EPA Delays New Rules for "Total Maximum Daily Loads"

Ellen Steen and her colleagues at Crowell & Moring LLP represent a group of agricultural and forest products trade associations in pending litigation challenging EPA's July 2000 TMDL rule.

Acting in response to the considerable controversy - and litigation - sparked by its July 2000 rule revamping the Clean Water Act "total maximum daily load" (TMDL) program, EPA has delayed the effective date of the rule to April 30, 2003. 66 Fed. Reg. 53,044 (Oct. 18, 2001). The delay is intended to allow the agency a chance to "reconsider some of the choices made in the July 2000 rule." Id. EPA simultaneously announced its decision to delay the date on which states must submit their next lists of "impaired waters" under the TMDL program until October 1, 2002. Id.

The July 2000 TMDL rule generated great controversy and considerable opposition within the agriculture and forestry communities, largely because the rule calls for "strengthening" the TMDL program by expressly requiring the implementation of measures to reduce pollution from "nonpoint" sources such as agricultural runoff and "air deposition" of pollutants (such as nitrogen and phosphorus). Such nonpoint sources are exempt from federal regulation under the Clean Water Act, and agriculture and forestry interests see some of the TMDL rule's provisions as effecting an end-run around this exemption.

EPA has said that its reconsideration of the rule "may result in revisions … that would resolve at least some of the issues raised in pending litigation." 66 Fed. Reg. at 53,044. EPA has voiced no intention to reconsider the rule's treatment of nonpoint source activities such as agriculture. However, agency officials have indicated that one topic under consideration will be whether and how to require "implementation plans" for TMDLs. Changes to the "implementation plan" requirements of the rule could increase the flexibility allowed to states in achieving water quality standards and diminish the federal oversight role.

EPA announced a series of "public listening sessions" as part of its reconsideration of the TMDL rule during October to December, 2001, in various cities. Information on the meetings can be found on EPA's TMDL web site at <http://www.epa.gov/owow/tmdl/meetings/>.