An Overview of the Proposed TMDL Regulations

The federal Environmental Protection Agency (EPA) is proposing revisions to regulations that implement the Clean Water Act to "clarify and strengthen how TMDLs (Total Daily Maximum Loads) are established." Although there are existing TMDL regulations, EPA believes that the new regulations are necessary to "provide states with clear, consistent, and balanced direction for listing waters and developing TMDLs, resulting in restoration of waterbodies not meeting water quality standards." EPA contends that "listing impaired and threatened waters and establishing TMDLs are fundamental tools for identifying remaining sources of water pollution and achieving water quality goals." TMDLs are expected to "help to restore the health of thousands of miles of river and shoreline and make millions of lake acres safe for fishing, swimming and other activities." (64 Fed. Reg. 46,012 [August 23, 1999] and EPA Fact Sheet)

There are actually three components to the EPA's current proposals:

• revisions to the current regulatory process requirements for establishing TMDLs,
• revisions to the National Pollution Discharge Elimination System Permit (NPDES) program and federal antidegradation policy that regulate point source dischargers, and
• revisions to an EPA guidance document on how to develop the lists of impaired waterbodies and how to develop TMDLs for such waterbodies consistent with these changes in the regulations.

The proposed rules were published in the Federal Register on August 23, 1999, originally for a 60-day comment period that would have ended on October 22, 1999. However, due to requests by the regulated community and a Congressional appropriations rider, EPA has extended the comment period to January 20, 2000. EPA intends to adopt final rules sometime in mid-2000.

The proposed rules can be downloaded as published in the Federal Register from the EPA web site.

Background

Under Section 303(d) of the Clean Water Act, states, territories, and authorized tribes (collectively referred to as "states") are required to develop and revise lists of impaired waters. These are waters that do not meet applicable state water quality standards, even after point sources of pollution have installed the minimum required levels of pollution control technology. The states must establish priority rankings for waters on their 303(d) list and develop TMDLs for listed waters. A TMDL specifies the maximum amount of a pollutant that a waterbody can receive and still meet water quality standards, and allocates pollutant loadings. EPA must approve or disapprove state lists and TMDLs. If a state submission is inadequate, EPA must establish the list or the TMDL.

This section of the Clean Water Act, which was relatively obscure until now, has presented numerous technical, financial, and administrative difficulties for the states. By the early 1990's, a rash of lawsuits by environmental groups nationwide were challenging the pace of TMDL establishment and other perceived problems with the process. In 1996, EPA convened a committee under the Federal Advisory Committee Act (the TMDL FACA committee) to make recommendations for improving Section 303(d) implementation, including changes to the TMDL regulations and guidance. The TMDL FACA committee was comprised of 20 individuals representing diverse interests, including agriculture, forestry, environmental advocacy, industry, and State, local, and Tribal governments. In 1998, the committee submitted its final report to EPA containing more than 100 consensus recommendations, and many other recommendations for which consensus was not achieved. EPA considered (but did not necessarily adopt) the TMDL FACA committee recommendations as it developed the proposed revisions to the TMDL, the proposed revisions to the NPDES regulations, and the TMDL guidance document.


Proposed Revisions to the TMDL Process Regulations

The proposed revisions to the TMDL regulations would:

• Change the definitions of "total maximum daily load," "load allocation," and "wasteload allocation," and add definitions for "pollution," "pollutant," "impaired waterbody," "threatened waterbody," "thermal discharge," "reasonable assurance," and "waterbody" (some of these definitions were already codified in the CWA itself);
• Establish a more specific 303(d) listing methodology that is subject to public review, and submitted to EPA for review eight months prior to submission of the list (although EPA is seeking specific comment on how frequently states should submit methodologies and lists);
• Establish a new format for the state 303(d) lists to broaden the scope of the list and make it more comprehensive and to include "threatened" waterbodies. Waterbodies would have to remain on this list until applicable water quality standards are achieved. This new list would be organized into four parts:

Part 1 - waterbodies impaired or threatened by pollutants or by unknown causes (TMDLs would only be required for this first category),
Part 2 - waterbodies impaired or threatened by pollution,

Part 3 - waterbodies for which TMDLs have been completed, but applicable water quality standards have not yet been attained, and

Part 4 - waterbodies expected to meet applicable water quality standards by the next listing cycle as a result of the use of other enforceable pollution controls.

• Require states to establish and submit to EPA binding schedules for establishing TMDLs with no longer than a 15-year timeframe for all waterbody and pollutant combinations (It should be noted here that the current California 303(d) list contains approximately 1500 impaired waterbody/pollutant combinations and the total nationally is approximately 40,000);
• Require states to establish TMDLs for high priority waterbodies before they do so for medium and low priority waterbodies, and encourage states to schedule high priority waterbodies for TMDL establishment no later than five years from listing;
• Include a new requirement that states assign a high priority to waterbody and pollutant combinations which are designated as public drinking water supplies and which cause a violation of the maximum contaminant level, and/or for pollutants causing an impairment or threat for species listed as endangered or threatened under the federal Endangered Species Act;
• Require that all TMDLs contain the following 10 specific elements:

1. Name and location of the impaired or threatened waterbody,
2. Identification of the pollutant and the amount of the pollutant that the waterbody can receive and still meet water quality standards,
3. Identification of the amount by which the pollutant must be reduced for the waterbody to meet water quality standards,
4. Identification of the source or sources of the pollutant,
5. Determination of the amount of the pollutant that may come from point sources,
6. Determination of the amount of the pollutant that may come from nonpoint sources,
7. A margin of safety,
8. Consideration of seasonal variations,
9. Limited allowance for future growth and reasonably foreseeable increases in pollutant loads; and
10. An implementation plan.

• Include a new requirement that a TMDL must include an implementation plan that consists of eight elements:

1. A list of actions needed to reduce pollutant loadings,
2. A timeline describing when these actions will occur,
3. Reasonable assurances that the wasteload allocations for point sources and the load allocations for nonpoint sources will be implemented,
4. Legal authorities to be used,
5. An estimate of the time it will take to meet water quality standards,
6. A monitoring or modeling plan to determine if reductions are being achieved,
7. Milestones for measuring progress, and
8. Plans for revising the TMDL if progress is not being made.

• Clarify that TMDLs may be expressed in terms appropriate to the desired condition of the waterbody or the characteristics of the pollutant load (e.g. daily, monthly, seasonal or annual averages);
• Require that the public and federal wildlife agencies be notified and have the opportunity to comment on lists, priority rankings, schedules, and TMDLs prior to submission to EPA; and
• Provide an administrative appeal procedure that allows the public to petition EPA to establish TMDLs where a state has substantially failed to do so consistent with the state's schedule.

Proposed Revisions to the NPDES Program and the Federal Antidegradation Policy

The revisions to the NPDES program and the federal antidegradation policy have been proposed to address how point sources would be regulated prior to the establishment of a TMDL to ensure "reasonable further progress" toward attaining applicable water quality standards. A second objective is to make the NPDES program more effective in implementing TMDLs once they are established.

The proposed regulations would clarify and revise the existing regulations to:

• Include a new requirement that large new or significantly expanding dischargers obtain a pollutant offset of 1 1/2 times their proposed discharge of that pollutant before beginning to discharge, unless the State determines either: (1) that an offset other than 1 1/2, but more than 1:1, is sufficient to achieve reasonable further progress, or (2) that any offset would result in further degradation of water quality. These proposed offset requirements would be in addition to current Clean Water Act provisions requiring discharge limits to protect water quality standards (33 USC Section 1311(b)(1)(c));
• Define a significant expansion of an existing discharger as a 20 percent or greater increase in pollutant loadings above current permitted pollutant loads;
• Exempt small entities and small government entities (with populations of less than 50,000) from the offset requirements;
• Amend the General Permit requirement to require additional information;
• Provide EPA the authority to object to, and ultimately reissue, expired and administratively-continued permits for discharges to impaired waterbodies where reissuance is "necessary to ensure reasonable further progress towards meeting water quality standards" while a TMDL is being established or where it is necessary to ensure that a completed TMDL is adequately implemented; and
• Provide EPA the authority to designate certain operations such as Animal Feeding Operations (AFO's) and Aquatic Animal Production Facilities, and certain silviculture operations as point sources, thereby requiring them to obtain NPDES permits after completion of a TMDL in cases where EPA is required to establish the TMDL. This would provide EPA with "reasonable assurance" of the effectiveness of the implementation of its own TMDL.

Proposed Revisions to "Draft Guidance for Water Quality-based Decisions: The TMDL Process (Second Edition)"

EPA is also revising a previously published guidance document to incorporate the proposed revisions to the TMDL and NPDES regulations that are outlined above. "Draft Guidance for Water Quality-based Decisions: The TMDL Process (Second Edition)" (the Guidance) provides a description of how the 303(d) listing process is expected to work and how to prepare TMDLs as envisioned by EPA. It also provides guidance to the public and the regulated community on how EPA intends to exercise it discretion in implementing section 303(d) of the CWA and its implementing regulations. The Guidance does not impose legally-binding requirements on EPA, the states or the regulated community. EPA is soliciting comments on the Guidance. These comments are also due on January 20, 2000.