Member Pipeline - Regulatory - Alert (RA 99-12)
To:
Members & Affiliates
From:
National Office
Date:
July 16, 1999
Subject:
Pre-Publication Proposed TMDL Regulations
Reference:
RA 99-12
Attached, please find a pre-Federal Register copy of EPA's forthcoming proposed rule revising the Total Maximum Daily Load (TMDL) program, or as it is officially dubbed, “Proposed Revisions to the Water Quality Planning and Management Regulation - 40 CFR Part 130.” A second part of the TMDL package has not yet been released and will propose changes to the NPDES permitting regulations at 40 CFR Part 122 and 123, as they relate to TMDLs. It is expected that both regulatory proposals will be released together in the Federal Register sometime in September 1999.
Segmented and Prioritized Lists
As has been reported in AMSA publications from earlier this year, EPA describes the proposed changes to 40 CFR Part 130 as “aggressive,” requiring the 303(d) list to 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 modification of 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 practicable, 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 10 minimum 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, contracts, 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.
NPDES Issues
There are also several NPDES issues that EPA hopes to address in a forthcoming proposal including: 1) provisions to allow permits to be re-issued or extended in cases where they are not consistent with the TMDL allocation or for EPA to intervene if the State doesn't act to issue an expired permit; 2) expanded designation authority so animal feeding operations and aquaculture/silvaculture operations can be designated as point sources; and 3) required offsets for new or significantly expanded discharges where no TMDL has been established.It has also come to the attention of AMSA's Water Quality Committee that EPA's 40 CFR Part 122 proposed regulation may require offsets only from large point sources, and may not apply this requirement to small point sources, or nonpoint sources. AMSA hopes to meet with EPA to address this issue in the near future.
AMSA's Next Steps
AMSA's Water Quality Committee will be taking a lead on reviewing the proposal. A workgroup of the Water Quality Committee is expected to be formed to develop comments on the rule. If you would like to be part of this workgroup or would like to provide comments, please contact Mark Hoeke, AMSA 202/833-9106, or mhoeke@amsa-cleanwater.org.Attachment:
- Pre-Publication Proposed TMDL Regulations (For a copy of this document, please contact AMSA's National Office at 202/833-2672).