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In re City of Ruidoso Downs & Village of Ruidoso Wastewater Treatment Plant

03/12/2019
Case Number:NPDES Appeal No. 17-03
ELR Citation:49 ELR 41405

Rio Hondo Land and Cattle Company (“Rio Hondo”) petitioned the Environmental Appeals Board (“Board”) to review a National Pollutant Discharge Elimination System Permit (“Permit”) that the United States Environmental Protection Agency Region 6 (“Region”) issued to the City of Ruidoso Downs and Village of Ruidoso Wastewater Treatment Plant (collectively “Ruidoso”). The Permit authorizes discharges from the Ruidoso wastewater treatment plant into the Rio Ruidoso in Lincoln County, New Mexico. Rio Hondo argues that the Region erred when it relied on an exception to the antibacksliding provision in the Clean Water Act to revise the nitrogen and phosphorus limits from those in the prior permit by removing the concentration limits for those nutrients and revising upward the mass-based nitrogen limit. More specifically, Rio Hondo contends that the Region could not rely on the antibacksliding exception because, Rio Hondo argues, the prior permit’s concentration limits for nitrogen and phosphorous were not “based on” a total maximum daily load (“TMDL”) and the Permit’s limits will not assure attainment of the applicable water quality standards.

The relevant statutory language provides an exception to the antibacksliding provision for any “effluent limitation based on a total maximum daily load or other wasteload allocation established” if “the cumulative effect of all such revised effluent limitations based on such total maximum daily load or wasteload allocation will assure the attainment of [the applicable] water quality standard[.]” 33 U.S.C. § 1313(d)(4)(A)(i).

Held: The Board denies Rio Hondo’s petition for review. The Region reasonably relied on an exception to the antibacksliding provision in the CWA when it removed the concentration limits for nitrogen and phosphorus from the Permit and revised upward the mass-based limit for nitrogen.