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Regulatory Alert (RA 00-15)

Member Pipeline - Regulatory - Alert (RA 00-15)

To:

Members & Affiliates

From:

National Office

Date:

July 14, 2000

Subject:

EPA Issues Final TMDL Rule

Reference:

RA 00-15

On July 13, the U.S. Environmental Protection Agency (EPA) published final revisions to its controversial total maximum daily load (TMDL) program — titled, “Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System (NPDES) Program in Support of the Revisions to the Water Quality Planning and Management Regulation.” The rules, designed to revamp the way the nation addresses impaired waters, were originally proposed in August 1999 and have come under intense scrutiny from Congress and those potentially impacted by the TMDL program. Farmers, forestry interests, States, and industry mounted an intense lobbying campaign over the past year to prevent EPA from finalizing these rules. Even the signing of the rule by EPA Administrator Carol Browner on July 11 was done amid a cloud of controversy.

Under direct orders from the White House, the Office of Management & Budget (OMB) and EPA rushed the release of the final rule. The haste was deemed necessary to circumvent a Congressional appropriations “rider.” The TMDL rider was inserted at the last minute in a $20-billion emergency appropriations bill and would have barred the Agency from finalizing the rule if the President signed the bill into law before the TMDL rule was finalized. The President was required to sign the bill by July 13 and he indicated early on that he would — even with the rider — because it contained critical government funds for operations in Kosovo and disaster relief. Administrator Browner said the rider had been added despite Administration objections.

With the promulgation of the final rule, Congressional objection is not likely to subside anytime sooon. The House-passed version of the VA-HUD bill (HR 4635) contains language barring funds to implement the new TMDL rule, and additional language could be added to the Senate version of the funding bill later this month. Bills delaying the rule pending further study by the National Academy of Sciences (HR 4502 and S 2417) were introduced earlier this year by House Agriculture Committee Chairman Larry Combest (R-Texas) and by Sen. Michael Crapo (R-Idaho), chairman of the Senate Environment subcommittee on fisheries, wildlife and water. Congress will also get a chance to cast its vote on the

final rules as part of its formal regulatory review process. In finalizing the rule, the Administration upgraded the regulation to “major rule” status, which under current law, gives Congress an opportunity to review it, and potentially strike it down with a joint resolution.

In response to the current TMDL rider, there is also a potential that Congress would take action to remove the rider and allow EPA to move up the effective date of the rule, which is now set for October 1, 2001. The rider bars EPA from using any fiscal year 2000-2001 funds to implement the new TMDL program. EPA has indicated that it would move up the effective date of the rule if the rider is repealed. Until futher action is taken, the current TMDL regulation remains effective.

Throughout the rule development process, AMSA has been a key participant in the debate with the Agency and Congress. From AMSA's initial involvement with TMDL Federal Advisory Committee in 1997 to recent letters sent to the Administration and Congress, AMSA has consistently advocated for continuing water quality improvement in the Nation through the inclusion of nonpoint sources in the TMDL process.

The final rule, while not perfect, does promote a strong regulatory stance on nonpoint source pollution, encourages comprehensive watershed planning efforts, and requires state implementation plans; all of which look favorable for publicly owned treatment works (POTWs) — especially those on waters impaired by nonpoint source pollution. Following is AMSA's National Office summary and initial analysis of some of the rule's major provisions. A copy of the rule is attached.

Summary Analysis of the July 13, 2000 Final TMDL Regulations

Use of Existing and Readily Available Data to Assemble 303(d) Lists
EPA's new TMDL rule, like the old rule, requires the State to consider “all existing and readily available” information when determining its lists of polluted waters. However, the new rule at Part 130.25 improves upon the old rule by requiring that listings be based on “existing and readily available” data and information that have been collected using appropriate quality assurance and control (QA/QC) procedures.

EPA also provides a listing of the sources of water quality-related data and information which States should consider in order to develop its lists. One significant addition from the previous rule is the consideration of information contained in drinking water source assessments mandated by the Safe Drinking Water Act. While data from these sources (e.g., 305(b) reports, nonpoint source assessments, source water assessments) can, at times, be suspect, EPA states in the preamble that it does not expect

States to use data in listed documents in an indiscriminate fashion. The State's listing methodology should explain how certain data or information will be used (or not used) as the basis for listing.

State Listing Methodologies and Lists Subject to Public Review
The new rule requires that States provide the public with notice and an opportunity for review and comment on the methodologies used to list polluted waters as well as the State's process for prioritizing the development of TMDLs. The rule also requires notice and opportunity for comment on the State's list of impaired waters and on final TMDLs. The first deadline for submitting State methodologies to EPA is November 1, 2001, or April 1, 2002, depending upon the effective date of the rule. Subsequently, the deadlines for States to submit publicly-reviewed listing methodologies to EPA are two years prior to the due date of the next listing cycle (methodologies for April 1, 2006 list are due on April 1, 2004).

While the current program requires the States to submit a listing methodology to EPA, it only requires States to provide notice on the establishment of TMDLs developed by the State. The new rule significantly improves the ability of the regulated community to comment and respond to the adequacy of data and methodologies used to list impaired waters and develop TMDLs.

Comprehensive Listing of Polluted Waters
The new rule requires a comprehensive listing of a State's polluted waters, including waters:

  1. impaired by “pollutants” needing TMDLs;
  2. waters impaired by “pollution” where no TMDL is required;
  3. polluted waters with completed TMDLs that do not yet meet water quality standards, and;
  4. polluted waters where existing controls will meet water quality standards before the next list is submitted (i.e. within 4 years). Waterbodies impaired by one or more pollutants, regardless of source (point source, nonpoint source, nonpermitted storm water source, air deposition and groundwater), must be included on the list and scheduled for TMDL development.

EPA also requires listing of waters identified as impaired through biological information. If the biological impairment is known to be caused by “pollution” and not caused by one or more “pollutants,” a TMDL would not have to be developed for this waterbody. Otherwise, the State must identify the pollutant(s) causing the biological impairment, and proceed with the development of a TMDL.

Listing Based on Anti-Degradation
The new rule requires States to consider Outstanding Natural Resource Waters (Tier III) to be impaired if the quality of such waterbodies has declined. In addition, any waterbody not maintaining a designated use or more protective existing use is impaired and must be listed. States are also given the option to list “threatened” waters, or waters that currently meet standards, but are anticipated to become impaired in the next four years. If a State decides to list a threatened water due to one or more pollutants, the State is required to develop a TMDL for the threatened waterbody. EPA had originally proposed to require States to list all “threatened” waters.

Rule Allows Consolidated 303(d) and 305(b) Lists
The rule allows States the option of coordinating their section 305(b) reports with their section 303(d) lists. Two options for performing this are provided, as well as a third option of keeping these lists separate.

In the preamble, EPA notes that the regulations do not require that all waters identified as not meeting water quality standards on the section 305(b) report, be included on the section 303(d) list. From EPA's preamble language, one may assume that a waterbody that is reported as only “partially supporting” its designated uses in the 305(b) report may not necessarily be defined as “impaired” on the 303(d) list. Since the quality of data used to complete the 305(b) report has been less rigorous than in other water quality programs, it would be reasonable for EPA to adopt this approach. The States ultimately will have to develop a methodology which explains how 305(b) data are considered in listing impaired waters on 303(d).

States Have Up to 15 Years to Develop TMDLs:
States must develop TMDLs as expeditiously as practicable, at an even pace, but not later than 10 years after July 10, 2000 for those waters that are currently listed. For waters listed after July 10, 2000, or for new pollutants on already listed waters, States must develop TMDLs no later than 10 years from the initial listing. EPA may grant up to a 5 year extension of schedules where establishment of TMDLs within 10 years is not practicable in a specific State.

Priority for Drinking Water and Threatened/Endangered Species
The new rules establish a “rebuttable presumption” that States will give high priority for development of TMDLs to waterbodies where the problem pollutant is causing a drinking water system to violate or “be vunerable” to a violation of a drinking water standard. The rebuttable presumption also applies in cases where the waterbody supports threatened or endangered species.

Addition/Removal of Waters From the List in Between Listing Cycles
The new rule clarifies the existing regulations and continues to allow modifications to a State 303(d) list at times other than required list submissions. EPA does indicate that the same requirements for listing, (i.e., public review, data quality, etc) apply to the removal of waterbodies from the list. A State may remove a listed waterbody for a particular pollutant if new data and information indicate that the waterbody is attaining and maintaining the applicable water quality standards for that pollutant.

EPA does not interpret the phrase “new data and information” to allow removal of a waterbody in instances where the State disputes the quality of information or reinterprets the same information it previously used to list a water on the Section 303(d) list and concludes the data or information did not support a finding of impairment. Based on this preamble language, waterbodies currently listed as impaired based on questionable data, or based on methodologies inconsistent with a State listing methodology developed under the new rule, could not be removed from the 303(d) list, unless additional data is collected which indicate that the water is attaining and maintaining water quality standards.

Listing Cycles Extended From Two to Four Years
The new rule requires that States submit their lists of impaired waters to EPA on April 1 of every fourth year, beginning April 1, 2002. The old rule requires the States to develop lists every two years. This additional time for States will improve their ability to monitor and assess waters, as well as provide more time to involve the public and the regulated community in developing impaired water lists.

Both the current and new rules require EPA to approve or disapprove State lists within 30 days of receipt, which is taken from explicit language in the Clean Water Act. EPA also has a statutory responsibility to issue a new list for a State consistent with federal requirements within 30 days of disapproval of a State list.

TMDLs Must Consider Wet Weather and Other Seasonal Variations
EPA's new rule outlines eleven elements of an approvable TMDL. One of the elements that States must consider is seasonal variations (e.g., stream water flow levels, and other environmental factors) that affect the relationship between pollutant loadings and water quality impacts. While both the current and new rule require that allocations must result in attainment and maintenance of water quality standards in all seasons of the year, the new rule specifies that standards must be maintained during all flow conditions. EPA states in its preamble that the intent is that TMDLs must account for normal variations in seasonal conditions such as flow, precipitation, or temperature, and not necessarily account for extreme unusual conditions such as 100-year storms or hurricanes.

TMDLs Must Allow For Future Growth
The new rule requires that TMDLs include an allowance for reasonably forseeable increases in pollutant loads, including future growth. If a State does not anticipate increased loadings in a TMDL, it may satisfy this element by indicating it does not expect there to be such increases.

TMDLs Required to Include Implementation Plan
EPA's new rule requires that a TMDL include an implementation plan that defines specific steps to be taken to restore polluted waters on a specific schedule. In the rule and in the preamble, EPA explicitly states its belief that implementation plans provide the basis for demonstrating that water quality standards will be attained and maintained through pollution controls other than controls over point source discharges subject to an NPDES permit. The old rules do not require the submittal of an implementation plan as part of the TMDL.

The purpose of the implementation plan is to provide a description of actions necessary to implement the TMDL so that a waterbody can attain its water quality goals. For waters impaired wholly or partially by nonpoint sources, the implementation plan is expected to highlight the relative contributions of these sources, and provide a description of the specific regulatory and voluntary actions, including management measures that provide reasonable assurance that nonpoint source load allocations will be implemented. In many impaired waters, nonpoint source contributions are significant, and this discrete analysis and watershed planning tool is expected to help point sources reduce their overall wasteload reduction burden.

EPA Removes Controversial Blended Waters Provision
In EPA's June 19, 2000 draft final rule, EPA had proposed to require that the implementation plan include a schedule demonstrating that management measures or other controls to implement nonpoint source load allocations be installed during the term of the permit(s) that implement the wasteload allocation. This draft final rule provision would have had a deleterious impact on NPDES permittees as no credits for nonpoint source controls could be allotted to point sources, if these controls were expected to be installed after the 5-year NPDES permit term. After consideration of potential impacts that this provision would have on point source permittees involved in successful long-term watershed programs, EPA decided to delete the provision from the July 13, 2000 final rule.

In the July 13 final rule, States are still expected to develop an implementation plan which describes the extent to which the wasteload allocation reflects expected load reductions from nonpoint sources. The final rule also would require a schedule for implementing nonpoint source controls, within 5 years, or as expeditious as practicable.

States Required to Set 10-Year Goal For Attaining Water Quality Standards
Implementation plans must be based on a goal of attaining and maintaining the applicable water quality standards within 10 years whenever attainment and maintenance within this period is practicable. EPA acknowledges in the rule preamble that the “practicability” of meeting standards within 10 years may be influenced by a wide variety of factors, such as the degree of water quality impairment, the time required to install controls or change practices, the time for such actions to have in-stream effects on water quality, the costs to implement actions, and time to work with members of the affected community. EPA also recognizes that in some cases, where implementation involves significant habitat restoration or reforestation, water quality standards may not be met for decades.

Thermal TMDL Provisions Required By Statute
In the final rule, EPA restated existing statutorily-driven requirements for the development of total maximum daily thermal loads (TMDTLs). For those waterbodies impaired due to thermal discharges, the TMDTL is the level which cannot be exceeded in order to assure protection and propagation of a balanced indigenous population (BIP) of shellfish, fish, and wildlife. The final rule requires TMDTLs to include all the elements required for TMDLs developed for pollutants (e.g., implementation plan).

EPA Oversight of TMDLs
EPA is required to establish lists of polluted waters and schedules for TMDL development where EPA disapproves the list/schedule and where a State does not submit a list/schedule by April 1 of 2002 and every 4 years thereafter. The rule also requires EPA to develop TMDLs where a TMDL submitted to EPA is disapproved. EPA must also develop a TMDL where a State fails to make substantial progress under an approved schedule (i.e. misses the schedule by more than one year). EPA must complete TMDLs within 2 years.

New EPA Authority for Permit Issuance in Waters with TMDLs
The rules give EPA a new mechanism to object to and reissue expired State NPDES permits for waters not meeting water quality standards. These authorities may apply to any NPDES permits that have been expired and have not been reissued in impaired waters for which there is an approved TMDL, or in impaired waters where there is not an established TMDL. EPA would exercise this authority when there is a need for a change in the existing permit limits to be protective of water quality standards.

For waters where a TMDL has been developed and approved, the new rule commits EPA to exercise this authority within two years from the expiration date of the permit term, or when the permit term expired prior to the establishment of the TMDL, within two years from the establishment of the TMDL. For waters where no TMDL has been approved, the new provision calls into question whether EPA will require States to adopt severely reduced and restrictive permit limits for point sources to achieve reasonable further progress in attaining water quality prior to the TMDL. EPA is currently preparing a national guidance on the issue of permitting prior to TMDL development. A draft of this document is expected in September, and AMSA is closely following its development.

Definition of Impaired Waters
EPA's new rule provides a definition of an impaired water to include waters that fail to attain and maintain water quality standards. EPA is using the phrase “attain and maintain” to clarify the waterbody must consistently continue to meet water quality standards. In addition, EPA is currently developing additional guidance to States on consolidated assessment and listing methodologies, and is expected to be complete a final document in December 2000. This document is intended to provide states with examples of how assessment and listing determinations are made. Additionally, the new rules require States to provide the public with notice, and an opportunity for review and comment on the methodologies used to list impaired waters.

The rule preamble is inconsistent on the meaning of the phrase “attain and maintain.” One part explains that any failure to meet an applicable standard would mean that the waterbody should be listed as impaired. Another part explains that EPA's intention is to ensure that States list waters that may occasionally meet an applicable standard, but fail to consistently do so. It is unclear whether EPA believes that a single violation of a standard must be used as a basis for listing, even in cases where subsequent data shows the waterbody to be in compliance, or in cases where the violation occurred in a rare and unusual circumstance.

Definition of Reasonable Assurance
The new rules require that implementation plans provide a demonstration, or “reasonable assurance,” that measures to reduce pollution will be implemented through regulatory or voluntary actions. The rule defines reasonable assurance for point sources for which an NPDES permit is required as the steps States will take to ensure permits will be modified, issues, or revised as expeditiously as practicable to incorporate effluent limits consistent with the wasteload allocations.

For nonpoint sources, reasonable assurance, or actions taken to ensure implementation of the load allocations, must meet a four-part test. The control actions or management measures must be: 1) specific to the pollutant and waterbody for which the TMDL is being established, 2) implemented as expeditiously as practicable, 3) accomplished through reliable delivery mechanisms, and 4) supported by adequate funding. For nonpoint sources, each TMDL must meet each one of these tests prior to EPA approval.

Attachment:

  • Final TMDL Rule

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