Member Pipeline - Regulatory - Alert (RA 99-18)
To:
Members & Affiliates
From:
National Office
Date:
August 24, 1999
Subject:
Proposed Revisions to TMDL and NPDES Regulations - Request for Comments
Reference:
RA 99-18
Action Please By: September 24, 1999
Attached, please find a Federal Register copy of EPA's “Proposed Revisions to the Water Quality Planning and Management Regulation - 40 CFR Part 130” and EPA's proposed “Revisions to the NPDES Program and Federal Antidegradation Policy in Support of Revisions to the Water Quality Management Regulation - 40 CFR Part 122, et al.” Together, these two proposals make up the regulatory package of proposed changes to EPA's Total Maximum Daily Load (TMDL) program.
TMDL Background
Under Section 303(d) of the Clean Water Act, states, territories, and authorized tribes are required to develop lists of impaired waters. These are waters that do not meet water quality standards, even after point sources of pollution have installed the minimum required levels of pollution control technology. States must establish priority rankings for waters on the lists 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 among point and nonpoint pollutant sources. EPA must approve or disapprove state lists and TMDLs. If a state submission is inadequate, EPA must establish the list or the TMDL.1. Proposed Changes to Water Quality Planning and Management Regulation
EPA is proposing that the 303(d) list serve as a basis for listing all impaired waters, including those waters impacted solely by nonpoint sources, and requiring the states to list threatened waters. EPA proposes that the 303(d) list be “segmented” into four separate lists: 1) waters impaired by pollutants requiring TMDLs; 2) waters impaired by pollution that do not require the development of a TMDL; 3) waters where TMDLs have been completed, but where water quality is still impaired; and 4) waters where best practicable technology will result in the attainment of the waterbody and where no TMDL is required.Waters impaired by pollutants requiring TMDLs (Part 1 of the list) are to be prioritized using a high, medium, or low priority ranking. High priority waters include: 1) those waters designated for public drinking water supply where the drinking water use is impaired or threatened; and 2) species listed as threatened or endangered under Section 4 of the Endangered Species Act are present in the waterbody. The state may also consider the presence of sensitive aquatic species and other factors, such as historical, cultural, economic, and aesthetic uses of the waterbody when assigning high priority waters.
EPA also will propose modifications to the listing cycle, and will solicit comments on two, four, and five year time frames. EPA expects to move the forthcoming listing cycle from the currently scheduled April 1, 2000 to October 1, 2000 at the earliest, providing at least six months from final regulation and guidance promulgation for states to develop new 303(d) lists.
Schedule and Minimum Elements in a TMDL
EPA proposes to require states to submit a schedule for the development of TMDLs for all waterbody and pollutant combinations on Part 1 of the 303(d) list. The proposal requires states to establish a schedule for completing TMDLs as expeditiously as possible, but no later than 15 years from the date of initial listing. EPA also details its expectations for what constitutes an approvable TMDL by outlining a minimum of 10 elements that must be included in any state TMDL submittal. The minimum elements include, but are not limited to: identification of the sources of the pollutant causing impairment, point and nonpoint source loading allocations, a margin of safety, consideration of seasonal variation, an allowance for future growth, and an implementation plan for attaining water quality standards.Use of Available Data in Listing and TMDL Development
The proposal requires that states assemble and consider all existing and readily available data and information when developing lists of impaired waterbodies including Clean Water Act (CWA) section 305(b) state water quality assessments, CWA section 319 nonpoint source assessments, and drinking water source water assessments under section 1453 of the Safe Drinking Water Act. In addition, states are required to develop a methodology that explains how data and information will be used to determine which waterbodies to include on the list and how priority rankings will be determined. Each state will be required to take public comment on its methodology. Among other comments sought, EPA will be seeking comment on whether the regulation should more specifically define national minimum criteria or thresholds that define waterbodies that are impaired or threatened.Nonpoint Sources and Reasonable Assurance
The proposal requires that states list waters that are impacted solely by nonpoint sources and develop TMDLs for those waters impacted by pollutants. EPA defends this position in the preamble of the rule by highlighting that section 303(d)(1)(A) of the CWA does not expressly exclude nonpoint source impacted waterbodies from the TMDL requirements of section 303(d)(1)(C). EPA also expresses its “belief that section 303(d) applies to nonpoint sources is consistent with the Clean Water Act's definition of pollutant,” and goes further to state that, “an examination of the Act 'as a whole' supports an interpretation that Congress did not intend to limit the term 'pollutant' to point sources.”In addition to the inclusion of nonpoint-source-only impacted waters to the TMDL lists, EPA would also require that implementation plans for TMDLs must include “reasonable assurance” that both point and nonpoint source load reduction activities will be implemented. For point sources, reasonable assurance means that NPDES permits will be consistent with wasteload allocations contained in the TMDL. For nonpoint sources, reasonable assurance means that nonpoint source controls are specific to the pollutant of concern, implemented according to an expeditious schedule, and supported by reliable delivery mechanisms and adequate funding. Some examples of reasonable assurance for nonpoint source implementation activities that EPA provides include: state regulations or local ordinances, memoranda of understanding, or contracts. While the proposal boldly addresses the issue of nonpoint source inclusion in the TMDL process, the proposed revisions do not appear to address the issue of appropriate allocation methodologies among point and nonpoint sources.
2. Proposed Revisions to the NPDES and Water Quality Standards Regulations
EPA's stated purpose of the proposed revisions to the NPDES and water quality standards regulations are to achieve reasonable further progress toward attainment of water quality standards in impaired waterbodies after listing and pending TMDL establishment, and to provide reasonable assurance that TMDLs, once completed, will be adequately implemented. The proposed regulations would:
- Include a new requirement that large new or significantly expanding point source dischargers obtain an offset of one-and-a-half times their proposed discharge before beginning to discharge, unless the Director (i.e. the EPA Regional Administrator or the State Director in a state that is authorized to administer the NPDES program) determines either: (1) that an offset other than 1.5:1, 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, in which case the Director need not require an offset. EPA has not proposed any deminimis loading contribution levels to these requirements (e.g., exemption of dischargers contributing less than 5 percent of the loading to the impaired waterbody). These proposed offset requirements would be in addition to current Clean Water Act provisions requiring discharge limits to protect water quality standards;
- Define a significant expansion of an existing discharger as a 20 percent or greater increase in pollutant loadings above current permitted pollutant loads. EPA has also solicited comment on the use of 50 percent or greater increase in pollutant loadings to define the term significant expansion;
- Provide EPA the authority to object to, and ultimately reissue, expired and administratively-continued permits for discharges to impaired waterbodies in NPDES-authorized states 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 Concentrated Animal Feeding Operations, Concentrated Aquatic Animal Production Facilities, and certain silviculture operations as point sources and require them to obtain NPDES permits after completion of a TMDL in cases where EPA is required to establish the TMDL.
AMSA Next Steps
EPA has provided for a 60-day comment period on these proposals, which means that comments are due on October 22, 1999 to EPA. AMSA plans to develop a comprehensive set of comments to deliver to the Agency, including any data that would support our positions. A workgroup has been formed under AMSA's Water Quality Committee and will be coordinating the development of AMSA comments on the rule. A targeted survey of the membership may also be conducted to gather applicable data related to the proposal.If you would like to contribute comments on the proposed regulations to the AMSA workgroup effort, please send them no later than September 24, 1999 c/o Mark Hoeke, AMSA via email at mhoeke@amsa-cleanwater.org. If you do not have e-mail, please fax them to 202/833-4657. If you would like to serve on the AMSA workgroup, please contact Mark Hoeke at 202/833-9106.
Attachments:
Federal Register Notice of EPA's Proposed Revisions to the Water Quality Planning and Management Regulation - 40 CFR Part 130 Federal Register Notice of EPA's Proposed Revisions to the NPDES Program and Federal Antidegradation Policy in Support of Revisions to the Water Quality Management Regulation - 40 CFR Part 122 For these downloadable file, you must have the Acrobat Reader. If you don't have the Acrobat Reader, click on the icon below to download a copy. After you download and install a copy, return to this page and click on the links above for the downloadable files.
