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July 16, 1999
AMSA Obtains, Distributes Pre-Publication EPA TMDL Rule
This week AMSA received a preliminary copy of the U.S. Environmental Protection Agency's (EPA) upcoming proposal to overhaul the agency's TMDL program. AMSA is distributing the text of the proposal to the membership via Regulatory Alert 99-12. The document is titled “Proposed Revisions to the Water Quality Planning and management Regulation — 40 CFR Part 130.” The second half of the TMDL package, which revises National Pollutant Discharge Elimination System permitting regulations, has not yet been released. Both proposals are expected to be published in the Federal Register in September 1999.The proposal would require states to list all impaired and threatened waters, including those impaired solely by nonpoint source pollution, under Section 303(d) of the Clean Water Act. The proposal segments the 303(d) lists into four parts: 1) waters impaired by “pollutants” for which TMDLs must be developed; 2) waters impaired by “pollution,” for which no TMDLs are required; 3) waters for which TMDLs have been implemented but standards have not yet been attained; and 4) waters where best practicable technology will result in attainment of standards. Under the proposal, states would be required to assign a “high,” “medium” or “low” priority to waters on segment “1” of the 303(d) list. EPA will also propose modification of the listing cycle, favoring a five-year cycle beginning in October 2000.
The proposal would also require states to use all available data and information in assembling their lists of impaired and threatened waters. States will also be required to develop a methodology explaining how data and information will be used in listing and priority determinations. Each state will be required to take public comment on its methodology.
In a controversial decision that is likely to fuel resistance from some agriculture interests, the TMDL proposal requires states to list waters that are impacted solely by nonpoint sources and to develop TMDLs for waters impacted by pollutants — regardless of their source. EPA defends this position in the rule's preamble by noting that Section 303(d)(1)(A) does not expressly exclude waters impacted by nonpoint sources of pollution from the TMDL requirements of Section 303(d)(1)(C). EPA asserts that Section 303(d) applies to nonpoint sources and that the proposal is consistent with the Clean Water Act's definition of pollutant. The agency further states 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 TMDL lists, the proposal would require that implementation plans for TMDLs include “reasonable assurance” that both nonpoint and point sources activities are implemented and will result in the attainment of water quality standards.
Next week, AMSA members will have ample opportunity to discuss the specifics of the proposal during AMSA's 1999 Summer Conference in Philadelphia. AMSA's Water Quality Committee will be taking the lead on reviewing the proposal. A workgroup is expected to be formed to develop comments on the rule. Contact Mark Hoeke at 202/833-9106 or mhoeke@amsa-cleanwater.org if you are interested in participating on the workgroup.
Next Week EPA Will Publish Final Phase 1 Biosolids Amendments . . . The amendments to Clean Water Act Section 503 will clarify, revise and allow flexibility within selected regulations regarding the land application and incineration of municipal biosolids. AMSA has worked extensively with the agency on the amendments' development.