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 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.

The TMDL process consists of two elements: ( I ) identifying waterbodies where standards are not being attained and (2) establishing TMDLs. EPA's TMDL proposal addresses both elements. These changes directly affect states, territories, and Indian Tribes authorized to administer CWA programs. It is up to these entities to identify waters that do not meet the Act's goal of attaining and maintaining water quality standards and adopt policies and measures applicable to individual sources, in order to attain water quality standards. EPA believes that impacts on agriculture and forestry, if any, will occur through state implementation, not directly from these rules. As states implement the TMDL program, where agriculture sources are identified as responsible for water quality impairments, agriculture may be required to adopt control actions (for those in agriculture which are point sources) and/or management measures (for nonpoint sources) to help clean up waterways. Determinations of impairments and required actions will be site-specific and variable. EPA concurrently proposed related changes to permit and water quality standards program regulations to complement the revised TMDL rules. Two parts of the latter proposal could directly impact some agriculture and forestry sources. Interest groups representing agriculture and forestry criticize the possibility that many of their activities will become subject to CWA regulation and enforcement, as a result of implementation of the proposal. EPA, however, expects to use the authority in the proposed rule to affect agriculture and forestry only in limited circumstances and only where other means of working with a state to develop an effective TMDL program have failed.

This report discusses the major changes in EPA's August 1999 proposals, compared with existing regulatory program requirements. 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.

Introduction

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 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.1

The TMDL process consists of two elements: (1) identifying waterbodies where standards are not being attained and (2) establishing TMDLs. EPA's TMDL proposal addresses both elements. These changes directly affect states, territories, and Indian Tribes authorized to administer CWA programs. EPA believes that impacts on agriculture and forestry, if any, will occur through state implementation, not directly from these rules. EPA concurrently proposed related changes to permit and water quality standards program regulations to complement the revised TMDL rules. Two parts of the latter proposal could directly impact some agriculture and forestry sources.

This report discusses the major changes in EPA's August 1999 proposals, compared with existing regulatory program requirements. The discussion of regulatory modifications is necessarily based on EPA's August 1999 proposals, but it should be recognized that final regulations, which EPA hopes to publish later in 2000, could be changed based on comments received during the public comment period (which closed January 20, 2000).

TMDL Proposals ²

The TMDL process consists broadly of two elements: ( I ) identification or listing of waterbodies where water quality standards are not being attained and maintained, followed by (2) establishment of TMDLs. EPA's proposals 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; anew 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.

The proposed changes to the TMDL program will directly impact states, territories, and Indian Tribes which are authorized to administer the Clean Water Act. It is up to these entities to identify waters that do not meet the Act's goal of attaining and maintaining water quality standards and adopt policies and measures applicable to individual sources, in order to attain water quality standards. As states implement the TMDL program, where agriculture sources are identified as responsible for water quality impairments, agriculture may be required to adopt control actions (for those in agriculture which are point sources) and/or management measures (for nonpoint sources) to help clean up waterways. Determinations of impairments and required actions will be site-specific and variable.3

Definition of TMDL. Under current regulations, a TMDL is defined as the sum of wasteload allocations (for point sources) and load allocations (for nonpoint sources) which do not violate the loading capacity of a waterbody, i.e., do not violate water quality standards.

EPA proposes to define a TMDL as a written analysis of an impaired waterbody established to ensure that water quality standards will be attained and maintained throughout the waterbody in the event of reasonably foreseeable increases in pollutant loads. The definition also states the 10 minimum elements of a TMDL necessary for EPA approval (see below). Added definitions in the proposal include a definition of "impaired waterbody:" "a waterbody that does not attain water quality standards."

EPA's proposal retains these general requirements but identifies sources of data and information specifically (e.g., CWA sec. 305(b) water quality assessment reports, CWA sec. 319 nonpoint source assessments, Safe Drinking Water Act source water assessments). EPA also proposes to require that states include a description of the methodology or factors used to assign priority rankings for waterbodies in the list and to submit the listing methodology for EPA review 8 months prior to submission of the 303(d) list. The proposal deletes the existing requirement to identify the rationale for not using particular data.

Listing process—Scope of impaired waters list. The law requires identification of waterbodies for which effluent limitations (technology-based pollution controls or more stringent 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. Existing rules also require identification of pollutants causing or expected to cause water quality standards violations. The statute uses both the broad term "pollution" and narrower term "pollutant" in section 303(d).6 EPA guidance has been unclear, hence state implementation has been inconsistent, on whether lists should cover impairments due to pollution or pollutants.

EPA's proposal would clarify that states must list waterbodies impaired or threatened by point sources only, nonpoint sources only, or a combination of point and nonpoint sources. States must 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.

Listing process—Components of a list. Existing regulations require that the 303(d) list consist of water quality-limited segments still requiring TMDLs, but the rules recognize that certain impaired or threatened waterbodies do not require TMDLs and therefore those waterbodies need not be listed (e.g., those already attaining or expected to attain water quality standards with application of required pollution controls). No specific format for the list is currently required.

EPA proposes to require states to list all impaired or threatened waterbodies, whether or not required pollution controls will attain water quality standards. The list would be required to have a specific format, identifying waterbodies in four categories. A TMDL would be required only for waterbodies on Part I of a state's list.

Existing regulatory requirements do not address when states can remove listed waters, but 1997 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. EPA now proposes that waters remain listed until water quality standards are attained. A waterbody could be removed only upon attainment or based on information that the original listing was wrong.

Listing process—Priorities and TMDL schedule. 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 in the next two years (i.e., before the next listing cycle). The 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.

EPA's proposal affirms the requirement for priority ranking. It requires states to assign "high," "medium," or "low" priority for all Part I listed waters. EPA suggests that high priority be assigned to waters used for public drinking water supply where there is violation of a drinking water standard or waters in which a threatened or endangered species is present. The Agency identifies factors states may consider to define medium and low priority (such as the value of particular waterbodies or the recreational, economic and aesthetic importance of particular waterbodies) but does not mandate specific priorities. The proposal eliminates the existing 2-year targeting requirement in lieu of a requirement that states submit a comprehensive schedule for establishing TMDLs for all Part I listed waters "at a reasonable pace" but not later than 15 years. EPA recommends but does not mandate that states establish TMDLs for high-priority waters within 5 years.

Listing process—Submission of list to EPA. Current law and regulations require submission of lists for EPA review and approval; if EPA disapproves the list, EPA is required to prepare the list.

EPA proposes no change to these basic requirements but proposes to add regulatory language that EPA may establish the 303(d) list if asked to do so by a state or if the Agency determines that a state will not do so consistent with the required schedule for submission.

Listing process—Listing cycle. Existing regulations require states to submit 303(d) lists on April I of even-numbered years. EPA proposes to require submission of a state's listing methodology for Agency review (EPA may comment on but does not formally approve or disapprove methodologies and proposes no changes here) on January 31 and 303(d) lists on October I of listing years. In the proposal, EPA retains the current 2-year listing interval, but seeks comments on other options, such as 4-year or 5-year intervals.

TMDL—Minimum elements of a TMDL. 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 proposes to require that 10 minimum elements be included in a TMDL.

TMDL—Implementation plan. Currently there is no requirement that states develop a TMDL implementation plan. EPA now proposes to require that states develop a plan consisting of eight minimum elements.

For point sources, a list of discharge permits and a schedule for revising the permits to be consistent with the TMDL is required. For nonpoint sources, a description of best management practices or other management measures is required.

A TMDL implementation plan, like other elements of a TMDL, would be subject to EPA approval and disapproval.

TMDL— EPA authority. The law and regulations require submission of TMDLs for EPA review and approval; if EPA disapproves a TMDL, EPA is required to establish the TMDL. EPA proposes to retain the existing basic review and approval process but proposes that EPA may establish a TMDL if asked to so by a state, if the Agency determines that the state will not do so consistent with its schedule, or if EPA determines it should do so for interstate or boundary waterbodies.

TMDL—Transition. EPA's proposal includes provisions to address the transition period between the existing and new regulatory program. For TMDLs under development now (by states or EPA) and for 12 months after issuance of final regulations, EPA proposes use of either the old TMDL rules or new rules, and if the TMDL is approvable according to the applicable rules, EPA will approve.

For TMDL development underway as a result of settlement agreements and consent decrees to resolve litigation, EPA requests public comments on two options: (1) to phase in some of the new requirements, especially for decrees with short timeframes, to accommodate added workloads, or (2) on case-by-case basis, EPA may ask courts to modify the current schedule.

General—Public participation. Currently there are no specific requirements for public participation, except that regulations do require that calculations to establish TMDLs shall be subject to public review, as defined by a state, and EPA must seek public comment when it disapproves and establishes a list or TMDL.

EPA proposes to require states to provide the public with at least 30 days to review and comment on all aspects of303(d) lists, schedule of TMDLs, and TMDLs, and to provide EPA with a written summary of public comments.

General—Endangered species considerations. Currently the TMDL program includes no specific requirements concerning endangered species concerns. However, EPA proposes to require that TMDLs include a description of how endangered or threatened species were considered.

EPA also encourages states to establish processes with Fish and Wildlife Service, National Marine Fisheries Service for early identification and resolution of endangered species concerns. Agencies will be given the opportunity to comment, along with the public, on lists and priority rankings. States will be required to consider resource agencies' comments.

General—Public petitions to EPA. There is no provision on this topic in existing program requirements. However, EPA proposes to codify a specific petition process, available under the Administrative Procedure Act sec. 555(b), for citizens to petition EPA directly to perform 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.

Water Quality Standards and NPDES Regulations

In a concurrent proposal in August 1999, EPA proposed related changes to existing National Pollutant Discharge Elimination System (NPDES) and water quality standards program regulations.7 In it, EPA proposed several key changes affecting discharges to impaired waters, which are intended to complement the revised TMDL rules. Two provisions of the proposal could directly impact some agriculture and silviculture sources, although no estimate of the numbers of affected sources is available or possible at this time. Two others are likely to have minimal effect on agriculture and silviculture sources.

Designation of additional sources of pollutants as subject to the NPDES program-animal production facilities. CWA section 402 prohibits anyone from discharging "pollutants" through a "point source" into a "water of the United States" unless they have an NPDES permit. 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. In essence, the permit translates general requirements of the Clean Water Act into specific provisions tailored to the operations of each person discharging pollutants. Permits are issued for 5-year terms and thereafter must be renewed.

Point sources are generally industrial and municipal facilities that discharge from discrete, identifiable outlets such as pipes or ditches. Most agriculture and silviculture activities are considered to be nonpoint sources, since they do not discharge from pipes or outlets, and thus are not subject to NPDES requirements. Under CWA section 510, states may impose more stringent requirements than those in federal law or regulations, including designating nonregulated sources for NPDES program requirements.

Since 1973, existing regulations have allowed permitting authorities (authorized states and/or EPA) to designate previously non-designated sources to be subject to NPDES program requirements, where necessary to attain water quality standards. Animal production facilities (terrestrial animal feeding operations or aquatic animal production facilities) may be designated for inclusion in the NPDES program, where it has been determined that the facility is a significant contributor of pollutants to U.S. waters. In the case of states that have been delegated the authority to issue NPDES permits,8 currently only the state permitting authority may make such a designation. EPA may do so in the states where it is responsible for NPDES permitting.

EPA proposes to modify regulations to allow the Agency to designate animal feeding operations and aquatic animal production facilities in authorized NPDES states as point sources on a case-by-case basis. Issuance of permits would still be the responsibility of the appropriate permitting authority (i.e., EPA would not issue permits to designated sources in NPDES-delegated states).

This proposal would apply to animal feeding operations (AFOs) currently not designated as concentrated animal feeding operations (CAFOs), since CAFOs already are subject to NPDES requirements.9 It also would apply to aquatic animal production facilities, e.g. hatcheries or fish farms, which confine aquatic stock in a manmade pond or tank system (but not aquaculture facilities which confine aquatic stock in waters of the United States).

EPA expects to use this authority only in limited circumstances and only where other means of working with a state have failed. EPA could do so where the Agency has disapproved a state's TMDL (i.e., if EPA finds that the TMDL implementation plan lacks reasonable assurance that facilities will achieve and maintain pollutant load allocations); EPA has then established a TMDL in the authorized state; finds that these operations are significant contributors of pollutants to the impaired waterbody; and finds that designation as a point source is necessary to provide reasonable assurance that pollutant load allocations in the TMDL will be achieved.

Designation of additional sources of pollutants as subject to the NPDES program-silviculture. 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 proposes no changes to these requirements.

Other silviculture activities are excluded by regulation from NPDES requirements because they are considered to be nonpoint sources: runoff from nursery operations, site preparation, reforestation, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, and forestry road construction and maintenance.

EPA proposes 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. Designation would be discretionary, not automatic.

Unless a state acts on its own to designate a silviculture activity as a point source, such sources would only be subject to NPDES requirements (1) upon designation by EPA and (2) if the source discharges to a waterbody for which EPA establishes a TMDL. EPA could make a designation in any state (NPDES-authorized state or not) but would do so only when EPA prepares the TMDL. 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. Again because under CWA section 510 states may impose more stringent requirements than those in federal law and regulations, NPDES-authorized states may designate silviculture point sources outside of the TMDL context.

Pollutant discharge offsets. EPA proposes 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 requirements would apply to new and expanding dischargers which are not defined as a "small entity" under the Regulatory Flexibility Act (4 USC 601(6)). Significant expansion means a 20% or more increase in discharges above current permit limits. 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).

Offsets could be obtained from point sources or nonpoint sources discharging into the same waterbody. If from a point source, that discharger's permit would contain any necessary monitoring and reporting requirements for purposes of accountability. If obtained from nonpoint sources, these requirements would be included in the new or expanding discharger's permit. EPA states that the basis for this proposal is not specifically contained in the CWA, but cites Clean Air Act section 173 (offset requirements for air pollution sources) as a statute with "similar statutory goals and similar circumstances," therefore a similar requirement in the CWA is reasonable, in EPA's view.

It is likely that this proposed change would affect few agriculture sources and,if so, would be limited to silviculture sources subject to NPDES permits, assuming that such permits allow for pollutant discharges and do not require zero discharge. Existing agriculture sources subject to the NPDES program (CAFOs) are prohibited from discharging wastewater into navigable waters, except those caused by the worst 24-hour storm that would occur in a 25-year period. Because of this prohibition in EPA regulations, it is unlikely that an existing or new CAFO could seek a permit allowing discharges. Thus, CAFOs are unlikely to be in the position to need to find offsets. However, point source dischargers might seek offsets for their operations from agricultural and other nonpoint sources.

EPA authority to reissue state-issued expired and administratively- continued permits. Under CWA section 402, EPA may review, and has 90 days to object to, state-issued NPDES permits that fail to meet guidelines and requirements of the Act. State law often provides that, if a source makes timely reapplication before the 5-year time when its permit expires, but the state is unable to act, the existing permit terms remain in effect until the state makes a final decision. Called administrative continuance, this protects permittees who have acted on a timely basis. As a matter of resources, states (and EPA) often are unable to reissue permits on a timely basis: an estimated 35% of the 350,000 NPDES permits nationwide are currently backlogged for reissuance. Currently there is no express authority in law or regulations for EPA to object to and veto a permit that is expired or administratively continued.

EPA believes that administrative continuance of expired permits may allow for inappropriate delay in implementing pollutant controls, including those in TMDLs for impaired waterbodies. EPA now proposes to treat expired permits as equivalent to a state submission of a permit that the state proposes to re-issue, thus allowing the Agency to comment on, object to, or recommend changes. Under the proposal, if the state fails to respond, EPA can veto the permit and issue a permit in lieu. EPA states that it would use this discretionary authority only in limited circumstances: (1) if the discharge is subject to a TMDL established or approved by EPA and the expired permit does not reflect the TMDL, or (2) if the permit authorizes discharge of pollutant(s) of concern to an impaired waterbody for which there is no TMDL and other means of working with the state have failed.

Like the discharge offset proposal, this revision likely would affect few agriculture sources. Again, CAFO permits essentially prohibit discharge of wastewater into navigable waters, so existing CAFO permits presumably already require pollutant controls. EPA thus might determine that an administratively- continued CAFO permit provides adequate controls to protect water quality. However, EPA might use this procedure to address practices not covered in a CAFO's existing permit, such as discharges that occur from wastewater or solid manure mixtures which are applied to soil (EPA's current CAFO regulations do not specifically address land application; if regulated at all, these types of discharge are subject to varied state and local laws). Under the limited circumstances that EPA foresees for using this authority, some silviculture sources with NPDES permits (see page 8) could be affected by this proposed revision, but the number of potentially affected sources is unknown.

Footnotes

1 For additional background, see CRS Report 97-831, "Clean Water Act and Total Maximum Daily Loads (TMDLs) of Pollutants."

2 U.S. Environmental Protection Agency. "Proposed Revisions to the Water Quality Planning and Management Regulations." 64 Federal Register No. 162, Aug. 23, 1999: pp. 46011- 46055.

3 Because EPA believes that the proposed TMDL rule does not directly apply to any discharger, including small entities, and since impacts on non-government entities are indirect and highly speculative, the Agency did not prepare an initial regulatory flexibility analysis under the Regulatory Flexibility Act. Impacts on the private sector would flow from requirements already established by section 303(d) and the states' water quality standards, not from these proposals, according to EPA. Id.: pp. 46041-46042.

4 The term "state" is used here to mean states, territories, and Indian Tribes that have been authorized to establish lists of impaired waters and TMDLs pursuant to section 303(d). Currently, however, no Tribes have sought this authority, and part of EPA's proposal is a clarification that Tribes may apply to EPA for such authority.

5 The term "list" is used here to refer to the list of impaired or threatened waterbodies that states are required to submit to EPA pursuant to CWA sec. 303(d).

6 Under the Act, "pollution" is defined as "the man made or man-induced alteration of the chemical, physical, biological, or radiological integrity of water." The statutory definition of "pollutant" is narrower and means "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal and agricultural waste discharged into water." (CWA sec. 502)

7 U.S. Environmental Protection Agency. "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.

8 Currently, 43 states and one territory are authorized to issue NPDES permits. In this memo, the terms "authorized state" and "delegated state" refer to these 44 jurisdictions. EPA is the permitting authority in the remaining states (Alaska, Arizona, District of Columbia, Idaho, Maine, Massachusetts, New Hampshire, and New Mexico) and five territories.

9 In March 1999, EPA and USDA announced a Unified Animal Feeding Operation Strategy to achieve improved animal waste management nationwide. One element of the strategy is revision of existing CWA regulations that govern CAFOs. These revisions are expected to expand the regulatory coverage of AFOs which are defined as CAFOs and thus are subject to NPDES permitting and enforcement. The AFO strategy is separate from EPA's proposals to revise the TMDL program. For additional background, see CRS Report 98-451, "Animal Waste Management and the Environment: Background for Current Issues."