American Bar Association
Section of State and Local Government LawState and Local Law News
Vol. 24, No. 1, Fall 2000
Environmental Update
Revised TMDL Rules Impose New Requirements
By Ronda L. Sandquist and Carrie Ciliberto
Amidst substantial congressional criticism and numerous stakeholder concerns, EPA promulgated final water quality rules that will require state and local governments to develop plans for and controls on dischargers and stormwater and nonpoint source pollutants. EPA’s final rules for the TMDL (total maximum daily load) program will increase the number of waters for which TMDLs must be completed, require prioritization of TMDLs and completion of TMDLs on such schedules, and mandate additional requirements for TMDLs. This article briefly highlights new changes to the TMDL program and the effects on dischargers, landowners, and local governments.1
Congress Disputes EPA Action
In a fairly unique move, Congress adopted the "TMDL Rider" to the Fiscal Year (FY) 2000 Supplemental Appropriation Bill to prohibit EPA from promulgating or implementing new TMDL rules. However, EPA adopted the TMDL rules before the appropriation bill was enacted (See Final TMDL Rule Signed by Browner, Styming Bid by Congress to Block Measure, 31 Env’t Rep. (BNA) No. 28, 1468 (July 14, 2000)), averting EPA’s attempted "veto" of administrative action. Congressional review of the EPA’s TMDL rule will continue, since it has been designated as a "major rule," allowing Congress sixty days to decide whether to approve the rules. Id.
Background
In 1984, the Seventh Circuit reached a decision in Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984), that would shape the future of CWA implementation. The Seventh Circuit held that: "If a state fails over a long period of time to submit proposed TMDLs ["total maximum daily loads"], this prolonged failure may amount to a ‘constructive submission’ by that state of no TMDLs." Ultimately, this decision resulted in a flood of litigation against the EPA in states that had failed to create TMDLs.
Ultimately, Scott v. City of Hammond, id., was confirmed by other courts and caused a flood of litigation against EPA and the states for failure to create TMDLs.2 After several adverse rulings on TMDL cases, EPA entered into consent decrees with plaintiffs establishing priorities and aggressive schedules for completion of TMDLs within various states or regions.3
Faced with continued TMDL litigation, EPA decided in 1996 that an evaluation of the TMDL program was in order. Therefore, EPA created a committee under the Federal Advisory Committee Act to evaluate and make recommendations regarding implementation of the Total Maximum Daily Loading (TMDL) program under the Clean Water Act by the EPA and states, territories, and authorized tribes (hereinafter states). Id. On July 28, 1998, the TMDL FACA Committee issued its report recommending 168 ways to improve the TMDL program. Id. Based, in part on that FACA report, EPA proposed new TMDL regulations on August 23, 1999. Id. The public comment period for the EPA’s proposed regulations expired on January 20, 2000. Through public meetings, consultations and conferences, and comments from numerous entities throughout the nation, EPA learned of significant concerns with the effect of the TMDL proposals, and serious questions and challenges to EPA’s authority to promulgate certain changes. Id. On July 11, 2000, EPA promulgated its final TMDL regulations. EPA’s final TMDL rule omitted some of the controversial proposed changes, revised others, but retained others in their entirety. 65 Fed. Reg. 43,586 et seq.
Costs and Funding for New TMDL Program
Additional resources are necessary for EPA’s implementation and the EPA has requested additional funding for FY 2001. Id. at 43,590. However, congressional concerns with EPA’s proposed program and expenditures culminated in a rider on legislation prohibiting EPA’s FY 2000 and 2001 funding from being used for implementation of the EPA’s new TMDL rules. See July 12, 2000 Memorandum from J. Charles Fox, Assistant Administrator, Office of Water. See also Republican Senators Introduce Bill to Delay Release of TMDL Regulation, Daily Envtl. Rep. (BNA) No. 73, at A-6 (Apr. 14, 2000). But beyond EPA’s costs, there are considerable concerns that costs to state and local governments resulting from the new TMDL program could be significant. And, if such state and local government costs exceed $100 million, then the Unfunded Mandates Reform Act requires evaluation of the cost and benefits. Baseline Assumption Used to Estimate Cost of TMDL Proposal Fall Short, GAO Says, 31 Env’t Rep. (BNA) No. 26, at1388 (June 30, 2000). And, many have suggested to state and local governments that costs exceed $100 million and have not been fully evaluated.
Clean Water Act § 303(d)
Requirements for TMDL emanate from section 303 of the Clean Water Act. A waterbody must be listed on the "303(d) List" if it is "impaired," meaning it fails to meet water quality standards.
Section 303(d) of the CWA requires states to identify and establish a priority ranking of waters that, despite implementation of standard limits in discharge permits, do not meet water quality standards. 33 U.S.C. § 1313 (1986); 40 C.F.R. § 130 (1998). Once a waterbody is listed, a TMDL for the pollutant causing the exceedances must be established at a level necessary to attain the applicable water quality standards. 33 U.S.C. § 1313(d)(1)(C) (1986). The TMDL must identify the pollutant and quantify the maximum load to the waterbody. 40 C.F.R. § 130 (1998). The identification and establishment of TMDLs was not dependent upon whether a waterbody is impaired by point sources, nonpoint sources, or a combination of the two. Pronsolino v. Marcus, 2000 WL 356305 (N.D. Cal.). If the EPA disapproves of the states’ list or of a proposed TMDL, or if states fail to establish a list or a TMDL, the EPA must establish the TMDL. 65 Fed. Reg. 42,596, at 43,633; 64 Fed. Reg. 46,037–8.
A TMDL is "a quantitative assessment of pollutants that cause water quality impairments. A TMDL specifies the amount of a particular pollutant that may be present in a waterbody, allocates allowable pollutant loads among sources, and provides the basis for attaining or maintaining water quality standards." 65 Fed. Reg. 43,586, at 43,588. A TMDL is generally established through the principle of mass balance, which is the concept that "[t]he mass of a pollutant in a waterbody is a function of the mass introduced into the waterbody and the mass that flows out of the waterbody." Id. at 43,593.
Listing of Impaired Waterbodies
A critical initial decision is what constitutes an impaired waterbody and, therefore, triggers listing. The EPA’s definition of impaired waterbody includes a waterbody impaired by unknown causes. Waterbodies would be considered impaired, and therefore necessitate section 303(d) listing, "when biological information indicates that they do not attain and maintain water quality standards." Id. at 43,596–7 (emphasis added). States must consider all available data when determining which waterbodies to list as impaired waterbodies; however, each state has discretion to exclude information from final consideration. The proposed regulations require states to submit listing methodologies to the EPA for review eight months prior to a state’s submission of its section 303(d) list. 65 Fed. Reg. 43,665 (July 13, 2000), 40 C.F.R. § 130.24. Bifurcating the listing methodology from the submission of the section 303(d) list, the regulations necessitate additional administrative processes. Even where the listing process is straightforward, many states lack the essential information necessary to make listing decisions for waters. Governors Seek Legislative Changes to Address Concerns on TMDL Program, 31 Env’t Rep. (BNA) No. 28, at 1469 (July 14, 2000). For example, insufficient water quality monitoring data are available for many waters. And, available data may not adequately support the modeling for projected water quality.
The EPA is requiring that the list be divided into four parts:
Part 1—Waterbodies impaired or threatened by one or more pollutants or unknown causes for which TMDLs would be required; Part 2—Waterbodies impaired or threatened by pollution for which TMDLs would not be required; Part 3—Waterbodies for which EPA has approved or established a TMDL and water quality standards have not yet been attained; Part 4—Waterbodies that are impaired, but for which implementation of technology-based or other enforceable controls are expected to result in attainment of water quality standards by the next listing cycle. A TMDL would not be required for waterbodies on the fourth part of the list.
Id. at 43,608. The four-part listing requirements appear to be excessive and will require an unnecessary allocation of limited resources. In addition, some impaired or threatened waterbodies may be caused solely by causes other than those addressed in TMDLs, such as air pollution. In such cases, it is more logical and effective to address those issues via another regulation, such as the Clean Air Act.
Although EPA does not require listing of "threatened" waterbodies, it encourages the states to list them. A waterbody is considered threatened if it currently meets water quality standards, but information exists which indicates that the standards will likely be exceeded by the next listing due date. 64 Fed. Reg. at 46,046; 40 C.F.R. § 130.2(n). If included, the threatened waterbody then becomes subject to the EPA’s TMDL review process. Id. at 43,606. Threatened waters are defined as waters that currently meet water quality standards, but for which existing information on adverse declining trends indicates that standards will likely be exceeded by the next listing cycle. Id. at 46,046, 40 C.F.R. § 130.2(n).
Arguably, EPA’s authority to require listing of threatened waters is tenuous. The Clean Water Act states that "each state shall identify those waters within its boundaries for which effluent limitations are not stringent enough to implement any water quality standard applicable to such waters." 33 U.S.C. § 1313(d)(1)(A) (1986). Thus, by using the present tense, and authorizing identification of waters where effluent limits are not stringent enough, Congress authorizes the listing of waters that currently fail to meet water quality standards. EPA’s interpretation, that waters that may not meet water quality standards in the future should be listed, may conflict with the plain language of the CWA.
The EPA admits that states should be allowed to remove waterbodies from the section 303(d) list prior to the next list due date. Such modifications are subject to EPA review and approval. The standard for delisting will be whether the waterbody has attained the water quality standards. States may remove individual pollutants that no longer cause impairment, but may not remove the waterbody from the list until the waterbody has attained the water quality standards. Id. at 43,614–5.
Priorities for TMDLs and TMDL Schedules
Priorities for developing TMDLs for the impaired waters would be strictly established, giving highest priority to waters with impairments to drinking water sources, threatened or endangered species, or sensitive aquatic species. 64 Fed. Reg. at 46,049 (Aug. 23, 1999); 40 C.F.R. § 130.28. The EPA is requiring states to submit a schedule based upon priority ranking for the section 303(d) list, but is not requiring such a ranking and schedule for each TMDL. Within this schedule, the states must identify the year in which each TMDL will be implemented. Id. at 43,612–3. The EPA claims that this prioritized schedule "ensures that TMDLs are developed at a reasonable, even pace and that the statutory factors (severity of pollution and uses to be made of the waters) are considered in deciding when particular TMDLs will be developed." Id. at 43,612. It appears as though the EPA will generally recognize the states intimate and expansive knowledge of its individual waterbody situation as a whole with regard to the prioritization; however, the proposal appears to give the EPA the final word on all accounts.
Challenges have been raised with regard to the EPA’s authority to "approve" the state’s rankings and schedule. Critics argue that, barring significant problems with the state’s proposed rank and schedule, the states should have the authority to determine such ranks and schedules of their own accord and not be subject to EPA approval. The EPA’s proposed revisions require that those waterbodies ranked at "high priority" must have TMDL’s established prior to those waterbodies with lower priority rankings. This approach ignores the fact that oftentimes-high priority waterbodies may require more extensive information gathering and a more complex TMDL, which typically entails a lengthier process of creation and implementation. In furtherance of the goal of expeditiously attaining and sustaining maintenance of water quality standards, states should have the flexibility to determine, based upon site specific information, the scheduling of TMDLs regardless of the waterbodies’ rankings.
In addition, the EPA has promulgated an elimination of "water quality-limited segments." 40 C.F.R. §130.27 (1998). This revision is particularly troublesome because in many situations only certain segments of a waterbody are impaired. For instance, upstream segments may not be impaired or in the converse, certain downstream segments may have recovered from impairment and therefore should not be impacted by the TMDL restrictions. However, if the EPA’s revision were implemented, the entire waterbody would be unnecessarily restricted when certain segments require regulation to ensure compliance with water quality standards.
Another issue of concern is when a waterbody is located in more than one jurisdiction. States may be affected adversely and subject to stringent restrictions when it is not necessary to achieve the goal of attaining and maintaining water quality standards. This places an undue burden on states. For these reasons, watershed specific and segment specific regulations are more appropriate.
EPA is also requiring "expeditious" establishment and implementation of TMDLs, meaning that, with rare exceptions, TMDLs should be scheduled within ten years from July 11, 2000, or within ten years from the initial listing, whichever is later. Extensions can be made for an additional five years if the states can explain to the EPA’s satisfaction that the ten-year time frame is impracticable. Id. at 43,613. However, for all practical purposes, states will likely be required to adhere to the ten-year limit. The EPA does not elaborate as to what information it will find persuasive regarding impracticability.
Antidegradation Policy
The EPA proposes that any decline in water quality for Outstanding National Resource Waters (ONWRs) represents an impaired waterbody and therefore requires listing. In addition, a waterbody that is not able to maintain a designated use, or more protective existing use, represents an impaired waterbody, which necessitates listing. "The intent is to ensure that the more protective existing use is maintained and protected." The EPA is not imposing this requirement on "threatened" waterbodies. Id. at 43,607.
TMDL Requirements
Now, EPA requires that eleven elements be included in a proposed TMDL. These elements are as follows: (1) waterbody name and geographic location; (2) identification and quantification of the pollutant load and deviation from loads; (3) source categories; (4) wasteload allocation; (5) load allocation; (6) margin of safety; (7) consideration of seasonal variations; (8) allowance for increases in pollutant loads; (9) consideration of seasonal variations; (10) allowance for reasonably foreseeable increases in polluted lodes; and (11) an implementation plan. Id. at 43,662.
EPA has thirty days to review a submitted TMDL and issue an order of approval or disapproval. Id. at 43,669. EPA expressly declined proposal for EPA’s automatic approval of a TMDL if no action by the EPA within the thirty day time period. Id. at 43,631. Therefore, it is possible that EPA’s review and approval or disapproval of a TMDL could extend beyond thirty days. Moreover, if EPA disapproves a TMDL, EPA must, within the same thirty-day review period, establish a new TMDL or determination of need for revision.
Furthermore, the EPA also expressly declined to establish an appeal process for EPA disapproved TMDLs. Section 303(d) requires the EPA to establish a TMDL on its own accord if it disapproves of a states’ submission within thirty days. Therefore, the EPA claims that it does not have time to consult with or entertain an appeal from a state. Id. at 43,632. However, typically the states are in the best position to understand and evaluate the relevant water quality data, and it appears as though in many cases, the EPA will be establishing a TMDL based upon a cold reading of the data, without the prior benefit of potentially crucial interpretive communications with the states to be affected.
Implementation Plans
The implementation of the TMDL is a critical step to assure that water quality standards are attained. The EPA and the courts had previously determined that an implementation plan could be developed after the TMDL. Now, TMDLs must include a TMDL implementation plan. The implementation plans must address:
a schedule for implementation actions, the date by which the implementation plan will attain water quality standards, a modeling and/or monitoring plan and a description of the interim, measurable milestones and criteria to be used to determine progress toward attaining water quality standards and when the TMDL needs to be revised.
Id. at 43,625.
TMDLs and Endangered and Threatened Species
In order to further the "goals of restoring and maintaining the biological integrity of the nation’s waters and protection of fish, shellfish and wildlife," the EPA is encouraging the states to consider the effects of the lists and proposed TMDLs on endangered and threatened species. However, the EPA is not requiring such consideration by the states.
Conclusion
Although the EPA has made some revisions in furtherance of its goal of creating "an effective and flexible framework to move the country toward the goal of clean water for all Americans," the current proposal leaves much room for improvement. Id. at 43,586. The burden appears to be placed upon the states to perform all of the work and undertake all of the costs necessary to protect our nation’s waterbodies within relatively tight time constraints, but it leaves the final approval to the EPA, which does not have such restrictions placed upon it. Of great concern is the fact that the EPA expressly denied a consultation and/or appeal process to the states prior to the EPA determining what is practical, feasible, and necessary to protect the waters in the states’ jurisdiction. Although the EPA plays an integral role in the protection of this nation’s waters, the states and their constituents are the ones most affected by such decisions.
Water quality standards should be consistent throughout the nation, wherever possible and prudent. In most instances, national consistency should also be required regarding data gathering and evaluation. Therefore, it is crucial for the various entities to work together to determine the appropriate course of action for each waterbody. The EPA’s current proposal, although outwardly espousing cooperation between states, does not provide the regulatory framework to ensure it.
Endnotes
1. This article does not attempt to address every proposed change, nor does it attempt to address every potential issue. The reader should not rely upon this article, in part or in whole, to review and evaluate the complete and final proposed revisions, or their potential impacts. The reader should use this article only as a general guide to a small portion of the proposed revisions, and should personally review the complete document before making decisions or taking action regarding the EPA’s proposal.
2. See, e.g., Alaska: Alaska Center for Env’t v. Browner, 20 F.3d 981 (9th Cir. 1994); Arizona: Defenders of Wildlife v. Browner, 888 F. Supp. 1005 (D. Ariz. 1995); Idaho: Idaho Conservation League v. Thomas, 91 F.3d 1345 (9th Cir. 1996); New York: NRDC v. Fox, No. 94CIV8424, 1996 WL 497024 (S.D.N.Y. Aug. 30, 1996): Pennsylvania: Raymond Profitt Found. v. EPA, 930 F. Supp. 1088 (E.D. Pa. 1996); Georgia: Sierra Club v. Hankinson, 939 F. Supp. 872 (N.D. Ga. 1996).
3. See, e.g., Colorado: Colorado Envtl. Coalition v. EPA, No. 97-S-1842, Order Deeming Case Closed (D. Colo. Sept. 21, 1999); California: Heal the Bay, Inc. v. Browner, No. C 98–4825, Amended Consent Decree (N.D. Cal. Mar. 22, 1999).
Ronda L. Sandquist is a partner with McKenna & Cuneo, L.L.P. in Denver, Colorado. Carrie Ciliberto is an associate with Holly I. Holder, P.C., in Denver, Colorado.
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