Watershed Management
ELI Releases Almanac of Enforceable State Laws to Control Nonpoint Source Water Pollution
Background: The Environmental Law Institute (ELI) has been identifying and collecting enforceable provisions in state laws that bear on, or that could be brought to bear on, discharges from these sources. Nonpoint source discharges, which consist generally of polluted runoff from farms, forests, land development and other activities, are not regulated under the federal Clean Water Act's NPDES permitting program. Instead they are addressed primarily through nonregulatory means, such as planning, incentive and cost-share mechanisms, voluntary Best Management Practices (BMPs), and other approaches. AMSA has pushed EPA and Congress to require states to have regulatory authority over nonpoint sources to ensure that responsibility for pollutant load reductions are spread equitably among all sources of pollution. A broad summary of existing enforceable state laws was published by ELI in late 1997 as “Enforceable State Mechanisms for the Control of Nonpoint Source Water Pollution.” That study identified the types of enforcement-based state laws that apply to nonpoint source discharges, and the opportunities and obstacles affecting their use. This new study builds upon the prior study. It provides a state-by-state summary of enforcement-based laws that are potentially applicable to nonpoint source water pollution. While the state laws identified are ones that could be used to address nonpoint source pollution, the summaries are not limited to state laws that are currently being used in this way. The report acknowledges that significant gaps in coverage and use of existing laws exist, however, the intent of the report is to raise the level of visibility of these enforceable mechanisms. AMSA encourages members to review the report, and assess the ability of their states to address nonpoint source pollution through these existing laws. To obtain the $30 report, call the Environmental Law Institute at 202/939-3800, or download it free at http://www.eli.org/bookstore/rralmanac98.cfm.
AMSA Releases TMDL Handbook
Background: 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. However, as the TMDL program moves forward, AMSA is not assured that resulting requirements will 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.
Status: On February 1, 1999 AMSA released 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. 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. 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/tmdl/tmdl.cfm. CONTACT: Greg Schaner, AMSA 202/296-9836.
Proposed TMDL Revisions to be Proposed in Summer 1999
Background: Under CWA Section 303(d), states are required to identify waters in which technology-based effluent limitations are not sufficient to meet water quality-based standards, and requires states to develop TMDLs for these waters which will ensure that applicable water quality standards are met. Under Section 303, EPA must develop TMDLs when states fail to do so. In November 1996, EPA convened a federal advisory committee of stakeholder interests to develop recommendations concerning needed changes to the agency's TMDL program implementation strategy, as well as TMDL-related policies, guidance, regulations and priorities. AMSA has participated in the advisory committee and has provided input to EPA regarding potential impacts of regulatory and policy changes to POTWs.
Status: EPA plans to propose revisions to its TMDL program regulations and accompanying guidance in the summer of 1999. EPA has indicated that it will provide a 90-day comment review period. EPA describes the package as “aggressive,” requiring states to implement reasonable assurance that nonpoint source controls will be implemented, requiring the listing of threatened waters, and requiring the 303(d) list to serve as a basis for listing all impaired waters. EPA proposes that the 303(d) list be “segmented” into four separate lists: 1) waters impaired by pollutants requiring TMDLs; 2) waters where TMDLs have been completed, but where water quality is still impaired; 3) waters impaired by pollution that do not require the development of a TMDL; and 4) waters where best practicable technology will result in the attainment of the waterbody and where no TMDL is required. 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. AMSA plans to meet with EPA in March 1999 to discuss details of the proposal. CONTACT: Mark Hoeke, AMSA 202/833-9106 or Don Brady, EPA 202/260-5368.