To:
Members, Affiliates, & Legal Affairs Committee
From:
National Office
Date:
February 1, 1999
Subject:
Evaluating TMDLs. . . Protecting the Rights of POTWs
Reference:
Legal Alert 99-1
AMSA is pleased to provide the membership with a groundbreaking document that is designed to assist publicly owned treatment works (POTWs) in their response to the application of total maximum daily loads (TMDLs) under the U.S. Environmental Protection Agency's (EPA) national water quality program. Evaluating TMDLs . . . Protecting the Rights of POTWs includes a concise outline of critical issues of the TMDL and water quality based effluent limits programs that could impact POTWs, as well as series of legal, scientific and policy arguments that POTWs can utilize in their efforts to ensure that TMDLs are appropriately developed and implemented.
AMSA has recognized the need for this document as states and EPA are rushing to implement the TMDL program in the face of limited funding and resources, and in some cases, with questionable legal authority. In order to ensure that POTW interests are protected, AMSA urges members to consider all administrative and legal options in dealing with inappropriately developed or implemented TMDLs. The document is considered a “work in progress,” as the TMDL program continues to evolve and is met with significant disagreement and confusion regarding many of its applications. AMSA members are encouraged to use this document to engage their states in ensuring that TMDLs are developed using adequate and appropriately applied data, and to assist in identifying potential misapplication of TMDL requirements. Arguments that EPA or states may make on contested issues are also discussed.
As an AMSA member, you have been aware of the significant shift in the focus of the nation's water quality standards program over the past two and a half years. The development and implementation of total maximum daily loads (TMDLs) for impaired waters, a long-ignored provision in the Clean Water Act, has seized the attention of EPA, state, and local water quality program managers in the wake of dozens of lawsuits across the country. The Clean Water Act (CWA) requires the establishment of TMDLs for all waters in which point source effluent limits are not achieving the established water quality standards.
These lawsuits have resulted in numerous consent orders forcing EPA and the states to develop strict schedules for establishing TMDLs, and prompted EPA to develop proposed changes to the TMDL program regulations and policies, with guidance from a Federal Advisory Committee. AMSA has participated in the advisory committee and has provided input to EPA regarding potential impacts of regulatory and policy changes to POTWs.
As the TMDL program moves forward, AMSA members must ensure that resulting requirements do not unfairly shift the burden of compliance responsibility to point source dischargers subject to enforceable controls through the NPDES program. Because the majority of nonpoint sources lack enforceable control mechanisms, POTWs and other point source dischargers face increasingly stringent requirements due to TMDLs.
Among key issues addressed in the outline are: listing of impaired waters; reliability of scientific data used to determine impairment; designated uses and water quality criteria changes; application of water quality criteria; application of TMDLs; delisting of impaired waters; application of water quality based effluent limits; water quality modeling; effluent trading; wet weather criteria; load reductions; variances; and, appeals. Special thanks are due to AMSA's Legal Affairs Committee for its oversight of this project and, in particular, David A. Katz, counselor for the City of Philadelphia Water Department, Pa., for his significant contributions. The document is also be available on the Member Pipeline section of AMSA's Clean Water on the Web at http://www.amsa-cleanwater.org.
Additional TMDL Resources: Environmental Law Institute's
Almanac of Enforceable State Laws to Control Nonpoint Source Water PollutionAMSA is not alone in its interest in the TMDL process and nonpoint source control in general. Earlier in January 1999, ELI released its Almanac of Enforceable State Laws to Control Nonpoint Source Water Pollution. The Almanac includes detailed summaries of each State's enforceable mechanisms for nonpoint sources. The document catalogues the enforceable mechanisms in each State according to the following categories: water pollution control laws, other discharge limitations, fish/fisheries laws, forestry requirements, agriculture requirements, and development and other earth-disturbing activities. The document indicates that most States have a number of enforceable authorities that can be used to address various nonpoint source discharges, but that legal coverage of all nonpoint sources is often incomplete and weakened by numerous exemptions. AMSA members should consider using this legal resource in combination with the TMDL outline. The Almanac can be viewed and downloaded through the internet on ELI's website http://www.eli.org, in the Research Reports section of their site.
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