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April 14, 2003 AMSA Fax Alert

Member Pipeline - Fax Alert SpecialEdition - April 14, 2003

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April 14, 2003

EPA’s Draft “Watershed Rule” Would Improve TMDL Program
Last week the U.S. Environmental Protection Agency’s (EPA’s) draft “Watershed Rule” package (formerly the total maximum daily load (TMDL) rule) became widely available, after nearly a year of the Agency keeping the proposed regulatory language extremely close to the vest. The Watershed Rule is designed to replace and update the 1992 Clean Water Act (CWA) TMDL regulations, which now govern the program, following EPA’s March 2003 withdrawal of the controversial July 2000 TMDL regulation. 68 Fed. Reg. 13,607. The release of the draft package, which is currently undergoing informal review by various federal agencies, gives AMSA and other stakeholders an early opportunity to review the proposed rule’s preamble and draft regulatory language. Changes to this draft package still are likely before its eventual proposal in the Federal Register.

Overall, the package contains no surprises for AMSA members, and is consistent with EPA presentations to the membership on the concepts the Agency has been exploring during more than two years of public listening sessions and meetings to determine right future direction for the TMDL program. The package would make several important changes to the TMDL rules that will benefit publicly owned treatment works (POTWs). This FaxAlert Special Edition provides AMSA members with a brief summary of key provisions in the package. The document is available on AMSA’s website at http://www.amsa-cleanwater.org/private/regupdates/reg_digest.cfm#water.

Key Draft Proposed Rule Provisions
EPA’s draft package addresses several important TMDL topics, and proposes regulatory language to address existing shortcomings in these areas. They are:

1) Integrated State Water Quality Reports.
EPA proposes that states submit one integrated water quality monitoring and assessment report to EPA every four years. This report would combine state CWA§ 305(b) reports on overall state water quality and the state CWA § 303(d) lists of impaired waters needing TMDLs, each presently submitted every two years as a separate document. In a late-2001 guidance document, EPA already encouraged the states to use this integrated approach for their October 2002 CWA § 303(d) lists, and approximately half the states in fact submitted integrated lists. States are free to add or remove waters from the list between four year submittals with EPA approval. AMSA supports integrated listing because it gives states more options to categorize waters, reduces duplication and administrative costs, and better clarifies that the CWA § 303(d) list is a subset of all waters in the state.

2) Implementing TMDLs through the CWA § 303(e) Continuing Planning Process.
The current TMDL regulations are criticized because they lack TMDL implementation requirements. To address this shortfall, the July 2000 rule made an implementation plan an essential element of a TMDL to be approved by EPA, a requirement vehemently opposed by the states as impracticable and inflexible. This proposal strikes a balance on implementation by reviving the CWA § 303(e) Continuing Planning Process (CPP). Once EPA approves the TMDL and “initial” allocations for point and nonpoint sources, states will be free to implement the TMDL and even adjust allocations without EPA approval at the watershed level. While the details of how the CPP will work in practice remain to be fleshed out, AMSA generally supports the proposal’s strong emphasis on implementation with local flexibility.

3) The Role of Nonpoint Sources in TMDLs.
The current TMDL regulations leave no question that even waters impaired 100 percent by nonpoint sources are to be included on state CWA § 303(d) lists and subject to TMDL development, with implementation of nonpoint TMDLs left to the states via the CPP. In the proposed rule package, EPA reaffirms its position that “section 303(d) of the Clean Water Act requires that jurisdictions identify on the section 303(d) lists waters impaired partly or solely by nonpoint sources of pollutants and establish TMDLs for such waters.” Preamble at 35. The proposed rule would require a TMDL submitted to EPA to include among other things, a wasteload allocation attributable to individual point sources and a load allocation attributed to nonpoint sources, atmospheric deposition, ground water or background sources of a pollutant. The nonpoint load allocation “may be allocated to categories or sub-categories of sources or expressed as gross allocations.” See 40 CFR § 130.21. Nonpoint groups have vociferously opposed any mandatory allocation of nonpoint loadings to sub-categories, and while this language appears to meet their expressed needs, AMSA already is aware that they have concerns with the draft proposed language.

4) “Pollutant” and “Pollution.”
EPA’s draft proposed language takes pains to discuss this important issue. EPA states that “where no pollutant is identified as causing an exceedance of water quality standards, EPA does not believe the CWA requires a TMDL to be established.” Preamble at 36. The proposed package appears to endorse AMSA’s long-standing position that TMDLs are appropriate only when a pollutant is causing an impairment and where a TMDL can help to solve the problem. Notably, however, EPA does include in its description of the “nonpoint” allocation, atmospheric deposition, ground water and background pollutant sources. In some cases, a TMDL may not be the best route to address a waterbody impaired, for example, by atmospheric deposition of mercury or legacy mercury loadings.

5) National Pollutant Discharge Elimination (NPDES) Permits and TMDLs.
One of the more controversial elements of the July 2000 TMDL rule was that EPA would have a mandatory duty to take over expired or continued state NPDES permits in impaired waters. The draft proposed rule appears to take a more moderate approach to this issue by making EPA take over a discretionary authority.

6) Improving Data behind TMDL Listings.
Another key issue in the TMDL debate has been enhancing the quality of data used to support listing waters as impaired, and offering states options to track waters where more study and data are needed. The integrated lists (see #1, above) give states the option of listing waters in one of several categories based upon the knowledge of the water quality issues in the watershed. States also are required to establish a transparent water quality assessment methodology that “explains how it will consider and evaluate all existing and readily available data and information to determine whether waters in the jurisdiction are attaining applicable water quality standards.” See 40 CFR § 130.13. AMSA has long-supported mechanisms to better the science and process behind impaired waters decisions, and EPA’s draft proposed language appears to meet this goal.

Next Steps
The draft proposed rule package spans over 200 pages in length, and like any important regulatory document, contains many nuances and details that will require study and consideration by AMSA and its member agencies. To this end, the draft rule will be a subject of discussion at AMSA’s upcoming National Environmental Policy Forum and 33rd Annual Meeting (NEPF), to be held in Washington, D.C. May 17 – 21. Leaders of AMSA’s Water Quality and Legal Affairs Committees also will be reviewing the draft in the coming weeks to report in greater detail at the NEPF on the directions taken in this package. In addition, key EPA Watershed Rule staff will be present at the NEPF to answer questions and to provide additional information on the package. AMSA looks forward to evaluating the draft with its members, and to providing the POTW community’s perspective on this essential water quality program to EPA and other stakeholders.