Redistributed as a Service of the National Library for the Environment*
Changes Recently Announced by
EPA to Its
Specialist in Resources and Environmental
May 31, 2000
In August 1999, the Environmental Protection Agency (EPA) proposed regulations to clarify and strengthen the Total Maximum Daily Load (TMDL) program under section 303(d) of the Clean Water Act (CWA). Section 303(d) requires states to identify surface waters for which wastewater discharge limits are not stringent enough to achieve state-established water quality standards, even after application of required pollution controls. For each of these waterbodies, states are required to set a total maximum daily load of pollutants at a level that ensures that applicable water quality standards can be attained and maintained and to allocate further required pollutant reductions among sources. EPA is required to take these actions if a state fails to do so. Congress established the TMDL program in 1972 (P.L. 92-500), but it had languished for many years until lawsuits were brought in more than 30 states challenging the lack of implementation.1
The TMDL process consists broadly of two elements: (1) identification or listing of waterbodies where water quality standards are not being attained and maintained, followed by (2) establishment of TMDLs. EPA's proposed regulations address both of these elements. The key changes include: a new requirement for a more comprehensive list of impaired and threatened waterbodies; a new requirement that states, territories and authorized Indian tribes establish and submit schedules for establishing TMDLs; a new requirement that the listing methodologies be more specific, subject to public review, and submitted to EPA; clarification that TMDLs include 10 specific elements; a new requirement for an implementation plan as a necessary element of a TMDL; and new public participation requirements.
EPA has spent much of the time since August 1999 responding to criticism of the proposal: explaining, clarifying, and defending the agency's intentions and attempting to explain and clarify many individual aspects of the proposal. 2 The proposal has few strong supporters. States, territories, and Indian Tribes authorized to administer CWA programs would be directly affected by the proposal and have criticized the burdens that new requirements would place on them. Industry and others potentially affected object to its impacts. Environmentalists, who support the need for a stronger and more comprehensive TMDL program, object to the lengthy time periods in the proposal before water quality improvements are likely to occur. A number of groups and individuals have urged EPA to withdraw the proposal and start over, yet EPA has consistently indicated that it plans to issue final rules in late June or early July. Congressional interest in the proposal has been high: as of the end of May 2000, eight congressional hearings have been held, and six legislative proposals to modify or delay the proposal have been introduced. 3
Within the last several weeks, as it prepares for issuing final regulations this summer, EPA has attempted to respond to many criticisms of the proposal and signal flexibility on some points that have been most contentious. In particular, EPA has announced certain changes from the 1999 proposal that the agency expects to include in the final rule. First, in an April 5 letter to key congressional leaders, EPA identified certain specific areas to be changed. Second, in a May I Joint Statement, EPA and the U.S. Department of Agriculture (USDA) announced additional changes intended to address specific criticisms, especially concerning potential impacts of the TMDL proposal on forestry. (For the text of both documents, see http://www.epa.gov/owow/tmdl/proprule.html ]) The May I Joint Announcement grew out of efforts by EPA and USDA to resolve concerns expressed by USDA about possible impacts of the proposal on agriculture and forestry. Through this somewhat unusual procedure of releasing documents that signal changes to a not-yet-final regulation, EPA is attempting to defuse much of the recent criticism of its proposal and perhaps to deter congressional action.
This report discusses the parts of the rule that EPA has said it expects to modify. However, while they address some areas that have been most heavily criticized, most of the revisions are not highly significant to EPA's overall proposal. Some of the announced changes are themselves being criticized. Further, so far EPA has not addressed other major parts of the proposed rule that also have been controversial, such as requiring TMDL implementation plans and the form and timing of such plans. Major questions also remain unanswered about what criteria EPA will use to approve state lists of impaired waters, TMDLs developed by states, or measures that states expect will demonstrate progress towards attaining water quality standards. Thus, since "the devil is in the details," affected interest groups and individuals are sure to closely examine EPA's final revisions, when they are published.
Both the April 5 letter to congressional leaders and the May 1 EPA-USDA Joint Announcement contain a number of general statements of overall intent and philosophy regarding the TMDL program. They include statements of EPA's expectation that the final rule will:
EPA says the final rule will provide a "common-sense, cost-effective framework for making decisions on how to restore the polluted waters around the country." 4 Both documents also state the Administration's recognition that adequate resources are necessary for effective TMDL programs and note that the President's FY2001 budget seeks increased funding for EPA and USDA assistance programs. These general statements in the documents appear to restate and perhaps reemphasize EPA's intent in the August 1999 proposal, to the extent points were unclear, but do not alter the agency's basic approach. However, the recent documents do identify nine areas of change that EPA expects to include in the final rule. Three of them relate to identification or listing of impaired waters; three relate to TMDL development; one concerns a public petition process; one concerns offsets for new or expanded discharges; and one concerns forestry.
Allow 4 years for new listings of impaired waters, not 2 years. Existing regulations require states to submit 303(d) lists on April I of even-numbered years. Under current regulations, the most recent state submissions occurred in April 1998, and the next submissions would have been due April 1, 2000. EPA proposed in August 1999 to retain the 2-year listing interval, but sought comments on other options, such as 4-year or 5-year intervals. Even when it sought views on alternatives, EPA said that less frequent listing means there would be less frequent updates on states' progress towards attaining water quality standards.
The apparent decision to require a 4-year listing, announced in the April 5 letter to congressional leaders, responds to criticisms from states. It was also signaled, to some degree, by a concurrent announcement by EPA giving states until April 1,2002, rather than April 1,2000, to submit the next lists of impaired waters. The change will certainly be helpful to states, which have said that a longer time would be more consistent with other state planning activities, but is not an unexpected modification, since EPA had requested public comment on requiring 4-year or 5-year listing intervals.
Drop a requirement for states to list threatened waters. The law requires identification of waterbodies for which effluent limitations (technology-based pollution controls for point sources) are not stringent enough to attain water quality standards. Current EPA regulations require identification of waterbodies in need of TMDLs, wasteload allocation reductions (from point sources), and load allocation reductions (from nonpoint sources) in order to attain standards. In August 1999, EPA proposed to require that states list waterbodies impaired or threatened by point sources only, nonpoint sources only, or a combination of point and nonpoint sources. States would be required to list waterbodies whether the cause of impairment or threat is individual pollutants, multiple pollutants, or pollution from any source.Under the proposed rule, "threatened" means a waterbody that currently meets water quality standards, but adverse declining trends indicate that standards will not be met by the next listing cycle.
This was a key part of EPA's proposal, because the Agency believes that it is more desirable, both environmentally and economically, to protect waterbodies from possible impairment than to wait until they are impaired and then need to be restored.5 States argued that the difficulty and resource burden of identifying impaired waters under the current program are already significant and that an additional requirement to identify threatened but not-yet-impaired waters would be more so. In the April 5 letter to congressional leaders, EPA stated that the final rule will drop the requirement that 3 03 (d) lists include threatened waters. From a policy perspective, this is probably the most significant modification of the proposed TMDL rule signaled or announced so far, as it was EPA's intent to provide for a comprehensive listing process that would enable states to initiate actions to prevent a waterbody from becoming impaired. Dropping a requirement to list threatened waters will arguably produce less than a fully comprehensive approach.
Provide flexibility to modify lists within the 4-year listing cycle. Existing regulatory requirements do not address when states can remove listed waters, but EPA guidance does, saying waterbodies can be removed if they are expected to attain water quality standards in the next two years, or if the original basis for listing was wrong. In August 1999 EPA proposed that waters remain listed until water quality standards are attained, arguing that this approach provides a way to measure progress. A waterbody could be removed only upon attainment or based on information that the original listing was wrong.
States have sought flexibility that would allow them to modify an impaired waters list anytime sufficient new information is available, along with appropriate administrative procedures for prompt EPA decisions on modified lists. They argued that they should not have to meet more burdensome tests for delisting than for initial listing of impaired waters. Along with giving states four years to develop lists of impaired waters, rather than two years, EPA has recently indicated that it will give states some flexibility to add or remove listed waters under certain circumstances. Details of what the final rule will provide are unclear for now, 6 and whether it will provide states with the degree of flexibility they seek is also unclear.
Give states 15 years to develop TMDLs. Current law and regulations contain no requirement for submitting a schedule for developing TMDLs for all listed waterbodies, but 1997 EPA policy guidance directed states to establish TMDLs 8-13 years after listing. In the August 1999 proposal, EPA proposed to require that states submit a comprehensive schedule for establishing TMDLs for all Part I listed waters 7 "at a reasonable pace" but not later than 15 years. In the April 5 letter to congressional leaders, EPA stated that the final rule will allow states to develop TMDLs over a period of up to 15 years. This is not a significant change. Although 15 years is a longer period than currently specified in EPA guidance, it is the same time period contained in the August 1999 proposal.
Allow states to tailor implementation plans according to problems affecting impaired waters. Current law and regulations require that TMDLs be established at levels necessary to meet water quality standards with seasonal variation and a margin of safety. EPA proposed to require that 10 minimum elements be included in a TMDL, including an implementation plan, which would be a new specific requirement. States said the requirements were overly prescriptive and had complained that the required minimum elements would be rigidly imposed, regardless of the specific nature of a waterbody's impairments. They urged EPA to allow states the flexibility to consider various environmental, economic, social, and legal factors of a waterbody and its impairment.
In response, in the April 5 letter to congressional leaders, EPA indicated that the final rule will allow states to tailor implementation plan requirements and add flexibility to account for different types of sources causing the water quality problem. In particular, this apparently means that states will be allowed to tailor the elements of an implementation plan according to whether it is impaired by point sources only, by nonpoint sources only, or by a combination of point sources and nonpoint sources. The clarification will permit states to not include elements unneeded or inappropriate to a particular waterbody or impairment. This modification appears to be a commonsense change that certainly will address states' concerns, but is not a significant change. So far, EPA has not signaled that it will substantially modify the proposed requirement for a set of minimum elements and, most particularly, does not address other specific criticisms concerning the requirement for and form of an implementation plan.
Drop a requirement to give priority to drinking water or endangered species issues. Current law and regulations require that states assign a priority ranking to each listed waterbody, based on the severity of pollution and uses of the waterbody, including identification of pollutants and identification of waterbodies targeted for TMDL development before the next listing cycle. EPA's August 1999 proposal affirmed the requirement for priority ranking. It required states to assign "high," "medium," or "low" priority for all Part I listed waters. EPA proposed to require that high priority be assigned to waters used for public drinking water supply where the impairment causes a violation of a drinking water standard or waters in which a threatened or endangered species is present. Some states and others criticized this portion of the proposal, saying that it would mandate that states clean up impaired waters to levels set in drinking water standards. EPA said that this was not the intention. EPA should not mandate priorities for states, critics also said.
In the April 5 letter to congressional leaders, EPA said it will not require states to give top priority to addressing polluted waters that are a source of drinking water or that support endangered species. This proposed modification remains somewhat unclear, however. EPA's statement does not indicate whether the Agency intends to drop all priority ranking or just these two specifics of identifying high priority waters. Further, it does not address the concern of some critics that the rule will effectively require states to clean up impaired waters to meet drinking water standard levels.
Drop the proposal for a public petition process for EPA review of lists of impaired waters or TMDL program implementation. EPA proposed in August 1999 to codify a specific petition process, available under section 555(b) of the Administrative Procedure Act, for citizens to petition EPA directly to perform section 303(d) duties imposed on states. Under the APA, this petition process has been available but has not been used by citizens who, instead, have brought legal actions in court. EPA believed that having a petition process would streamline one aspect of this current program, since without such a process, citizen groups have pursued lawsuits that are both time-consuming and costly for all parties. The August proposal would allow citizens to present grievances about implementation directly to EPA, rather than the courts. EPA also said the change was intended to increase public awareness of the APA procedure and recognize the importance of the public's role in helping EPA and states implement the TMDL program.
States, however, said that EPA should not encourage or establish a petition process that implicitly encourages citizens to bypass state processes and go directly to EPA. In the April 5 letter to congressional leaders, EPA said it will drop the public petition process. This does not appear to be a significant modification, since the process already exists under the APA, and EPA's 1999 proposal signaled to citizen groups that might have been unaware of it that they could use the APA process instead of a court case, if they choose.
Drop the offset requirement from revised NPDES rules. EPA proposed in August 1999 to require all large new discharges and existing discharges undergoing significant expansion that are proposing to discharge pollutant(s) of concern to an impaired waterbody to offset the new or increased discharge by reducing loads of the same pollutant from existing sources discharging into the same waterbody. Neither the CWA nor its regulations currently provide for such pollutant offsets. The new offset requirement would apply to discharges to impaired waters for which there is not yet a TMDL either established or approved by EPA. Once a TMDL is established or approved by EPA, measures to implement the TMDL would be incorporated in NPDES permits and would supersede offset requirements. The required offset would generally be 1.5:1, but could be modified so long as the general purpose is observed: to ensure reasonable further progress towards attaining water quality standards (i.e., better than 1:1). According to EPA, the proposed requirement for offsets was necessary to ensure that, in the interim before a TMDL is established, steps would be taken to ensure some progress towards water quality improvements and, at a minimum, ensure that additional impairments would not be permitted.
States objected to the likely complexity of implementing EPA's proposal. Municipalities, in particular, objected, saying it would have negative impacts on growth and economic development in cities. The requirement would create incentives for industrial dischargers to move to smaller jurisdictions less likely to have impaired waters, in order to avoid compliance with an offset requirement, they said. Further, it would force municipal public works agencies, which cannot relocate, to obtain offsets in order to provide necessary utility services to existing and new populations. EPA indicated in the April 5 letter to congressional leaders that the offset proposal will not be included in final TMDL rules. Officials have indicated that, in dropping the offset proposal from the TMDL rule because of controversies that it raised, the Agency continues to endorse the concept as a means of demonstrating progress towards water quality standards. Thus, a discharge offset proposal might be raised at some other appropriate opportunity.
Revise the proposed approach to forestry sources. Much of the criticism of the TMDL proposal has focused on possible impacts on forestry. The issue is whether forestry activities might be required to obtain Clean Water Act discharge permits if they are contributing to water quality impairments. CWA section 402 prohibits anyone from discharging "pollutants" through a "point source" into a "water of the United States" unless they have a permit authorized under section 402's National Pollutant Discharge Elimination System (NPDES) program. The permit contains limits on what can be discharged, monitoring and reporting requirements, and other provisions to ensure that the discharge does not harm water quality or human health. Currently, the majority of silviculture/forestry activities are excluded by regulation from NPDES requirements, since they do not discharge from pipes or outlets, and thus are not subject to NPDES requirements. Nonregulated forestry activities include runoff from nursery operations, site preparation, reforestation, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, and forestry road construction and maintenance. 8
In the August 1999 proposal, EPA proposed to remove the categorical exemption from silviculture activities which are now exempt from NPDES requirements. Under this proposal, on a case-by-case basis, sources could be designated for NPDES regulation by a state or EPA based on a determination that the source contributes to a violation of water quality standards or is a significant contributor of pollutants to waters of the United States. 9 Designation would be discretionary, not automatic. Unless a state were to act on its own to designate a silviculture activity as a point source, such sources would be subject to NPDES requirements only if all four of the following factors or criteria are met:
According to the proposal, EPA expects to use this authority only in limited circumstances and only where other means of working with a state have failed. EPA estimates that this will happen "extremely rarely" and "as a last resort," because the Agency assumes that states will make every effort to develop effective TMDLs and employ their existing programs and legal authority to ensure compliance.
This part of the proposal generated vigorous criticism (and, according to EPA, more than one-half of the 34,000 public comments submitted on the proposal), and much of EPA's response since August 1999 has been focused on explaining and clarifying something that is, in fact, a small part of the full TMDL proposal. The forestry industry's criticisms have focused on a number of points:
EPA justifies the proposed change in how silviculture activities are treated under the CWA on the basis that state water quality monitoring data and other studies indicate that pollutants from forestry operations are causing water quality problems that prevent waters from meeting applicable standards. In 1998, according to EPA, 32 states identify forestry as a source of TMDL-specific water quality problems. 10 The forestry industry, however, disputes such findings and points to other data which indicate that forestry's contribution to water quality problems has actually decreased. There is no simple resolution of this issue, because water quality officials and other interested parties acknowledge that water quality monitoring and data on water quality conditions in this country are limited, since only a small percentage of waters are assessed, and thus any such data should be used cautiously. Moreover, the EPA and forestry positions are not mutually exclusive: it is possible, as the industry says, that forestry's contributions have diminished but also, as EPA says, that pollution from forestry activities is still a water quality problem nationwide.
For forestry sources which have little direct experience with EPA (since most of their activities are nonpoint sources), landowners or operators have a certain level of mistrust over regulatory actions that could affect them, and without clarification, tend to assume the worst. Much of the concern about the TMDL proposals stems from EPA's failure so far to detail with precision many parts of the proposal, such as when it might exercise its authority to establish a TMDL - how the Agency will determine that a state-developed TMDL does not comply with federal regulations and is not approvable, thus requiring EPA to do so and potentially leading to EPA actions affecting forestry and other sources. Without greater assurance of how EPA will implement this portion of the program, suspicion is likely to remain high.
Both the April 5 letter to congressional leaders and the May 1st EPA-USDA Joint Announcement address these issues. In these documents, EPA explains how the final rule will differ from the proposal. First, EPA says that for five years after the final rule becomes effective, no forestry activities will be required to obtain an NPDES permit. Second, even after that five-year period, no permit would be required in any state where EPA has determined that the state is implementing effective forestry management programs through voluntary efforts and Best Management Practices (BMPs) for the protection of water quality. Only if a state does not have an approved forestry BMP program after five years will the state or EPA have the discretion to issue NPDES permits in limited cases where the operation results in a discharge that causes water pollution problems. EPA describes this modification as giving an incentive to states to adopt forestry BMP programs, since, if a state does so, no permits would be required, even in the case of so-called "bad actors" who contribute to water quality impairments in such a state. Third, in the May I announcement, the agencies state that "EPA and USDA agree that voluntary and incentive-based approaches are the best way to address nonpoint source pollution." Fourth, the EPA- USDA Joint Announcement says that since existing federal law requires forest operations on National Forest System lands to be conducted consistent with water quality requirements, operations conducted on these lands will be entirely exempt from NPDES authority.
Critics of the forestry portion of the proposal remain unsatisfied. The forestry industry objects to the concept of having EPA approve or disapprove of state forestry management programs, which EPA has not previously done, and also objects to giving a permanent waiver to National Forest System lands and thus treating them differently from private forestry lands. Industry objects that, after the five-year waiver, EPA will do exactly as it proposed in August 1999, raising the same questions about interpretation and implementation noted above. A new concern for industry is what criteria EPA will use to evaluate the adequacy of a state's forestry program. Environmentalists, on the other hand, object to any delay in addressing water quality problems associated with forestry, which they contend contributes to water quality problems in many parts of the country and should, therefore, not be exempt from a comprehensive TMDL program.
Further, a group that represents major municipal wastewater treatment agencies raised other concerns about the EPA-USDA Joint Announcement. Their long-standing concern is that under the TMDL program (current or revised), all sources that are contributing to water quality impairments, including nonpoint sources, should be required to contribute to solutions. They fear that if forestry, agriculture or other nonpoint sources are excluded, inequitable burdens will fall on point sources through more stringent NPDES regulation. Language in the May I Joint Announcement appears to favor voluntary measures to address nonpoint sources, they say, contrary to EPA's historic position that has supported all available regulatory and nonregulatory programs to achieve water quality standards in nonpoint source- impaired waters. EPA responded to the group's concern: 11
1 For background information, see CRS Report 97-831, Clean Water Act and Total Maximum Daily Loads (TMDLs) of Pollutants. Also see CRS Report RL30422, EPA's Total Maximum Daily Load (TMDL) Program: Highlights of Proposed Changes and Impacts on Agriculture.
2 The proposal consists of two related proposals that were published concurrently. U.S. Environmental Protection Agency. "Proposed Revisions to the Water Quality Planning and Management Regulation." 64 Federal Register No 162,Aug.23, 1999:pp. 46011-46055. "Revisions to the National Pollutant Discharge Elimination System program and Federal Antidegradation Policy in Support of Revisions to the Water Quality Planning and Management Regulation." 64 Federal Register No. 162, Aug. 23, 1999: pp. 46057-46089.
3 Since October 1999, hearings have been held by the full committee or subcommittees of the House Agriculture Committee, House Transportation and Infrastructure Committee, Senate Agriculture, Nutrition and Forestry Committee, and Senate Environment and Public Works Committee. Legislative proposals include H.R. 3609, H.R. 3625, H.R. 4502, S. 2041, S. 2139, and S. 2417.
4 U.S. Environmental Protection Agency. "Key Elements of Expected Final Regulation for Restoring America's Polluted Waters." April 5, 2000. Text is available at: [ http://www.epa.gov/owow/tmdl/proprule.html ]
5 64 Federal Register 46022
6 This area of change from the proposed rule has been indicated during meetings of EPA staff with congressional leaders and others. It is not explicitly addressed in either the April 5 EP/ letter or the May 1 EPA-USDA joint statement.
7 The August 1999 proposal would require states to identify waterbodies in four categories. Under the proposal, Part I waterbodies are those impaired or threatened by one or more pollutants or unknown cause. A TMDL would be required only for waterbodies on Part I of a state's list. So far, EPA has not announced any change; to this four-part categorization (aside from dropping the proposal to require listing of threatened waters, as discussed above).
8 Certain silviculture activities are currently designated by regulation as point sources subject to NPDES requirements: discharges from rock crushing, gravel washing, log sorting, and log storage facilities. EPA proposed no changes to these requirements.
9 EPA also proposed in August 1999 to modify other portions of the NPDES regulations t( allow the Agency to designate animal feeding operations (AFOs) and aquatic anima productions facilities as point sources on a case-by-case basis. So far, EPA has not signaled any changes to this portion of the proposal. Separate from proposals to revise the TMDL program, EPA and USDA also are implementing a Unified Animal Feeding Operation Strategy to achieve improved animal waste management nationwide. One element of this Strategy is revision of existing CWA regulations that govern large AFOs. Thus, the Strategy and the TMDL proposal for AFOs are related. EPA has not proposed to include agricultural activities traditionally recognized as nonpoint sources (e.g., crop cultivation or grazing) in the NPDES program, as it has for forestry.
10 Letter from J. Charles Fox, EPA Assistant Administrator for Water, to W. Henson Moore, American Forest & Paper Association, Jan. 19, 2000, citing data from states' 1998 TMDL assessments.
11 J. Charles Fox, Assistant Administrator for Water, EPA. Letter to Ken Kirk, Executive Director, Association of Metropolitan Sewerage Agencies. May 17, 2000.
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