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Friday, August 15, 1997
EPA Issues New TMDL Policy on Schedules and Implementation
On August 8, 1997, EPA issued a policy statement on Total Maximum Daily Loads (TMDLs) which provides direction to EPA Regions and States regarding TMDL schedule development and implementation. Highlights of the policy include: (1) allowing states 8 to 13 years to develop TMDLs for impaired and threatened waters; and (2) directing states to develop implementation plans which ensure achievement of nonpoint source load allocations in waters impaired solely or primarily by nonpoint sources. The policy is intended to set forth a nationally consistent approach for establishing and implementing TMDLs, and to supplement existing regulations and guidance.
With regard to TMDL schedule development, the new policy stipulates that "Each EPA Region should secure a specific written agreement with each State in the Region establishing an appropriate schedule for the establishment of TMDLs for all waters on the most recent section 303(d) list, beginning with the 1998 list." Appropriate schedules are defined by the policy as "expeditious and normally should extend from eight to thirteen years in length, but the length may vary depending on state specific factors." The policy also clarifies that States consider both impaired and threatened waters for inclusion on their 1998 section 303(d) lists.
The new policy also establishes a process for implementation of TMDLs for waters impaired solely or primarily by nonpoint sources. The policy states, "For all section 303(d)-listed waters impaired solely or primarily by nonpoint sources, each EPA Region should work in partnership with each State to achieve TMDL load allocations for nonpoint sources. All available Federal, State, and local programs and authorities should be used, including non-regulatory, regulatory, or incentive-based programs authorized by Federal, State, or local law." States are directed to submit plans for implementing load allocations for nonpoint sources as part of water quality management plans (WQMPs) or of equivalent watershed planning processes. The policy states that each State implementation plan should include reasonable assurances that the nonpoint source load allocations established in TMDLs [for waters impaired solely or primarily by nonpoint sources] will in fact be achieved.
Where a State does not develop a plan for achieving TMDL load allocations for nonpoint sources, the policy directs EPA regions to take additional steps, including: (1) require the state to update its state WQMP under 40 CFR 130.6, (2) focus grant money toward states that are providing reasonable assurances that nonpoint source load allocations established in TMDLs will be achieved; (3) initiate source-by-source reviews of, and where necessary object to, NPDES permits in the watershed and in upstream and downstream watersheds, where the permit regulates the same pollutant covered by the TMDL and further reductions at the point source will speed progress towards achieving water quality standards; and, (4) Deny or revoke a state's enhanced benefits status under the new section 319 nonpoint source guidance.
Despite such statements, AMSA is continuing to urge EPA to adopt policies which support the goal of "proportionate share" responsibility (i.e., that all sources of impairment will be proportionately responsible for further reductions in loadings), rather than tightening controls on point sources, when efforts to control nonpoint sources fail. Members will receive a copy of the August 8, 1997 TMDL policy via Regulatory Alert RA 97-20.