In a decision on March 24th, the Ohio Supreme Court effectively declared that the Ohio EPA cannot enforce certain limitations found in many Ohio NPDES permits.  The ruling in the Fairfield County v. Nally case invalidated NPDES permit discharge limits that were established due to Total Maximum Daily Loads (TMDL) in adjacent streams.  The Court decided that over 1,700 TMDL restrictions on waterways throughout the state must be formally promulgated, requiring public comment.  Since the Ohio EPA did not seek public comment periods for these TMDLs, the Court effectively invalidated discharge limitations for Ohio NPDES permits that were derived from these TMDL waterway allocations.

This decision creates significant uncertainty for Ohio NPDES permittees who must review their own NPDES permits to see if any of their discharge limitations were established to meet a TMDL.  Many TMDLs are focused on limiting bacteria, nutrients, or metals in waterways, so NPDES limits on nitrates, E. coli, and mercury are affected.  If the limits themselves are invalidated, fees and penalties paid by the permittees for exceeding TMDL derived parameters may also be reviewed. A map of watersheds that have implemented TMDLs can be found below.

TMDL_status_May2013

If you think your permit may be affected by this ruling and you have questions, you can contact me at josiahf@smithmanage.com.

 

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