Thursday,
July 13, 2000
Part VI
Environmental
Protection Agency
40 CFR Part 9 et al.
Revisions to the Water Quality Planning
and Management Regulation and
Revisions to the National Pollutant
Discharge Elimination System Program in
Support of Revisions to the Water Quality
Planning and Management Regulation;
Final Rules
-------
-------
Thursday,
July 13, 2000
Part VI
Environmental
Protection Agency
40 CFR Part 9 et al.
Revisions to the Water Quality Planning
and Management Regulation and
Revisions to the National Pollutant
Discharge Elimination System Program in
Support of Revisions to the Water Quality
Planning and Management Regulation;
Final Rules
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Federal Register/Vol. 65, No. 135/Thursday, July 13, 2000/Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 9,122,123,124, and 130
[FRL-6733-2]
Revisions to the Water Quality
Planning and Management Regulation
and Revisions to the National Pollutant
Discharge Elimination System
Program In Support of Revisions to the
Water Quality Planning and
Management Regulation
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: Today's final rule revises and
clarifies the Environmental Protection
Agency's (EPA) current regulatory
requirements for establishing Total
Maximum Daily Loads (TMDLs) under
the Clean Water Act (CWA) so that
TMDLs can more effectively contribute
to improving the nation's water quality.
Clean water has been a national goal for
many decades. While significant
progress has been made, particularly in
stemming pollution from factories and
city salvage systems, major challenges
remain. These challenges call for a
focused effort to identify polluted
waters and enlist all those who enjoy,
use, or depend on them in the
restoration effort. Today's action will
establish an effective and flexible
framework to move the country toward
the goal of clean water for all
Americans. It establishes a process for
making decisions in a common sense,
cost effective way on how best to restore
polluted waterbodies. It is based on
identifying and implementing necessary
reductions in both point and nonpoint
sources of pollutants as expeditiously as
practicable. States, Territories, and
authorized Tribes will develop more
comprehensive lists of all waterbodies
that do not attain and maintain water
quality standards. States, Territories,
and authorized Tribes will schedule,
based on priority factors, the
establishment of all necessary TMDLs
over 10 years, with an allowance for
another five years where necessary. The
rule also specifies elements of
approvable TMDLs, including
implementation plans which contain
lists of actions and expeditious
schedules to reduce pollutant loadings.
States, Territories, and authorized
Tribes will provide the public with
opportunities to comment on
methodologies, lists, prioritized
schedules, and TMDLs prior to
submission to EPA. The rule lays out
specific timeframes under which EPA
will assure that lists of waters and
TMDLs are completed as scheduled, and
necessary National Pollutant Discharge
Elimination System (NPDES) permits
are issued to implement TMDLs. The
final rule explains EPA's discretionary
authority to object to, and reissue if
necessary, State-issued NPDES permits
that have been administratively
continued after expiration where there
is a need for a change in the conditions
of the permit to be consistent with water
quality standards and established and
approved TMDLs.
EPA believes that these regulations
are necessary because the TMDL
program which Congress mandated in
1972 has brought about insufficient
improvement in water quality. EPA had
been concerned about this lack of
progress for some time when, in 1996,
it established a Federal Advisory
Committee. The Committee was asked
to advise EPA on possible
improvements to the program. After
careful deliberations, the Committee
recommended that EPA amend several
aspects of the regulations.
EPA believes that these regulations
will benefit human health and the
environment by establishing clear goals
for identification of impaired
waterbodies and establishment of
TMDLs. The regulations will also ensure
that States, Territories and authorized
Tribes give a higher priority to restoring
waterbodies which have a greater
potential to affect human health or
threatened or endangered species
thereby focusing the benefits of these
regulations on the most pressing
problems.
DATES: This regulation is not effective
until 30 days after the date that
Congress allows EPA to implement this
regulation. EPA will publish notice of
the effective date in the Federal
Register. This action is considered
issued for purposes of judicial review,
as of 1:00 p.m. Eastern Daylight Time,
on July 27, 2000 as provided in § 23.2.
ADDRESSES: The complete
administrative records for the final rule
have been established under docket
numbers W-98-31 and W-99-04, and
include supporting documentation as
well as printed, paper versions of
electronic comments. Copies of
information in the record are available
upon request. A reasonable fee may be
charged for copying. The records are
available for inspection and copying
from 9 a.m. to 4 p.m., Monday through
Friday, excluding legal holidays, at the
Water Docket, EPA, East Tower
Basement, 401 M Street, SW,
Washington, DC. For access to docket
materials, please call (202) 260-3027 to
schedule an appointment.
FOR FURTHER INFORMATION CONTACT: Jim
Pendergast, U.S. EPA, Office of
Wetlands, Oceans and Watersheds
(4503F), 1200 Pennsylvania Ave., N.W.,
Washington, D.C. 20460, (202) 260-9549
for information pertaining to Part 130 of
today's rule, or Kim Kramer, U.S. EPA,
Office of Wastewater Management
(4203), 1200 Pennsylvania Ave., N.W.,
Washington, D.C. 20460, (202) 401-
4078, for information regarding Parts
122, 123, and 124.
SUPPLEMENTARY INFORMATION:
A. Authority
Clean Water Act sections 106, 205(g),
205(j), 208, 301, 302, 303, 305, 308, 319, 402,
501, 502, and 603; 33 U.S.C. 1256,1285(g),
1285(j), 1288, 1311, 1312, 1313, 1315,1318,
1329,1342,1361,1362, and 1373.
B. Table of Contents of This Preamble
I. Introduction
A. Background
1. What are the water quality concerns
addressed by this rule?
2. What are the current statutory
authorities to support this final rule?
3. What is the regulatory background of
today's action?
a. What are the current requirements?
b. What changes did EPA propose in
August 1999?
c. What has EPA done to gather
information and input as it developed
this final rule?
B. What are the significant issues in today's
rule?
1. What are EPA's objectives for today's
rule?
2. What are the key differences between the
proposal and today's final rule?
II. Changes to Part 130
A. What definitions are included in this
final rule? (§ 130.2)
1. What definitions are added or revised?
2. Response to requests for new definitions.
B. Who must comply with the
requirements of subpart C? (§ 130.20)
C. What is the purpose of subpart C ?
(§130.21)
D. What water-quality related data and
information must be assembled to
develop the list of impaired waterbodies
?(§ 130.22)
E. How must the methodology for
considering and evaluating existing and
available water-quality related data and
information to develop the list be
documented ? (§ 130.23)
F. When must the methodology be
provided to EPA ? (§ 130.24)
G. What is the scope of the list of impaired
waterbodies? (§ 130.25)
H. How do you apply your water quality
standards antidegradation policy to the
listing of impaired waterbodies?
(§ 130.26)
I. What is the format and content of the
list? (§130.27)
J. What must the prioritized schedule for
submitting TMDLs to EPA contain?
(!J 130.28)
K. Can the list be modified? (§ 130.29)
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L. When must the list of impaired.
waterbodies be submitted to EPA and
what will EPA do with it? (§ 130.30)
M. Must TMDLs be established? (§ 130.31)
N. What is a TMDL? (§ 130.32(a))
O. What are the minimum elements of a
TMDL? (§ 130.32(b))
P. What are the requirements of the
implementation plan? (§ 130.32(c))
Q. What are the special requirements for
Total Maximum Daily Thermal Loads?
(§130.32(d))
R. How must TMDLs take into account
endangered and threatened species?
(§130.32(e))
S. How are TMDLs expressed? (§ 130.33)
T. What actions must EPA take on TMDLs
that are submitted for review? (§ 130.34)
U. How will EPA assure that TMDLs are
established? (§ 130.35)
V. What public participation requirements
apply to the lists and TMDLs? (§ 130.36)
W. What is the effect of this rule on TMDLs
established when the rule is first
implemented? (§ 130.37)
X. Continuing planning process (§ 130.50)
Y. Water quality management plans
(§130.51)
Z. Petitions to EPA to establish TMDLs
(§130.65)
AA. Water quality monitoring and report
(§§130.10 and 130.11)
AB. Other sections (§§ 130.0,130.1,130.3,
130.7,130.61,130.62,130.63, and
130.64)
III. Changes to Parts 122,123, and 124
A. Reasonable further progress toward
attaining water quality standards in
impaired waterbodies in the absence of
a TMDL
1. Background
2. Requirements for new and significantly
expanding dischargers
3. EPA authority to reissue state-issued
expired and administratively-continued
NPDES Permits
B. New tools to ensure implementation of
established TMDLs
1. Background
2. Designation of concentrated animal
feeding operations
3. Designation of concentrated aquatic
animal production facilities
4. Designation of point source storm water
discharges associated with silvicultural
operations
5. EPA authority to reissue state-issued
expired and administratively-continued
NPDES Permits
IV. Costs and benefits of the rule
V. Regulatory requirements
A. Regulatory Flexibility Act (RFA) as
amended by the Small Business
Regulatory Enforcement Fairness Act of
1996 (SBREFA), 5 U.S.C. 601 et seq.
B. Regulatory Planning and Review,
Executive Order 12866
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act
E. Federalism, Executive Order 13132
F. Consultation and Coordination with
Indian Tribal Governments, Executive
Order 13084
G. Protection of Children from
Environmental Health Risks and Safety
Risks, Executive Order 13045
H. National Technology Transfer and
Advancement Act
I. Congressional Review Act !
Entities Potentially Regulated by the
Final Rule
State, Territorial or authorized Trihal
Governments. '
States, Territories and authorized
Tribes.
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to he
regulated by this action. This table lists
the types of entities that EPA is now
aware could potentially be regulated by
this action. Other types of entities not
listed in this table could also be
regulated. To determine whether you ;
are regulated by this action, you should
carefully examine the applicability
criteria in § 130.20. If you have
questions regarding the applicability of
this action to a particular entity, consult
one of the persons listed in the FOR
FURTHER INFORMATION CONTACT section.
Response to Comments \
This preamble explains in detail the
elements of the final TMDL regulations
and the amendments which EPA is
making to the NPDES program in order
to support implementation of the TMDL
program. EPA has made changes to its
proposal in response to comments
received on the proposed rules. EPA has
evaluated all the significant comments it
received including comments submitted
after the close of the comment period:
and prepared a Response to Comment
Document containing EPA's response to
those comments. This document
complements discussions in this
preamble and is available for review in
the Water Docket.
Before Reading This Preamble, You
Should Read the Final Rule
I. Introduction ;
A. Background
1. What are the Water Quality Concerns
Addressed by this Rule?
The CWA includes a number of
programs aimed at restoring and
maintaining water quality. These
include national technology-based
effluent limitation guidelines; national
water quality criteria guidance; State,
Territorial and authorized Tribal water
quality standards; State, Territorial and
authorized Tribal nonpoint source
(NFS) management programs; funding
provisions for municipal wastewater
treatment facilities; State, Territorial
and authorized Tribal water quality
monitoring programs; and the NPDES
permit program for point sources. These
programs have produced significant and
widespread improvements in water
quality over the last quarter-century, but
many waterbodies still fail to attain or
maintain water quality standards due to
one or more pollutants.
The National Water Quality Inventory
Report to Congress for 1998 indicates
that of the 23 percent of the Nation's
rivers and streams that have been
assessed, 35 percent do not fully
support water quality standards or uses
and an additional 10 percent are
threatened. Of the 32 percent of estuary
waterbodies assessed, 44 percent are not
fully supporting water quality standards
or uses and an additional 9 percent are
threatened. Of the 42 percent of lakes,
ponds, and reservoirs assessed (not
including the Great Lakes), 45 percent
are not fully supporting water quality
standards or uses and an additional 9
percent are threatened. The report also
indicates that 90 percent of the Great
Lakes shoreline miles have been
assessed, and that 96 percent of these
are not fully supporting water quality
standards and an additional 2 percent
are threatened. The report indicates that
pollutants in rainwater runoff from
urban and agricultural land are a
leading source of impairment.
Agriculture is the leading source of
pollutants in assessed rivers and
streams, contributing to 59 percent of
the reported water quality problems and
affecting about 170,000 river miles.
Hydromodification is the second
leading source of impairment, and
urban runoff/storm sewers is the third
major source, contributing respectively
20 percent and 12 percent of reported
water quality problems. EPA recognizes
that a large percentage of streams has
not been assessed but believes that there
is sufficient information in hand to
warrant concern over those unassessed
waters and the slow pace at which many
waters are attaining water quality
standards.
The 1998 section 303(d) lists of
impaired waterbodies submitted by
States and Territories provided
additional information. The section
303(d) lists relied, in part, on
information in the section 305(b)
reports. The States and Territories
identified over 20,000 individual
waterbodies including river and stream
segments, lakes, and estuaries that do
not attain State water quality standards
despite 28 years of pollution control
efforts. These impaired waterbodies
include approximately 300,000 miles of
river and shoreline and approximately 5
million acres of lakes. Approximately
210 million people live within 10 miles
of these waterbodies. State and local
governments also reported that they
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issued 2,506 fish advisories and closed
353 beaches in 1998.
EPA believes that a significant part of
the response to these problems must be
a more rigorous implementation of the
TMDL program. EPA believes that
today's rule will provide the tools for
States, Territories and authorized Tribes
to bring the assessment and restoration
authorities provided by section 303(d)
into greater use and result in significant
improvements in the quality of the
Nation's waterbodies.
2, What are the Current Statutory
Authorities That Support This Final
Rule?
The goal of establishing TMDLs is to
assure that water quality standards are
attained and maintained. Section 303(d)
of the CWA which Congress enacted in
1972 requires States, Territories and
authorized Tribes to identify and
establish a priority ranking for
waterbodies for which technology-based
effluent limitations required by section
301 are not stringent enough to attain
and maintain applicable water quality
standards, establish TMDLs for the
pollutants causing impairment in those
waterbodies, and submit, from time to
time, the list of impaired waterbodies
and TMDLs to EPA. EPA must review
and approve or disapprove lists and
TMDLs within 30 days of the time they
are submitted. If EPA disapproves a list
or a TMDL, EPA must establish the list
or TMDL. In addition, EPA and the
courts have interpreted the statute as
requiring EPA to establish lists and
TMDLs when a State fails to do so.
Furthermore, the requirement to
identify and establish TMDLs for
waterbodies exists regardless of whether
the waterbody is impaired by point
sources, nonpoint sources or a
combination of both. Pronsolino v.
Marcus, 2000 WL 356305 (N.D. Cal.
March 30,2000.)
Listing impaired waterbodies and
establishing TMDLs for waterbodies
impaired by pollutants from nonpoint
sources does not mean any new or
additional implementation authorities
are created. Once a TMDL is
established, existing State, Territorial
and authorized Tribal programs, other
Federal agencies' policies and
procedures, as well as voluntary and
incentive-based programs, are the basis
for implementing the controls and
reductions identified in TMDLs.
CWA Section 402 establishes a
program, the NPDES Program, to
regulate the "discharge of a pollutant,"
other than dredged or fill materials,
from a "point source" into "waters of
the United States." The CWA and
NPDES regulations define a "discharge
of a pollutant," "point source," and
"waters of the United States." The
NPDES Program is administered at the
federal level by EPA unless a State,
Tribe or U.S. Territory assumes the
program after receiving approval by the
federal government. Under section 402,
discharges of pollutants to waters of the
United States are authorized by
obtaining and complying with the terms
of an NPDES permit. NPDES permits
commonly contain numerical limits on
the amounts of specified pollutants that
may be discharged and specified best
management practices (BMPs) designed
to minimize water quality impacts.
These numerical effluent limitations
and BMPs or other non-numerical
effluent limitations implement both
technology-based and water quality-
based requirements of the Act.
Technology-based limitations represent
the degree of control that can be
achieved by point sources using various
levels of pollution control technology. If
necessary to achieve compliance with
applicable water quality standards,
NPDES permits must contain water
quality-based limitations more stringent
than the applicable technology-based
standards.
3. What is the Regulatory Background of
Today's Action?
a. What are the Current Requirements?
EPA issued regulations governing
identification of impaired waterbodies
and establishment of TMDLs, at § 130.7,
in 1985 and revised them in 1992. These
regulations provide that:
• State, Territorial and authorized Tribal
lists must include those waters still requiring
TMDLs because technology based effluent
limitations required by the CWA or more
stringent effluent limitations and other
pollution controls (e.g., management
measures) required by local, State, or Federal
authority are not stringent enough to attain
and maintain applicable water quality
standards;
• State, Territorial and authorized Tribal
lists must be submitted to EPA every two
years, beginning in 1992, on April 1 of every
even-numbered year;
• The priority ranking for listed waters
must include an identification of the
pollutant or pollutants causing or expected to
cause the impairment and an identification of
the waterbodies targeted for TMDL
development in the next two years;
• States, Territories and authorized Tribes,
in developing lists, must assemble and
evaluate all existing and readily available
water quality-related data and information;
• States, Territories and authorized Tribes
must submit, with each list, the methodology
used to develop the list and provide EPA
with a rationale for any decision not to use
any existing and readily available water
quality-related data and information; and
• TMDLs must be established at levels
necessary to implement applicable water
quality standards with seasonal variations
and a margin of safety that takes into account
any lack of knowledge concerning the
relationship between effluent limitations and
water quality.
The regulations define a TMDL as a
quantitative assessment of pollutants
that csiuse 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.
TMDLs are established for waterbody
and pollutant combinations for
waterbodies impaired by point sources,
nonpoint sources, or a combination of
both point and nonpoint sources. Indian
Tribes may be authorized to establish
TMDLs for waterbodies within their
jurisdiction. To date, however, no Tribe
has sought or received CWA authority to
establish TMDLs.
The NPDES regulations, in several
provisions and under certain
circumstances, allow the permitting
authority and/or EPA to subject certain
previously non-designated sources to
NPDES program requirements. EPA
established these jurisdictional
regulations in 1973 when the Agency
and the States focused permitting
resources primarily on continuous
discharges, for example, industrial and
municipal sources. Also, in the early
stages of CWA implementation, the
Agency and the States focused on
implementation of technology-based
standards. At that time, EPA attempted
to limit the scope of the NPDES
permitting program to certain types of
point sources. The D.C. Circuit rejected
that attempt, however, and explained
that EPA could not exempt point
sources from the NPDES program.
NRDCv. Costle, 568 F.2d 1369, 1377
(D.C. Cir. 1977). Although the Court
rejected this attempt, it did recognize
the Agency's discretion to define "point
source" and "nonpoint source." The
existing NPDES regulations identifying
animal production and silvicultural
sources represents an early attempt to
do so.
Also, under the NPDES program
regulations, a Regional Administrator
may review and object to State-issued
NPDES permits. The procedures by ,
which a Regional Administrator may
review and object to these permits are
found in § 123.44. The existing
objection authority, under section ;
402(d) of the Act, grants EPA 90 days
within which to object to a proposed
State permit that fails to meet the
guidelines and requirements of the Act.
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If a State fails to respond to an EPA
objection within 90 days of objection,
exclusive authority to issue the NPDES
permit to that discharger passes to EPA.
b. What Changes Did EPA Propose in
August 1999?
In 1996, the Office of Water
determined that there was a need for a
comprehensive evaluation of EPA's and
State, Territorial and authorized Tribal
implementation of section 303(d)
requirements. EPA convened a
committee under the Federal Advisory
Committee Act (TMDL FACA
committee) to undertake such an
evaluation and make recommendations
for improving implementation of the
TMDL program, including
recommendation for revised regulations
and guidance. The TMDL FACA
committee included 20 individuals with
diverse backgrounds, including
agriculture, forestry, environmental
advocacy, industry, and State, local, and
Tribal governments. On July 28, 1998,
the committee submitted its final report
to EPA which contained more than 100
consensus recommendations, a subset of
which recommended regulatory
changes. The TMDL FACA committee
recommendations helped guide the
development of the revisions which
EPA proposed in August 1999.
In proposing revisions to the
regulations governing TMDLs, EPA also
relied upon the past experience of States
and Territories. EPA's proposal
recognized and responded to some of
the issues raised by stakeholders
regarding the effectiveness and
consistency of the TMDL program. EPA
also proposed changes intended to
resolve some of the issues and concerns
raised by litigation concerning the
identification of impaired waterbodies
and the establishment of TMDLs.
Finally, EPA proposed changes to the
NPDES permitting regulations to assist
in the establishment and
implementation of TMDLs and to better
address point source discharges to
waters not meeting water quality
standards prior to establishment of a
TMDL.
Key elements of the changes proposed
in August, 1999 include:
• State, Territorial, and authorized
Tribal section 303(d) listing
methodologies would become more
specific, subject to public review, and
provided to EPA for review prior to
submission of the list.
• States, Territories and authorized
Tribes would develop a more
comprehensive list of waterbodies
impaired and threatened by pollution,
organize it into four parts, and submit
it to EPA.
• States, Territories and authorized
Tribes would establish TMDLs only for
waterbodies on the first part of the list.
• States, Territories and authorized
Tribes would keep waterbodies on the
lists until water quality standards were
achieved.
• States, Territories and authorized
Tribes would establish and submit to.
EPA schedules to establish all TMDLS
within 15 years of listing.
• States, Territories, and authorized
Tribes would rank TMDLs into high,
medium or low priority. :
• TMDLs would include 10 specific
elements, one of which is an '
implementation plan. :
• States, Territories, and authorized
Tribes would notify the public and give
them the opportunity to comment on
the methodology, lists, priority ;
rankings, schedules, and TMDLs prior
to submission to EPA.
• New and significantly expanded j
discharges subject to NPDES permits
would need to obtain an offset for the
increased discharge before being :
allowed to discharge the increase. :
• Certain point source storm water
discharges from silviculture would be
required to seek a permit if necessary to
implement a TMDL.
• EPA could designate certain animal
feeding operations and aquatic animal
production facilities as sources subject
to NPDES permits in authorized States.
• EPA could object to expired and
administratively continued State-issued
NPDES permits.
• Regulatory language would codify
requirements pertaining to citizens' ;
rights to petition EPA. ;
c. What has EPA Done to Gather \
Information and Input as it Developed
This Final Rule? ,
EPA published the proposed rule on
August 23, 1999, and provided for an
initial 60 day comment period, which
was later extended to a total of 150 days.
EPA received about 34,000 comments
on the proposal comprised of about '
30,500 postcards, 2,700 letters making
one or two points, and 780 detailed
comments addressing many issues. EPA
has reviewed all these comments as part
of the development of today's final nile.
EPA also engaged in an extensive
outreach and information-sharing effort
following the publication of the
proposed rule. The Agency sponsored
and participated in six public meetings
nationwide, to better inform the public
on the contents of the proposed rules,
and to get informal feedback from the
public. These meetings took place in
Denver, Los Angeles, Atlanta, Kansas
City, Seattle, and Manchester, New
Hampshire. In addition, EPA
participated in numerous other
meetings, conferences and information-
sharing sessions to discuss the proposed
rule and listen to alternative approaches
to achieving the nation's clean water
goals.
The Agency has had an ongoing
dialogue with State and local officials
and their national/regional
organizations throughout the
development of this rule. EPA has met
with organizations representing State
and local-elected officials including: the
National Governors' Association, the
Western Governors' Association, the
National Conference of State
Legislatures, the National Association of
Counties, the National League of Cities
and EPA's State and Local Advisory
Group. Many discussion sessions were
held with officials who administer State
and local programs related to water
quality, agriculture, forestry, and
harbors. Discussions were held with
such organizations as the Environmental
Council of the States, the Association of
State and Interstate Water Pollution
Control Administrators, the Association
of Municipal Sewerage Agencies, the
Association of Municipal Water
Agencies, the National Association of
State Agricultural Departments, the
National Association of State Foresters,
the Western States Water Council, the
Association of State Drinking Water
Administrators, the National
Association of Flood and Storm Water
Management Agencies, the Interstate
Conference on Water Policy, and the
Western States Land Commissioners
EPA met with groups representing
business, industry, agriculture, and
forestry interests, including the Electric
Power Research Institute, the Utility
Water Action Group, American Water
Works Association, the American Forest
and Paper Association, the Family Farm
Alliance, the National Association of
Conservation Districts, a number of
State Farm Bureaus, corn and soybean
grower organizations and forestry
associations. EPA also met with
environmental and citizen groups
including the Natural Resources Defense
Council, Sierra Club, Friends of the
Earth and Earth Justice. EPA
participated in numerous Congressional
briefings and hearings held in
Washington and in several field
locations. The results of these meetings
and discussions are reflected in today's
rule.
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B. What are the Significant Issues in
Today's Rule?
1. What are EPA's Objectives for
Today's Rule?
States, Territories, and authorized
Tribes are essential in carrying out a
successful program and EPA looks
forward to working with them in
developing this program. Further, we
believe that, ultimately, any successful
effort depends on a cooperative
approach that pulls together the variety
of entities and stakeholders involved in
the watershed. EPA through this
rulemaking seeks to provide a
framework that facilitates this approach.
EPA received many comments
regarding the overall purpose of the
proposed rule. Many commenters
expressed concerns that EPA was
putting too much emphasis on TMDLs
and ignoring other programs and
initiatives under the CWA which are
also aimed at restoring or maintaining
water quality. A common theme through
many comments was that the Agency
should not attempt to force-fit clean up
of every impairment through the TMDL
process. EPA agrees with the
commenters that for some waterbodies
and watersheds, existing plans and
agreements may accomplish much of
what this rule intends. However, EPA
believes that identifying waterbodies
that are impaired and establishing
TMDLs is both statutorily required and
will help focus ongoing activities for
more efficient attainment of water
quality standards.
The CWA requires TMDLs for
pollutants in impaired waterbodies if
implementation of technology-based
effluent limitations is not sufficient to
attain water quality standards. Today's
rule clarifies this concept to require that
TMDLs be established for all pollutants
Sn impaired waterbodies unless
enforceable Federal, State, Territorial or
authorized Tribal controls will result in
attainment of water quality standards by
the time the next list in the listing cycle
is required.
EPA recognizes that watershed or
other plans developed under other
State, Territorial or authorized Tribal
programs or by other Federal agencies,
such as wet weather flow plans, Coastal
Zone Management plans, or
conservation plans administered by the
Natural Resources Conservation Service,
have the same goal as a TMDL. EPA
believes that these other activities are
crucial to the attainment of water
quality standards either because they
will result in attainment of water quality
standards before a TMDL is established
or because they are the basis for
implementation of the controls required
by TMDLs. Thus, today's rule provides
a role for the various programs aimed at
improving water quality—both as an
alternative to developing a TMDL in
certain circumstances, and a means for
implementing TMDLs.
Many commenters also perceived
EPA's proposal as an attempt to
supplant State, Territorial or authorized
Tribal primacy. Today's rule preserves
the primary responsibilities of States,
Territories and authorized Tribes and
clarifies EPA's responsibilities under
the CWA. EPA believes that today's rule
provides greater clarity regarding the
requirements for States, Territories and
authorized Tribes and EPA's own
responsibilities for the TMDL program.
EPA believes that today's rule
establishes a framework for effective,
cooperative efforts between State,
Territorial, authorized Tribal
governments, individuals, local
governments and other Federal
agencies.
EPA is also conscious of the need for
adequate resources. EPA has sought to
increase funding for development and
implementation of TMDLs in both the
FY 2001 Federal budget and prior
budgets. In the FY 2001 Federal budget
the Agency has requested an additional
$45 million in CWA Section 106 grants
specifically for the TMDL program. In
FY 2001, EPA requested $250 million
for section 319 nonpoint source grants,
an increase of $50 million (25%) over
FY 2000. In addition, the FY 1999 and
FY 2000 budgets of $200 million per
year for section 319 grants represented
a doubling (100% increase) of the prior
section 319 funding. To further support
State nonpoint source implementation,
EPA has proposed an FY2002 budget
that gives States and Territories the
option to reserve up to 19% of their
Clean Water State Revolving Fund
capitalization grants to provide grants
for implementing nonpoint source and
estuary management projects.
2. What Are the Key Differences
Between the Proposal and Today's Final
Rule?
This section summarizes the
significant changes EPA has made in the
rule adopted today compared to the
proposed rule. A more detailed
discussion of all the changes is included
in the specific sections for these changes
in this preamble.
a. Threatened waterbodies. EPA
proposed that threatened waterbodies be
listed on Part 1 of the list, meaning that
TMDLs would have to be established for
them as for impaired waters. After
carefully considering comments,
particularly the concerns raised by
commenters regarding the technical
difficulties inherent in determining
when water quality trends are declining
and the difficulty in making listing
decisions, EPA is not requiring that
States, Territories or authorized Tribes
list threatened waterbodies on the
section 303(d) list or that TMDLs be
prepared for these waterbodies. States,
Territories and authorized Tribes retain,
at their discretion, the option to list
threatened waterbodies on their section
303(d) list and establish TMDLs for
these waterbodies.
b. The four-part 303(d) list. EPA
proposed that the section 303(d) list
include all impaired waterbodies, sorted
into four parts, and a priority ranking
for those waterbodies with respect to
establishing TMDLs. Part 1 of the list
would, include impaired waterbodies for
which TMDLs would be required to be
established within 15 years. Part 2 of the
list would include waterbodies
impaired by pollution that is not caused
by a pollutant. TMDLs would not be
required for these waterbodies. Part 3 of
the list would include waterbodies for
which TMDLs had been established but
water quality standards not yet attained.
Part 4 would include waterbodies for
which technology-based controls or
other enforceable controls would attain
water quality standards by the next
listing cycle. Today's final rule adds a
clarification that if during the
development of each list, a waterbody
previously listed on Part 3 of the list has
not made substantial progress towards
attainment of water quality standards, it
must be moved to Part 1 and a new
TMDL must be established. Today's rule
also allows States, Territories and
authorized Tribes to submit their list in
different formats. EPA will still approve
all four parts of the list, but States,
Territories and authorized Tribes may
submit lists in any of three formats.
Lists may be submitted to EPA as
described in the proposal—that is, as
one four-part list published by itself, as
part of the section 305(b) water quality
report, or with Part 1 submitted
separately to EPA as a section 303(d)
submission and Parts 2, 3 and 4
submitted to EPA as a section 303(d)
component of the section 305(b) water
quality report.
c. Inclusion of schedules in the
section 303(d) list. EPA proposed that
States, Territories and authorized Tribes
should submit the list and priority
rankings to EPA for approval, and
should separately submit a schedule for
establishing TMDLs which would not be
subject to EPA approval. Today's rule
requires States, Territories, and
authorized Tribes to submit a prioritized
schedule for establishing TMDLs for
waterbodies listed on Part 1. Further, as
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43591
suggested by some commenters, the
final regulations require that TMDL
establishment be scheduled as
expeditiously as practicable and within
10 years of July 10, 2000, or 10 years
from the due date for the first list on
which the waterbody appeared,
whichever is later, rather than the 15
year period EPA proposed. However,
the schedule can be extended for up to
5 years when a State, Territory, or
authorized Tribe explains that despite
expeditious action establishment of
TMDLs within 10 years is not
practicable.
d. Implementation plan. EPA
proposed that TMDLs must contain an
implementation plan as a required
element for approval. Today's rule, like
the proposal, requires an
implementation plan as a mandatory
element of an approvable TMDL, and
includes substantial changes to the
reasonable assurance and
implementation plan requirements in
response to the comments received. The
implementation plan requirements
differ depending on whether
waterbodies are impaired only by point
sources subject to an NPDES permit,
only by other sources (including
nonpoint sources), or by both. EPA is
also adding specificity regarding when
the NPDES permits implementing
wasteload allocations must be issued.
Finally EPA is establishing a goal of 5
years for implementing management
measures or control actions to achieve
load allocations, and a goal of 10 years
for attaining water quality standards.
e. Reasonable assurance. EPA
proposed that States, Territories and
authorized Tribes provide reasonable
assurance that the wasteload and load
allocations reflected in TMDLs would
be implemented. Today's final rule
clarifies how reasonable assurance can
be demonstrated for waterbodies
impaired by all pollutant sources, and
provides additional detail on how
reasonable assurance can be
demonstrated for nonpoint sources.
These changes reflect and seek to
address the uncertainties inherent in
dealing with nonpoint pollutant sources
and recognize the importance of
voluntary and incentive-based
programs. Finally, today's rule specifies
how EPA will provide reasonable
assurance when it establishes TMDLs.
/. The petition process. EPA proposed
to codify requirements applicable to
petitions which can be filed with the
Administrator by citizens who believe
that EPA has failed to comply with its
TMDL responsibilities under the CWA.
Today's rule does not include
requirements codifying the petition
process. EPA notes, however, that
eliminating the proposed petition
process from the rule does not change
the fact that any person is entitled,
under the Administrative Procedure Act
(APA), to petition EPA to take specific
actions regarding identification of
impaired waterbodies and establishment
of TMDLs. ',
g. Offsets. EPA proposed to require
new and significantly expanded
discharges subject to the NPDES permit
program to obtain an offset for their
increased load before being allowed to
discharge the increase. Today's rule [
does hot include any requirement for an
offset.
h. Silviculture, Animal Feeding
Operations, and Aquatic Animal
Production Facilities. EPA proposed to
allow EPA and States to designate
certain point source storm water
discharges from silviculture as subject
to the NPDES permitting program. EPA
also proposed to allow EPA to designate
certain animal feeding operations and
aquatic animal production facilities as
point sources in NPDES authorized
states. EPA has decided to withdraw
this proposal.
II. Changes to Part 130
This section explains in detail the
elements of the final Part 130 TMDL
regulations and how these regulations
differ from the proposal. EPA has made
several significant changes to the
proposal, clarified other requirements,
and rewritten and reorganized the
regulatory language. Most of these
changes have been made in response to
comments received on the proposed
rule.
A. What Definitions are Included in This
Final Rule? (§ 130.2)
Today's final action revises the
definitions of load (or loading), load
allocation, wasteload allocation, and
TMDL, and adds definitions for the
terms pollutant, total maximum daily
thermal load, impaired waterbody,
thermal discharge, reasonable
assurance, management measures,
waterbody, and list. In addition, for
reasons explained in detail later in this
section EPA has decided not to
promulgate definitions which were not
proposed but were suggested by the
commenters.
1. What Definitions are Added or
Revised?
a. New Definition of Pollutant
(§ 130.2{d))
What did EPA propose? On August
23,1999, EPA proposed to add a
definition for "pollutant" that was the
same as the definition in the CWA at
section 502(6). EPA also proposed to
clarify that, in EPA's view, the
definition of pollutant would
encompass drinking water contaminants
that are regulated under section 1412 of
the Safe Drinking Water Act and that
may be discharged to waters of the U.S.
that are the source water of one or more
public water systems. EPA was
proposing to clarify that drinking water
contaminants that meet these criteria are
pollutants as defined in the CWA.
What comments did EPA receive?
EPA received many comments on this
proposed definition which are
addressed fully in the Response to
Comment Document included in the
Docket. Most commenters offered
suggestions as to which particular
substances (particularly naturally
occurring pollutants, FIFRA registered
pesticides, and flow) may or may not be
pollutants, and requested specific
recognition of these substances in the
definition. Others objected to inclusion
of drinking water contaminants in the
definition, believing that they were
better addressed by the Safe Drinking
Water Act requirements. In addition,
EPA received several requests for more
examples to help clarify the distinction
between pollutants and pollution. Some
commenters understood EPA to propose
that "pollutant" includes non-point
source pollution while others did not.
Others gave examples of situations
where they believed it would be
impossible to decide whether a
waterbody was impaired by pollution or
a pollutant. Examples given included:
biological impairment due to
displacement of bedload sediment
during high intermittent streamflow
caused by increased impervious surface,
and impairment due to low dissolved
oxygen levels in hydropower releases.
What is EPA promulgating today?
EPA is promulgating a definition of
pollutant that is identical to the
definition in EPA's current NPDES
regulations. That definition is identical
to the CWA definition except that it
excludes certain radioactive materials
from the definition. Train v. Colorado
Public Int. Research Group, 426 U.S. 1,
25 (1976) (Congress did not intend for
materials governed by the Atomic
Energy Act to be included in the
category of pollutants subject to
regulation by EPA under the CWA). hi
recognition that the CWA definition
does not expressly discuss drinking
water contaminants, EPA is not
including a reference to drinking water
contaminants in the final language.
However, EPA interprets the CWA
definition of pollutant to include, in
most cases, drinking water
contaminants that are regulated under
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section 1412 of the Safe Drinking Water
Act (SDWA). This interpretation is
consistent with both the language and
the intent of the CWA. First, drinking
water contaminants fall within the
meaning of one or more of the terms
used by Congress to define pollutant.
Second, the term "public water
supplies" is listed under CWA section
303(cH2)(A) as a potential beneficial use
to be protected by water quality
standards. EPA expects that virtually all
drinking water contaminants that are
regulated in the future will be
encompassed by one of or more of the
terms used to define pollutants.
EPA wishes to clarify the relationship
between pollutants and pollution for
purposes of section 303(d). Pollution, as
defined by the CWA, and the current
regulations is "the man-made or man-
induced alteration of the chemical,
physical, biological, and radiological
integrity of a waterbody." This is a
broad term that encompasses many
types of changes to a waterbody,
including alterations to the character of
a waterbody that do not result from the
introduction of a specific pollutant or
the presence of pollutants in a
waterbody at a level that causes an
impairment. In other words, all
waterbodies which are impaired by
human intervention suffer from some
form of pollution. In some cases, the
pollution is caused by the presence of
a pollutant, and a TMDL is required. In
other cases it is caused by activities
other than the introduction of a
pollutant.
The following are two examples of
pollution caused by pollutants. The
discharge of copper from an NPDES
regulated facility is the introduction of
a pollutant into a waterbody. To the
extent that this pollutant alters the
chemical or biological integrity of the
waterbody, it is also an example of
pollution. (Copper is not likely to cause
an alteration to the water's physical
integrity.) Similarly, landscape actions
that result in the introduction of
sediment into a waterbody constitute
pollution when that sediment (which is
a pollutant) results in an alteration of
the chemical, physical, or biological
integrity of the waterbody. TMDLs
would have to be established for each of
these waterbodies.
Degraded aquatic habitat is evidence
of impairment which may be caused
solely by channelization of a stream's
bottom. In this case the waterbody
would be considered impaired by
pollution that is not a result of the
introduction or presence of a pollutant.
However, if the channelization also
caused the bottom to become smothered
by excessive sediment deposition, then
the waterbody impairment is caused by
a pollutant (sediment) and a TMDL
would be required.
Based on data contained in the 1998
section 303(d) lists, EPA believes that
many waterbodies that fail to attain
water quality standards, fail to do so
because a specific substance or material,
a pollutant, has been or is being
introduced into the waterbody. EPA
believes the vast majority of
impairments are caused by the
introduction of pollutants and does not
anticipate large numbers of waterbodies
to be identified as impaired only by
pollution. Of the top 15 categories of
impairment identified on the 1998
section 303(d) lists, 11 categories are
directly or indirectly associated with
pollutants: sediments, pathogens,
nutrients, metals, low dissolved oxygen,
temperature, pH, pesticides, mercury,
organics, and ammonia. Together, these
categories account for 77% of the total
impairments listed. In comparison,
three of the top 15 categories either are
not associated with pollutants or the
link to pollutants is generally unknown:
habitat alterations, impaired biologic
communities and flow alterations.
These categories account for only 12%
of the total number of listed
impairments.
While TMDLs are not required to be
established for waterbodies impaired by
pollution but not a pollutant, they
nonetheless remain waterbodies which
fail to attain or maintain water quality
standards. EPA believes that States,
Territories and authorized Tribes should
use approaches and institute actions
other than TMDLs to begin the task of
returning these waterbodies to full
attainment of water quality standards.
As explained later in the preamble, one
of the reasons for including these
waterbodies on Part 2 of the list is to
ensure that they remain in the public's
eye and are not simply ignored.
Another frequently asked question
concerns pollutants that are "natural."
Water quality standards often fail to
distinguish between pollutants that are
introduced into a waterbody as the
result of some human activity and those
that are present in a waterbody due to
natural processes such as weathering of
metals from geologic strata. Where a
natural pollutant occurs along with an
anthropogenic pollutant, they both must
be accounted for within the TMDL so
that the TMDL is established at a level
that will implement the water quality
standards. For example, cadmium
originating from the natural weathering
of a geologic outcrop, as well as
cadmium from a mine tailings pond,
must be accounted for in the wasteload
allocation of a TMDL to ensure that the
wasteload allocation is properly set to
achieve water quality standards. EPA
recognizes that there may be instances
where the introduction of natural
substances alone may cause the
waterbody to exceed the water quality
standards unless the standard contains
an exception for addressing such
situations. In those circumstances, EPA
encourages States, Territories, and
authorized Tribes to revise their water
quality standards to reflect and
recognize the presence and effect of
substances that occur naturally.
EPA does not believe that flow, or
lack of flow, is a pollutant as defined by
CWA Section 502(6). Some commenters
have urged EPA to revise the proposed
regulations to require TMDLs for all
forms of pollution, including
hydromodification, which reduce the
amount of water flowing through a river
or stream. They argue that since low
flow can lead to non-attainment of water
quality standards, e.g., use as a fishery,
waterbodies impacted by low flow
should be listed on Part 1 and have
TMDLs established for them. While EPA
believes that waterbodies which do not
attain and maintain water quality
standards solely because of low flow
must be identified on Part 2 of a State's
section 303(d) list, it does not believe
section 303(d)(l)(C) requires that States
must establish TMDLs for such waters.
This is because EPA interprets section
303(d)(l)(C) to require that TMDLs be
established for "pollutants" and does
not believe "low flow" is a pollutant.
Section 303(d)(l)(C) provides that States
shall establish TMDLs "for those
pollutants" which the Administrator
identifies as suitable for such
calculation, hi 1978, EPA said that all
pollutants under proper technical
permit conditions were suitable for
TMDL calculations. However, low flow
is not a pollutant. It is not one of the
items specifically mentioned in the list
of pollutants Congress included at
section 502(6) of the CWA. Nor does it
fit within the meaning of any of those
terms.
Instead, low flow is a condition of a
waterbody (i.e., a reduced volume of
water) that when man-made or man-
induced would be categorized under the
CWA as pollution, provided it altered
the physical, biological and radiological
integrity of the water. Many forms of
human activity, including the
introduction of pollutants, can cause
water pollution. Not all pollution-
causing activities, however, must be
analyzed and allocated in a TMDL.
Section 303(d) is a mechanism that
requires an accounting and allocation of
pollutants introduced into impaired
waters (whether from point or nonpoint
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43593
sources). If low flow in a river, even if
man-induced, exacerbates or amplifies
the impairing effect of a pollutant in
that river by increasing its
concentration, that factor is to be
accounted for and dealt with in the
TMDL by calculating and allocating the
total pollutant load in light of, among
other things, seasonal variations in flow.
However, where no pollutant is
identified as causing an exceedance of
water quality standards, EPA does not
believe the CWA requires a TMDL to be
established.
The Supreme Court's decision in
PUD. No 1 of Jefferson County et al. v.
Washington Dept. of Ecology et al., 511
U.S. 700 (1994), does not compel a
different result. In that case a city and
local utility district wanted to build a
dam on the Dosewallips river in
Washington State. The project would
divert water from the river to run the
dam's turbines and then return the
water to the river below the dam. To
protect salmon populations in the river,
the state imposed a minimum flow
requirement as part of its CWA section
401 certification of the project. The
Court determined that compliance with
section 303(c) water quality standards is
a proper function of a section 401
certificate. Accordingly, the Court
concluded that pursuant to section 401,
the state may require the dam project to
maintain minimum stream flow
necessary to protect the river's designed
use as salmon habitat.
The Supreme Court in Jefferson
County did not interpret section 303(d)
and did not hold that TMDLs had to be
established for flow-impacted waters.
The Court did reject petitioner's claim
• that the CWA is only concerned with
water "quality" and does not allow the
regulation of water "quantity." Like
EPA, it recognized that water quantity
may be closely related to water quality
and that reduced stream flow may
constitute "pollution" under the Act.
However, in holding that section 401
certification applied to dam projects as
a whole—including pollution-causing
water withdrawals—and not just
discharges of pollutants, the Court did
not decide that a section 303 (d) TMDL
must be established for low flow-
impaired waterbody. This is because
Jefferson County did not decide that low
flow was a pollutant. Under section
303(d) it is pollutants, not pollution, for
which TMDLs must be established.
However, EPA recognizes that there
will be cases where flow or lack thereof
will enhance the ability of a pollutant to
impair a waterbody. EPA has provided
for this eventuality by requiring that
States, Territories and authorized Tribes
consider seasonal variations, including
flow, when establishing TMDLs. (See
discussion at § 130.32(b)(9).)
Also, EPA declines at this time to .
define "chemical wastes" as that term
appears in the definition of "pollutant"
to exclude pesticides designated for
aquatic uses. EPA recognizes that the
requirements of section 303(d) and this
rule may lead to waterbodies being
listed due to the presence of pesticides
registered, under the Federal Insecticide,
Fungicide and Rodenticide Act (FIFRA)
because water quality standards for that
chemical are exceeded. EPA will \
continue to evaluate the interface .
between its regulatory responsibilities
under FIFRA and the CWA. '
Note: EPA erroneously listed "pollution,"
as a proposed new definition in the preamble
to the proposal. In fact, the definition of
pollution is included in the current rules and
has been revised by simply adding a citation
of the CWA section defining that term.
b. Revised Definition of Loading
(§ 130.2(e)) I
What did EPA propose? EPA
proposed to make a grammatical
revision to the definition of "load or :
loading" by using the words "loading of
pollutant" to clarify that loading is the
introduction of a pollutant whether .
man-made or naturally-occurring rather
than as a parenthetical explanation of
what is man-caused loading. EPA did
not consider this change substantive
and did not discuss it in the preamble
to the proposed rule.
What comments did EPA receive?
Some commenters expressed concern
about perceived inconsistencies
between (1) the proposed definition of
loading and the expression of a TMDL
at proposed § 130.34 and (2) between
this definition and the proposed
definition of a TMDL at § 130.2(h)(2).
Other commenters requested revisions
to clarify that the load describes when
the water quality standard is attained,
that the definition does not apply to ;
nonpoint sources, or that ambient
temperature increases are not a load.
Another commenter suggested that EPA
include the definition of load capacity
included in the current requirements
which EPA did not include in the
proposal. :
What is EPA promulgating today?
EPA has carefully considered these
comments but is promulgating this
definition as proposed. EPA does not
believe that there are inconsistencies
between the definition and the manner
in which TMDLs may be expressed
pursuant to § 130.33. EPA does not
interpret the final rule to require that
TMDLs be always expressed as the load
or load reduction of the pollutant
causing the impairment. The final rule
at § 130.33(b)(4) preserves the flexibility
to express the TMDL as a quantitative
expression of a modification to a
characteristic of the waterbody that
results in a certain load or load
reduction. Similarly, EPA does not
believe there are inconsistencies
between the proposed definition of load
as a substance or matter introduced in
a waterbody and the proposed
definition of a TMDL at § 130.2(h)(2)
which would have required
identification and quantification of the
load "that may be present" in the
waterbody. TMDLs are generally
established using the principle of mass
balance, which is the core principle of
water quality modeling. The 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. The same principle applies
for thermal energy.
EPA sees no inconsistency between
describing loading as an introduction of
a substance or matter into a waterbody
and requiring identification of the
pollutant load present within the
waterbody for title purpose of
establishing TMDLs. The
characterization of a mass of material as
a load into, or a load within, a
waterbody will depend in some
instances on how the State, Territory, or
authorized Tribe decides to frame the
TMDL.
EPA is not revising the definition of
load to suggest that the load describes
when the water quality standard is
attained. The definition of "load or
loading" merely refers to the quantity of
matter or thermal energy introduced
into a waterbody; it is not intended to
include an interpretation of the
environmental consequence of that load.
It is the calculation of the TMDL and the
resulting allocations which establish the
loading targets necessary to achieve
water quality standards.
EPA is not revising the definition of
load or loading to exclude nonpoint
sources. As noted above, EPA believes
that section 303(d) applies to all sources
including nonpoint sources, and that all
sources are considered when allocations
needed to attain or maintain water
quality standards are established. EPA
has consistently required the inclusion
of pollutants from nonpoint sources in
estimates of loading. By defining "load
allocations" which pertain to nonpoint
sources as "best estimate of loadings,"
the language of the current regulations
clearly demonstrates that EPA intended
for pollutants from nonpoint sources to
be included in the definition of load and
loading. Therefore, EPA believes it is
simply a continuation of its policy to
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consider the definition of loads to apply
to nonpoint sources.
Similarly, EPA is not revising the
definition of load or loading to exclude
increases in temperature due to solar
input. EPA does not believe that the
source of a load should disqualify it
from being a load. What needs to be
done to mitigate heat load from solar
input will be addressed by a State,
Territory, or authorized Tribe when it
establishes the TMDL.
Finally, EPA is not including the
definition of load capacity contained in
the existing regulations. EPA proposed
to delete the definition of " load
capacity" because retaining a separate
definition of load capacity would only
add confusion as to whether a TMDL
consisted merely of the load capacity or
the ten elements of the TMDL. The
loading capacity is found as element
three in the eleven elements of the
TMDL. EPA continues to believe that
retaining a separate definition of load
capacity would only add confusion as to
whether a TMDL consisted merely of
the load capacity or the ten elements of
the TMDL promulgated in today's
regulation.
c, Revised Definition of Load Allocation
(§ 130.2(f))
What did EPA propose? EPA
proposed to simplify the existing
definition of "load allocation" by
defining it as simply the part of the total
load in a TMDL that is allocated to
nonpoint sources, including
atmospheric deposition, or natural
background sources, as opposed to
wasteload allocation to point sources. In
proposing this change, EPA moved the
substantive requirement of how a load
allocation is determined from the
definition of load allocation to the
description of a TMDL in proposed
§ 130.33(b).
What comments did EPA receive?
EPA received a large number of
comments with regard to its definition
of load allocations, covering a range of
issues. Again, many commenters
asserted that EPA did not have the
statutory authority to address pollutant
loadings from nonpoint sources because
Congress intended the TMDL provisions
of the CWA to apply only to
waterbodies impaired by point sources
or waterbodies where control of point
sources alone would result in
attainment of water quality standards.
In contrast, many commenters
supported the inclusion of pollutant
loadings from nonpoint sources in the
TMDL program. A frequently-cited
reason for the need for such an
approach \vas the commenters' belief
that existing nonpoint source programs
had so far failed to adequately address
nonpoint source pollution. Numerous
commenters urged EPA to require
quantitative estimates of pollutant
loadings from nonpoint sources, while
acknowledging that doing so would be
more difficult than for point sources.
Some commenters suggested that EPA
retain the existing definition of load
allocation, along with the definitions of
wasteload allocation, loading capacity,
and TMDL. These commenters believed
that the current definitions provide
more clarity as to how loadings are
defined and allocated than did the
proposed definitions.
Other commenters suggested that the
definition of load allocation should not
include specific reference to
atmospheric deposition or natural
background. These commenters
contended that the technical
uncertainties in linking atmospheric
deposition sources to water quality and
the lack of Clean Air Act authority to
control atmospheric loadings would
make it difficult to calculate and
implement load allocations.
Furthermore, the commenters
contended that natural background
cannot be reduced and therefore should
not be part of the load allocation.
Several comments called for
including point sources not covered by
the NPDES permit program (such as
certain types of storm water sources)
under the load allocation portion of the
TMDL, rather than the wasteload
allocation portion.
What is EPA promulgating today? In
response to comments, EPA is clarifying
that pollutants from storm water runoff
not regulated under NPDES must be
accounted for in the load allocation.
EPA is also clarifying that pollutants
from other sources, such as
groundwater, air deposition or
background pollutants from upstream
sources must be accounted for in the
load allocation.
For the reasons discussed earlier in
today's preamble, EPA continues to
believe that the CWA requires TMDLs to
consider loadings from nonpoint
sources. For these reasons, EPA rejects
the suggestions that EPA delete the
definition of load allocation, and
consider the TMDL to consist only of
wasteload allocations for point sources
regulated by NPDES permits. EPA also
continues to believe that load
allocations must reflect contributions
from atmospheric deposition. Where
these loads exist, they contribute to the
overall load of a pollutant within a
waterbody and must be accounted for in
the TMDL. Otherwise, the sum of load
and wasteload allocations will exceed
the amount necessary for the waterbody
to attain water quality standards. For
these reason and the reasons expressed
in the Response to Comment Document,
EPA believes that load allocations must
include pollutant loads from all sources
not already reflected in the wasteload
allocations.
EPA believes that, at a minimum, it is
possible to determine the total of
aggregated loadings from air deposition
to a particular waterbody. As a result,
EPA expects that States, Territories and
authorized Tribes will initially develop
load allocations based on nationwide
reductions expected as a result of
programs developed under the Clean
Air Act, and any State-required
reductions in emission from local
sources. As techniques improve to
quantify the relative contributions of
different sources, EPA expects that
States, Territories and authorized Tribes
will more specifically identify air
sources and the expected reduction
from these sources.
EPA does not consider a loading to
surface water from groundwater to
necessarily be part of the background
loading. The background loading in a
TMDL is generally either the loading
from upstream of the waterbody for
which the TMDL is being established, or
else is a loading to the waterbody that
originates from natural, not
anthropogenic, sources. Pollutants
entering a waterbody from groundwater
can originate from either natural or
anthropogenic sources. For example, the
chlorides in groundwater that seep into
a waterbody can originate from the
geological rock formations or from brine
seeping from oil production wells. In
either case, the load allocation will
address these loadings as part of the
load allocation.
EPA recognizes that by moving some
of the details from the current definition
of load allocation into the TMDL
regulatory requirements of § 130.32, it
has shortened the definition of load
allocation in the current rule. EPA
believes this is appropriate because the
new § 130.32 provides sufficient
additional information about the nature
of a load allocation (and a wasteload
allocation). EPA believes it is better to
include this information in one place,
and has selected to do so in § 130.32.
d. Revised Definition of Wasteload
Allocation (§ 130.2(g))
What did EPA propose? EPA
proposed to simplify the existing
definition of "wasteload allocation" by
defining it as simply the part of the total
load in a TMDL that is allocated to a !
point source, hi proposing this change,
EPA moved the substantive requirement
of how a wasteload allocation is
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43595
determined into the description of a
TMDL in proposed § 130.33(b).
What comments did EPA receive?
Some commenters said that wasteload
allocations should include only loads
from point sources covered by the
NPDES permit program, but not include
loads from point sources not covered by
NPDES, such as some types of storm
water. Other commenters indicated that
all point sources should be included in
the wasteload allocation, regardless of
their status with regard to NPDES.
A significant number of commenters
said EPA should retain language in the
existing definition which states that
wasteload allocations are a form of
effluent limits. One commenter noted
that wasteload allocations should be
defined as allocated to individual,
classes or groups of sources.
What is EPA promulgating today?
Today's rule clarifies that only point
sources subject to an NPDES permit
need to be included in the wasteload
allocation. All other sources of a
pollutant, be they point source or
nonpoint sources, are included in the
load allocation. In 1985, when EPA
published the definition contained in
the existing regulations, all point source
discharges were subject to an NPDES
permit. The Water Quality Act of 1987,
however, provided that not all storm
water discharges from point sources
were subject to NPDES permits. As a
result, today some storm water
discharges through point sources are not
subject to NPDES requirements.
Generally, these are storm water
discharges that do not fall into the
eleven categories of storm water
associated with industrial activities or
that are below the threshold of the storm
water phase II regulations. To continue
this approach, EPA is clarifying that
wasteload allocations apply only to
point source discharges which are or
can be subject to an NPDES permit.
Also, EPA is clarifying that for
waterbodies impaired by both point and
nonpoint sources, anticipated load
reductions from nonpoint sources may
be taken into account in calculating the
wasteload allocation. EPA received a
number of comments stating that in
such cases implementation of the TMDL
may proceed on different schedules for
point and nonpoint sources and
supporting the recognition in the final
rule of a such a phased approach to
implementation of TMDLs (i.e. "phased
TMDLs"). EPA interprets the term
"phased TMDLs" to describe TMDLs
where the wasteload allocations are
based on expected reductions from
sources other than those regulated by
NPDES permits. A phased TMDL
includes wasteload allocations that are
based on those expected load
allocations and includes a monitoring'
plan to verify the load reductions. See
Guidance for Water Quality-Based
Decisions: The TMDL process, EPA 440/
4-91/001. EPA considers that the
combination of requirements for
reasonable assurance and the ',
implementation plan in today's rule
provide the structure for phased
TMDLs. The definition of reasonable
assurance provides the basis by which
a State, Territory, or authorized Tribe
can demonstrate that the load '
allocations in the TMDL are likely to
occur. The implementation plan also
requires that the TMDL establish a
schedule or timetable which includes a
monitoring or modeling plan to measure
the effectiveness of point and nonpoint
source control measures. Such a plan
would include data collection, the
assessment for water quality standards
attainment, and, if needed, additional
predictive modeling.
EPA recognizes it is difficult to ensure
with precision that implementing
nonpoint source controls will achieve
expected load reductions. For example,
management measures for nonpoint
sources may not perform according to;
expectations to achieve expected
pollutant load reductions despite best
efforts. EPA believes that an important
part of the phased approach, as
discussed above, is the recognition that
ultimate success in achieving water
quality standards for nonpoint sources
may depend upon an iterative approach.
States, Territories and authorized Tribes
may determine to what extent nonpoint
source management measures are
meeting the performance expectations
on which they are based and implement
improved management measures,
designs or operations and maintenance
procedures. Today's rule at
§ 130.32(c)(2)(v) provides for interim,
measurable milestones for determining
whether management measures or other
action controls are being implemented,
and a process for implementing stronger
and more effective management :
measures if necessary. EPA recognizes;
that this type of approach might involve
very long time-frames before water
quality standards are eventually
realized. EPA also expects that
information on actual performance of
management measures may lead to
questions concerning the
appropriateness of the water quality
standards and that, in some cases,
States, Territories and authorized Tribes
may initiate use attainability analyses to
determine the appropriate use and,
possibly, revise the use on the basis of
the information gathered during
implementation phase of the TMDL.
EPA is deleting the sentence in the
current definition that defines a
wasteload allocation as a type of water
quality based effluent limitation. EPA
acknowledges that water quality-based
effluent limitations that derive from a
TMDL are based on the TMDL
wasteload allocation, but does not
believe that wasteload allocations serve
as water quality based effluent limits.
EPA explained this in its 1991
"Technical Support Guidance for Water
Quality-based Toxics Control."
Wasteload allocations reflect the mass
load of a pollutant that allows a
waterbody to attain water quality
standards based on the averaging period
of the water quality standard. For
example, a wasteload allocation based
on attaining the 4-day average water
quality criterion for copper reflects a 4-
day mass load. Effluent limitations
reflect periods established by NPDES
regulations: generally weekly and
monthly limits for publicly owned
treatment works and daily and monthly
limits for other facilities (see
§ 122.45(d)) and therefore are not the
strict equivalent of a wasteload
allocation.
e. Revised Definition of TMDL
(S 130.2(h))
What did EPA propose? EPA
proposed to define a "TMDL" as a
written plan and analysis established to
ensure that an impaired waterbody
attains and maintains water quality
standards in the event of reasonably
foreseeable increases in pollutant loads.
Under the proposed revisions, a TMDL
would also have had to include ten
basic elements, which were described in
§ 130.33(b) and are listed in section
I.A.3.b. of this preamble. EPA's proposal
was meant to amplify the existing
regulatory definition that a TMDL is the
sum of load and wasteload allocations
and a margin of safety, taking into
consideration seasonal variations.
What comments did EPA receive?
EPA received numerous comments
regarding its proposed changes to the
definition of TMDLs. Specific comments
regarding the ten proposed elements of
a TMDL are addressed later in the
discussion of § 130.32(b) of today's rule.
Some commenters expressed concerns
that the proposed definition expanded
the concept of a TMDL beyond that
mandated by section 303(d). Additional
commenters suggested that section
303(d) requires TMDLs only for point
sources, and suggested that the TMDL
definition reflect this. Others
interpreted the proposed definition as
going beyond the statutory concept of a
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TMDL as simply a calculation of the
total load necessary to attain and
maintain water quality standards.
Further comments suggested that the
proposed definition was too vague. All
these commenters recommended that
the existing definition be retained.
Some commenters supported the
proposed definition and agreed that it
was consistent with section 303(d).
These commenters suggested that EPA
clarify how the ten elements of the
TMDL achieve the statutory concept,
Le., quantify the sum of load and
wasteload allocations with a margin of
safety and take into consideration
seasonal variations.
Further comments expressed concern
that the proposed definition required a
separate TMDL analysis for each
pollutant causing an impairment and for
each waterbody. Several commenters
believed EPA has no authority to require
TMDLs to address growth and
recommended that references to growth
be stricken from the definition.
What is EPA promulgating today?
Today's rule modifies the proposal in a
number of xvays. EPA is adding the
word "quantitative" to the final
definition at § 130.2(f) to clarify that the
TMDL must contain a quantified plan
for allocating pollutant loads to attain
and maintain water quality standards.
EPA is also clarifying that a TMDL must
assure that water quality standards are
attained and maintained throughout the
waterbody and in all seasons of the year.
EPA believes this revision clarifies that
the TMDL quantifies how water quality
standards will be attained and
maintained. As proposed and
promulgated, the total effect of all the
elements of the TMDL require a
quantification of the sum of load and
wasteload allocations, along with a
margin of safety and consideration of
seasonal variations, and EPA believes
that the definition in the final rule is
consistent with section 303 (d). Also,
EPA has reorganized the provisions of
two of the elements and split one, such
that there are now eleven elements of a
TMDL; this change is discussed in the
preamble discussion of § 130.32(b).
EPA declines to use the existing
regulatory definition of TMDL as
suggested by many comments for
several reasons. Based on its experience
In reviewing and approving TMDLs,
EPA continues to believe that the TMDL
elements in the final rule definition
specify in appropriate detail the
information EPA considers necessary to
quantify loadings and determine
whether the loadings, once
implemented, would result in
attainment of water quality standards in
the waterbody. They will also provide
EPA with an element missing from the
current regulations, i.e., assurance that
the TMDL will in fact be implemented.
EPA believes that this information will
allow the Agency to make timely and
appropriate decisions on TMDLs
submitted for review. It will also
provide certainty to States, Territories
and authorized Tribes on what an
approvable TMDL is. Furthermore, as
previously discussed in today's
preamble, section 303(d) applies to both
point sources and nonpoint sources.
EPA is deleting the reference to
reasonable foreseeable increases in
pollutant loads from the proposed
introductory paragraph in the
definition, because these increases are
addressed in the element of the TMDL
that pertains to increases in pollutant
loading. EPA addresses other comments
and concerns about how TMDLs
consider increases in pollutant loads in
the Response to Comments document
and in today's preamble discussion
about § 130.32(b).
Finally, in the promulgated
definition, EPA is clarifying that it
considers a TMDL to apply to one
pollutant in a waterbody. However, this
does not mean that EPA requires a
separate data collection, data analysis,
or report for each TMDL. Instead, EPA
encourages States, Territories, and
authorized Tribes to establish TMDLs
on a coordinated basis for a group of
waterbodies within a watershed, and
that a single analysis can be conducted
for several pollutants, instead of for only
a single pollutant. EPA does not
construe the new definition of
waterbody at § 130.2(q) to limit the
ability of States, Territories and
authorized Tribes to establish TMDLs
on a watershed basis. In fact, EPA
encourages coordinating the
establishment of TMDLs on a watershed
basis. Also, EPA did not intend to
require that States, Territories, and
authorized Tribes conduct a separate
TMDL analysis for each pollutant in a
waterbody or watershed. EPA wants to
provide States, Territories and
authorized Tribes the flexibility to
develop and focus their TMDLs as
appropriate, i.e., to address single or
multiple impairments in a waterbody, in
part of a waterbody, or in multiple
waterbodies.
f. New Definition of TMDTL (§ 130.2(i))
EPA is promulgating a definition of
the term "total maximum daily thermal
load" or TMDTL to help promote clarity
with respect to the requirements which
apply to TMDTLs. A TMDTL is a TMDL
for a waterbody impaired by thermal
discharge(s). In general, the same
requirements for an approvable TMDL
also apply to TMDTLs, since they are a
subset of TMDLs. However, waterbodies
with a thermal discharge will be
evaluated for listing based on whether
the waterbody is supporting a balanced,
indigenous population of shellfish, fish,
and wildlife. If such waters are listed,
they will receive a TMDTL which must
be calculated to assure protection and
propagation of such a population.
g. New Definition of Impaired
Waterbody (§ 130.2(j))
What did EPA propose? EPA
proposed a definition of "impaired
waterbody" to define precisely
waterbodies which should be
considered as not attaining water
quality standards and proposed to :
include within that definition
waterbodies impaired by unknown:
causes.
What comments did EPA receive?
Many commenters objected to that part
of the definition which required them to
account for waterbodies impaired by
unknown causes. They believed that the
concept was too vague and too broad.
They were concerned that some would
argue that certain waterbodies should be
deemed impaired when there was no
evidence of impairment.
What is EPA promulgating today? hi
response to the comments, EPA is
making a change to the proposed
definition to clarify its intent regarding
waterbodies impaired by unknown
causes. EPA does not intend for States,
Territories, and authorized Tribes to list
waterbodies in the absence of any
information demonstrating an
impairment. Rather, by proposing to
require listing of impaired waters even
if the pollutant causing the impairment
is unknown, EPA wanted to ensure that
lack of information regarding the
specific pollutant would not be a reason
for not listing an impaired water. After
consideration of the comments received,
EPA has decided to modify the
proposed provision. In situations where
the specific pollutant is unknown, but
there is information showing
impakment, such information tends to
consist of biological information (e.g.,
information showing a water is not
supporting a designated or existing
aquatic life habitat use). Therefore, EPA
is replacing the reference to unknown
causes of impairments in the proposal
with a provision requiring that
waterbodies be considered impaired
(and thus listed) when biological
information indicates that they do not
attain and maintain water quality
standards. Prior to developing a TMDL
for such waters, the State, Territory, or
authorized Tribe would need to identify
the particular pollutant causing the
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43597
impairment. EPA is aware that in past
lists, some States, Territories, and
authorized Tribes have identified broad
categories of pollutants, such as metals
or nutrients, as the cause of
impairments. Under today's regulation,
the only situation in which the State
may identify the pollutant as unknown
until such time that the TMDL is
developed is for waters where the only
information demonstrating impairment
is biological information. EPA is
developing guidance to assist States,
Territories, and authorized Tribes to
identify the causes of a biological
impairment. See draft "Stressor
Identification Guidance", April 28,
2000. Otherwise, EPA expects that
States will be able to identify the
particular metal, nutrient, or other
pollutant causing the impairment.
EPA is also modifying the definition
of impaired waterbody to include waters
that fail to attain and maintain water
quality standards. EPA is using the
phrase "attain and maintain" to mean
that the waterbody must consistently
continue to meet water quality
standards throughout the waterbody in
order to be considered not impaired.
Any failure to meet an applicable
standard would mean that the
waterbody should be listed and a TMDL
should be developed if it is listed on
Part 1. The use of the phrase "attain and
maintain" can be distinguished from the
proposed requirement to list threatened
waters, which is not included in today's
action. Threatened waters are those that
are meeting standards, but exhibit a
declining trend in water quality such
that they would likely exceed standards
in the future. Such waters are not
required to be included on the section
303(d) list though States can do so. By
waters that do not attain and maintain
standards, EPA intends to ensure that
States, Territories, and authorized
Tribes list waters that may occasionally
meet an applicable standard, but fail to
consistently do so. As in the proposal,
the Agency is including in the
promulgated definition language from
section 303(d)(l)(B) which establishes
the standard for considering a
waterbody impaired by thermal
discharges, i.e., the waterbody does not
have or maintain a balanced indigenous
population of shellfish, fish and
wildlife. As discussed in the preamble
to the proposed rule (64 FR 46021—
46022, August 23, 1999) and later in
today's preamble, EPA interprets section
303(d) to'require TMDLs only for
waterbodies impaired by pollutants.
Finally, EPA believes that the term
impaired waterbodies is a plain
language definition of the pre-existing
regulatory term water quality limited
segment which derived from the CWA.
EPA interprets section 303(d) as
pertaining to parts of or complete
waterbodies that do not attain and
maintain water quality standards. For
these waterbodies technology-based
controls are insufficient to attain water
quality standards and water quality-
based controls are required, i.e., they are
water-quality limited. Also in today's
rule, EPA defines waterbody to include
one or multiple segments of rivers,
lakes, estuaries, etc. Thus, EPA believes
that the term "impaired waterbodies" is
analogous to the term water-quality
limited segment and more '
understandable to the general public.
h. New Definition of Management
Measures (§ 130.2 (m))
What did EPA propose? EPA did not
propose a definition for "management
measures." Instead, the proposed
regulations used the term Best
Management Practices (BMPs), a
definition of which was carried over in
the proposal from the current
requirements.
What comments did EPA receive?
Commenters pointed out that the
definition of BMPs in the current
regulations refers only to nonpoint
sources, and they suggested that it
should be revised to refer to all sources
to which BMPs could be applied. These
would include some point sources such
as certain storm water discharges.
Commenters also were concerned that
the reference to BMPs as being selected
by an agency would limit the
applicability of certain BMPs in the
context of establishing TMDLs.
What is EPA promulgating today?
EPA agrees with the commenters that it
intended the term BMPs in the proposal
to include the management of sources
other than nonpoint sources. However,
rather than modify the pre-existing
definition of BMP to accomplish that
result, which could have unforeseen
impacts on other Agency programs
which use this term, EPA is including
a definition of "management measures"
in today's regulation. This term and •
definition retain those concepts in the
current definition of BMPs which are
applicable to TMDLs but eliminate the
references to nonpoint sources and
selection by an agency. EPAbelieves the
definition of "management measure" is
a logical outgrowth of the proposed
definition of "BMP" and a reasonable
response to the above-referenced
comments.
i. New Definition of Thermal Discharge
(§ 130.2(o))
What did EPA propose? EPA
proposed adding the definition of
"thermal discharge" to clarify the
meaning of the term for the purpose of
identifying impaired waterbodies and
establishing Total Maximum Daily
Thermal Loads (TMDTLs) pursuant to
section 303(d). EPA proposed to define
the term as "the discharge of heat from
a point source." EPA believed that the
definition was important since
waterbodies impaired by thermal
discharge are subject to section 303(d)
listing and TMDTL requirements, and
furthermore, the test for measuring
successful implementation is different
than for other pollutants.
What comments did EPA receive?
EPA received several comments on this
definition. Some comments requested
clarification of whether EPA meant
discharge of heat from all point sources.
Other comments suggested that the
definition be revised to include
nonpoint sources of heat.
What is EPA promulgating today?
EPA is promulgating the proposed
definition with a minor change to clarify
that it applies to only those point
sources "that are required to have
NPDES permits." EPA provided detailed
explanations in the preamble to the
proposal regarding its interpretation of
the statute as it pertains to inclusion of
thermal discharges in the TMDL
program. (64 FR 46017 August 23,
1999). As discussed in the preamble to
the proposed rule, EPA believes the
CWA reference to "balanced,
indigenous population of shellfish, fish
and wildlife" refers only to those
discharges subject to sections 301 and
306, which relate to point sources
subject to NPDES permits. Therefore
EPA is not expanding the definition of
thermal discharge to include nonpoint
sources. EPA acknowledges that
nonpoint sources and other sources not
subject to NPDES permits can introduce
heat into a waterbody. However, for
reasons discussed in the preamble to the
proposed rule, EPA believes that the
CWA requires that TMDLs rather than
TMDTLs be established for these
waterbodies if they are impaired solely
by these sources and that they must
attain water quality standards, and not
just a balanced, indigenous population
of shellfish, fish and wildlife.
j. New Definition of Reasonable
Assurance (§ 130.2(p))
What did EPA propose? EPA
proposed to define "reasonable
assurance" as a demonstration that
wasteload allocations and load
allocations in a TMDL would be
implemented. EPA proposed that each
TMDL provide reasonable assurance
that allocations contained in a TMDL
would, in fact, be implemented to attain
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and maintain water quality standards in
the waterbody. EPA incorporated the
term in proposed § 130.33(b)(10)(iii)
dealing with TMDL implementation
plans to emphasize that implementation
of the allocations in TMDLs is critical to
the ultimate attainment of standards in
impaired waterbodies across the
country.
What comments did EPA receive?
EPA received a number of comments
generally opposing the concept of
reasonable assurance. Some commenters
believe that EPA does not have the
authority to require States, Territories or
authorized Tribes to demonstrate
reasonable assurance, and that the
definition of reasonable assurance was
too prescriptive. EPA also received
comments generally in support of the
reasonable assurance provision, noting
that it is important to have assurance
that implementation will occur and that
water quality standards will be met.
EPA received many comments on
specific aspects of the proposed
definition of reasonable assurance. A
major theme was that the proposed
definition did not recognize that State,
Territorial and authorized Tribal
nonpolnt source programs are largely
voluntary. Furthermore, many
commenters noted that States may have
limited regulatory authority to address
nonpoint sources, and perceived the
definition of reasonable assurance as
forcing States to adopt regulatory
controls on nonpoint sources. Many
commenters urged that voluntary,
Incentive-based programs should be
acceptable as reasonable assurance.
Conversely, a number of commenters
believed that regulatory controls for
nonpoint sources were necessary to
provide reasonable assurance, or that, in
order to provide reasonable assurance,
Implementation plans needed to be
enforceable. A few commenters
suggested that States, Territories and
authorized Tribes need to have
regulatory authority to control
pollutants from nonpoint sources in the
ovent that voluntary programs do not
succeed.
Numerous commenters expressed
concern about the funding component
of reasonable assurance. A frequently-
cited concern was that States would not
be able to guarantee full funding to
implement the TMDL at the time a
TMDL was established. Some
commenters also believed that the
funding provision was not well-defined,
and that, when reviewing TMDLs, EPA
would not be able to evaluate whether
the State had demonstrated "adequate
funding." Others noted that States,
Territories and authorized Tribes lack
adequate funding and staff to establish
and implement TMDLs and that EPA
needs to ensure adequate funding
through the section and other programs.
EPA received some comments
regarding the ability of existing State
and Federal authorities and programs to
satisfy the reasonable assurance
provision. Some commenters suggested
that approval of a State, Territorial or
authorized Tribal nonpoint source
program or nonpoint source
management plan should by itself,
constitute reasonable assurance. Other
commenters disagreed and said that
reference to existing programs by itself
is not adequate, and that control actions
assuring TMDL implementation must be
specific to the source and the
waterbody. Some commenters urged
flexibility in allowing for a variety of
implementation mechanisms to satisfy
reasonable assurance such as other
Federal and State forest and land
management programs. Several
comments pointed out that it would be
difficult to provide reasonable
assurance, given the challenge of
aligning multiple State and Federal
agencies, and multiple watershed
groups.
Some commenters suggested that EPA
needs to better define what it means that
procedures and mechanisms relating to
nonpoint sources of a pollutant must be
implemented expeditiously, or specify a
particular timeframe for their
implementation. A few commenters
believed that EPA was not in a position
to evaluate what constitutes
expeditious, and that the term should be
eliminated.
A few commenters questioned EPA's
authority to provide reasonable
assurance when it establishes a TMDL
for nonpoint sources. Some also
questioned EPA's authority to condition
section 319 grant funds as a way of
providing reasonable assurance.
Conversely, a few commenters
supported EPA's full use of its
authorities to implement TMDLs, or to
condition section 319 funds, as
necessary.
What is EPA promulgating today?
Today's rule contains a revised
definition of reasonable assurance.
Reasonable assurance continues to mean
a demonstration that TMDLs will be
implemented through regulatory or
voluntary actions, by Federal, State or
local governments, authorized Tribes or
individuals.
Reasonable assurance is a
demonstration that a TMDL's
implementation plan will indeed be
implemented. (See § 130.32(c).) EPA
believes that it has the authority to
require the demonstration of reasonable
assurance as part of the implementation
plan. Section 303(d) requires that a
TMDL be established at a level
necessary to implement water quality
standards and requires EPA to review
and either approve or disapprove the
TMDL, CWA section 501(a) also
authorizes EPA to adopt regulations as
necessary to implement the Act. To
approve a TMDL, EPA believes it is
necessary to determine whether a TMDL
is in fact established at a level necessary
to attain water quality standards. For
EPA to determine that the TMDL will
implement water quality standards,
there must be a demonstration in the
TMDL of reasonable assurance that the
TMDL's load and wasteload allocations
will be implemented. Otherwise, the
allocations presented in a TMDL lack a
necessary link to anticipated attainment
of water quality standards.
Reasonable Assurance for Point Sources
for Which an NPDES Permit is Required
Reasonable assurance for point
sources for which an NPDES permit is
required means that States, Territories
and authorized Tribes must identify
procedures that will ensure that permits
will be modified, issued or reissued as
expeditiously as practicable to
incorporate effluent limits consistent
with the wasteload allocations. For
these demonstrations of reasonable
assurance, the phrase "as expeditiously
as practicable" means in general that the
permitting authority, either an
authorized State, Territory, or Tribe, or
EPA, will issue the permit as follows.
For facilities receiving a permit for the
first time, "as expeditiously as
practicable" means that the permitting
authority must issue the permit that
implements the wasteload allocation
before the facility begins to discharge.
Under EPA's current NPDES rules, a
facility may only discharge pollutants
from point sources into waters of the
United States as authorized by an
NPDES permit (§ 122.1). New facilities
must receive their permit before they
can lawfully discharge pollutants. Also,
current NPDES regulations require that
NPDES effluent limitations be
consistent with the applicable
wasteload allocation in an approved
TMDL (§ 122.44(d)(l)(vii)(B)). Therefore,
EPA believes that its interpretation of
"as expeditiously as practicable" for
facilities receiving their first permit is
consistent with the current practice of
the NPDES permit program. For
facilities currently permitted, "as
expeditiously as practicable" means that
the permitting authority will reissue the
permit as soon as it can after the permit
expires, taking into account factors such
as available permitting resources, staff
and budget constraints, other competing
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43599
priorities, and watershed efficiencies.
Alternatively, the permitting authority,
may choose to modify the permit prior
to expiration in accordance with the
permitting authority's modification
requirements.
The phrase "as expeditiously as
practicable" adds a time element to the
word "expeditiously", which was used
in the proposal. The dictionary
definition of "expeditiously" is fast or
rapidly. EPA received comments about
"how fast is fast," and whether any
factor governed how quickly EPA
expected a permitting authority to issue
or reissue NPDES permits. EPA
intended that permitting authorities
would not delay their normal issuance
or reissuance of permits and would
modify the permits when they
contained a reopener provision allowing
modification of the permit conditions
on the basis of new information. EPA is
using the phrase "as expeditiously as
practicable" in the final rule to clarify
further what EPA means by the word
"expeditiously" used in the proposal.
This clarification should allow permit
authorities to schedule permit issuance
and reissuance actions consistent with
the relevant factors discussed above.
Reasonable Assurance for Sources for
Which an NPDES Permit is Not
Required
For all other sources, including
nonpoint sources, storm water sources
for which an NPDES permit is not
required, atmospheric deposition,
groundwater and background sources,
reasonable assurance means that actions
implementing the load allocations meet
a four-part test. The control actions or
management measures must be (1)
specific to the pollutant and waterbody
for which the TMDL is being
established, (2) implemented as
expeditiously as practicable, (3)
accomplished through reliable delivery
mechanisms, and (4) supported by
adequate funding. For these sources,
each TMDL must meet each one of these
tests prior to EPA approval.
(1) Specific to the pollutant and
waterbody. The first part of the four part
test for reasonable assurance is that the
management measure or control be
specific to the pollutant and waterbody.
By this, EPA means that the State,
Territory, or authorized Tribe knows of,
and can point to, information showing
that the management measure relied
upon to achieve the reduction in the
loading can reduce that pollutant. By
"specific," EPA does not intend that
States, Territories or authorized Tribes
collect new or additional site-specific
information, but rather that they provide
EPA existing data that relates to the
specific waterbody and pollutant. For
example, a State may rely on a program
that installs buffer strips to demonstrate
reasonable assurance. In this example,
the State would point to National
Resource Conservation Service
information showing that buffer strips
are effective in mitigating erosion arid
thus can. reduce loadings of the spedific
pollutant, i.e., sediment. Also, the State
would need to show which waterbodies
within the watershed would receive
buffer strips and explain the
characteristic of these buffer strips. In
this way, the State may fulfill the
requirements of this part of the four part
test. For atmospheric deposition, where
the controls will result from Clean Air
Act regulations, reference to current or
anticipated Clean Air Act regulations
should explain how those regulations
relate to the specific pollutant of
concern.
(2) As expeditiously as practicable.
EPA intended that States, Territories,
and authorized Tribes would implement
management measures as quickly as
they reasonably could in light of other
water quality needs. For the reasons
discussed above, EPA is using the
phrase "as expeditiously as practicable"
in the final rule to clarify the word ',
"expeditiously" as used in the proposal.
EPA expects that States, Territories, and
authorized Tribes will make nonpoint
source controls implementing a TMDL
for which there are no point sources
subject to NPDES permits a high priority
for nonpoint source program funding.
Scheduling of nonpoint source controls
is also discussed in section II.P. of this
preamble. For atmospheric deposition,
adoption of Clean Air Act regulations
and implementation of those regulations
pursuant to the provisions of the Clean
Air Act would satisfy the reasonable
assurance requirement that :
implementation will occur as
expeditiously as practicable. :
(3) Reliable delivery mechanisms.
EPA did not include the concept of
"reliable delivery mechanism" in the
proposed definition of reasonable
assurance. EPA did discuss this concept
in the preamble discussion of the
definition. ( 64 FR 46033, August 23,
1999). Reliable delivery mechanism
means the programmatic and
administrative means by which the
management measures and control
actions will be implemented and
monitored. Several comments expressed
concern that the preamble discussion
was not reflected in the rule language,
and suggested that this preamble phrase
should be included in the definition,
EPA was persuaded by the comments
that it should do this.
EPA is also adding the word
"effective" to modify "reliable delivery
mechanism." EPA believes that this
concept is a logical outgrowth of the
preamble to the proposed rule. There,
EPA discussed that voluntary and
incentive-based programs may be used
to demonstrate reasonable assurance. It
goes without saying that these programs
must be "effective" in order to provide
reasonable assurance. Nevertheless, to
avoid confusion, EPA decided to be
clear and add the word "effective" to
the final rule.
Some existing nonpoint source related
programs may also be reliable and
effective delivery mechanisms specific
to the waterbody and pollutant for
purposes of providing reasonable
assurance. Programs, procedures or
authorities including State, Territorial
or authorized Tribal programs approved
under section 319 of the CWA or
existing conservation or water quality
protection programs administered by
the United States Department of
Agriculture which have demonstrated
success in delivering water quality
improvements in the past may be
reliable delivery mechanisms for the
purpose of § 130.2(p). State, Territories
and authorized Tribes will need to
explain how these programs will be
implemented in the specific impaired
waterbody and how they address the
pollutant causing the impairment. For
atmospheric deposition,
implementation of the Clean Air Act
regulatory program could provide the
necessary reliable delivery mechanism.
(4) Adequate funding. Finally, today's
rule clarifies what EPA considers to be
"adequate funding" for the purpose of
demonstrating reasonable assurance. In
response to comments, EPA is including
in the final rule the funding language
from the proposed rule preamble, and
providing a more detailed discussion of
this term below. (64 FR 46033 to 46034,
August 23,1999). EPA believes that
adequate funding means that existing
water quality funds have been allocated
to implement load allocations to the
fullest extent practicable and in a
manner consistent with the effective
operation of the clean water program in
the State, Territory, or authorized Tribe.
EPA believes that implementing TMDLs
is a central part of water quality
management. At the same time EPA
recognizes that effective water quality
programs are comprised of many
different activities which must be
carried out concurrently. It would make
no sense to fund only TMDL activities
and eliminate other important activities.
For atmospheric deposition, where
controls will be required by Clean Air
Act regulations, the process for adoption
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and implementation of those regulations
should satisfy the requirement for
adequate funding.
Today's rule requires that States,
Territories and authorized Tribes
identify adequate clean water program
funding to implement load allocations.
Glean water program funding includes
Federal funding through the CWA and
some related Federal, State, Territorial
or authorized Tribal funding. In the
event that funding is not currently
adequate to implement the TMDL, EPA
may approve the TMDL if the State,
Territory, or authorized Tribe provides
an explanation of when adequate funds
will be available and a schedule by
which these funds will be obtained and
used to implement the TMDL. EPA
believes that such a schedule
identifying when load allocations will
be implemented as funding becomes
available is necessary to provide
reasonable assurance that load
allocations will be achieved where
adequate funding is not currently
available. As indicated in
implementation plans provisions, such
a schedule must assure that
implementation will be as expeditious
as practicable (i.e., within 5 years when
practicable) for waterbodies impaired
only by sources which are not subject to
NPDES permits, including nonpoint
sources.
Use of Existing Programs
EPA believes that existing nonpoint
source programs can provide the suite of
control actions and management
measures for States to rely on when
meeting the reasonable assurance test.
Examples of voluntary and incentive-
based actions or existing programs
include State, Territorial or authorized
Tribal programs to audit
implementation of agricultural
management measures and memoranda
of understanding between State,
Territorial and authorized Tribal
governments and organizations that
represent categories, subcategories or
individual sources which assure
implementation and effectiveness of
management measures.
A State, Territory, or authorized Tribe
may need to consider other programs to
address pollutants introduced in a
waterbody by atmospheric deposition or
groundwater. For example, the State,
Territory, or authorized Tribe could rely
on scheduled reductions in atmospheric
sources under the Clean Air Act or
similar State authority. Likewise, it
could rely on reduced groundwater
loadings as a result of remedial actions
under the Resource Conservation and
Recovery Act (RCRA) or similar State
authority. If these programs cannot
provide reasonable assurance that the
pollutant loads will be reduced, the load
reduction will have to be assigned to
other sources.
Generally, a State, Territory, or
authorized Tribe will demonstrate
reasonable assurance for the part of the
load allocation that addresses the
loading of pollutants contributed by
background sources by quantifying the
loading so that it can be included in the
calculation of the total loading in a
waterbody. In these situations, this
background loading would be presumed
to be constant and load reductions will
be assigned to other sources. However,
if a State, Territory, or authorized Tribe
expects that the background loadings
will decrease as a result of some action
and is relying on this decrease in the
calculation of wasteload and load
allocations, then the State, Territory, or
authorized Tribe will need to apply the
four-part test to demonstrate the
reasonable assurance for this expected
reduction.
The test of reasonable assurance in
today's rule is not met simply by having
programs, authorities or voluntary
measures described in the definition of
reasonable assurance in place. In order
for such programs, authorities or
measures to provide reasonable
assurance each one of the four parts of
the test must be satisfied. For example,
if a State offers a particular voluntary
program approved under section 319 as
proof of reasonable assurance, EPA will
review the program information to see
whether it specifically addresses the
waterbody/pollutant of concern,
includes actions that will be
implemented as expeditiously as
practicable, will be accomplished
through a reliable delivery mechanism
with a good track record of success and
meet the adequate funding test.
Reasonable Assurance When EPA
Establishes TMDLs
In some cases, EPA will have to
disapprove a State's TMDL and
establish the TMDL. When establishing
a TMDL, EPA will also have to provide
reasonable assurance as required by
§§ 130.32(c) and 130.2(p). In providing
reasonable assurance, EPA may rely on
various statutory or regulatory
authorities to meet the four-part test
which applies to load allocations for
sources not subject to an NPDES permit.
EPA cannot, of course, require States,
Territories or authorized Tribes to use
their own statutory or regulatory
authorities to provide reasonable
assurance for EPA. EPA may, however,
condition some or all CWA grants to the
fullest extent practicable and in a
manner consistent with the effective
operation of other CWA programs in
order to meet the adequate funding part
of the four-part reasonable assurance
test. Such action would by itself serve
to satisfy that part of the reasonable
assurance test when EPA establishes a
TMDL. For example, EPA may '.
condition section 319 grants such that
States can only use some or all of these
funds to implement management
measures in watersheds where EPA has
established a TMDL that includes load
reductions for nonpoint sources.
Similarly, EPA may condition section
106 grants to States such that some of
the funds for monitoring can only be
used to support the monitoring
specified in TMDL implementation
plans. EPA may also use its voluntary,
incentive-based programs, such as
section 104(b)(3) demonstration grants
for watershed restoration, to ensure that
management measures are funded and
implemented. EPA may provide
reasonable assurance for wasteload
allocations by issuing NPDES permits
within the time frames prescribed by
§ 130.32(c)(l)(ii) where EPA is the
permitting authority, or by objecting to
expired State-issued permits so that new
permits will be issued to implement
wasteload allocations from approved
TMDLs.
By requiring such a demonstration of
reasonable assurance before it may
approve or establish a TMDL, EPA does
not intend to create a mandatory duty or
legal obligation that either the State,
Territory, authorized Tribe or EPA
implement those actions identified as
providing reasonable assurance. The
reasonable assurance demonstration is a
"snapshot-in-time" identification of
those voluntary and regulatory actions
that the State, Territory, authorized
Tribe or EPA intends to take to ensure
that the nonpoint source load
allocations assigned in the TMDL will
be realized. If such demonstration is
deemed satisfactory at the time the
TMDL is being reviewed or developed
by EPA, the TMDL may be approved or
established. If in the future, the State,
Territory, authorized Tribe or EPA
determines that the TMDL is not being
implemented, or that the
implementation plan needs to be
revised, the State, Territory, authorized
Tribe or EPA may take action, as
appropriate under existing State,
Territorial, Tribal or Federal legal
authority, to effect implementation or
revise the TMDL. Nothing in this rule,
however, creates in EPA or the States
new legal authority beyond that
provided by existing State, Territorial,
Tribal or Federal law to implement load
allocations for nonpoint sources or
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43601
creates for EPA, States, Territories or
authorized Trihes a mandatory duty to
do so.
k. New Definition of Waterbody
(§ 130.2(qJ)
What did EPA propose? EPA
proposed a definition of the new term
"waterbody" to codify EPA's
interpretation of the term for the
purposes of TMDLs. The proposed
definition would have provided States,
Territories, and authorized Tribes more
flexibility than the current regulation
which refers to segments and would
have allowed States, Territories, and
authorized Tribes to tailor the
geographical size of the watershed for
which the TMDL was being established
to match the pollutants and nature of
impairment.
What comments did EPA receive?
EPA received a number of comments on
this definition. Most commenters
suggested that the definition exclude
ephemeral streams and wetlands. These
commenters expressed concern over the
application of water quality standards to
these waterbodies, and thus suggested
that TMDLs should not be established
for them. Other comments expressed
concern that the definition would
prevent establishment of a TMDL for
one segment of a river.
What is EPA promulgating today?
After review of comments, EPA is
promulgating the proposed definition
with two minor changes. First, EPA is
revising the proposed language to
recognize that waterbodies can be made
up of one or more segments of rivers,
streams, lakes, wetlands, coastal waters
or ocean waters. EPA did not intend to
require that a TMDL consider the full
geographic extent of a waterbody.
Rather EPA intended to give States,
Territories and authorized Tribes the
flexibility to establish TMDLs for one or
more segments. Second, EPA is adding
a recommendation to the rule that the
use of segments should be consistent
with the use of segments in a State's
water quality standards. EPA is making
this recommendation to help promote
consistency between how TMDLs are
developed and how water quality
standards are expressed.
EPA does not believe that the nature
of a waterbody, such as an ephemeral
stream or a wetland, and the challenge
that nature may pose to establishing a
TMDL, should preclude it from being
defined as a waterbody. EPA believes
that this is a water quality standard
issue and that the appropriate forum for
resolving questions about water quality
standards is in the development of the
standards themselves, and not in the
application of the standards in a TMDL
context.
1. New Definition of List (§ 130.2(v)) ;
What did EPA propose? EPA
proposed to include a new definition to
refer to the four elements of the list and
the prioritized schedule. EPA proposed
this revision to expedite reference to the
four elements and schedule within the
rule.
What comments did EPA receive?
EPA received no substantial comments
unique to this definition. Some
commenters did offer suggestions on
what are acceptable elements of a list;
these comments are addressed in parts
of today's preamble that address these
elements.
What is EPA prom ulgating today?
EPA is revising the proposed definition
of "list of impaired waterbodies" to
make it consistent with other provisions
of the final rule. First, EPA is clarifying
that the list consists of all four parts of
the required submission. This is to
ensure that there is no confusion over
whether certain parts of the list that may
be submitted along with the State's
section 30503} report are in fact part of
the section 303(d) list. In addition, the
definition states that Part I of the list'
includes both waterbodies identified for
TMDL development and the prioritized
schedule for those waterbodies. This !
revision makes the definition consistent
with the requirement to submit the ;
prioritized schedule as part of the list;
itself, subject to EPA approval or |
disapproval, rather than as a separate
document with the list submission that
EPA will review but not take action on.
2. Response to Requests for New
Definitions
What did EPA propose? EPA's
proposal of August 23,1999, requested
comments on all aspects of adding new
definitions.
What comments did EPA receive?
EPA received comments suggesting that
EPA add several definitions for terms
used in the proposed rule or discussed
in comments which requested additions
to the requirements of the final rule.
What is EPA promulgating today?
EPA has decided not to add other
definitions to § 130.2. EPA is not adding
a definition of "balanced indigenous
population of fish, shellfish, and
wildlife." There is an existing regulatory
definition of the term "balanced
indigenous population" in § 125.70 that,
although it explicitly applies only to the
regulations implementing section ,
316(a), provides the Agency's j
interpretation of this term for purposed
of identifying impaired waterbodies and
establishing TMDLs pursuant to section
303(d).
EPA is not adding a definition of
"watershed." The term is not used
within the final rule to trigger a
regulatory provision, and thus does not
require definition. EPA prefers to allow
States, Territories, and authorized
Tribes the flexibility to define a
watershed within the context of their
own programs. However, EPA
encourages the use of the hydrologic
unit codes for watersheds defined by the
U.S. Geologic Survey since they are a
uniform system of watershed
identification that will clearly identify
to other States, Territories, Tribes, EPA
and the public the boundaries of
watersheds defined by the States in the
context of their water quality programs.
EPA is not including a specific
definition in the final rule for " trading"
and thus declines to add trading-related
definitions for "real," "quantifiable" or
"surplus" as suggested by some
comments as being necessary if EPA
included regulatory provisions for
trading.
EPA is not adding a definition of
"existing and readily available," "man-
made or man-induced," "point source,"
"nonpoint source," and "waters of the
contiguous zone." This final rule at
§ 130.22(b) already provides a definition
of existing and readily available water-
quality related data and information by
enumerating particular categories of
water-quality related data and
information that must be considered.
The regulations clearly state that this
list is not exhaustive, but rather is
intended to identify specific kinds of
water quality-related data and
information that will be considered
existing and readily available, in
addition to water-quality related data
and information in other relevant
categories that are not explicitly listed
in the regulations. EPA does not believe
it can accurately identify each and every
type of water-quality related data and
information that should be considered
in every state's listing process, in light
of the broad variety of relevant water-
quality related data and information that
is and will be available. Therefore, it is
appropriate to list specific categories
that are likely to exist for every state,
and leave it to the States, Territories,
and authorized Tribes to collect and
evaluate other relevant information.
The CWA itself uses the term "man-
made or man-induced" within the
statutory definition of pollution; EPA
believes this term is very clear and
needs no further clarification. The CWA
already defines "point source" and EPA
does not believe that today's rule needs
to reiterate this definition. EPA
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interprets "nonpoint source" to apply to
all sources that do not meet the
statutory definition of a point source.
Finally, the CWA at section 502(a)
already defines the term "contiguous
zone" and EPA does not helieve that it
needs to reiterate this definition in
today's final rule.
EPA disagrees that it should add a
definition of "sensitive aquatic species."
This term was used in the proposal
merely to indicate a factor that States,
Territories and authorized Tribes should
consider when establishing priorities for
TMDLs. Since this is a discretionary
practice in the final rule, EPA believes
that it need not define the term.
EPA also disagrees that it should add
a definition of "seasonal variations."
This term originates in CWA section
303(d)(l)(C). EPA believes it means
seasonal variation in environmental
conditions which affect a waterbody's
character, e.g., variations in a
waterbody's temperature, flow rate, or
dissolved oxygen level. EPA does not
believe the term needs a separate
regulatory definition. Further,
§ 130.32(b)(9) provides sufficient
explanation of what is to be included in
the assessment of seasonal variation.
EPA disagrees that it should add a
definition of "comprehensive watershed
management plan." This term is not
used in the final rule, and thus does not
require definition.
EPA disagrees that it should add a
definition of "natural sources/causes"
or "ephemeral stream." EPA believes
these terms are best defined in State,
Territorial and authorized Tribe's water
quality standards. The term "natural
sources/causes" was suggested to clarify
how a TMDL would address
impairments caused by natural sources
or causes. EPA believes this question is
best addressed when a State, Territory,
or authorized Tribe decides the
appropriate water quality criteria for
that waterbody. The term "ephemeral
stream" was suggested to identify a type
of waterbody for which special water
quality standards would be necessary.
Again, EPA believes this question is best
addressed when a State, Territory, or
authorized Tribe decides the
appropriate water quality criteria for
that waterbody.
B. Who Must Comply With the
Requirements ofSubpart C? (§130.20)
What did EPA propose? EPA's
proposal included a list of entities
which would be subject to the subpart
C regulations. The proposal defined the
term "you" to pertain to States,
Territories, and authorized Tribes. The
proposal also stated that portions of
subpart C apply to EPA.
What comments did EPA receive?
EPA received only a few of comments
on this section. These comments
expressed concern that EPA was only
subject to unspecified portions of
subpart C, and recommended that EPA
should be subject to the same
requirements as are States, Territories,
and authorized Tribes.
What is EPA promulgating today?
EPA declines to further clarify this
section. Its purpose is to explain that the
term "you" as used in a rule written in
plain English applies to States,
Territories and authorized Tribes. As to
the parts of the rule that apply to EPA,
EPA considers that §§ 130.22,130.23,
130.25, 130.26, 130.27, 130.28,
130.29,130.31, 130.32, 130.33, 130.36,
and 130.37 apply to EPA when EPA
establishes lists or TMDLs. These are
the same substantive requirements that
apply to States, Territories, and
authorized Tribes.
Other sections of subpart C pertain to
EPA's review and approval or
disapproval of lists and TMDLs. These
sections are specifically identified in the
titles for the sections.
C. What is the Purpose ofSubpart C?
(§130.21)
EPA proposed to include this section
in the regulations to give the reader an
overall summary of the requirements
included in §§ 130.22 through 130.37 of
Subpart C. EPA received many
comments regarding the purpose of its
proposal. These comments are all
addressed in other parts of this
preamble or in the Response to
Comments Document. For the sake of
clarity, this section has been slightly
expanded in today's rule to reflect
decisions made on the various
requirements which are explained in
detail following sections of the
preamble. In addition, the section
clearly lays out the actions which EPA
will undertake in the absence of
approvable actions by a State, Territory,
or authorized Tribe. Finally, this section
is reorganized to group together
requirements for States, Territories, and
authorized Tribes, and those for EPA.
D. What Water-Quality Related Data
and Information Must be Assembled To
Develop the List of Impaired
Waterbodies? (§ 130.22)
What did EPA propose? In § 130.22 of
the proposal, EPA included a listing of
the sources of water-quality related data
and information which a State should
consider in order to develop its list of
impaired waterbodies. Generally, EPA
proposed to retain the requirements of
current § 130.7(b)(5) with one
significant addition. EPA proposed at
§ 130.22(b)(4) that States, Territories and
authorized Tribes should consider the
information included in the Drinking
Water Source assessments mandated by
the Safe Drinking Water Act. EPA
intended that the data obtained from
these sources would then be analyzed
using the State's methodology
developed under proposed § 130.23.
What comments did EPA receive?
EPA received a significant number of
comments concerning both this section
and proposed § 130.23. Some
commenters specifically addressed the
list of data sources proposed in § 130.22.
Their comments are addressed in this
section. EPA also received many
comments dealing with the issues of
data quality, types of data which should
be considered as existing and readily
available, and the use of monitored vs.
modeled or evaluated data. Some
commenters raised these issues in the
context of § 130.22, others in the context
of § 130.23 For the sake of clarity EPA
is addressing these issues in the
discussion of § 130.23.
: As far as the list of sources, a
significant number of commenters took
exception to inclusion of the source
water assessments while others
supported it. Some commenters
suggested that source water assessments
were not appropriate sources of data
because they are likely to be desk-top
short-term qualitative documents
containing no actual data, and suggested
that sanitary surveys would be better
sources of data. Others believed that
EPA should clarify that ground water
assessments should not be used for
listing decisions. Other commenters
suggested either additions or deletions
from the list.
What is EPA promulgating today?
After careful consideration of these
comments, EPA is promulgating this
section as proposed. The Agency ',
appreciates that there are other sources
of data available and does not intend the
list to be exclusive. States must consider
other types of water quality-related data
and information that are existing and
readily available. On the other hand,
EPA does not expect the States,
Territories and authorized Tribes to use
data contained in the listed documents,
including source water or groundwater
assessments, in an indiscriminate
fashion. The expressed purpose of
§ 130.23 is to document the decision
process the States, Territories and
authorized Tribes will use to consider
how data from these and any other
existing and readily available sources
will be used in making listing decisions.
Thus, States, Territories, and authorized
Tribes must consider all existing and
readily available water quality-related
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43603
data and information in the listing
process, hut may decide not to use
certain such data or information as a
basis for listing waters. These decisions
will be explained in the state's
methodology, discussed below, so that
the public and EPA will have an
opportunity to provide input on the
decision process.
E. How Must the Methodology for
Considering and Evaluating Existing
and Available Water-Quality Related
Data and Information to Develop the
List be Documented? (§ 130.23)
What did EPA propose? Under the
current regulations, States, Territories
and authorized Tribes must submit to
EPA documentation justifying their
decisions to list or not list waterbodies
at the same time they submit the list.
EPA proposed to decouple the two
requirements to provide for early input
from stakeholders and EPA on this
decision-making process. EPA's
rationale was that resolving
methodology issues early in the process
would lead to better, more readily
approvable lists. EPA proposed to
require that States, Territories, and
authorized Tribes develop a
methodology covering all aspects of
how existing and readily available data
and information would be used to
identify waterbodies as impaired, assign
priorities and develop a schedule for
establishing TMDLs.
What comments did EPA receive?
EPA received a significant number of
comments concerning the use of all
existing and readily available data as a
basis for listing and delisting impaired
waters. Many commenters strongly
advocated the use of data from all
sources, with or without QA/QC
documentation. These commenters were
concerned that setting data quality
requirements too high would result in a
less than comprehensive assessment of
all waters, and therefore dramatically
limit or underestimate the identification
and listing of impaired waters. They
pointed out that listing and TMDL
establishment is an iterative process,
and that if necessary, States, Territories
and authorized Tribes could collect
supplemental data to confirm or make
adjustments to their initial listing
decisions. Numerous commenters
suggested that data should not be used
for the basis of listing and delisting
unless it met rigorous QA/QC
requirements, and was collected and
processed with documented and
scientifically valid protocols. Several
commenters supported the
establishment of prescribed QA/QC data
quality guidelines in order to assure that
all data met a minimum level of
technical credibility.
Numerous commenters suggested that
EPA specify in detail the contents of an
adequate assessment methodology, hi
this approach, EPA would establish
requirements for sampling design, data
collection, and data analysis and
interpretation. Other commenters
objected to such a "one size fits all"
approach, and believed that the format
and contents of the methodology shpuld
be left to States, Territories and
authorized Tribes.
Several commenters expressed
concerns over the proposed requirement
that there be a separate public
participation process in the
development of the methodology, wjhile
others asked for more specific public
participation requirements which would
mandate involvement of certain
stakeholders. Several commenters also
suggested that the methodology be
adopted through rulemaking. Some
commenters asked that the final
methodology be made available to the
public.
A number of commenters expressed
concern over the adequacy of current
monitoring programs to characterize and
evaluate their waters in a
comprehensive manner, regardless of
how restrictive the States, Territories
and authorized Tribes are in the use'of
existing and readily available data and
information. They pointed out that
State, Territorial and authorized Tribal
monitoring programs needed to expand
their spatial and temporal coverage,'
monitor for additional parameters, and
rapidly incorporate biological and
habitat quality indicators. ;
Finally, some commenters suggested
that the methodology needed to !
consider how to resolve disagreements
involving waterbodies that crossed
Territorial and all Tribal boundaries.
What is EPA promulgating today?
EPA is making several changes to the
proposed language to conform with
decisions explained elsewhere in this
preamble. These changes reflect the
decision that the section 303(d) list
include four Parts, and for Part 1, the
prioritized schedule for establishing'
TMDLs. Also, in recognition of the fact
that EPA will be reviewing and ;
commenting on, but not approving or
disapproving, the methodolog}r, EPA
has revised the regulatory text to say
that States, Territories, and authorized
Tribes "should", rather than must,
include certain elements in the
methodology.
EPA is retaining the proposed
requirement that there be a separate
public participation process in the
development of the methodology. EPA
recognizes the cost savings of combining
the public participation of the
methodology with that of the list.
However, EPA believes there is a
significant benefit to the public to have
reviewed the methodology before the
public reviews the list of impaired
waters. EPA is also adding language to
encourage States, Territories and
authorized Tribes to provide direct
notification of the availability of the
draft methodology to persons who
submit a written request. This change
conforms with changes made to § 130.36
and makes all public notice
requirements contained in the final rule
consistent. EPA believes it is reasonable
to expect States to provide direct
notification to such parties, and that it
will not be burdensome. Public
participation is essential to ensuring
accurate, comprehensive lists, and
providing persons with sufficient
interest in the process to request
notification in writing is a fairly simple
way to further ensure that all interested
parties receive notice of the availability
of the draft methodology. EPA notes that
States need not respond to such requests
by providing copies of the methodology
itself, but rather may simply notify the
requesting parties that the methodology
is available for public review and
comment. EPA also agrees with the
comment that the public should have
access to the final methodology and is
adding language to this effect. Today's
final rule does not specify how States,
Territories, and authorized Tribes are to
make the methodology available. EPA
expects that they will use their existing
practices for doing so. EPA is requiring
that the final methodology be made
available to the public.
EPA also agrees with the commenter's
concerns regarding State, Territorial and
authorized Tribal monitoring protocols.
The final regulations specify that the
methodology should describe
procedures that States, Territories and
authorized Tribes will use to collect
ambient water quality information. EPA
believes this is reasonable and
appropriate to provide as part of the
methodology since this information will
likely be critical in listing waterbodies
as well as determining whether
waterbodies are meeting standards and
may be removed from the list. It is
important for the public to be informed
of the data collection methods the State,
Territory, or authorized Tribe intends to
use, and to have an opportunity to
comment on such methods. EPA
believes this process will serve to
minimize concerns that would
otherwise be raised later, when the
State, Territory, or authorized Tribe lists
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or removes waters based on data it has
collected through its ambient water
quality data collection programs.
EPA supports the collection and use
of high quality data in decision making.
EPA's grant regulations require that
when grantee projects, such as State and
Territorial water quality work using
CWA section 106 funds, involve
environmentally-related[measurement
or data generation, the grantee shall
implement quality assurance practices
that produce data of quality adequate to
meet the project objectives. 40 CFR
31.45. Because regulations already
require quality assurance practices, EPA
declines to duplicate these requirements
in today's rule. EPA has published
guidance which governs EPA's own data
collection activities and references
quality assurance/quality control
guidances for others. See "Policy and
Program Requirements to Implement the
Mandatory Quality Assurance
Program", EPA Order 5360.1, April 3,
1984, as revised July 16,1998.
Similarly, EPA recognizes the concern
that quality assurance practices could be
set at so high a level as to preclude
consideration of most environmental
water-quality related data. For this
reason, EPA is committing in the final
rule to comment about a State's,
Territory's or authorized Tribe's
assessment methodology. This will
allow EPA to express concerns about the
assessment methodology, including
whether the State, Territory, or
authorized Tribe inappropriately
included or excluded water-quality
related data. In addition, EPA will
consider this when EPA reviews the list
of impaired waters.
The final rule at § 130.23(e}(2) now
provides that the State, Territory, or
authorized Tribe should develop a
process for resolving disagreements
\vith other jurisdictions involving
waterbodies crossed by Territorial and
Tribal boundaries, in addition to the
State and authorized Tribal boundaries
discussed in the proposal. EPA is
adding Territories to this provision
because, under section 303(d),
Territories are considered in the same
way as States. EPA is adding Tribes that
are not authorized to administer section
303(d) to this provision because, in part,
Tribes without section 303(d)
authorization may have authorization
under section 303(d) for water quality
standards, and a resolution of disputes
over how to interpret and use water
quality standards becomes relevant.
EPA also declines to specify in the
final rule the detailed contents of an
adequate assessment methodology. EPA
believes that States, Territories, and
authorized Tribes need the flexibility to
tailor their assessment methodology to
their monitoring programs and the
waterbodies within their jurisdiction
and that methods change over time. To
assist States, Territories and authorized
Tribes, EPA is, however, developing
guidance on this subject which will
include key elements of monitoring
programs, monitoring design for
achieving comprehensive coverage of
assessments, and decision criteria for
determining impairments. This
guidance will be available to the States,
Territories, and authorized Tribes in
2000, unless delayed by the TMDL
rider.
EPA recognizes the concerns
expressed by commenters over the
adequacy of current monitoring
programs to characterize and evaluate
their waters in a comprehensive
manner. EPA continues to work with
States, Territories, and other
stakeholders to increase the quality and
comprehensiveness of water quality
monitoring and assessment programs.
This is achieved through data sharing
and development of consistent
monitoring designs and assessment
criteria. EPA provides technical
assistance, guidance and resources for
monitoring design and implementation.
EPA and its partners in States,
Territories, Tribes and other Federal
agencies are developing a consolidated
assessment methodology that will
provide a consistent approach for
characterizing water quality.
F. When Must the Methodology be
Provided to EPA? (§ 130.24)
What did EPA propose? EPA
envisioned the methodology as an
evolving document which States,
Territories and authorized Tribes would
revise as appropriate at some time
during the listing cycle. EPA proposed
that States, Territories and authorized
Tribes would submit their first final
methodology to EPA no later than
January 31, 2000, and no later than
January 31 of every year preceding the
year when a list would be due, but
noted in the preamble that the first date
was subject to change based on the date
when these regulations would be
promulgated. EPA also proposed that it
would review the listing methodology
and provide comments to the State,
Territory, or authorized Tribe. EPA
proposed to consider the methodology
in its approval or disapproval of the
section 303(d) list and explained in the
preamble to the proposal that it was
considering using the way in which
EPA's comments on the draft
methodology were addressed as a factor
in approving or disapproving the list.
What comments did EPA receive?
Commenters expressed differing
opinions on how frequently the
methodology should be submitted.
Some advocated a one time submission,
with updates as needed. Others
suggested that the methodology be ,
submitted with each list. There was a
diverse set of comments concerning the
role of EPA in formally approving the
methodology. Some commenters
strongly endorsed a formal approval/
disapproval of the methodology as part
of EPA's action on the submitted list.
Some commenters believed that EPA
had no role in reviewing or approving
the methodology. They believed that it
was strictly a State, Territorial and
authorized Tribal responsibility to .
establish and implement data collection
and assessment protocols. Numerous
commenters strongly advocated that
EPA only provide advice, comment and
technical guidance to States, Territories
and authorized Tribes.
What is EPA promulgating today?
EPA continues to believe that the
methodology will be an evolving
document; therefore, the final rule
requires that it be provided to EPA
during every listing cycle. However,
EPA recognizes that not all aspects of
the methodology may change during
any given cycle, and the final rule
provides that only revised portions of
the methodology need be provided. EPA
will already have the previous list's
methodology, and will have provided
comments on the unchanged portions
during prior list cycles. Therefore,
EPA's comments will likely focus on
any changed portions of the
methodology. However, the State,
Territory, or authorized Tribe must
make available to the public for
comment the entire methodology,
including portions unchanged from
prior listing cycles. EPA expects the
State, Territory, or authorized Tribe to
address in its final methodology
comments from the public on all aspects
of the methodology, including those that
were not changed.
As was proposed, the final rule
requires that the methodology and
updates to the methodology be provided
to EPA at least once per four-year listing
cycle. EPA's rationale for choosing a
four year list submittal cycle is
explained later in this preamble. Except
for the first listing cycle pursuant to
these regulations, States, Territories and
authorized Tribes must provide the
methodology no later than two years
prior to the due date of the list. This
time pi'ovides sufficient time for States,
Territories and authorized Tribes to
collect water-quality related data for the
next section 303(d) list consistent with
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436O5
their most recent assessment
methodology. This schedule is
compressed for the first list because
EPA agrees with the commenters who
expressed an urgency in seeing these
regulations implemented. The
methodology for the first list required to
be submitted under today's regulations
is due no later than November 1, 2001,
five months before the list is due, unless
the rider is in effect through that date.
EPA believes this date strikes a balance
between the competing concerns of
allowing States, Territories and
authorized Tribes sufficient time to
develop a methodology (including
providing an opportunity for the public
to comment) consistent with today's
regulations, and having state lists
submitted under today's regulations
without undue delay. States, Territories
and authorized Tribes will have nine
months to develop the methodology and
submit it to EPA. EPA will review the
methodology and provide comments
within 60 days (by July 1, 2001). Thus,
the State, Territory, or authorized Tribe
will have nine months from the time it
receives EPA's comments on its
methodology to develop and submit its
section 303(d) list.
EPA will not formally approve or
disapprove the methodology but
provide comments to help the State,
Territory, or authorized Tribe develop
appropriate methodologies for listing
decisions so that the ultimate goal of
§ 130.23—approvable lists—is achieved.
Thus, EPA's review of and comments on
State, Territory, or authorized Tribe
methodologies will focus on whether
the methodology will result in an
adequate review of all existing and
readily available water quality-related
information, whether the factors that
will be used to make listing and removal
decisions are reasonable, whether the
process for evaluating different kinds of
water-quality related data and
information is sufficient, whether the
process for resolving jurisdictional
disagreements is sufficient, whether the
process for developing a prioritized
schedule is reasonable and consistent
with the requirements of the CWA and
EPA's regulations, and whether the
State, Territory, or authorized Tribe has
adequately responded to comments
from the public on its draft
methodology.
In its review of the State's, Territory's
or authorized Tribe's list submission,
EPA will consider whether the State,
Territory, or authorized Tribe
adequately addressed EPA's comments
on its final methodology. In some cases,
the failure to address such comments
may result in a disapproval or partial
disapproval of the state's list
submission. For example, if EPA
concludes that the state's methodology
fails to adequately consider certain
kinds of relevant water-quality related
data and information, but this
deficiency is not corrected in the final
list submission, EPA may disapprove
the list if it determines that this
deficiency resulted in the state's failure
to include certain waterbodies required
to be listed. Therefore, EPA is in the
final regulation committing to provide
comments to States, Territories and
authorized Tribes within 60 days of
receiving the methodology. This should
give States, Territories and authorized
Tribes sufficient time to make necessary
adjustments in their methodology to
submit an approvable list to EPA.
EPA is also revising the proposed
language to require in the final rule that
States, Territories and authorized Tribes
provide to EPA a summary of public
comments they received on their final
methodology and of their response to
significant comments. EPA believes that
it can better provide informed
comments on State, Territory, and
authorized Tribe methodologies if it
knows what comments they received.
Also, EPA believes it needs this
information to assist in its review and
approval or disapproval of the lists of
impaired waterbodies in order to
understand issues raised by members of
the public and how they were addressed
in the listing process.
hi the event that the effective date of
today's rule is later than May 1, 2001,
States, Territories, and authorized
Tribes are not required to develop the
methodology for the year 2002 list .
under the requirements of this
regulation. Instead, States, Territories,
and authorized Tribes will need to
provide a methodology under the
previous regulation. See Section V.5 of
the preamble.
G. What is the Scope of the List of
Impaired Waterbodies? (§ 130.25)
What did EPA propose? EPA
proposed to eliminate the term "water
quality-limited segments still requiring
TMDLs" from the regulations and to
broaden lie scope of the list. EPA
proposed requiring States, Territories
and authorized Tribes to list all
impaired or threatened waterbodies,
regardless of whether the waterbody
was expected to attain water quality
standards following the application of
technology-based controls required by
section 301 and 306 of the CWA, more
stringent effluent limitations, or other
required pollution controls.
EPA proposed that States, Territories
and authorized Tribes would list all •
waterbodies impaired or threatened by
pollutants, by pollution, by atmospheric
deposition, and by unknown pollutants.
EPA proposed that these waterbodies be
listed regardless of the source of the
impairment: point source, nonpoint
source or a combination of both. EPA's
rationale for this proposed section was
to provide a list that served as a
comprehensive public accounting of
impaired and threatened waterbodies
and provided all stakeholders with an
ongoing record of success in attaining
water quality standards as TMDLs were
completed and implemented.
What comments did EPA receive?
EPA received a significant number of
comments suggesting that threatened
waterbodies not be included on the
section 303(d) lists. These commenters
stated that the section 303(d) list was
expressly for waterbodies not meeting
water quality standards—not
waterbodies currently meeting water
quality standards even if they exhibited
a declining trend in water quality.
Several commenters supported the
inclusion of threatened waters on the
section 303 (d) list. They asserted that
protective pollution control efforts
would prevent further deterioration of
these waters, and prevent them from
becoming "formally" impaired. Many
commenters suggested that threatened
waters not be listed, but be tracked and
reported elsewhere. Some commenters
expressed concern that EPA had not yet
provided sufficient guidance on how to
define a declining trend, and that
radically different approaches would be
employed by the States. In general the
States were very concerned with the
workload that requirement might entail,
in light of what they believed to be a
more expansive definition of a TMDL.
A significant number of commenters
suggested that only waters impaired by
an identified pollutant should be
required to be listed, and that waters
impaired by pollution, where no
pollutant could be identified, should
not be listed. It was their view that the
section 303 (d) list was intended to
identify waterbodies for which TMDLs
for a pollutant or pollutants were to be
established. Numerous commenters
supported the required listing of
waterbodies impaired by pollution. It
was their position that the inclusion of
pollution impairments was a more
comprehensive reporting of the status of
the nation's waterbodies, and allowed
States, Territories and authorized Tribes
to target pollution control actions more
effectively.
Several commenters objected to the
use of drinking water standards as a
basis for listing impaired waterbodies
because they believed that MCLs are
developed for protecting drinking water
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;riate
ient
at the tap and are wholly inappropri
for use as a standard to define ambie
water quality impairments.
EPA received numerous comments
suggesting that the requirement to list
Waterbodies impaired or threatened by
an unknown pollutant be eliminated.
Some commenters believe that this
language was so wide-open as to lead
members of the public to request that
waterbodies be listed in the absence of
any information even indicating an
impairment. Many commenters were
concerned that listing for an impairment
without identifying a pollutant could
have significant adverse regulatory
Implications. Several commenters were
concerned that in many cases of
biological impairment, the pollutant
could never be identified. Other
Commenters supported listing
waterbodies where the pollutant was
unidentified. They endorsed the strategy
to first list the waterbody, and then
attempt to identify the pollutant as a
first step in establishing the TMDL.
Several commenters strongly
challenged EPA's authority to require
the listing of waterbodies impaired by
nonpoint source pollution. It was their
interpretation of section 303(d) that the
text Waterbodies for which effluent
limitations required by section
301(b)(l)(A) and (B), and are not
stringent enough to implement any
Water quality standard," applies
expressly only to point sources, and,
therefore, exempts waters impaired by
nonpoint sources alone. Many
commenters were concerned that the
inclusion of nonpoint source only
waters would greatly expand the
number of waters listed, and because of
excessive resource demands, reduce the
effectiveness of dealing with point
Source impairments. Other commenters
supported the requirement to list waters
impaired only by nonpoint sources. In
general, these commenters suggested
that waters be listed regardless of the
Cause of the impairment—point source,
nonpoint source or both.
A significant number of commenters
Suggested that EPA should not require
thalisting of waterbodies threatened by
atmospheric deposition. Several of these
commenters challenged EPA's statutory
authority under the CWA to require that
waters impaired by atmospheric
deposition be listed. A number of these
commenters suggested that the Clean
Air Act was a more appropriate vehicle
for addressing the effects and controls of
air sources of pollutants. Many
commenters stated that it was
technically infeasible to link and
estimate the significance of the
atmospheric contribution of a pollutant,
and that adequate technical tools to
establish TMDLs for pollutants
contributed by air deposition did not yet
exist. Several commenters supported the
listing of waterbodies impaired or
threatened by atmospheric sources of
pollutants. These commenters stated
that the source of the impairment was
irrelevant as to whether a waterbody
should or should not be listed.
What is EPA promulgating today?
EPA is making two significant changes
to the proposed language. First, EPA is
not requiring that States Territories or
authorized Tribes, include threatened
waters. However, EPA is encouraging
States, Territories and authorized Tribes
to include on the list those waterbodies
which they anticipate will become
impaired before the next listing cycle.
Waterbodies which exhibit a
declining trend in water quality at the
time a list is being developed such that
water quality standards will likely be
exceeded by the time of the next list
submission are not required to be listed
under the final rule. However, EPA
expects that such waters will either
exceed standards at the next listing
cycle if die declining trend continues as
expected and must then be listed or will
attain standards by that time if the
declining trend is reversed. Thus, a
State, Territory, or authorized Tribe still
has an incentive to adopt controls that
address threatened waterbodies so that
listing and TMDL development can
ultimately be avoided. Moreover, if
declining trends are not reversed, it is
likely that the waterbody will be
required to be included in the next list
and scheduled for TMDL development
if included on Part 1. For this reason,
TMDL development will not be delayed
more than four years compared to the
proposed approach for requiring listing
of threatened waters.
Alternatively, a State, Territory, or
authorized Tribe could decide to list a
threatened waterbody on the section
303(d) list, schedule a TMDL if the
impairment was caused by a pollutant,
and proceed with establishing the
TMDL. If a State, Territory, or
authorized Tribe chooses to do so, this
TMDL will be subject to the
requirements of subpart C, that is, the
TMDL must be submitted to EPA for
review, and EPA's approval or
disapproval and establishment of a
TMDL will be based on the
requirements of subpart C. In addition,
as required by § 130.35(a), EPA must
establish a TMDL for any waterbody
that a State, Territory, or authorized
Tribe lists and does not make
substantial progress in establishing the
TMDL as compared to its approved
schedule. The decision to include
threatened waters or not is left entirely
to the discretion of States, Territories,
and authorized Tribes. EPA will not use
grant conditions or other mechanisms to
influence this decision.
Second, EPA is clarifying that in order
for a waterbody to be listed in the
absence of information regarding the
presence of a pollutant, there has to be
some biological information, (e.g. not
supporting a designated or existing
habitat use) supporting the impairment
finding.
EPA is declining to make any of the
changes suggested by the commenters,
pertaining to the scope of the list of
impaired waterbodies as described by
§ 130.25. Most of the comments
suggesting that the scope of the list
should be narrowed based their
rationale! on their interpretation of the
CWA and EPA's authority under section
303(d). As stated in section I.A.2. of this
preamble, EPA believes that the CWA
does require that States, Territories, or
authorized Tribes list waters impaired
regardless of the source, except for the
statutory exception for those waters
where the installation of technology-
based treatment will attain and maintain
water quality standards. Accordingly,
today's rule provides more examples of
the types of sources, including
atmospheric deposition and ground
water, that may cause impairments
requiring placement of the waterbody
on the section 303(d) list.
EPA continues to believe that there
are merits in ensuring that the States,
Territories and authorized Tribes have a
complete accounting of impaired
waterbodies and that the public should
be able to have access to the list. As EPA
explained in the preamble to the
proposed regulations, there should be a
close relationship between the
information that States, Territories, or'
authorized Tribes used to develop the
section 305(b) list and the information
used to establish the section 303(d) list.
Indeed, one requirement of § 130.22 is
that States, Territories, or authorized
Tribes evaluate and consider their most
recent section 305(b) report in
developing their section 303(d) lists of
impaired waterbodies. Therefore EPA
does not believe that requiring the more
complete section 303(d) list imposes an
undue burden on the States, Territories,
or authorized Tribes because they are
using water-quality related data and
information that they have in hand and
may have already evaluated for their
section 305(b) report. In addition, as
discussed later in this preamble, EPA is
providing States, Territories and
authorized Tribes with significant
flexibility in the way they can provide
the list to EPA which will further
alleviate this burden.
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43607
Today's rule at § 130.25(a) also
recognizes that the existing and readily
available water-quality related data and
information used by States, Territories
and authorized Tribes for
environmentally-related measurement
or data generation must include
appropriate quality assurance and
quality control. EPA's grant regulations
require that when grantee projects, such
as State and Territorial water quality
work using CWA section 106 funds,
involve environmentally-related
measurement or data generation, the
grantee shall implement quality
assurance practices that produce data of
quality adequate to meet the project
objectives. 40 CFR 31.45. Similarly, any
monitoring or analysis activities
undertaken by a Tribe with EPA funds
must be performed in accordance with
quality assurance/quality control
practices.(§ 130.10). Therefore, EPA
believes that it is consistent with the
current requirements for how States,
Territories and authorized Tribes
consider data to recognize that the
existing and ready available data and
information must include appropriate
quality assurance and quality control.
H. How do you Apply Your Water
Quality Standards Antidegradation
Policy to the Listing of Impaired
Waterbodies? (§ 130.26)
What did EPA propose? EPA
proposed to clarify how State,
Territorial and authorized Tribal
antidegradation policies should be used
in identifying and listing impaired and
threatened waterbodies under section
303(d). As described in the preamble to
the proposed rule, antidegradation
policies and associated implementation
procedures are an essential part of State,
Territorial and authorized Tribal water
quality standards and are required
under Part 131. The preamble further
described the relationship between the
section 303(d) listing requirements and
antidegradation policies. EPA proposed
requiring that any decline in water
quality for Outstanding National
Resource Waters (ONWRs) waterbodies
would represent an impairment, and
that such waterbodies should be
identified and listed. EPA also proposed
requiring identification and listing of
unimpaired waterbodies as threatened
when trend data and information
indicated that a designated use would
not be maintained and protected by the
time of the next listing cycle. For all
waterbodies, EPA proposed requiring
identification and listing of waterbodies
as impaired where the designated use,
or a more protective existing use, was
not maintained. An existing use is a use
actually attained in the waterbody on or
after November 28,1975 (when the ;
Water Quality Standards regulations
were published), whether or not the use
is included in the Water Quality ,
Standard. See § 131.3(e). EPA also .
proposed listing such waterbodies as I
threatened when trend data indicated
the designated use, or a more protective
existing use, would no longer be
attained at the end of the next listing:
cycle. ;
What comments did EPA receive?
EPA received a number of comments •
specific to the use of antidegradation.
policies in identifying and listing
threatened and impaired waterbodies.
Many cornmenters disagreed that the!
definition of water quality standards in
the CWA and Part 131 includes an •
antidegradation policy, thereby :
asserting that EPA does not have the
authority to impose such policy on |
States and that antidegradation policies
cannot serve as a basis for listings under
section 303(d). Other cornmenters
asserted that antidegradation policies,
while pail of water quality standards]
are intended to apply only to waters that
already attain water quality standards
and thus antidegradation policies i
should not be considered when
identifying and listing impaired :
waterbodies. Several cornmenters ;
believed that ONRW waterbodies
should not be listed as impaired based
on a measurable change in water quality
since there was no exceedance of a ;
water quality standard; others asserted it
was illogical since a decline in water'
quality could be temporary. Several '
cornmenters believed that EPA should
remove the protection of existing uses
from the water quality standards !
regulation. Several commenters believed
that EPA should not require listing of
threatened waters on the basis of a ,
decline in water quality in unimpaired
waterbodies, since EPA explicitly ;
allows for a lowering of these waters':
quality to accommodate important ,
social and economic development. :
Finally, many commenters asserted that
EPA lacks the statutory authority to .
require listing of threatened waters. '.
What is EPA promulgating today? .
After carefully considering the i
comments received on the use of State,
Territorial and authorized Tribal
antidegradation policies in identifying
and listing impaired and threatened .
waterbodies, EPA is promulgating the
following requirements. First, ONRW
waterbodies are impaired and must be
listed when the water quality of such
waterbodies has declined. Second, any
waterbody not maintaining a designated
use or more protective existing use is
impaired and' must be listed. Consistent
with the decision not to require listing
of threatened waterbodies, EPA is not
including in the final rule the proposed
provision requiring listing of
unimpaired waterbodies that are
determined to be threatened based on
adverse trend data and information.
EPA rejects the assertion made by
many commenters that antidegradation
policies are not part of water quality
standards and that EPA lacks the
authority to promulgate such policies
for States, Territories or authorized
Tribes. As described in the preamble to
the proposed rule, antidegradation
policies are a required element of State,
Territorial and authorized Tribal water
quality standards. The preamble to the
Advance Notice of Proposed
Rulemaking to the Water Quality
Standards Regulation discusses at
length both the statutory and regulatory
basis for these longstanding
requirements. { 63 FR 36779-36787. July
7,1998). Further, EPA has in the past,
and may in the future, promulgate
replacement Federal water quality
standards when State, Territorial or
authorized Tribal water quality
standards do not include an
antidegradation policy which provides
protection of water quality consistent
with the Federal antidegradation policy
at § 131.12. ( § 131.32, 61 FR 64816
December 9,1996). Quite simply,
antidegradation policies are part of
water quality standards.
EPA also rejects commenters'
assertions that antidegradation policies
should not be considered when
identifying and listing impaired
waterbodies because they apply only to
waters that already attain water quality
standards. As discussed in the preamble
to the proposed rule, § 131.12(a)(l)
requires that existing uses and the water
quality necessary to protect them be
maintained and protected. This is the
fundamental level of water quality
protection, applicable to all waters of
the U.S., established by the Federal
antidegradation policy. While existing
uses and designated uses may be
equivalent, this is not always the case.
(63 FR 36751, July 7,1998). For example,
a waterbody may be designated as a
warm water fishery, but in reality be
supporting a cold-water fishery, a more
protective existing use. While the cold-
water fishery has not yet been adopted
as the designated use, as the existing use
it must be maintained and protected.
The intent of § 131.12(a)(l) is to ensure
that the more protective existing use is
maintained and protected. In this
example if the cold-water fishery is an
existing use and is impaired prior to its
adoption as the designated use in the
water quality standards, such
impairment is a failure to meet an
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43608 Federal Register/Vol. 65, No. 135/Thursday, July 13, 2000/Rules and Regulations
existing use and the water must be
listed. Therefore, EPA believes that
waterbodies which are not maintaining
designated uses or more protective
existing uses are impaired and must be
listed under section 303(d).
EPA rejects the suggestion to remove
protection of existing uses. To the extent
this comment is related to the water
quality standards regulations, it is
outside the scope of today's action. EPA
recognizes the inherent challenges
associated with identifying and
protecting existing uses. However, EPA
has long-standing requirements for the
protection of existing uses—prohibiting
the removal of existing uses and
requiring the adoption of designated
uses consistent with existing uses. The
existing requirement that water quality
necessary to protect existing uses be
maintained and protected will ensure
that past or present water quality, at a
minimum, will be maintained and
protected. Requiring listing of
waterbodies that are not maintaining
designated uses or more protective
existing uses as impaired is not only
consistent with these longstanding
requirements, but further clarifies and
strengthens the protection of existing
uses.
EPA disagrees that degradation of the
ONRW waterbody does not constitute
an exceedance of a water quality
standard. Section 131.12(a)(3)
establishes the highest level of
protection for waterbodies by
prohibiting the lowering of water
quality. Thus, the level of water quality
present at the time a waterbody is
classified as a ONRW water, even that
which exceeds the threshold for
designated use attainment, must be
maintained and protected. The only
exception to this prohibition, as
discussed in the preamble to the water
quality standards regulation (54 FR
54100, November 8,1983), is for
activities that result in short-term and
temporary changes. EPA guidance has
not defined short-term or temporary, but
views these terms as limiting water
quality degradation for weeks or
months, not years, with the intent of
limiting degradation to the shortest
possible time. For an ONRW waterbody
the applicable standard is the
prohibition on lowering of water
quality. Therefore, EPA believes that
when degradation to a waterbody
classified as an ONRW occurs (beyond
that which is short-term and temporary),
such waterbody is impaired and must be
listed under section 303(d). EPA
acknowledges that an ONRW waterbody
may have very high water quality which
far exceeds the threshold required for
attainment of its designated use.
However, the level of protection
established by Tier 3 is intended to
maintain that level of water quality into
the future. EPA notes that classification
of any individual waterbody as an
ONRW is solely at the discretion of the
State, Territory, or authorized Tribe.
I. What is the Format and Content of the
List? (§ 130.27)
What did EPA propose? EPA's
proposal at § 130.27 would have
established a specific format and
content for States, Territories, and
authorized Tribes to follow, which
organized the types of waterbodies
included on the list and clearly
identified which waterbodies would
require the establishment of TMDLs.
The proposed rule would have required
that a list consist of 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 this
part of the list.
EPA explained its belief that these
four parts were necessary because the
list no longer would include only
waterbodies for which TMDLs were
required. EPA wanted to ensure that the
public and stakeholders would be aware
of the different regulatory treatment
afforded waterbodies depending on the
basis of their inclusion on the various
parts of the list.
EPA also specifically requested
comments on the advisability of
identifying specific situations where the
proposed technical conditions for
establishment of TMDLs are not met,
what those situations might be and
whether EPA should include waters
impaired by pollutants in such
circumstances on a separate part of the
list. These comments are addressed
fully in the Response to Comments
Document and in section II.M. of this
preamble.
What comments did EPA receive?
EPA received many comments on the
proposed format and content. In general,
the same commenters who opposed the
broader scope of the list also opposed
the four parts proposed in § 130.27 for
the same reasons—lack of statutory
authority and burden for the States.
These commenters suggested that EPA
maintain the current regulation
requiring a one part list of waterbodies
impaired by a pollutant or pollutants,
and for which a TMDL is required.
Some commenters who supported the
proposed broader scope of the list also
supported the four part list of impaired
waterbodies. However, many
commenters opposed the establishment
of the Part 4 component of the four-part
list. Some opposed it because they
believed that all waterbodies impaired
by a pollutant, for which a TMDL has
not been established, should be listed
on Part 1. Others opposed it, because
they believed that the States should not
have to list impaired waterbodies where
a pollution control mechanism was
being implemented.
Several commenters supported the
establishment of the Part 4 component,
but did not agree that only enforceable
controls should be determinative for
inclusion of waterbodies on Part 4.
Many of these commenters stated that
voluntary measures, including
community-based initiatives and
incentive-based measures should also
qualify a waterbody for inclusion on
Part 4.
EPA received numerous comments
concerning the proposed requirement
that a waterbody on Part 4 must attain
water quality standards by the next
listing cycle, or be moved to Part 1.
They expressed the view that one listing
cycle might not be a sufficient amount
of time to achieve water quality
standards, and that as long as reasonable
progress towards attainment was being
made, Ihe waterbody should remain on
Part 4. In contrast, several commenters
supported the proposed requirements,
based on their belief that one listing
cycle should be sufficient to determine
whether other controls were adequate to
attain water quality standards.
A number of commenters were
concerned about the implications of
EPA's proposal to require the listing of
waterbodies where impairment was
caused by an unknown pollutant on Part
1. They were concerned that States
would list waterbodies for broad and
unspecified reasons, which would
hinder the establishment of a TMDL.
Some commenters advocated tracking
impaired waterbodies that met the
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436O9
definition of EPA's proposed Parts 2, 3,
and 4 by way of other existing reporting
mechanisms (e.g., the section 305(b)
report). These commenters expressed
support for identifying impaired
waterbodies for any reason, but
expressed a preference that section
303(d) be used only to address those
waterbodies for which a TMDL is
required.
What is EPA promulgating today?
After analyzing all the comments
received, EPA is making a number of
significant changes to the proposed
language but is retaining the concept
that the list must be divided into four
parts. EPA believes that the distinctions
provided by the four parts are important
to address some of the concerns
expressed by commenters that the list
would be confusing to the public and
could lead some to believe that TMDLs
were required for every waterbody on
the section 303(d) list. EPA also believes
that each part is important for different
reasons. Parts 1, 3 and 4 will provide
valuable information regarding the
progress made by waterbodies impaired
by pollutants. Progress in establishing
TMDLs can be tracked by following the
movement of waterbodies from Part 1 to
Part 3 of the list. Effectiveness of control
measures should result in waterbodies
removed from Part 3 or Part 4 and from
the list altogether. If control measures
are effective, very few waterbodies
should move from Part 4 to Part 1 or
from Part 3 back to Part 1; the final
regulations clarify circumstances which
would warrant such changes. Part 2
helps ensure that stakeholders are aware
of the extent to which waterbodies in a
State, Territory, or authorized Tribe are
impaired by pollution. In addition, if
States, Territories or authorized Tribes
decide to list the waterbodies which
they anticipate will become impaired
before the next listing cycle, and such
waterbodies are included on Part 1, they
must also include them in the
prioritized schedule for TMDL
establishment.
Today's final rule also requires that
Part 3 waterbodies be moved to Part 1
of the list if a State, Territory, or
authorized Tribe, or EPA determines
that the waterbodies are not showing
substantial progress towards attainment
of standards. This review could be part
of the analysis conducted by a State,
Territory, or authorized Tribe for its
section 303(d) list submittal. If a State,
Territory, or authorized Tribe, or EPA
determines that such progress is not
occurring, then the State, Territory, or
authorized Tribe must include the
waterbody on Part 1 on the next section
303(d) list and revise the schedule to
identify when the new TMDL will be
established. This provision is consistent
with EPA's proposal that TMDL
implementation plans contain a
description of when TMDLs must be ,
revised, and is intended to ensure that
such revisions will occur as envisioned
by the implementation plan, and when
otherwise appropriate. Thus, as part of
their consideration of existing and
readily available water quality-related
data and information, States, Territories,
and authorized Tribes must also
consider any such data and information
regarding Part 3 waterbodies and their
progress towards attainment of
standards. If, in that review, there is
data or information that shows
substantial progress is not being made,
the waterbody must be moved to Part 1.
This provision is particularly
important for waterbodies with TMDLs
established prior to the effective date of
today's rule or under the pre-existing
regulations within 18 months of
publication of today's rule because these
TMDLs are not required to include
implementation plans. Therefore, if
there is data or information available to
the State, Territory, or authorized Tribe
that shows such waterbodies are not
making substantial progress towards
attainment of standards, the State,
Territory, or authorized Tribe must
include the waterbody on Part 1 and .
schedule a new TMDL. The new TMDL
should be better able to achieve water:
quality standards, since it will be
required to contain an implementation
plan that meets the requirements of
§130.32(c).
EPA will use the TMDL
implementation plan to assess whether
the waterbodies on Part 3 of the list
exhibit substantial progress towards
attainment of water quality standards.!
As required by § 130.32(c), each TMDL
established in accordance with today's
rule will include a monitoring and/or.
modeling plan and criteria to determine
whether substantial progress toward ,
attaining water quality standards is not
occurring and the TMDL needs to be |
revised. EPA will use the modeling arid
monitoring information and criteria to
assess progress. For TMDLs established
prior to the effective date of today's rule
or prior to the end of the transition ;
period described in § 130.37, EPA and
the State may consider information from
section 305(b) reports and other
available water quality information
along with information on ;
implementation of wasteload and load
allocations to determine whether the
waterbody is making substantial ,
progress. In this review, EPA •will also
consider the pollutant controlled by the
TMDL and the size and expected
response of the waterbody to changed
loads.
The final rule requires that
waterbodies that are expected to attain
and maintain water quality standards by
the next listing cycle through
implementation of technology-based
effluent limits or other enforceable
controls (best practicable control
technology and secondary treatment) be
listed on Part 4 of the list. EPA believes
that there is a benefit to the public of
knowing that these waterbodies, though
currently impaired, are expected to
attain and maintain water quality
standards once the technology-based
requirements are implemented.
EPA continues to believe that
impaired waterbodies can only be
placed on Part 4 of the list (1) if they
are subject to technology-based
requirements of the CWA or other
enforceable controls, and (2) for one
listing cycle. Part 4 of the list can be
construed as an exception to the
requirement that TMDLs must be
established for all waterbodies impaired
by a pollutant or pollutants. Therefore
EPA believes that it is appropriate to
limit the scope and duration of this
exception. Although EPA strongly
supports the use of voluntary programs
to resolve many impairment situations,
EPA believes that enforceable controls
will simplify the States, Territories and
authorized Tribes' task of demonstrating
that water quality standards will be
attained within die relatively short
period between listing cycles. Similarly
EPA believes that a clear cut endpoint
to this exception is necessary to ensure
that the enforceable controls are
sufficient to attain water quality
standards.
EPA disagrees with commenters who
stated that EPA lacks authority to
require listing of impaired waters under
the Clean Water Act. EPA's analysis is
described in the preamble to the
proposed rule. 64 FR 46020-23, August
23,1999. In particular, EPA disagrees
with the reading of section 303(d)(l)(A)
as limited to waters that may need water
quality-based effluent limitations, i.e.,
. only waters that are not meeting
standards due to point source
discharges. First, EPA disagrees that the
use of the word "effluent limitations" in
section 303(d) requires a reading of this
section as limited to waters with sources
that have effluent limitations. Rather,
the term "effluent limitation" must be
read in the context of the rest of section
303(d). Read in that context, EPA
believes that Congress intended to
exclude from listing only those waters
where such limits are sufficient to
implement standards, but did not
mandate excluding any other categories
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Federal Register/Vol. 65, No. 135/Thursday, July 13, 2000/Rules and Regulations
of waters. In the absence of plain
language mandating such an exclusion,
EPA believes that a reasonable
interpretation of section 303(d),
consistent with the broader goals of the
Act, is that all other waters can be
required to be listed, since all are waters
where effluent limits are insufficient to
implement standards.
In addition, there is no other
indication in the statutory language that
section 303(d)(l)(A) only requires listing
of waters that require water quality-
based effluent limitations. In fact, such
limitations are to be established under
a different section of the Act (section
302(a)), which is not mentioned in
section 303(d). Moreover, EPA disagrees
that the legislative history referenced by
one commenter supports a different
interpretation. The commenter notes
that the legislative history of section
303(d) reveals a clear Congressional
intent to provide a mechanism for
establishing water quality effluent
limitations. However, the commenter
points to a statement in the legislative
history that describes the section 302
process for establishment of water
quality-related effluent limitations for a
single point source or a group of point
sources, not listing of waters under
section 303(d). The legislative history
simply describes the basis on which
more stringent effluent limitations will
be set (i.e., the reduction needed to
make the total load of the discharges
from municipal and industrial sources
consistent with water quality standards)
under section 302(a), and does not
support the proposition that only waters
that need water quality-based effluent
limitations should be listed under
section 303(d). See H.R. 92-911 at 105-
106, March 11,1972.
EPA also believes its interpretation of
section 303 (d) is a different situation
than the interpretation of section
211(k)(6) of the Clean Ah- Act addressed
in American Petroleum Institute v. EPA,
198 F.3d. 275 (D.C. Cir. 2000). In that
case, the court struck down EPA's
interpretation of the phrase "marginal,
moderate, serious, or severe" ozone
nonattainment areas in the Clean Air
Act to include other areas not classified
as marginal, moderate, serious, or
severe. In today's action, EPA is not
interpreting a statutory phrase intended
to circumscribe the limits of the
availability of a regulatory option, as it
was in the regulation at issue in the API
case (in that case, the ability to opt-into
the federal reformulated gasoline
program). Rather, EPA is interpreting
the language of section 303(d) to
identify the universe of waterbodies that
Congress clearly intended not be listed,
and believes that universe consists of
only one category of waters—those for
which effluent limitations required by
sections 301(b)(l)(A) and (B) are
sufficient to implement standards. This
is not a situation where Congress
"makes an explicit provision for apples,
oranges, and bananas," and therefore
was "unlikely to have meant
grapefruit." Id. at 278, citations omitted.
Rattier, it is a situation where Congress
identified only a particular category to
be excluded, and remained silent on
what should be included. In light of the
Act's silence on the waters that must be
listed, EPA believes a reasonable
interpretation is to require all waters not
meeting standards to be listed. This
ensures that such waters will have
TMDLs developed if appropriate, and
will otherwise have their water quality
problems identified, tracked, and
addressed.
Under this interpretation, each part of
the list is authorized to be required by
the Act, since none of the categories
include waters expressly excluded by
Congress. First, Part 1 includes those
waters that are not meeting standards in
spite of required effluent limitations,
due to pollutants. Second, Part 2 also
includes waters that are not meeting
standards in spite of required effluent
limitations, due to pollution where
there is no pollutant causing or
contributing to the impairment. Third,
Part 3 includes waters that are not
meeting standards in spite of required
effluent limitations, where a TMDL has
been completed. Fourth, Part 4 includes
waters that are not meeting standards in
spite of required effluent limitations,
due to pollutants, where TMDL
development need not be immediately
scheduled because required controls on
point and/or nonpoint sources are
expected to result in achievement of
standards by the next listing cycle.
Thus, none of these categories include
waters expressly excluded by Congress
in Section 303(d), and all include waters
not meeting standards. In light of the
overall goals of the Act, EPA believes it
is appropriate to require these waters to
be listed to help ensure that they will
ultimately meet standards.
EPA also disagrees that it lacks
statutory authority in particular for
requiring listing of Part 2 waters. Some
commenters who opposed this
provision argue that the reference to
"pollution" in the second sentence of
section 303(d)(l)(A) refers to the
consequence of introducing pollutants
rather than requiring the listing of
waterbodies impaired by pollution. EPA
disagrees, and believes that its
interpretation of the statutory language
is a reasonable one. EPA also notes that
it is not relying solely on the presence
of the word "pollution" in the second
sentence of section 303(d)(l)(A) to
support its authority to require listing of
Part 2 waters. EPA's analysis of section
303(d) to authorize listing of waters
beyond those requiring water quality-
based effluent limitations is described
above. The presence of the word
"pollution" is simply additional
indication that Congress did not intend
to exclude Part 2 waters from the listing
requirement, and provides further
support for EPA's authority to require
them to be listed. EPA believes that its
interpretation of the presence of the
word "pollution" is reasonable and
more consistent with the goals of the
Act than commenters' interpretation.
Finally, some commenters
misconstrue statements EPA made in
the proposal. The commenters state that
the proposal recognizes that the reach of
the section 303(d) list is co-extensive
with the waters requiring TMDLs, based
on a statement in the proposal regarding
development of TMDLs for waters with
nonpoint sources of pollutants.
However, this statement was made to
explain that there is no express
exclusion of nonpoint source waters
from section 303(d)(l)(A), and therefore
such waters are not automatically
excluded from the requirement to
develop TMDLs. EPA's statement in the
proposal was made to explain why
TMDLs are required for nonpoint source
pollutants, and was not an assertion that
only waters that need TMDLs may be
listed. In fact, EPA also states clearly in
the proposal that its interpretation of the
listing obligation is not limited to only
those waters needing TMDLs. See 64' FR
46022 ("While EPA interprets section
303(d) to require identification of all:
waters not meeting water quality
standards * * * EPA interprets section
303 (d) to require that TMDLs only be
established where a waterbody is
impaired or threatened by a pollutant")
The final regulations also clarify that
when biological information indicates
that waterbodies are impaired but the
pollutant is unknown, these \
waterbodies should be placed on Part 1
of the list unless data and information
clearly indicate that pollution, not a
pollutant, is the cause of the
impairment.
Waterbodies may be removed from
Part 1 in several ways. If a TMDL is
established and approved by EPA, the
waterbody may be moved to Part 3 of
the list for the pollutant the TMDL ,
addresses. In the absence of a TMDL, if
new data or information shows that the
waterbody is meeting the applicable
water quality standard for a particular
pollutant, the waterbody may be
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removed from the section 303 (d) list for
that pollutant.
EPA agrees with the commenters who
suggested that information on Parts 2, 3
and 4 could be submitted as part of the
section 305(b) report. The final
regulations provide States, Territories
and authorized Tribes with the
flexibility to submit their list in any of
three ways: as a stand alone list, as a
clearly identified component of the
section 305(b) report or in two sections:
Part 1 as a stand alone list with Parts 2,
3 and 4 clearly identified in the section
305(b) report. Regardless of which
format the States choose, the
information must be consistent with the
requirements of §§130.22,130.25,
130.26,130.27, 130.28, and 130.29. EPA
will review and approve or disapprove
all four parts of the list. When States,
Territories or authorized Tribes elect to
submit all or part of their list as a
component of the section 305(b) report,
it is only the information required by
§§ 130.27 and 130.28 that is considered
to be part of the section 303(d)
submittal. EPA recognizes that the
section 305(b) report includes
information other than that required by
§§ 130.27 and 130.28; this additional
information is not considered as part of
the section 303(d) list.
No matter which reporting format a
State, Territory, or authorized Tribe
chooses, EPA will take action on the
entire list (i.e., all four parts). These two
options are included for the sole
purpose of providing flexibility to those
States that wish to coordinate their
section 305(b) reports with their section
303(d) lists. While joint reporting of the
section 305[b) report and the section
303 (d) list is not required, coordination
of the two reports provides benefits for
States, Territories, and authorized
Tribes willing to use this option. These
benefits include eliminating possible
redundancy in monitoring, assessing,
and reporting on the condition of water
quality for two related CWA
requirements. They also include using
limited monitoring resources more
efficiently which may free resources to
increase the numbers of waterbodies
assessed and improve the quality of the
data collected. Under the regulations,
the most recent section 305(b) report is
considered to be existing and readily
available information that a State,
Territory, or authorized Tribe must
consider in assembling the section
303(d) lists and the methodology must
describe how the section 305(b) report
will be considered in the listing process.
EPA notes that, even under the two
options for the list format that allow for
full or partial consolidation with the
section 305(b) report submission, the
regulations do not require that all waters
identified as not meeting standards on
the section 305(b) report be included on
the section 303 (d) list.
Finally, EPA is making a minor
change to the proposed language of
§ 130.27(c) which would have required
EPA and States to agree on the
georeferencing system used to identify
the geographic location of the impaired
waterbodies. The final regulations .
require that States use either the
National Hydrography Database or
subsequent revisions, which is the
system used by EPA and the U.S.
Geological Survey or a compatible
system.
/. What Must the Prioritized Schedule
for Submitting TMDLs to EPA Contain?
(§130.28)
What did EPA propose? In the
proposal, EPA included proposed
§ 130.28 dealing with how States should
prioritize the impaired waterbodies on
Part 1 of their list and proposed § 130.31
which would have required States to
provide to EPA a schedule depicting
when TMDLs would be developed. Both
the priority rankings and the schedule
would have had to be submitted to EPA
at the same time as the list but EPA ;
proposed to only approve the .list and
priority ranking, not the schedule.
In § 130.28 EPA proposed that States,
Territories, and authorized Tribes .;
would assign either a high, mediuniior
low priority to each waterbody and ;
pollutant combination on Part 1 of the
list. The proposal would have required
States, Territories and authorized Tribes
to consider in their priority ranking the
two factors listed in section 303(d)(:p of
the CWA, and the severity of the :
impairment and the designated use of
the waterbody, and also listed a number
of proposed optional factors. EPA !
further proposed that a high priority
would have to be assigned to impaired
waterbodies designated for use as public
drinking water supplies, where the ;
impairment was contributing to a ;
violation of an Maximum Contaminant
Level (MCL), and for waterbodies ;
supporting a species listed as
endangered or threatened under section
4 of the Endangered Species Act, unless
the State, Territory, or authorized Tribe
could demonstrate that the impairment
did not affect the listed species. The
proposal would have required Statejs,
Territories, and authorized Tribes to
provide EPA with an explanation of
how they had used the ranking factors
in determining their priorities. ;
Section 130.31 of the proposal would
have eliminated the current requirement
that the listing submission include a list
of the waterbody/pollutant
combinations scheduled for TMDL
development in the next two years.
Instead, EPA proposed that States,
Territories, and authorized Tribes be
required to submit with Part 1 of their
list comprehensive schedules for
establishing TMDLs for all waterbody/
pollutant combinations on Part 1 of
their list as expeditiously as practicable
and no later than 15 years after the
initial listing with a reasonably paced
workload and generally in accordance
with their priority rankings. EPA also
proposed to recommend, but not
require, that TMDLs for high priority
waterbody/pollutant combinations be
established first.
What comments did EPA receive?
EPA received a significant number of
comments specific to the proposed
priority ranking requirements. Several
comments supported EPA's proposal,
others, however, objected to this
provision, for one of two reasons. Some
comments said EPA should give States
the flexibility to prioritize their
waterbody/pollutant combinations
anyway they choose. Others objected to
this provision because of their opinion
that a high, medium and low priority
ranking was insufficiently precise.
There were a wide variety of
comments with regard to the factors that
should be employed in priority rankings
of waterbody/pollutant combinations.
Some comments said that only the two
factors cited in section 303(d)(l) of the
CWA—severity of impairment and uses
of the waterbody—should be
considered. Other comments said these
two factors alone were too narrow to
provide an adequate basis for ranking,
and called for a variety of other factors
to be considered. Some said that certain
factors listed in EPA's proposed
regulation—aesthetic, cultural,
historic—should not be considered at all
in priority ranking because they were
not related to the goals and objectives of
the CWA.
EPA received comments offering a
variety of views on the issue of whether
or not to specify certain factors that
would automatically put a waterbody/
pollutant combination in the high
priority category. Some supported this
concept in general, while other
comments opposed it. Numerous
comments objected to one or both of the
two factors listed in EPA's proposal—
presence of threatened or endangered
species or contribution to a violation of
an MCL in a waterbody designated for
public water supply use. The most
frequently expressed concern about the
endangered species factor was the need
to prove a negative (i.e. a pollutant is
not harming the listed species). The
most common criticism of the public
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43612 Federal Register/Vol. 65, No. 135/Thursday, July 13, 2000/Rules and Regulations
water supply ranking factor was that the
EPA proposal seemed to be applying the
Safe Drinking Water Act MCL in the raw
water supply, rather than at the tap.
Some comments, however, indicated
that it was imperative to consider such
situations as high priority, regardless of
other, possibly mitigating, factors.
Further comments suggested additional
factors that should merit automatic high
priority ranking for a waterbody/
pollutant combination—waterbodies for
which fish consumption advisories had
been issued were mentioned several
times in this regard.
EPA received numerous comments on
the issue of schedules for TMDL
establishment. Some comments
supported retaining the existing
regulatory requirement. Some comments
said States should not have to provide
any schedule for TMDL establishment
while others supported the proposal.
Several comments said that schedules
laid out under a State's rotating basin/
watershed approach, rather than
priorities put forth in the proposal,
should be the primary determinant of
the schedule for TMDL development.
Commenters were split on the issue of
EPA review and approval of the
schedule. A substantial number of
comments said States should not get
locked into the comprehensive 15 year
schedules they would initially submit,
and should be able to modify the
schedules over time, to adjust to new
information and changing
circumstances. Some comments said
that after the initial listing of a
waterbody and pollutant combination,
15 years was a reasonable maximum
time for TMDL establishment. On the
other hand, quite a few comments said
15 years was far too long a period and
recommended considerably shorter
timelines for TMDL establishment. Still
others said that 15 years might not be
enough time for establishing certain
types of TMDLs, particularly ones
involving high degrees of complexity or
difficult-to-address issues such as air
deposition or legacy pollutants.
What is EPA promulgating today?
Having considered the comments
received on the proposal's provisions on
priority ranking (§ 130.28) and
scheduling (§ 130.31), EPA is
promulgating a rule that requires States,
Territories and authorized Tribes to
develop and submit a prioritized
schedule. This approach combines the
two proposed provisions into one,
§ 130.28 of today's rule, entitled "What
must your prioritized schedule for
submitting TMDLs to EPA contain?"
EPA is not promulgating the proposed
requirement that waterbody/pollutant
combinations be categorized into high,
medium, and low priorities. Rather,
today's rule requires that Part 1 of the
list include a prioritized schedule for
establishing TMDLs on Part 1 of the list.
This change recognizes the close
connection between prioritizing and
scheduling waterbodies for TMDL
development. Schedules are considered
part of the list and subject to EPA
review and approval.
Section 303(d) requires States to
"establish a priority ranking" for the
waters it identifies on the list, taking
into account the severity of the
pollution and the uses to be made of
such waters, and to develop TMDLs "in
accordance with the priority ranking."
To implement this provision, EPA is
requiring States, Territories and
authorized Tribes to develop a schedule
for TMDL establishment that identifies
when each TMDL will be completed. In
developing the schedule, States,
Territories and authorized Tribes will
need to decide which TMDLs are higher
priority than others, taking into account
the statutory factors identified above, as
well as other relevant factors described
in the regulations. EPA is not requiring
States, Territories or authorized Tribes
to specifically identify each TMDL as
high, medium or low priority, since the
scheduling process will require that
each TMDL be ranked in priority order
by date of development rather than by
categorization as high, medium or low
priority. The statute does not prescribe
a particular method of establishing a
priority ranking, and EPA believes that
prioritizing by developing a schedule is
a reasonable, efficient way to do this.
hi particular, the schedule is
preferable to simply requiring that
waterbodies be categorized as high,
medium or low priority, since it
identifies a specific time frame within
which the public can expect each TMDL
to be developed, and thus better enables
public participation in TMDL
development because citizens can
anticipate when work will happen on a
particular TMDL that is of interest to
them. Categorization would not
necessarily inform the public when
specific TMDLs are to be developed, but
rather simply identifies which TMDLs
the State, Territory, or authorized Tribe
believes should be done first. In
addition, requiring a prioritized
schedule rather than categorization plus
a schedule eliminates a step in the
process that EPA believes is
unnecessary and adds little value to the
list. Once a schedule is developed,
whether a State, Territory, or authorized
Tribe believes a particular TMDL is of
high, medium or low priority is
unimportant and the relative priority of
each TMDL will be apparent based on
whether it is to be developed early or
late in the schedule. The public will be
able to comment on the time frame in
which the State, Territory, or authorized
Tribe intends to develop each TMDL. In
this way the schedule provides the
public better information on the State's,
Territory's, or authorized Tribe's
priority ranking for TMDL development
than simply identifying waterbodies as
high, medium, or low priority.
Requiring a prioritized schedule
eliminates the need for such
categorization.
In today's rule, EPA is modifying the
proposed regulations to require that the
prioritized schedule for TMDL
development be submitted as part of the
section 303(d) list for EPA approval or
disapproval. This approach is consistent
with section 303(d) of the Act, which
requires States, Territories, and
authorized Tribes to both identify
waters and establish a priority ranking
for the identified waters as the first step
in the process that is ultimately
intended to result in the attainment of
water quality standards. While the Act
does not explicitly require EPA to
approve or disapprove the priority
ranking as part of the list submission,
EPA believes that doing so is a
reasonable exercise of its discretion to
ensure that the goals of section 303(d)
are achieved, consistent with EPA's
authority under section 501(a) to adopt
regulations necessary to carry out its
functions under the Act. The priority
ranking, embodied in the prioritized
schedule required by today's
regulations, is an essential step between
the identification of waters and the
development of TMDLs for waters that
need them. The 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. Thus,
because of the critical importance of the
prioritized schedule in the overall
section 303(d) process, EPA believes it
needs to ensure that a State's,
Territory's, or authorized Tribe's
schedules are reasonable and consistent
with the Act by reviewing and
approving or disapproving the
schedules as part of the list
submissions, and establishing schedules
in the event of a disapproval or a failure
by the State, Territory, or authorized
Tribe to do so. :
For the sake of clarity the following
discussion follows the structure of
130.28.
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43613
Expeditious Schedules (§ 130.28(b))
EPA is revising the proposal to
require that establishment of TMDLs be
evenly paced and as expeditious as
practicable. In addition, States should
schedule TMDLs no later than 10 years
from July 11, 2000 or the initial listing
date, which ever is later. The rule also
provides that the schedule for specific
TMDLs can be extended for an
additional 5 years if a State, Territory,
or authorized Tribe explains to EPA that
the shorter schedule is not practicable.
EPA is shortening the proposed 15-
year schedule to a requirement that the
schedule be as expeditious as
practicable and evenly paced, and that
it should generally not extend beyond
10 years. As pointed out by many
commenters, a ten year schedule is
consistent with current EPA policy. See
"New Policies for Establishing and
Implementing Total Maximum Daily
Loads," August 8,1997. As stated in the
1997 policy memorandum, EPA was to
work with States to help schedule
TMDL establishment within 13 years,
i.e., by 2010. EPA believes that some
States, Territories, or authorized Tribes
can complete the TMDL development
within 10 years, as evidenced by some
current State schedules and by
increased resources devoted to TMDL
programs in many States as well as
available through increased Federal
funding. Currently, 46 States are
developing TMDLs based on schedules
of 13 years or less, 20 of which are
developing TMDLs based on a 10-year
schedule. Further, EPA believes that
making this change is reasonable since
the regulations also provide that the
schedule can be extended up to an
additional 5 years for a total of 15 years
if the State, Territory, or authorized
Tribe explains that it needs the
additional time to complete the task.
A State, Territory, or authorized Tribe
would need to explain why a 10-year
schedule is not practicable. For
example, a State, Territory, or
authorized Tribe could show that,
despite working expeditiously, given
the number of TMDLs that are required,
they will require more than 10 years to
complete all TMDLs. The State,
Territory, or authorized Tribe could also
show that the complexity of one or more
TMDLs might require more time to
collect information to quantify loadings
from sources or to secure commitments
for loading reductions for sources
outside the State, Territory, or
authorized Tribe. In these cases, the
State, Territory, or authorized Tribe may
schedule some TMDLs within an
additional five years.
By changing "reasonably paced" to
"evenly paced", EPA intends that
States, Territories, and authorized
Tribes must schedule TMDL
development in a way that reflects a
generally even pace in establishing
TMDLs over the length of the schedule.
EPA recognizes that States, Territories
and authorized Tribes will have valid
reasons for establishing more TMDLs in
some years and fewer TMDLs is other
years. This may occur due to the varying
degree of complexity and efficiencies
which pertain to TMDL development in
different watersheds in a State,
Territory, or authorized Tribe. However,
the general trend and pace of TMDL .
establishment across the schedule, after
allowing for understandable year-to-year
variation, should, with some exceptions,
be generally even. While current ,
schedules appropriately account for the
ramp-up period needed for monitoring
and other preliminary activities, EPA
believes by April 2002 (when new
schedules are required) that States, .
Territories, and authorized Tribes I
should be in a position to schedule ;
TMDL development on a more even
pace. Of course, application of this '
general requirement must account for
additional time that may be needed to
develop particularly complex or data-
intensive TMDLs. In those cases, !
establishment of a smaller number of
TMDLs may be justified. Similarly, the
number of TMDLs may be larger in a,
year in which a State, Territory, or :
authorized Tribe concentrates on
waterbodies for which a substantial ;
amount of information has already been
gathered.
The proposed approach, which would
have required TMDLs to be established
as expeditiously as practicable but no
later than 15 years from the time the;
waterbodies were listed on Part 1, could
have led to the unintended result that
TMDLs for waterbodies included on;
Part 4 would be delayed if the :
waterbody was later moved to Part 1;
EPA believes that TMDLs for waters •
included on Part 4, where enforceable
controls ultimately fail to result in :
attainment of standard by the next
listing cycle, should not be i
unnecessarily delayed. The addition'of
a Part 4 of the list was not intended to
encourage or allow for such delay. Iri
addition, it is reasonable to expect '•,
TMDLs for such waterbodies to be •
developed within 10 years (or up to 15
years, for certain TMDLs, as described
above) of initial listing on any part of
the list, since States, Territories, or '.
authorized Tribes will be keeping track
of progress on Part 4 waters to '
determine how well the enforceable :
controls are working and should be able
to use this information to develop
TMDLs for such waters well within the
timeframe required by today's
regulations.
The final rule also clarifies that the
provision that States, Territories, and
authorized Tribes should generally
schedule all TMDLs no later than 10
years (with a possible 5 year extension)
from the later of July 11, 2000 or the
date of initial listing of the waterbody/
pollutant combination on a section
303(d) list applies to waterbodies on a
section 303(d) list prior to today's
action. Thus, TMDLs for waterbodies
that appeared on a section 303(d) list
prior to today's action would need to be
established no later than July 11, 2010,
unless the schedule is extended as
described above. This avoids
unreasonably short deadlines for TMDL
establishment for States, Territories, and
authorized Tribes which happened to
have listed a substantial portion of their
impaired waters well before the
promulgation of this rule. EPA believes
it is appropriate to use the July 11, 2000
(i.e., the date of signature of today's
action) as the baseline date for the 10-
year schedule provision since States,
Territories, or authorized Tribes have
not been, until now, required by
regulation to identify schedules for
TMDL development other than
specifying TMDLs that will be
developed in the next 2 years. While
States, Territories, or authorized Tribes
should have schedules at this time in
response to a request from EPA ("New
Policies for Establishing and
Implementing Total Maximum Daily
Loads," August 8,1997), in light of the
new requirements in today's rule,
States, Territories, or authorized Tribes
should have an opportunity to reassess
their TMDL development obligations
and develop an appropriate schedule.
Requiring TMDLs to be scheduled 10
years from the original listing could
penalize States who had established
comprehensive lists by 1992 by
allowing them less time to complete
TMDLs than those States, Territories, or
authorized Tribes that more recently
developed more comprehensive lists.
Identification of TMDLs to be
Established (§130.28(c))
Today's rule provides more specificity
regarding the minimum level of detail
required in schedules for establishment
of TMDLs than did the proposal.
Today's rule requires States, Territories,
and authorized Tribes to indicate in
their schedule which specific TMDLs
will be completed in each year of the
schedule. EPA has chosen to require
scheduling of TMDLs in year blocks to
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43614 Federal Register/Vol. 65, No. 135/Thursday, July 13, 2000/Rules and Regulations
provide sufficient detail to allow all
those involved in TMDL development to
plan for the workload involved at
various points in time. States,
Territories, and authorized Tribes can
change the order of TMDL
establishment within any year period
without consulting with EPA or seeking
EPA approval. EPA will approve
schedules if they reflect the priority
factors and timeframes outlined in the
rule. The schedules must also
demonstrate that establishment of
TMDLs is as expeditious as practicable
and evenly paced over the duration of
the schedule.
EPA realizes that it is possible that
States, Territories, and authorized
Tribes will not be able to meet even this
less precise schedule for each and every
TMDL they must establish, and expects
that States, Territories, and authorized
Tribes will need to avail themselves of
the opportunity to adjust schedules for
TMDL establishment to reflect new
information and other changing
circumstances, and that such
adjustments will be reflected in each
subsequent list submitted on April 1
every fourth year. As long as States,
Territories, and authorized Tribes
establish each TMDL on Part 1 of their
list as expeditiously as practicable and
the revised list reflects even pacing of
the overall TMDL establishment task,
within the timeframes specified in the
regulations, taking the required factors
into account, EPA will approve such
schedule modifications without
requiring that the entire schedule be
revised.
When a State, Territory, or authorized
Tribe must develop multiple TMDLs
within a watershed, EPA encourages the
State, Territory, or authorized Tribe to
schedule the TMDLs to be established at
roughly the same time. This coordinated
approach makes use of any efficiencies
in coordinating monitoring, water
quality analyses, implementation and
public participation. It also helps
integrate the establishment of TMDLs
with the use of rotating basin or
watershed approaches for restoring
water quality. EPA is encouraging
States, Territories and authorized Tribes
to use a coordinated approach by
making it one of the factors that may be
considered and by including in the final
rule language that explicitly
recommends that States, Territories and
authorized Tribes use this approach.
Priority Factors (§ 130.28(d), (e) (fl)
The final rule incorporates the
prioritizing scheme of the proposal into
the final requirements for a prioritized
list. The final rule retains the concept
that the statutory factors of severity of
impairment and designated use of the
waterbody should form the basis for
prioritizing waterbodies. In addition,
the final rule requires States, Territories,
and authorized Tribes to consider
drinking water uses and presence of a
threatened or endangered species as
higher priorities. However, the final rule
does not require that an impairment at
a public drinking water supply or the
presence of threatened or endangered
species be an automatic high priority for
TMDL establishment. Rather, the State,
Territory, or authorized Tribe may give
waterbodies with these two factors
present a lower priority (i.e., a later date
for TMDL development) if the State,
Territory, or authorized Tribe explains
why this is appropriate. As another
example, biological information might
be available to allow a State, Territory,
or authorized Tribe to show that other
factors are the stressors to the
threatened or endangered species.
Also, EPA is not including in today's
rule the proposed language that strongly
encouraged States, Territories, and
authorized Tribes to establish all
TMDLs for high priority waterbody/
pollutant combinations before
completing TMDLs for medium or low
priority combinations. These provisions
have become moot because today's final
rule does not include a requirement for
ranking each waterbody/pollutant
combination as either high, medium or
low priority. Rather, a date must be
specified for TMDL development for
each waterbody/pollutant combination
on Part 1. Thus, rather than grouping
each TMDL into one of 3 categories of
priority States will rank each TMDL
according to the most appropriate time
frame for its establishment taking into
account the factors described in this
section. EPA believes that the
prioritized schedules submitted by
States, Territories and authorized
Tribes, along with the explanations of
how various factors were utilized in the
development of such schedules, will
serve the same purpose as the
provisions it eliminated.
K. Can the List be Modified? (§ 130.29)
What did EPA propose? EPA
proposed at § 130.29 to adopt the FACA
Committee's recommendations that
waterbodies should remain listed until
water quality standards were attained,
and that a previously listed impaired or
threatened waterbody could be removed
from the list at the time of the next list
only when new data or information
indicated that the waterbody has
attained water quality standards.
What comments did EPA receive?
Many commenters supported the
regulations as proposed. Several
commenters strongly encouraged EPA to
allow for immediate removal of
waterbodies that met the de-listing
requirement (i.e. in the interim period
between listing cycles) especially if the
Agency decided to promulgate a four or
five year cycle for the listing
requirement. This reflected a concern
that waterbodies that were not impaired
would remain on the lists for several
years, leaving the public with an
incorrect impression about the
condition of the waterbody. There was
also a fear that States, Territories, and
authorized Tribes would elect to, or be
forced to, move ahead with
development of TMDLs for such waters,
even though they were no longer
needed. A number of commenters
suggested that the information
requirements for removing a waterbody
from the section 303(d) list should be no
more rigorous than the requirements for
listing a waterbody. Other commenters
suggested that States, Territories, and
authorized Tribes should be able to add
some waterbodies between the times
when the full lists are required.
Commenters also asked that the
regulations specify that the
methodology and public participation
requirements should apply to delisting.
Finally, several commenters reiterated
that waterbodies should not be removed
from the section 303(d) list just because
a point .or nonpoint source control
measure was implemented but had to
remain listed until water quality
standards were met.
What is EPA promulgating today? '
EPA generally agrees with the
comments it received on this section.
EPA agrees that States should be able to
remove waterbodies from a list at times
other than those when full lists must be
submitted to EPA. This is consistent
with section 303(d) which requires
States, Territories, and authorized
Tribes f:o submit lists of waters "from
time to time." EPA has previously
interpreted section 303(d) to allow
removal of waterbodies that attain water
quality standards at times other than
when they make their biennial list
submissions. See "Guidance for 1994
Section 303(d) Lists," November 26,
1993. By extension, EPA believes that
the same flexibility should be provided
for adding waterbodies to the list.
Therefore EPA has reshaped this section
in the final regulation to cover
modifications of the list (i.e. listings,
delistings and changes to the prioritized
schedules). These provisions regarding
modifications to the list at times other
than required list submissions do not
alter what is permitted under the pre-
existing regulations. EPA is simply
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43615
adding regulatory language to clarity
that States may modify their lists at
times other than required submissions
and to clarify the procedure for doing
so. EPA is maintaining the proposed
requirements that waterbodies must
remain on the list until water quality
standards are attained.
EPA is also adding a § 130.29(e)
which specifies that changes to the
schedule for TMDLs which the State,
Territory, or authorized Tribe make
must be considered a modification of
the list if they involve rescheduling
establishment of a TMDL from one year
to another. Changes to the list are
subject to EPA review and approval/
disapproval. EPA notes that these
modifications to the list may be time
consuming and expects that States,
Territories, and authorized Tribes will
use these provisions no more than once
a year, mostly to remove waterbodies
which have attained water quality
standards from the list.
EPA is adopting regulatory language
to clarify the specific requirements that
apply when a State, Territory, or
authorized Tribe modifies its list in
between required list submissions. First,
the regulations provide that the scope of
public notice and opportunity for
comment on the modification shall be
limited to the waterbodies and issues
raised by the modification. For example,
if the State, Territory, or authorized
Tribe develops a draft list modification
that removes certain waterbodies based
on new information collected since the
prior list submission, the public notice
and the opportunity for comments
would be limited to those particular
waters and the water-quality related
data the State, Territory, or authorized
Tribe believes warrants removal from
the list. Neither the State, Territory, or
authorized Tribe nor EPA would be
obligated to address comments on the
remainder of the list or other unrelated
waters. As another example, if the State,
Territory, or authorized Tribe proposes
to add or remove certain waterbodies
based on a change to the methodology
used in the prior list, the public notice
and opportunity for comments would be
limited to such change and to any
waterbodies affected by it. Neither the
State, Territory, or authorized Tribe nor
EPA would be obligated to address
comments on other aspects of the
methodology or other unaffected waters.
When submitting list modifications,
the same provisions apply to removal of
waterbodies as for required list
submissions. A State, Territory, or
authorized Tribe may remove a listed
waterbody only if new water-quality
related data or information indicates it
is attaining and maintaining applicable
water quality standards. A State, •
Territory, or authorized Tribe may! add
a waterbody to the list if there is data
or information showing it is impaired.
When developing a list modification,
the State, Territory, or authorized Tribe
must satisfy the same public process
requirements that apply to required list
submissions—the State, Territory, OT
authorized Tribe must provide adequate
notice to the public of the draft list
modification, must provide at least 60
days for public comments on the :
modification, and must address relevant
comments in its submission of the
modification to EPA. •
However, EPA is not requiring prior
submission of a methodology for each
list modification. Because the
methodology is generally requiredto be
submitted at least two years before
required list submissions (after allowing
the public an opportunity to comment),
EPA believes it would be overly
burdensome to require submission of
the methodology for each list
modification, and would undercut the
purpose of the modification provision,
i.e., to allow States, Territories and
authorized Tribes to more easily make
appropriate changes in their lists in
between required submissions. Thus,
States, Territories and authorized Tribes
are not required to submit a
methodology for the modification prior
to the submission of the modification.
EPA expects that in most cases the
State, Territory, or authorized Tribe will
use the same methodology used in the
most recent required list submission for
modifications. However, where the
modification includes a change to the
methodology, EPA expects that the
modification provided to EPA will
identify and explain such change so that
EPA can consider it in its review of and
action on the modification. In addition,
when providing public notice of a
modification that includes a change to
the pre-existing methodology, the State,
Territory, or authorized Tribe would
need to identify and explain such ;
change to the public since it would be
the basis for resulting additions to'oi
removals from the list. i
EPA is including a provision in the
regulations clarifying that a State's,,
Territory's, or authorized Tribe's
revisions to their prioritized schedules
must be considered modifications ko the
list and submitted to EPA as such. This
is consistent with the definition of the
list to include both the identification of
waters and pollutants and the I
prioritized schedule for TMDL j
development. Revisions to the schedule
would include moving any TMDL :from
any one-year period to another, and
must be based on new information in
accordance with the priority ranking.
Thus, for example, a State, Territory, or
authorized Tribe may receive new
information regarding newly found
sources of pollutants in a particular year
and may decide on that basis to move
certain TMDLs earlier or later in the
schedule. Similarly, the State, Territory,
or authorized Tribe may become aware
that water-quality related data relevant
to development of a particular TMDL
will be available earlier than expected,
and may therefore decide to move that
TMDL earlier in the schedule. In either
case, the State, Territory, or authorized
Tribe must constrain the modification
such that it establishes at least the same
number of TMDLs in the first four year
period. This requirement serves to
ensure that the State, Territory, or
authorized Tribe establish TMDLs at an
even pace. EPA will review revisions to
the schedule to determine if they are
consistent with the regulatory
provisions governing development of
the prioritized schedule, and will
approve or disapprove them as
appropriate.
Some waterbodies are listed by States,
Territories, and authorized Tribes for
multiple impairments. When a State,
Territory, or authorized Tribe has new
water-quality related data or
information showing that a waterbody
attains water quality standards, it may
be for only some of the pollutants
causing the impairment. In this
instance, the States, Territories, and
authorized Tribes may remove only
those pollutants from the list that no
longer cause impairment, but cannot
remove the waterbody itself until it has
new water-quality related data or
information showing that the waterbody
attains water quality standards for all
the impairments that caused the listing.
EPA interprets "new water-quality
related data or information" to include
new water quality data or water quality
modeling information that supplements
water quality data. EPA also interprets
"new data or information" to include
such instances as when the State,
Territory, and authorized Tribe has
revised the applicable water quality
standard consistent with Part 131, EPA
has approved that standard, and existing
water quality data shows that the
waterbody attains the new water quality
standard. EPA also interprets "new data
or information" to include where the
State, Territory, and authorized Tribe
can show that the existing data actually
showed that the water quality standards
were attained and that the waterbody
was listed in error due to a
transcription, typographical, or some
other clerical error. Therefore, "new" is
not limited to data or information
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collected after listing. The intent of the
new requirement is to ensure that listed
waterbodies (or pollutants) are not
removed in the absence of data or
Information indicating attainment of
water quality standards.
EPA does not interpret "new data or
information" to allow removal of a
waterbody (or pollutant) in instances
where a State, Territory, and authorized
Tribe disputes the quality of the
information or reinterprets the same
Information that it previously used to
list a water on the section 303(d) list
and concludes the data or information
did not support a finding of impairment.
EPA is not suggesting that States,
Territories, and authorized Tribes use
poor quality data to support listing
waterbodies on the section 303(d) list.
Rather, in the absence of data or
information supporting a determination
that a waterbody is attaining water
quality standards, a waterbody should
not be removed from the list. The one
exception that would allow removal
would be a waterbody that was listed
incorrectly. EPA recognized this
possible situation in the August 23,
1999, proposal. (64 FR 46024, August
23,1999). EPA intended this to cover
situations where a water was listed due
to an error such as a transcription or
typographical error, not a re-evaluation
of data on which the waterbody was
originally listed. EPA will consider
State, Territories and authorized Tribes
methodologies in approving or
disapproving lists but it is not obliged
to approve decisions simply because
they are consistent with the
methodologies.
Finally, EPA is adding § 130.29(g) to
allow EPA to modify a list consistent
with the provisions of paragraph (c), (d),
and (e) of this section. As described in
today's preamble, EPA at times may be
required to establish a TMDL. ha the
course of developing the TMDL, EPA
may find new information that shows
that the waterbody should not be listed
on Part 1 of the list and a TMDL is not
necessary. For example, EPA could find
that, based on new data or information,
the waterbody is attaining and
maintaining the applicable water quality
Standards. This is the criterion that
allows a State, Territory, or authorized
Tribe to remove the waterbody/
pollutant combination from the list. In
this situation, the waterbody is not
required to be listed and no TMDL is
required. EPA could also find that, for
waterbodies listed on the basis of
biological information, the cause of the
impairment is not a pollutant or
pollutants, but rather some attribute of
pollution. In this situation, the
waterbody belongs on Part 2 of the list
and no TMDL is required.
In examples such as these, there is no
merit in developing a TMDL; yet in the
absence of this new provision, the
requirements of today's rule would have
EPA establish the TMDL. For this
reason, EPA believes it should have the
same authority to modify a section
303(d) list to remove a waterbody/
pollutant combination, in accordance
with the same requirements that pertain
to States, Territories, and authorized
Tribes.
L. When Must the List of Impaired
Waterbodies be Submitted to EPA and
What Will EPA do With it? (§ 130.30)
What did EPA propose? EPA
proposed that States, Territories, and
approved Tribes would be required to
submit their list of threatened and
impaired waterbodies and the priority
rankings of waterbody and pollutant
combinations to EPA by October 1 at
regular intervals. EPA noted that it was
considering ranges of two, four or five
years, for these intervals beginning with
the year 2000. EPA proposed to
maintain the current requirement that
EPA review and either approve or
disapprove a submitted list within 30
days of receipt. EPA also proposed to
require States, Territories, and
authorized Tribes to incorporate
approved lists of impaired waterbodies
in Water Quality Management Plans.
Finally, EPA proposed to codify in the
regulations its authority to establish lists
for States, Territories, or authorized
Tribes which do not.
What comments did EPA receive? The
issue of how frequently States,
Territories, and authorized Tribes
should submit lists of impaired waters,
priority rankings and schedules, was the
subject of numerous comments.
Regarding the frequency of submission
of lists, priority rankings and schedules
for TMDL establishment, five years was
the most commonly supported period,
with four years getting a large number
of supporters. Retaining the current two
year cycle also received a substantial
amount of support.
Those supporting a longer listing
cycle (more than two years) provided a
variety of reasons for their position. A
large number of commenters believed
that a two year cycle forced States,
Territories, and authorized Tribes to
spend too much time preparing listing
reports, thereby diverting limited
resources away from developing and
implementing TMDLs. Nearly as many
commenters indicated that a longer
cycle would enable States, Territories,
and authorized Tribes to do a better job
of assembling and interpreting data
regarding the condition of waterbodies.
Others observed that it is unusual for
the condition of a waterbody to change
measurably in just two years, and
having to prepare a report saying "no
change" was not a wise use of resources.
Some commenters thought that longer
cycles would encourage efforts to
implement pollution controls and
thereby prevent waters from going on
the list (or at least Part 1) in the first
place.
Those supporting a five-year cycle
noted the correlation with the five year
term of NPDES permits and the five-year
cycle employed by most States that have
adopted the watershed/rotating basin
approach. Those supporting a four-year
schedule noted that this would
correspond to every second section
305(b) report submitted by States, ;
Territories, and authorized Tribes. On
the other hand, some supporters of
longer cycles called for establishment of
interim milestones such as water quality
monitoring or source identification,
during the cycle, to ensure adequate
funding and budgeting by States,
Territories, and authorized Tribes.
Those supporting retention of the
current two-year cycle offered a number
of reasons in support of their position.
Numerous commenters feared that
longer listing cycles would serve to
delay the date by which TMDLs were
established for some waterbodies, which
in turn would delay the date on which
water quality standards were attained.
For example, commenters were worried
that lengthening the listing cycle would
result in more waterbodies being placed
on Part 4 of the list, and such ,
waterbodies staying on Part 4 longer, yet
ultimately failing to meet water quality
standards by the next listing cycle, and
still needing TMDLs. Quite a few
comments said the public needed more
frequent, not less frequent, reports on
which waters were impaired.
Comments were split with regard to
whether April 1 or October 1 of the
"listing year" should be the deadline for
submission of the section 303(d) lists.
Those favoring April 1 believed that
having concurrent deadlines for the
section 305(b) reports and the section
303(d) lists would reduce duplication of
effort on the part of States, Territories,
and authorized Tribes. Those favoring
October 1 believed that it would be
beneficial to have several months after
the due date for the section 305(b)
report to perform additional analysis
needed for completing the section
303(d) report. EPA also received
comments recommending against
incorporation of approved lists of
impaired waters in Water Quality
Management Plans. These comments
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43617
expressed concern about the volume of
information included in these plans.
What is EPA promulgating today?
EPA is today promulgating the
requirement that States, Territories, and
authorized Tribes submit their lists of
impaired waters including prioritized
schedules by April 1 of every fourth
year, starting in 2002.
EPA decided upon a longer listing
cycle because of the reduction in
reporting burdens, opportunity for more
complete data gathering and analysis,
and greater likelihood of observing
changes in the condition of waters
between listings. Concerns about
improperly-listed waters later found to
be meeting standards remaining on lists
for nearly four years have been
addressed by clarifying that there is an
opportunity for States, Territories, and
authorized Tribes to make modifications
to then- list as provided by § 130.29
discussed above.
EPA believes that the public will
receive adequate updates regarding the
condition of the nation's waters through
the biennial section 305(b) reports that
States, Territories, and authorized
Tribes must submit according to the
CWA. Though EPA recognizes that in
the future, some TMDLs may be
established a couple years later than
would have been the case with a two-
year listing cycle because they will be
listed every four years rather than every
two years, this decision has no impact
on TMDLs already listed which must be
established on the schedule required by
today's rule.
EPA has selected a four-year listing
cycle, as opposed to a five-year cycle
because it believes that coordination
between section 303(d) lists and section
305(b) reports provides significant
efficiencies. States, Territories, and
authorized Tribes will continue to be
able to make use of their section 305(b)
reports when they develop their section
303(d) lists. There should still be ample
opportunity to coordinate between the
section 303(d) listing process and the
monitoring and implementation
activities performed as part of a five-
year watershed/rotating basin-strategy.
In a five-year watershed or rotating
basin strategy, a State, Territory, or
authorized Tribe identifies a process of
collecting information, assessing the
information, determining the watershed-
wide loading requirements, and
implementing those requirements. At
any time during this five-year cycle, a
State, Territory, or authorized Tribe can
develop a list of impaired waterbodies
for its jurisdiction based on the existing
and readily available information it has
collected. The State, Territory, or
authorized Tribe can then develop a
schedule for TMDLs that is in
synchronization with the anticipated
development of watershed-wide
requirements in its five-year rotating
basin plan. In this way, a State, ;
Territory, or authorized Tribe can ;
continue to address pollution problems
in a five-year rotating basin cycle while
fulfilling its obligations to develop lists
of impaired waterbodies every four-
years.
After careful consideration of the
comments and other relevant factors,
EPA has decided that April 1 would be
the best deadline for submission of the
section 303(d) list. Since today's ,
promulgation provides the opportunity
for combining the section 303(d) list and
the section 305(b) report, it seems ;
logical to make the deadline for both of
these reports fall on the same day of the
year. By requiring section 303(d) lists to
be submitted every four years, rather
than every two years as previously;
required, EPA intends to provide States,
Territories, and authorized Tribes with
ample time to analyze data specifically
relevant to section 303(d) listing, and
therefore, does not believe that having
the section 303(d) list due on the same
day of the year as the section 305(bj
report will pose additional burdens. In
addition, this date is the same date as
under the pre-existing rules (§ 130.7).
EPA has decided to retain the
proposed requirement that States,
Territories, and authorized Tribes
incorporate the approved lists of •
impaired waterbodies in the Water
Quality Management Plans. EPA
recognizes the volume of information
that the lists will include. Nevertheless,
EPA believes the public needs to be able
to find the lists of impaired waterbodies,
and the Water Quality Management;
Plans is a logical place to find this :
information. A State, Territory, or
authorized Tribe can satisfy this '
requirement by either incorporating the
actual list on waters with the other parts
of the Water Quality Management Plan,
or by incorporating the list by reference.
Furthermore, as stated in § 130.51(b),
the Water Quality Management Plans
are used to direct implementation. By
requiring that the approved lists of
impaired waterbodies are incorporated
into the Water Quality Management
Plans, EPA believes this is an efficient
connection between the targets for ;
implementation (impaired waters) and
the implementation procedures. This is
particularly useful for the Part 2
waterbodies where States, Territories,
and authorized Tribes will need to j
incorporate in the Water Quality \
Management Plan implementation
procedures to address pollution not
associated with pollutants. Finally, EPA
interprets section 303(d) as requiring
that States, Territories, and authorized
Tribes include the lists into their Water
Quality Management Plans.
When a State, Territory, or authorized
Tribe submits a list or modification to
a list to EPA, EPA will approve it if it
meets the applicable requirements. EPA
will consider public comment on the
list and may modify the list to assure
that it complies with the regulations of
Part 130. If a State, Territory, or
authorized Tribe does not submit a list
on time EPA will use its authority to
establish the list for the State, Territory,
or authorized Tribe. In response to
comments, EPA has clarified which
sections of subpart C it will use in
reviewing the lists, and what actions
EPA is obligated to take in its decisions.
Therefore, the final rule uses the word
"must" to represent EPA's statutory
obligations to either approve or
disapprove and establish a section
303(d) list of impaired waterbodies, and
to establish a list for any State,
Territory, or authorized Tribe that does
not do so by April 1 of every fourth
year.
Finally, EPA includes a statement in
today's rule that EPA may establish a
list of waterbodies that do not attain and
maintain Federal water quality
standards. EPA recognizes that there are
some impaired waterbodies outside the
jurisdiction of States, Territories, and
authorized Tribes. Where EPA has
established Federal water quality
standards for these waters, EPA believes
it clearly has the authority to list
impaired waterbodies. These
waterbodies are generally inside Indian
Country where the Tribe is not
authorized to implement section 303(d)
or in Federal ocean waters.
M. Must TMDLs be Established?
(§130.31)
What did EPA propose? EPA
proposed that TMDLs be established for
all waterbody and pollutant
combinations listed on Part 1 of the list,
but did not propose to require TMDLs
for waterbody and pollutant
combinations listed on Parts 2, 3, or 4
of the list. In addition, EPA proposed
that States, Territories, and authorized
Tribes establish TMDLs in accordance
with the priority rankings required by
proposed § 130.28. Finally, EPA
proposed allowing States, Territories
and authorized Tribes to establish
TMDLs in a different order than
provided by the most recently submitted
schedule as long as the TMDLs were
established in a manner consistent with
the overall requirements of proposed
§ 130.31(a)(l) through (a)(3). EPA
explained that it was planning to
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Federal Register/Vol. 65, No. 135/Thursday, July 13, 2000/Rules and Regulations
consider the extent to which a State,
Territory, or authorized Tribe had not or
was not likely to meet its schedule for
establishing TMDLs when making a
decision to step in and establish TMDLs
for the State, Territory, or authorized
Tribe. (64 FR 46037, August 23,1999).
What comments did EPA receive?
EPA received many comments specific
to this section. Some commenters
reiterated their concerns about the four-
part list. Other commenters pointed to
inconsistencies between proposed
§§ 130.32(b), 130.32(c), and 130.31(a)(3)
and the need for more flexibility to
establish TMDLs out of the planned
sequence. Some commenters expressed
the view that EPA should allow States
to use existing programs that achieve
the same results as a TMDL instead of
requiring a TMDL for all Part 1
waterbodies. Other commenters
inquired as to the requirements for
"informational TMDLs" under section
303(d)(3).
EPA also received many comments
regarding the issues of pollutants which
might not be suitable for TMDL
calculations. A number of commenters
put forth the position that TMDLs were
appropriate for all situations, and that
EPA should not allow exemptions for
technically complex impairments under
any circumstances. EPA received a
number of comments suggesting that the
establishment of TMDLs for certain
impairments resulting from atmospheric
deposition (e.g. mercury and nitrogen)
was not feasible because of a lack of
appropriate technical tools (e.g. data,
models), and therefore, EPA should
exempt these waterbodies from the list.
Similarly, several commenters stated
that TMDLs for extremely difficult to
solve problems (e.g. contaminated
sediments) should also be exempt from
TMDL establishment, or at least
deferred until such time that the tools
ahd data were available. Other
cbmmenters expressed a position that
EPA had failed to meet its statutory duty
under 304(a)(2)(D) to provide guidance
on how to determine for which
pollutants technical conditions exist to
establish a TMDL. Therefore, these
commenters felt that the States,
Territories and authorized Tribes should
ba given maximum deference to make
this determination for themselves,
especially for toxics. A number of
commenters suggested that a new part 5
of the list be established to
accommodate impairments where the
technical conditions were such that
TJvflDLs could not be established until
advances in data and models were
n^ade, A number of comments suggested
that EPA should include the statutory
language that recognizes that some
pollutants may not be suitable for TMDL
calculations. Some comments made
specific recommendations that EPA
should now determine that flow,
biological criteria, temperature,
sediment, any interpretation of narrative
criteria, whole effluent toxicity,
sediment toxicity, legacy pollutants, any
pollutant originating from nonpoint
sources or atmospheric deposition,
mercury, and any pollutant found in an
ephemeral stream are not suitable for
TMDL calculation. A few comments
suggested that TMDLs should be
required for stream flow for legal and
policy reasons.
What is EPA promulgating today?
Based on its analysis of the many
comments received on this section, EPA
has made four changes to the proposed
rule language. First, EPA is requiring in
final § 130.31(a) that States, Territories,
and authorized Tribes submit the
TMDLs they establish to EPA. EPA
made this change because although
§ 130.35 of the proposed rule addressed
EPA's review of TMDLs submitted by
States, Territories, and authorized
Tribes, the proposed rule did not
include a specific requirement that
States, Territories, and authorized
Tribes submit their established TMDLs
to EPA.
Second, the final rule separates the
requirement that States, Territories, and
authorized Tribes establish TMDLs for
waterbodies on Part 1 of the list from
the statement that TMDLs are not
required for waterbodies on Parts 2, 3,
or 4. EPA believes this provides
additional clarity as to which
waterbodies require TMDLs.
Third, EPA is not promulgating the
proposed requirement that States,
Territories, and authorized Tribes
establish TMDLs in accordance with
their priority rankings. Instead EPA is
requiring that States establish TMDLs in
accordance with their approved
schedule. EPA has changed the focus in
the final rule from the priority ranking
to the approved schedule because it has
decided to equate a State's prioritization
scheme with its schedule for
establishing TMDLs for all waterbodies
on Part 1 of the list. This is a reasonable
interpretation and integration of
sections 303(d)(l)(A) and 303(d)(l)(C).
EPA believes it would be unreasonable
for a State's TMDL schedule to differ
significantly from its prioritization of
waterbodies under section 303(d)(l)(A)
and therefore believes its modification
of the proposal in the final rule to
require that TMDLs be established in
accordance with a State's approved
schedule is a logical outgrowth of the
proposal.
Fourth, EPA is not promulgating the
proposed allowance for States,
Territories, and authorized Tribes to
establish TMDLs in a different sequence
than in their schedule. However, EPA
recognizes that States, Territories, and
authorized Tribes need the flexibility to
adjust the order in which they establish
TMDLs if newer information causes a
lower priority TMDL to become of
higher priority before the time of the
next section 303(d) list submittal. The
structure of § 130.28(c) provides States,
Territories, and authorized Tribes with
the flexibility to shift work within each
twelve-month block of the schedule
without seeking EPA approval. EPA
believes that the public should have the
opportunity to participate in decisions
regarding more significant changes in
the sequence by which TMDLs are
established. Therefore, EPA expects that
States, Territories, and authorized
Tribes will use the provisions of
§ 130.29, which includes public
participation, to make modifications to
their schedules for TMDL establishment
beyond those described above.
EPA does not agree as suggested by
comments that it should allow States,
Territories, and authorized Tribes to use
other exisiting programs in lieu of
establishing a TMDL for impaired
waterbodies. The requirements of the :
CWA are very clear that TMDLs are
required for all waterbodies impaired by
a pollutant(s) where the technology-
based requirements of the Act cannot
ensure attainment of water quality
standards. EPA recognizes that there are
many Federal and State programs and
mechanisms available to address
impaired waterbodies, and EPA
encourages States, Territories,
authorized Tribes, and citizens to use
them. However, EPA does not believe it
can ignore the clear requirement of
section 303(d) of the CWA that States,
Territories, and authorized Tribes
identify impaired waters on a section
303 (d) list and develop TMDLs for these
waters. To the extent that States,
Territories, and authorized Tribes use
other programs and mechanisms to
achieve water quality standards prior to
the establishment of a TMDL, those
mechanisms can provide a basis for the
State, Territory, or authorized Tribe to
remove a waterbody from the section
303(d) list. Also, EPA anticipates that
States, Territories, and authorized
Tribes will rely on their various existing
water quality-related programs and
authorities as a means to implement
TMDLs.
EPA acknowledges the comments on
specific situations for which EPA
should determine in this rulemaking
that certain pollutants are not suitable
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43619
for TMDL calculation. EPA
acknowledges that the CWA only
requires TMDLs for those pollutants that
EPA has determined are suitable for
calculation of TMDLs. EPA made the
determination on December 28,1978 (43
FR 60662) that all pollutants were
suitable for TMDL calculation under the
proper technical conditions. This 1978
finding is not part of today's rulemaking
and although neither the determination
nor this rulemaking foreclose any
reconsideration at a later date for a
specific pollutant, EPA is not making
any changes to the determination in
these regulations. EPA notes that this
determination applies only to pollutants
and not to all parameters used by EPA,
States, Territories, or authorized Tribes
to measure environmental health.
EPA rejects a suggestion that TMDLs
are unsuitable for calculation when
either (1) suitable data cannot be
collected to accurately quantify levels of
the pollutant of concern, or (2) the water
quality assessment methodology for that
pollutant has not developed sufficiently
to enable defensible determinations of
wasteload allocations and load
allocations that are likely to eliminate
the impairment. EPA believes that the
first condition is more a matter of
resources than a technical limitation for
developing TMDLs. Indeed, under this
suggestion, all TMDLs would be
unsuitable for calculation in the absence
of data, and thus there would be no
motivation to collect the necessary data.
EPA believes the second condition is
too subjective a test, and that the best
forum for making this decision is during
the public review of a TMDL.
For whole effluent toxicity (WET),
EPA recognizes that its own guidance
states that chronic whole effluent
toxicity measurements are not additive
while one primary principle for
calculating TMDLs is that mass is
additive. EPA also previously declined
to apply whole effluent toxicity to the
TMDL provisions of Part 132. However,
EPA does not believe that these
previous guidances and statements
mean that whole effluent toxicity is
unsuitable for TMDL calculations in all
instances. Rather, EPA believes that
TMDL calculations for chronic whole
effluent toxicity in situations of
multiple discharges should be
performed on the pollutant(s) causing
the toxicity. In these situations, EPA
believes the first logical step of analysis
is to conduct an ambient toxicity
identification evaluation to identify the
pollutants causing the toxicity, as
suggested by comments. EPA has
developed guidance to assist States,
Territories, authorized Tribes, and other
interested parties in determining the
pollutant(s) causing WET. See "Toxicity
Identification Evaluations: !
Characterization of Chronically Toxic
Effluents, Phase I," EPA/600/6-91-
005F, 1992; "Methods for Aquatic
Toxicity Identification Evaluations!
Phase II Toxicity Identification ;
Procedures for Samples Exhibiting'
Acute and Chronic Toxicity," EPA/600/
R-92-080,1993; "Methods for Aquatic
Toxicity Identification Evaluations:
Phase III Toxicity Confirmation
Procedures for Samples Exhibiting •
Acute and Chronic Toxicity," EPA/600/
R-92-081,1993; "Marine Toxicity
Identification Evaluation (TIR) ;
Guidance Document, Phase I," EPA/
600/R-96/054, 1996.
Where a TMDL is being established
for only one source of the chronic whole
effluent toxicity endpoint, there is no
addition of different loadings involved
and the TMDL calculations are identical
to NPDES calculations. Where there are
multiple sources of the acute whole
effluent toxicity endpoint, EPA's i
guidance considers acute toxicity to be
additive. See the "Technical Support
Document for Water Quality-Based:
Toxics Control," EPA/505/2-90-001,
1991, at: page 24. In these instances, EPA
considers TMDL calculations are ',
suitable because acute whole effluent
toxicity exhibits additive characteristics.
EPA considers sediment toxicity to be
a property of sediments resulting from
the discharge of pollutants from ,
multiple sources that were once in the
water column and later settled into ;the
sediments. Like chronic WET from .
multiple discharges, EPA believes that
the TMDL calculations of sediment]
toxicity should be performed on the
pollutants causing the toxicity. In these
situations, EPA believes the first logical
step of analysis is to conduct an ambient
toxicity identification evaluation to
identify the pollutants causing the ;
toxicity, as suggested by comments.' EPA
has developed guidance to assist States,
Territories, authorized Tribes, and other
interested parties in determining the
pollutant(s) causing sediment toxicity.
See "Sediment Toxicity Identification
Evaluation: Phase I (Characterization),
Phase II (Identification), and Phase III
(Confirmation) Modifications of Effluent
Procedures", EPA/600/6-91/007, EPA,
1991.
hi addition, EPA was asked in
comments to clarify that TMDLs are
suitable for addressing impairments
caused by urban wet weather sources.
EPA recognizes the additional
complexity in collecting data and
conducting the analyses for pollutant
problems related to these sources, but
believes that these issues can be
addressed by States, Territories and
authorized Tribes by providing more
time to establish the TMDL in the
schedule.
EPA does not consider flow to be a
pollutant, and therefore the final rule
does not require TMDLs for flow.
However, EPA recognizes that there will
be cases where flow or lack thereof will
contribute to impairment by a pollutant.
In some cases the requirement that
States, Territories and authorized Tribes
consider seasonal variations including
flow when establishing TMDLs will
result in States, Territories and
authorized Tribes having to consider the
effect of low and high flow on water
quality, hi addition anthropogenic
changes may contribute to the presence
of a pollutant. For example, flow
withdrawals or diversions may remove
water that once diluted pollutants in the
stream or cause the in-stream
temperature to rise. Another example is
high flow which degrades the aquatic
habitat through excessive
sedimentation. In these instances, the
final rule requires the State, Territory, or
authorized Tribe to develop a TMDL for
the pollutant (including heat) which is
causing the water to exceed the water
quality standards. The State, Territory,
or authorized Tribe will have to identify
in the implementation plan the
approach it intends to use to bring the
waterbody into compliance with water
quality standards. When implementing
a TMDL, the State, Territory, or
authorized Tribe may find it necessary
to address the non-discharge causes of
elevated pollutants, including low flow.
hi these instances, the TMDL allocations
will directly address the excessive
loading of the pollutant and the
implementation plan will indirectly
address the pollution problems.
EPA recognizes that the proposal did
not include the current regulatory
requirements at § 130.7(e) which codify
the statutory provisions of section
303(d)(3), which addresses
"informational TMDLs." This section of
the Act provides that States can at their
discretion, establish TMDLs for
waterbodies which are not impaired.
These "informational TMDLs" which
contain the load necessary to attain
water quality standards with seasonal
variations and a margin of safety are not
subject to EPA review and approval and
EPA does not believe regulatory
language is needed to address them.
N. What is a TMDL? (§130.32(a))
What did EPA propose? EPA
proposed new § 130.33(a), renumbered
§ 130.32(a) in today's final rule, to
mirror the proposed definition of a
TMDL, and to recognize that TMDLs
provide the opportunity for comparing
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relative contributions of pollutants from
all sources and considering economic
and technical trade-offs between point
and nonpoint sources.
What comments did EPA receive?
EPA received numerous comments on
this subsection. Many echoed comments
submitted on the definition of a TMDL.
Some recommended that this section
restate in the same words the definition
of a TMDL. EPA received a number of
comments concerning the ability of
TMDLs to accommodate trade-offs
between point and nonpoint sources.
Many of these comments addressed the
general topic of watershed-based
affluent trading (as distinguished from
comments specific to the offset
provision set forth in the proposed
NPDES companion rule). The majority
of these comments supported the
concept of "trading" in general, though
most did not specify which of the
numerous models of water pollutant
trading they specifically endorsed.
Reasons given for supporting the
concept of trading included: (1) Ability
to achieve water quality goals in the
most cost-effective manner; (2) potential
for achieving water quality goals sooner
than otherwise would be the case; and
(3) ability to go beyond (do better than)
stated water quality goals/standards.
Several comments called upon EPA to
include language in the rule itself
making it clear that "trading" was
allowed as a component of a TMDL
Implementation plan.
On the other hand, some comments,
though expressing support for the broad
concept of "trading," urged EPA to
proceed carefully with approval of
individual trading programs, citing
concerns about loss of accountability for
point sources and reductions in
opportunities for public participation in
decisions regarding pollutant discharges
from individual point sources.
EPA received many other comments
regarding how loads are allocated
Between sources. Some comments
suggested that EPA require that States,
Territories, and authorized Tribes
conduct specified analyses related to
allocations. Other comments suggested
that EPA require that allocations credit
Sources with pollutant reductions
already achieved or require reductions
!n proportion to the existing loadings.
Further comments suggested that all
Sources of loads must fairly share in
load reductions, regardless of their size
or relative contribution. In contrast,
some comments stated that EPA has no
authority to specify any allocation
methodology or conditions, and that the
allocation process is solely the authority
Of the State, Territory, or authorized
Tribe. EPA received suggestions that
EPA provide more examples of
allocation methods in guidance.
Finally, a number ofcommenters have
said that EPA should not have said that
TMDLs should be set at levels that will
"attain and maintain" water quality
standards, and that in the final rule,
EPA should not couple the two words.
What is EPA promulgating today?
EPA is promulgating this subsection
with revisions to make the first and
second sentence match the first and
second sentences in the definition of a
TMDL. These revisions are described in
today's preamble in the discussion of
the TMDL definition.
Though EPA continues to support
efforts by States, Territories, and
authorized Tribes, as well as various
stakeholders, to identify the most cost-
effective means of achieving water
quality standards through development
and implementation of TMDLs, EPA
does not believe it is necessary to
provide specific regulatory language
specifying how trading should occur.
EPA has articulated its support for the
trading concept in an "Effluent Trading
in Watersheds Policy Statement,"
January 1996, and a "Draft Framework
for Watershed-Based Trading," May
1996, and provided funding and
technical support for a number of
individual watershed trading projects,
and continues to interact with those
developing and implementing such
projects.
EPA's position has been, and
continues to be, that States, Territories,
and authorized Tribes may employ in
TMDLs any kind of system or policy for
allocating pollutant loadings among
sources, as long as the resulting
allocations will lead to attainment and
maintenance of water quality standards.
Among the permissible allocation
options are ones by which a source of
pollutants would provide compensation
to another source, in exchange for
which the second source would accept
a lower allocation, thereby offsetting a
higher allocation for the first source.
EPA encourages States, Territories and
authorized Tribes to bring together
stakeholders potentially affected by and
interested in a planned TMDL to work
together to explore ways in which a
variety of allocation arrangements can
be considered in selecting a scheme for
a TMDL and reflected in the TMDL
implementation plan.
EPA also declines to require that
States, Territories or authorized Tribes
conduct any specific prescribed
analyses as part of their decision to
allocate loads to point and nonpoint
sources. Similarly, EPA declines to
require that allocations credit sources
with pollutant reductions already
achieved, require reductions in
proportion to the existing loadings,
consider the ability to pay or treatment
capacity or where reductions are the
easiest to achieve, or require that all
sources of loads must fairly share in
load reductions, regardless of their size
or relative contribution. EPA believes
that the decision on how to identify the
most cost-effective or equitable means of
allocating loadings is best handled by
the State, Territory, or authorized Tribe,
when the State, Territory, or authorized
Tribe establishes the TMDL. Therefore,
EPA is not prescribing certain allocation
methodologies for States, Territories, or
authorized Tribes in this rule. Today's
final rule requires that the wasteload
and load allocations, when
implemented together, will result in the
attainment and maintenance of the
water quality standard(s) applicable to
the pollutant for which die TMDL is
being established. EPA's review of the
allocations will focus on whether they
attain and maintain-the water quality
standards.
EPA believes the allocation
methodology should create a technically
feasible and reasonably fair division of
the allowable load among sources.
Understanding the relationship between
pollutant loads and the condition of the
waterbody is the basis for evaluating
alternative allocation strategies. If there
is a range of allocation strategies that
could be implemented, EPA encourages
the State, Territory, or authorized Tribe
to consider various allocation options.
This allows for a more rigorous
evaluation and decision making process
by the stakeholders and regulators.
Ideally, States, Territories and
authorized Tribes could bring together
stakeholders potentially affected by and
interested in a TMDL to work together
to reach consensus on allocations that
are believed by the stakeholders to be
effective and equitable.
Pollutant reductions can be allocated
among sources in numerous ways (see
"Technical Support Document for Water
Quality-based Toxics Control," EPA/
505/2-90-001, 1991, Chapter 4.) States,
Territories, and authorized Tribes may
consider^several factors, including
technical and programmatic feasibility
to reduce specific loads, cost-
effectiveness, relative or proportional
source contributions, ability of small
entities to pay for pollutant load
reductions, equity based on previous f
commitments to load reductions, and
the likelihood of implementation, to
develop the most effective allocation
strategy. EPA encourages States,
Territories, and authorized Tribes to
consider these factors when they
allocate loads.
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When EPA establishes a TMDL, EPA
will seek advice from the applicable
State, Territory, or authorized Tribe as
to which allocation methodology it
prefers that EPA use. As a general
approach, EPA intends to use the same
allocation methodology that the State,
Territory, or authorized Tribe uses for
TMDLs it establishes. However, if EPA
is not able to establish reasonable
assurance of implementation of needed
pollution control measures, EPA will
revise the pollutant reduction allocation
as needed. EPA recognizes the benefit of
guidance on the merits of various
allocation methodologies, and intends
to publish this guidance within a year
following promulgation of today's rule
for use by States, Territories, and
authorized Tribes.
EPA believes the phrase "attain and
maintain" is consistent with the
language in CWA section 303(d)(l)(C)
that requires that TMDLs be established
at a level necessary to implement water
quality standards. EPA interprets the
term "implement" to include not just
choosing a load necessary to attain the
appropriate water quality standard at a
given moment in time, i.e., the date the
TMDL is established, but also choosing
a load that will ensure that the
appropriate water quality standard is
implemented over time. For that reason,
EPA believes it has the authority to use
the phrase "attain and maintain" and
has modified the proposed rule in a
number of places consistent with this
belief.
O. What are the Minimum Elements of
a TMDL? (§ 130.32(bJ)
EPA proposed in § 130.33(b),
renumbered as § 130.32(b) in today's
rule, that a TMDL include ten minimum
elements. The final rule, for reasons
explained later, includes eleven
elements. Ten of these are discussed in
this section. The issues raised by
commenters regarding the eleventh
element, i.e., the implementation plan,
and changes resulting from these
comments are discussed in Section II.P.
of this preamble. EPA is promulgating
its proposal that TMDLs include all the
elements. EPA recognizes that TMDLs
for waterbodies with only NPDES-
regulated point sources contributing the
pollutant impairing the waterbody
would not require a load allocation. In
this situation, the TMDL could include
a load allocation of zero. Similarly,
TMDLs for waterbodies with only
sources which are not subject to NPDES
permits contributing the pollutant
impairing the waterbody would not
require a wasteload allocation. In this
situation, the TMDL could include a
wasteload allocation of zero.
1. Waterbody Name and Geographic
Location
What did EPA propose? EPA
proposed in § 130.33(b)(l) that the -,
TMDL include the information provided
on the section 303(d) list regarding the
name and geographic location of the
waterbody for which the TMDL was>
established, as well as the name and
geographic location of upstream
waterbodies which contributed a
significant amount of the pollutant for
which the TMDL was established.
What comments did EPA receive?'
EPA received very few comments ;
regarding this proposed requirement.
Some commenters were concerned that
the requirement to identify upstreanl
sources of pollutants meant that
controls would have to be established
for these sources.
What is EPA promulgating today?.
EPA is promulgating this section as
proposed but now renumbered as '
§ 130.32(b)(l). The Agency believes that
it is important to identify upstream
contributors of a pollutant for which a
TMDL is being established because, 'as
clarified in today's regulations at
§ 130.32(b)(4), this pollutant load must
be accounted for in the TMDL as
background loading. EPA recognizes
that, due to limited information, a State
Territory, or authorized Tribe may npt
be able to identify a specific upstream
waterbody as being the source of
pollutants that flow into the segment of
the waterbody for which the TMDL is
being established. EPA expects that the
State, Territory, or authorized Tribe will
only identify specific sources of that
pollutant upstream of the segment for
which the TMDL is being establishecl to
the extent those sources are known.
2. Identification and Quantification of
the Pollutant Load, and Deviation From
Loads
What did EPA propose? In proposed
§ 130.33(b)(2), and (3), EPA proposed
that States, Territories and authorized
Tribes identify the pollutant for which
a TMDL was established, quantify the
load of the pollutant which may be •
present in the waterbody and not cause
an exceedance of a water quality ;
standard, and identify the difference
between that amount and the current
loading. '
What comments did EPA receive?
EPA received few comments on thes6
proposed sections. Commenters mostly
requested technical clarifications on
how to calculate pollutant loads. Other
comments requested that the rule ;
require disclosure of which water '
quality standards apply to a TMDL, and
assurance that background loadings are
accounted for in the TMDL.
What is EPA promulgating today?
EPA is slightly reorganizing these
sections to separate the requirements for
identification of the pollutant, now
contained in § 130.32(b)(2), from the
quantification of the pollutant load
necessary to attain water quality
standards in § 130.32(b)(3) and the
quantification of the deviation between
current loading and that necessary to
attain and maintain water quality
standards in § 130.32(b)(4). EPA
believes that this separation better
clarifies the elements of the TMDL. This
also results in there being 11 elements
of the TMDL, because two requirements
are reorganized into three requirements.
In addition, as suggested by
comments, EPA is adding the
requirement to consider pollutant loads
from upstream sources as part of the
background. EPA recognizes that the
TMDL serves as a mechanism for
accounting for the total load of a
pollutant in a waterbody. hi the TMDL,
all pollutant loads need to be accounted
for to ensure that when the total load is
allocated, the sum of the allocations
does not exceed the water quality
standard. Without identifying loads
from upstream sources as background
loads, the allocation process is likely to
over-allocate loadings to point and
nonpoint sources, thus leading to an
exceedance of the water quality
standard.
EPA does not interpret quantification
of loads as always requiring the direct
monitoring of sources of pollutant loads
or the pollutant load within a
waterbody. States, Territories, and
authorized Tribes have the flexibility to
use any methodology that develops a
number that expresses the pollutant
load. Direct monitoring is one way, but
there are others. For example, States,
Territories, and authorized Tribes may
use water quality modeling techniques,
either empirical or deterministic, to
quantify the load. They may use
correlation methodologies to relate non-
pollutant metrics to pollutant loads. In
general, the State, Territory, or
authorized Tribe needs to use a
procedure by which it can develop a
number that characterizes the load.
Also, as suggested by comments, EPA
is clarifying that the applicable water
quality standard must be identified
along with the pollutant for which a
TMDL is being established. EPA agrees
that the public should have access to
this information when they review and
comment on a proposed TMDL because
the water quality standard is the basis
for the TMDL.
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3. Source Categories
What did EPA propose? EPA
proposed in § 130.33(b)(4) that a TMDL
should include an identification of the
source of the pollutant with as much
precision as feasible, i.e., individual or
categorical, in accordance with the
definitions of load allocation and
wasteload allocations.
What comments did EPA receive?
Many commenters repeated either their
support or opposition to including
nonpoint sources in the TMDL process.
Several comments expressed support for
Identification of all sources, and
suggested EPA encourage States,
Territories, and authorized Tribes to
identify all sources of a pollutant.
Others repeated their concerns
regarding designation of certain animal
feeding operations and silviculture
activities as point sources. These
comments are addressed elsewhere in
today's preamble.
What is EPA promulgating today?
EPA is promulgating the proposed
language with minor editorial
modifications at § 130.32(b)(5) of today's
rule. For reasons discussed previously
in today's preamble, EPA believes that
the requirement to identify and
establish TMDLs for waterbodies exists
regardless of whether the waterbody is
Impaired by point sources, nonpoint
Sources or a combination of both.
Pronsolinov, Marcus, 2000 WL 356305
(N.D. Cal. March 30, 2000.) Therefore,
EPA declines to revise the proposed
requirement to exclude identification of
nonpoint sources that contribute the
pollutant causing an impairment.
4. Wasteload Allocation
What did EPA propose? EPA
proposed that an individual wasteload
allocation be assigned to each point
Source covered by the NPDES permit
program, with two exceptions. First,
EPA proposed that one waste load could
be allocated to a category or subcategory
of sources within a waterbody subject to
a general permit under the NPDES
program. Similarly, EPA proposed that
pollutant loads from permitted facilities
that did not need to be reduced in order
to achieve water quality standards could
be grouped into one category or
subcategory, or considered as part of
background loads.
EPA also proposed to require States,
Territories, and authorized Tribes to
provide technical analysis
demonstrating that wasteload
allocations, when implemented, would
result in attainment and maintenance of
water quality standards in the
waterbody.
What comments did EPA receive?
EPA received a wide variety of
comments on the provisions in
proposed § 130.33 dealing with
wasteload allocations. (Other comments
regarding the definition of "wasteload
allocations" are addressed elsewhere in
this preamble.)
The proposal that one wasteload
allocation could be developed for all
point sources subject to a general
NPDES permit drew substantial and
widely varied response. Some
commenters endorsed this notion,
saying it would reduce administrative
burdens on States, Territories and
authorized Tribes. On the other hand,
there were a number of comments
objecting to this provision. These
commenters questioned the feasibility of
estimating the total loading from all
point sources covered by a general
permit, particularly permits which do
not require the sources wishing to be
covered to send a Notice of Intent to the
NPDES authority.
Commenters also opposed grouping
all sources for which no load reduction
was required. They questioned how
EPA could ensure that dischargers
included under a wasteload allocation,
or bundled under the allocation to
background, did not increase their
loadings of the pollutant above levels
discharged at the time of TMDL
establishment.
A number of comments called upon
EPA to require that States, Territories,
and authorized Tribes directly notify
any pollutant source potentially affected
by the allocations in a proposed TMDL
that had been published for public
review and comment.
What is EPA promulgating today?
After consideration of all comments
received, EPA is promulgating a
provision that is very similar to the one
proposed. The one key change is aimed
at clarifying that, for waterbodies
affected by both nonpoint and point
sources of the pollutant of concern,
implementation of the wasteload
allocation alone is not always expected
to result in attainment of water quality
standards. Rather, today's rule specifies
that States, Territories, and authorized
Tribes should submit, along with the
wasteload allocation, supporting
technical analyses demonstrating that
wasteload allocations, when
implemented in conjunction with
necessary load allocations, will result in
the attainment and maintenance of
water quality standards in the
waterbody.
As with the proposed rule, today's
promulgation states that point sources
subject to individual NPDES permits
must be given individual wasteload
allocations, except those that would not
need to reduce their loadings. Point
sources subject to individual NPDES
permits that, according to the terms of
the wasteload allocation for the
waterbody into which they discharge,
would not need to decrease their
pollutant loadings, may be included
within a single wasteload allocation for
a category or subcategory of sources.
Individual NPDES permits for point
sources included in such categories or
subcategories should have effluent
limits (or other permit provisions) for
the pollutant being addressed in the
TMDL, ensuring that the permittee
would not increase its discharge of that
pollutant beyond the level it was
assessed as discharging in calculating
the TMDL's wasteload allocation for
that category or subcategory of sources.
hi these instances, the current NPDES
permit provides the regulatory control
to prevent these sources of pollutants
from increasing their pollutant loads.
Today's rule allows for wasteload
allocations to be allotted to a category of
sources seeking coverage under a
general permit, i.e., all sources seeking
coverage under a general permit that are
located on the waterbody for which the
TMDL is established could be covered
under one wasteload allocation
(§ 130.32(b)(6)). General permits, like
individual permits, must include
effluent limits or conditions that are
consistent with the assumptions and
requirements of the wasteload
allocation. Today's rule requires that the
implementation plan identify the
category of point sources subject to the
TMDL which are regulated by a general
permit aad specify the general permit
that applies or will apply to the sources
(§ 130.32(c)(l)(i)). Today's rule also
requires that the implementation plan1
identify the wasteload allocation that
will be the basis for the effluent
limitations (which may be in the form
of Best Management Practices defined
for NPDES at § 122.2) in the NPDES
permit "that will be issued, reissued, or
revised." Id.
Existing NPDES regulations require
the permitting authority to develop
water quality-based effluent limits that
derive from and comply with all
applicable water quality standards.
These regulations also require that water
quality-based effluent limits be
consistent with the assumptions and
requirements of any available wasteload
allocation prepared by the State and
approved by EPA pursuant to § 130.7
(see § 122.44(d)(l)(vii)(B)). Therefore,
when an existing permit expires, upon
reissuance of that permit, the permitting
authority will evaluate whether the
effluent limitations or conditions within
the permit are consistent with the
wasteload allocation in an applicable
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43623
TMDL. If not, the permitting authority
must ensure the reissued permit
includes effluent limitations that are
consistent with the wasteload
allocation. In the case of storm water
permits, the effluent limitations may
include best management practices that
evidence shows are consistent with the
wasteload allocation.
Where a State is establishing a TMDL
and that State is authorized to
administer general permits under the
NPDES program, the State has the
discretion and flexibility to determine
whether to issue separate general or
individual permits to implement the
wasteload allocation or whether to
revise or reissue a general permit to
implement the wasteload allocation. A
separate general permit would be
specific to the waterbody for which the
TMDL is established and may include a
different set of conditions and
requirements that would be designed or
tailored to implement the applicable
wasteload allocation under the TMDL.
A State may also choose to revise the
existing general permit to include
additional conditions or effluent
limitations applicable to those sources
or categories of sources, consistent with
the wasteload allocation. EPA believes
that a new general permit (e.g. a storm
water general permit) that includes best
management practices, rather than
numerical limitations on the mass or
concentration of pollutants in the
discharge, is adequate for the purposes
of ensuring implementation of a
wasteload allocation.
When a State is establishing a TMDL
but that State is not authorized to
administer general permits under the
NPDES program, the State and EPA
would work together to address how the
applicable national general permit
would be "issued, reissued or revised"
to implement the wasteload allocations
applicable to the category of sources
subject to a TMDL covered by the
general permit. EPA would also have
the discretion and flexibility to
determine whether to issue a separate
general permit to implement the
wasteload allocation, whether to issue
an individual permit, or whether to
revise or reissue the general permit to
implement the wasteload allocation.
This discretion and flexibility would
also be available to EPA where the
Agency is establishing a TMDL for a
State that is not authorized to
administer general permits under the
NPDES program. In addition, where
EPA is establishing a TMDL for a State
and that State is authorized to
administer general permits under the
NPDES program, EPA, in developing the
implementation plan, would need to
work with the State to determine how
the State-issued general permits wtiuld
be "issued, reissued or revised" to;
implement the applicable wasteload
allocation under the TMDL. '.
As would have been the case with the
proposed rule, when EPA approves a
TMDL, it will also be approving the
component wasteload allocations and
load allocations. EPA's review of
wasteload allocations and
corresponding load allocations will be
aided by the supporting technical :
analyses demonstrating that
implementation of wasteload allocations
and load allocations (where applicable)
is feasible and will result in attainment
of water quality standards. EPA's review
will also include a review of the sources
of information that the State, Territory,
or authorized Tribe cites in support of
its technical analysis.
5. Load Allocation
What did EPA propose? The proposed
rule required States, Territories, and
authorized Tribes to assign individual
load allocations to specific nonpoint
sources (including air deposition and
natural background) unless doing so
would be impossible, hi cases where it
was not possible to assign individual
load allocations, specific nonpoint
sources could be grouped together into
categories or subcategories. Each ;
category or subcategory •would be given
a load allocation. In addition, where
load reductions are not needed from
certain sources, the load allocation for
those sources could be grouped into one
aggregate load allocation. ;
The proposal also required States,
Territories, and authorized Tribes to
provide technical analysis
demonstrating that load allocations,
when implemented, would result in
attainment and maintenance of water
quality standards.
What comments did EPA receive?
EPA received a large number of i
comments with regard to load i
allocations, covering a range of issues. A
number of these comments are also
relevant to the proposed definition of
"load allocation" at § 130.2(f), and!are
summarized in the discussion of that
provision. '
The proposal to allow States,
Territories, and authorized Tribes to
aggregate a number of individual ,
nonpoint sources into a category or
subcategory for which just one
wasteload allocation would be required,
received both favorable and unfavorable
comments. Several commenters
specifically objected to the language
requiring States, Territories, and
authorized Tribes to calculate
individual load allocations for specific
nonpoint sources if doing so were
"possible" and encouraged EPA to use
the word "feasible" or "practical"
instead.
The issue of possible inequities in the
allocation of allowable loads among
sources of the pollutant for which a
TMDL was being developed was the
subject of a significant number of
comments. A number of commenters
expressed the fear that because of a lack
of Federal regulatory authority (and
often, State authority as well), States,
Territories, and authorized Tribes
would likely give relatively generous
allocations to nonpoint sources, thereby
requiring disproportionately large
reductions by point sources. Some of
those expressing this concern urged
EPA to require that allocations of
loadings be done "proportional to
current loadings" from various sources.
On the other hand, some called upon
EPA and States, Territories, and
authorized Tribes to take "achievability
and assurance" of loadings reductions
into account when doing allocations of
loadings and indicated this meant that
greater responsibility for loadings
reductions would be assigned to sources
either subject to enforcement or very
likely to actually achieve reductions for
other reasons.
What is EPA promulgating today? The
provision of § 130.32 addressing load
allocations that is being promulgated
today is very similar to the proposed
rule. A few changes have been made in
response to comments. First, the
provision was revised to be consistent
with revisions to the definition of "load
allocation" that were previously
discussed in today's preamble. Second,
based on comments, the condition to
trigger developing separate load
allocations was changed from
"possible" to "feasible." EPA believes
that a feasibility standard is better for
making this decision. Developing a
separate load allocation for a source
may be possible but not feasible. In
some instances, the loadings from
nonpoint sources can only be feasiblely
quantified on an aggregate basis. EPA
does not intend States, Territories, or
authorized Tribes to expend additional
effort to develop separate load
allocations if not feasible, and thus has
made this change to the final rule.
6. Margin of Safety
What did EPA propose? EPA
proposed in § 130.33(b)(7) to specify
how States, Territories and authorized
Tribes could satisfy the statutory
requirement that TMDLs include a
margin of safety. EPA proposed that the
requirement could be satisfied either by
expressing the margin of safety as
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unallocated assimilative capacity, i.e.,
demonstrating that the pollutant loading
would be less than the assimilative
capacity of the waterbody, or
demonstrating that conservative
assumptions had been built into the
calculations of the wasteload and load
allocations.
What comments did EPA receive?
EPA received many comments asking
for specific criteria to calculate the
margin of safety while others suggested
that EPA should keep this requirement
as flexible as possible. Some
commenters pointed out that water
quality standards already account for
scientific uncertainties. Some
commenters suggested that the margin
of safety should increase as
uncertainties in the quality of the data
used to establish the load and wasteload
allocations increase.
What is EPA promulgating today?
EPA believes that the margin of safety
required by the section 303(d)(l)(C) for
establishment of TMDLs allows for
consideration of more factors than the
scientific uncertainty included in the
development of water quality standards
and must also account for analytical
uncertainties associated with all the
calculations required to establish a
TMDL. Nothing in the statute indicates
that these factors are exclusive to all
others in interpreting what margin of
safety means. EPA has clarified this
requirement at § 130.32(b)(8) in the final
rule by explicitly stating that the margin
of safety must appropriately account for
uncertainty, including those associated
with pollutant loads, water quality
modeling, and monitoring. EPA has also
clarified how the margin of safety could
ba expressed. EPA agrees with the
commenters that the calculation of
margin of safety is complex and that
guidance addressing a variety of
situations, including reliability of the
data need to be developed. EPA is
planning to issue such guidance soon
after this rule is promulgated.
EPA does not Believe that the margin
of safety is addressed by how the water
quality standards account for scientific
uncertainties. CWA section 303(d)
requires that TMDLs implement the
applicable water quality standard. EPA
interprets the margin of safety
requirement of the CWA to address the
relationship of the TMDL to the water
quality standard, and not how the
standard itself addresses uncertainties.
7. Consideration of Seasonal Variations
What did EPA propose? EPA
proposed in § 130.33(b)(8) to codify the
statutory requirement that TMDLs must
account for seasonal variations and to
require States, Territories and
authorized Tribes to also consider other
environmental factors which could
affect the water quality impact of the
pollutant for which a TMDL was
established.
What comments did EPA receive?
EPA received considerable support for
this requirement. Many commenters
pointed out that the amount of flow in
a waterbody could have significant
impact on the level of a pollutant and
that EPA should require TMDLs to
account for low flow as well as wet
weather flow and storm water events.
Other commenters however, construed
this proposed requirement as an
interference with States' water rights
and allocation processes. Finally, many
commenters did not agree that water
quality standards must be attained in all
seasons or during unusual events such
as major storms.
What is EPA promulgating today?
EPA is promulgating this requirement at
§ 130.32fb)(9) with a few changes. EPA
agrees with the commenters that the
level of flow in a waterbody can affect
whether or not a waterbody attains and
maintains water quality standards;
therefore, EPA is specifically requiring
that flow levels be taken into
consideration as part of seasonal
variations. By including this language,
EPA is not intending that States,
Territories or authorized Tribes make
changes to established water allocations
or water rights. Instead, EPA intends for
the pollutant load allocation to take into
account the impact of flows on the
water quality of the impaired
waterbody. EPA also believes that
TMDLs must be established so that
water quality standards are attained and
maintained in all seasons and all flows.
This includes consideration of storm
conditions where storms or storm water
runoff contribute the pollutants causing
the impairment to the waterbody. EPA
believes that this is the very reason
consideration of seasonal variations is
included in the statutory language, and
EPA is adding language in the final rule
to clarify this point. EPA's intent is that
TMDLs must account for normal
variations in seasonal conditions for
environmental factors such as flow,
precipitation or temperature, and not
necessarily account for extreme unusual
conditions such as 100-year storms or
hurricanes.
States, Territories, and authorized
Tribes can address seasonal variations
in many different ways. One way is to
use water quality modeling techniques,
such as continuous or dynamic
modeling, that directly consider
variations in environmental conditions.
Another way is to conservatively
identify a suite of environmental
conditions that represent the worse
conditions experienced in the
waterbody, and thus lead to identifying
a load lhat is protective of all
conditions. Yet another way is to
establish TMDLs for each season or
month that are representative of the
environmental conditions in those
seasons or months. Because there are
different ways of addressing seasonal
variations in environmental conditions
such that water quality standards are
met as required, EPA believes that it is
more appropriate to address the details
of this analysis in guidance rather than
in today's rule.
8. Allowance for Increases in Pollutant
Loads
What did EPA propose? EPA
proposed at § 130.33(b)(9) that TMDLs
include an allowance for future growth
to account for reasonably foreseeable
increases in pollutant loads. EPA
included this provision to meet the
statutory mandate that water quality
standards must be attained and
maintained. EPA believed that, absent
such an allowance, it would be difficult
to demonstrate maintenance of the
standards. EPA explained in the
preamble that it intended for the
allowance to be based on existing and
readily available data at the time the
TMDL was established.
What comments did EPA receive?
Many commenters pointed out that
decisions about future growth were the
province of local governments. They
opposed the proposed language because
they construed it as a requirement to
control growth. Others were concerned
that allowance for future growth would
render TMDLs more stringent than
necessary and unfairly place a burden
on current dischargers.
What is EPA promulgating today?
EPA is promulgating this requirement at
§ 130.32(b)(10) but is modifying the
proposed language to clarify that the
intent of this provision is not to control
growth but to ensure that TMDLs take
into account potential increases in
loadings regardless of their cause. EPA
believes accounting for any such
potential increases is a necessary step in
setting loads at a level necessary to
implement standards and accordingly is
authorized by § 303(d)(l](c). If a State,
Territory, or authorized Tribe does not
anticipate increased loadings in a
TMDL, it may satisfy this element by
indicating it does not expect there to be
such increases and providing a brief
explanation why. Moreover, if the State,
Territory, or authorized Tribe does not
anticipate future increased loadings, it
may find itself needing quickly to revise
the TMDL to accommodate new
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discharges. On the other hand, if a State,
Territory, or authorized Tribe includes
an allocation for increases in pollutant
loads, then any new loading or increase
in pollutant loading that occurs will be
addressed by that allocation without
requiring that the TMDL be revised.
EPA does not intend that, if a State,
Territory, or authorized Tribe decides to
specifically provide an allocation for
increased pollutant loadings in a TMDL,
it needs to identify the types of facilities
or activities that would receive that
allocation. Instead, EPA expects that the
allowance for increased pollutant
loadings would be an aggregate amount
that could be applied to any future
increase in loads. The specific decisions
as to how to allocate that aggregate
allowance for increased loads to new
facilities or activities are best made by
the State, Territory, and authorized
Tribe along with local governments.
P. What Are the Requirements of the
Implementation Plan (§ 130.32(c))?
What did EPA propose? EPA
proposed that each TMDL include, as a
minimum element required for
approval, an implementation plan. The
implementation plan as proposed
contained eight minimum elements: (1)
Intended control actions; (2) a time line;
(3) reasonable assurance that wasteload
and load allocations will be achieved;
(4) legal authority; (5) time required to
attain water quality standards; (6)
monitoring plan; (7) milestones for
attaining water quality standards; and
(8) TMDL revision procedures. The
proposal would have required States,
Territories and authorized Tribes to
submit implementation plans to show
how each TMDL was to be
implemented. The proposal recognized
that it would be more effective and
supportive of watershed approaches to
have implementation plans that show
how all TMDLs for a particular
pollutant or a number of pollutants in
particular basins, would be
implemented. EPA specified that it
would not approve a TMDL without an
adequate implementation plan. The
proposal linked the adequacy of the
implementation plan to a determination
by EPA that there was reasonable
assurance that implementation would
occur. If EPA could not approve the
TMDL, EPA would have to establish the
TMDL which would include an
implementation plan and provide
reasonable assurance.
What comments did EPA receive?
EPA received numerous comments on
the proposed implementation plan
requirement. A few commenters
supported the requirement as proposed.
Many commenters opposed the
requirement altogether. Among
commenters who supported the
requirement many questioned EPA's
authority to require implementation
plans as mandatory parts of TMDLs
under the authority of section 303(d).
These commenters suggested that EPA
should continue to require
implementation plans as part of a State's
water quality management plan even if
it meant promulgating amendments to
the regulations at § 130.51 to make the
plans enforceable. Some commenters
opposed implementation plans because
they believe they would considerably
slow establishment of TMDLs. Others
expressed concerns that the proposal
was too inflexible and would lead to
federal regulations of non point sources.
Some commenters argued that
separating the implementation plan
from TMDL establishment would lead to
more scientifically defensible TMDLs
and that approved TMDLs would
provide a clear goal and the impetus for
better interaction between stakeholders
in designing implementation plans.
Some commenters supported the
requirement for implementation plans
but raised questions concerning the
specific proposed elements of the
implementation plan requirement,
especially in regard to nonpoint sources.
What is EPA promulgating today?
Today's rule at § 130.32(c) retains the
requirement for implementation plans
as required elements of TMDLs. As
discussed in the August 23, 1999 '
preamble (64 FR 46032-46035), EPA
believes that it has the authority to
require implementation plans because
section 303(d) requires that TMDLs be
established at a level necessary to
implement water quality standards.
Today's rule establishes that one way
EPA caji determine whether a TMDL is
approved at a level necessary to
implement applicable water quality
standards is to require an
implementation plan. In addition, EPA
believes that implementation plans
provide the basis for demonstrating that
water quality standards will be attained
and maintained through pollution
controls other than controls over point
source discharges subject to tin NPDES
permit.
EPA believes that implementation of
TMDLs is the most important aspect of
today's rule. Without implementation,
TMDLs are merely paper plans to attain
water quality standards. The
implementation plan requirement
assures that the Nations' remaining
water quality problems will actually be
addressed by appropriate actions
identified in the implementation plans
submitted as part of the TMDLs. i
Today's rule acknowledges that
implementation plans will differ
depending upon the type of sources
causing the impairments in a particular
waterbody. Therefore the final rule
makes it clear that the purpose of the
implementation plan is to describe, at a
level of detail appropriate to the
circumstances, actions necessary to
implement the TMDL. Implementation
plans are not meant to be lengthy or
complex. They must however contain
sufficient detail so that EPA and the
public can determine whether the
actions proposed in the plan can
actually eliminate the impairment and
whether there is reasonable assurance
that they will occur and when.
The requirements of the
implementation plan are now identified
separately for waterbodies impaired (1)
only by point sources required to have
an NPDES permit, (2) only by sources
other than those required to have an
NPDES permit including nonpoint
sources, or (3) by a combination of both
point sources required to have an
NPDES permit and other sources
including nonpoint sources. Although
the requirements are identified
separately, they provide common
information on what sources will be
expected to reduce loadings, how these
reductions will be accomplished, when
these reductions will occur, and how
the results will be measured.
Some elements of implementation
plans are common to all sources: 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 interim, measurable
milestones and criteria to be used to
determine progress towards attaining
water quality standards and when the
TMDL needs to be revised. These
provisions were included in the
proposed rule, and except for one
change discussed below, are unchanged
in the final rule except for formatting
changes.
In the final rule, EPA is making a
small revision to the proposed language
regarding the time to attain water
quality standards. The proposal would
have required "an estimate" of the time
necessary to attain water quality
standards. The final rule requires that
the implementation plan must include
"the date" by which the waterbody will
attain water quality standards. EPA
believes the phrasing of the final rule is
a logical outgrowth of the proposal and
a clearer description of what is
intended—the "date" when the State,
Territory, or authorized Tribe believes
water quality standards will be attained.
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Implementation Plans for Point Sources
for Which an NPDES Permit is Required
For waterbodies impaired by only
point sources subject to an NPDES
permit, the implementation plan is
expected to rely primarily on the
NPDES permitfs) that will be issued,
reissued or revised so their effluent
limit(s) will be consistent with the
wasteload allocations in the TMDL. The
plan will identify which facilities are
required to have permit limits that are
consistent with the wasteload
allocation, identify the limits to be
incorporated into the permits, and
identify the schedule by which the
permits will be issued, reissued, or
modified. EPA's expectation of when
these permits will be issued, and EPA's
Commitment to ensure the proper and
timely issuance of these permits, is
described in the preamble discussion
about EPA's objection to State-issued
expired and administratively continued
permits.
Implementation Plans for Sources for
Which an NPDES Permit is Not
Required
For waterbodies impaired only by
sources other than those subject to an
NPDES permit, including nonpoint
sources, the implementation plans are
required to contain several different
elements. The plans for these
waterbodies must identify the source
categories, subcategories or individual
sources that are expected to implement
load allocations. These implementation
plans must also include a description of
specific regulatory or voluntary actions,
including management measures or
controls that State, Territorial,
authorized Tribal or local governments
ahd individuals will implement that
provide reasonable assurance that load
reductions will be achieved, and the
schedule by which these measures are
expected to be implemented.
EPA recognizes that nonpoint source
problems are different from point source
problems and that implementation
plans for nonpoint sources must reflect
tho higher natural variability and
relative imprecision of nonpoint sources
in relation to point sources. EPA expects
that implementation of load allocations
\vill depend primarily upon recognized
nonpoint source control activities.
These actions are often those already
undertaken in States, Territories and
authorized Tribes to carry out programs
aiid activities approved under CWA
section 319, as well as those under the
requirements of the Coastal Zone Act
Reauthorization Amendments and the
cooperative conservation and water
quality programs carried out by the
United States Department of Agriculture
(USDA). These ongoing activities are
expected to provide the foundation for
nonpoint source implementation plans.
EPA expects that nonpoint source
implementation activities will rely upon
management measures and that
implementation plans will reflect
performance expectations of these
measures over time, hi the case of
nonpoint source impaired waterbodies,
the detail and level of certainty that
water quality standards will be attained
through these management measures
may be different from that for
waterbodies impaired only by point
sources.
EPA is also clarifying in
§ 130.32(c)(2)(iii) that implementation
plans for other than point sources
(primarily nonpoint sources) must
include a schedule for implementing
management measures or other controls
in a TMDL within five years when
implementation within that period is
practicable. In response to comments,
EPA has added a target date of five years
for implementation of management
measures and other controls where it is
practicable to do so. The proposal
required that implementation plans
include a timeline, including interim
milestones, for implementing control
actions and/or management measures.
The final rule requires this timeline be
in the form of a schedule for
implementing the control actions and/or
management measures as well as a
description of the interim milestones for
determining whether the management
measures and/or control actions are
being implemented.
EPA added the five-year target in
response to comments that there needed
to be some target or goal for
implementing the control actions and/or
management measures. EPA never
intended that implementation of the
control actions and/or management
measures would be open ended. The
proposal included the requirement for
milestones for implementation. The
five-year target for implementation
represents the Agency's expectation
that, where practicable, the management
measures and/or control actions should
be implemented within five years. This
is a logical outgrowth of the proposal
that the implementation plan include an
estimate of the time required to attain
and maintain water quality standards
and reasonable response to comments
received. EPA expects that the public
believes that the TMDL will be quickly
implemented following its
establishment. If implementation
requires more than five years, EPA
believes that the public is entitled to an
explanation as to why five years is not
practicable.
The final rule recognizes that the
schedule may provide for more than five
years. Where a State, Territory, or
authorized Tribe determines that five
years is not practicable, it must explain
the basis for its determination. In
determining whether it can implement
management measures within five years,
the State, Territory, or authorized Tribe
may consider, but is not limited to, such
factors as technical feasibility of
installing controls and measures or
changing practices within five years,
competing program priorities in
providing necessary funding and/or
necessary technical assistance, and time
to work with members of the affected
community. The analysis of
practicability in this provision is not
intended to add a new requirement
beyond the requirement to establish
reasonable assurance that management
measures and/or control actions will be
implemented as expeditiously as
practicable. It recognizes that if it is
practicable to implement controls and
measures within five years, they should
be implemented within five years. EPA
recognizes that even if controls and
measures are implemented within five
years, it reasonably would be expected
to take additional time for the actions
and measures to achieve their intended
results and for load allocations to be
met.
In general, EPA believes that, barring
resource constraints or other
impediments that make expeditious
implementation impracticable, TMDLs
can be implemented within five years of
completion of the implementation plan.
In the typical situation, the types of
management measures that will be used
to implementation the TMDL will
consist of a set of well-established
practices that are commonly practiced
within the affected industries and can
be implemented within a five-year time
frame.
For example, to address soil erosion,
well-established practices such as those
that were used by USDA to implement
the conservation compliance program
on highly erodible cropland within the
statutorily required five-year
implementation period of 1985-1990
would typically be used. To address the
impact of grazing upon water quality,
typical approaches would include a
USDA "conservation management
system" or other similar range
management plan to reduce cattle's
access to lie stream (e.g., by providing
alternative supplies of water, shade, and
salt away from the stream; hardening
the limited access points to the stream;
and using fencing where necessary), and
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43627
to employ effective grazing rotation
strategies that will ensure both that
upland areas remain both productive
and that soil erosion is reduced.
Similarly, the primary practices to be
used to implement measures to address
silvicultural nonpoint sources include
road maintenance practices to reduce
runoff and streamside management
practices that will assure that sufficient
protection is provided to provide
• adequate shade and erosion control in
streamside management zones. For
urban runoff, typical measures will
include prevention techniques such as
erosion and sediment control in new
developments (which are required by
new NPDES regulations for all
developments larger than one acre);
continued treatment of post-
development runoff through a variety of
urban best management practices,
protection and restoration of riparian
areas; and techniques to treat runoff in
developed areas.
These and other nonpoint source
measures can generally be implemented
within five years from the time that it
has been determined through a TMDL
implementation plan that they will be
needed to achieve water quality
standards. EPA recognizes that in some
situations, a five-year implementation
period may prove to be impracticable.
This situation is most likely to arise in
some heavily developed areas where
existing infrastructure limits the
availability of effective technical
approaches to very sophisticated and
expensive treatment options. For this
reason, the rule states that TMDLs
should generally be implemented
within a five-year period but allows for
the State to make appropriate
exceptions to the general five-year
implementation period to address
situations where the implementation
plan cannot practicably be implemented
within five years.
Implementation Plans for Blended
Sources
For waterbodies impaired by both
point sources required to have an
NPDES permit and other sources,
including nonpoint sources,
implementation plans are required to
include all of the elements applicable to
these sources. In addition,
implementation plans for waterbodies
impaired by both types of sources must
include a description of the extent to
which wasteload allocations reflect the
expected achievement of load
allocations. EPA encourages
implementation plans that reflect
tradeoffs between wasteload and load
allocations. A particular wasteload
allocation may be set which anticipates
that a load allocation will achieve a
certain reduction in nonpoint source
loadings. As long as the wasteload and
load allocations together will achieve
the TMDL, the TMDL is approvable.
EPA does not expect that load !
allocations will actually be achieved
before a corresponding wasteload
allocation is established but the
implementation plan must demonstrate
the reasonable assurance that the.
practices will achieve the load
reductions.
In the final rule at § 130.32(c)(4), EPA
has clarified that implementation plans
for all impaired waterbodies must be
based on a "goal" of attaining and
maintaining the applicable water quality
standards "as expeditiously as
practicable." EPA believes this new
section is a logical outgrowth of its
proposal that implementation plans
include "an estimate of the time
required to attain and maintain water
quality standards and discussion of the
basis for that estimate." :
hi response to comments, EPA is
providing greater clarity in the final rule
by identifying the goal that States,
Territories and authorized Tribes should
be striving to achieve in their
implementation plans, i.e., attaining and
maintaining water quality standards as
expeditiously as practicable. EPA has
not expressed its sense of an appropriate
time within which to attain water
quality standards in the form of a rigid
regulatory requirement. Instead, the goal
of attaining water quality standards as
expeditiously as practicable mirrors the
provision in the reasonable assurance
definition that TMDLs be implemented
as expeditiously as practicable. The
definition of reasonable assurance
provides the criteria for determining if
the TMDL is being implemented within
10 years whenever practicable. The
provision in § 130.32(c)(4) is not;
intended to establish a test for TMDL
approval that is different from the
requirement to establish reasonable
assurance. Attaining standards as
expeditiously as practicable is stated in
the rule as a goal whose achievement
States should strive for as they develop
their implementation plans.
The "practicability" of meeting
standards within 10 years may be
influenced by a wide variety of factors,
such as the degree of water quality
impairment, the time required to install
controls or change practices, the time
for such actions to have in-stream
effects on water quality, the costs to
implement such actions, and time to
work with members of the affected
community. EPA recognizes that there is
a significant amount of uncertainty
regarding how quickly implementation
measures, once installed, will be
effective in achieving water quality
standards. In some cases, particularly
water impaired by point sources where
implementation will be accomplished
through NPDES modifications, water
quality standards may be achieved
within months or a few years. For
waterbodies impaired by nonpoint
sources, where implementation involves
significant habitat restoration or
reforestation, water quality standards
may not be met for decades.
Accordingly, EPA has selected 10 years
as a reasonable point between these
extremes. If a State, Territory, or
authorized Tribe expects that it will take
longer than 10 years to achieve water
quality standards it must explain why
attainment within 10 years is not
practicable.
hi reviewing State, Territory, and
authorized Tribe implementation plans,
and particularly those components
whose flexibility is conditioned upon a
finding of "reasonableness" or
"practicability", EPA is not required to,
and does not intend to, engage in a
detailed effort at second-guessing the
judgment of a State, Territory, or
authorized Tribe as to whether these
conditions are met. Instead, EPA will
review the State's, Territory's, or
authorized Tribe's submission to
determine whether the State, Territory,
and authorized Tribe has provided a
demonstration of "reasonableness" or
"practicability", where such is required.
If so, that will be the end of the inquiry.
A State's, Territory's, or authorized
Tribe's demonstration need not be
extremely detailed to pass scrutiny. For
example, it would be sufficient to
demonstrate that the five-year
implementation schedule requirement
of § 130.32(c)(2)(iii) is not practicable by
stating that section 319 grant money and
other sources of funds to implement the
relevant management measures will not
be available until year six because the
next five years worth of funds are
already earmarked for other TMDL
implementation.
Q. Total Maximum Daily Thermal Load
(§130.32(d))
What did EPA propose? EPA
proposed § 130.33(c) to restate the
existing requirements at § 130.7(c)(2) in
plain English format. This subsection
requires that States, Territories, and
authorized Tribes develop total
maximum daily thermal loads
(TMDTLs) for thermal discharges from
point sources into thermally impaired
waterbodies.
What comments did EPA receive?
EPA received numerous comments on
this subsection. Several comments
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suggested that the balanced indigenous
population (BIP) of shellfish, fish and
Wildlife standard should be used for
both point and nonpoint sources,
instead of just point sources. These
commenters expressed the belief that
Congress intended section 303(d)(l)(D)
(o apply to all discharges of heat and not
just point sources. Other commenters
{Suggested that this subsection was
unnecessary, as these discharges are
already regulated through NPDES
permits. These commenters expressed a
belief that most NPDES facilities
discharging heat are already regulated
based on a BIP standard, and that a
thermal TMDL would not result in any
greater reductions in heat discharged
Into the waterbody. One comment
suggested that the subsection should
recognize that calculations to determine
the total maximum daily heat input
should be focused on the waterbodies
identified on the section 303(dJ list as
teing impaired by point source thermal
discharges.
What is EPA promulgating today?
EPA is promulgating § 130.32(d) with
three revisions. First, EPA is deleting
the phrase "from point sources" because
this phrase is redundant. Earlier in
today's preamble, EPA explained that its
Definition of "thermal discharge" is
limited to a point source discharge of
heat. Thus, the phrase "from point
spurces" that modifies the phrase
"thermal discharges" in § 130.32(d) is
redundant. Second, EPA made the
revision suggested by comments to
clarify that the TMDTL calculations
apply to waterbodies that are listed as
impaired by thermal discharges. Third,
EPA is clarifying that TMDTLs must
meet the requirements of § 130.32(b)
abd (c). EPA recognizes that the
proposal was unclear regarding whether
the elements of a TMDL also apply to
TMDTLs. EPA intended that they do.
Moreover, the purpose of § 130.32(d) is
to explain that TMDTLs are designed to
achieve a balanced indigenous
population of shellfish, fish, and
wildlife instead of attaining the water
quality criterion for temperature.
EPA declines to apply the BIP
standard to TMDLs established for
waterbodies impaired only by nonpoint
sources of thermal loading. As
discussed in the preamble to the
proposed rule, EPA believes that section
303(d)(l)(B) and (D) applies the BIP
standard only to thermal discharges
from point sources. (64 PR 46017,
August 23,1999).
EPA also rejects the suggestions that
S 130.32(d) be deleted because thermal
discharges are already regulated through
NPDES permits. Not all NPDES
regulated discharges have permits that
contain effluent limits for heat. For
some discharges on thermally impaired
waterbodies there may, therefore, be a
need to develop thermal TMDLs to
address for the first time impairments
by thermal discharges. EPA recognizes
that, where an NPDES regulated facility
has obtained a section 316(a) variance
from thermal water quality standards,
the facility already is required to
discharge at a level based on a BIP
standard. However, this is no different
than the situation where a point source
discharging nitrogen is also regulated by
an NPDES permit with effluent
limitations based on the applicable
water quality standard. Section 303(d)
requires TMDLs and TMDTLs in both
situations.
R. How Must TMDLs Take Into Account
Endangered and Threatened Species
(§130.32(e))
What did EPA propose? EPA
proposed to include language at
§ 130.33(e) to explain that TMDLs must
not be likely to jeopardize the continued
existence of an endangered or
threatened species listed under section
4 of the Endangered Species Act or
result in the destruction or adverse
modification of its designated critical
habitat. In practice, EPA believes it
would be highly unlikely TMDL
activities could jeopardize listed
species, since the TMDL program will
result in substantial improvements in
water quality, to the benefit of all water-
dependent species.
What comments did EPA receive? A
number of commenters opposed EPA's
proposal. Grounds for these objections
include allegations that EPA lacks
authority to impose such a requirement,
and that EPA is attempting to shift the
burden of compliance with the
Endangered Species Act away from EPA
and to the States.
What is EPA promulgating today?
EPA is promulgating this section as
proposed. Today's rule provides a
framework for the public, States,
Territories and authorized Tribes and
other Federal agencies to recognize and
account for the effects of lists and
TMDLs on endangered species.
The CWA provides ample authority
for EPA to include this requirement.
This requirement is consistent with the
goals of restoring and maintaining the
biological integrity of the nation's
waters and protection of fish, shellfish
and wildlife. See CWA section 101(a).
Furthermore, the CWA requires that
TMDLs be established at a level
necessary to implement applicable
water quality standards, and that
standards consider propagation of fish
and wildlife. See CWA sections
303(d)(l)(C) and 303(c)(2)(A). This is
adequate authority to include a
regulatory requirement designed to
protect endangered or threatened
species. See American Iron & Steel
Institute v. EPA, 115 F.3d 979, 1003
(D.C. Cir. 1997). Although EPA does
intend to require State, Territory, or
authorized Tribe TMDL submissions to
adhere to this provision, it is not EPA's
intent to divest itself of any duty to
comply with the ESA. Where the ESA
imposes duties upon EPA, the Agency
intends to comply with those
requirements.
S. How are TMDLs Expressed? (§ 130.33)
What did EPA propose? EPA
proposed at § 130.34 specific
requirements regarding how TMDLs
may be expressed. First, EPA clarified •'
that all TMDLs must contain an
expression of the pollutant load or load
reduction necessary to assure that the
waterbody will attain and maintain
water quality standards. This includes
aquatic and riparian habitats, and
biological, channel, geomorphological,
or other appropriate conditions that
represent attainment or maintenance of
the water quality standard. In these
instances, the TMDL will contain the
wasteload and load allocations
necessary to maintain these conditions.
EPA also proposed that States,
Territories, and authorized Tribes may
use one of four approaches when
expressing a TMDL. First, the TMDL
could be expressed as the pollutant load
that ensures that the waterbody does not
exceed water quality standards. Second,
the TMDL could be expressed as the
pollutant load reduction that attains or
maintain!; water quality standards.
Third, the TMDL could be expressed as
the pollutant load or load reduction that
attains or maintains aquatic, riparian,
biological, channel, or
geomorphological measures so that
water quality standards are attained and
maintained. Fourth, the TMDL could be
expressed as the pollutant load or load
reduction that results from modifying a
characteristic of the waterbody such that
water quality standards are attained or
maintained. EPA made this proposal to
allow States, Territories, and authorized
Tribes to express TMDLs in terms that
are appropriate to the characteristics of
the waterbody and pollutant
combination. Finally, EPA proposed
that TMDLs may, where appropriate, be
expressed in other than daily terms, e.g.,
weekly, monthly, seasonal, or annual, as
needed, to ensure that the TMDL attains
and maintains water quality standards.
EPA made this proposal because EPA
has found through the practice of
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43629
establishing TMDLs that for some
pollutants and their applicable
standards the concept of a "daily" load
is simply not a technically appropriate
way of expressing a TMDL in a manner
necessary to implement water quality
standards. In the preamble, EPA
provided examples of three situations
where a seasonal or average loading was
more appropriate than a daily loading.
(64 FR 46031, August 23,1999). EPA
believes that allowing flexibility in
expressing the TMDL to reflect the
environmental realities of the pollutant
and waterbody better allows TMDLs to
achieve the Congressional goal of
establishing TMDLs at a "level
necessary to implement the applicable
water quality standards."
What comments did EPA receive?
EPA received many comments specific
to this section. Most comments focused
on the legal and technical issues
pertaining to expressing TMDLs as other
than a daily load. Some comments
expressed support for the flexibility to
express TMDLs as daily, monthly,
seasonal, or annual loads where
appropriate, and believed this would
allow TMDLs to better address nonpoint
sources. Many comments expressed
concerns that use of other than daily
loads would allow for excessive
loadings over short time periods. When
averaged with periods of no loading,
these short-term loads could cause the
water quality standard to be exceeded.
A number of comments stated that only
daily loads are permissible under the
CWA, including for nonpoint source
loads. Other comments expressed the
view that the need to use any expression
other than a daily value is an indication
that the pollutant is not suitable for
TMDL calculations.
Some comments expressed concern
that proposed § 130.34 implied that a
TMDL was no longer a quantitative
expression of the load necessary to
attain water quality standards. Other
comments expressed confusion whether
the language of § 130.34(b) allowed
TMDLs to be expressed as load
reductions or not. A number of
comments expressed concern that,
because TMDLs are now required to be
quantitative expressions of loads or load
reductions, this removes the current
flexibility to express TMDLs as
measures of water quality improvement
that do not directly express the load
reductions. These comments supported
retaining the current rule language.
Some comments expressed support
for TMDLs addressing riparian and
aquatic habitat, and biological, channel,
geomorphological, or other appropriate
conditions. Other comments expressed
doubt that TMDLs could quantify the
relationships between pollutant loads
and these expressions of water quality
standards. Further comments expressed
the belief that TMDLs should only
address numeric (and not narrative)
criteria in water quality standards.
What is EPA promulgating today?
Based on its analysis of the many ;
comments received on this section, EPA
is making the following changes to the
proposed rule language. First, EPA is
revising proposed § 130.34(a) to add the
word "quantitative" to modify the.
phrase "expression of the pollutant
load." EPA is making this change to
respond to the concerns that the TMDL
was no longer a quantification of the
load necessary to attain water quality
standards. As explained in the
preambles to both the proposed and
final rules, the purpose of the TMDL is
to attain and maintain water quality
standards, and the purpose of the
wasteload and load allocations is to
identify the loadings needed to attain
and maintain these standards. EPA
agrees there should be no confusion as
to this requirement, and thus is making
this change to the final rule. j
Second, EPA is changing the word
"represent" to "result in" in proposed
§ 130.34(a). EPA made this change based
on concerns expressed in comments that
loadings or loading reductions do not
represent water quality standards but
rather result in the attaining and
maintaining of water quality standards.
EPA agrees with the commenters that
the words "represent" is imprecise.
Third, EPA is not promulgating jthe
language of proposed § 130.34(b) that
recognized that both the pollutant load
and load reductions may be expressed
as other than a daily value as
appropriate to the characteristics of the
waterbody and pollutant. This language
allowed TMDLs to be expressed as
monthly, seasonal, and annual averages
as appropriate to the characteristics of
the waterbody. EPA has decided not to
include this provision in the final rule
because EPA is concerned that it could
be used to justify some TMDLs that do
not in fact attain and maintain water
quality standards in all seasons and for
all flows. Instead, EPA is retaining a
sentence it promulgated in the 1985 rule
in the definition of a TMDL that speaks
to how a TMDL can be expressed. That
sentence says that TMDLs may be :
expressed"* * * in terms of either
mass per time, toxicity, or other ;
appropriate measure." EPA continues to
believe that in some situations, it is
reasonable to authorize TMDLs that are
expressed in other than daily terms. As
discussed in the August 1999 preamble,
to conclude otherwise could frustrate
the Congressional goal of establishing
TMDLs at a level necessary to
implement the applicable water quality
standards. EPA disagrees with the
comments asserting that only daily
loads are permissible under the CWA.
(64 FR 46031, August 23,1999). The
CWA does not define a TMDL. Nor does
the Act specify how a TMDL may or
should be expressed. Consequently, the
Act does not mandate that a TMDL be
expressed as a daily load, and does not
require EPA to disapprove TMDLs
expressed as daily loads. Rather, this
matter is left to EPA's discretion
because where a statute is silent on a
specific issue, EPA's interpretive
regulations are entitled to controlling
weight. EPA's previous regulations at
§ 130.2(i) and current regulations at
§ 130.33(b)(5) expressly provide that a
TMDL may be expressed in terms of
either mass per time, toxicity, or other
appropriate measure. Furthermore, EPA
interprets its regulations to permit
TMDLs to be expressed in terms other
than daily loads as long as compliance
with the applicable water quality
standard is assured.
EPA acknowledges the concern that
use of other than daily loads could
allow for excessive loadings over short
time periods that, when averaged with
periods of no loading, might satisfy the
wasteload and load allocations, but
would cause the water quality standard
to be exceeded. However, EPA
continues to believe that there are
situations where other than a daily load
is appropriate to ensure that water
quality standards are attained and
maintained. Where other than a daily
load is necessary to address relevant
factors, such as the variability of
nonpoint sources, the averaging period
of the water quality standard or the
physical size and hydraulic nature of
the waterbody, EPA expects that the
State, Territory, or authorized Tribe will
use the most appropriate expression of
the load amenable to those
characteristics. To help ensure that this
flexibility is appropriately used, EPA, in
its review of the TMDL, will look for an
explanation by the State, Territory, or
authorized Tribe as to the reasons why
it is appropriate to express the TMDL in
terms other than a daily load. The
TMDL documentation will need to show
that the resulting allocations are
sufficient to eliminate the impairment,
addressing all aspects of the water
quality standard and the adverse effects
of the pollutant in question. For
example, the documentation would
discuss, where appropriate, the
difference between acute short-term
impacts during storm flows and long-
term effects of the pollutants in the
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system over time, or the difference
bet\veen short-term changes in water
column concentrations and the long-
term impacts of pollutant
concentrations in sediments and biota.
If a TMDL for a particular pollutant
contained an expression other than a
daily load, and die situation indicated
that expressing the TMDL as a daily
load is a necessity to attain and
maintain water quality standards, EPA
would disapprove the TMDL as
insufficient to attain and maintain water
quality standards.
EPA does not interpret the final rule
to require that TMDLs always be
expressed as the load or load reduction
of the pollutant causing the impairment.
The final rule at § 130.32(b)(5) preserves
the flexibility to express the TMDL as a
quantitative expression of a
modification to a characteristic of the
waterbody that results in a certain load
or load reduction. In these situations,
the TMDL is required to identify the
pollutant load present in the waterbody
(§ 130.32(b)(3)) and the deviation from
that load necessary to attain and
maintain water quality standards
(§ 130.32(b)(4)). However, the
allocations and implementation plan
monitoring measures could be
expressed in terms of a surrogate
measure of the necessary load
reduction. In these situations, the
relationship between a surrogate
measure and the pollutant load should
be clearly described in the TMDL
documentation. For example, a TMDL
that addresses exceedances of
temperature criteria because of a
denuded riparian corridor is ultimately
expressed in terms of heat units, e.g.,
BTU or calories per day, over time.
However, the environmental measure
that might be most appropriate for
implementation plan monitoring
purposes is temperature (degrees); for
implementation plan management
measures it might be miles or acres of
riparian zone restored. These surrogate
measures must correlate to their ability
to reflect a reduction of heat load and
decrease in water temperature. In this
example, the TMDL documentation
would calculate the total heat load that
achieves either the temperature water
quality standard, or a balanced,
indigenous population of fish, shellfish
and wildlife, whichever standard is
applicable for the waterbody. The
TMDL would then show how that heat
load would be achieved by a quantified
increase in forestation (the appropriate
surrogate measure) designed to increase
shading of the waterbody. In this way,
the environmental measures of ambient
temperature and riparian characteristics
are quantitatively related to the thermal
load expressed in the TMDL.
Other comments expressed doubt that
TMDLs could quantify the relationships
between pollutant loads and
expressions of aquatic or riparian
habitat health, and biological, channel,
geomorphological, or other appropriate
conditions in water quality standards.
EPA recognizes there are many causes of
elevated pollutants in surface
waterbodies. Some situations do not
involve a discharge of pollutants, but
nevertheless affect the amount of a
pollutant load in the waterbody. In
these instances, the final rule language
requires the State, Territory, or
authorized Tribe to develop a TMDL for
whatever pollutant (including heat) that
causes the waterbody to exceed the
water quality standard. For example,
where the impairment of an aquatic
habitat is caused by excessive sediment
as a result of landslides or bank erosion,
EPA expects that the TMDL would be
established for the pollutant sediment.
Another example is where an aquatic
habitat is stressed by excessive
temperature as a result of a denuded
riparian habitat. In this instance, EPA
expects the TMDL would be established
for the pollutant heat. EPA has
developed guidance on how to address
impairments due to sediment, which
was the most frequent cause of
impairment mentioned in the States'
1998 section 303(d) lists. See "Protocol
for Developing Sediment TMDLs," EPA
841-B-99-004, October 1999.
EPA declines changing the proposal
to provide in the final rule that TMDLs
need address only impairments of
numeric criteria in water quality
standards. EPA's long standing policy
has been that narrative criteria apply to
all designated uses at all flows and are
a necessary component of State water
quality standards. See section
303(c)(2)(A) of the CWA; and the Water
Quality Standards Handbook, EPA-823-
B-94-005a, August 1994, page 3-24.
Narrative criteria descriptively
accomplish what numeric criteria
account for quantitatively. Narrative
criteria are descriptions of the
conditions of the waterbody necessary
to attain and maintain its designated
use, while numeric criteria are values
expressed as levels, concentrations,
toxicity units or other measures which
quantitatively define the permissible
level of protection. Thus, narrative
water quality criteria establish the basic
foundation for attainment of designated
uses while numeric water quality
criteria provide a specific quantitative
translation of the necessary level of
protection. In short, numeric criteria are
specific, quantified expressions of the
narrative criteria. States, Territories and
authorized Tribes adopt translator
procedures by which to derive a
quantified numeric interpretation of the
narrative criterion. Such procedures
must be scientifically defensible, and
are also subject to EPA review and
approval. EPA recognizes that narrative
water quality criteria are not expressed
as numbers and thus are not directly
amenable to TMDL calculations.
However, as expressed in EPA guidance,
a State, Territory, authorized Tribe, or
EPA can quantify narrative criteria for
use on regulatory actions. See
"Technical Support Document for Water
Quality-based Toxics Control," EPA/
505/2-90/001, March 1991;
§ 122.44(d)(l); "Guidance for Water-
Quality-based Decisions: The TMDL
Process," EPA 440-4-91-001, 1991;
§ 132 Appendix F Procedure 3 [which
speaks to "values" which are that rule's
equivalent to quantifications of
narrative criteria]. Therefore, EPA
continues to believe that TMDLs can be
calculated based on narrative criteria
where those criteria can be quantified.
CWA section 303 directs States, with
oversight by EPA, to adopt water quality
standards to protect the public health
and welfare, enhance the quality of
water and serve the purposes of the
CWA. Under section 303, States,
Territories, and authorized Tribes are
required to develop water quality
standards for waters of the United States
within the State. Section 303(c)
provides that water quality standards
shall include the designated use or uses
to be made of the water. EPA regulations
implementing section 303(c) are
published at Part 131. Under these
rules, the minimum elements that must
be included in a State's water quality
standards include use designations for
all water bodies in the State, water
quality criteria sufficient to protect
those use designations, and an
antidegradation policy. Section 131.10
requires States and authorized Tribes to
adopt appropriate uses to be achieved
and protected. In no case can they adopt
waste transport or assimilation as a use
for any waters. EPA has in the past, and
may in lie future, promulgate
designated uses for State waters where
such action is necessary to meet the
requirements of the CWA and the
implementing federal regulations.
EPA's policy is that, because
designated or existing uses of a
waterbody are part of the water quality
standards, they are also an appropriate
basis for determining an impairment of
that waterbody. All of the water quality
protections established by the CWA
follow from the waterbody's use—
established, protected and maintained
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43631
under the authorities of section 303(c) of
the CWA. Thus, designated uses
establish the fundamental basis for
determining whether the water quality
standards of a waterbody are attained.
In certain circumstances it is possible
that water quality criteria can be met,
and the designated uses still not
achieved. For example, factors such as
food web structure, the concentration of
dissolved organic carbon in the ambient
water, and accumulations in the
sediment may effect uptake of mercury
into fish flesh on a site specific basis. In
these circumstances, EPA recommends
States, Territories, and authorized
Tribes translate the applicable narrative
criteria on a site specific basis, or adopt
site specific numeric criteria, to protect
designated uses. However, ultimately,
the final determination of whether the
water quality standard is attained is
made by determining the attainment of
the designated use.
T. What Actions Must EPA Take on
TMDLs That are Submitted for Review?
(§130.34)
What did EPA propose? In proposed
§ 130.35, EPA included several minor
changes to its current regulatory
submission and approval requirements
for TMDLs to clarify how the approval
process would work. The proposal
provided that EPA would only approve
a TMDL submission that included all
required minimum elements. The
proposal would have continued the
requirements of the current regulations
that when EPA establishes a TMDL, it
would send it to the State, Territory, or
authorized Tribe for incorporation into
the water quality management plan.
EPA also proposed to continue the
requirements of the current regulations
that, when EPA establishes a TMDL, it
requests public comment on the TMDL
for at least 30 days following its
establishment. The proposal also would
have added new requirements regarding
how EPA would provide public notice
and revise TMDLs it establishes based
on the public comment it receives.
What comments did EPA receive?
EPA received comments regarding the
criteria it will use to review TMDLs.
Some comments suggested that EPA's
review should focus only on whether
the TMDL included all required
elements, and that EPA must approve
any TMDL received if it contained all
elements. In contrast, other comments
suggested that EPA should review the
elements for their consistency with the
substantive requirements of this
subpart, including whether the TMDL is
set at a level sufficient to attain and
maintain water quality standards.
Further comments again expressed
belief that the CWA only allows EPA to
review the total load calculated for a
waterbody and nothing else. (Today's
preamble discusses this issue in section
II.A.1.6.)
EPA also received comments about
the timing of its actions. Many
comments requested an automatic'
approval of TMDLs if EPA does not act
to approve or disapprove the TMDLs
within 30 days, or fails to send the
State, Territory, or authorized Tribe
comments on the TMDL. These
comments expressed concern that EPA
will not be able to take timely action on
all TMDLs and that the new rules will
maike EPA's review take even longer.
EPA also received comments about its
process for disapproving and
establishing TMDLs. Several comments
expressed concern that the proposal did
not commit EPA to take action as
required by the CWA. These comments
suggested that EPA use the word "must"
or "shall" where ever the section spoke
to statutory obligations. Many
comments requested that EPA provide
an appeal process, public hearing, or
consultation with States, Territories and
authorized Tribes on disapproved
TMDLs. Other comments requested that
EPA explain to States, Territories and
authorized Tribes and the public why it
disapproved any TMDL. These
comments generally expressed concern
that EPA might make arbitrary decisions
to disapprove TMDLs. Some comments
expressed the view that EPA must
follow the same public notice process as
States, Territories and authorized Tribes
when EPA establishes a TMDL.
EPA also received comments about
the adoption of TMDLs into water t
quality management plans. Some
comments requested that EPA establish
a deadline by which States, Territories,
and authorized Tribes must adopt
TMDLs into their plans. Other
comments expressed a belief that a
TMDL is not effective until after a State,
Territory, or authorized Tribe adopts it
into its water quality management plan.
What is EPA promulgating today?
Based on its analysis of the many
comments received, EPA has revised
this section, now numbered as § 130.34.
First, EPA is deleting proposed
paragraph § 130.35(a) because it was
duplicative of the requirements of
proposed paragraph § 130.35(b). Section
§ 130.35(a) would have required that
EPA approve TMDLs that included the
elements identified in proposed
§ 130.33(b), whereas proposed
§ 130.35(b) would have required that
EPA approve TMDLs that met the
requirements of proposed §§ 130.32,
130.33, and 130.34, i.e., established in
accordance with the schedule, including
the elements required by § 130.33(b) and
appropriately expressed. EPA agrees
with commenters that the review
criterion in proposed § 130.35(a) was
included within proposed § 130.35(b).
Therefore, EPA is not including the
language for proposed § 130.35(a) in the
final rule.
The final regulations at § 130.34(a)
provide that EPA will approve TMDLs
if they are established for the
appropriate waterbody/pollutant
combination as required by § 130.31,
include all elements prescribed by
§ 130.32, and are expressed in
accordance with § 130.33. EPA will
disapprove any TMDL submitted by a
State, Territory, or authorized Tribe that
does not include all elements of
§ 130.32(b) or fulfill the substantive
requirements of §§ 130.31,130.32, and
130.33. EPA will work with States,
Territories, and authorized Tribes,
including providing comments on
TMDLs submitted to it in draft form, to
help ensure that the TMDLs that EPA
receives are approvable. EPA considers
all elements of § 130.32(b) and the
substantive requirements of §§ 130.31,
130.32, and 130.33 as necessary for
determining whether a TMDL, when
implemented, will attain and maintain
water quality standards.
EPA declines to provide that TMDLs
shall be deemed automatically fully or
conditionally approved at the end of the
30-day review period if EPA has not
acted. EPA acknowledges commenters'
concerns regarding the timeliness of
EPA's TMDL approval actions.
However, an automatic full or
conditional approval of a State's,
Territory's or authorized Tribe's TMDL
submission upon expiration of the 30-
day review period is not consistent with
section 303 of the CWA. Section 303(d)
requires EPA to approve or disapprove
a submitted TMDL. EPA has the
responsibility to determine that
submitted TMDLs fulfill the
requirements of the CWA and these
implementing regulations. EPA declines
to adopt an approach which would
result in automatic approval actions
when EPA has not evaluated the
sufficiency of the TMDL with respect to
the requirements of section 303(d). As
previously discussed, EPA expects to
share comments and information with
States, Territories and authorized Tribes
on draft TMDLs submitted to EPA for
informal review. EPA believes that such
information sharing will help assure
approvable TMDLs and will enable EPA
to complete its review within the 30-day
statutory time frame.
As requested by comments, EPA is
clarifying what actions EPA is obligated
to take in its decisions. Therefore, the
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final rule uses the word "must" to
represent EPA's statutory obligations to
Either approve or disapprove and
establish a TMDL. The final rule also
uses the word "must" with regards to
EPA's public notice requirements when
SPA disapproves and establishes a
TMDL.
EPA declines to establish in the final
rule an appeal or consultation process
for States, Territories, and authorized
Tribes when EPA disapproves their
TMDLs. Because section 303(d) only
allows EPA 30 days to establish a
replacement TMDL after EPA
disapproves one, EPA does not have
sufficient time to allow for an appeal or
Consultation process. Also, the 30-day
period for EPA to issue an order
establishing a TMDL and the minimum
30-day public comment period on the
TMDL allows time during which the
State and EPA can consult on the new
TMDL. If during that time, the State
decided to adopt and EPA approved a
TMDL meeting EPA's objectives, EPA
would withdraw its TMDL. As
previously discussed, EPA expects that
sharing information with States,
Territories, and authorized Tribes on
TMDLs being drafted will help EPA and
States, Territories, and authorized
Tribes resolve differences over TMDLs
before they are submitted.
EPA agrees that it needs to describe in
the administrative record of its TMDL
disapproval decisions the reasons for
the disapproval and make that
information available to States,
Territories, authorized Tribes, and
interested parties. EPA's public notice
requirements at Part 25 describe the
process by which EPA generally makes
information available and receives
public comment. As described later in
the preamble, EPA patterned the TMDL
public notice requirements on its own
Part 25 requirements. EPA also declines
to establish a deadline by which States,
Territories, and authorized Tribes must
adopt TMDLs into their water quality
management plans. The CWA does not
provide for or require such a deadline.
EPA does not believe it is necessary to
require adoption of TMDLs in the
State's, Territory's or authorized Tribe's
plan on a specified schedule once EPA
approves or establishes it. A TMDL may
be used as a basis for NPDES permits
and other implementation actions once
EPA approves or establishes it and
before it is incorporated into the Water
Quality Management Plan. States,
Territories and authorized Tribes have
different legal requirements for revising
tjieir Plans to incorporate TMDLs. EPA
believes there is no compelling reason
to require States, Territories, and
authorized Tribes to revise their
individual requirements solely to assure
incorporation of all TMDLs into Water
Quality Management Plans by a certain
federally-prescribed date.
EPA is also adding § 130.34(b) and (c)
to clarify how EPA will provide
reasonable assurance when EPA
establishes a TMDL. EPA will use its
authority to condition CWA grants to
the fullest extent practicable and in a
manner consistent with the effective
operation of clean water programs. For
example, EPA may condition section
319 grants such that the funds can only
be used to implement management
measures in watersheds where EPA has
established a TMDL that includes load
reductions for nonpoint sources.
Similarly, EPA may condition section
106 grants such that the funds for
monitoring can only be used to support
the monitoring specified in TMDL
implementation plans. EPA may also
use its voluntary, incentive-based
programs to ensure that management
measures are funded and implemented.
EPA believes this authority to condition
grants will generally be the sole or
primary basis by which it will
demonstrate reasonable assurance for
the implementation of load allocations.
EPA will also encourage States,
Territories, and authorized Tribes to use
their own statutory and regulatory
authorities. EPA cannot, however,
require States, Territories or authorized
Tribes to use then- statutory and
regulatory authorities.
Where necessary, EPA will make use
of its other statutory and regulatory
authorities to provide reasonable
assurance. EPA recognizes that its CWA
regulatory authority is primarily limited
to the NPDES permit program for point
sources. In some cases, EPA may use
authorities under section 504 of the
CWA to address an "imminent and
substantial endangerment to human
health or welfare."
U. How Will EPA Assure That TMDLs
Are Established? (§ 130.35)
What did EPA propose? EPA
proposed in § 130.36 to codify its
authority to establish TMDLs if the
State, Territory, or authorized Tribe so
requests, or if EPA determines that a
State, Territory, or authorized Tribe has
not or is not likely to establish TMDLs
in accordance with then- schedules, or if
EPA determines it should establish
TMDLs for interstate or boundary
waterbodies. EPA made this proposal
for a number of reasons. EPA explained
that it may be necessary for EPA to
establish TMDLs if interstate or
international issues and coordination
needs require EPA to assume a
leadership role. 64 FR 46037, August 23,
1999.
EPA explained in the preamble that it
anticipates that a decision to step in and
establish TMDLs would be "rare and
based on case specific decisions."
Finally, EPA explained that it may have
to exercise its authority to establish
TMDLs where the State, Territory, or
authorized Tribe requests this support
from EPA. As discussed in the
preamble, EPA recognizes that this
authority to establish TMDLs absent a
prior disapproval is not expressly stated
in section 303(d). However, EPA
explained that such authority is clearly
implied in the CWA, is a reasonable
interpretation of the Act, has been
required of EPA by the courts, and is
necessary to accomplish the purposes of
the Act. 64 FR 46037, August 23, 1999.
What comments did EPA receive?
EPA received comments about the
conditions under which EPA proposed
to establish TMDLs. Some comments
expressed a belief that EPA must step in
when a State, Territory, or authorized
Tribe is likely not to or does not
establish TMDLs according to its
schedule. Others were concerned about
the phrase "likely not to" and suggested
that EPA. establish TMDLs only after a
State, Territory, or authorized Tribe fails
to do so. Further comments expressed
the belief that EPA has no authority to
establish TMDLs outside of a
disapproval except when a State
requests EPA to do so.
EPA received comments about the
conditions under which EPA would
establish a TMDL for interstate
waterbodies. Some comments supported
the proposal. Others believed that EPA
must establish interstate TMDLs on
behalf of the States. Further comments
expressed the view that this authority is
limited to situations where EPA
determines that States, Territories and
authorized Tribes are not making
progress in establishing TMDLs. More
comments expressed the view that this
authority is limited to situations where
States, Territories and authorized Tribes
or interstate commissions ask EPA to
establish TMDLs. A few comments
rejected EPA's suggested option to
require States, Territories and
authorized Tribes jointly to develop
interstate TMDLs. Others suggested that
EPA's role is to coordinate with States,
Territories and authorized Tribes on
interstate TMDLs and not establish them
for States, Territories and authorized
Tribes.
What is EPA promulgating today? In
§ 130.36 of the proposal, EPA proposed
to codify its authority to establish
TMDLs for waterbodies on Part 1 of a
list under certain circumstances,
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43633
including if EPA determined that a
State, Territory, or authorized Tribe had
not or was not likely to establish TMDLs
consistent with its schedule. In response
to comments and to better ensure that
TMDLs will be established, EPA has
added a new § 130.35 to the final rule
which codifies steps EPA will take to
implement its authority under section
303(d) to assure that TMDLs are
established for listed waters. In addition
to "working with" States, Territories,
and authorized Tribes to assure
establishment in accordance with
approved schedules, EPA will ensure
that TMDLs are established for States,
Territories, and authorized Tribes if
they have not made "substantial
progress" in establishing TMDLs in
accordance with their "approved
schedule." A discussion of what EPA
means by "substantial progress" and a
more detailed discussion of EPA's
schedule for acting if States, Territories,
and authorized Tribes fail to
demonstrate "substantial progress"
appears below.
As requested by comments, EPA is
clarifying that it is obligated to ensure
that States, Territories, and authorized
Tribes establish TMDLs in accordance
with their approved schedules. EPA
believes the requirements it is placing
on itself to act in § 130.35 are both
consistent with CWA section 303(d) as
it has been interpreted by a number of
courts and a logical outgrowth of the
proposal. They are a logical outgrowth
in that, in the proposal, EPA clearly
noticed its intent to exercise its
authority under section 303(d) to step in
and establish TMDLs when it
determines a State was not likely to do
so. In the final rule, EPA is simply
clarifying and expanding upon that
concept and stating under what specific
conditions and upon what schedule
EPA will do that. EPA's decision to
codify the circumstances under which it
will ensure that TMDLs are established
is also consistent with the decisions of
a number of courts which have
interpreted CWA section 303 (d) as
placing upon EPA a duty to establish
TMDLs where a State, Territory, or
authorized Tribe has failed to do so, or
in the words of the courts, where a State
has made a "constructive submission"
of no TMDLs.
EPA is also identifying two ways by
which it will assure that all TMDLs are
established as planned for in the
schedule for TMDLs. First, EPA must
work with the State, Territory, or
authorized Tribe in establishing TMDLs.
EPA may do this by providing technical
or financial assistance consistent with
EPA's abilities and resources, or by
establishing certain TMDLs upon the
request of the State, Territory, or
authorized Tribe. Where a State,
Territory, or authorized Tribe has not
made substantial progress on
establishing a TMDL in accordance with
its approved schedule, EPA mustiensure
that the TMDL is established. EP'A does
not expect to invoke this authority
frequently. Based on its experience to
date under court-ordered schedules,
EPA believes that the States, Territories,
and authorized Tribes will be able to
establish most of their TMDLs according
to the dates in their schedules. !
Today's final rule also explains how
EPA will determine if a State, Territory,
or authorized Tribe has made
substantial progress in establishing a
TMDL. Under § 130.28(c), States,
Territories, and authorized Tribes will
specify which TMDLs they intend to
establish in each one year period. If a
State, Territory, or authorized Tribe has
not established the TMDL by the end of
the one year period within which the
TMDL was scheduled to be established,
it has not made "substantial progress"
as described in today's rule. At this
point, EPA must ensure that the TMDL
is established within two years. In a
case where EPA develops a TMDL, the
Agency expects to publish the TMDL
within 2 years. In rare instances, where
. there is a compelling need for additional
time, 'the Administrator may extend the
2 year period by up to an additional 2
years. The Administrator must publish
a description of a decision to provide an
extension in the Federal Register. If the
State, Territory, or authorized Tribe
establishes the "missed" TMDL before
EPA establishes it pursuant to this
section, EPA must review and either
approve or disapprove that TMDL
pursuant to section 303(d), and if
approved at that time its obligation to
establish the TMDL expires. EPA will
also look at the stage of development of
a TMDL in comparison to the schedule
in determining if a State, Territory, or
authorized Tribe is making substantial
progress. Where the State, Territory, or
authorized Tribe is close to completing
the TMDL at the time called for by the
schedule, EPA will interpret this as
substantial progress.
As discussed in the August 1999
preamble, EPA has the authority to
establish TMDLs even when it has not
disapproved a State, Territorial, or
authorized Tribal submission. 64 FR
46037-46038, August 23, 1999. EPA
recognizes the merit, in some instances,
for it to take the lead in establishing
TMDLs for interstate and boundary
waterbodies and expects to exercise this
authority primarily for interstate
waterbodies. For this reason, EPA is
including in the final rule a provision
allowing EPA the discretion to establish
TMDLs for interstate or boundary
waters. Boundary waters are those
rivers, streams and lakes which form
part of the boundary between States,
Territories and Indian Country. These
waters present special problems
because, in many instances, the
waterbody is governed by two or more
potentially differing sets of water
quality standards. Similar problems may
be present for interstate water which—
rather than forming a jurisdictional
boundary—flow out of one jurisdiction
and into another. In exercising this
authority, EPA will encourage States,
Territories and authorized Tribes to take
the lead in developing TMDLs for such
waterbodies because EPA interprets the
CWA as giving States, Territories and
authorized Tribes the lead responsibility
for doing so. EPA also strongly
encourages States, Territories and
authorized Tribes to work with
interstate river basin and other
commissions, where appropriate, when
establishing TMDLs for interstate or
boundary waters. These commissions
are uniquely positioned, by virtue of
their multi-state membership and
technical expertise, to assist EPA and
the States in establishing TMDLs for
such waters.
EPA anticipates at least two instances
in which it might need to exercise its
authority to establish interstate and
boundary water TMDLs. The first is
when the States, Territories and
authorized Tribes have not made
substantial progress in establishing
interstate and boundary water TMDLs
according to their schedules. The
second is where individual adjacent
State schedules are so different with
respect to interstate or boundary waters
that they may defeat the ability of the
States, Territories and authorized Tribes
to work together to establish an
interstate or boundary water TMDL.
EPA believes the final rule language
should allow EPA the flexibility to
establish TMDLs for interstate and
boundary waters under such
circumstances. Finally, EPA is not
including in the final rule a requirement
that States, Territories and authorized
Tribes work together jointly to establish
TMDLs on interstate waters. Instead,
EPA will continue to serve as a
facilitator to help States, Territories and
authorized Tribes establish interstate
TMDLs, and EPA will use its authority
when necessary to ensure that interstate
TMDLs are established.
EPA is also adding a statement at
§ 130.35(b)(2) that EPA may establish
TMDLs for waterbodies to implement
Federal water quality standards. As
previously discussed in today's
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preamble, EPA recognizes that there are
some impaired waterbodies outside the
jurisdiction of States, Territories, and
authorized Tribes. Where EPA has
established Federal water quality
standards for these waterbodies, such as
waterbodies located on tribal lands
Where the Tribe has yet to be authorized
under section 303, EPA believes it has
the authority to also establish TMDLs
for the reasons given above.
V. What Public Participation
Requirements Apply to the Lists and
TMDLs? (§130.36)
What did EPA propose? EPA
proposed a number of specific
requirements for public participation.
EPA proposed to require that States,
Territories and authorized Tribes
provide the public with at least 30 days
to reviexv and comment on all aspects of
the list, the priority ranking, the
schedule for developing TMDLs, and
tha TMDLs themselves prior to their
submission to EPA. EPA also proposed
that, at the time States, Territories, and
authorized Tribes submit their list,
schedule or TMDLs to EPA, they
provide EPA with a written summary of
any public comments received during
the public comment period and their
response to such comments. In addition,
EPA proposed to require States,
Territories, and authorized Tribes to
send, at the time of public notice, copies
of lists, priority rankings, TMDL
schedules and TMDLs to the U.S. Fish
and Wildlife Service and the National
Marine Fisheries Service (the Services),
where appropriate (e.g., coastal areas).
The proposal also provided that, if
requested, EPA would send this
information to the Services on behalf of
the State, Territory, or authorized Tribe.
As proposed, the rule also encouraged
States, Territories, and authorized
Tribes to establish processes with both
Services to provide for the early
identification and resolution of
threatened and endangered species
issues as they may relate to lists of
impaired waterbodies, priority rankings,
schedules, and TMDLs. The proposal
also would have required States,
Territories, and authorized Tribes to
Consider any comments received from
the Services prior to the submission of
their lists of impaired or threatened
waterbodies, priority rankings,
schedules, and TMDLs to EPA. EPA
proposed these provisions to help
ensure timely input from the wildlife
agencies as lists and TMDLs are being
developed.
What comments did EPA receive?
EPA received a number of comments
specific to the public participation
process. Most comments supported the
inclusion of public participation
requirements. Many comments,
however, stated that a 30-day period
was too short. A number of comments
suggested that the public comment
period should be 60 days or longer to
facilitate better understanding of the
complex issues related to lists and
TMDLs. Some commenters
recommended specific requirements for
the purpose of ensuring notice to
interested parties and incorporation of
their comments on listing and TMDL
decisions. Most comments which
addressed this issue recommended that
EPA pattern the public notice
requirement after those for NPDES
permits. Specifically, commenters asked
that States, Territories and authorized
Tribes be required to establish and
maintain mailing lists. Other
commenters recommended that EPA be
subject to the same public participation
requirements as proposed for States,
Territories, and authorized Tribes.
Further comments suggested that any
action to remove a waterbody from a
section 303(d) list be subject to the same
public participation process as the
listing of a waterbody. Many comments
objected to the detailed requirements
governing how States, Territories and
authorized Tribes should address
comments they receive and the amount
of information about those comments,
including responses, they should supply
to EPA. Commenters also expressed
concern that the proposal gave special
notice consideration to the Services, and
thus seemed to transfer EPA's
obligations under the Endangered
Species Act to States, Territories, and
authorized Tribes.
What is EPA promulgating today?
After carefully considering the
comments received on the public
participation requirements, EPA is
today promulgating the requirements as
proposed with a few changes. EPA is
making conforming changes throughout
the section to reflect the fact, as
discussed earlier, that the list of
impaired waterbodies includes a
prioritized schedule for establishing
TMDLs.
The final rule maintains the
requirement for a minimum 30-day
comment period on lists and TMDLs.
EPA recognizes that decisions on lists
and TMDLs can sometimes benefit from
a significant amount of technical
information and analysis related to
decisions on lists, rankings, schedules,
and TMDLs. States, Territories and
authorized Tribes may in such
circumstances find a need to allow for
longer than 30-day comment periods on
lists and TMDLs. However, the rule as
proposed and promulgated today
specifies 30 days as the minimum
comment period. In some instances,
particularly where the issues and :
analyses related to a TMDL are not
complex, States, Territories, and
authorized Tribes should find that a 30-
day comment period is adequate. The
final rule, however, gives States,
Territories, and authorized Tribes the
flexibility to increase their comment
periods as appropriate.
EPA is also adding language in the
final rule also to encourage States,
Territories, and authorized Tribes to
notify directly those parties who submit
a written request for notification. EPA
received a number of comments
suggesting that direct notification be a
requirement in the same way that
authorized State NPDES programs are
required to directly notify parties that
request such notice. EPA does not
believe that establishment of TMDLs is
entirely comparable to issuance of an
NPDES permit for notice purposes (e.g.
the number of potentially affected
parties may be much larger for a TMDL).
EPA however, is including in the final
regulation a recommendation that
States, Territories and authorized Tribes
provide direct notification to parties
that request it.
EPA is not including in this section of
the final rule public participation
requirements for EPA. Today's final rule
at § 130.34 includes public participation
requirements for EPA regarding
disapproval and establishment of
TMDLs. In addition, EPA's rules at Part
25 already provide general public
participcition guidance and
requirements for EPA, which include
notice to parties that request notice,
publication of notice in a newspaper of
general circulation, and response to
significant comments.
EPA recognizes the importance of
public participation on all aspects of
section 303(d) decisions, including
decisions to remove a waterbody/
pollutant combination from the section
303(d) list. EPA has added provisions in
the final rule at § 130.29(a) to require
that all actions to add or remove
waterbodies from the list follow the
public participation requirements. In
this way, the public is kept informed as
to the nature and reasons for any
changes to the section 303(d) list.
EPA agrees with the comments which
suggested that the proposal was too
detailed regarding how States,
Territories and authorized Tribes should
respond to comments. As suggested by
some comments, EPA has reviewed the
rules pertaining to NPDES permitting
and EPA's rules at Part 25 and has . ..
simplified the response to comments
requirements for die final rule. The final
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43635
rule now requires a response to "all
significant comments" instead of "all
comments," as proposed. The final rule
no longer includes specific
requirements as to what is to be
included in the response to comments
document. EPA believes this change
will allow States, Territories, and
authorized Tribes the flexibility they
need when addressing public
comments. EPA's public participation
rules for rulemaking and permitting at
Part 25 require EPA to respond to
significant comments and to include at
a minimum, a summary of public views,
significant comments, criticisms and
suggestions, and set forth the Agency's
specific responses in terms of
modification of the proposed action or
an explanation for rejection of proposals
made by the public (§ 25.8). EPA is
persuaded by the comments that States,
Territories and authorized Tribes should
not be held to a higher standard than
EPA. Pursuant to the final rule, States,
Territories and authorized Tribes need
only consider significant comments and
indicate how they were addressed in the
final action or why they were not
addressed.
The rule recognizes that the Fish and
Wildlife Service and the National
Marine Fisheries Service have an
interest in a State's, Territory's or
authorized Tribe's list and TMDLs. By
including the provisions of § 130.36(c),
EPA is not giving the Services greater
opportunity to receive information or to
comment than is afforded anyone else.
Nor is EPA attempting to transfer its
obligations under the Endangered
Species Act to States, Territories or
authorized Tribes. The provisions of
§ 130.36(c)(l) require States, Territories,
and authorized Tribes to provide the
Services with copies of lists, including
prioritized schedules and TMDLs.
However, under the public participation
requirements of § 130.36(a), any
interested party may also request similar
access to this information by making a
written request to the State for direct
notification. EPA is promulgating
§ 130.36(c)(l) because the Services have
expressed to EPA an interest in
reviewing section 303(d) lists and
TMDLs. In recognition of the potential
burdens on the States which such
information sharing might impose, EPA
agreed it would undertake this
information sharing responsibility with
the Services if requested by a State,
Territory, or authorized Tribe.
The provisions of § 130.36(c)(2)
encourage, but do not require, States,
Territories, and authorized Tribes to
engage the Services in a dialogue related
to Endangered Species Act concerns.
EPA believes that it can reduce the
number of times it may need to ,
disapprove a list or TMDL based on
endangered species concerns if the
States, Territories, and authorized [
Tribes communicate with the Services
early in the process of developing lists
and TMDLs. For this reason, EPA is
including in the final rule a
recommendation that States, Territories
and authorized Tribes establish :
processes with the Services that will
provide for the early identification and
resolution of their concerns as they
relate to lists and TMDLs. States, ,
Territories and authorized Tribes are not
required to establish such a process, but
may find it advantageous to do so.;
Section 130.36(c)(3) requires States,
Territories, and authorized Tribes to
consider comments from the Services
and EPA in the same way that
§ 130.36(b) requires States, Territories,
and authorized Tribes to provide a'
response to significant comments and
an explanation of how those comments
were addressed in the final action or
why they were not addressed. Section
130.36(c)(3) does not require States,
Territories, and authorized Tribes to
agree with or adopt comments or
recommendations from EPA and the
Services; however, it does require an
explanation of how these comments
were considered in the final decision.
This is the standard set by § 130.36(b)
for all comments received by a State,
Territory, or authorized Tribe.
The provisions of § 130.36(d)
recognize that EPA will consider the
comments of the Services when EPA
reviews lists and TMDLs. EPA does not
believe that this provision provides the
Services with any greater access to the
decision maker than other commenters.
Rather, this provision alerts States,
Territories, and authorized Tribes that
EPA will consider the comments of the
Services and how those comments were
addressed.
W. What is the Effect of This Rule on
TMDLs Established When the Rule is
First Implemented? (§ 130.37)
What did EPA propose? EPA
proposed a transitional period for
implementing the TMDL requirements
of the new rule. Specifically, EPA
proposed that it would approve any
TMDL submitted to it for review within
12 months of the final rule's effective
date if it met either the pre-
promulgation requirements in § 130.7 or
the post-promulgation requirements in
§§ 130.31, 130.32 and 130.33, EPA also
proposed that when EPA establishes
TMDLs within 12 months of the rule's
effective date, EPA would use either the
§ 130.7 requirements or die new
requirements in proposed §§ 130.31,
130.32 and 130.33. EPA proposed this
transitional period to give States,
Territories, authorized Tribes and EPA
the security of knowing they could
develop TMDLs prior to promulgation
of the new rules without them later
being determined inadequate as a result
of the adoption of the new rule. In this
way, States, Territories, authorized
Tribes and EPA would not delay work
towards establishing TMDLs until after
the final rule was published. Also, EPA
requested comment on whetiier the new
TMDL requirements would affect the
ability of States, Territories, or
authorized Tribes to establish TMDLs
on a schedule consistent with consent
decree or settlement agreement
schedules, and if so, how to address the
issue.
What comments did EPA receive?
EPA received a number of comments
specific to the transitional period and
actions EPA should take to facilitate
establishing TMDLs in accordance with
schedules in consent decrees and
settlement agreements. Most comments
supported the transitional period and
many supported a period longer than 12
months. Some comments requested that
some TMDLs be developed under the
current requirements for "good cause."
Two comments suggested no
transitional period, with one suggesting
that States, Territories, and authorized
Tribes be allowed to submit
implementation plans no more than six
months after submitting the other parts
of the TMDL. EPA also received
comments suggesting that EPA must
establish TMDLs using either the
current or new rules during the
transitional period, and that EPA should
work to establish TMDLs quickly using
the new rules. Finally, EPA received
some comments suggesting that all
schedules should be revised because of
these new regulations.
What is EPA promulgating today?
After carefully considering the
comments received on the transitional
period, EPA is today promulgating a
transition period for die new elements
of TMDLs lasting 18 months from the
date of publication of this rule in the
Federal Register or nine months from
the effective date of this rule, whichever
is later. EPA recognizes die concerns
voiced in many comments about the
challenge of now drafting an
implementation plan for a TMDL
already nearing completion, and the
benefit of including stakeholders in
implementation decisions at the
beginning of the TMDL development
process in order to better integrate the
implementation strategies with die
allocation of loads. Most States,
Territories and authorized Tribes, as
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well as State associations, supported a
transitional period of up to 18 months.
Of the comments suggesting more than
18 months, only one provided a reason,
La,, the average TMDL requires 24
months to complete. EPA does not
believe States need to begin
implementation plans at the onset of
TMDL development. One comment
describes the first 18 months of TMDL
development to consist of collecting
data, developing models, and
conducting the analysis. EPA believes
U|at at least the first six months of this
work, especially data collection and
modeling, can be conducted before
approaching stakeholders to start
developing the implementation plan.
For this reason, EPA is including a
transitional period of 18 months in the
final rule unless the rule's effective data
is delayed, in which case the transition
period will be 9 months from the rule's
effective date.
EPA rejects the suggestion not to
allow a transitional period based on the
commenter's belief that implementation
plans could be quickly developed, or
that States, Territories, and authorized
Tribes have had sufficient notice to
begin developing these plans in
anticipation of the new regulatory
requirements. EPA does not believe that
the mere fact that implementation plans
ware part of the proposal would by itself
have caused States, Territories, or
authorized Tribes reasonably to believe
that the final rule would necessarily
require submission of an
implementation plan with the rest of the
TMDL, EPA received many comments,
some from States, Territories and
authorized Tribes, contesting the legal
authority to require States, Territories,
and authorized Tribes to submit
implementation plans as part of the
TMDL. (This issue was discussed
previously in today's preamble.) EPA
believes these comments illustrate that
many States, Territories, and authorized
Tribes have waited to see the final rule
before beginning to develop these plans.
EPA also rejects the suggestion not to
provide a transitional period but rather
to defer submittal of implementation
plans up to six months following
submittal of the rest of the TMDL. As
discussed in today's preamble, EPA
considers the implementation plan to be
an integral part of the TMDL that is
reviewed by EPA under section 303(d).
Under today's rule EPA cannot approve
the TMDL if it does not contain all the
required elements, including an
implementation plan. Therefore, the
suggestion to defer submission of such
plans to a later date would only further
delay TMDL approvals, which is what
EPA is attempting to prevent.
Today's rule also revises the proposed
language regarding EPA's establishment
of a TMDL during the transition. EPA
proposed at § 130.38(b) that it may
establish TMDLs using either approach,
i.e., the pre-promulgation or post-
promulgation requirements. Some
commenters misconstrued this language
as a statement by EPA that it may
choose not to establish TMDLs even if
required to do so by court order or the
statute. To eliminate confusion on this
issue, EPA is using the word "will"
instead or "may" in the final
regulations. It is EPA's intention to use
the new regulations as soon as possible.
However, EPA recognizes that it may
need to establish a TMDL where a State,
Territory, or authorized Tribe has not,
and to do so, EPA may need as much
time as a State, Territory, or authorized
Tribe to develop an implementation
plan.
In particular instances, before the end
of the transition period, where a
schedule in a consent decree or
settlement agreement would make it
impossible to establish TMDLs with an
implementation plan under the
schedule, EPA would consider
approaching the Plaintiffs to request an
extension of the schedule so that
TMDLs could be established using the
new requirements. EPA expects that by
the end of the transition period, States,
Territories, and authorized Tribes will
have established procedures for
integrating implementation plan into
TMDLs. EPA's expectation is that the
transition period should greatly reduce
the need for EPA to establish TMDLs
pursuant to the existing consent decrees
and settlement agreements.
X. Continuing Planning Process
(§130.50)
What did EPA propose? EPA
proposed to make only minor changes to
the continuing planning process (GPP)
requirements currently found at § 130.5.
The proposal renumbered the section as
§ 130.50 and revised the current
regulatory requirements to clarify that
States, Territories and authorized Tribes
have discretion to go beyond the
mandatory plan elements set out in the
regulation and also include other
processes, such as watershed-based
planning and implementation. The
proposal also makes clear that a GPP
need not be a single document but may
be a compendium of many different
State, Territorial and authorized Tribal
planning documents. Finally, the
proposal made conforming changes to
citations to sections that are renumbered
by the proposal.
What comments did EPA receive?
EPA received a number of comments
specific to this section. Three comments
supported the proposal. One comment
expressed concern that the proposed
change required that the GPP be a
document. A number of other comments
suggested additional revisions to the
existing GPP requirements.
What is EPA promulgating today?
Based on its analysis of the comments
received on this section, EPA is making
one change to § 130.50(b) of the
proposed rule. EPA is changing the final
rule to recognize that the GPP need not
be a single document. EPA
acknowledges that the GPP is a process
often described in numerous
documents, rather than being a single
document. EPA believes the revision in
the final rule removes the confusion
expressed over this. EPA declines to
make the other requested changes for
the reasons expressed in the Response
to Comments Document.
Y. Water Quality Management Plans
(§130.51)
What did EPA propose? EPA
proposed to make only minor changes to
the water quality management plan
requirements currently found at § 130.6.
EPA proposed to renumber the section
as § 130.51 and to revise the current
regulatory requirements to clarify that
updates to water quality management
plans should incorporate approved
TMDLs and generally have a watershed
focus. In addition, EPA rewrote
proposed § 130.51(a) in plain English
format.
What comments did EPA receive?
EPA received a number of comments
specific to this section. In most
instances, only one commenter
suggested a specific revision or
addition, lii four instances, multiple
commenters made the same or similar
comment. Two comments supported the
proposal. Two comments suggested that
§ 130.51(a) retain the references to
sections 208, 303, and 305 of the CWA
that were in the existing rule. Two
comments requested a change to or
clarification of the part of the rule
dealing with nonpoint source regulatory
programs. Three commenters requested
revisions to the existing rule language to
clarify what a nonpoint source is.
Another comment suggested that EPA
recognize the link between the State
Revolving Fund (SRF) and § 130.51(f).
What is EPA promulgating today?
Based on its analysis of the comments
received on this section, EPA is making
three changes to § 130.51(a) of the
proposed rule. First, EPA is reinstating
the reference to CWA section 208 and
303(e) in the sentence describing the
initial water quality management plan.
Second, EPA is reinstating the reference
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43637
to CWA section 305(b) reports in the
sentence describing what the annual
planning should include. These
references were in the existing
regulation. EPA agrees that these
references describe the authority and
context for the water quality
management plan, and wishes to
maintain continuity between the
requirements for water quality
management plans prior to and after
today's final rule. Third, EPA is adding
a sentence to § 130.51(f) to recognize the
link between the SRF and Water Quality
Management Plans. This is a
requirement of CWA section 603(f) that
had not yet been incorporated into Part
130.
EPA does not interpret the revision of
§ 130.51(a) to require all States,
Territories, and authorized Tribes to
rewrite their initial water quality
management plan. Again, the purpose of
the revision is to clarify that updates to
water quality management plans should
incorporate approved TMDLs and
generally have a watershed focus. Also,
EPA does not interpret this revision to
be a change in focus of the water quality
management plan or CPP. EPA
interprets the phrase "focus on priority
issues and geographical areas" to mean
essentially the same as the phrase "shall
be based upon water quality problems
identified in the latest section 305(b)
reports." The section 305(b) reports
generally identify priority water quality
issues in geographical areas.
EPA declines to make other requested
changes to the water quality
management plan for the reasons stated
below and in the Response to Comments
document. EPA declines to require that
States, Territories, and authorized
Tribes adopt regulatory programs for
nonpoint sources. The final rule
continues the existing rule requirements
that States, Territories, and authorized
Tribes develop regulatory programs if
they find it necessary. EPA also declines
to revise § 130.51(c)(4)(iii) to further
clarify what a nonpoint source is. EPA
acknowledges that some residual waste,
agriculture and silviculture, mines,
construction, and urban storm water
activities are considered point sources
and are subject to NPDES permits. At
the same time, some are not. EPA
interprets § 130.51(c)(4) to apply only to
activities that are not required to have
an NPDES permit. Because EPA has
referenced these sources in the context
of "nonpoint source management and
control," EPA believes that it is
reasonable for others to make the same
interpretation.
Z. Petitions to EPA to Establish TMDLs
(§130.65)
What did EPA propose? EPA
proposed to codify specific
requirements to formalize a petition
process for the public to request that
EPA step in and perform duties imposed
on States, Territories and authorized
Tribes by section 303(d) when they fail
to perform these duties. This petition
process has been available to the public
under the authority of the
Administrative Procedure Act, but has
seldom been used in the context of
section 303(d). EPA made this proposal
to increase public awareness of this
procedure for requesting EPA action.
What comments did EPA receive?
EPA received a number of comments
specific to the petition process. Very
few comments were fully supportive.
Most comments argued that EPA should
drop the provision entirely. Many
comments expressed a concern that EPA
was trying to impose this procedure as
a mandatory first step before a party
could bring a judicial action against
EPA, and saw the petition process as an
administrative barrier which would
delay the party's right of redress. Other
comments expressed concern that the
petition process provided EPA a way to
by-pass or undermine State authority
and suggested that the final rule require
petitioners to exhaust all State
administrative remedies prior to
petitioning EPA. Finally, other
comments saw the petition provision as
a way to exclude stakeholders from
dialogue on TMDLs.
What is EPA promulgating today?
Based on its analysis of the many
comments received on this section, EPA
is not including the petition provision
in the final regulations. EPA continues
to believe that a petition process wpuld
present the advantages outlined in 'the
proposal at 64 FR 46040-46041, August
23, 1999. However, this opportunity is
already available to the public as a
matter of law. See 5 U.S.C. section
555(b). EPA does not believe it needs to
provide specific regulatory requirements
relating to a petition process.
EPA recognizes the concerns
expressed in comments, and believes it
has responded to these comments by not
promulgating any specific provision for
a TMDL petition. Many comrnenters
misconstrued EPA's intent as creating
an administrative process that either
delays a party's right of judicial redress
or excludes most stakeholders,
including States, Territories and
authorized Tribes, from a dialogue on
TMDLs. These were not EPA's
intentions. On the contrary, EPA '
believed the petition process provided a
more expeditious way of resolving a
party's concerns than the judicial
process. Given the misunderstanding on
the purpose and use of the petition
process, EPA is not providing a specific
petition process for TMDLs in the
regulations. However, section 555(b) of
the Administrative Procedure Act does
allow any party to petition EPA to take
action regarding lists and TMDLs,
despite the absence of a specific TMDL
petition process in Part 130.
AA. Water Quality Monitoring and
Report (§130.10 and 130.11)
What did EPA propose? EPA
proposed three minor changes to these
sections. First, EPA proposed to identify
the current EPA quality assurance
guidance referred to in § 130.10(a).
Second, EPA added source water
assessments to the list of uses for data
collected by State, Territorial, or
authorized Tribal water quality
monitoring in § 130.10(b). Finally, EPA
proposed to revise § 130.1l(a) to
recommend that water quality problems
identified in a section 305(b) report
should be used in source water
assessments.
What comments did EPA receive?
EPA received many comments on these
sections. Most of the comments
suggested EPA adopt regulatory
requirements to improve monitoring.
These comments called for EPA to
define the elements of an adequate
monitoring program and provide both
incentives and penalties to ensure that
States monitor all waters of the State.
Commenters also suggested EPA
improve coordination among the many
entities that monitor water quality.
Comments on the water quality
inventory report point out that this
report is a state's comprehensive
accounting of water quality, including
healthy, threatened and impaired
waters. Some comrnenters cited the
need to improve these reports by
requiring States monitor all waters of
the State. Other suggested
improvements include better analysis of
the costs and benefits of achieving the
goals of the CWA. A number of
commenters expressed concern that
EPA's proposed regulation makes the
section 303(d) list a comprehensive
accounting of State water quality which
is redundant with the section 305(b)
report. Some commenters suggested the
water quality inventory report and the
section 303(d) list should be
consolidated, while others
recommended they be kept distinct.
What is EPA promulgating today?
EPA is promulgating these section as
proposed with one change. EPA is
moving the reference to the current
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quality assurance guidance to a note.
EPA made this change to facilitate
including references to any future
updates to this guidance.
EPA declines to make other changes
to these sections as suggested by
comments. EPA did not propose any
regulatory requirements for monitoring
or reporting, and believes that it would
need to propose any such requirements
before promulgating requirements.
AB. Other Sections (§§130.0,130.1,
130.3,130.7, 130.61, 130.62, 130.63,
and 130.64}
What did EPA propose? EPA's August
23,1999 recodification included
sections of existing regulations for
which EPA did not propose changes or
request comment. These were included
fn the proposal to show how they would
ba reformatted in Part 130. 64 FR 46015,
August 23,1999. EPA explicitly
identified the following sections as
unchanged in the proposal: §§ 130.0,
130.1,130.60,130.61,130.62, 130.63,
and 130.64. EPA did propose a
conforming change to § 130.64 to reflect
that the citation for a TMDL had moved
from § 130.7. EPA also proposed to
delete § 130.3 and 130.61(d), and
replace § 130.7 with the new
requirements of subpart C. EPA believed
§ 130.3 duplicates the definition of
"water quality standard" found in Part
131. EPA also believes that § 130.61(d)
is obsolete because it pertains to a one-
time data submittal under section 304(1)
that was completed almost a decade ago.
What comments did EPA receive?
EPA received no substantive comments
on the sections that were proposed to be
deleted. EPA received many comments
on other sections, especially § 130.62,
and § 130.63. Most comments did not
Suggest revisions to the final rule, but
rather offered suggestions on how EPA
could improve implementation of the
TMDL program. The comments that
suggested revisions were diverse and
covered many themes. Other comments
suggested specifically recognizing
coastal nonpoint source programs,
Federal land management, and the Great
Lakes Water Quality Guidance in the
regulations. Other comments offered
suggestions on regulatory language
related to improving the participation of
indigenous people in all aspects of
water quality planning and
implementation. Finally, EPA received a
comment that the language of
§ 130.61(b)(2) was inconsistent with the
provisions proposed for lists of
Waterbodies, priority rankings, and
schedules of TMDLs.
What is EPA promulgating today?
With the exception of §§ 130.7 and
130.61, EPA is promulgating these
sections as proposed. EPA did not
propose revisions to §§ 130.0,130.1,
130.60,130.61, 130.62, 130.63, and
130.64 except for a conforming citation
in § 130.64, nor did EPA request
comment on these sections. Instead,
EPA included these sections solely to
illustrate the reformatting of Part 130
that results from writing the TMDL
regulations in plain English format.
Thus, EPA believes any comment on
these sections is beyond the scope of the
proposed rulemaking and declines to
make changes as a result of comments.
EPA will try to be mindful of any
comments received on these sections
when and if it does any further
rulemaking on Part 130
EPA's proposed §§ 130.20 through
130.37 replace the requirements of
§ 130.7. However, for the period of 18
months from publication or nine
months from the effective date of
today's rule, whichever occurs later,
§ 130.37 allows States, Territories,
authorized Tribes, and EPA to establish
TMDLs consistent with either the
requirements of §§ 130.31 through
130.33 of today's rule or § 130.7 from
the previous rule. States, Territories,
and authorized Tribes will need to be
able to find the requirements of
§ 130.7(c), which contains the TMDL
requirements, until they are no longer
needed. For this reason, today's rule
removes § 130.7 except for paragraph
(c), and revises paragraph (c) to refer to
the listing requirements of today's rule.
With respect to § 130.61, EPA found
during the development of the final rule
that § 130.61(b)(2), which requires
identification of water-quality limited
waters requiring TMDLs, and of waters
targeted for TMDL development within
the next two years, is inconsistent with
both the proposed and final
requirements for listing waterbodies.
Therefore, EPA is deleting the
requirements of § 130.61(b)(2) and
reserving this paragraph. EPA believes
that without this change, the Part 130
regulations would include two
conflicting requirements causing
confusion over what the regulations
require. EPA believes this change is
technical in nature and a logical
outgrowth of EPA's proposal. EPA
recognizes that it is making this change
without soliciting public comment on
this specific change. However, EPA did
solicit comment on §§ 130.25 through
130.30, which are the technical and
procedural requirements for section
303 (d) lists of impaired waterbodies.
Based on those comments, EPA
promulgated the final rule for those
sections. EPA expects that, had it
solicited comments on whether it
should revise § 130.61[b)(2) to conform
with the information in §§ 130.25
through 130.30, the comments would
have been supportive. Therefore, EPA
believes that there is good cause under
Administrative Procedure Act section
555(b)(3)(B) not to provide notice on
this change because it is unnecessary to
do so. Furthermore, EPA believes it is
contrary to the public interest to expend
the resources to solicit comment on
eliminating an inconsistency in its rules
when to do so is unnecessary.
Therefore, consistent with the "good
cause" provision of Administrative
Procedure Act section 553(b)(3)(B), EPA
believes it has good cause to delete and
reserve § 130.61(b)(2) without proposing
that change.
III. Changes to Parts 122,123, and 124
A. Reasonable Further Progress Toward
Attaining Water Quality Standards in
Impaired Waterbodies in the Absence of
a TMDL
1. Background
On August 23,1999, EPA proposed
revisions to the National Pollutant
Discharge Elimination System (NPDES)
Program and the Federal
Antidegradation Policy in support of the
revisions to the Water Quality Planning
and Management regulations. These
proposed revisions included new
requirements and explicit authority to
achieve reasonable further progress
toward the attainment of water quality
standards in impaired waterbodies in
the absence of an EPA approved or
established TMDL. EPA proposed a new
requirement under the Federal
antidegradation policy and proposed to
revise the NPDES permitting regulations
to implement that requirement. The
proposed antidegradation requirement
applied to all large new dischargers and
existing dischargers undergoing a
significant expansion proposing to
discharge, to an impaired waterbody,
the pollutant(s) for which the waterbody
was impaired. The proposal stated that
these dischargers would be required to
achieve reasonable further progress
toward the attainment of water quality
standards in the waterbody to which
they proposed to discharge. To achieve
reasonable further progress, the
proposal required these dischargers to
obtain an offset of their new or
increased loading of the pollutant(s) for
which the waterbody was impaired. To
obtain an offset, these dischargers
would need to secure reductions from
another existing source(s) discharging
the pollutant(s) of concern into the same
waterbody. The net effect of this offset
would be a reduction in the loading of
the pollutant of concern in the
waterbody. Thus, reasonable further
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43639
progress toward the attainment of water
quality standards in the waterbody
would be achieved.
Also to achieve reasonable further
progress in the absence of an EPA
approved or established TMDL, EPA
proposed explicit language describing
the Regional Administrator's
discretionary authority to review, object
to, and reissue, if necessary, State-
issued permits that are
"administratively continued" after
expiration. The proposal stated that this
authority would be available when an
expired permit authorizes a discharge
into an impaired waterbody and the
existing permit limits need to be
revised. These permits were referred to
as "environmentally-significant
permits." The two situations in which
EPA proposed to invoke this authority
were when an expired permit contains
effluent limitations or conditions
inconsistent with water quality
standards or inconsistent with an
established TMDL. In the absence of a
TMDL, invoking this authority would
allow the Regional Administrator to
review, object to, and reissue, if
necessary, expired permits inconsistent
with water quality standards to ensure
that those permits contain adequate
water quality-based effluent limitations.
Permits that contain adequate water
quality-based effluent limitations
would, in turn, be consistent with water
quality standards and, thus, reasonable
further progress toward the attainment
of water quality standards would be
achieved. See section III.B.5. below for
a discussion of where this authority
could be invoked to ensure that an
expired permit is consistent with an
established TMDL.
2. Requirements for New and
Significantly Expanding Dischargers
What did EPA propose? EPA
proposed a new requirement under the
Federal antidegradation policy and
proposed revisions to the NPDES
permitting regulations to implement
that requirement, to achieve reasonable
further progress toward the attainment
of water quality standards in impaired
waters in the absence of an EPA
approved or established TMDL. EPA
proposed these new requirements in
response to the TMDL FACA
recommendation that EPA actively
encourage and support stakeholders
stabilizing and enhancing water quality
in impaired waterbodies before a TMDL
is in place. Both EPA and the FACA
recognized the significant time lag that
could exist between the initial listing of
a waterbody under CWA section 303 (d)
and the actual completion and approval
of a TMDL. (See "Report of the Federal
Advisory Committee on the Total :
Maximum Daily Load (TMDL)
Program", EPA 100-R-98-006, July
1998.) As discussed in the preamble to
the proposed rule, EPA believes that
progress toward the section 101(a) goals
of the CAVA should occur even in the
interim period between the initial
listing of a waterbody under CWA
Section 303(d) and the actual
completion, approval and
implementation of a TMDL. EPA
therefore proposed to require that
certain dischargers, located on an
impaired waterbody discharging the
pollutant for which the waterbody is
impaired, achieve "reasonable further
progress" toward the attainment of
water quality standards.
The NPDES dischargers required to
achieve reasonable further progress •
included a subset of dischargers
proposing to discharge new loadings of
a pollutant of concern to an impaired
waterbody. This subset of dischargers
included all large new dischargers and
existing dischargers undergoing a
significant expansion. EPA proposed
revisions to the definition of a "new;
discharger" at § 122.2 as well as
proposed a new definition of an
"existing discharger" and what
constitutes a "significant expansion" of
an existing discharger. These proposed
definitions were revised or added with
the intent of defining the subset of
dischargers subject to the proposed
offset requirement.
EPA believed that the best way for
these dischargers to achieve reasonable
further progress was through an offset
mechanism. The proposed offset
mechanism would have required these
dischargers to offset any new or
increased loading of the pollutant of
concern to an impaired waterbody by
obtaining or securing reductions in the
loading of the same pollutant from an
existing source(s) located on the same
waterbody. EPA stated that an offset'of
at least one and one half to one would
generally be appropriate as a means of
ensuring reasonable further progress.
The proposal also specified several
additional requirements for
implementing offsets through NPDES
permits. These revisions to the NPDES
permitting regulations were designed to
ensure that the offset and resulting
reductions would be realized and,
therefore, reasonable further progress
would be achieved. The Agency
believed that reasonable further progress
toward meeting the applicable water
quality standard would be achieved
through this mechanism because the
total load of the pollutant(s) to the
impaired waterbody -would be reduced.
The proposal also would have
required the permitting authority to
include, in the fact sheet for the permit
(required under § 124.8), an explanation
of how and why any limitations and/or
requirements were derived to satisfy an
offset requirement. Where fact sheets are
not required, EPA proposed that similar
information be included in the
statement of basis for the permit
(required under § 124.7).
To emphasize the importance of State
antidegradation policies, including the
proposed offset requirement, EPA
proposed to include the phrase "State
antidegradation provisions" in its water
quality-based permitting regulations at
§ 122.44(d)(l). Section 122.44 contains
the requirements for establishing
limitations, standards and other permit
conditions in NPDES permits necessary
to ensure that NPDES permits are
protective of water quality standards.
The purpose of including this phrase
was clarifying only and was not
intended to create a substantive change.
Including this phrase in these
provisions was intended to give added
notice and clarification to the
longstanding requirement at § 131.12
that States, at a minimum, include in
their water quality standards an
antidegradation policy consistent with
the Federal antidegradation policy, and
identify their methods and procedures
for implementing that policy.
What comments did EPA receive? The
following summarizes certain major
comments the Agency received on the
proposal requiring large new and
significantly expanding existing
dischargers located on impaired
waterbodies to obtain offsets of their
new pollutant loads. There was
widespread concern that the proposal to
require offsets was virtually impossible
to implement and environmental
efficacy on a national scale would have
therefore been unlikely. Many
commenters noted that a one-size-fits-all
approach was infeasible due to the
differences between the types of sources
subject to the offset requirement, the
differences in the nature of the
discharges from the sources subject to
the offset requirement, and the
differences in the types of NPDES
permitting used for sources subject to
the offset requirement. A significant
number of commenters also expressed
concern regarding the requirement that
the offset be achieved on or before a
source could begin discharging as well
as the distinct likelihood that there
might be no source in the waterbody
from which an offset could be obtained.
They pointed out that this would cause
significant delay in the operation or
construction of their business and
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possibly even prevent them from
operating at all.
Several commenters stated that the
offset provision, as proposed, would be
particularly difficult to implement with
respect to wet weather sources. With
respect to storm water, commenters
expressed that it would be difficult to
predict the contents and/or flow of
storm water runoff because wet weather
events vary in terms of frequency and
duration of rainfall as well as other
uncontrollable factors (e.g., the use of
copper brake pads, leaking oil pans on
cars) that contribute to the contents and/
or flow of storm water runoff. Similar
concerns were raised with respect to
obtaining offsets from nonpoint sources.
Commenters stated that pollution
reductions would be difficult to
measure or quantify due to the
variability in flow, pollutants and
loading. They also noted the difficulty
In demonstrating the impact or level of
reductions achieved by nonpoint source
control measures or BMPs. The Agency
also received many comments that
claimed that the offset provisions, as
proposed, would have an adverse effect
on trading. For point source to nonpoint
source trades, commenters asserted that
the offset provision would provide a
disincentive for point sources to trade
because they would be held liable for a
nonpoint source's failure to achieve the
requisite reductions.
Commenters expressed concern over
lha implications the offset requirement
would have on the use of general
permits. Many stated that offsets could
not be implemented through general
permits. Although the Agency did not
propose an approach to implement
offsets for dischargers that seek coverage
under general permits, many
oommenters were concerned that the
offset requirement, as proposed, would
have caused a large number of
dischargers to seek coverage under
individual permits instead of general
permits. Commenters also noted that
they would experience considerable
delays in their operations and increased
costs if they had to seek coverage under
an individual permit.
A significant number of commenters
stated that the proposal to require
offsets established an inequitable
allocation of responsibility between
large and small dischargers and was,
thus, inconsistent with the goals of the
CVVA. Many asserted that the proposal
to require offsets conflicted with and
impeded the TMDL program thereby
delaying the attainment of water quality
standards. Some commenters also
asserted that the proposal to allow new
discharges and require offsets would
have undercut the ability to interpret
§ 122.4(i) as requiring an absolute
prohibition on new discharges to
impaired waters. Finally, while many
commenters agreed that there should be
reasonable further progress toward
improving water quality in the period
before a TMDL is approved or
established, they asserted that the
proposed offset requirements would
undercut State primacy in determining
what actions are necessary to attain
water quality standards.
The Agency also received several
comments on the proposed definitions
for existing, new and significantly
expanding dischargers. The Agency
proposed these definitions for the sole
purpose of implementing the offset
provision. Many commenters suggested
that these definitions were "confusing
and unworkable." Most commenters
were concerned that the definitions
were not consistent with existing
definitions for related and separate
programs. Some commenters also stated
that the definition describing significant
expansion was not scientifically based.
For example, the definition did not
specify whether the 20% increase in
loadings was related to concentration or
mass.
What is EPA promulgating today?
After considering comments received
and upon further analysis of what the
Agency proposed, EPA is not
promulgating the revisions to the
Federal antidegradation policy and
NPDES regulations that would require
certain dischargers to achieve
reasonable further progress toward the
attainment of water quality standards by
obtaining an offset of their new or
increased pollutant loads (hereafter "the
offset requirement"). EPA continues to
believe, however, that further
degradation of already impaired
waterbodies should be prevented and
that progress toward the attainment of
water quality standards should be made
in the interim period between the
identification of an impaired waterbody
and the establishment of a TMDL. EPA
does not believe it is necessary to
amend the antidegradation regulations
to explicitly include such a requirement
because EPA has concluded that the
offset requirement, as proposed, is not
the best mechanism to achieve progress
in impaired waters in the absence of a
TMDL. The Agency based this
conclusion on several considerations.
Subsequent to the proposal, EPA
gained additional insight into current
practices for deriving water quality-
based effluent limits for sources located
on impaired waters and discharging the
pollutant(s) for which the waterbody is
impaired. EPA found a wide range of
practices for deriving such limits with
respect to both new dischargers and
existing dischargers. The Agency
believes that there is considerable room
for improvement in establishing water
quality-based effluent limits for all
dischargers (new dischargers being
permitted for the first time and
expanding and existing dischargers
undergoing permit reissuance)
discharging pollutant(s) of concern to an
impaired waterbody (emphasis added).
EPA therefore concluded that its
existing regulations, implemented
consistently at the time of permit
issuance, would provide greater
progress toward the attainment of water
quality standards in impaired waters
than through the proposed offset
requirement.
As proposed, the offset requirement
(in addition to existing regulatory
requirements) would be very difficult to
apply and only affect a small subset of
dischargers. Thus, the likelihood of
achieving additional progress toward
attaining water quality standards for a
significant number of impaired
waterbodies through the offset
provision, in the aggregate, would be
quite small. EPA further believes that
expanding the application of the
requirement to additional dischargers,
as some commenters suggested, would
still not have significant environmental
benefit for the reasons discussed below.
Many commenters pointed out, and
upon further analysis EPA agrees, that
the proposed offset requirement, a one-
size fits all method for specifying
reasonable further progress, is simply
unworkable. As proposed, it would have
been extremely difficult for a majority of
the sources within the very small subset
of sources to which it would have
applied, to implement an offset
requirement (e.g., those sources with
intermittent discharges or discharges
only as a result of storm events and
those regulated through general permits
by best management practices (BMPs)).
Calculating what constitutes a one and
one half to one offset for sources with
intermittent discharges would have
often been extremely subjective.
Likewise, as proposed, it would have
been difficult or infeasible to implement
the offset requirement with respect to
dischargers that seek NPDES permit
coverage under a general permit.
Typically, general permits do not
contain numeric water quality-based
effluent limitations (WQBELs); they
contain BMPs designed to ensure
protection of water quality standards. It
would have been difficult or infeasible
to quantify, and thereafter implement, a
one and one half to one offset from a
source whose water quality impacts are
controlled solely by BMPs.
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EPA also concluded that the
additional environmental benefits from
the offset requirement, in many cases,
would have been minimal at best, even
if expanded to cover additional
dischargers as some commenters
suggested. The offset requirement would
have been a requirement over and above
the requirements under current NPDES
permitting regulations at
§§ 122.44(d)(l)(vii) and 122.4(i). Section
122.44(d)(l)(vii) requires permits to
include, where necessary, effluent limits
that derive from and comply with water
quality standards. Section 122.4(i)
prohibits the issuance of permits to a
new source or a new discharger if the
discharge will cause or contribute to a
violation of water quality standards. For
those dischargers who would have been
subject to the offset requirement,
consistent implementation of
§§ 122.44(d)(l)(vii) and 122.4(i)
following existing EPA guidance would
result in permits, if issued, containing
limits and conditions for the
pollutant(s) of concern that derive from
and comply with applicable water
quality standards. These limits and
conditions are water quality-based
effluent limits and, if derived in
compliance with existing regulations,
ensure that the discharge will not cause
or contribute to a violation of water
quality standards. These limits would
define the amount of the pollutant(s) in
the discharger's effluent that could not
be exceeded. In most cases, where a
discharge is to an impaired water, this
amount (the water quality-based effluent
limit) would be quite small. Using either
a numeric criterion or a quantitative
translation of a narrative criterion, the
limits would be calculated to ensure
that the discharger did not cause or
contribute to an excursion of that
criterion in the receiving water. Also, a
permitting authority may determine that
this limit must reflect an overall
reduction in pollutant loading to the
waterbody in order to ensure that the
discharge does not cause or contribute
to a violation of water quality standards.
Thus, where existing regulations for
water quality-based permitting are
appropriately implemented, the
additional offset that EPA proposed to
require of such dischargers (150% of the
water quality-based effluent limit), in
most cases, would not have had a
significant effect on ambient water
quality. Given this and the fact that
applying the offset to many types of
discharges would be extremely difficult
or even infeasible, as discussed above,
EPA concluded that the net
environmental benefits from the offset
requirement would be insignificant.
Although EPA is not promulgating
regulations containing the offset
requirement, EPA expects to achieve
progress toward the attainment of water
quality standards in impaired waters in
the absence of a TMDL. EPA believes
that progress toward the attainment of
water quality standards prior to a TMDL
would be achieved through consistent
implementation of EPA's existing
regulatory authorities.
EPA's current water quality-based
permitting regulations and
accompanying guidance apply notionly
to new and expanding dischargers, but
to all dischargers. These regulations
require that NPDES permits have
conditions as necessary to achieve water
quality standards established undet
section 303(c) of the CWA.
§ 122.44(d)(l). The permitting authority
must therefore determine whether a
discharge causes, has reasonable
potential to cause, or contributes to an
in-stream excursion above the
applicable water quality standard. In
making this determination, the
permitting authority must "account for
existing controls on point and nonpoint
sources of pollution, the variability of
the pollutant or pollutant parameter in
the effluent, the sensitivity of the ,
species to toxicity testing (when
evaluating whole effluent toxicity), and,
where appropriate, the dilution of the
effluent in the receiving water."
§ 122.44(d)(l)(ii). Where water quality-
based effluent limits are needed, the
regulations are designed to ensure that
those limits derive from and comply
with water quality standards and,
therefore, ensure that dischargers
subject to such limits will not cause or
contribute to the violation of water
quality standards. §§ 122.44(d)(l)(vii)
and 122.4(i).
EPA has developed guidance for
applying the water quality-based
permitting regulations. The "Technical
Support Document for Water Quality-
Based Toxics Control" (TSD) U.S. EPA,
EPA/505/2-90-001, March 1991 arid the
Water Quality Guidance for the Great
Lakes System (60 FR 15366, March 23,
1995) (hereafter "Great Lakes
Guidance") include procedures for
making the determination of whether a
discharge causes, has reasonable
potential to cause, or contributes to an
instream excursion above the applicable
water quality criteria (the "reasonable
potential analysis"). These procedures
also present options for developing
wasteload allocations (the basis for
effluent limits) which ensure that a
discharge does not cause or contribute
to the nonattainment of applicable water
quality standards. Thus, while both are
primarily focused on toxics, and the
Great Lakes Guidance applies to the
Great Lakes, both serve as practical
guides for developing effluent limits to
ensure compliance with both
§§ 122.44(d) and 122.4(i).
As mentioned above, the Agency
found various interpretations and
implementation methods for applying
the water quality-based permitting
regulations and the Agency's
accompanying guidance. For example,
EPA found varied consideration of other
source contributions and background
concentrations in the receiving water
when determining the need for water
quality-based effluent limits and setting
water quality-based effluent limits for
pollutants of concern in compliance
with § 122.44(d). EPA notes it has a
longstanding interpretation of
§ 122.44(d) regarding consideration of
source contributions and background
concentrations, as presented in the TSD
since 1991.
EPA notes that the TSD references
using background concentration when
calculating wasteload allocations. For
example, on p. 97, the TSD states,
"Traditional single-value or two-value
steady-state wasteload allocation
models calculate wasteload allocations
at critical conditions, which are usually
combinations of worst-case assumptions
of flow, effluent, and environmental
effects. For example, a steady-state
model for ammonia considers the
maximum effluent discharge to occur on
the day of lowest river flow, highest
upstream concentration, highest pH,
and highest temperature" (emphasis
added). Also, it is particularly
noteworthy that every case example in
the TSD uses an ambient background
concentration value of the pollutant of
concern when determining reasonable
potential and calculating wasteload
allocations and effluent limits.
An assessment of the ambient
background concentration in the
receiving water is the element of the
reasonable potential analysis presented
in the TSD that represents the
nonattained condition of waters not
meeting water quality standards because
they are exceeding water quality
criteria. This element of the reasonable
potential analysis is necessary to
account for existing controls on point
and nonpoint sources of pollution and
available dilution as required by
§ 122.44(d)(l)(ii). Failure to use a
background value would result in
evaluating the discharge to the
nonattained water as if the water were
actually attaining its water quality
standards. Simply put, use of valid,
verifiable ambient background values is
imperative to technically sound effluent
characterization and analysis of the
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need for water quality-based effluent
limits.
Furthermore, where there is valid,
verifiable background data indicating
existing impairment of a waterbody,
such data must be taken into
consideration when developing water
3uality-based effluent limits for a
ischarge to an impaired water. EPA is
aware that some permitting authorities,
when calculating wasteload allocations
that are the basis for water quality-based
effluent limits, have, on occasion, made
the assumption that background
concentrations of the pollutant(s) of
concern are zero, even in view of valid
and verifiable background data, and
have proceeded to allocate all of a
waterbody's assimilative capacity to one
or more point sources. Such an
assumption is inconsistent with NPDES
regulations requiring that water quality-
based effluent limits derive from and
comply with water quality standards
(§ 122.44(d)(l)(vii)), and longstanding
Agency guidance and policy on
complying with the regulations.
Once again, EPA nqtes that the TSD
indicates the need to consider
background concentrations of the
pollutant(s) of concern when developing
wasteload allocations and water quality-
based effluent limits. Where valid,
verifiable data and information that are
representative of ambient conditions
indicate that the waterbody is not
attaining water quality standards, there
is no basis for permitting a discharge to
an impaired water as if the waterbody
were not impaired. Where such data are
available, the permitting authority has
no alternative but to use those data
when calculating wasteload allocations
and effluent limits. For discharges to an
impaired water where ambient pollutant
concentration is the cause of
impairment, including background
pollutant concentrations in all permit
limit calculations will result in water
quality-based effluent limits based on a
wasteload allocation that attains the
applicable criteria or a lower pollutant
concentration in the effluent (i.e.,
"criteria end of pipe" or better). Of
course, a permitting authority may have
new or additional data about the
ambient water quality, presented by the
discharger or collected by the permitting
authority itself. Those additional data
would allow for a more site-specific
evaluation of the need for water quality-
based effluent limits and of the
calculation of wasteload allocations and
effluent limits than was perhaps
Rossible when a decision was made to
st the waterbody on the section 303(d)
list.
EPA recognizes the need for further
clarification to authorities implementing
the NPDES program of existing NPDES
regulations and guidance on water
quality-based permitting. In addition,
further guidance is needed to ensure
that permitting authorities adequately
protect designated uses through
complete consideration of both
applicable narrative and numeric
criteria when developing effluent limits
that derive from and comply with all
applicable water quality standards
(§ 122.44(d)(l)(vii)). Narrative water
quality criteria establish the basic
foundation for attainment of designated
uses, while numeric water quality
criteria provide a specific quantitative
translation of the necessary level of
protection.
In some situations, there are no
numeric criteria for a pollutant of
concern or the permitting authority may
determine that the existing numeric
criteria are not designed to address an
important endpoint of concern. When
numeric criteria are developed, it is not
possible to anticipate all pollutants or
endpoints or derive some types of
criteria that will apply generally across
the Nation's waters or all of the waters
of a State or Tribe. Often there are not
sufficient data to develop site-specific
numeric water quality criteria at the
time of water quality standards
adoption. Recognizing these situations,
standards setting authorities adopt
narrative criteria to ensure full
protection of designated uses. Narrative
criteria can descriptively accomplish
what numeric criteria, in many cases,
cannot account for quantitatively at the
time water quality standards are
adopted. For example, fish
contamination as a result of site-specific
bioaccumulation or algal blooms from
nutrient over enrichment may impair a
designated use, but may not be
sufficiently addressed by adopted
numeric water quality criteria.
Applicable narrative criteria, however,
can often be translated into a
quantitative measurement that will
protect a specific endpoint from a
specific pollutant not accounted for by
the applicable numeric criteria.
The NPDES regulations at
§ 122.44(d)(l)(v) and (vi) are particularly
instructive to permitting authorities
developing water quality-based effluent
limits from narrative water quality
criteria in order to meet the requirement
that such limits derive from and comply
with all applicable water quality
standards. The NPDES regulations
require that if a discharge causes, has
the reasonable potential to cause, or
contributes to an in-stream excursion of
an applicable narrative criterion, the
permit must contain effluent limits for
whole effluent toxicity. Whole effluent
toxicity limits are not necessary,
however, if the permitting authority
demonstrates that chemical-specific
effluent limits for the effluent are
sufficient to attain and maintain
applicable numeric and narrative water
quality standards (emphasis added). The
regulations describe how to develop
water quality-based effluent limits for a
specific pollutant in this situation. The
permitting authority must develop
effluent limits based on one of the
following options: (1) use a calculated
numeric water quality criterion that the
permitting authority demonstrates will
attain and maintain applicable narrative
water quality criteria and will fully
protect the designated use [This
criterion may be derived using a
criterion proposed by the standards
setting authority or an explicit policy or
regulation interpreting the authority's
narrative criterion, supplemented with
other relevant information]; (2) on a
case-by-case basis, use EPA's water
quality criteria, published under Section
304(a) of the Clean Water Act,
supplemented where necessary by other
relevant information; or (3) under
certain conditions, use an indicator
parameter for the pollutant of concern.
EPA understands that permitting
authorities will take a variety of
approaches to interpreting designated
uses and the criteria necessary to protect
those uses, characterizing effluent
quality, and deriving wasteload
allocations and permit limits. EPA
believes, however, that permitting
authorities do not always quantitatively
translate applicable narrative criteria,
nor do they always apply the most
stringent permit limit when both
numeric criteria and numeric
interpretations of narrative criteria are
available and applicable. The NPDES
regulations require permitting
authorities to evaluate the reasonable
potential for an effluent to cause or
contribute to an excursion of both
numeric and narrative criteria in order
to evaluate whether the underlying
designated use will be maintained and
protected and, where necessary, derive
water quality-based effluent limitations
from those criteria. Where there is
uncertainty about what numeric value
should be used that represents either the
numeric or narrative water quality
criterion (the water quality value on
which the effluent characterization must
be based), EPA believes this uncertainty
must be resolved before a permit is
issued. EPA believes that, instead of
resolving this uncertainty, some
permitting authorities may be issuing
permits with inadequate permit limits
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43643
that do not conform to the water quality-
based permitting regulations.
EPA believes that further clarification
and additional guidance on interpreting
and implementing the water quality-
based permitting regulations are needed.
Rather than promulgating a new
regulatory requirement that is difficult
to apply and offers potentially little
environmental benefit over adequate
implementation of current NPDES
regulations, the Agency believes that
improved implementation of the current
regulatory program will yield better and
more significant progress in attaining
and maintaining water quality standards
nationwide. The Agency, therefore, is
intending to achieve more consistent
implementation of existing NPDES
regulations and guidance. EPA intends
to provide further guidance to clarify
the Agency's recommendations for
methods and procedures for developing
water quality-based effluent limits for
sources discharging a pollutant of
concern to an impaired waterbody in
the absence of a TMDL. EPA expects
that this guidance will address
approaches to deriving permit limits
both in situations where there are
applicable numeric criteria that address
the cause of impairment and situations
where there are no applicable numeric
criteria that address the cause of
impairment.
In summary, EPA believes that
ensuring adequate and consistent
implementation of existing water
quality-based permitting regulations for
all dischargers located on impaired
waterbodies will lead to substantial
improvement in the quality of the
Nations's waters. EPA notes that the
TMDL, once established, may include
waste load allocations that may result in
the need for permit limits to change.
Definitions
EPA is not promulgating the proposed
revisions to the definition of a "new
discharger" (§ 122.2) as well as the
proposed new definition for an
"existing discharger" and what
constitutes a "significant expansion" of
an existing discharger. EPA is not
promulgating these proposed definitions
because it is not promulgating the
proposed offset requirement. These
proposed definitions were revised or
added with the intent of defining the
subset of dischargers subject to the
proposed offset requirement.
Fact Sheet and Statement of Basis
EPA is not promulgating revisions to
the regulatory provisions on fact sheets
(§ 124.56) or revisions to the regulatory
provisions on statement of basis
(§ 124.7) as proposed. EPA proposed
changes to these provisions to clarify
that the permit writer must provide all
information necessary to explain the
derivation of permit conditions. In
particular, these proposed changes were
designed to capture, in the record of the
permit, the rationale for and derivation
of the proposed offset requirement.
Because EPA is not promulgating the
offset requirement, the proposed
changes regarding fact sheets and
statements of basis are unnecessary.
EPA continues to believe, however, that
it is important to clarify the (type of
information that a permit writer must
provide to explain the basis for and
derivation of permit limits and
conditions. In light of the scope of
today's rule, the Agency believes that
providing an adequate explanation is
particularly important for permits that
authorize discharges to impaired waters
both prior to and after the establishment
of a TMDL. EPA is therefore establishing
such clarifications to the fact sheet
regulations at § 124.8 and to the
statement of basis regulations at § £24.7.
Section 124.8 requires that a fact sheet
be prepared for certain permits
identified under that section. Section
124.7 requires EPA to prepare a
statement of basis for every draft permit
for which a fact sheet is not prepared.
The purpose of including a fact sheet or
a statement of basis with the permit is
to provide a mechanism that helps the
permittee and any other interested party
understand how and why limits, ,
conditions, and/or requirements in the
accompanying NPDES permit were
derived. This information also helps the
permittee and other interested parties
participate in the decision-making on
what will be included in the final;
permit; an explanation of how and why
these measures were derived enables the
public to participate in the final
decision.
Today's rule clarifies what data and
information must be placed in the fact
sheet and statement of basis for permits
authorizing discharges to impaired
waters. Specifically, the clarifications to
the fact sheet and statement of basis
regulations concern information which
must be provided when a permit is
developed for the discharge of a '•
pollutant into a water which is impaired
for that pollutant. Where a fact sheet or
statement of basis is required, the
Agency believes the records for such
permits must contain a full explanation
of the basis for water quality-based
limits including those for a pollutant(s)
for which a waterbody is impaired'.
Specifically, the fact sheet or statement
of basis must contain: (1) In cases where
a TMDL has not been established for an
impaired waterbody, an explanation of
how permit limits and/or conditions
were derived for all pollutants in the
discharger's effluent for which the
waterbody is impaired; and (2) in cases
where a TMDL has been established for
an impaired waterbody, any TMDL that
has been established for a pollutant
contained hi the discharger's effluent;
the applicable wasteload allocation
derived for the pollutant under the
TMDL for that discharger; and an
explanation of how permit limits for the
pollutant of concern were derived as
well as how those limits are consistent
with the applicable wasteload
allocation.
EPA interprets its existing regulations
to require this information already.
Specifically, § 124.8(b)(4) requires the
fact sheet to include "a brief summary
of the basis for the draft permit
conditions * * *. " Section 124.7
requires the statement of basis to
"briefly describe the derivation of the
conditions of the draft permit and the
reasons for them* * * ;" Also,
§ 122.44(d)(l)(vii)(B) requires the
permitting authority to ensure that
"effluent limits developed to protect a
narrative water quality criterion, a
numeric water quality criterion, or both,
are consistent with the assumptions and
requirements of any available wasteload
allocation for the discharge prepared by
the State and approved by EPA pursuant
to § 130.7." Evidence of this
longstanding interpretation is found in
EPA's "Technical Support Document for
Water Quality-based Toxics Control"
where the Agency refers to the fact sheet
regulations at § 124.56 and states that
"the wasteload allocations along with
the required long-term average and
coefficient of variation used and the
calculations deriving them must be
included or referenced in the fact sheet.
The permit limit derivation method
used must also be explained in the
permit documentation." (EPA/505/2—
90-001, March 1991, p.110). By revising
these regulations to include today's
clarifications, the Agency is merely
emphasizing the importance of
providing data and information for
permit limits and conditions contained
in permits authorizing discharges to
impaired waters both prior to and after
the establishment of a TMDL. Making
this concept completely explicit in the
regulations will help to clarify EPA's
previous intent behind these provisions
and ensure consistency in fact sheets
and statements of basis accompanying
permits for discharges into impaired
waters. In addition, these clarifications
to the existing regulations are consistent
with the provisions in the proposal
requiring fact sheets and statements of
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basis to include an explanation for the
basis of any offset obtained in an
impaired water.
Adding these clarifications also
Improves the ability to track whether
permits requiring a fact sheet or
statement of basis contain limits that
derive from and comply with applicable
water quality standards as well as
whether the limits are consistent with
jin applicable TMDL. EPA intends to
track information in order to monitor
and report progress nationally on
permitting in impaired waters. The
Agency believes tracking this
information supports the purposes and
goals of the CWA, to restore and
maintain the chemical, physical, and
biological integrity of the Nation's
waters. The Administrator also bears a
statutory responsibility under CWA
section 303(d) to ensure timely
establishment of TMDLs and an
obligation under CWA section
301(b)(D(C) to ensure that permits
include water quality-based effluent
limits as necessary to meet water quality
standards. Tracking these data will help
to ensure that needed water quality-
based effluent limits are placed in all
permits requiring them prior to a TMDL.
It will alsonelp to ensure that TMDLs,
once established, are in fact,
Implemented.
Revisions to the Water Quality-based
Permitting Regulations
Although EPA is not promulgating the
offset requirement, the Agency still
believes emphasis should be placed on
State antidegradation policies as part of
a State's water quality standards. EPA,
therefore, is promulgating the clarifying
change to the water quality-based
permitting regulations by adding the
phrase "State antidegradation
provisions" to section § 122.44(d)(l).
3. EPA Authority to Reissue Expired
and Administratively-Continued NPDES
Permits Issued by Authorized States
What did EPA propose? Under the
NPDES program regulations, a Regional
Administrator may review and object to
an NPDES permit that an authorized
State proposes to issue. The procedures
by which a Regional Administrator may
review and object to these permits are
found in § 123.44. EPA proposed a new
mechanism by which a Regional
Administrator could trigger these
procedures for two purposes. EPA
proposed to grant the Regional
Administrator the discretion to trigger
those procedures to (1) achieve
reasonable further progress toward the •
attainment of water quality standards in
impaired waters in the absence of a
TMDL; and (2) ensure that established
TMDLs are, in fact, implemented. This
proposed discretionary authority would
be available to the Regional
Administrator to achieve these goals by
using the procedures in § 123.44 to
address a subset of existing expired
State-issued NPDES permits. This
authority could be exercised when an
NPDES permit that has been
administratively-continued after
expiration authorizes a discharge to a
waterbody that does not attain and
maintain water quality standards where
there is a need for a change in the
existing permit limits to be protective of
water quality standards. In the preamble
to the proposal, these permits were
referred to as "environmentally-
significant permits."
To achieve reasonable further
progress toward the attainment of water
quality standards in impaired waters in
the absence of a TMDL, proposed
§ 123.44(k) would give EPA the
discretion to treat a subset of
environmentally-significant State-issued
permits that are administratively-
continued after expiration as the State's
submission of a permit for EPA review
under § 123.44. This subset of permits
includes those permits that authorize
discharges of a pollutant(s) of concern
(i.e., a pollutant(s) for which the
waterbody is impaired) to a waterbody
that does not attain and maintain water
quality standards for those pollutants
and for which EPA has not established
or approved a TMDL. EPA proposed
that this authority be available to the
Agency where there is a need for a
change in the existing permit limits.
Specifically, this authority could be
invoked where there is a need to
include more adequate and protective
water quality-based effluent limits in
order to ensure that such limits derive
from and comply with applicable water
quality standards. See
§ 122.44(d)(l)(vii).
EPA proposed to assert the Agency's
discretion to exercise the authority to
use these procedures for a State-issued
permit that meets the conditions above,
where that permit has been expired and
administratively-continued for more
than 90 days, and where the State has
failed to reissue that permit. The
Agency's NPDES regulations require
that an existing permittee submit a new
permit application at least 180 days
before an existing permit expires
(§ 122.21(d)(2)J. When a permittee has
submitted a timely and complete
application for renewal, but the State
Director fails to act on the permittee's
application before the existing permit
expires, States' laws often provide that
the existing permit continues in effect
by operation of law. The permit remains
in effect by operation of law until the
State takes final action on the
permittee's application (until the State
makes a final decision to grant or deny
a new permit). This is often referred to
as "administrative continuance." These
State laws, like the corresponding
provisions in § 122.6 and the Federal
Administrative Procedure Act at 5
U.S.C. 558(c), aim to protect a permittee
who has submitted a timely and
complete application for renewal. Such
State laws protect a permittee from
losing its authorization to discharge
simply because the permit-issuing
authority has not issued a new permit
before the existing permit expires.
In some cases, administrative
continuance of expired permits provides
States with flexibility to prioritize their
action without significant adverse
impacts on receiving waters. However,
administrative continuance also may
lead to inappropriate delays in reissuing
permits that need revision to comply
with current requirements. State
administrative-continuance laws
typically allow an expired permit to
remain administratively-continued
indefinitely. Therefore, a lengthy
administrative continuance of a permit
for a discharge into an impaired
waterbody can significantly delay the
implementation of needed water
quality-based effluent limitations.
Under EPA's existing regulations, no
mechanism currently exists by which to
invoke the Agency's permit review and
objection authority to address this
situation. The proposed authority and
the procedures to invoke this authority
would provide that procedural
mechanism.
The proposal provided that if, after
notice, the State failed to submit to EPA
a draft or proposed permit for a
discharge into an impaired waterbody
within 90 days following the permit
expiration date, the Regional
Administrator could treat the expired
and administratively-continued permit
as the State's submission of a draft or
proposed permit for EPA review under
§ 123.44. For EPA to exercise this
discretionary review authority, EPA
would give the State and the discharger
90-days notice of its intent to treat the
administrative-continuance as the
reissuance of a permit containing the
same terms as the permit that had
expired. EPA could provide this notice
at any time following the 90-day period
after permit expiration. EPA's use of this
new mechanism would be discretionary.
Once the environmentally-significant,
administratively-continued permit was
subject to review under § 123.44
procedures, EPA would be able to
comment on, object to, or recommend
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43645
changes to the permit. If the State, under
§ 123.44(a), submitted a draft or
proposed permit for EPA review at any
time before authority to issue the permit
passed to EPA under § 123.44(h), EPA
would withdraw its notice of intent to
assume permitting authority. At that
point, existing rules on EPA objection to
State-issued permits would govern.
Therefore, EPA could take any
appropriate action, including
transmission of comments on or
possible objection to the new draft or
proposed permit submitted by the State.
Furthermore, EPA's ability to invoke
this authority would continue until the
State issues the final permit. In other
words, if a State submits a draft or
proposed permit that EPA believes
resolves all of the concerns under the
objection but fails to issue the final
permit, EPA could invoke this authority
again and object to the original (expired
and administratively-continued) permit.
In the proposal, the Agency stressed
that the new review mechanism would
be used only in those circumstances
where other means of working with the
State to reissue the permit failed. At any
time during this process, the State is
encouraged to explain to EPA the
reasons for not reissuing the expired
permit. The Agency will carefully
consider any such explanation before
proceeding with these objection
procedures. Similarly, the Agency
would not expect to depend heavily
upon the proposed mechanism in States
whose administrative continuance laws
operate for limited periods of time.
As noted in the preamble to the
proposed rule, § 123.44(k) would apply
only to those expired, State-issued
permits for which a timely and
complete application for renewal has
been submitted to the State, and for
which State law has provided for
continuation of the expired permit. The
new provision would not apply to
unpermitted discharges. Existing
authority allows the Agency to institute
judicial or administrative actions
against unpermitted dischargers for
discharging without a permit, even if
they have submitted an application to
the State and the State has not issued
the permit.
EPA recognized in the preamble to the
proposed rule that many
administratively-continued permits for
discharges into impaired waters have
not been reissued and that the Agency
expects to exercise its discretion to use
this authority only in very rare instances
and only with respect to
environmentally-significant permits.
The Agency intends to use its discretion
under this provision as one way to help
ensure that these permits will be issued
in a timely manner to support the
fulfillment of the CWA goals to ensure
that water quality standards are
maintained and protected.
EPA's authority to make these
changes to its regulations was discussed
at length in the proposal. EPA restates
the most important elements of that
discussion here. Section 301(b)(l)(C) of
the Act directs EPA and the States to
include water quality-based effluent
limitations in NPDES permits that will
enable the waterbody to meet the
applicable water quality standards.
Also, CWA section 501(a) allows the
Agency to promulgate a regulation to
implement CWA section 402(b)(l)(B)
and EPA's authority in CWA section
402(d) to prevent a State from avoiding
(or postponing by lengthy
administrative continuance), what
otherwise would be required by
reissuance. The Agency bears an
obligation under CWA section 402(c)(2)
to ensure that State programs and, State-
issued permits comply with the
requirements of the Act including
section 402(b)(l)(B). NPDES permits
may not be issued for periods exceeding
five years (CWA section 402(b)(l)3 and
should be reviewed and revised in a
timely fashion to ensure compliance
with the CWA and applicable
regulations.
What comments did EPA receive? The
following summarizes the major
comments received on the proposed
authority for EPA to review, object to,
and reissue, if necessary, a State-issued
NPDES permit that has been
administratively-continued after
expiration. The majority of comments
received on this proposed provision
asserted that EPA does not have the
statutory authority under the CWA to
amend the NPDES regulations to permit
the Agency to review, object to, and
reissue State-issued NPDES permits that
have been administratively-continued.
Many of these commenters stated that
Congress intended authorized States to
have complete authority to administer
the NPDES program and that EPA
should not undermine any portion of
that authority. Some commenters
asserted that the only statutorily-
authorized mechanism EPA has to
address State-issued, administratively-
continued permits is to withdraw the
approval of a State's NPDES program.
Several commenters expressed their
concern that EPA does not have the
resources to effectively take on this
additional regulatory responsibility. To
support this argument, these '
commenters cited EPA's current permit
backlog. Many also asserted that EPA
does not have the expertise to do a
better job than the State. These
commenters argued that State agencies
have a much closer relationship with
their NPDES permittees and would,
therefore, have a better understanding of
all aspects of the permits and necessary
requirements.
A number of commenters strongly
supported this proposed change to the
NPDES regulations. Some commenters
expressed their belief that EPA already
has the authority to review any and all
NPDES permits. These commenters
argued that EPA has an obligation under
the CWA to ensure that all State
programs and State-issued permits
comply with the requirements of the
Act. Some expressed their belief that the
proposed regulatory language limits
EPA's review of expired permits by
allowing this authority to be invoked
only for those expired permits
authorizing discharges to waters that do
not attain and maintain water quality
standards. These commenters suggested
that the authority be broadened to allow
for review of all State-issued permits
that have been administratively-
continued after expiration. Several
commenters also expressed their belief
that this authority should be mandatory
rather than discretionary, i.e., EPA
should be required to review, and
reissue, if necessary, all
administratively-continued permits.
These commenters asserted that
delaying review results in unlawful
continued approval of permits
authorizing discharges in violation of
water quality standards and established
TMDLs.
Some commenters expressed
procedural concerns regarding the
proposed provision. Many asserted that
this proposed authority constituted a
"second veto" authority because the
Agency already had the chance to object
to the permit after the State's
notification of its intent to issue the
original NPDES permit. Others
suggested extending the period for
States to Act after EPA notice from 90
days to two years. These commenters
argued that this time is necessary to
resolve all permitting issues, including
the very complex process of
incorporating the applicable wasteload
allocations that are derived under a
TMDL. Some recommended that EPA
only allow this authority in waters that
do not attain and maintain water quality
standards where a TMDL has been
established.
What is EPA promulgating today?
After considering all of the comments
EPA received on the proposed
mechanism and considering further the
purpose of the underlying authority,
EPA is today promulgating the
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regulations proposed at § 123.44(k)
except as explained later in today's
preamble. The Regional Administrator
will generally have the discretionary
authority to review, object to, and
reissue, if necessary, environmentally-
significant State-issued NPDES permits
that have been administratively-
continued after expiration. An
environmentally-significant permit
authorizes a discharge to a waterbody
that does not attain and maintain water
quality standards where there is a need
for a change in the existing permit limits
to be protective of water quality
standards.
The availability of this authority is
important for permits that authorize
discharges of pollutant(s) of concern to
Waterbodies in the absence of an EPA
approved or established TMDL. In
particular, the availability of this
authority, under these circumstances, is
important for permits that do not
contain limits and/or conditions that
derive from and comply with water
quality standards. Again, the Agency
expects to use this authority only in rare
instances as States will continue to have
the primary role in administering the
NPDES program. The Agency believes
that this mechanism advances the goals
of the CWA, to attain and maintain
Water quality standards. The Agency
further believes that this authority is
necessary to facilitate the fulfillment of
EPA's statutory responsibility to include
water quality-based effluent limitations
in NPDES permits that meet the
applicable water quality standards.
(CWA section 301(b)(l)(C)).
In response to comments opposing
this provision, EPA does not believe
that Congress intended authorized
States to have unfettered discretion with
regard to NPDES permitting after
authorization. Congress expressed its
clear intent regarding State-issued
NPDES permits in the specific text of
CWA sections 402(b)(l)(B) and (c)(2)
and today's rule improves
Implementation of those provisions.
EPA action on this provision of today's
rule does not undermine State authority,
but rather enhances the authority and
responsibility of authorized States to the
extent that a discharger with an expired
permit may affirmatively seek action
from the State (compared to the status
quo where the discharger with an
expired permit has no incentive to seek
action from the State).
B, Mew Tools To Ensure Implementation
ofTMDLs
I. Background
In addition to ensuring reasonable
further progress toward the attainment
of water quality standards prior to an
EPA approved or established TMDL
(described above), EPA proposed
revisions that included new tools to
ensure implementation of EPA
approved or established TMDLs. EPA
proposed explicit language describing
the authority of EPA and States with
approved NPDES programs to designate
certain currently unregulated sources as
discharges requiring NPDES permits.
These sources would have included
certain animal feeding operations,
aquatic animal production facilities and
silvicultural operations. The proposal
stated that EPA could invoke this
authority when necessary to provide
reasonable assurance that an EPA
approved or established TMDL would
be implemented with respect to the
particular source to be designated.
Moreover, EPA proposed that it could
invoke this authority when necessary to
provide reasonable assurance that the
designated source would achieve its
allocated load reductions under the
TMDL.
EPA also proposed explicit language
describing the Agency's discretionary
authority to review, object to, and
reissue, if necessary, State-issued
permits that are "administratively-
continued" after expiration, authorizing
discharges into waters that do not attain
and maintain water quality standards
with an EPA approved or established
TMDL. EPA proposed that it could
exercise this authority when necessary
to ensure that those permits are
consistent with applicable wasteload
allocations under a TMDL.
What comments did EPA receive? The
following summarizes the major
comments received on the proposed
new tools to ensure that established
TMDLs are implemented. Several
comments expressed support for EPA's
authority to designate certain animal
feeding operations (AFOs), aquatic
animal production facilities (AAPFs),
and silvicultural activities as subject to
the NPDES program. Conversely, several
commenters expressed their concern
that additional prescriptive, command
and control requirements would be
counterproductive, impede economic
sustainability, and stall progress already
made at the local level. Some
commenters added that the proposed
rule would alienate the partners and
cooperators with whom working
relationships should be fostered. These
commenters asserted that water quality
improvements could instead be
achieved by good locally lead,
incentive-based programs, and
voluntary best management practices.
Some commenters noted that voluntary
programs, including the CWA section
319 program, were inadequately funded
and that additional resources directed to
these programs would be more effective
in achieving water quality goals than
through additional regulatory
mechanisms.
Many comments stated that nonpoint
source pollution derived from
agricultural and silvicultural activities
should not be regulated. Several
comments stated that Congress did not
intend to regulate AFOs or silviculture
activities under the Clean Water Act or
subsequent amendments. EPA also
received many comments regarding
whether EPA has the authority to
designate sources in NPDES-authorized
States. These commenters expressed
their belief that the proposal was
designed to extract from States more
rigorous (i.e. enforceable) "reasonable
assurances" that nonpoint source load
allocations will be met.
Some comments noted that the
determination regarding whether or not
to permit an AFO, AAPF, or silviculture
activity should be based upon whether
or not the operation or activity met the
statutory definition of a point source
rather than on case-by-case
determinations. Several comments
specifically addressed the definition of
"point source" and emphasized that any
discernible, confined and discrete
conveyance falls within that definition
and, therefore, all operations with such
conveyances should be regulated as
point sources. Other comments that
addressed this same issue asserted that
only those operations with a discrete,
confined and discernible conveyance
fall within the definition of point source
and only those can thus be permitted.
The Agency received comments
asserting that requiring permits on a
case-by-case basis violates the due
process rights of the permittee since
there are no clear standards to apply
and no hearing rights provided to
challenge abusive decision-making
regarding NPDES permitting. The
comments further noted that permit
decisions should be based upon fixed
rules rather than on-the-spot decisions
by Federal employees.
2. Designation of concentrated animal
feeding operations (CAFOs)
What Did EPA Propose? EPA
proposed changes to the NPDES
regulations regarding the designation of
concentrated animal feeding operations
(CAFOs). EPA proposed explicit
language describing the Agency's
authority, in States with approved
NPDES programs, to designate animal
feeding operations (AFOs) as CAFOs.
Once designated, these sources would
be subject to NPDES program
requirements. This designation
authority, like the authority of NPDES-
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43647
authorized States and EPA in
unauthorized States, would be
discretionary. The proposed authority
was limited to instances when EPA
establishes a TMDL and determines
designation is necessary to provide
reasonable assurance that the TMDL
will be implemented. If the Agency
chose to invoke this authority, it would
do so on a case-by-case basis and only
in those instances where other means of
working with the State were not
successful.
The NPDES regulations for CAFOs
first define the term "animal feeding
operation" (AFO) and then the term
"concentrated animal feeding
operation" (GAFO). An operation must
first be an AFO before it can be defined
or designated as a CAFO. The term
"animal feeding operation" is defined in
EPA regulations as a "lot or facility"
where animals "have been, are, or will
be stabled or confined and fed or
maintained for a total of 45 days or more
in any 12 month period and crops,
vegetation forage growth, or post-harvest
residues are not sustained in the normal
growing season over any portion of the
lot or facility" See § 122.23.
Once a facility meets the AFO
definition, its size, determined by the
total numbers of animals confined, is a
fundamental factor in determining
whether it is a CAFO. The animal
livestock industry is diverse and
includes a number of different types of
animals that are kept and raised in
confined situations. To define these
various livestock sectors, EPA
regulations established the concept of
an "animal unit" (AU) (Part 122
Appendix B). An AU varies according to
animal type. One animal is not
necessarily equal to one AU. The
regulations assign a multiplication
factor for each livestock type, except
poultry.
An AFO is a CAFO either if it meets
the regulatory definition of a CAFO or
it is designated as a CAFO on a case-by-
case basis. An AFO is defined as a
CAFO where more than 1,000 AUs (as
defined by the existing regulation) are
confined at a facility. These CAFOs are
considered "large CAFOs." In general, a
medium-sized AFO where more than
300 AUs are confined at a facility is also
defined as a CAFO where pollutants are
discharged either into navigable waters
through a manmade ditch, or directly
into waters that originate outside of and
pass over, across, or through the facility,
or come into direct contact with the
confined animals. Today's regulation
does not address AFOs that are defined
as CAFOs under these criteria.
As mentioned, an AFO can become a
CAFO subject to NPDES permitting
through case-by-case designation. See
§ 122.23(c). Case-by-case designations
are based on a Director's determination
that the operation or facility is a
significant contributor of pollutants to
waters of the United States. In
designating an operation or facility as a
significant contributor of pollutants, the
Director essentially finds that the
facility's discharges are more like point
sources already subject to NPDES
regulation than those agricultural
nonpoint sources that are not. EPA
regulations define the term "Director"
as the EPA Regional Administrator or
the State Director (in States authorized
to administer the NPDES program) •, as
the context requires, or an authorized
representative. See § 122.2. This
definition explains that when there is an
approved State program, "Director"
normally means the State Director but
that in some circumstances, EPA retains
the authority to take certain actions
even when there is an approved State
program. In the proposed rule, EPA
identified designation of CAFOs and
concentrated aquatic animal production
facilities (CAAPFs) as instances, where
the context requires, that EPA retain
authority in authorized States.
In making the determination that a
source is a significant contributor of
pollutants to waters of the United
States, the Director conducts an on-site
inspection of the facility and considers
the following factors: (1) The size of the
animal feeding operation and the
amount of wastes reaching waters of the
United States; (2) the location of the
animal feeding operation relative to
waters of the United States; (3) the
means of conveyance of animal wastes
and process waste waters into waters of
the United States; (4) the slope,
vegetation, rainfall, and other factors
affecting the likelihood or frequency of
discharge of animal wastes and process
waste waters into waters of the United
States; and (5) other relevant factors. See
§ 122.23(c). One such relevant factor
could be the water quality of the
receiving water, including the degree of
nonattainment of water quality
standards.
EPA has designated AFOs as CAFOs
in States where it is the NPDES
permitting authority although it has
done so only on rare occasions. EPA
believes it should be able to designate
facilities in NPDES-authorized States as
well, for example, to assure
implementation of an EPA-established
TMDL. EPA, therefore, proposed to
revise § 122.23 to include explicit
language describing the Agency's
authority (under certain circumstances
discussed below) to make such
designations in instances when the State
has not already done so.
The proposed regulatory change
limited the exercise of this discretion to
the situation where EPA establishes a
TMDL for a waterbody in an authorized
State and determines that designation is
necessary to provide reasonable
assurance that the wasteload allocations
and load allocations under the TMDL
will be achieved. EPA may establish a
TMDL for a State where a State fails to
establish a TMDL for a waterbody in
accordance with its approved schedule
or where EPA disapproves a State-
established TMDL. States must submit
each TMDL they establish to EPA for
approval. EPA is today promulgating
regulations to require States to submit a
plan to implement the load allocations
and wasteload allocations of a TMDL.
EPA will evaluate the adequacy of the
implementation plan (a required
element of a TMDL) in determining
whether to approve a TMDL. If EPA
disapproves a TMDL based on a
determination that the implementation
plan is inadequate EPA would then
need to establish the TMDL itself,
including an implementation plan.
The implementation plan must
provide reasonable assurance that the
control actions and/or management
measures required to implement the
load allocations and wasteload
allocations of the TMDL will be put in
place and the load allocations and
wasteload allocations will be met. Thus,
EPA may disapprove the TMDL if the
Agency determines that the wasteload
allocation or load allocation is not
appropriate, or the implementation plan
does not provide such reasonable
assurance. For example, EPA may
determine that the implementation plan
lacks reasonable assurance that certain
AFOs will achieve and maintain their
respective pollutant load allocations.
Under these circumstances, EPA
proposed that it would work with the
State to provide the necessary
reasonable assurance. EPA might
suggest to the State, for example, that
certain additional management
measures be put in place to control the
water quality impacts from AFOs
contributing to the water quality
impairment necessitating the TMDL.
EPA also might recommend that certain
improvements be made to existing State
programs, whether voluntary or
regulatory, to control water quality
impacts from such sources.
If working with the State to achieve
reasonable assurance has failed,
however, EPA proposed that it would
disapprove the TMDL and thereafter
establish the TMDL, including an
implementation plan. Under these
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circumstances, EPA proposed that the
Agency may then determine that an
AFO is a significant contributor of
pollutants to waters of the United
States. EPA may also determine that the
best way for EPA to provide reasonable
assurance that such feedlot pollutant
sources achieve and maintain assigned
pollutant load allocations is through the
issuance (and enforcement) of an
NPDES permit. Under the proposal, EPA
could then invoke its designation
authority and require the AFO to seek
an NPDES permit as a CAFO.
V/hat comments did EPA receive? In
addition to the comments noted above
under the section titled "What
Comments Did the Agency Receive on
These Proposed New Tools," the
Agency received several comments
specific to the proposed designation of
animal feeding operations. The
following discussion summarizes some
oi the major comments received on this
provision. EPA received several
comments supporting the proposed
authority to designate certain AFOs.
Many commenters also recommended
that using its designation authority, the
Agency correct NPDES-authorized
States that fail to properly permit all
large AFOs as CAFOs.
Many commenters, on the other hand,
opposed EPA designation in NPDES-
authorized States. These commenters
asserted that States should have the lead
in regulating AFOs and expressed
concern that the proposed rule would
result in increased coordination costs
for Federal and State governments.
Others expressed concern that EPA
designation of AFOs in NPDES-
authorized States would not be
consistent with a State's designation
authority. These commenters asserted
that EPA is not required to conduct the
same analysis as a State when deciding
whether to require a permit.
Several comments stated that EPA
could not intervene in NPDES-
aulhorized States unless it decides to
withdraw the NPDES program.
Commenters stated that EPA
designation in authorized States would
conflict with State decisions regarding
its NPDES program, for example, by
overriding a State's decision not to
regulate certain AFOs. One commenter
expressed concern that the rule could
result in inconsistent permitting
decisions for similar sources located in
different EPA Regions.
EPA also received comments
recommending that a limit or threshold
level be established for the number of
small AFOs that would be designated on
a case-by-case basis under this rule.
These commenters suggested that such
a limitation would place a cap on the
potential strain to State resources
caused by the inclusion of a large
number of additional facilities that
would be added to the NPDES program.
Some comments stated that only AFOs
that discharge pollutants from a point
source—a discrete, confined,
discernable conveyance—can be
permitted whereas nonpoint source
dischargers could not. Others
commented that Congress only intended
to regulate large AFOs.
What is EPA promulgating today? In
response to comments received on the
proposed rule, EPA is not taking final
action on the proposed changes to the
NPDES regulations applicable to AFOs
and CAFOs at § 122.23.
3. Designation of Concentrated Aquatic
Animal Production Facilities (CAAPFs)
What did EPA propose? EPA
proposed changes to the NPDES
regulations regarding the designation of
concentrated aquatic animal production
facilities (CAAPFs). EPA proposed
explicit language describing its
authority, in States with approved
NPDES programs, to designate aquatic
animal production facilities (AAPFs) as
CAAPFs. Once designated, these
sources would become subject to
NPDES program requirements. This
designation authority would be
discretionary and if invoked, would be
used on a case-by-case basis. The
proposed authority was limited to
instances where EPA is establishing a
TMDL and the Agency determines that
designation is necessary to provide
reasonable assurance that the TMDL
will be implemented. The Agency's
purpose and basis for this action is
nearly identical to the purpose and basis
explained for EPA designation of
CAFOs in NPDES-authorized States.
Under existing regulations,
concentrated aquatic animal production
facilities are subject to the NPDES
program. As with AFOs, one situation in
which an AAPF is considered
"concentrated" and thus subject to
NPDES permitting, is when the Director
so designates the operation or facility on
a case-by-case basis. See § 122.24(c). As
with case-by-case designations of
CAFOs, case-by-case designations of
CAAPFs are based on a determination
that the operation or facility is a
significant contributor of pollutants to
waters of the United States. In
designating an operation or facility as a
significant contributor of pollutants, the
Director essentially finds that the
facility's discharges are more like point
sources already subject to NPDES
regulation than agricultural nonpoint
sources that are not.
In making the determination that an
AAPF is a significant contributor of
pollutants to waters of the United
States, the Director conducts an on-site
inspection of the facility and considers
the following factors: (1) The location
and quality of the receiving waters of
the United States; (2) the holding,
feeding and production capacities of the
facility; (3) the quantity and nature of
the pollutants reaching waters of the
United States; and (4) other relevant
factors. See § 122.24(c). The proposed
regulatory change would restrict EPA's
authority to exercise the discretion to
designate CAAPFs to the same limiting
situations for designating CAFOs,
specifically, when EPA establishes a
TMDL for a waterbody in an authorized
State and determines that designation is
necessary to provide reasonable
assurance that the wasteload allocations
and load allocations under the TMDL
will be achieved.
In addition, the preamble to the
proposed rule offered an interpretation
of the distinction between
"aquaculture" and "concentrated
aquatic animal production facilities."
Based on additional consultation,
today's preamble offers a clarification to
that interpretation as explained below.
What comments did EPA receive? In
addition to the comments noted above
under the section titled "What
Comments Did EPA Receive on These
Proposed New Tools," the Agency
received several comments specific to
the designation of CAAPFs. EPA
received very few comments addressing
issues relevant solely to the designation
of CAAPFs. The following is a summary
of those comments. One comment
expressed support for the proposal but
suggested that the scope of designation
authority should be broadened. This
commenter expressed concern that there
were too many exemptions under which
a facility would not be covered under
the NPDE$ program and that the
proposal should be revised to allow for
designation of all CAAPFs in every
instance.
Most of the comments received
opposed EPA's proposal to designate
certain AAPFs in those instances where
other means of working with a State
have failed. One commenter expressed
concern that the proposal was a
questionable expansion of EPA's
authority to supercede current State
actions that efficiently and
economically regulate CAAPFs. This
commenter stated that States with large
aquatic production industries already
have a comprehensive regulatory
framework, enforcement authority and
compliance assistance, as well as
voluntary incentives, including operator
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43649
training and certification, complaint
systems, and coordination with various
State agencies.
What is EPA promulgating today? In
response to comments received on the
proposed rule, EPA is withdrawing the
proposed changes to the NPDES
regulations applicable to AAPFs and
CAAPFs at § 122.24.
By today's preamble, however, EPA
offers a clarification of its interpretation
of the distinction between
"aquaculture" and "concentrated
aquatic animal production facilities."
The preamble to the proposed rule
differentiated between "aquaculture"
and "aquatic animal production
facilities" based on the location of
aquatic stock confinement relative to
jurisdictional waters of the United
States. The proposal indicated that with
respect to "aquaculture," aquatic stock
is confined within jurisdictional waters
whereas aquatic stock in "aquatic
animal production facilities" is not
confined within jurisdictional waters
but the facilities discharge to
jurisdictional waters. Upon closer
review of the original CWA legislative
history, the regulations for aquaculture
and aquatic animal production facilities,
and past Agency statements on the
matter, EPA today clarifies the
statements in the preamble to the
proposed rule. As an initial matter, the
Agency notes that it did not intend to
amend or revise existing EPA
interpretations regarding the scope of
the two regulations, but merely to
provide clarification for the reader. EPA
regrets any confusion fostered by the
proposal.
Section 318 of the CWA specifically
addresses "aquaculture." The CWA
does not specifically address
"concentrated aquatic animal
production facilities." The latter are a
type of "concentrated animal feeding
operation," which the CWA explicitly
identifies as a "point source." The
legislative history is clear that
"aquaculture," as the term is used in
Section 318 of the Act, is intended to
refer to controlled conditions at an
approved aquaculture project, i.e.,
innovative reuse of effluent discharged
from municipal and/or industrial
sources. In 1977, EPA explained that
aquaculture projects were viewed as one
way to put existing pollution to
productive use. (42 FR 25478, May 17,
1977.) ("aquaculture projects using
pollutants within navigable waters will
be unique since discharges in excess of
those permitted pursuant to effluent
limitations are to be allowed within the
project area."). When EPA proposed the
aquaculture regulations in August 1978,
the proposed regulatory text provided:
The regulations are intended to authorize,
on a selective basis, controlled discharges
which could otherwise be unlawful under
the Act in order to determine, in a carefully
supervised manner, the existing and
potential feasibility of using pollutants to
grow aquatic organisms which can be
harvested and used beneficially and to
encourage such projects, while at the same
time protecting the other beneficial uses of
the waters.
Section 125.15(b) (as proposed at 43
FR 37132 on August 21, 1978). The
Agency further proposed that:
These regulations do not apply to those
aquaculture facilities such as fish hatcheries,
fish farms, and similar projects which do not
use discharges of wastes from a separate
industrial or municipal point source for the
maintenance, propagation and/or production
of harvestable freshwater, marine, or
estuarine organisms. Such projects are
regulated directly as aquatic animal
production facilities under section 402 of the
Act.
Section 125.15(c) (as proposed on
August 21, 1978). The 1978 proposal
was nearly identical to the aquaculture
regulations then in existence under Part
115. Its purpose was to incorporate the
Part 115 regulations into the NPDES
permit regulations, reflecting the
Agency's intent to merge aquaculture
permitting into the NPDES program
following changes to Section 318 iij the
1977 CWA amendments. While the
current regulations addressing
aquaculture have changed slightly and
been renumbered, the proposed
regulatory text quoted above most
clearly illustrates the distinction :
between "aquaculture" within the .
meaning of CWA section 318 and
regulated under § 122.25, and
"concentrated aquatic animal
production facilities" regulated under
§ 122.24. Therefore, by today's final
rule, EPA is clarifying that the
distinction between "aquaculture" and
"concentrated aquatic animal j
production facilities" is not based on
the location of aquatic stock •
confinement relative to jurisdictional
waters of the United States. Most
commercial fish husbandry that the
layperson refers to as "aquaculture,"
including fish farms located in waters of
the U.S., is subject to NPDES regulation
under the rubric "concentrated aquatic
animal production facility." As with
feedlots, an "aquatic animal production
facility" is subject to regulation under
the NPDES permitting program only if
the facility is "concentrated" according
to the NPDES regulations.
4. Designation of Point Source Storm
Water Discharges Associated With
Silvicultural Operations
What did EPA propose? The proposed
regulations would have provided States
authorized to administer the NPDES
program and EPA with the opportunity
to use the NPDES program to manage
pollution from forestry operations under
certain circumstances. As proposed, a
State could designate a forestry
operation not already subject to NPDES
permit requirements, as requiring an
NPDES permit only (1) where the
operation includes a physical
"discharge" of storm water from a
discrete, confined, discernible
conveyance (a physical point source);
and (2) upon a determination that the
operation was a "significant contributor
of pollutants" or was contributing to the
violation of a water quality standard.
The proposal would have also provided
EPA with this designation authority.
The Agency's use of this authority,
however, would have been limited to
instances where the Agency establishes
a TMDL and designation is deemed
necessary to provide "reasonable
assurance" that a source would meet its
allocated load reductions under the
TMDL.
Under the proposed regulations,
pollutants from forestry operations that
do not cause significant water quality
problems would not be subject to the
NPDES program. Even where forestry
activities were causing significant water
quality problems, State permitting
authorities would have retained the
option of determining that approaches
other than the NPDES program, such as
State voluntary or alternate regulatory
programs, would be more effective and
sufficient to restore the health of the
polluted waterbody.
As proposed, where a State identifies
a polluted waterbody, the State would
be required to develop a TMDL to
restore the water and provide
"reasonable assurance" that the
necessary pollution controls would
actually be implemented. States
authorized to administer the NPDES
program would have, among others, the
option to issue an NPDES permit for a
point source discharge of storm water
associated with a forestry operation to
provide "reasonable assurance" that the
pollution control measures would be
implemented. EPA noted in the
proposal that the Agency expected that
States would use this permit option
only to address "bad actors" who had
not responded to various non-regulatory
approaches and were not adequately
implementing best management
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practices to control water quality
impacts.
The Clean Water Act requires that
EPA review and approve TMDLs as
adequate to restore the health of
polluted waters. Where a State TMDL is
not adequate and EPA disapproves the
iTMDL, EPA is required to establish the
TMDL, In cases where EPA establishes
a TMDL that identifies silvicultural
activities as a significant source of
pollutant loadings, the Agency proposed
that it would work with the States and
rely on voluntary, incentive-based
approaches, where such approaches are
proven to ba effective, to provide
reasonable assurance that the loads and
wasteloads allocated in the TMDL
would be achieved. Where working with
tho State did not prove successful, the
proposed regulations would have
allowed EPA to designate, as a point
source discharge, the addition of
pollutants from forestry activities that
discharge storm water through a
discrete, confined, discernible
conveyance. As discussed in the
preamble to the proposed regulations,
EPA expected that the Agency would
use this authority only as a last resort.
To accomplish this objective and
achieve the intended result in the least
burdensome fashion, EPA proposed
changes to the silviculture and storm
water permit provisions at §§ 122.27
and 122.26.
Forests have a significant role in
protecting the quality of our Nation's
Waters. Covering about one-third of the
Nation's land area, forests are the source
of about two-thirds of the Nation's
tunoff, excluding Alaska. Vegetated
forested lands help to dissipate rain,
reduce flooding and slow storm water
rjunoff. In addition, forested lands help
to refill underground aquifers, cool and
cleanse water, and provide critical
habitat for fish and wildlife. Forests also
improve our quality of life by providing
abundant recreational opportunities.
EPA recognized that implementing
properly designed forest management
plans can result in silvicultural
activities that are both profitable and
protective of water quality. These plans
can be designed to include mechanisms
that would accommodate the full range
of forestry activities that might
otherwise pollute waters (e.g., by
designating special areas for protection;
planning the proper timing of forestry
activities; describing best management
measures for road layout, design,
construction, and maintenance; and
identifying the most appropriate
methods for harvesting and forest
rsgeneration). EPA also recognized that
in many parts of the country, Federal
agencies, States, and professional forest
managers are implementing effective
forest management plans combining a
range of tools including education,
financial assistance, and regulatory
requirements.
Despite these public and private forest
management efforts, silvicultural
activities may yet contribute to water
quality impairments and aquatic habitat
loss (e.g., when operators resist such
forest management efforts or when
forest management efforts become
outdated or unresponsive to current
conditions). Impairments and habitat
loss may occur due to sediment and
nutrient pollutant loadings, adverse
impacts to runoff and infiltration
patterns, and water temperature
increases. Discharges due to improper
road design, location, maintenance and
use also can impair aquatic ecosystems
and result in physical alterations in
stream channel morphology and
substrate composition, stream bank
destablization, changes in flow regime,
habitat fragmentation, etc.
("Environmental Assessment to the
Interim Rule: Administration of the
Forest Development Transportation
System: Temporary Suspension of Road
Construction and Reconstruction in
Unroaded Areas," February 1999, USDA
Forest Service). Sedimentation due to
uncontrolled discharges from
silviculture activities, for example,
discharges from forest road building,
threatens water quality and important
aquatic habitat.
In 1998, 32 States identified forestry
as a source of water quality problems
that affect more than 20,000 miles of
rivers and streams, 220,000 acres of
lakes, and 15 square miles of coastal
waters. This data was derived from an
unpublished analysis using data from
the 1998 section 303(d) lists and the
CWA section 305(b) reports. The
Agency believes that these numbers
underestimate the number of waters
impaired by forestry operations due to
a number of data limitations.
EPA proposed changes to the NPDES
regulations for silviculture and for storm
water discharges in order to address this
potential source of significant
impairment. Most discharges of storm
water associated with road building and
other land disturbing activity that
disturbs more than five acres of land are
currently regulated under the NPDES
permitting program pursuant to the
NPDES permit regulations for storm
water discharges at § 122.26. EPA
published the storm water discharge
application regulations in 1990. After
promulgation of those regulations, and
in discussions with stakeholders, it
became clear to EPA that, at a
minimum, there was a perception of a
"gap" in regulatory treatment of
silviculture roads compared to all other
types of roads. This regulatory gap arose
based on the NPDES regulation
addressing silvicultural sources which
identified, among other things,
silvicultural "road construction and
maintenance from which there is
natural runoff' as a nonpoint source
silvicultural activity.
The Agency believes that it acted
within its delegated authority when it
proposed to remove this sentence from
the regulation. EPA proposed that,
under limited circumstances, when a
silvicultural activity results in a
"physical" point source discharge that
can and should be regulated under
NPDES permits, like those for other
storm water discharges, States and EPA
should have the option of using the
NPDES program as a means to address
the water quality impacts from a
significant remaining, unregulated
source of pollutants causing adverse
impacts to water quality. Specifically,
the Agency believed that this option
should he available to address those
sources that are doing a poor job of
implementing measures designed to
prevent water quality problems.
The proposal would have provided all
NPDES permitting authorities with
sufficient authority to regulate
"physical" point source discharges from
silvicultural sources not already subject
to NPDES permit requirements. Again,
the Agency hastens to note that the
existing limitation on regulation of
discharges from silvicultural sources
was not compelled by the CWA. EPA
promulgated the existing regulation on
silviculture based on the interpretive
authority for rulemaldng under CWA
section 501(a), which authorizes the
Administrator to prescribe regulations
that are necessary to carry out her
functions under the Act. The CWA
preserves the rights of States to
experiment with alternative regulatory
(and non-regulatory) approaches to
control nonpoint sources of pollution.
The CWA does not provide specific
legal authority for EPA to regulate
nonpoint sources in a way that would
assure the attainment of water quality
standards. Such authority is reserved for
the States.
Under the proposed rule, EPA would
have deleted a sentence from the
existing NPDES regulations that
identifies a series of nonpoint source
silvicultural activities (§ 122.27(b)(l)).
While most such activities, in fact, can
result in diffuse runoff (i.e., a nonpoint
source of pollutants), some discharges
from some silvicultural activities may
physically resemble point source
discharges. As early as 1976, the Agency
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43651
struggled to articulate a general
definition for the term nonpoint source.
(41 FR 24709, 24710 col.2, June 18,
1976). There was, and perhaps remains,
however, no precise and absolute
definition. Id. In the 1976 preamble,
EPA relied on three criteria to
characterize nonpoint sources:
Pollutants discharged are induced by
natural processes; pollutants discharged
are not traceable to any discrete or
identifiable facility; and pollutants
discharged are better controlled through
the utilization of BMPs, including
process and planning techniques. As
evidenced by implementation of the
NPDES permitting program for storm
water discharges associated with
construction, the first and third of these
criteria are probably less meaningful in
the current context of silvicultural road
building and maintenance.
As explained in the preamble to the
proposed rule, EPA premised the
existing silviculture regulation (at
§ 122.27) on a judicial decision that held
diat EPA could not exempt any point
sources from the NPDES permitting
program. See Natural Resources Defense
Council, Inc. v. Costle, 568 F.2d 1369
(D.C. Cir. 1977). EPA interprets the 1987
storm water amendments in CWA
section 402(p)(l) to essentially
supercede this judicial finding and
create a new category of "unregulated
point sources." In place of this
regulatory gap from permitting for
silvicultural discharges, the proposed
rule would allow for case-by-case
regulation of a new category of
"unregulated point sources" associated
with the silvicultural activities that are
currently unregulated under the NPDES
program. Note that "return flows from
irrigated agriculture" and "agricultural
storm water" are "statutory" nonpoint
sources (based on CWA section
502(14)). As such, EPA can not and
would not attempt to regulate those
statutory nonpoint sources under the
NPDES permitting program. The Agency
emphasizes that the proposal would
have affected only those currently
unregulated silvicultural activities that
cause "physical" point source
discharges. As discussed previously,
except for some CAFOs, a term
specifically included in the definition of
"point source," the NPDES permit
requirement only applies when a
particular source has the "physical
characteristics" of a point source
discharge. As a threshold matter,
regulation as a point source requires a
"discrete, confined, and discernible
conveyance." CWA section 502(14), 33
U.S.C. section 1362(14).
In the 1987 amendments to the CWA,
Congress established a general
moratorium against permitting !
discharges composed entirely of storm
water in CWA section 402(p)(l). As
such, the section created the category of
"unregulated" point sources of storm
water described above. Unregulated
point sources of storm water are point
sources to which the NPDES permitting
program does not apply. CWA section
402 (p) (2) identified discharges that are
not subject to the moratorium, including
discharges from municipal separate
storm sewer systems serving
populations over a certain size, as well
as storm water discharges associated
with industrial activity.
Of particular interest, CWA section
402(p)(2)(E) specifically identifies a
category of discharges—other than
municipal or industrial storm water
discharges—that can be regulated on a
case-by-case at some future time. EPA
regulations that implement section
402(p)(2)(E) are found at
§ 122.26(a)(l)(v). Section 402(p)(2)(E) is
the basis and the only basis, upon
which physical point source discharges
from the currently unregulated
silvicultural activities would be
required to obtain an NPDES permit.
Designation under section 402(p)(2)(E)
is only available for point sources. The
sentence in EPA's current silviculture
regulation that identified nonpoint
source discharges from silvicultural
activities enabled inconsistent
interpretations regarding whether
discharges from such activities, which
otherwise would appear to add
pollutants from a discrete, confined,
discernible conveyance, could be
designated under section 402(p)(2)(E).
EPA proposed deletion of this sentence
to clarify the circumstances when such
sources can and should be regulated
under the NPDES permitting program
for storm water discharges.
As noted above, the reason EPA
proposed to remove the sentence
describing silvicultural nonpoint
sources was to provide States with an
additional tool to manage water quality
impacts from these sources as well as to
ensure that EPA could implement a
TMDL that the Agency might be
required to establish in die event of
State default. Accordingly, the proposed
rule would have imposed a restriction
on EPA that would not exist for States.
Specifically, the Agency could not have
designated discharges from currently
unregulated silvicultural activities
except in instances where EPA must
establish a TMDL. This additional tool
would be provided to NPDES-
authorized States and to EPA under the
combination of the existing storm water
regulations which allow for case-by-case
designation of certain storm water
discharges at § 122.26(a)(l)(v) and by
amending the silviculture regulations at
§122.27.
EPA notes that it did not provide an
accurate cite for one of the documents
cited in the proposal that described the
impacts of silviculture on water quality.
The Agency did not intend to
misrepresent the views of the authors of
the cited publication. EPA erroneously
cited the wrong document authored by
one of the same authors of a document
in the same year (1989). The paper that
the Agency intended to cite is titled,
"An Overview of Nonpoint Source
Pollution in the Southern United
States" authored by Neary, D.G., Swank,
W.T., Riekerk, H., which was published
in "Proceedings of the Symposium:
Forested Wetlands of the Southern
U.S.," July 12-14, 1988, Orlando Fl.,
U.S. Forest Service. General Technical
Report SE—50, published January 1989.
The proposed rule contained the
statement, "silviculture contributes
approximately three to nine percent of
nonpoint source pollution to the
Nation's waters." EPA meant to state
that, based on State assessments
reported in the 1988 section 305(b)
Report to Congress (EPA Document
#440-4-90-003), three to nine% of
assessed rivers are impaired by
silviculture. The Neary et al. document
that the Agency intended to cite
supports this statement. This document
contains the statement that, "except for
two [of the reported] states, (Arkansas
and Louisiana), silviculture was
responsible for <8% of the impacts on
surface waters." This number falls
within the range reported by the States
in the 1988 section 305(b) report.
What comments did EPA receive? In
addition to the comments noted above
under the section titled "What
Comments Did EPA Receive on These
Proposed New Tools," the Agency
received many comments specific to the
designation of silvicultural activities.
The following discussion summarizes
these comments. An overwhelming
number of commenters had a basic
misunderstanding of what die Agency
proposed. These commenters
misinterpreted the proposal to mean
that, upon promulgation of die rule,
each and every existing and future
silvicultural operation would be
required to obtain an NPDES permit.
Based on diis misunderstanding, these
commenters also misunderstood die
proposal as a mechanism that would
unfairly and unnecessarily regulate even
those operators diat are adequately
implementing appropriate measures to
protect water quality. As discussed
above, the scope of the proposed
authority was much narrower, it only
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applied in very limited circumstances,
bnd would have been a mechanism to
address bad actors only.
Several commenters claimed that
obtaining and issuing NPDES permits
would be an economic burden to the
forestry industry as well as the
government and that the money to
obtain and issue these permits would
hot be well spent because it would not
Produce a meaningful change in water
uality. Claiming that forestry has been
reported as only a minor source of water
quality pollution, commenters further
Claimed that EPA lacks the data to
support this regulatory change.
Commenters also asserted that the
economic analysis to the proposal
underestimated the costs to landowners
of obtaining an NPDES permit. Many
commenters expressed their belief that
existing regulatory and voluntary State
Forest Management programs are
Adequate to manage the environmental
impacts from silviculture and that the
proposal, if finalized, would undercut
these programs.
A significant number of commenters
asserted that EPA lacks the authority to
make the proposed regulatory changes.
These commenters disagreed with the
Agency's position that the CWA
provides adequate statutory authority to
make these revisions. Several
Commenters stated that EPA did not
have the authority to redefine general
silvicultural practices as point sources
unless there was an associated
qonveyance. Other commenters argued
that EPA cannot and should not shield
sources with discharges from discrete,
discernible, confined conveyances from
NPDES permit requirements. These
commenters asserted that all sources
with discharges from discrete,
discernible, confined conveyances are
and should be required to obtain NPDES
permits. EPA also received a significant
number of comments that asserted that
EPA does have the statutory authority to
make these regulatory changes. These
commenters pointed out that in the
absence of clear statutory language
excluding silvicultural activities from
the definition of a point source, EPA has
the authority to regulate them as point
sources. These commenters also
highlighted the court decision in NRDC
v, Costle, where the U.S. Court of
Appeals for the D.C. Circuit explicitly
held that "the power to define point and
honpoint sources is vested in EPA." 568
F.2d at 1382.
The Agency received numerous
comments in support of the proposed
authority to designate certain
Silvicultural operations as requiring
NPDES permits. Several commenters
provided data and case examples
describing the need to permit
silvicultural activities including data
describing the adverse impacts to water
quality from increased sediment
loadings, road construction and the use
of herbicides. Many commenters stated
that the proposed authority was too
restrictive to provide meaningful
environmental results. These
commenters encouraged EPA to expand
designation authority to allow EPA to
designate a source outside of the context
of a TMDL and to expand the authority
to apply universally to sources
discharging into any water of the United
States.
Many commenters encouraged EPA to
require NPDES permits for all
silvicultural operations that discharge
pollutants from a point source to waters
of the United States as opposed to the
proposed case-by-case approach.
Several commenters expressed their
concern that the proposed case-by-case
designation authority was retroactive in
effect because designation was limited
to instances where the State or EPA had
already determined that the operator is
a significant contributor of pollutants or
contributes to a violation of water
quality standards. These commenters
supported a more proactive approach
that would place less of a burden on the
State or EPA. To preserve unspoiled
waters, many also suggested that the
authority be available to the State or
EPA to designate sources currently
located on these waters and those
sources that wish to locate on these
waters in the future.
Commenters expressed their concern
regarding the potential for citizens to
petition the State or EPA to issue an
NPDES permit to silviculture operators.
They were concerned that citizen suits
would be costly and cause significant
delays in operation. Conversely, some
commenters supported the ability for
citizens to use the petition process so
that citizens can help to identify
silvicultural operations that are causing
significant water quality problems.
Others expressed concern that sources
undergoing land clearing activities
incidental to activities such as farming
or construction and development would
claim that they are conducting
silvicultural activities and therefore
would be exempt from NPDES permit
requirements (unless and until
designated).
Some commenters asserted that the
proposed requirement would override
State control over land use decisions.
These commenters asserted that
requiring an NPDES permit constituted
a Federal "taking" of a private
landowner's use of property.
Commenters also suggested that States
(and the sources within States) that have
effective and adequately protective
forestry programs should be exempt
from the effects of the proposed
provisions. These commenters
suggested that EPA develop reporting
criteria that allow for a reasoned
determination of whether a State is
demonstrating the level of effort
sufficient to warrant a determination
that its forestry program provides
"reasonable assurance" that water
quality will be protected.
What is EPA promulgating today? In
response to comments received on the
proposed rule, EPA is not taking final
action in today's rule on the proposed
changes to the NPDES regulations
applicable to silviculture at §§ 122.26
and 122.27. EPA has no plans at present
to repro pose changes to the silviculture
exemption or to finalize the August
1999 proposal, but will continue to
evaluate how to best address the water
quality impacts from forestry.
5. EPA Authority To Reissue Expired
and Administratively-Continued NPDES
Permits Issued by Authorized States
What did EPA propose? As discussed
in Section III.A.3, Reasonable Further
Progress Toward Attaining Water
Quality Standards in Impaired
Waterbodies in the Absence of a TMDL,
of this preamble, EPA proposed to grant
the Regional Administrator the
discretion to trigger the objection
procedures of § 123.44 to ensure that
established TMDLs are, in fact,
implemented.
What comments did EPA receive? The
comments received on this proposal are
discussed in III.A.3, Reasonable Further
Progress Toward Attaining Water
Quality Standards in Impaired
Waterbodies in the Absence of a TMDL
above.
What is EPA promulgating today?
After carefully considering all of the
comments EPA received on the
proposed mechanism and considering
further the purpose underlying the
authority, EPA is today promulgating
proposed § 123.44(k) as reflected in
today's Federal Register. A discussion
of EPA's authority to review, object to,
and reissue State-issued NPDES permits
that have been administratively-
continued authorizing discharges to
impaired waters is contained in Section
III.A.3. of this preamble and below. The
scope of this provision is consistent
with what the Agency proposed on
August 23, 1999 except as discussed
below. The Regional Administrator will
generally have the discretionary
authority to review, object to, and
reissue, if necessary, environmentally-
significant State-issued NPDES permits
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that have been administratively-
continued after expiration. An
environmentally-significant permit
authorizes a discharge to a waterbody
that does not attain and maintain water
quality standards where there is a need
for a change in the existing permit limits
to be protective of water quality
standards.
The availability of this authority is
important for permits that authorize
discharges of pollutant(s) of concern to
waterbodies where a TMDL has been
established but not implemented
through permits. Under these
circumstances, the availability of this
authority for these permits is important
because they do not contain limits and/
or conditions that are consistent with
applicable wasteload allocations
established in a TMDL. hi response to
comments supporting the proposal and
suggesting that EPA commit to action
more strongly, EPA has modified the
proposed rule as it relates to the
operation of the provision after the
establishment of a TMDL. In
§ 130.32(c)(l)(ii) of today's rule, EPA
commits to exercise its authority to act
on expired State-issued permits (when
State law "administratively continues"
the expired permit) to ensure the
incorporation of effluent limitations
(based on the wasteload allocation(s) in
a TMDL) into the NPDES permit. EPA
commits to exercise this authority to
ensure that such limits are incorporated
into the permits within two years from
the expiration of the permit term, or,
when the permit term expired prior to
the establishment of the TMDL, within
two years from the establishment of the
TMDL. In order to ensure that these
limits are incorporated into the permits,
EPA intends to monitor the State's
progress in incorporating the
appropriate limits into the permits
within one year after the permit expires
or, when the permit expired prior to
establishment of the TMDL, within one
year of establishment of the TMDL. In
accordance with the new provisions of
§ 130.32(c)(l)(ii), if EPA concludes that
the State will not issue the permit
within the applicable timeframe, with
the appropriate limits, EPA will trigger
these review and objection procedures.
These provisions apply only to TMDLs
approved after the effective date of
today's rule.
Implementation plans for TMDLs
(described in the revisions to Part 130
elsewhere in today's Federal Register)
need to contain a schedule for reissuing
or revising relevant NPDES permits as
expeditiously as practicable in order to
incorporate effluent limits consistent
with the wasteload allocation(s) in the
TMDL. Where EPA is the NPDES
permitting authority, EPA must reissue
or revise the permits within two years
after the establishment of the TMDL.
EPA will rely on existing regulations at
§ 122.62(a)(2) as a basis to modify
permits during their term to revise
existing WQBELs or incorporate new
WQBELs to implement the wasteload
allocation(s) in the TMDL (which, in
turn, implement existing water quality
standards). EPA explained the operation
of § 122.62(a)(2) in an earlier ralemaking
preamble. (45 FR 33290, 33315 col.,1,
May 19,1980). A TMDL that
implements a water quality standard
where that water quality standard was
in existence at the time of permit
issuance represents "new information"
that did not exist at the time of permit
issuance. This justifies new permit
requirements to implement those
standards. [Note: Where a TMDL
implements a water quality standard
and that water quality standard is
revised or issued after the issuance of a
permit, the applicable regulation would
be § 122.62(a)(3) rather than (a)(2). Thus,
modification of the permit prior to
expiration would not be authorized;
unless (A) the permit condition to be
modified was based on EPA approved or
promulgated water quality standards,
(B) EPA has approved a State action
with regard to the water quality
standard on which the permit condition
was based and (C) the permittee
requests modification in accordance
with §1.24.5 within 90 days of the ;
Federal. Register notice of the action on
which the request is based.]
The Agency believes that this
mechanism is necessary to support 'the
goals of the CWA to attain and maintain
water quality standards. The Agency
further believes that this authority is
necessary to facilitate the fulfillment of
EPA's statutory responsibility to en$ure
timely establishment and
implementation of TMDLs and to ensure
that permits include water quality-based
effluent limitations that will enable; the
waterbody to meet the applicable water
quality standards. CWA sections 303(d)
and 301(b)(l)(C). The wasteload :
allocations derived from the TMDL,
provide the basis for the water quality-
based effluent limitations that permits
must contain. EPA has concluded that
the time frames discussed above are
necessary to ensure timely TMDL
implementation.
IV. Costs of the Rule
The incremental costs associated with
today's rule are contained in "Analysis
of the Incremental Cost of Final
Revisions to the Water Quality Planning
and Management Regulation and the
National Pollutant Discharge
Elimination System Program". You
should read that document for a
complete description of the cost
estimates and the basis for those
estimates. The following is a summary
from that report.
Revision to the current program
Revisions to the listing require-
ments
Revisions affecting the content
and development of TMDLs
Revisions requiring TMDLs to
be developed within 10 years
EPA reissuance of state-issued
expired and administratively
continued permits
Total annualized cost
Annualized
cost
(2000 $ in
millions/yr)
$0.066
13.708
9.030
0.078
$22.882
For the Water Quality Planning and
Management Rule (changes to part 130),
EPA estimated the incremental costs
that will accrue from today's regulation
over the period from 2000 through 2008.
This period of analysis was chosen
because it spans a 10 year period, the
full time during which most TMDLs
will be developed for waterbodies
included on the 1998 section 303(d)
lists of impaired waters. Today's final
rule allows States, Territories, and
authorized Tribes up to 2010 to
establish all the TMDLs for waterbodies
included on the 1998 section 303(d) list;
therefore, the actual costs may be lower
than estimated. The incremental costs
that are analyzed are the additional
requirements of today's rule above the
current requirements associated with
developing all the section 303 (d) lists
and all the TMDLs that will be
completed during this period. In
accordance with today's rule, section
303(d) lists will be developed in 2002,
in 2006, and in 2010. During this
period, all TMDLs will be developed for
waterbodies on the 1998 lists, most of
the TMDLs will be developed for
waterbodies newly listed in 2002, some
of the TMDLs will be developed for
waterbodies newly listed in 2006, etc.
As shown above, the net annualized
cost that is attributable to the revisions
to the listing requirements over and
above the current program amounts to
about $0.066 million. This reflects the
net of the additional cost attributable to
the listing requirement (about $0.229
million) offset by the annualized savings
associated with extending the listing
cycle from two years to four years (about
$0.163 million). The additional cost of
revised requirements for developing
TMDLs is estimated to be about $13.708
million annually for the TMDLs that
will be developed for waterbodies on
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43654 Federal Register/Vol. 65, No. 135/Thursday, July 13, 2000/Rules and Regulations
the 1998 303(d) list. For perspective,
these additional costs represent about a
9% increase in the baseline costs of
developing these TMDLs as required
under the current program prior to the
revision of the Water Quality Planning
and Management Rule. Finally, the
revised requirements are expected to
result in accelerating the development
of about 17% of the TMDLs for the 1998
section 303(d) lists. The additional cost
associated with developing these
TMDLs on a more rapid schedule than
would have occurred in the baseline is
estimated to be about $9.03 million
annually through 2008.
For the provision in the new
regulation affecting the NPDES program
(parts 122,123, and 124), EPA estimated
the incremental costs relating to EPA
reissuing expired State-issued and
administratively continued permits
where necessary to implement a TMDL.
The analysis of the incremental costs of
the NPDES program revision is limited
to the incremental costs that the
regulation will impose in connection
with waterbodies on the current section
303(d) list and associated sources.
TMDLs for waterbodies on the 1998
section 303(d) lists are assumed to be
developed during the period from 2000
through 2008.
As shown above, the total annualized
cost associated with the provision is
estimated to be $0.078 million per year.
Costs to State and Federal permit
authorities include the additional
permitting and evaluation burdens
associated with the proposed revision.
The annualized costs shown above
reflect all costs projected to be incurred
from 2000 onward and are presented in
March 2000 dollars.
V, Regulatory Requirements
A, Regulatory Flexibility Act (RFA), as
amended by the Small Business
Regulatory Enforcement Fairness Act of
1996 (SBBEFA), 5 U.S.C. 601 et seq.
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions. For purposes of assessing
tho impacts of today's rule on small
entities, a small entity is defined as: (1)
A small business according to the RFA
default definition for small business
(based on the Small Business
Administration size standards); (2) a
small governmental jurisdiction that is a
government of a city, county, town,
school district or special district with a
population of less than 50,000; (3) a
small organization that is any not-for-
profit enterprise which is independently
owned and operated and is not
dominant in its field. For purposes of
the RFA, States, Territories and tribal
governments are not considered small
government jurisdictions since they are
independent sovereigns.
After considering the economic
impacts of today's final rule on small
entities, I certify that this action will not
have a significant economic impact on
a substantial number of small entities.
This final rule will not impose any
requirements on small entities. Today's
rule established requirements applicable
only to EPA, States, Territories, and
authorized Tribes. Thus, EPA is not
required to prepare a regulatory
flexibility analysis.
Court decisions make it clear that the
RFA imposes no obligation on an
agency to prepare a small entity impact
analysis of the effect of a rule on entities
which the rule itself does not regulate.
Rules which do not regulate small
entities directly—rules which affect the
decisions made by other regulators for
example—do not require an analysis of
such effects. Therefore, the key issue in
deciding whether EPA must prepare a
regulatory impact analysis here is
whether today's rule will "regulate"
small entities. Court decisions provide
further guidance on when, for purposes
of triggering the RFA requirement, a
small entity is not subject to a rule or
not regulated by a rule.
For example, the U.S. Court of
Appeals for the District of Columbia
Circuit has determined that the Federal
Energy Regulatory Commission (FERC)
was not required to analyze the effects
of two rules on small entities that were
not subject to the requirements of the
rules, hi the first case, the rule had the
effect of increasing the rates that electric
utilities could charge their wholesale
customers for electricity. The agency
certified that the rule would not have a
significant impact on a substantial
number of small entities because
virtually none of the utilities it
regulated were small entities.
Challengers to the agency argued that
the RFA applied to all rules that affect
small entities, whether the small entities
are directly regulated or not. In their
view, therefore, FERC should have
considered the effect of the rule on
customers of the electric utilities subject
to rate regulation by FERC. The court
disagreed, finding that under the RFA,
an agency may properly certify that no
regulatory flexibility analysis is
necessary when it determines that the
rule will not have a significant
economic impact on a substantial
number of small entities that are subject
to the requirements of the rule.
"Congress did not intend to require that
every agency consider every indirect
effect that any regulation might have on
small businesses in any stratum of the
national economy." Mid-TexElec.
Coop., Inc. v. FERC, 773 F.2d 327, 342
(D.C. Cir. 1985).
In the second FERC case, the court
reaffirmed this earlier conclusion. In
this case, the rule regulated the rates
natural gas pipeline company charged
local gas distribution companies for the
sale (or transportation) of natural gas
purchased by them. Under its enabling
statute, FERC had no jurisdiction to
regulate the local distribution of gas,
only the interstate sale and
transportation of natural gas. The local
distribution companies argued that the
rule would have a significant economic
impact on them as customers of the
regulated utilities. The court again held
that no analysis is required when the
agency determines the rule will not
have a substantial economic impact on
the small entities subject to the rule.
FERC had no obligation to prepare an
analysis of the economic effects of a rule
on small entities which the rule itself
did not regulate. United Distribution
Company v. FERC, 88 F.3d 1105, 1048
(D.C. Cir. 1996).
hi addition, there are also a number
of cases that have addressed EPA's
obligation under the RFA when
proposing and promulgating Clean Air
Act (CAA) rules. The D.C. Circuit
sustained EPA's certification of a rule
establishing Federal automobile on-
board emissions diagnostic devices. The
rule allowed automobile manufacturers
to comply with Federal requirements by
complying with certain California
regulations. EPA certified that the rule
would not have a substantial economic
impact on a significant number of
automobile manufacturers. Businesses
that manufacture, rebuild and sell car
parts to replace the parts installed by
the original manufacturers challenged
EPA's failure to consider the effect of
the rule on their businesses. The court
held that, because the rule did not
subject the car parts market itself to
regulation, EPA was not required to
prepare a flexibility analysis as to small
businesses dealing in car parts. EPA
only was obliged to consider the impact
of the rule on small automobile
manufacturers subject to the rule. Motor
&• Equipment Mfrs, Ass'n v. Nichols, 142
F,3d 449, 467 (D.C. Cir. 1998).
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43655
Recently, the B.C. Circuit determined
that EPA properly certified that its
revisions to the ozone and particulate
national ambient air quality standards
(NAAQS) would not have a significant
economic impact on a substantial
number of small entities. Under the
CAA, EPA must promulgate NAAQS
and State must then adopt State
Implementation Plans (SIPs) providing
for the implementation, maintenance
and enforcement of the standards. 42
U.S.C. § 7410(a)(l). The NAAQS
themselves impose no regulation upon
emission sources. Rather, the States
regulate sources of emissions through
the SIP. EPA may call for revisions to
SIPs if EPA finds that the SIP is
inadequate to meet the NAAQS or to
otherwise comply with the CAA. 42
U.S.C. § 7410(k)(5). Only if a State does
not submit a SIP that complies with
CAA requirements must EPA adopt an
implementation plan of its own.
The court held that EPA correctly
determined that the NAAQS will not
directly affect small entities because
EPA has no authority to impose any
burden upon such entities. The States
have broad discretion in determining
the manner in which they will achieve
compliance with the NAAQS. The court
concluded that the possible effects of
the NAAQS on small entities were no
different from the indirect effects on
wholesale customers not subject to
regulation in Mid-Tex. In the court's
view, because States must submit SIPs
that will achieve compliance with the
NAAQS does not render small entities
potentially regulated by the States
"subject" to the NAAQS for RFA
purposes. The court concluded that the
States" nearly complete discretion in
determining which entities would bear
the burden of achieving the NAAQS
made these entities not subject to
regulation by EPA. American Trucking
Associations v. EPA, 175 F. 3d 1027,
1044-45 (B.C. Cir. 1999).
More recently, the B.C. Circuit
determined that a CAA rule which
would require States to develop, adopt,
and submit revisions to SIPs to achieve
required reductions in air emissions
does not regulate small entities because
it leaves to the States the task of
determining how to obtain the
reductions, including which entities to
regulate. EPA does not tell States how
to achieve compliance with required air
quality levels. Rather, EPA merely
provides the levels to be achieved by
state-determined compliance
mechanisms. Under the CAA, States
retain the power to determine which
sources are burdened by regulation and
to what extent. The rule leaves the
control measures selection decision to
the States. The rule in question did not
directly regulate individual sources of
emissions and therefore would not
establish requirements applicable to
small entities. Therefore, the court
concluded that EPA properly certified
the rule under section 605 fb) of the'
RFA. State of Michigan v. EPA, 2000
WL 18.0650, p. 56 (B.C. Cir. Mar. 3;
2000).
In today's regulations, EPA is
adopting changes to its water quality
planning and management regulations
and the NPBES permitting program. In
the case of its planning and
management regulations, these
amendments modify requirements of
EPA's current TMBL program. The
second area addressed by these changes
is EPA's NPBES permitting program,
where EPA is adopting provisions '
which require EPA to step in and
reissue NPBES permits in authorized
States where the State has failed to take
certain actions required under the ;
regulations.
The Agency received numerous
comments asserting that today's rule
will have a direct, adverse impact on
small governments and small businesses
such as farmers and landowners, and
that EPA has not met the requirements
of the Regulatory Flexibility Act bepause
it did not prepare a regulatory flexibility
analysis. EPA disagrees with this
conclusion for the reasons explained in
sections 1 and 2 that follow. More '
detailed analysis is presented in the
economic assessment document.
1. Changes to the TMBL Program
The changes to EPA's listing and:
TMBL regulations do not directly
regulate individual dischargers and
therefore do not establish requirements
applicable to small entities. As such,
certification is proper.
Under section 303(c) of the CWA
water quality standards program, States,
Territories, and authorized Tribes must
adopt water quality standards for their
waters mat must be submitted to EPA
for approval. These State, Territorial, or
Tribal standards (or EPA-promulgated
standards in the absence of EPA-
apprc-ved State, Territorial, or Tribal
standards) are implemented through
various water quality control programs
including the NPBES program that
limits discharges to navigable waters in
compliance with an EPA permit or;
permit issued under an approved State
or Tribal NPBES program. The CWA
requires that all NPBES permits include
any limits on discharges that are ;
necessary to meet State or Tribal water
quality standards. A State or Tribe has
discretion in deciding how to achieve
compliance with its water quality
standards and in developing discharge
limits as needed to meet the standards.
For example, in circumstances where
there is more than one discharger to a
waterbody that is subject to a water
quality standard, a State or Tribe has
discretion in deciding which
dischargers will be subject to permit
discharge limits necessary to meet the
revised standards and whether and how
such limits will be distributed among
the discharges.
Section 303(d) of the CWA requires
States, Territories and authorized Tribes
(and, under certain circumstances, EPA)
to establish lists of waterbodies where
water quality does not meet applicable
State, Territorial or Tribal water quality
standards even after application of
technology-based effluent limitations on
point source dischargers. States,
Territories and authorized Tribes (and
EPA in some cases) must also develop
TMBLs for those waterbodies with
reference to criteria contained in those
water quality standards.
Today's final regulation amends
certain provisions of EPA's existing
water quality management and planning
regulations dealing with the listing of
impaired waters and TMBL
requirements. The regulation establishes
new requirements for the listing
program and requires schedules for
completing TMBLs. Further, the rule
establishes new requirements for the
content and development of TMBLs,
including development of an
implementation plan as a required
element of a TMBL, and also includes
new public participation elements. (See
Section II of the preamble for a full
discussion of these specific changes).
These new requirements allow States,
Territories and authorized Tribes to
tailor their water quality programs to
address the characteristics, problems,
risks and implementation tools available
in individual watersheds, with
meaningful involvement from
stakeholders in the local community, by
using a TMBL to align implementation
under current programs. These final
rules apply only to EPA, States,
Territories and authorized Tribes and do
not impose specific listing or TMBL
development requirements upon any
small entities. Under today's rule, EPA
is not requiring or ordering any group of
small businesses or government to
change their method of operation/
practices in any prescribed way.
Even if future listing or TMBL actions
ultimately may have some discernable
effect on small entities, such impacts
would actually arise from requirements
already established under section 303(d)
of the CWA and the States', Territories'
and authorized Tribes' water quality
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Federal Register/Vol. 65, No. 135/Thursday, July 13, 2000/Rules and Regulations
standards as described above, and not
directly from these final regulatory
amendments. Independent of today's
final amendments, States, Territories
and authorized Tribes (and, under
certain circumstances, EPA) already
have an obligation to list waterbodies
and to calculate and apportion TMDLs
and their component load and
wasteload allocations necessary to
Implement the State, Territorial, and
authorized Tribal water quality
standards. Today's final rule merely
amends EPA's existing regulations
implementing those statutory
requirements. Therefore, any potential
Impacts to small entities result from the
Independent statutory obligation to
establish TMDLs that implement the
State, Territorial and authorized Tribal
water quality standards, and not from
these final regulatory requirements.
Moreover, any potential future effect
on small entities that may result from
State, Territorial or Tribal action in
establishing TMDLs or changing current
TMDLs as a consequence of adoption of
today's regulation is not directly
attributable either to the new or even
existing TMDL rules. TMDLs are not
self-implementing. They require State,
Territorial and Tribal decision to
implement them. Under the GWA and
EPA's regulations, TMDL wasteload
allocation do not automatically translate
into NPDES permit limitations for point
sources nor do they necessarily apply
without modification to non-point
sources. State, Territorial and Tribal
authorities retain discretion in how they
apportion wasteload allocations. Under
EPA's NPDES permitting rules, effluent
limits in point source permits must be
''consistent with" (but not necessarily
identical to) wasteload allocations in
approved TMDLs. With respect to
nonpoint sources, the load allocations
Sn a TMDL are only "enforceable" to the
extent State, Territorial, or authorized
Tribes chose to bind themselves to these
allocation. A State, Territory, or EPA
decision to allocate load reductions to
nonpoint sources does not bring that
operator into a permit or regulatory
Erogram. Instead, implementation of the
jad allocation would be based on
current State and local mechanisms,
including implementation of State/local
nonpoint source programs, and other
voluntary and incentive-based actions.
There are no Federal requirements that
Such load allocations must be met by
small (or any other) entities.
2. Changes to the NPDES Permitting
Program
Today's final rule also amends the
NPDES program regulations to require
EPA, in certain circumstances, to
reissue state-issued permits that have
not been reissued following the
expiration of their 5-year term. Where
water quality standards (or applicable
effluent limitations guidelines) change
during a permit term, the permittee
generally is protected during the permit
term against new or more stringent
permit conditions necessary to
implement the new water quality
standards or effluent limitations
guidelines, until a new permit is issued.
In most cases, permittees submit timely
applications for renewal and permitting
authorities reissue these permits in a
timely manner. In some cases,
authorized States may not reissue
NPDES permits at the end of their 5-year
term as is currently required, and the
existing permits continue in effect
under general principles of
administrative law. (Administrative
continuance protects the permittee who
has submitted a timely application for
renewal from being penalized for
discharging without a permit.)
This final rule requires EPA to reissue
a State issued permit that has expired in
those cases where the State has not
reissued the permit within two years
from expiration. EPA's exercise of this
authority is limited to circumstances in
which a permit authorizes discharges to
impaired waterbodies or the permit does
not currently contain limits consistent
with an applicable waste load allocation
in an EPA approved or established
TMDL. In addition, where a State permit
has expired prior to the establishment of
the TMDL, the regulations require EPA
to exercise its authority to reissue the
permit within two years from the
establishment of the TMDL if the State
has not acted. While EPA expects that
authorized States will expeditiously
reissue permits after they have expired
with the required water quality-based
effluent limits (because CWA section
402 allows a maximum five year permit
term), where States do not reissue such
permits, EPA would use this new
authority to issue such permits in a
timely manner.
This provision also would not impose
any additional costs on dischargers,
including small entities. This is because
as a matter of law, the discharger's new
permit, when issued, already must
include any applicable new or more
stringent conditions. Therefore, the
effect of the change is, at most, to
accelerate the timing of reissuing
expired permits such that they contain
the legally-mandated new or more
stringent conditions. Consequently, EPA
has concluded that adoption of a rule to
authorize future action by EPA would
not result in the imposition of any new
costs on small entities.
B. Regulatory Planning and Review,
Executive Order 12866
Under Executive Order 12866 (58 FR
51735, October 4, 1993), EPA must
determine whether the regulatory action
is "significant" and therefore subject to
Office of Management and Budget
(OMB) review and the requirements of
the Executive Order. The Order defines
"significant regulatory action" as one
that is likely to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President's priorities, or the principles
set forth in the Executive Order.
Pursuant to the terms of Executive
Order 12866, it has been determined
that this rule is a "significant regulatory
action." As such, this action was
submitted to OMB for review. Changes
made in response to OMB suggestion or
recommendations will be documented
in the public record.
A detailed presentation and
discussion of the costs and impacts of
today's amendments to the TMDL and
NPDES programs, and the
methodologies used to assess them, are
included in the document "Analysis of
the Incremental Costs of Final Revisions
to the Water Quality Planning and
Management Regulation and the NPDES
Program Regulation", which is available
in the docket for the final rulemaking.
In addition, the Agency is preparing a
supplemental cost and benefit analysis
of the current TMDL program with
publication planned in the near future.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, Tribal
or local governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with "Federal Mandates" that may
result in expenditures to State, local,
and Tribal governments, in the
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43657
aggregate, or to the private sector, of
$100 million or more in any one year.
Before promulgating an EPA rule for
which a written statement is needed,
section 205 of the UMRA generally
requires EPA to identify and consider a
reasonable number of regulatory
alternatives and adopt the least costly,
most cost-effective or least burdensome
alternative that achieves the objectives
of the rule. The provisions of section
205 do not apply when they are
inconsistent with applicable law.
Moreover, section 205 allows EPA to
adopt an alternative other than the least
costly, most cost-effective or least
burdensome alternative if the
Administrator publishes with the final
rule an explanation why that alternative
was not adopted. Before EPA establishes
any regulatory requirements that may
significantly or uniquely affect small
governments, including Tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements.
EPA has determined that today's rule
contains no Federal mandates (as
defined by the regulatory provisions of
Title II of the UMRA) for State, local, or
Tribal governments or the private sector.
The rule does not impose enforceable
duties on any State, local or Tribal
government or the private sector. If a
State, territory or authorized tribe
chooses not to implement this
regulation, in whole or in part, EPA
cannot compel or enforce compliance.
Rather, EPA must undertake the actions
the State, Territory, or authorized tribe
has declined to implement.
As described in detail previously, the
total incremental cost associated with
today's rule is not expected to exceed
$22.88 million in any one year, and
therefor does not exceed the $100
million threshold of UMRA. Thus,
today's rule is not subject to the
requirements of sections 202 and 205 of
UMRA.
EPA has determined that this final
rule contains no regulatory
requirements that might significantly or
uniquely affect small governments,
including Tribal governments. The
requirements in today's rule relating to
identification of impaired waters and
establishment of TMDLs apply directly
only to States, Territories and
authorized Tribes. They do not apply to
small governments of cities, counties or
towns. Such entities are not required by
today's rule to establish lists of impaired
waters or TMDLs. Thus, the
requirements of today's rule do not
significantly or uniquely affect them in
any direct way. To the extent that such
small governments might in some
indirect way be affected by a State's
application of these regulations (e.g., its
identification of a particular waterbody
on a section 303(d) list, or its
establishment of a TMDL for a particular
waterbody with wasteload allocations
that contemplate permit reductions for a
particular small government's waste
treatment plant), such indirect effects
are not significant or unique to small
governments. They are not unique
because they might be felt by any entity
covered by a wasteload or load
allocation in a given TMDL.
Today's rule will not significantly or
uniquely affect Tribal governments. As
explained earlier in this preamble, the
Clean Water Act authorizes EPA to treat
an Indian Tribe in the same manner as
a State for purposes of establishing lists
of waters and TMDLs, and EPA today is
clarifying the test an Indian Tribe must
meet to be authorized to establish lists
of impaired waters and TMDLs.
Currently, there are no Tribes ;
authorized to establish TMDLs under
section 303(d). Further, there are only
fifteen Tribes with EPA approved or
promulgated water quality standards. In
addition, there are no Tribes authorized
to administer the NPDES program.
Consequently, this final rule will not
significantly or uniquely affect Tribal
governments. However, as Tribes
continue to build their Clean Water Act
capacity and establish water quality
programs, more Tribes are likely to
adopt water quality standards and seek
approval to administer the NPDES
program and establish TMDLs. '
Therefore, EPA included a Tribal
representative on the TMDL FACA
Committee that developed a set of
recommendations that served as the
framework for EPA in developing the
TMDL proposal. The Committee's final
report addressed Tribal issues, and
recommended that EPA increase efforts
to educa.te Tribes about water quality
programs, including TMDLs, and ensure
that EPA and State water quality staff
respect the government-to-government
relationship with Tribes in all TMDL
activities. Additionally, once this rule is
in effect, EPA will participate in Tribal
conferences and workshops to inform
and educate Tribal participants about
the TMDL program and offer braining to
Tribes interested in administering the
TMDL program on how to comply with
the requirements of this rule.
D. Paperwork Reduction Act
The Office of Management and Budget
(OMB) has approved the information
collection requirements contained in
part 130 of this rule under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. and has
assigned OMB control number 2040-
0071.
The requirements of part 130 guide
how States and Territories (there are no
currently authorized Tribes) identify
and rank waterbodies which do not
attain and maintain water quality
standards following implementation of
technology-based controls and establish
TMDLs for those waterbodies that do
not meet standards as a result of
pollutant discharges. These activities
are required by section 303 (d) of the
CWA. EPA also uses the information
submitted under section 303(d) to
review the section 303(d) lists submitted
to review whether they comply with the
requirements of the statute and EPA's
regulations and reflect an accurate
accounting of waterbodies not meeting
water quality standards after the
application of technology-based
controls. Also as required by section
303(d), EPA reviews TMDLs developed
and submitted by the States and
Territories to determine their technical
sufficiency and whether they otherwise
comply with the requirements of section
303(d) and the EPA regulations.
Information collected through the
proposed activities is not confidential
because all respondents are State and
Territorial agencies working entirely in
a public forum.
The revisions to part 130 increase the
burden to States and Territories for four
activities related to preparation of the
section 303(d) lists: revising the listing
methodology, establishing schedules for
TMDL development, increased public
participation, and providing the listing
methodology in a new format. The
revisions also increase the burden for
two activities related to establishing
TMDLs: developing the implementation
plans and writing responses to public
comments. EPA's currently approved
ICR for the period March 1999 through
April 2003 was based on the burden to
respondents of the current program and
did not include consideration of the
impact of the proposed regulations. The
revised ICR include the increased
section 303(d) listing burden to States
and Territories that would result under
the proposed regulations in the first
three years following the effective date
of the regulation.
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The average additional burden
associated with the revised 303(d) rule
requirements is estimated to be 6,497
hours per respondent, and the total
annual burden for all 56 respondents is
estimated to be 363,845 hours. The
information for lists of impaired
waterbodies and the methodologies to
develop those lists is required every
four years. TMDLs are required
consistent with schedules that are
developed by States and Territories as
part of the lists. The average additional
cost associated with the revised 303(d)
rule requirements is estimated to be
$252,676 per respondent, and the total
annual cost for all 56 respondents is
estimated to be $14,149,932. This
estimate is entirely labor costs, and thus
does not include a total capital and
start-up cost component annualized
over its expected useful life, a total
operation and maintenance component,
or a purchase of services component.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a
Federal agency. This includes the time
needed to review instructions; develop,
acquire, install, and utilize technology
and systems for the purposes of
collecting, validating, and verifying
information, processing and
maintaining information, and disclosing
and providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information.
An Agency may not conduct or
sponsor, and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA's regulations are listed
in 40 CFR part 9 and 48 CFR Chapter
15. EPA is amending the table in 40 CFR
part 9 of currently approved ICR control
numbers issued by OMB for various
regulations to list the information
requirements contained in this rule.
E, Federalism, Executive Order 13132
Executive Order 13132, entitled
"Federalism" (64 FR 43255, August 10,
1999) requires EPA to develop an
accountable process to ensure
"meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications," "Policies that have
federalism implications" is defined in
the Executive Order to include
regulations that have "substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government."
Under section 6 of Executive Order
13132, EPA may not issue a regulation
that has federalism implications, that
imposes substantial direct compliance
costs, and that is not required by statute,
unless the federal government provides
the funds necessary to pay the direct
compliance costs incurred by State and
local governments, or EPA consults with
State and local officials early in the
process of developing the proposed
regulation. EPA also may not issue a
regulation that has federalism
implications and that preempts State
law, unless EPA consults with State and
local officials early in the process of
developing the proposed regulation.
EPA received numerous comments
asserting that today's rule does have
federalism impacts and that the Agency
had not met the requirements specified
under E.0.13132. Some commenters
stated that EPA has no statutory or
regulatory authority to require States to
develop implementation plans as one of
the required elements of TMDLs, and
that such a requirement does
substantially alter the relationship
between EPA and the States in the
TMDL Program. Other commenters
believed that EPA did not work closely
enough with the States or enable them
to provide input on the rule. EPA also
received comments claiming that the
Agency's part 122 provisions enabling
EPA to reissue State-issued expired and
administratively-continued permits
represents a significant intrusion into
the functioning of State authorities and
a substantial revision of existing
relationships. Others stated that the
NPDES provisions would lead to a shift
in the traditional relationship between
States and the federal government
beyond what was intended by Congress
in the Clean Water Act. EPA disagrees
with these comments that today's rule
has federalism implications, for the
reasons described below.
Today's final rule amends the existing
TMDL rule to clarify how impaired
waters are identified and how TMDLs
are established so that they can more
effectively contribute to improving the
nation's water quality. The regulation
establishes new requirements for the
content and format of the lists and the
methodology for developing lists. It also
establishes new requirements for the
content and development of TMDLs,
including development of an
implementation plan as a required
element of a TMDL and new public
participation elements. These new
requirements continue to allow the
States, Territories and authorized Tribes
to better tailor their water quality
programs to address the characteristics,
problems, risks and implementation
tools available in individual watersheds,
with meaningful involvement from
stakeholders in the local community.
Under 'this new rule, States continue to
have primary responsibility for
identifying impaired waters, setting
priorities, and developing TMDLs.
EPA's role continues to be one of
reviewing State actions and exercising
its authority to identify waters and
develop TMDLs only in the face of
inadequate State action or in unique
circumstances where there are interstate
waters or Federal water quality
standards.
As explained previously in the
preamble, EPA has estimated that the
total incremental costs to the States
associated with parts 130 and 123 of the
rule, are estimated to be $22.88 million
per year, with no direct costs being
incurred by local governments.
After careful consideration, EPA does
not believe that this final rule has
federalism implications within the
meaning of the Executive Order.
However, EPA places great value on the
views of state, local, and tribal
governments, and in the spirit of the
Executive Order undertook a
consultation process along the lines
specified in the Executive Order. EPA
initiated or participated in many
meetings, teleconferences and
exchanges or correspondence with state,
local, and tribal governments. Hundreds
of hours of in-depth discussions with
state, tribal and local officials and
organizations representing them
preceded and followed the August
proposals. Prior to the proposal, EPA
convened a Federal Advisory
Committee to make recommendations
for improving the efficiency and
effectiveness of TMDLs. The TMDL
FACA Committee was comprised of 20
members, including four senior level
State officials, an elected local official,
and a Tribal consortium representative.
Over a period of one and one-half years,
the TMDL FACA Committee held six
meetings at locations throughout the
country. These meetings were open to
the general public, as well as
representatives of State, local, and
Tribal governments, and all included
public comment sessions. The TMDL
FACA Committee focused its
deliberations on four broad issue areas:
identification and listing of waterbodies;
development and approval of TMDLs;
EPA management and oversight; and
science and tools. On July 28,1998, the
TMDL FACA Committee submitted its
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43659
final report to EPA containing more
than 160 recommendation (100 of them
were consensus recommendations)
advocating changes and improvements
to the existing TMDL rules. EPA notes
that the one local elected official did file
a minority report taking exception with
major portions of the Report. As
explained throughout this preamble,
EPA carefully reviewed the TMDL
FACA Committee's recommendations
and incorporated, in whole or in part,
most of the majority recommendations
in this proposal.
Following completion of the FACA
Committee process, EPA continued to
meet with State and local government
officials to seek their views on needed
changes to the TMDL regulations and
the NPDES regulations in support of
TMDLs. Following the proposal, the
Agency sponsored and participated in
six public meetings nationwide, to
better inform the public on what was
included in the proposed rules, and to
get informal feedback from the general
public. These meetings took place in
Denver, CO; Atlanta, GA; Kansas City,
MO; Seattle, WA; Manchester, NH; and
Los Angeles, CA. In addition, EPA has
participated in numerous other
meetings, conferences and public fora to
discuss the proposed rule and listen to
alternative approaches to achieving the
nation's clean water goals. The Agency
has had an ongoing dialogue with State
and local officials and their national/
regional organizations throughout the
development of this rule. In particular,
EPA has met with organizations
representing State and local elected
officials including: National Governors'
Association, Western Governors'
Association, Conference of State
Legislatures, National Association of
Counties, National League of Cities, and
EPA's Local Government Advisory
Committee. EPA also participated in
numerous Congressional briefings and
hearings on the proposed rule. There
were numerous meetings with members
and staff of organizations representing
appointed officials of state government
who play key roles in implementing the
Clean Water Act, including the
Environmental Commission of the
States, the Association of State and
Interstate Water Pollution Control
Administrators, the Coastal States
Organization, and International City
Managers Association.
While expressing support for many of
the final changes being considered by
EPA, State officials and their
representatives also expressed concerns
about the capacity of State governments
to carry out the new requirements in
today's final rule. In particular, States
were concerned about the capacity of
the State governments to carry out any
new requirements beyond those in the
current regulations. Local government
officials expressed concerns in
particular about any TMDL allocation
approaches that could in their view,
result in municipal point sources having
to bear an inequitable share of the
pollutant load reductions need to attain
water quality standards. Both levels of
government were concerned that, by
including the requirement for an
implementation plan, EPA was directing
specific activities that States and local
governments must use to implement
TMDLs. The final rule does not direct
specific activities that State and local
governments must use to implement
TMDLs. In developing implementation
plans State and local governments are
accorded significant flexibility to choose
which management measures and other
activities whey will undertake to
implement the load and wasteload
allocations in a TMDL. In developing
today's rule, EPA considered the
concerns of State, local and Tribal
governments and determined the need
to revise the TMDL regulations to
provide States, Territories and Tribes
with clear, consistent, and balanced
direction for listing waters and
developing TMDLs and thereby improve
the effectiveness, efficiency and pace of
TMDL establishment and water quality
improvement.
States were also concerned about the
role of EPA in reissuing State-issued
expired and administratively-continued
NPDES permits. EPA determined thfit
the exercise of its authority in limited
circumstances is necessary to assure
reasonable further progress in impaired
waterbodies prior to the establishment
of a TMDL and to provide reasonable
assurance that TMDLs will be
implemented. In developing today's.
final rule, EPA considered the concerns
of State and local governments and
determined the need to revise the
NPDES and Water Quality Standards
regulations to provide opportunities for
further progress toward meeting water
quality standards in impaired
waterbodies and to provide reasonable
assurance of effective TMDL
development. Today's rule improves the
effectiveness, efficiency and pace of
water quality improvement and TMDL
establishment.
F. Executive Order 13084: Consultation
and Coordination With Indian Tribal
Governments
Under Executive Order 13084, EPA
may not issue a regulation that is not
required by statute, that significantly or
uniquely affects the communities of
Indian tribal governments, and that
imposes substantial direct compliance
costs on those communities, unless the
Federal government provides the funds
necessary to pay the direct compliance
costs incurred by the tribal
governments, or EPA consults with
these governments. If EPA complies by
consulting, Executive Order 13084
requires EPA to provide to OMB, in a
separately identified section of the
preamble to the rule, a description of
the extent of EPA's prior consultation
with representatives of affected tribal
governments, a summary of the nature
of their concerns, and a statement
supporting the need to issue the
regulation. In addition, Executive Order
13084 requires EPA to develop an
effective process permitting elected and
other representatives of Indian tribal
governments "to provide meaningful
and timely input in the development of
regulatory policies on matters that
significantly or uniquely affect their
communities."
As explained above in the discussion
of UMRA requirements, today's rule
does not significantly or uniquely affect
the communities of Indian tribal
governments. In addition, today's rule
does not impose any direct compliance
costs on Tribes. There are no currently
authorized tribal section 303(d)
programs; therefore there are no current
costs. To the extent that a Tribe decides
to apply for section 303(d)
authorization, EPA expects that the
Tribe will consider the costs in its
decisions to apply. Since Tribal
assumption of section 303(d) programs
is voluntary, the costs of the program
are voluntarily assumed. Accordingly,
the requirements of section 3(b) of
Executive Order 13084 do not apply to
this rule. Nonetheless, as stated in the
discussion of UMRA, EPA intends to
comply with the requirements of section
203 once the rule goes into effect by
participating in Tribal conferences and
workshops to inform and educate Tribal
participants about the TMDL program
and offer training to Tribes interested in
administering the TMDL program on
how to comply with the requirements of
this rule.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
Executive Order 13045 (62 Fed. Reg.
19885, April 23, 1997) applies to any
rule that: (1) Is determined to be
"economically significant" as defined
under Executive Order 12866, and (2)
concerns an environmental health or
safety risk that EPA has reason to
believe may have a disproportionate
effect on children. If the regulatory
action meets both criteria, the EPA must
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evaluate the environmental health or
safety effects of the planned rule on
children, and explain why the planned
regulation is preferable to other
potentially effective and reasonably
feasible alternatives considered by EPA.
This final rule is not subject to
Executive Order 13045 because it is not
"economically significant" as defined
under Executive Order 12866. Further,
it does not concern an environmental
health or safety risk that EPA has reason
to believe may have disappropriate
effect on children.
H, National Technology Transfer and
Advancement Act
As noted in the proposed rule,
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 ("NTTAA"), Pub L. No.
104-113, § 12{d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
With applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standards
bodies. The NTTAA directs EPA to
provide Congress, through OMB,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards. This
final rulemaking does not involve
technical standards. Therefore, EPA did
not consider the use of any voluntary
consensus standards.
L Congressional Review Act
Under the Congressional Review Act,
a rule is "major" if the Administrator of
the Office of Information and Regulatory
Affairs (OIRA) finds that it is likely to
result in: an annual effect on the
economy of $100 million or more; a
major increase in costs or prices for
consumers, individual industries,
Federal, State, or local government
agencies, or geographic regions; or
significant adverse effects on
competition, employment, productivity,
innovation, or on the ability of United
States-based enterprises to compete
with foreign-based enterprises hi
domestic and expert markets. The OIRA
Administrator finds that this rule is
major because it will impose a major
increase in costs on State and local
government agencies.
/. H.R. 4425 and Implementation of this
Rulemaking
Pending for the President's signature
is an enrolled bill, H.R. 4425, which
among other provisions includes the
following, hereafter referred to as the
"TMDL rider.
None of the funds made available for fiscal
years 2000 and 2001 for the Environmental
Protection Agency may be used to make a
final determination on or implement any new
rule relative to the Proposed Revisions to the
National Pollutant Discharge Elimination
System Program and Federal Antidegradation
Policy and the Proposed Revisions to the
Water Quality Planning and Management
Regulations Concerning Total Maximum
Daily Load, published in the Federal Register
on August 23,1999.
EPA is carefully evaluating this
provision, with the assistance of the
Office of Legal Counsel, Department of
Justice. There is virtually no legislative
history which accompanies this
provision. The Statement of Managers in
the Conference Report simply repeats
the bill language with the statement that
the provision was added.
H.R. 4425 is an appropriations bill,
and if it becomes law, it will remain in
effect until October 1, 2001, at which
time barring other action by Congress
this rule would be allowed to be
implemented. The TMDL rider in HR
4425 could also be repealed prior to that
time. To accommodate this uncertainty,
the final rule has an effective date of 30
days after Congress allows the rule to be
implemented, which will be more than
30 days after the rule is published in the
Federal Register. In this way, the
effective date of today's rule will
comply with section 553(d) of the
Administrative Procedure Act, the
Congressional Review Act requirements
for major rules, and HR 4425. In the
time period before Congress allows EPA
to implement this regulation, the pre-
existing regulations will remain in place
and EPA will continue to implement
those regulations.
Most of the unique elements of the
new rules are scheduled to be phased in
after October 1, 2001, such as new
listing requirements in 2002, and new
elements of TMDLs 18 months after
publication of the rule. The only
requirement of the new rule that would
normally come into effect prior to
October 1, 2001, is the requirement for
providing the listing methodology to
EPA by May 1, 2001. If the rider is in
effect on that date, the rule is not
effective and States, Territories, and
authorized Tribe are not required to
provide the methodology by that date.
For this reason, if the rider is in effect
at that time and the rule is not effective,
the final rule requires States, Territories,
and authorized Tribes to provide EPA at
the time of submission of their year
2002 lists a description of the
methodology used to develop their 2002
lists and a description of the data and
information used to identify waters
(including a description of the existing
and readily available data and
information used by the State, Territory,
and authorized Tribe). These are the
requirements of § 130.7(b), which is the
listing requirement of the rules in effect
prior to today's rule.
ha addition, today's rule adjusts the
date on which States, Territories, and
authorized Tribes must comply with the
new TMDL requirements. That date is
either 18 months after the date of
publication in the Federal Register, or
nine months after effective date of the
rule, which ever occurs later. This
approach reflects a balance between
providing sufficient time for States,
Territories, and authorized Tribes to
revise their procedures consistent with
the new TMDL requirements and
implementing the new requirements as
quickly as practicable. As discussed
previously in today's preamble, EPA
believes 18 months provides States,
Territories, and authorized Tribes
sufficient time to complete TMDLs
underway at the time today's rule is
published. Also, States, Territories, and
authorized Tribes will have sufficient
notice of Congress' action, and thus will
have sufficient time to complete TMDLs
currently underway.
List of Subjects
40 CFR Part 9
Reporting and recordkeeping
requirements.
40 CFR Part 122
Environmental protection,
Administrative practice and procedure,
Confidential business information,
Hazardous substances, Reporting and
recordkeeping requirements, Water
pollution control.
40 CFR Part 123
Environmental protection,
Administrative practice and procedure,
Confidential business information,
Hazardous substances, Indians-lands,
Intergovernmental relations, Penalties,
Reporting and recordkeeping
requirements, Water pollution control.
40 CFR Part 124
Environmental protection,
Administrative practice and procedure,
Hazardous substances, Indians-lands,
Reporting and recordkeeping
requirements, Water pollution control,
Water supply.
40 CFR Part 130
Environmental protection,
Intergovernmental relations, Reporting
and recordkeeping requirements, Water
pollution control.
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43661
Dated: July 11, 2000.
Carol Browner,
Administrator.
For the reasons set forth in the
preamble, EPA amends 40 CFR parts 9,
122, 123, 124, and 130 as follows:
PART 9—OMB APPROVALS UNDER
THE PAPERWORK REDUCTION ACT
1. The authority citation for part 9
continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y;
15 U.S.C. 2001, 2003, 2005, 2006, 2601-2671;
21 U.S.C. 331J, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311,1313d, 1314, 1318,
1321,1326,1330,1342,1344,1345 (d) and
(e), 1361; E.O. 11735, 38 FR 21243, 3 CFR,
1971-1975 Comp. p. 973; 42 U.S.C. 241,
242b, 243, 246, 300f, 300g, 300g-l, 300g-2,
300g-3, 300g-4, 300g-5, 300g-6, 300J-1,
300J-2, 300J-3, 300J-4, 300J-9, 1857 et seq.,
6901-6992k, 7401-7671q, 7542, 9601-9657,
11023, 11048.
2. In § 9.1, amend the table by
removing the entries "130.6-130.10"
and "130.15", and adding new entries
in numerical order under the indicated
heading to read as follows:
§9.1 OMB approvals under the Paperwork
Reduction Act.
40 CFR citation
OMB con-
trol No.
Water Quality Planning and Management
130.7 2040-0071
130.11 2040-0071
130.20-130.37 2040-0071
130.51 2040-0071
130.60-130.61 2040-0071
130.64 2040-0071
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS: THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for part 122
continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C.
1251 et seq.
2. Amend § 122.44 to revise
paragraphs (d) introductory text and
(d)(l) introductory text to read as
follows:
§122.44 Establishing limitations,
standards, and other permit conditions
(applicable to State NPDES programs, see
§123.25).
*****
(d) Water quality standards and State
requirements: any requirements in
addition to or more stringent than
promulgated effluent limitations
guidelines or standards under sections
301, 304, 306, 307, 318 and 405 of GWA
necessary to:
(1) Achieve water quality standards
established under section 303 of the
CWA, including State narrative criteria
for water quality and State
antidegradation provisions.
PART 123—STATE PROGRAM
REQUIREMENTS
1. The authority citation for part 123
continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C.
1251 et seq.
2. Amend § 123.44 to add paragraph
(k) to read as follows: ''
§ 123.44 EPA review of and objections to
State permits.
*****
(k)(l) Where a State fails to submit a
new draft or proposed permit to EPA
within 90 days after the expiration pf
the existing permit, EPA may review the
administratively-continued permit,
using the procedure described in ;
paragraphs (a)(l) through (h)(3) of this
section, if:
(i) The administratively-continued
permit allows the discharge of
pollutant(s) into a waterbody for which
EPA has established or approved a :
TMDL and the permit is not consistent
with an applicable wasteload allocation;
or
(ii) The administratively-continued
permit allows the discharge of a
pollutants) of concern into a waterbody
that does not attain and maintain water
quality standards and for which EPA
has not established or approved a
TMDL.
(2) To review an expired and
administratively-continued permit,
under this paragraph (k) EPA must give
the State and the discharger at least 90
days written notice of its intent to
consider the expired permit as a ;
proposed permit. At any time beginning
90 days after permit expiration, EPA
may submit this notice.
(3) If the State submits a draft or
proposed permit for EPA review at any
time before EPA issues the permit under
paragraph (h) of this section, EPA will
withdraw its notice of intent to take
permit authority under this paragraph
(k) and will evaluate the draft or ;
proposed permit under this section
PART 124—PROCEDURES FOR
DECISIONMAKING
1. The authority citation for part 124
continues to read as follows:
Authority: Resource Conservation and
Recovery Act, 42 U.S.C. 6901 et seq.; Safe
Drinking Water Act, 42 U.S.C. 300f et seq.;
Clean Water Act, 33 U.S.C. 1251 et seq.;
Clean Air Act, 42 U.S.C. 7401 et seq.
2. Revise § 124.7 to read as follows:
§124.7 Statement of basis.
(a) EPA shall prepare a statement of
basis for every draft permit for which a
fact sheet under § 124.8 is not prepared.
The statement of basis shall briefly
describe the derivation of the conditions
of the draft permit and the reasons for
them or, in the case of notices of intent
to deny or terminate, reasons supporting
the tentative decision. In particular, the
statement of basis shall include:
(1) In cases where a TMDL has not
been established for an impaired
waterbody, an explanation of how
permit limits and/or conditions were
derived for all pollutants in the
discharger's effluent for which the
waterbody is impaired; and
(2) In cases where a TMDL has been
established for an impaired waterbody,
any TMDL that has been established for
a pollutant contained in the discharger's
effluent; the applicable wasteload
allocation derived for the pollutant in
the TMDL for that discharger; and an
explanation of how permit limits for the
pollutant of concern were derived as
well as how those limits are consistent
with the applicable wasteload
allocation.
(b) The statement of basis shall be
sent to the applicant and, on request, to
any other person.
3. Amend § 124.8 by adding
paragraphs (b)(4)(i) and (b)(4)(ii) to read
as follows:
§124.8 Fact sheet.
*****
(b)* * *
(4)* * *
(i) hi cases where a TMDL has not
been established for an impaired
waterbody, an explanation of how
permit limits and/or conditions were
derived for all pollutants in the
discharger's effluent for which the
waterbody is impaired; and
(ii) In cases where a TMDL has been
established for an impaired waterbody,
any TMDL that has been established for
a pollutant contained in the discharger's
effluent; the applicable wasteload
allocation derived for the pollutant in
the TMDL for that discharger; and an
explanation of how permit limits for the
pollutant of concern were derived as
well as how those limits are consistent
with the applicable wasteload
allocation.
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PART 130—WATER QUALITY
PLANNING AND MANAGEMENT
1. The authority citation for part 130
continues to read as follows:
Authority: 33 U.S.C. 1251 at seq.
2. Redesignate §§ 130.4 through 130.6,
and 130.8 through 130.15 as follows:
§§130.4 through 130.15 [Redesignated]
Old section
New section
130.4
130.5
130.6
130.8
130.9
130.10
130.1 1
130.12
130.15
130.10
130.50
130.51
130 11
130.60
130.61
130.62
130.63
13064
§ 130.3 [Removed]
3. Section 130.3 is removed.
§§130.0 through 130.2 and §130.7
[Redesignated as Subpart A]
4. Sections 130.0 through 130.2 and
130.7 are designated as Subpart A and
a subpart heading is added to read as
follows:
Subpart A—Summary, Purpose and
Definitions
§§130.10 and 130.11 [Redesignated as
Subpart B]
5. Sections 130.10 and 130.11 are
designated as Subpart B and a subpart
heading is added to read as follows:
Subpart B—Water Quality Monitoring
and Reporting
§§130.50 and 130.51 [Redesignated as
Subpart D]
6. Sections 130.50 and 130.51 are
designated as Subpart D and a subpart
heading is added to read as follows:
Subpart D—Water Quality Planning
and Implementation
ii
|§ 130.60 through 130.64 [Redesignated as
Subpart E]
7. Sections 130.60 through 130.64 are
designated as Subpart E and a subpart
heading is added to read as follows:
Subpart E—Miscellaneous Provisions
8, Amend § 130.1 to revise paragraph
(a) as follows:
§130.1 Applicability.
(a) This part applies to all State,
eligible Indian Tribe, interstate,
aroawide and regional and local CWA
water quality planning and management
activities undertaken on or after
February 11,1985 including all updates
and continuing certifications for
approved Water Quality Management
plans developed under sections 208 and
303 of the Act.
*****
9. Amend § 130.2 to revise paragraphs
(c) (d), (e), (f), (g), (h), (i), (j), and (m),
and add paragraphs (o), (p), (q), and (r)
as follows:
§130.2 Definitions.
*****
(c) Pollution. The man-made or man-
induced alteration of the chemical,
physical, biological, and radiological
integrity of water. (See Clean Water Act
section 502(19].)
(d) Pollutant. Dredged spoil, solid
waste, incinerator residue, sewage,
garbage, sewage sludge, munitions,
chemical wastes, biological materials,
radioactive materials (except those
regulated under Atomic Energy Act of
1954, as amended (42 U.S.C. 2011 et
seq.)), heat, wrecked or discarded
equipment, rock, sand, cellar dirt, and
industrial, municipal, and agricultural
waste discharged into water. This term
does not mean: "sewage from vessels"
within the meaning of section 312 of the
Clean Water Act; or water, gas, or other
material that is injected into a well to
facilitate production of oil or gas, or
water derived in association with oil or
gas production and disposed of in a
well, if the well used either to facilitate
production or for disposal purposes is
approved by authority of the State in
which the well is located, and if the
State determines that such injection or
disposal will not result in the
degradation of ground or surface water
resources. (See Clean Water Act section
502(6).)
(e) Load or loading. An amount of
matter or thermal energy that is
introduced into a receiving water; to
introduce matter or thermal energy into
a receiving water. Loading of pollutants
may be either man-caused or natural
(natural background loading).
(f) Load allocation. The portion of a
TMDL's pollutant load allocated to a
nonpoint source, storm water source for
which a National Pollutant Discharge
Elimination System (NPDES) permit is
not required, atmospheric deposition,
ground water, or background source of
pollutants.
(g) Wasteload allocation. The portion
of a TMDL's pollutant load allocated to
a point source of a pollutant for which
an NPDES permit is required. For
waterbodies impaired by both point and
nonpoint sources, wasteload allocations
may reflect anticipated or expected
reductions of pollutants from other
sources if those anticipated or expected
reductions are supported by reasonable
assurance that they will occur.
(h) Total maximum daily load
(TMDL). A TMDL is a written,
quantitative plan and analysis for
attaining and maintaining water quality
standards in all seasons for a specific
waterbody and pollutant. TMDLs may
be established on a coordinated basis for
a group of waterbodies in a watershed.
TMDLs must be established for
waterbodies on Part 1 of the list of
impaired waterbodies and must include
the following eleven elements:
(1) The name and geographic location
of the impaired waterbody;
(2) Identification of the pollutant and
the applicable water quality standard;
(3) Quantification ot the pollutant
load that may be present in the
waterbody and still ensure attainment
and maintenance of water quality
standards;
(4) Quantification of the amount or
degree by which the current pollutant
load in the waterbody, including the
pollutant load from upstream sources
that is being accounted for as
background loading, deviates from the
pollutant load needed to attain and
maintain water quality standards;
(5) Identification ofsource categories,
source subcategories or individual
sources of the pollutant;
n T*T .1 •*•! It . •
Wasteload allocations;
Load allocations;
A margin of safety;
Consideration of seasonal
variations;
(10) Allowance for reasonably
foreseeable increases in pollutant loads
including future growth; and
(11) An implementation plan.
(i) Total Maximum Daily Thermal
Load (TMDTL). A TMDTL is a TMDL for
impaired waterbodies receiving a
thermal discharge.
(j) Impaired waterbody. Any
waterbody of the United States that does
not attain and maintain water quality
standards (as defined in 40 CFR Part
131) throughout the waterbody due to
an individual pollutant, multiple
pollutants, or other causes of pollution,
including any waterbody for which
biological information indicates that it
does not attain and maintain water
quality standards. Where a waterbody
receives a thermal discharge from one or
more point sources, impaired means
that the waterbody does not have or
maintain a balanced indigenous
population of shellfish, fish, and
wildlife.
*****
(m) Management measures. Best
practical and economically achievable
measures to control the addition of
pollutants to waters of the United States
through the application of nonpoint
pollution control practices,
technologies, processes, siting criteria,
operating methods, best management
practices, or other alternatives.
*****
(o) Thermal discharge. The discharge
of the pollutant heat from a point source
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43663
that is required to have an NPDES
permit.
(p) Reasonable assurance. Reasonable
assurance means a demonstration that
TMDLs will be implemented through
regulatory or voluntary actions,
including management measures or
other controls, by Federal, State or local
governments, authorized Tribes, or
individuals.
(1) For point sources regulated under
section 402 of the Clean Water Act, the
demonstration of reasonable assurance
must identify procedures that ensure
that NPDES permits will be issued,
reissued, or revised as expeditiously as
practicable to implement applicable
TMDL wasteload allocations for point
sources.
(2) For nonpoint sources, storm water
sources for which an NPDES permit is
not required, atmospheric deposition,
ground water or background sources of
a pollutant, the demonstration of
reasonable assurance must show that
management measures or other control
actions to implement the load
allocations contained in each TMDL
meet the following four-part test: they
specifically apply to the pollutant(s) and
the waterbody for which the TMDL is
being established; they will be
implemented as expeditiously as
practicable; they will be accomplished
through reliable and effective delivery
mechanisms; and they will be supported
by adequate water quality funding.
(i) Adequate water quality funding
means that the State, Territory, or
authorized Tribe has allocated existing
water quality funds from any source to
the implementation of the TMDL load
allocations to the fullest extent
practicable and in a manner consistent
with the effective operation of its clean
water program. In the event that existing
funding is not adequate to fully
implement the TMDL load allocations,
you may satisfy the funding requirement
of reasonable assurance by including an
explanation of when adequate funds
will become available and the schedule
by which these funds will be used to
implement the TMDL load allocations.
When EPA establishes a TMDL, EPA
must show there is adequate funding. It
may do so by conditioning Clean Water
Act grants to the fullest extent
practicable and in a manner consistent
with effective operation of other Clean
Water Act programs.
(ii) Voluntary and incentive-based
actions, or existing programs,
procedures or authorities are acceptable
means of demonstrating reasonable
assurance if they satisfy the four-part
test. Examples of voluntary and
incentive-based actions include: State,
Territorial, or authorized Tribal
programs to audit implementation of
agricultural or forestry best management
practices; memoranda of understanding
between States, Territories, authorized
Tribes, and organizations representing
categories, subcategories, or individual
sources; or State-, Territory-, or
authorized Tribe-approved programs for
categories, subcategories or individual
sources to ensure effectiveness of best
management practices.
(iii) Examples of existing programs,
procedures or authorities that may be
reliable delivery mechanisms include
State, Territorial, and authorized Tribal
programs approved by EPA under
section 319 of the Clean Water Act;
participation in existing United States
Department of Agriculture conservation
or water quality protection programs;
participation in existing programs under
the Coastal Zone Act Reauthorization
Amendments; regulations; local
ordinances; performance bonds;
contracts; cost-share agreements;
memoranda of understanding; site- '
specific or watershed-specific voluntary
actions; and compliance audits of best
management practices.
(q) Waterbody. A geographically
defined portion of navigable waters,
waters of the contiguous zone, and
ocean waters under the jurisdiction of
the United States, made up of one or
more of the segments of rivers, streams,
lakes, wetlands, coastal waters and
ocean waters. Identifications of
waterbodf.es should be consistent with
the way in which segments are
described in State, Territorial, or :
authorized Tribal water quality
standards.
(r) List of Impaired Waterbodies or
"List." The list of all impaired
waterbodies submitted by a State,
Territory, or authorized Tribe. This list
consists of Parts 1, 2, 3, and 4 described
in § 130.27 and the prioritized schedule
described in § 130.28. Part 1 of the list
consists of the identification of the
waterbodies for which TMDLs must be
established and a prioritized schedule
for establishing TMDLs. .
10. Revise § 130.7 as follows:
§ 130.7 Total maximum daily loads (TMDL)
and individual water quality-based effluent
limitations. '.
(a)-(b) [Reserved]
(c) Development of TMDLs and
individual water quality based effluent
limitations. This paragraph will expire
January 11, 2002 or nine months from
the effective date of this rule, whichever
occurs later.
(1) Each State shall establish TMDLs
for the waterbodies identified at
§ 130.27(a) and in accordance with the
priority ranking. For pollutants other
than heat, TMDLs shall be established at
levels necessary to attain and maintain
the applicable narrative and numerical
WQS with seasonal variations and a
margin of safety which takes into
account any lack of knowledge
concerning the relationship between
effluent limitations and water quality.
Determinations of TMDLs shall take into
account critical conditions for stream
flow, loading, and water quality
parameters.
(i) TMDLs may be established using a
pollutant-by-pollutant or biomonitoring
approach. In many cases both
techniques may be needed. Site-specific
information should be used wherever
possible.
(ii) TMDLs shall be established for all
pollutants preventing or expected to
prevent attainment of water quality
standards as identified pursuant to
§ 130.27(a). Calculations to establish
TMDLs shall be subject to public review
as defined in the State GPP.
(2) Each State shall estimate for the
waterbodies identified at § 130.27(a)
that require thermal TMDLs, the total
maximum daily thermal load which
cannot be exceeded in order to assure
protection and propagation of a
balanced, indigenous population of
shell-fish, fish and wildlife. Such
estimates shall take into account the
normal water temperatures, flow rates,
seasonal variations, existing sources of
heat input, and the dissipative capacity
of the identified waters or parts thereof.
Such estimates shall include a
calculation of the maximum heat input
that can be made into each such part
and shall include a margin of safety
which takes into account any lack of
knowledge concerning the development
of thermal water quality criteria for
protection and propagation of a
balanced, indigenous population of
shellfish, fish and wildlife in the
identified waters or parts thereof.
11. Amend newly designated § 130.10
in paragraph (a) by adding a note to the
paragraph, and revise paragraph (b) as
follows:
§ 130.10 Water quality monitoring.
(a) * * *
Note to paragraph (a): EPA recommends
that you use "Policy and Program
Requirements to Implement the Mandatory
Quality Assurance Program", EPA Order
5360.1, April 3,1984, as revised July 16,
1998, or subsequent revisions.
(b) The State's water monitoring
program shall include collection and
analysis of physical, chemical and
biological data and quality assurance
and control programs to assure
scientifically valid data. The uses of
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Federal Register/Vol. 65, No. 135/Thursday, July 13, 2000/Rules and Regulations
these data include determining
abatement and control priorities;
developing and reviewing water quality
standards, total maximum daily loads,
wasteload allocations and load
allocations; assessing compliance with
National Pollutant Discharge
Elimination System (NPDES) permits by
dischargers; reporting information to the
public through the section 305(b) report
and reviewing site-specific monitoring
efforts and source water assessments
conducted under the Safe Drinking
Water Act.
12. Amend newly designated § 130.11
to revise paragraph (a) as follows:
§130.11 Water quality report.
(a) Each State shall prepare and
submit biennially to the Regional
Administrator a water quality report in
accordance xvith section 305(b) of the
Act. The water quality report serves as
the primary assessment of State water
quality. Based upon the water quality
data and problems identified in the
305(b) report, States develop water
quality management (WQM) plan
elements to help direct all subsequent
control activities. Water quality
problems identified in the 305(b) report
should be analyzed through water
quality management planning leading to
me development of alternative controls
and procedures for problems identified
in the latest 305 (b) report. States may
also use the 305(b) report to describe
ground-water quality and to guide
development of ground-water plans and
programs. Water quality problems
Identified in the 305(b) report should be
emphasized and reflected in the State's
WQM plan and annual work program
under sections 106 and 205(j) of the
Clean Water Act and where the
designated use includes public water
supply, in the source water assessment
conducted under the SDWA.
* * * * *
13. Add Subpart C consisting of
SS 130.20 through 130.37 as follows:
Subpart C—Identifying Impaired
Watcrbodles And Establishing Total
Maximum Daily Loads (TMDLs)
What This Subpart Covers
Sac.
130.20 Who must comply with subpart C of
this part?
130,21 What is tho purpose of this subpart?
Listing Impaired Watcrbodies, and
Documenting Your Methodology for Making
Listing Decisions
130.22 What data and information do you
need to assemble and consider to
Identify and Jist impaired waterbodies?
130.23 How do you develop and document
your methodology for considering and
evaluating all existing and readily
available data and information to
develop your list?
130.24 When must you provide your
methodology to EPA?
130.25 What is the scope of your list of
impaired waterbodies?
130.26 How do you apply your water
quality standards antidegradation policy
to the listing of impaired waterbodies?
130.27 How must you format your list of
impaired waterbodies?
130.28 What must your prioritized schedule
for submitting TMDLs to EPA contain?
130.29 Can you modify your list?
130.30 When must you submit your list of
impaired waterbodies to EPA and what
will EPA do with it?
Establishment and EPA Review of TMDLs
130.31 Which waterbodies need TMDLs?
130.32 What are the minimum elements of
a TMDL submitted to EPA?
130.33 How are TMDLs expressed?
130.34 What actions must EPA take on
TMDLs that are submitted for review?
130.35 How will EPA assure that TMDLs
are established?
Public Participation
130.36 What public participation
requirements apply to your lists and
TMDLs?
TMDLs Established During the Transition
130.37 What is the effect of this rule on
TMDLs established during the
transition?
Subpart C—Identifying Impaired
Waterbodies And Establishing Total
Maximum Daily Loads (TMDLs)
What This Subpart Covers
§130.20 Who must comply with subpart C
in this part?
(a) Subpart C applies to States,
Territories, and authorized Tribes. The
term "you" in this subpart refers to
these three governmental entities.
(b) Portions of this subpart apply to
the United States Environmental
Protection Agency (EPA). When this is
the case, the rule specifies EPA's
responsibilities and obligations.
§ 130.21 What is the purpose of this
subpart?
(a) This subpart explains how to
identify and list impaired waterbodies
and establish TMDLs in accordance
with section 303(d) of the Clean Water
Act. The subpart also explains how EPA
reviews and approves or disapproves
your lists and TMDLs. Specifically, the
subpart explains how to:
(1) Assemble all existing and readily
available water quality-related data and
information;
(2) Document your methodology for
considering and evaluating all existing
and readily available water quality-
related data and information to make
decisions on your list and provide the
methodology to EPA and the public;
(3) Identify impaired waterbodies to
be included on the list and decide
which of those waterbodies will have
TMDLs established for them;
(4) Identify the pollutant or pollutants
causing the impairment for all
waterbodies on Part 1 of your list;
(5) Develop a prioritized schedule for
establishing TMDLs for waterbodies on
Part 1 of your list;
(6) Establish TMDLs for waterbodies
on Part 1 of your list and submit them
to EPA for review;
(7) Provide public notice and an
opportunity for public comment on your
methodology, your list, and TMDLs
prior to final submission to EPA.
(b) It also explains how EPA must:
(1) Review and approve or disapprove
your list of impaired waterbodies;
(2) Develop a list where you fail to do
so or if EPA disapproves your list;
(3) Review and approve or disapprove
your TMDLs;
(4) Establish TMDLs if you have not
made substantial progress in
establishing TMDLs in accordance with
your approved schedule, or if EPA
disapproves your TMDLs .
Listing Impaired Waterbodies, and
Documenting Your Methodology for
Making Listing Decisions
§ 130.212 What data and information do you
need to assemble and consider to identify
and list impaired waterbodies?
(a) You need to assemble and consider
all existing and readily available water
quality-related data and information
when you develop your list of impaired
waterbodies.
(b) Existing and readily available
water quality-related data and
information includes at a minimum the
data and information in and forming the
basis for the following:
(1) Your most recent EPA approved
section 303(d) list;
(2) Your most recent Clean Water Act
section 305(b) report;
(3) Clean Water Act section 319
nonpoint source assessments;
(4) Drinking water source water
assessments under section 1453 of the
Safe Drinking Water Act;
(5) Dilution calculations, trend
analyses, or predictive models for
determining the physical, chemical or
biological integrity of streams, rivers,
lakes, and estuaries; and
(6) Data, information, and water
quality problems reported from local,
State, Territorial, or Federal agencies
(especially the U.S. Geological Survey
National Water Quality Assessment
(NAWQA) and National Stream Quality
Accounting Network (NASQAN)), Tribal
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43665
governments, members of the puhlic,
and academic institutions.
§ 130.23 How do you develop and
document your methodology for
considering and evaluating all existing and
readily available data and information to
develop your list?
(a) Your methodology needs to
explain how you will consider and
evaluate all existing and readily
available water quality-related data and
information to determine which
waterbodies you will include on Parts 1,
2, 3, and 4 of your list, and to determine
how you will prioritize your schedule
for establishing TMDLs for waterbodies
on Part 1 of your list. You must develop
a draft methodology and notify the
public of the availability of the draft
methodology for review and comment.
You should notify directly those who
submit a written request for notification.
You must provide the public an
opportunity to submit comments on the
draft methodology for no less than 60
days. You must provide a summary of
all comments received and your
responses to significant comments when
you provide a copy of the final
methodology to EPA, as required by
§ 130.24 of this subpart. You must make
your final methodology available to the
public when you provide a copy to EPA.
(b) The methodology should explain
how you will consider and evaluate the
following types of data and information
when you make listing decisions and
develop your prioritized schedule for
TMDL establishment:
(1) Physical data and information;
(2) Chemical data and information;
(3) Biological data and information;
(4) Aquatic and riparian habitat data
and information; and
(5) Other data and information about
waterbody impairments, including
drinking water susceptibility analyses.
(c) Your methodology should, at a
minimum, identify those types of data
and information that you will treat as
"existing and readily available" and
explain how you consider the following
factors in making listing decisions and
in developing your prioritized schedule
for TMDL establishment:
(1) Data quality and age;
(2) Degree of confidence you have in
the information you use to determine
whether waterbodies are impaired,
including a description of the quality
assurance/quality control factors you
will-apply to data and information; and
(3) Number and degree of exceedances
of numeric or narrative criteria and
periods of nonattainment of designated
uses or other factors used to determine
whether waterbodies are impaired.
(d) Your methodology should describe
the procedures and methods you will
use to collect ambient water quality •
information.
(e) Your methodology should, at a ',
minimum, also include the following:
(1) A description of the selection .
factors you will use to include and
remove waterbodies from your list;
(2) A process for resolving .f
disagreements with other jurisdictions
involving waterbodies crossed by State,
Territorial, Tribal or international
boundaries; and
(3) A description of the method and
factors you will use to develop your
prioritized schedule for establishing
TMDLs.
§ 130.24 When must you provide your
methodology to EPA?
(a)(l) If this section is not effectively
May 1, 2001, you must provide to EPA
a description of the methodology used
to develop your 2002 list and a ;
description of the data and information
used to identify waters (including a I
description of the existing and readily
available data and information used by
the State, Territory, and authorized
Tribe) by April 1, 2002. The provisions
of § 130.23(b) through (e) do not apply
to this methodology. ;
(2) If this section is effective on or
before May 1, 2001, you must provide
your final methodology for your 2002
list and a summary of public comments
on your methodology by November \<,
2001. This methodology will apply to
the list required in 2002.
(b) You must provide to EPA the final
methodology and a summary of public
comments for your 2006 and subsequent
lists submitted under § 130.30(a) no
later than two years before you submit
your next list, beginning in the year -
2004. For example, you provide to EPA
the methodology for your 303(d) list for
2006 on or before April 1, 2004. When
providing final methodologies to EPA,
you need to provide only the parts of
the previous methodology you are ;
revising; however, prior to submitting
your final methodology to EPA, the
entire methodology must be available to
the public.
(c) EPA will review your final
methodology and will provide you with
comments within 60 days of receiving
it. EPA will not approve or disapprove
your methodology. EPA will consider
your methodology in its review and
approval or disapproval of your next
list. :
§ 130.25 What is the scope of your list of
impaired waterbodies?
(a) Your approvable list of impaired
waterbodies includes, based on all
existing and readily available water .
quality-related data and information
using appropriate quality assurance/
quality control:
(1) Waterbodies that are impaired by
individual pollutants, multiple
pollutants, or pollution from any source,
including point sources, nonpoint
sources, storm water sources for which
a National Pollutant Discharge
Elimination System (NPDES) permit is
not required, ground water, and
atmospheric deposition.
(2) Waterbodies for which biological
information indicates that they do not
attain and maintain water quality
standards.
(3) Waterbodies that are impaired by
point sources only, nonpoint sources
only, or by a combination of point and
nonpoint sources.
(b) Your list may include, at your
option, waterbodies that are not
impaired, but which, based on expected
changes in loadings or conditions, you
anticipate will become impaired in the
next four years.
§ 130.26 How do you apply your water
quality standards antidegradation policy to
the listing of impaired waterbodies?
(a) Water quality standards as defined
at 40 CFR Part 131 include several
requirements, including one for a State
antidegradation policy. Your list must
include waterbodies consistent with
your antidegradation policy as
described below.
(1) Any waterbody is impaired if it is
not maintaining a designated use or
more protective existing use that was
attained on or after November 28,1975.
(2) Any Tier 3 waterbody is impaired
when the level of water quality that
existed at the time the waterbody was
designated as Tier 3 has declined. Tier
3 waters are waters you have designated
as outstanding national resource waters.
(b) [Reserved]
§ 130.27 How must you format your list of
impaired waterbodies?
(a) Your list of impaired waterbodies
must include the following four parts:
(1) Part 1. Waterbodies impaired by
one or more pollutant(s) as defined by
§ 130.2(d), unless listed in Part 3 or 4.
Waterbodies identified as impaired
through biological information must be
listed on Part 1 unless you know that
the impairment is not caused by one or
more pollutants, in which case you may
place the waterbody on Part 2 of the list.
Where the waterbody is listed due to
biological information, the first step in
establishing the TMDL is identifying the
pollutant(s) causing the impairment.
Waterbodies must also be included on
Part 1 where you or EPA have
determined, in accordance with
§§130.32(c)(l)(v), (2)(vii), and (3)(i),
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that a TMDL needs to be revised.
Water-bodies that you chose to list
pursuant to § 130.25(b). because you
anticipate that they will become
impaired by one or more pollutant(s),
must be included on Part 1 of your list.
A TMDL is required for waterbodies on
Parti of the list.
(2) Part 2. Waterbodies impaired by
pollution as defined by § 130.2(c) but
not impaired by one or more pollutants.
A TMDL is not required for waterbodies
on Part 2 of the list.
(3) Fart 3. Waterbodies for which EPA
has approved or established a TMDL
and water quality standards have not yet
been attained. The waterbody must be
placed on Part 1 of the list and
scheduled for establishment of a new
TMDL if you or EPA determine that
substantial progress towards attaining
the water quality standard is not
occurring.
(4) Port 4. Waterbodies that are
impaired, for which the State, Territory,
or authorized Tribe demonstrates that
water quality standards will be attained
by the date of submission of the next list
as a result of implementation of
technology-based effluent limitations
required by sections 301(b), 306, or 307
of the Clean Water Act or other controls
enforceable by State, Territorial or
authorized Tribal or Federal law or
regulation (including more stringent
water quality-based effluent limitations
in NPDES permits). A TMDL is not
required for waterbodies on Part 4. If a
waterbody listed on Part 4 does not
attain water quality standards by the
time the next list is required to be
submitted to EPA, such waterbody must
be included on Part 1 unless you can
demonstrate that the failure to attain
water quality standards is due to failure
of point source dischargers to comply
with applicable NPDES permit effluent
limitations, which are in effect. TMDLs
for waterbodies moved from Part 4 to
Part 1 of the list must be scheduled for
establishment in accordance with the
requirements of § 130.28(b).
(b) You must identify:
(l) The pollutant or pollutants
causing the impairment for each
waterbody on Part 1 of the list, or for
waterbodies for which the impairment
is a result of biological information, the
pollutant or pollutants if known.
(2) The type of pollution causing the
impairment for each waterbody on Part
2.
(3) The geographic location of each
waterbody on the list, using the
National Hydrography Database or
subsequent revisions, or a compatible
georeferenced database.
(c) Any one of the three reporting
formats described in this paragraph are
acceptable.
(1) Separate section 303(d) list You
may submit your list as a separate four-
part section 303(d) list.
(2) Consolidated section 303(d) list
and section 305(b) report. You may
submit your list as a component of your
water quality report (section 305(b)
report). You must clearly identify the
parts of your water quality report you
are submitting as your four-part section
303(d) list.
(3) Part 1 waterbodies in section
303(d) report and Parts 2, 3, and 4
waterbodies in section 305(b) report.
You may submit Part 1 of your list as
a separate section 303(d) list, provided
you include Parts 2, 3, and 4 of your list
as a component of your section 305(b)
water quality report and clearly identify
the parts of your water quality report
that you are submitting as Parts 2, 3, and
4 of your section 303(d) list.
(d) EPA will approve or disapprove
your four-part section 303(d) list
regardless of the reporting format that
you use.
§130.28 What must your prioritized
schedule for submitting TMDLs to EPA
contain?
(a) Your list must include a
prioritized schedule for establishing
TMDLs for all waterbodies and
pollutant combinations on Part 1 of your
list.
(b) You must schedule establishment
of TMDLs:
(1) as expeditiously as practicable,
evenly paced over the duration of the
schedule;
(2) no later than 10 years from July 10,
2000, if the waterbody and pollutant
was listed on any part of the list before
that date or 10 years from the due date
of the first subsequent list after July 10,
2000, on which the waterbody and
pollutant is initially included. You may
extend the schedule for one or more
TMDLs by no more than five years if
you explain to EPA as part of your list
submission that, despite expeditious
actions, establishment of all TMDLs on
Part 1 of your list within 10 years is not
practicable.
(c) You must identify each specific
TMDL you intend to establish and the
one year period during which it is
scheduled to be established. Your
schedule should provide for the
coordinated establishment of TMDLs
within a watershed to the fullest extent
practicable.
(d) You must:
(l) explain how you considered the
severity of the impairment and the
designated use of the waterbody in
prioritizing waterbodies for TMDL
establishment on your schedule.
(2) Identify waterbodies:
(i) That are designated in water
quality standards as a public drinking
water supply, or are used as a source of
drinking water, and are impaired by a
pollutant that is contributing to a
violation of a national primary drinking
water regulation (NPDWR) by a public
water system or causes a public water
system to be vulnerable to a violation of
a NPDWR; or
(ii) Where species listed as threatened
or endangered under section 4 of the
Endangered Species Act are present in
the waterbody.
(3) Waterbodies identified in this
subsection must be given a higher
priority unless you explain why a
different priority is appropriate.
(e) When identifying and scheduling
your waterbodies for TMDL
establishment, you may also consider
the presence of sensitive aquatic species
and other factors such as the historical,
cultural, economic and aesthetic uses of
the waterbody. You may consider other
factors in prioritizing your schedule,
including the value and vulnerability of
particular waterbodies; the recreational,
economic, and aesthetic importance of
particular waterbodies; TMDL
complexity; the degree of public interest
and support; State, Territorial and
authorized Tribal policies and priorities;
national policies and priorities; or the
efficiencies that might result from
coordinating the establishment of
TMDLs for multiple waterbodies located
in the same watershed. If you are using
a rotating basin approach, you may take
that approach into account when
prioritizing waterbodies on your
schedule because of the inherent
efficiencies of such an approach.
(f) If you consider other factors, you
should identify each factor and explain
how you used each factor in prioritizing
your schedule.
§ 130.29 Can you modify your list?
(a) You may modify your list at times
other than those required by § 130.30, in
accordance with this section. If you
modify your list and prioritized
schedule, you must submit your list to
EPA as a modification to your list under
this section and follow the public
participation requirements of § 130.36,
except that such requirements shall
apply only to waterbodies and issues
addressed by the modification. The
requirements of subsections (b), (c), (d),
and (e) of this section apply to lists
submitted under § 130.30(a) or at any
other time.
(b) You must keep each impaired
waterbody on your list for a particular
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pollutant until it is attaining and
maintaining applicable water quality
standards for that pollutant.
(c) You may remove a listed
waterbody for a particular pollutant if
new data or information indicate that
the waterbody is attaining and
maintaining the applicable water quality
standards for that pollutant.
(d) You may add a waterbody to your
list if you have data or information
indicating that it is impaired.
(e) You may modify your prioritized
schedule for establishing TMDLs in
accordance with § 130.28 based on new
information provided that the
modification does not reduce the
number of TMDLs scheduled for
completion during the first four years of
the current approved schedule.
(f) EPA must issue an order approving
or disapproving the modification of
your list or prioritized schedule in
accordance with § 130.30(b).
(g) EPA may also issue an order
modifying a list consistent with the
provisions of paragraphs (c), (d) and (e)
of this section, after providing notice
and an opportunity for public comment.
§ 130.30 When must you submit your list
of impaired waterbodies to EPA and what
will EPA do with it?
(a) You must submit your list of
impaired waterbodies to EPA by April 1
of every fourth year, beginning in the
year 2002.
(b) EPA must:
(1) Issue an order approving or
disapproving your list or modification
of your list, within 30 days of receipt,
in whole or in part if it is not consistent
with the requirements of §§ 130.25
through 130.29.
(2) By order, within 30 days of
disapproval, issue a new list consistent
with §§ 130.25 through 130.29 if EPA
disapproves or partially disapproves
your list or modification of your list.
(3) Publish the order required by
paragraph (b){2) of this section in the
Federal Register and a general
circulation newspaper in your State,
Territory, or where your Tribe is located
and request public comment for at least
30 days.
(4) Issue a subsequent order revising
the new list after the close of the public
comment period, as appropriate, if EPA
revises its initial order required by
paragraph (b)(2) of this section based on
public comment.
(5) Send you a copy of its order(s).
(6) Establish a list of impaired
waterbodies for your State, Territory, or
authorized Tribe consistent with
§§ 130.25 through 130.29 if you fail to
do so by April 1 of every fourth year.
(c) EPA may establish lists of
waterbodies that do not attain and
maintain Federal water quality
standards.
(d) You must incorporate into your
water quality management plan those ;
portions of your list that EPA approves
or establishes. :
Establishment and EPA Review of
TMDLs
§ 130.31 Which waterbodies need TMDLs?
(a) You must establish TMDLs for all
waterbodies and pollutant combinations
on Part 1 of your list in accordance with
your approved schedule and submit the
TMDLs to EPA.
(b) You do not need to establish '.
TMDLs for waterbodies on Parts 2, 3, ;
and 4 of your list.
§ 130.32 V/hat are the minimum elements
of a TMDL submitted to EPA?
(a) A TMDL is a written, quantitative
plan and analysis for attaining and :
maintaining water quality standards in
all seasons for a specific waterbody and
pollutant. TMDLs may be established pn
a coordinated basis for a group of j
waterbodies in a watershed. A TMDL
provides the opportunity to compare
relative contributions of pollutants frojn
all sources and consider technical and
economic trade-offs between point and
nonpoint sources.
(b) You must include the following
minimum elements in any TMDL
submitted to EPA:
(1) The name and geographic location,
as required by § 130.27(b)(3), of the !
impaired waterbody for which the
TMDL is being established and, to the'
extent known, the names and
geographic locations of the waterbodies
upstream of the impaired waterbody :
that contribute significant amounts of,
the pollutant for which the TMDL is
being established; ;
(2) Identification of the pollutant and
the applicable water quality standard for
which the TMDL is being established;
(3) Quantification of the pollutant
load that may be present in the
waterbody and still ensure attainment
and maintenance of water quality
standards;
(4) Quantification of the amount or
degree by which the current pollutant:
load in the waterbody, including the
pollutant load from upstream sources ,
that is being accounted for as
background loading, deviates from the
pollutant load needed to attain and
maintain water quality standards;
(5) Identification of source categories,
source sub categories, or individual :
sources of the pollutant consistent with
the definitions of load and wasteload
allocation in §§ 130.2(f) and (g), ;
respectively, for which the wasteload :
allocations and load allocations are
being established;
(6) Wasteload allocations assigned to
point sources permitted under section
402 of the Clean Water Act discharging
the pollutant for which the TMDL is
being established that will, when
implemented in conjunction with
assigned load allocations, if any, result
in the attainment and maintenance of
water quality standards in the
waterbody. Wasteload allocations that
reflect pollutant load reductions for
point sources needed to ensure that the
waterbody attains and maintains water
quality standards must be expressed as
individual wasteload allocations for
each source. Wasteload allocations that
do not reflect pollutant load reductions
from point sources needed for the
waterbody to attain and maintain water
quality standards may be expressed as
an individual wasteload allocation for a
source or may be included within a
wasteload allocation for a category or
subcategory of sources. Wasteload
allocations for sources subject to a
specified general permit, regardless of
whether they reflect pollutant
reductions, may be allotted to categories
of sources. You should submit
supporting technical analyses
demonstrating that wasteload
allocations, when implemented in
conjunction with necessary load
allocations, will result in the attainment
and maintenance of the water quality
standard(s) applicable to the pollutant
for which the TMDL is being
established;
(7) Load allocations, ranging from
reasonably accurate estimates to gross
allotments, for nonpoint sources of a
pollutant, storm water sources for which
an NPDES permit is not required,
atmospheric deposition, ground water
or background sources of a pollutant
that, when implemented in conjunction
with assigned wasteload allocations, if
any, result in the attainment and
maintenance of water quality standards
in the waterbody. If feasible, a separate
load allocation must be allocated to
each source of a pollutant. Where this
is not feasible, load allocations may be
allocated to categories or subcategories
of sources. Pollutant loads from sources
that do not need to be reduced for the
waterbody to attain and maintain water
quality standards may be included
within a category of sources or
subcategory of sources. You should
submit supporting technical analyses
demonstrating that load allocations,
when implemented in conjunction with
necessary wasteload allocations, will
result in the attainment and
maintenance of water quality standards
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applicable to the pollutant for which the
TMDL is being established;
(8) A margin of safety that
appropriately accounts for uncertainty
related to the TMDL, including
uncertainties associated with pollutant
loads, modeling water quality, and
monitoring water quality. A margin of
safety may be expressed as unallocated
assimilative capacity or conservative
analytical assumptions used in
establishing the TMDL;
(9) Consideration of 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;
(10) Allowance for reasonably
foreseeable increases in pollutant loads
Including future growtii; and
(11) An implementation plan which
meets the requirements of paragraph (c)
of this section.
(c) The purpose of the
implementation plan is to provide a
description, in a level of detail
appropriate to the circumstances, of
actions necessary to implement the
TMDL so that the waterbody attains and
maintains water quality standards. EPA
does not expect the implementation
plan to be a complex, lengthy
document.
(1) For waterbodies impaired only by
point sources for which NPDES permits
will implement the TMDL, an
implementation plan must include:
(!) An identification of the wasteload
allocation(s) that the effluent
limitation^) must be consistent with
pursuant to § 122.44(d)(l)(vii)(B) in the
NPDES permit(s) that will be issued,
reissued, or revised. In all instances, the
NPDES permit effluent limitation(s)
must be consistent with the applicable
wasteload allocation(s). You must
identify:
(A) The point sources that are or will
be regulated by individual permits and
the categories or subcategories of point
sources that are or will be regulated by
general permits that will be subject to
such effluent limitations.
(B) The permit, if you intend to
Implement the wasteload allocation by
requiring a point source to apply for
coverage under an existing NPDES
general permit.
(C) The elements of the general permit
necessary to ensure implementation of
the wasteload allocation, if you intend
for a point source to be regulated by a
new general permit.
(ii) A schedule for issuing, reissuing
or revising the NPDES permit(s) as
expeditiously as practicable to include
effluent limits consistent with the
wasteload allocation(s) in the TMDL.
EPA must:
(A) Reissue or revise the permit(s)
within two years after the establishment
of the TMDL where EPA is the NPDES
permitting authority.
(B) Notify the NPDES Director of
EPA's intent to object to the permit
pursuant to the provisions of § 123.44(k)
within one year after expiration of the
permit term, or where the permit term
expired prior to the establishment of the
TMDL, within one year from
establishment of the TMDL where the
State is the NPDES permitting authority,
and the permit term has expired.
(C) Issue an NPDES permit that
incorporates effluent limitations based
on wasteload allocation(s) in the TMDL
within one year thereafter where the
State has not done so. Nothing in this
paragraph (c)(l)(ii) limits EPA's
authority to reissue a permit after the
expiration of the two-year time frame set
forth in this paragraph (c)(l)(ii), or
invoke the mechanism described in
§ 123.44(k) after the expiration of either
of the one-year time frames set forth in
this paragraph (c)(l)(ii).
(iii) The date by which the
implementation plan will result in the
waterbody attaining and maintaining
applicable water quality standards and
the basis for that determination;
(iv) A monitoring and/or modeling
plan designed to measure the
effectiveness of the controls
implementing the wasteload allocations
and the progress the waterbody is
making toward attaining water quality
standards; and
(v) The criteria you will use to
determine that substantial progress
toward attaining water quality standards
is being made and if not, the criteria for
determining whether the TMDL needs
to be revised.
(2) For waterbodies impaired only by
nonpoint source(s), storm water sources
for which an NPDES permit is not
required, atmospheric deposition,
ground water or background sources of
a pollutant where no NPDES permit will
implement the TMDL, the
implementation plan must include:
(i) An identification of the source
categories, source subcategories, or
individual sources of the pollutant
which must be controlled to implement
the load allocations;
(ii) A description of specific
regulatory or voluntary actions,
including management measures or
other controls, by Federal, State or local
governments, authorized Tribes, or
individuals that provide reasonable
assurance, consistent with § 130.2(p),
that load allocations will be
implemented and achieve the assigned
load reductions. Your selection of
management measures for achieving the
load allocation may recognize both the
natural variability and the difficulty in
precisely predicting the performance of
management measures over time;
(iii) A schedule, which is as
expeditious as practicable, for
implementing the management
measures or other control actions to
achieve load allocations in the TMDL
within 5 years, when implementation
within this period is practicable;
(iv) The date by which the
implementation plan will result in the
waterbody attaining and maintaining
applicable water quality standards, and
the basis for that determination;
(v) A description of interim,
measurable milestones for determining
whether management measures or other
control actions are being implemented;
(vi) A monitoring and/or modeling
plan designed to measure the
effectiveness of the management
measures or other controls
implementing the load allocations and
the progress the waterbody is making
toward attaining water quality
standards, and a process for
implementing stronger and more
effective management measures if
necessary; and
(vii) The criteria you will use to
determine that substantial progress
toward attaining water quality standards
is being made and if not, the criteria for
determining whether the TMDL needs
to be revised.
(3) For waterbodies impaired by both
point sources and nonpoint sources
where NPDES permits and management
measures or other control actions for
nonpoint or other sources will
implement the TMDL, the
implementation plan must include:
(i) The elements of paragraphs (c)(l)
and (2) of this section; and
(ii) A description of the extent to
which wasteload allocations reflect
expected achievement of load
allocations requiring reductions in
loadings.
(4) For all impaired waterbodies, the
implementation plan must be based on
a goal of attaining and maintaining the
applicable water quality standards
within ten years whenever attainment
and maintenance within this period is
practicable.
(d) TMDTLs must meet all the
requirements of paragraphs (b) and (c) of
this section, except that, rather than
estimating a TMDTL at a level necessary
to attain and maintain water quality
standards, you must estimate the
TMDTL as required by statute at a level
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43669
necessary to ensure protection and
propagation of a balanced indigenous
population of shellfish, fish, and
wildlife, taking into account the normal
water temperatures, flow rates, seasonal
variations, existing sources of heat
input, and dissipative capacity of the
waterbody for which the TMDTL is
being established. Estimates for those
waterbodies must include a calculation
of the maximum heat input and a
margin of safety that takes into account
any lack of knowledge concerning the
development of thermal water quality
criteria.
(e) A TMDL must not be likely to
jeopardize the continued existence of an
endangered or threatened species listed
under section 4 of the Endangered
Species Act or result in the destruction
or adverse modification of its designated
critical habitat.
§ 130.33 How are TMDLs expressed?
(a) A TMDL must contain a
quantitative expression of the pollutant
load or load reduction necessary to
ensure that the waterbody will attain
and maintain water quality standards,
or, as appropriate, the pollutant load or
load reduction required to attain and
maintain aquatic or riparian habitat,
biological, channel or geomorphological
or other conditions that will result in
attainment and maintenance of water
quality standards.
(b) As appropriate to the
characteristics of the waterbody and
pollutant, the pollutant load or load
reduction may be expressed in one or
more of the following ways:
(1) The pollutant load that can be
present in the waterbody and ensure
that it attains and maintains water
quality standards;
(2) The reduction from current
pollutant loads required to attain and
maintain water quality standards;
(3) The pollutant load or reduction of
pollutant load required to attain and
maintain aquatic, riparian, biological,
channel or geomorphological measures
so that water quality standards are
attained and maintained;
(4) A quantitative expression of a
modification of a characteristic of the
waterbody, e.g., aquatic and riparian
habitat, biological, channel,
geomorphological, or chemical
characteristics, that results in a
pollutant load or reduction of pollutant
load so that water quality standards are
attained and maintained; or
(5) In terms of either mass per time,
toxicity or otiier appropriate measure.
§ 130.34 What actions must EPA take on
TMDLs that are submitted for review?
(a) EPA must:
(1) Review each TMDL you submit to
determine if it meets the requirements
of §§ 130.31,130.32 and 130.33 and
issue an order approving or ',
disapproving each TMDL you submit
within 30 days after you submit it.
(2) Disapprove the TMDL if it does
not meet all those requirements.
(3) Issue an order establishing a new
TMDL for a waterbody and pollutant
within 30 days of EPA's disapproval or
determination of the need for revision,
if EPA disapproves a TMDL you submit
or determines that an existing TMDL
needs to be revised. i
(4) Publish this order in the Federal
Register and a general circulation
newspaper and request public comment
for at least 30 days.
(5) Issue a subsequent order revising
the TMDL after the close of the public
comment period, as appropriate, if EPA
revises its initial order based on public
comment. '.
(6) Send you the final TMDL EPA .
establishes. You must incorporate any
EPA-established or EPA approved
TMDL into your water quality
management plan.
(b) When EPA establishes a TMDL it
must provide reasonable assurance. It
may satisfy the adequate funding
requirement of reasonable assurance ty
conditioning Clean Water Act grants to
the fullest extent practicable and in a •
manner consistent with effective
operation of other Clean Water Act
programs.
(c) EPA may also use any of its
statutory or regulatory authorities and
voluntary, incentive-based programs, as
it determines appropriate, to
supplement conditioning Clean Water
Act grants in demonstrating reasonable
assurance. :
§ 130.35 How will EPA assure that TMDLs
are established?
(a) EPA must assure that TMDLs for
waterbodies and pollutants identified'
on Part 1 of your list are established.
EPA must do this by:
(1) Working with you to assure that'
TMDLs are established in accordance'
with your schedule; and
(2) Establishing a TMDL if you have
not made substantial progress in
establishing the TMDL in accordance
with your approved schedule. \
Substantial progress means that you
have established a TMDL not later than
the end of the one-year period during!
which it was scheduled to be
established. EPA must establish the
TMDL within two years of the date on
which you fail to make substantial
progress. The Administrator may extend
this period for no more than two years
on a case-by-case basis if there is a
compelling need for additional time.
Notice of such extension shall be
published in the Federal Register.
(b) EPA may establish TMDLs under
other circumstances including:
(1) You request that EPA do so; or
(2) EPA determines it is necessary to
establish a TMDL for an interstate or
boundary waterbody or to implement
Federal water quality standards.
(c) In establishing any TMDL
pursuant to this section, EPA shall
provide notice and an opportunity for
public comment on such order.
Public Participation
§ 130.36 What public participation
requirements apply to your lists and
TMDLs?
(a) You must provide public notice
and allow the public no less than 30
days to review and comment on your
list of impaired waterbodies and TMDLs
prior to submission to EPA. You should
notify directly those who submit a
written request for notification.
(b) At the time you make your
submission to EPA, you must provide
EPA with a summary of all public
comments received on your list and
TMDLs and your response to all
significant comments, indicating how
the comments were considered in your
final decision.
(c) Prior to your submission to EPA,
and at the time that you provide the
public the opportunity to review and
comment on your list and TMDLs:
, (1) You must provide a copy of each
of these documents to EPA, the U.S.
Fish and Wildlife Service, and to the
National Marine Fisheries Service
where appropriate (e.g., coastal areas),
unless you request EPA to provide these
documents to the Services, in which
case EPA will do so.
(2) You are encouraged to establish
processes with both die U.S. Fish and
Wildlife Service and the National
Marine Fisheries Service that will
provide for the early identification and
resolution of threatened and endangered
species concerns as they relate to your
list and TMDLs. To facilitate
consideration of endangered and
threatened species in the listing and
TMDL process, EPA will ask the U.S.
Fish and Wildlife Service and the
National Marine Fisheries Service,
where appropriate, to provide you and
EPA with any comments that they may
have on your lists and TMDLs.
(3) You must consider any comments
from EPA, the U.S. Fish and Wildlife
Service, or the National Marine
Fisheries Service in establishing your
list and TMDLs and document your
consideration of these comments in
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Federal Register/Vol. 65, No. 135/Thursday, July 13, 2000/Rules and Regulations
accordance with paragraph (b) of this
section.
(d) EPA will review any comments
submitted by the U.S. Fish and Wildlife
Service or the National Marine Fisheries
Service and consider how you
addressed these and EPA's comments
prior to EPA's approval or disapproval
of your submission.
TMDLs Established During the
Transition
1130.37 What Is the effect of this rule on
TMDLs established during the transition?
(a) EPA will approve any TMDL
submitted to it for review before January
11, 2002 or nine months from the
effective date of this rule, whichever
occurs later, if the TMDL meets either
the requirements in § 130.7 in effect
prior to July 13, 2000 or the
requirements in §§ 130.31,130.32 and
130.33 of this Subpart C.
(b) EPA will establish TMDLs before
Janaury 11,2002 or nine months from
the effective date of this rule, whichever
occurs later, either according to the
requirements in § 130.7 in effect prior to
July 13, 2000 or the requirements in
§§130.31,130.32 and 130.33 of this
Subpart C.
14. Amend newly designated § 130.50
to revise paragraph (b) introductory text
and (b)(3) as follows:
§130.50 Continuing planning process
* * * * *
(b) Content. The State may determine
the format of its GPP as long as the
minimum requirements of the CWA and
this regulation are met. A State CPP
need not be a single document,
provided the State identifies in one
document (i.e., an index) the other
documents, statutes, rules, policies and
guidance that comprise its CPP. The
following processes must be described
in each State CPP and the State may
include other processes, including
watershed-based planning and
implementation, at its discretion.
* * * * *
(3) The process for developing total
maximum daily loads (TMDLs) and
individual water quality based effluent
limitations for pollutants in accordance
with section 303(d) of the Act and
§§ 130.31 through 130.36 of this Part.
*****
15. Amend newly designated § 130.51
to revise paragraphs (a), (c)(l), and (f) as
follows:
§ 130.51 Water quality management plans
(a) Water quality management plans.
You must base continuing water quality
planning on initial water quality
management plans produced in
accordance with sections 208 and 303(e)
of the Clean Water Act and certified and
approved updates to those plans. Your
annual water quality planning should
focus on priority issues and geographic
areas identified in your latest section
305(b) reports and have a watershed
focus. Water quality planning should be
directed at the removal of conditions
placed on previously certified and
approved water quality management
plans and updates to support the
implementation of wasteload allocations
and load allocations contained in
TMDLs.
(c) * * *
(1) Total Maximum Daily Loads.
TMDLs in accordance with section
303(d) and (e)(3)(C) of the Act and
§§ 130.2 and 130.31 through 130.36;
also Lists of impaired waters in
accordance with §§ 130.2 and 130.22
through 130.30.
*****
(f) Consistency. Construction grant
and permit decisions must be made in
accordance with certified and approved
WQM plans as described in §§ 130.63(a)
and (b). Likewise, financial assistance
under the State water pollution control
revolving funds may be made only to
projects which are in conformity with
such plans as specified in section 603 (f)
of the Act.
§130.61 [Amended]
16. Amend newly designated § 130.61
to remove and reserve paragraph (b)(2),
and remove paragraph (d).
17. Revise newly designated § 130.64
as follows:
§130.64
Tribes
Processing application for Indian
The Regional Administrator shall
process an application of an Indian
Tribe submitted under § 130.51(d) in a
timely manner. He shall promptly notify
the Indian Tribe of receipt of the
application.
[FR Doc. 00-17831 Filed 7-12-00; 8:45 am]
BILLING CODE 6561-12-P
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