Member Pipeline - Regulatory - Alert (RA 00-8)
To:
Members & Affiliates
From:
National Office
Date:
April 14, 2000
Subject:
EPA Proposed Changes to Final TMDL Rule
Reference:
RA 00-8
On April 5, 2000, Chuck Fox, the U.S. Environmental Protection Agency's (EPA) Assistant Administrator for Water, sent a letter to key Congressional leaders highlighting the expected elements of the final Total Maximum Daily Load (TMDL) regulation for restoring polluted waters throughout the country. Comprehensive changes to the section 303(d) TMDL regulations were proposed in August 1999. AMSA submitted comments on the rulemaking in January 2000. EPA's letter to Sen. Robert Smith (R-N.H.), chairman of the Senate Environment and Public Works Committee, and Rep. Bud Shuster (R-Pa.), chairman of the House Transportation and Infrastructure Committee, shares the approach the Agency likely will take in the final rule, which is targeted for release on June 30, 2000.
It appears that some of AMSA's primary concerns — nonpoint sources, offsets, implementation plans, time tables and State primacy — have been positively addressed by EPA. Fox states in his letter, “The statutory basis for including these (nonpoint) sources in the TMDL process was recently affirmed by the Federal District Court in California. Since the majority of polluted waters are polluted in whole or in part by these diffuse sources, a management framework that does not address them cannot succeed in meeting our clean water goals.” The court case cited by Fox was Pronsolino v. Marcus, which upheld EPA authority under the Clean Water Act (CWA) to develop TMDLs for waters impaired by nonpoint sources. The March 30, 2000 decision by the U.S. District Court for the Northern District of California is a major victory for AMSA, which intervened in the lawsuit, on behalf of its membership, on the side of EPA to protect the interests of POTWs in the TMDL process. Still unclear is how EPA will address nonpoint sources that are allocated a portion of pollutant loading reductions but fail to meet reduction goals.
As expected, EPA anticipates it will drop from the rule the proposed 'offset' scheme. In the proposed rule, the offset provision would prohibit new or significantly expanded discharges in impaired waters without pollution offsets. Dischargers would only be able to obtain permits under agreements with sources to remove 1.5 times as much pollution as the discharges would contribute.
In its January 2000 comments on the rule, AMSA commended EPA for including state implementation plans as part of the TMDL. In what appears to be a victory for AMSA and environmentalists, EPA anticipates retaining this requirement in the final rule.
A complete list of EPA's anticipated changes are attached to the letter from Chuck Fox. For further information, please contact Lee Garrigan at 202/833-4655, or by e-mail at lgarrigan@amsa-cleanwater.org.
Attachment:
April 5, 2000 Letter to Key Congressional Leaders From Chuck Fox(PDF Format) List of Key Elements of Expected Final Regulation for Restoring America's Polluted Waters (PDF Format)
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