EPA Issues New Federal TMDL Regulations
 
October 11, 2000
 

In July 2000, EPA set in motion the next wave of water pollution control requirements when it issued its final rule revising regulations (Regulations) governing the Total Maximum Daily Load (TMDL) program under the Clean Water Act (Act). Under the Act, states, territories and authorized tribes (states) must implement TMDLs, which are written plans for attaining and maintaining water quality standards, if more traditional technology-based effluent limits have failed to achieve such standards. (Some states, such as Florida, have implemented their own TMDL programs. See related article on page 3.) While TMDL regulations have long required that states establish, and then update biennially, lists of waterbodies that do not meet water quality standards, there has been little, if any, preparation and implementation of TMDLs to achieve such standards. However, when a 1998 federal report to Congress revealed that over 20,000 individual water bodies still do not meet current water quality standards, EPA undertook a substantial rewrite of the regulations to add mandatory requirements for the preparation and implementation of TMDLs.

In contrast to other technology-based programs under the Clean Water Act, such as the NPDES permitting program, the TMDL program is water quality-based. The new Regulations provide a detailed blueprint for states to follow to implement such water quality-based approach. First, states must establish lists of impaired waterbodies using specifically defined sources of data, including data provided by the public. The regulations now also require that states follow specific procedures when developing methodologies for evaluating such waterbody data. The deadline for States to prepare their final methodologies establishing the 2002 list of impaired bodies is November 1, 2001.

The regulations make clear that virtually all contaminants must be included by states when they develop their methodologies, including naturally occurring contamination. The EPA provides the example of a waterbody that has been contaminated by cadmium from the natural weathering of a geologic outcrop, as well as from a mine tailings pond. The EPA states clearly that both sources must both be accounted for in the wasteload allocation of a TMDL to ensure that the such allocation is properly set to achieve water quality standards. The regulations also require that lists of impaired waterbodies specify the pollutants and the types of pollution-causing impairment, as well as a schedule for establishing TMDLs for such waterbodies. The regulations state that TMDLs must be established “as expeditiously as practicable” but no later than July 10, 2010 (for waterbodies listed prior to July 10, 2000) or 10 years after the date of initial inclusion on the list, with the possibility of a five-year time extension under certain circumstances. The EPA initially had proposed that lists of impaired water bodies include “threatened” water bodies, but deleted this requirement in the final rule.

After a state has established its list of impaired waterbodies pursuant to the new regulations, it must develop TMDLs that lay out specific plans for these waterbodies to achieve water quality standards. As set forth in the new regulations, TMDLs are intended to provide “the opportunity to compare relative contributions of pollutants from all sources and consider technical and economic trade-offs between point and nonpoint sources.” 40 C.F.R. § 130.32(a). TMDLs must include allocations for point and nonpoint sources, and must consider seasonal variations, stream water flow levels, and “other environmental factors that affect the relationship between pollutant loadings and water quality impacts, such that the allocations will result in attainment and maintenance of water quality standards in all seasons of the year and during all flow conditions.” In addition, TMDLs must allow for reasonably foreseeable increases in pollutant loads including future growth. The regulations also require that TMDLs include specific plans for demonstrating how the burdens of allocation will be shared between point and nonpoint sources, as well as a demonstration that measures to reduce pollution from nonpoint sources will be implemented. Finally, the regulations require that TMDLs specify dates by which water quality standards will be achieved provided such dates are no longer than 10 years after the TMDL is established.

The new regulations mandate that the public be afforded ample opportunity to participate in all facets of the newly revised TMDL program. For example, the public is now entitled to: provide data and information concerning pollutant contribution to waterbodies, comment on lists of impaired waterbodies including methodologies used by states for establishing such lists, comment on modifications to these lists, and comment on the TMDLs. Many states have already begun to compile the data that they will use to develop their lists of impaired water bodies. Accordingly, businesses whose operations have or may have impacts on waterbodies should consider becoming involved in their states’ collection of relevant data, as well as states’ preliminary efforts to draft methodologies for establishing their lists.