May 10, 2007 

MEMORANDUM 

SUBJECT: Compliance Schedules for Water Quality-Based Effluent Limitations in 

NPDES Permits 

FROM: James A. Hanlon, Director 

 Office of Wastewater Management 

/s/ 

TO: Alexis Strauss, Director 

 Water Division 

 EPA Region 9 

Recently, in discussions with Region 9, questions have been raised concerning the 

use of compliance schedules in National Pollutant Discharge Elimination System 

(NPDES) permits consistent with the Clean Water Act (CWA) and its implementing 

regulations at 40 C.F.R. § 122.47. The use of compliance schedules in NPDES permits is 

also the subject of ongoing litigation in California. The purpose of this memo is to 

provide a framework for the review of permits consistent with the CWA and its 

implementing regulations. 

When may a permitting authority include a compliance schedule in a permit for the 

purpose of achieving a water quality-based effluent limitation? 

In In The Matter of Star-Kist Caribe, Inc., 3 E.A.D. 172, 175, 177 (1990), the 

EPA Administrator interpreted section 301(b)(1)(C) of the CWA to mean that 1) after 

July 1, 1977, permits must require immediate compliance with (i.e., may not contain 

compliance schedules for) effluent limitations based on water quality standards adopted 

before July 1, 1977, and 2) compliance schedules are allowed for effluent limitations 

based on standards adopted after that date only if the State has clearly indicated in its 

water quality standards or implementing regulations that it intends to allow them. 

What principles are applicable to assessing whether a compliance schedule for achieving 

a water quality-based effluent limitation is consistent with the CWA and its implementing 

regulations? 
1. “When appropriate,” NPDES permits may include “a schedule of 

compliance leading to compliance with CWA and regulations . . . as soon as possible, but 

not later than the applicable statutory deadline under the CWA.” 40 C.F.R. § 

122.47(a)(1). Compliance schedules that are longer than one year in duration must set 

forth interim requirements and dates for their achievement. 40 C.F.R. § 122.47(a)(3). 

2. Any compliance schedule contained in an NPDES permit must be an 

“enforceable sequence of actions or operations leading to compliance with a [water 

quality-based] effluent limitation [“WQBEL”]” as required by the definition of “schedule 

of compliance” in section 502(17) of the CWA. See also 40 C.F.R. § 122.2 (definition of 

schedule of compliance). 

3. Any compliance schedule contained in an NPDES permit must include an 

enforceable final effluent limitation and a date for its achievement that is within the 

timeframe allowed by the applicable State or federal law provision authorizing 

compliance schedules as required by CWA sections 301(b)(1)(C); 502(17); the 

Administrator’s decision in Star-Kist Caribe, Inc. 3 E.A.D. 172, 175, 177-178 (1990); 

and EPA regulations at 40 C.F.R. §§ 122.2, 122.44(d) and 122.44(d)(1)(vii)(A). 

4. Any compliance schedule that extends past the expiration date of a permit 

must include the final effluent limitations in the permit in order to ensure enforceability 

of the compliance schedule as required by CWA section 502(17) and 40 C.F.R. § 122.2 

(definition of schedule of compliance). 

5. In order to grant a compliance schedule in an NPDES permit, the 

permitting authority has to make a reasonable finding, adequately supported by the 

administrative record, that the compliance schedule “will lead[ ] to compliance with an 

effluent limitation . . . ” “to meet water quality standards” by the end of the compliance 

schedule as required by sections 301(b)(1)(C) and 502(17) of the CWA. See also 40 

C.F.R. §§ 122.2, 122.44(d)(1)(vii)(A). 

6. In order to grant a compliance schedule in an NPDES permit, the 

permitting authority has to make a reasonable finding, adequately supported by the 

administrative record and described in the fact sheet (40 C.F.R. § 124.8), that a 

compliance schedule is “appropriate” and that compliance with the final WQBEL is 

required “as soon as possible.” See 40 C.F.R. §§ 122.47(a), 122.47(a)(1). 

7. In order to grant a compliance schedule in an NPDES permit, the 

permitting authority has to make a reasonable finding, adequately supported by the 

administrative record, that the discharger cannot immediately comply with the WQBEL 

upon the effective date of the permit. 40 C.F.R. §§ 122.47, 122.47(a)(1). 

8. Factors relevant to whether a compliance schedule in a specific permit is 

“appropriate” under 40 C.F.R. § 122.47(a) include: how much time the discharger has 

already had to meet the WQBEL(s) under prior permits; the extent to which the 
 

 

discharger has made good faith efforts to comply with the WQBELs and other 

requirements in its prior permit(s); whether there is any need for modifications to 

treatment facilities, operations or measures to meet the WQBELs and if so, how long 

would it take to implement the modifications to treatment, operations or other measures; 

or whether the discharger would be expected to use the same treatment facilities, 

operations or other measures to meet the WQBEL as it would have used to meet the 

WQBEL in its prior permit. 

9. Factors relevant to a conclusion that a particular compliance schedule 

requires compliance with the WQBEL “as soon as possible,” as required by 40 C.F.R. § 

122.47(a)(1) include: consideration of the steps needed to modify or install treatment 

facilities, operations or other measures and the time those steps would take. The 

permitting authority should not simply presume that a compliance schedule be based on 

the maximum time period allowed by a State’s authorizing provision. 

10. A compliance schedule based solely on time needed to develop a Total 

Maximum Daily Load is not appropriate, consistent with EPA’s letter of October 23, 

2006, to Celeste Cantu, Executive Director of the California State Water Resources 

Control Board, in which EPA disapproved a provision of the Policy for Implementation 

of Toxic Standards for Inland Surface Waters, Enclosed Bays, and Estuaries for 

California. 

11. A compliance schedule based solely on time needed to develop a Use 

Attainability Analysis is also not appropriate, consistent with EPA’s letter of February 

20, 2007, to Doyle Childers, Director Missouri Department of Natural Resources, nor is a 

compliance schedule based solely on time needed to develop a site specific criterion, for 

the same reasons as set forth in the October 23, 2006, (referenced in Paragraph 10) and 

February 20, 2007 letters. 

If you have any questions, please contact me at (202) 564-0748 or have your staff 

contact Linda Boornazian at (202) 564-0221.