record keeping and reporting requirements). Failure to comply with the monitoring and reporting requirements related of an approved water quality trading plan is subject to the enforcement provisions under state and federal law (see Section 4.4(F) of this IMD). D. Implementation according to quality standards Credit-generating trading projects must be designed and managed to high standards to ensure that such projects result in water quality benefits throughout the project s lifetime. Specifically, project designs should be: 1) screened for eligibility and compliance with other relevant environmental and land use laws, and 2) should be designed, implemented, managed and maintained according to agreed upon quality standards (i.e., BMP quality standards, project performance standards included in trade protocol appended to this IMD, or commonly accepted industry standards approved by DEQ). Additionally, project developers should establish a high level of assurance through landowner agreements and contracts that projects will be financed and legally protected throughout the project s lifetime. Details regarding implementation quality standards are provided in Sections 3.6 and 3.7(A) of this IMD. E. Public participation DEQ supports public participation throughout the development of water quality trading programs because stakeholder involvement is important for program effectiveness and credibility and transparency. In the interest of keeping stakeholders informed about trading in Oregon, DEQ maintains a website ( with designated contacts, DEQ s and EPA s current trading policies, and information on trading activities in Oregon. In addition, public participation is a required element of the NPDES permit issuance process. OAR requires that NPDES permit proposals include public notice of the proposal, a minimum 35-day public comment period, and opportunity for public hearing. If a permittee s trading plan is not complete at the time the proposed permit undergoes the public review period, the trading plan must go through a separate public review process once completed. Public review of individual trading projects is not required if the NPDES permit both contains sufficient authorization of the same type of trading in the trading area, and provisions within the permit and/or water quality trading plan provide sufficient detail of how individual trades will operate (see the pollutant specific appendices at the end of this IMD for a description of what constitutes sufficient detail in these trading documents). DEQ is required to provide written notices to potentially interested persons and adjacent property owners pursuant to OAR when issuing a 401 certification or otherwise coordinate public comments opportunities with USACE or the Hydroelectric Application Review Team. F. Public access to information The permit and associated permit trading plan are publicly available on DEQ s website. Information on individual trades, trading results, and compliance and inspections reports for specific permittees are available for public review from DEQ upon request. G. EPA oversight Pursuant to the CWA, EPA retains oversight authority of the CWA programs implemented by DEQ, including but not limited to water quality trading. DEQ also coordinates with EPA throughout the 15

16 development of a trading plan for a permittee to ensure that the permit and accompanying trading plan are consistent with the CWA and its implementing regulations. 2.2 Compliance with Antidegradation Policy, Anti-backsliding, and Related Federal Provisions A. Anti-degradation policy The 2003 U.S. EPA Water Quality Trading Policy states: Trading should be consistent with a state's and tribe's antidegradation policy established to maintain and protect existing instream water uses and the level of water quality necessary to support them, as well as high quality waters and outstanding national resource waters (40 C.F.R ). U.S. EPA does not believe that trades and trading programs will result in lower water quality as that term is used in 40 C.F.R (a)(2), or that antidegradation review would be required under U.S. EPA's regulations when the trades or trading programs achieve a no net increase of the pollutant traded and do not result in any impairment of designated uses C.F.R establishes requirements for states to implement a statewide antidegradation policy that, at a minimum, maintains and protects the level of water quality necessary to support beneficial uses. Oregon s antidegradation policy is found in OAR and generally prohibits the lowering of existing water quality. For more information, see the DEQ Antidegradation Policy Implementation IMD at It is DEQ s position that water quality is not lowered in the case of new or increased point source discharge when, as a result of a water quality trade, there is no net increase of the pollutant being discharged into the water body and the trade(s) do not result in any localized impairments. That is to say, a DEQ-approved trading plan will result in net reduction of pollutants as called for in the policies and objectives of Division 039. Furthermore, pollutants discharged into existing mixing zones are not considered to reduce water quality so long as the discharger complies with all NPDES permit effluent limits (See OAR (3)(a)). Thus, an activity conducted to generate credits for water quality trading that is consistent with this IMD will not increase the overall load of pollutants being discharged nor impair existing or designated beneficial uses; and therefore will not result in a lowering of water quality. B. Anti-backsliding As used in the IMD, anti-backsliding refers to the requirements of CWA 402(o) and 40 C.F.R (l) that generally prohibit the renewal, reissuance, or modification of an existing NPDES permit that contains effluent limitations, permit conditions, or standards that are less stringent than those established in the previous permit. The CWA 303(d)(4) also imposes a separate set of anti-backsliding provisions for waterbodies covered by TMDLs. The 2003 U.S. EPA Water Quality Trading Policy states: EPA believes that the antibacksliding provisions of Section 303(d)(4) of the CWA [33 U.S.C. 1313] will generally be satisfied where a point source increases its discharge through the use of credits in accordance with alternate or variable water quality based effluent limitations contained in an NPDES permit, in a manner consistent with provisions for trading under a TMDL, or consistent with the provisions for pre-tmdl trading included in a watershed plan. These antibacksliding provisions will also generally be satisfied where a point source generates pollution reduction credits by reducing its discharge below a water quality based effluent U.S. EPA Trading Policy, 68 Fed. Reg. at

17 limitation (WQBEL) that implements a TMDL or is otherwise established to meet water quality standards and it later decides to discontinue generating credits, provided that the total pollutant load to the receiving water is not increased, or is otherwise consistent with state or tribal antidegradation policy. 7 Entities engaged in trading must also abide by the anti-backsliding provision in section 402(o) of the CWA (33 U.S.C. 1342(o)), where applicable. Trading need not trigger the anti-backsliding provision of CWA 402(o) or the limitations under CWA 303(d)(4) even if the effect of the permit authorizing trading is to allow a greater actual discharge from the facility itself (because of the purchase of credits) than the previous permit issued to the point source prior to engaging in trading. Consistent with the 2003 U.S. EPA Trading Policy, DEQ does not view water quality trading to meet a water quality-based effluent limitation as a less stringent effluent limitation provided that the permittee is still responsible for the same level of pollutant reduction as it otherwise would be if it used a non-trading option to comply with its permit limits. Trading offers the discharger an additional means of achieving its limitation and, therefore, is not subject to additional antibacksliding prohibitions so long as trading does not result in a net increase in the pollutant discharged to the water body or in a localized impairment. CWA 303(d)(4), 402(o)(2) and 40 C.F.R (l) establish exceptions to the anti-backsliding prohibitions that may apply to permits regardless of whether trading is used as a compliance mechanism. These conclusions apply to all of the trading scenarios outlined in Section 2.4 of this IMD. The antibacksliding provisions in CWA 303(d)(4) would not be triggered in a pre- or outside-of-tmdl scenario because this provision applies only when a TMDL is in place. If a TMDL is withdrawn, disapproved, or revoked, resulting in less stringent WQBELs for permittees, DEQ does not view the new permit limits as less stringent limits for the purposes of anti-backsliding. The permit writer should review all effluent limits established in the renewed permit to determine if they are at least as stringent as those in the current permit. The permit writer will discuss and support conclusions on backsliding, including any related to trading, in the permit evaluation report. C. Requirements for new source or new discharger If a trade is to be implemented through an NPDES permit for a new source or discharger and the discharge will cause or contribute to the violation of water quality standards, 40 C.F.R (i) requires the following: No permit may be issued to a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards. The owner or operator of a new source or new discharger proposing to discharge into a water segment which does not meet applicable water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by sections 301(b)(1)(A) and 301(b)(1)(B) of CWA, and for which the State or interstate agency has performed a pollutants load allocation for the pollutant to be discharged must demonstrate, before the close of the public comment period, that: (1) There are sufficient remaining pollutant load allocations to allow for the discharge; and (2) The existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards. The Director may waive the submission of information by the new source or new discharger required by paragraph (i) of this section if the Director determines that the Director already has adequate information to evaluate the request U.S. EPA Trading Policy, 68 Fed. Reg. at

18 U.S. EPA interprets 40 C.F.R (i) to allow for a new source or new discharger to compensate for its entire increased load through trading. (2007 U.S. EPA Water Quality Trading Toolkit for Permit Writers). 2.3 Where Trading May Occur A. Trading area OAR (4) defines trading area as a watershed or other hydrologically-connected geographic area where water quality trading is authorized, as defined within a TMDL, trading framework, or trading plan. Water quality trading is intended to provide opportunities for efficiently achieving and maintaining water quality standards within watersheds, as opposed to cleaning up one watershed at the expense of another. As stated in the 2003 U.S. EPA Water Quality Trading Policy, [a]ll water quality trading should occur within a watershed or a defined area for which a TMDL has been approved. Establishing defined trading areas that coincide with a watershed or TMDL boundary results in trades that affect the same water body or stream segment and helps ensure that water quality standards are maintained or achieved throughout the trading area and contiguous waters. 8 Generally, the geographic scope of a trading program should be large enough to encompass the universe of sources that contribute to the specific water quality problem that is to be addressed through trading. Sellers of credits should generally be located upstream of a point of compliance, ideally in conformance with a point of concern defined in the TMDL. For example, TMDLs established for temperature after 2003 refer to a point of maximum impact from point source and nonpoint sources of heat. DEQ may further refine or broaden the trading area to address specific impairments provided there is adequate justification to do so either in a TMDL, WQMP or trading framework. Where a trading area has not been defined in one of these documents, DEQ will establish trading areas on a case-by-case basis. B. Ecological priorities within a trading area DEQ encourages those engaged in trading to address priorities within a trading area, such as the protection of existing high quality habitats, improvement of degraded areas, or restoration that provides spatial connectivity and continuity with existing high value locations in the trading area. Trading frameworks established by DEQ as an element of a TMDL water quality management plan or as a separate state order may identify priority areas for water quality trading. Where trading frameworks have not been established the criteria for identifying priority areas within a trading plan should be objective, and align with state or regional priorities such as recovery plans that have been approved by the National Oceanic and Atmospheric Administration Fisheries, and the U.S. Fish & Wildlife Service, the Oregon Department of Fish & Wildlife, or the Northwest Power & Conservation Council (subbasin plans). DEQ may provide incentives by providing credit bonuses for sites that restored in priority areas (see Section 3.4 of this IMD). 2.4 Eligible Trading Scenarios: Waterbodies U.S. EPA Trading Policy, 68 Fed. Reg. at

19 A. General Water quality trading rules allows consideration of trading proposals from entities that discharge to high quality waterbodies as well as sources that discharge to impaired waterbodies: OAR (2) (a) High quality waters. DEQ may authorize trading to maintain water quality in water bodies that meet standards, including but not limited to, projects designed to accommodate and offset new or increased pollution loads. (b) Water quality limited waters. Trading may be authorized in water bodies that are water quality limited but not subject to a TMDL; in water bodies where trading projects are designed to achieve progress towards meeting water quality standards before or while a TMDL is being developed; in water bodies covered by an approved TMDL, or as part of a pollution control plan other than a TMDL issued by the department pursuant to state law. The 2003 U.S. EPA Water Quality Trading Policy notes that trading may be used under the CWA to maintain high quality waters, in pre-tmdl impaired waters, pursuant to TMDLs, in pretreatment situations, and intra-plant. 9 Trades in Oregon are typically considered by individual NPDES permittees facing stringent WQBELs imposed by DEQ to implement a TMDL. Subject to DEQ discretion and conformance with the CWA and its implementing regulations, trading may also occur outside of a TMDL and under other types of permits or regulatory tools. The most appropriate scenario for any given situation will depend on a number of factors including but not limited to: pollutant(s) to be traded, characteristics of the trading area, number and type of sources involved, pre-existing regulatory framework, and stakeholder input. Additional information on trading scenarios can be found in the U.S. EPA 2003 Water Quality Trading Policy, the U.S. EPA 2007 Water Quality Trading Toolkit for Permit Writers, the U.S. EPA 2004 Water Quality Trading Assessment Handbook, and at: trading.htm. B. High quality waters DEQ may consider trade proposals in high quality waters that are consistent with Oregon antidegradation policies and the CWA and its implementing regulations. High quality waters are water bodies with water quality that meets or is better than all applicable state water quality criteria. See OAR (23) and (6). Existing NPDES permittees and nonpoint sources in high quality waters may use trading to maintain or further improve high quality waters. Trading may also be used to offset new or increased discharges of pollutants to accommodate growth provided it is consistent with this IMD. C. Water quality limited waters before a TMDL is approved or where a TMDL is not required. As defined in OAR (30), water quality limited waters are those water bodies that: a) do not meet the water quality standards during the entire year or defined season even after implementation of standard technology, or b) only meet water quality standards through the use of higher than standard technology, or c) insufficient information exists to determine if water quality standards are being met. DEQ may authorize water quality trading in water quality-limited waters prior to the development of a TMDL. Trading for a pollutant parameter in a watershed in which a TMDL is required but has not yet been established may be challenging because it may be difficult to determine the total allowable loading of a pollutant to a receiving water body without the analysis inherent in the TMDL. DEQ may consider pre-tmdl trading for a 303(d) listed parameter provided the following conditions are met: U.S. EPA Trading Policy, 68 Fed. Reg. at

20 1. DEQ conducts or approves an analysis of current pollutant loadings to establish a target or loading cap at or below current conditions that represents progress in the attainment of water quality standards. Such an analysis would likely not be necessary for an existing NPDES permittee to offset its current discharge or a nonpoint source to begin improvements in a basin in anticipation of a TMDL. 2. Trading will occur in order to make progress toward or meet the target or cap, which would result in an overall net reduction of the pollutant load evaluated across the participating sources. 3. The proposed trades occur in a trading area, as identified by DEQ, and achieve direct environmental benefit relevant to the conditions for which the water body is impaired and does not cause or contribute to further impairments of the water body. 4. Parties understand that trading provisions are subject to change if a TMDL is promulgated, and so trading participants should understand the long-term implications if and when a TMDL is approved. 5. The trade will not violate the anti-backsliding provisions of the CWA. Once a TMDL is issued, trading plans made prior to the TMDL that are inconsistent with TMDL requirements will have to be modified upon permit re-issuance. DEQ may also authorize trading in water quality limited water that are but not subject to a TMDL. For example, DEQ may authorize trading for parameters for which a TMDL is not necessary because TBELs and other local, state, tribal or federal authorities are sufficient to implement water quality standards in a reasonable time period. Trading in water quality limited waters for a parameter that is not an impairment pollutant would proceed as described in the above section for high quality waters. D. Water quality limited waters: TMDL implementation Subject to DEQ discretion and consistent with the CWA and its implementing regulations, trading may occur post-tmdl in water quality limited waters. Permits that include trading and trading programs in impaired waters for which a TMDL has been issued by DEQ must be consistent with the assumptions and requirements of any available wasteload allocation (in the TMDL or a similar watershed analysis). While the law prescribes minimum requirements for developing WQBELs consistent with the TMDL, it does not dictate how permittees meet them. This arrangement provides DEQ the flexibility to determine the appropriate procedures for developing WQBELs, and affords permittees the flexibility in meeting them through a number of vehicles, including water quality trading. DEQ does not support any trading activity that would delay implementation of a TMDL or would, over time, cause the combined NPDES permit and 401 certified discharges and nonpoint source loadings to exceed the total loading capacity established by a TMDL. Point sources wishing to participate in water quality trading in a TMDL context must comply with the relevant anti-backsliding provisions of the CWA. In the TMDL context, only the 304(d)(4) exemption applies. CWA 303(d)(4) is broken into two parts, the first of which applies to non-attaining waters and the second of which applies to attaining waters. Allowing a facility to meet a WQBEL through trading does not necessarily constitute a revised effluent limit under CWA 303(d)(4)(A) if a facility is still responsible for the same level of pollution reduction. All WQBELs, including those that are subject to CWA 402(o), must meet the requirements of CWA 301(b)(1)(C), which requires that the limitations be set at levels necessary to achieve water quality standards and localized impairments be avoided (U.S. EPA 2007 Water Quality Trading Toolkit for Permit Writers). 20

21 2.5 Eligible Trading Scenarios: Types of Trades Overview The following examples are provided to illustrate the range of situations that could develop in Oregon. DEQ may consider other scenarios as well. The most appropriate scenario for a given situation will depend on a number of factors including but not limited to: pollutant(s) to be traded, size and hydrodynamics of the trading service area, number and type of sources involved, pre-existing regulatory framework, and stakeholder preferences. Intra-plant & intra-municipal point source trading Trading may occur within a single facility or within a municipality or service district. Intra-plant trading is the simplest scenario where trading occurs between different outfalls within a facility or plant that involves the generation and use of credits between multiple outfalls that discharge to the same receiving water. Similar to intra-plant trading, intra-municipal trading allows a municipality or service district to manage its multiple discharges as a system. The Clean Water Services (CWS) NPDES permit contains an example of this type of trade. The permit allows CWS to trade BOD and ammonia between two treatment plants that discharge into the Tualatin River. Because the Tualatin TMDL provides sufficient information on oxygen demanding substances, a separate trading plan is not required. Instead flow-based, parameter specific limitations necessary to authorize and implement a trade are fully detailed in the NPDES permit. Monitoring and reporting requirements for each parameter are also incorporated into the permit rather than in a trading plan. Single buyer In the single buyer scenario a permitted facility may buy or obtain credits from one or more NPDES permittees or nonpoint sources. An example of this type of trade is the temperature trade DEQ authorized in the CWS NPDES permit. Under this permit, CWS is allowed to offset its excess thermal load via riparian shading and flow augmentation. The single buyer model also includes situations in which a single permittee with multiple outfalls discharging to the same watershed is allowed to trade credits between outfalls. The CWS arrangement could also be viewed as a multi-party closed market system since multiple treatment plants are involved in the trade; however, CWS is really a single buyer of credits in the basin. Multi-party closed market group trading With a multi-party closed market scenario there are multiple parties involved in purchasing and selling credits, but trading is restricted to sources specifically named in permits and trading plans authorizing the trading program. Such trades may occur under the watershed permit authority found in Oregon law (ORS 468B.050(2)). This model usually involves a specific group of NPDES permittees, such as a group of municipal wastewater treatment plants subject to a TMDL. In a closed market, the permittees covered by the program trade between one another and are in compliance so long as their cumulative loadings remain below their combined wasteload allocations. Participants may buy and sell credits on the closed market or make decisions about additional treatment options that do not actually require the exchange of credits or monies. DEQ will establish the acceptable trading provisions for the participants based on the model used to develop the TMDL or a similar approach. Permittees wishing to generate such credits may develop sample scenarios in advance of implementing such trades to simplify accounting once trading has been authorized in their individual NPDES permits or a watershed NPDES permit. For example, Connecticut s Long Island Sound program for nitrogen is being implemented under an NPDES general permit that covers 79 publicly owned treatment works that are allowed to trade between themselves. 21

22 Multi-party open- Market These programs are similar to the multi-party closed-market programs except that participation is not restricted to credit sources identified in trading documents authorizing the program. Eligibility may be established by other factors, such as location within a trading area and ability to create credits relative to applicable trading baselines. NPDES permittees must have an approved trading plan to use credits for compliance purposes, but credits may be acquired through a credit exchange. The credit exchange is maintained by a separate entity which may be a state agency, a conservation district, a private entity, or other organization. Examples: The Willamette Partnership s credit registry for the Willamette basin is an example of a multi-party open market system. For more information, visit: E. Pre-treatment Subject to DEQ discretion and conformance with the CWA and its implementing regulations, trading may occur in pre-treatment scenarios. As stated in the 2003 U.S. EPA Water Quality Trading Policy, EPA supports a municipality or regional sewerage authority developing and implementing trading programs among industrial users that are consistent with the pretreatment regulatory requirements at 40 C.F.R. Part 403 and the municipality's or authority's NPDES permit Eligible Credit Buyers A. General requirements for permitted buyers A source may obtain credits to achieve WQBELs or other water quality-based requirements from nonpoint or point source seller(s) of credits. To participate in trading, DEQ must find that a trade will be conducted in compliance with applicable TBELs as well as mixing zone or other near-field requirements specified to protect water quality and beneficial uses. 1. Role of compliance history The U.S. EPA 2003 Water Quality Trading Policy recommends, but does not require, that states and tribes consider the role of compliance history in determining source eligibility to participate in trading. 11 In general, point sources should be in compliance with their current permit and any agency-approved compliance schedule for the pollutant desired for trading. Trading may not be an option for a facility with a history of repeated, significant violations. Trading can be used to help a facility, with an otherwise good track record for compliance, come into compliance with a specific permit limit targeted by a trade (e.g., nutrient or temperature exceedances). In those cases, trading may need to be authorized under a mutual agreement and order or similar enforcement agreement. 2. No Localized Impacts U.S. EPA Trading Policy, 68 Fed. Reg. at U.S. EPA Trading Policy, 68 Fed. Reg. at

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