Florida DEP Addresses TMDLS
March 1, 2000
Section 303(d) of the Clean Water Act (CWA) requires EPA and the states to
identify those water segments that are currently unable to meet water quality
standards using traditional technology-based effluent limitations. These
"impaired" water segments must be ranked according to the severity of
their water quality problems. States must establish a Total Maximum Daily Load (TMDL)
for each pollutant that impairs the water segment. The TMDL process is to
identify and quantify all point and non-point sources of pollutant loading to an
impaired water body to determine the assimilative capacity of that water body
for each pollutant, with an adequate margin of safety. The TMDL would then be
allocated among all sources of pollutant loadings. The process of establishing
TMDLs turned out to be extremely complex and time-consuming. Accordingly, a
number of lawsuits have been filed around the country, including Florida,
arguing that EPA failed to meet deadlines mandated in the CWA for establishing
TMDLs. The Florida lawsuit was settled recently, requiring EPA to develop TMDLs
for impaired water segments in Florida in accordance with a detailed schedule,
if Florida failed to adopt such TMDLs (Florida was not a party to the suit).
First on the settlement list is Lake Okeechobee, for which a TMDL was required
by December 31, 1999.
In response to the suit, in 1999, the Florida Legislature passed the Florida
Watershed Restoration Act (FWRA). Under the FWRA, the Florida Department of
Environmental Protection (DEP) must undertake rulemaking to adopt a methodology
that will be used to analyze whether a water body segment is
"impaired" and a methodology to establish TMDLs for those water
segments. DEP must then revise and prioritize its list of impaired waters and
begin establishing TMDLs for those waters. This rulemaking is highly
significant, since discharges to impaired waters from both point sources, such
as a municipal treatment works outfall, and non-point sources, such as
agricultural run-off, are to be targeted by the TMDLs.
DEP has been in the process of rulemaking in accordance with the FWRA. A
Technical Advisory Committees (TAC) has been meeting to develop the impaired
water bodies list methodology (the so-called "303(d) List Methodology TAC").
Six TAC meetings have been held around the state, and another is scheduled for
March 23, 2000. The TAC discusses policy-related issues of the TMDL program,
development of the methodology to identify impaired waters, and allocation of
TMDLs to point and non-point sources. A TAC to develop the Lake Okeechobee TMDL
has also been meeting, but a proposed TMDL has not yet been published.
DEP hopes to initiate rulemaking to develop TMDLs , in conjunction with basin
management plans, by July 2000. DEP has prepared a draft framework document
addressing DEP's TMDL responsibilities and how those tasks will be integrated
with existing watershed management activities. DEP has also prepared a draft
basin boundary map.
As previously reported, EPA proposed to revise its TMDL program (40 CFR Part
130) extensively on August 23, 1999 (64 Fed. Reg. 46,058). EPA's proposal has
come under fire from a variety of sources, including DEP, as unworkable and
prohibitively expensive for states to implement. Proposed revisions would
substantially expand states' responsibilities for developing impaired waters
lists and TMDL implementation and would also amend the NPDES program, requiring
operations currently exempt from NPDES permitting requirements (animal feeding
and silviculture operations) to obtain a permit on a case-by-case basis if
discharging to a TMDL. The proposed revisions would also require large new
facilities to provide "offsets" of up to 1.5:1 for new or expanded
discharges to impaired waters in the interim period before the TMDL is
established.
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