United States Office of EPA 100-R-98-006
Environmental Protection The Administrator July 1998
Agency (1601F)
Report of the Federal Advisory
Committee on the Total Maximum
Daily Load (TMDL) Program
The National Advisory Council
For Environmental Policy and
Technology (NACEPT)
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Administrator Carol Browner
U.S. Environmental Protection Agency
401 M Street, S.W. (Mail Code 1101)
Washington, D.C. 20460
Dear Administrator Browner:
We are pleased to present to you the Final Report of the Federal Advisory Committee on the
Total Maximum Daily Load (TMDL) Program, a subgroup of the National Advisory Council for
Environmental Policy and Technology (NACEPT). This report responds to the U.S.
Environmental Protection Agency's (EPA) charge to us to recommend ways to improve the
effectiveness and efficiency of EPA, State, Territorial, and Tribal programs under Section 303(d)
of the Clean Water Act.
As a diverse group of business, non-profit, and government people, we found our common
commitment to improving the health of impaired waters enabled us to achieve consensus on many
matters. Our recommendations address many of the TMDL program's complex technical and
policy issues and suggest several new policy and programmatic directions. This report was signed
by every member of the Committee. While there are three minority reports and the text of the
report includes discussions of some issues on which members' views differed, we did agree on
most of the important issues. We fully support EPA's plan to review and revise the current
TMDL regulations and guidance through the usual Agency process of public participation and
comment. We would be pleased to support this process as individuals in whatever way we can.
Thanks to you and Bob Perciasepe for providing us with outstanding support throughout our
deliberations. We hope that you will give the recommendations in this report your full
consideration.
Sincerely,
Members, Federal Advisory Committee on the TMDL Program
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NOTICE
The following report and its recommendations have been written in conjunction with the
activities of the National Advisory Council for Environmental Policy and Technology
(NACEPT), a public advisory committee providing extramural policy information and
advice to the Administrator and other officials of the U.S. Environmental Protection
Agency (EPA). The Council is structured to provide a balanced, expert assessment of
policy matters related to the effectiveness of the environmental programs of the United
States. This report has not been reviewed for approval by the EPA. Hence, the contents of
this report and recommendations do not necessarily represent the views and policies of
the EPA, nor of other agencies in the Executive Branch of the federal government.
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ABSTRACT
The National Advisory Council for Environmental Policy and Technology (NACEPT) is a public advisory
committee originally chartered on July 7, 1988. NACEPT provides recommendations and advice to the
Administrator and other EPA officials on specific topics identified by the Administrator and Deputy
Administrator. NACEPT membership includes senior-level representatives of a wide range of EPA's
constituents, including: business and industry; academia; Federal, State, and local government agencies;
Tribal representatives; environmental groups; and non-profit entities. In 1996, the EPA Administrator
requested that a subgroup of NACEPT be convened to provide advice and develop recommendations for
strengthening the Agency's Total Maximum Daily Load (TMDL) Program.
The Federal Advisory Committee on the TMDL Program adopted its charge on November 19, 1996, as a
subgroup of NACEPT. The Committee's charge included: recommending ways to improve the
effectiveness, efficiency and pace of State, Tribal, and EPA TMDL programs under Section 303(d) of the
Clean Water Act; recommending the appropriate role of States, Federal agencies, Tribes, and members of
the public to achieve TMDL program success; and identifying barriers to success and recommending
ways to overcome them. Based on substantive deliberations, the Committee has produced this report
containing consensus stakeholder recommendations that fulfill this charge.
The Committee's specific recommendations cover many aspects of the TMDL program, including:
identifying impaired waterbodies (listing); implications of listing a waterbody; pace and scheduling of
TMDL development; criteria for developing and approving TMDLs; implementation planning; the TMDL
allocation process; special challenges; public communications; stakeholder involvement; tribal
participation; program/agency cooperation; and federal/State/Tribal capacity. The Committee
recommends several new programmatic directions for EPA, and also endorses some approaches that are
consistent with current EPA practice. The Committee's recommendations are based on the following
broad areas of agreement:
• Restoring impaired waters must be a high priority for all responsible agencies and sources.
• Implementing TMDLs is the key to program success.
• Communication with the public is crucial.
• Stakeholder involvement in the TMDL program is a key to successful implementation.
• Governments' capacity to carry out the TMDL program needs to be strengthened significantly.
• In cases of uncertainty, an iterative approach to TMDL development and implementation will
assure progress toward water quality standards attainment.
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Acknowledgements
The Committee wishes to recognize the following individuals or organizations who contributed greatly to the
Committee's deliberations. Included, in alphabetical order, are individuals and organizations that presented
information to the Committee, provided comments at public comment sessions, supported Committee
members in their efforts, or otherwise devoted significant time and energy.
Mary Abrams, City of Portland Bureau of Environmental Services
Kenneth Ashby, President of the Utah Farm Bureau
Deb Atwood, National Pork Producers Council
Amy Barry, Southern Utah Wilderness Alliance
Bob Baumgartner, Oregon Department of Environmental Quality
Sharon Beck, President-elect of the Oregon Cattlemen's Association
David Beckman, National Resources Defense Council
Steven Bednarz, Natural Resources Conservation Service (Texas)
Randy Benke, Attorney
Reed Benson, WaterWatch
Norman Black, Hampton Road Sanitation District
Donald J. Brady, Chief, Watershed Branch, USEPA
Darren Brandt, Idaho Department of Environmental Quality
Lewis Britt, National Cattlemen's Association
Albert Bromberg, Division of Water, New York Department of Environmental Conservation
Liz Callison, West Multnomah Soil and Water Conservation District
Bruce Cleland, National Expert on TMDLs, USEPA Region 10
Michael B. Cook, Director, Office of Wastewater Management, USEPA
Alice Crowe, American Petroleum Institute
Dr. Charles Cubbage, Michigan Department of Agriculture
James Curtin, USEPA
Mimi Dannel, USEPA
Cameron Davis, National Wildlife Federation
Margaret Delp, American Rivers
Theresa Dennis, California Farm Bureau Federation
Don Elder, River Network
Don Essig, Idaho Division of Environmental Quality
Glenn Eurick, Utah Mining Association and Barrick Resources
Lori Faha, American Public Works Association
Elizabeth Fellows, USEPA
Martha Fox, Attorney representing the Puyallup Tribe in Washington
Floyd Gaibler, Agricultural Retailers Association
Gary Garrison, Northwest Timber Workers Resource Council
Janet Gillaspie, Association of Clean Water Agencies
Bonnie Goodweiler, Wisconsin Department of Natural Resources
Kathy Gorospe, American Indian Environmental Office, USEPA
Emily Green, Sierra Club Great Lakes Program
Sharon Guyan, Wisconsin Department of Natural Resources
Doug Haines, Georgia Center for the Law and Public Interest
Mike Haire, Maryland Department of the Environment
Alan Hallum, Georgia Department of Natural Resources, Environmental Protection Division
Warren Harper, USFS
Myron Hess, Attorney, Henry, Lowerre, Johnson, Hess, and Frederick
Jim Hill, Klamath Tribe
Jim Hill, Medford Regional Water Reclamation District
Bruce Johnson, Fox-Wolf Basin 2000
Dr. Richard Johnson, Deere and Company Technical Center
Craig Johnston, Northwestern School of Law
Jim Kachtick, East Harris County Manufacturers Association
Gayle Killam, Oregon Environmental Council
Russell Kinerson, USEPA
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Anne Kinney, Wisconsin Department of Natural Resources
Drew Klein, Monsanto Corporation
Carol Kocheisen, National League of Cities
Paul Kraman, Northwest Indian Fisheries Commission
Walter Kuhlman, Attorney, Boardman, Suhr, Curry, and Field
Chris Laabs, USEPA
Linda Levy, Louisiana Department of Environmental Quality
Peter Maier, Intermountain Water Alliance
Langdon Marsh, Director of the Oregon Department of Environmental Quality
Wayne Martinson, National Audubon Society, Utah Chapter
Courtenay McCormick, National Corn Growers Association
Ted McKinney, Dow Elanco
Mike Medberry, Idaho Conservation League
Ron Mickle, Wyoming Department of Agriculture and the National Association of State Departments of Agriculture
Don Moore, Retired Fishery Biologist
James Murray, Urban Wet Weather Federal Advisory Committee
Mark Nestlen, National Association of State Departments of Agriculture
Allen Noe, American Crop Protection Association
Don Ostler, Utah Division of Water Quality
Fred Otley, Oregon Cattlemen's Association
Don Parrish, American Farm Bureau
Dave Peeler, Washington Department of Ecology
Bruce Pendery
Robert Perciasepe, Assistant Administrator for Water, USEPA
Walt Poole
John Promise, Regional Coordinator, North Central Texas Governments
Fred Reimufrr, Trout Unlimited
Jerry Retzer, Citizen of Portland, Oregon
Clyde Roberts, DuPont Ag Products
Barbara Romanowsky, Louisiana Department of Environmental Quality
Adrian Rosolie, Eugene Rosolie, Julian Rosolie
Roberta Savage, Association of State and Interstate Water Pollution Control Administrators
Duane Schuettpelz, Wisconsin Department of Natural Resources
Richard Schwer, DuPont
Mary Scurlock, Pacific Rivers Council
Allison Shipp, U.S. Geological Survey, Water Resources Division
AmySosin, USEPA
Elizabeth Southerland, Acting Director, Standards and Applied Science Division, OST, USEPA
Neil Strong, Novartis Corporation
Ted Strong, Director of the Columbia River Intertribal Fish Commission
Ruth Swanek, North Carolina Division of Water Quality
Sanjay Sayal, Wisconsin Department of Natural Resources
Arthur Talley, Texas Natural Resource Conservation Commission
Pete Test, Oregon Farm Bureau
Lial Tischler, Consulting Engineer, Tischler/Kocurek
Theresa Tuano
Bob Uphoff, Wisconsin Farmer
Mel Vargas, Texas Natural Resources Conservation Commission
Robert H. Wayland III, Director, Office of Wetlands, Oceans, and Watersheds, USEPA
Ivan Webber, Friends of Great Salt Lake
Thomas White, City of Racine, Wisconsin, and American Public Works Association
Randall Wilburn
Fran Wilshusen, Northwest Indian Fisheries Commission
Terry Witt, Oregonians for Food and Shelter
Bruce Zander, National Expert on TMDLs, USEPA Region 8
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TABLE OF CONTENTS
Preface/Signature Page
Executive Summary i
Chapter 1: Background on the Committee 1
1.1 The Committee's Charge 1
1.2 The Committee's Membership 1
1.3 The Committee's Process 1
Chapter 2: Introduction 3
2.1 Overview of the TMDL Program 3
2.2 Key Principles 5
2.3 Clarification of Key Terms 8
Chapter 3: Identifying Impaired Waters 10
3.1 Data Requirements for §303(d)(1) Listing 10
3.2 List Comprehensiveness 12
3.3 Threatened Waters 13
3.4 Possible Exemptions from Listing for Waters Subject to Alternative Control Strategies
(The So-called "Expected to Meet Waters") 14
3.5 Source Constraints and Actions During Period Between Listing and TMDL
Development 15
3.6 Delisting 18
Chapter 4: Scheduling/Priority Ranking/Targeting 20
4.1 Overall Timeframe for TMDL Development 20
4.2 Priority Ranking, Targeting, and Scheduling 22
Chapter 5: TMDL Development 25
5.1 Introduction/Review of Key Components of a TMDL 25
5.2 Modeling Issues/Data Needs/Uncertainty 26
5.3 Geographic Scope 29
5.4 Criteria for Approval 30
5.5 The Allocation Process 34
5.6 The Implementation Plan 36
5.7 Deadlines for Attainment 41
5.8 Nonpoint Source Approaches 41
5.9 Tracking and Assessing TMDL Effectiveness; the Importance of an Iterative or
Adaptive Approach 43
Chapter 6: Impairments Due to Extremely Difficult Problems, Atmospheric Deposition, and Flow
Modification 46
6.1 Extremely Difficult Problems 46
6.2 Atmospheric Deposition 48
6.3 Modifications to Flow 51
Chapter 7: Public Participation and Stakeholder Involvement 53
7.1 Public Participation in §303(d)(1) Listing and TMDL Development Activities 53
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7.2. Stakeholder Involvement in TMDL Development 55
Chapter 8: EPA's Role in TMDL Review and Program Oversight 58
8.1 EPA Oversight/Management of the TMDL Listing and Development Process 58
8.2 Assessing State Program Effectiveness: EPA's Role in Overall Program Development . . 60
Chapter 9: The Role of Tribes 62
Chapter 10: Coordination, Technical Support, and Capacity-Building 64
10.1 Coordinating Federal Activities for Waters Not Meeting Water Quality Standards .... 64
10.2 Coordination Challenges and Opportunities 66
10.3 Technical Guidance and Assistance Needs 70
10.4 EPA, State and Tribal Capacity 72
APPENDICES:
Appendix A: NACEPT Committee Charge
Appendix B: List of Committee Members
Appendix C: Committee Ground Rules
Appendix D: Contractor Information
Appendix E: Unaddressed Issues
Appendix F: Statutory and Regulatory Language
Appendix G: Outline of the Hierarchy Approach to TMDL Approval (with Examples)
Appendix H: Discussion Paper on Legal Authority for TMDL Implementation Plans
Appendix I: Minority Reports
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Preface/Signature Page
We, the members of the Federal Advisory Committee on the Total Maximum Daily Load (TMDL)
Program, submit this report to the United States Environmental Protection Agency (EPA) for its
consideration. Each of us is signing the report as an individual and not as a representative of any
organization or group. Member affiliations are included below for identification purposes only.
In submitting the report, we are endorsing EPA's plan to review and revise the current TMDL regulations
and guidance through the usual Agency process of public participation and comment. We hope that this
report is useful in advancing this process but recognize that the formal rulemaking process and an open
process for developing important program policies and guidance will best serve the interests of all
affected parties.
In developing the report, members considered and took positions on a large number of highly complex
issues in a very short period of time. The report contains many compromises. In accordance with the
Committee's working definition of consensus, some recommendations are included even though they
were opposed by one or two members. A member's signature does not necessarily represent agreement
with everything in the report. The minority reports and certain sections of the report itself address some
(but not all) areas where complete agreement was not achieved.
Bob Adler, Associate Professor
Wallace Stegner Center for
Land, Resources and the
Environment, University of
Utah College of Law
Nina Bell
Executive Director Northwest
Environmental Advocates
Frederic P. Andes
Sonnenschein Nath &
Rosenthal
Brad Burke
Southern Company Services,
Inc.
John Barrett
Cotton & Grain Producer
Cheryl Creson, Director
Sacramento Department of
County Engineering
Philip T. Cummings
The Accord Group
J. Dale Givens, Secretary
LA Department of
Environmental Quality
L.D. McMullen
Des Moines Water Works
Report of the Federal Advisory Committee on the TMDL Program, July 1998
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Preface/Signatures
William D. Nielsen
City Council President,
Eau Claire Wisconsin
National League of Cities
Jane Nishida
Maryland Department of
Environment
Robert J. Olszewski
The Timber Company
Rick Parrish
Southern Environmental Law
Center
John Roanhorse
Inter Tribal Council of
Arizona, Inc.
Danita Rodibaugh
Pork Producer and Grain
Farmer/National Pork
Producers Council
Melissa A. Samet
Earthjustice Legal Defense Fund
Lydia Taylor
Oregon Department of
Environmental Quality
Linda Shead, Executive
Director, Galveston Bay
Foundation
Susan L. Sylvester
Wisconsin Department of
Natural Resources
Ed Wagner
CH2M Hill
Report of the Federal Advisory Committee on the TMDL Program, July 1998
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Executive Summary
• Program Mission
The primary mission of the TMDL program is to protect public health and secure the health of impaired
aquatic ecosystems by ensuring attainment of water quality standards, including beneficial uses.
• Key Principles of the Report of the Advisory Committee on the TMDL Program
The Committee's specific recommendations are based on the following broad areas of agreement.
Restoring impaired waters must be a high priority for all responsible agencies and sources.
Implementing TMDLs is the key to program success.
Communication with the public is crucial.
Stakeholder involvement in the TMDL program is a key to successful implementation.
Governments' capacity to carry out the TMDL program needs to be strengthened significantly.
In cases of uncertainty, an iterative approach to TMDL development and implementation will
assure progress toward water quality standards attainment.
• Identifying Impaired Waters/Listing
Waters for which nonattainment is suspected but cannot be determined because more or higher
quality data are needed should be identified by States and given high priority for additional
monitoring.
Waters are to be listed under §303(d)(1) if they show nonattainment with water quality standards,
including numeric and/or narrative criteria and/or existing or designated beneficial uses.
Waters should be de-listed (removed from the §303(d)(1) list) when they attain water quality
standards or new information shows that the original basis for listing was inaccurate.
Threatened waters expected to move from attainment to nonattainment with standards over the
next two years should be placed on a discrete list for focused attention to prevent impairment.
• Implications of Being Listed
Until a TMDL is completed, States must implement the current NPDES regulatory restrictions against
permitting new point source discharges that will cause or contribute to the impairment; however,
State/stakeholder-developed stabilization plans may offer flexibility if parameter-specific net progress
toward attaining standards is demonstrated.
• Pace and Scheduling of TMDL Development
EPA regulations should provide that all TMDLs must be completed expeditiously but no later than
8 to 15 years after listing. EPA regulations should also provide that, generally, high priority
TMDLs be completed within five years after listing.
Report of the Federal Advisory Committee on the TMDL Program, July 1998
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Executive Summary
EPA should require by regulation that each State prepare a schedule for developing TMDLs for all
listed waters. EPA should issue guidance describing factors that may be used to determine the
order and pace for completing TMDLs. State workplans for completing TMDLs must show a
reasonably proportionate effort over time (e.g., must not delay work on TMDLs to the end of the
State's schedule for completing them).
Development of TMDLs
To achieve water quality standards, the TMDL development/implementation planning process
must produce seven components: 1) target identification; 2) identification of needed pollution
reduction; 3) source identification; 4) allocation of pollution loads; 5) implementation plan; 6)
monitoring and evaluation; and 7) procedures for any needed revision based on evaluation.
In developing TMDLs, States and EPA must use the highest degree of quantitative analytical rigor
available. A reasonable minimum amount of reliable data is always needed. Decisions and
assumptions based on best professional judgment must be well-documented. TMDLs for which a
high degree of quantitative analytical rigor is not possible in target identification and/or load
allocation should contain relatively more rigor or detail in their implementation plans, including
provisions for follow-up evaluation and potential revision based on the evaluation.
In some instances, TMDLs may include surrogate measures and measures other than daily loads.
These alternative measures must be protective of the water quality standard, and address the
effects of the pollution causing nonattainment.
EPA should revise its regulations to include basic principles for defining the geographic scope of
TMDLs under various circumstances.
Implementation
EPA should issue regulations requiring that an implementation plan be prepared for and
submitted concurrently with each TMDL. Among other things, the implementation plan would
describe control actions to be taken, the schedule for implementing those control actions, and
reasonable assurances that load allocations will be met. The plan would also establish a follow-
up monitoring and evaluation regime and a process for making any needed revisions based on
the evaluation.
In addressing point sources, States/EPA must set schedules for NPDES permit revisions to
wasteload allocations. In addressing nonpoint sources, States must identify the management
practices and measures to reduce, to the maximum extent practicable, the level of pollution they
contribute. EPA must assure that the combination of point and nonpoint controls/measures is
designed to attain water quality standards.
Report of the Federal Advisory Committee on the TMDL Program, July 1998
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Executive Summary
• Allocations
States have discretion in allocating pollution loads among sources as long as the allocations will
meet TMDL targets, but EPA should provide guidance on appropriate principles and information
on workable approaches to assist States.
EPA/States should ensure that future growth is considered in all allocation decisions and that
decisions on whether to allocate to growth, as well as the implications of these decisions, are
well-documented.
EPA should encourage States to allocate pollution reduction responsibilities equitably within a
watershed framework. States may consider such factors as cost-effectiveness, technical and
programmatic feasibility, relative source contributions, and certainty of implementation.
• Special Challenges
Waters impaired wholly or partly by extremely difficult historic problems are to be identified
under §303(d)(1). TMDLs for these waters should provide for reasonable reductions from existing
sources to the extent they can help achieve attainment, may allow a longer time for attainment
than other TMDLs, and are expected to require creative solutions.
EPA should conduct and encourage more research into the causes and solutions for waterbody
impairments due to atmospheric deposition.
Waters impaired wholly or partly by modifications to flow are to be identified under §303(d)(1).
Federal agencies should help solve flow-related nonattainment problems within theirjurisdiction.
EPA should provide assistance and information to States on addressing flow issues in TMDLs.
• Public Communications
Two-way communication with stakeholders, including the general public, is a critical element of a
successful TMDL program. States and EPA should actively solicit citizen comments, consider citizen-
nominated waters for §303(d)(1) listing, encourage citizen monitoring, and distribute educational
materials to stimulate public interest/involvement in watershed restoration and protection.
• Stakeholder Involvement
States and EPA should encourage and help stakeholders play an active role in supporting TMDL
development. States (and EPA, for any TMDLs for which it is responsible) should have written
agreements with stakeholders who will play a substantial role in TMDL development, including funding
and participation in data collection and analysis. States and EPA cannot delegate their legal responsibility
to ensure the adequacy of TMDLs and public participation processes and should be involved in
stakeholder efforts to support TMDL development.
Report of the Federal Advisory Committee on the TMDL Program, July 1998
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Executive Summary
• Tribal Participation
EPA should increase efforts to help educate Tribes about water quality programs, including TMDLs, and
to ensure that EPA and State water quality staff respect the government-to-government relationship with
Tribes in all TMDL activities.
• Program/Agency Cooperation
States should cooperate with each other and with Tribes to resolve shared water quality
problems, with EPA stepping in as necessary to address multijurisdictional problems.
EPA should ensure that programs under the Clean Water Act, the Clean Air Act, CERCLA, RCRA,
FIFRA, and its other authorizing statutes, are coordinated and implemented effectively to ensure
attainment of water quality standards.
Federal agencies should work cooperatively and proactively with EPA and States and must engage
in all appropriate activities with respect to attainment of State water quality standards and other
Clean Water Act requirements.
States are responsible for developing TMDLs on federal lands, with EPA assistance. Federal land
managers must assure that (waste)load allocations over which they have authority and oversight
are met.
• Federal/State/Tribal Capacity
A national dialogue at high policy levels is needed to increase support for and commitment to
restoring impaired waters.
EPA needs to strengthen its technical guidance and support to improve program efficiency and
State capacity to develop effective TMDLs.
Additional investments and/or reprogrammings of resources are needed to increase EPA, State,
and federal land management agency TMDL efforts, including efforts to improve State and federal
monitoring programs.
EPA should support State and Tribal TMDL program capacity-building efforts by, among other
things, providing sound analytical tools and methods to assess resource/staffing needs.
Report of the Federal Advisory Committee on the TMDL Program, July 1998
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Chapter 1: Background on the Committee
1.1
THE COMMITTEE'S CHARGE
The Federal Advisory Committee on the Total
Maximum Daily Load (TMDL) Program (hereafter
referred to as "the Committee") was established in
November 1996 by the United States
Environmental Protection Agency (EPA). The
Committee is charged with recommending ways
to improve the effectiveness and efficiency of
State, Tribal, and EPA programs under §303(d) of
the Clean Water Act. The Committee is a
subdivision of the National Advisory Council for
Environmental Policy and Technology (NACEPT),
and was established under the authority of the
Federal Advisory Committee Act. A copy of
NACEPT's specific charge to the Committee is
contained in Appendix A.
Generally, EPA and NACEPT asked the Committee
to develop advice on new policy and regulatory
directions for the program regarding its role in
watershed protection, the identification of
impaired waters, the pace of TMDL development,
the science and tools needed to support the
program, and the roles and responsibilities of
States, Tribes, and EPA in implementing the
program. In doing so, the Committee was
charged with identifying barriers to program
success, recommending ways to overcome them,
and suggesting criteria by which to measure the
success of each recommendation implemented.
The Committee's charge explicitly excluded
recommending statutory changes or changes to
Congressional appropriations.
1.2 THE COMMITTEE'S MEMBERSHIP
The twenty TMDL Committee members were
appointed by EPA Deputy Administrator Fred
Hansen, based on a determination that the group
would be geographically balanced and highly
motivated, including individuals with diverse
interests in, knowledge of, and broad perspectives
on the complex issues involved. Members
included State officials with responsibility for
managing the program, local officials, a Tribal
consortium representative, farmers, a forestry
representative, environmental advocacy group
representatives, industry representatives, a law
professor, the executive director of a watershed
management council, and an environmental
consultant. They also had broad experience in
both government and the private sector. The
members brought with them diverse professional
expertise, including law, science, public policy,
management, public advocacy, and engineering.
Representatives of the United States Department
of Agriculture's Natural Resources Conservation
Service, the United States Forest Service, and
EPA's Office of Water served as ex officio
members of the Committee and provided
information and perspectives on the issues.
A complete list of the Committee's members,
along with their affiliations, is included as
Appendix B.
1.3 THE COMMITTEE'S PROCESS
The Committee met in six plenary sessions of two
to three days each between November 1996 and
May 1998. Meetings were held at various
locations around the country in order to
encourage public participation reflecting diverse
regional concerns about TMDL development and
Report of the Federal Advisory Committee on the TMDL Program, July 1998
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watershed management. Meeting locations
included: Herndon, VA; Galveston, TX;
Milwaukee, Wl; Portland, OR; Salt Lake City, UT;
and Atlanta, GA.
Each meeting was announced in the Federal
Register and announcements were circulated to
interested parties in the general locale of the
meeting site. Each meeting was open to the
public and included at least one public comment
session during which members of the public
provided advice and recommendations to the
Committee on a wide range of water quality
protection matters. Committee members often
engaged in dialogue with members of the public
during these sessions. In addition, documentation
of Committee proceedings has been made
available through an EPA web site
(http://www.epa.gov/OWOW/tmdl/advisory.html)
and in hard copy to many parties interested in
TMDLs.
The Committee established ground rules to govern
its operations, a copy of which is provided at
Appendix C. Generally, its process was intended
to identify problems, work toward solutions, and
achieve a consensus on specific recommendations
through open discussion and exchange of views.
For example, some plenary sessions included
breakout sessions in which several small groups of
members worked on the same issues in order to
allow time for detailed dialogue without the
formality of a full Committee deliberation. These
breakout sessions were open to the public.
In addition to its plenary meetings, subgroups of
the Committee met by teleconference on a regular
basis in the periods between plenary sessions.
The Committee established five standing
Workgroups: (1) Listing (to address the process for
identifying and tracking impaired waters); (2)
Science and Tools (to identify priorities for
strengthening the technical aspects of the TMDL
program); (3) Criteria for Approval (to address the
requirements for an adequate TMDL); (4)
Management and Oversight (to address roles and
responsibilities of government agencies and
oversight of the program); and (5) Framework (to
assure that the Committee's process would lead to
a unified vision for the TMDL program). These
Workgroups and a variety of ad hoc subgroups
developed issues analyses and recommendations
for the full Committee and worked toward a
consensus on specific issues primarily through
telephone conferences and exchange of draft
documents. Members also worked together in
small groups and one-on-one outside formal
Committee proceedings to explore issues and
reach consensus.
The Committee was supported by EPA staff and by
consultants retained by EPA to help arrange
meeting logistics, prepare agendas, gather
necessary background information, document
proceedings, draft issue papers and provide
analysis as appropriate, facilitate plenary and
subgroup meetings, and foster public
participation. Information on the consultants,
who were from Ross & Associates Environmental
Consulting, Ltd. and Tetra Tech, Inc. is provided
in Appendix D.
Because of the limited time available to it, the
Committee did not have time to address some of
the issues considered important by one or more
members. A list of these unaddressed issues is
included as Appendix E.
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Chapter 2: Introduction
Chapter 2: Introduction
2.1
OVERVIEW OF THE TMDL PROGRAM
The TMDL program is aimed specifically at
assuring attainment of water quality standards by
requiring the establishment of loading targets and
allocations for waters identified as not now in
attainment with those standards. Generally,
§303(d)(1) of the Clean Water Act (the Act)
provides that States, with EPA review and
approval, must identify waters not meeting
standards and establish total maximum daily loads
(TMDLs) for them to restore water quality. If the
States do not complete these actions, EPA must do
so.
The Act includes several other programs that also
help restore and maintain the quality of the
nation's water resources. These programs include
national technology-based effluent limitation
guidelines, national water quality criteria
guidance, State water quality standards, State
nonpoint source management programs, funding
provisions for municipal wastewater treatment
facilities, State water quality monitoring programs,
and the National Pollutant Discharge Elimination
System (NPDES) permit program for point sources.
These programs have produced significant and
widespread improvements in water quality over
the last quarter-century. Knowledge and
understanding of water quality problems and the
tools to address those problems have advanced in
that time in that time as well, but many waters still
do not meet State water quality standards, and
TMDLs have not been established for most of
those waters.
Two programs very closely related to TMDLs—
water quality monitoring and water quality
standards—are of particular concern to the
Committee. More and higher quality data on
water quality are needed for proper identification
of impaired waters and to support TMDL
development. In addition, without adequate and
complete water quality standards, including
numeric and narrative criteria to support
beneficial uses, water quality problems may not
be identified and TMDL development will be
slower and more difficult. Strengthening the
monitoring and standards programs will help
strengthen the TMDL program.
The final National Water Quality Inventory Report
to Congress for 1996 indicates that of the 19% of
the nation's rivers and streams that have been
assessed, 35% do not fully support water quality
standards or uses and 8% are considered
threatened. Of the 72% of estuary waters
assessed, 38% are not fully supporting
uses/standards and 4% are threatened. Of the
40% of lakes, ponds and reservoirs assessed (not
including the Great Lakes), 39% are not fully
supporting uses/standards and 10% are
threatened.
Generally, under §303(d)(1), States are required to
identify and establish a priority ranking for waters
not meeting water quality standards, taking into
account the severity of the pollution and the uses
to be made of the waters. EPA is required to
review each State list and approve it or, if it is
deemed inadequate, to disapprove it and prepare
a list for the State. Once the list is established,
States are to develop a TMDL for each listed
water. EPA is also required to review and approve
or disapprove each TMDL (within 30 days of
submittal by the State) and then establish a TMDL
in the case of any disapproval. This program to
address waters not meeting water quality
standards is known as the "TMDL Program."
The Act (in §303(d)(3)) requires that States
estimate TMDLs for informational purposes, but
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Chapter 2: Introduction
they need not be submitted to EPA for approval
and EPA has no direct authority to step in if a
State fails to act. Although some TMDLs have
been completed for waters not listed under
§303(d)(1), States have not adequately
implemented the requirement of §303(d)(3) to
complete TMDLs for all waters. It should be
noted that a water may be in nonattainment for
some parameters of applicable standards but not
other parameters and, therefore, may fall under
both §303(d)(1) (for the nonattainment parameter)
and §303(d)(3) (for the attainment parameter).
Generally, the TMDL program uses a parameter-
specific approach. However, the use of a broad,
watershed approach, considering all water quality
problems and their related causes and solution, is
to be preferred and encouraged.
In general, a TMDL is a quantitative assessment of
water quality problems, contributing sources, and
pollution reductions needed to attain water
quality standards. The TMDL specifies the amount
of pollution or other stressor that needs to be
reduced to meet water quality standards, allocates
pollution control or management responsibilities
among sources in a watershed, and provides a
scientific and policy basis for taking actions
needed to restore a waterbody.
In 1991, EPA published guidance explaining the
role of TMDLs in watershed protection. In 1992,
EPA amended its regulations to describe in greater
detail requirements for States to submit lists of
waters needing TMDLs. Among other things, the
revised regulations required States to submit lists
every two years and to target waters for which
TMDLs would be developed during the next two
years. (See Appendix F for copies of the statutory
and regulatory language.) Over the past few
years, EPA has published several additional
guidance and policy documents relating to
§303(d)(1) lists and TMDL development.
Indian Tribes, as well as States, may be authorized
to implement the TMDL program for waters within
theirjurisdiction. To date, however, most Tribes
involved in water quality management are
focusing on establishing water quality standards
and other Clean Water Act programs and/or are
building watershed-based cooperative
management processes. No Tribe has yet sought
or received authorization to carry out the federal
TMDL program.
Beginning in 1986 and escalating since 1996,
environmental public interest organizations have
filed numerous lawsuits under the Clean Water
Act's citizen suit provision (§505) alleging that
EPA had failed to carry out its mandatory duty to
disapprove inadequate State §303(d)(1) lists
and/or TMDLs or to carry out State program
responsibilities where States failed to do so. As of
the beginning of 1998, more than 20 suits had
been filed. Five additional notices of intent to sue
were also pending in early 1998. At that time,
about ten of the lawsuits had resulted in court
orders and/or settlements with plaintiffs. (A
number of these settlements were based on State
commitments to EPA to establish TMDLs on a
specified schedule and EPA commitments both to
step in if States falter and otherwise strengthen the
TMDL program.) Some suits had been dismissed
and others were still pending.
Currently, all States have EPA-approved 1996
§303(d)(1) lists, but the content and scope of
these lists vary greatly among States.
Development of TMDLs is being initiated at an
increasing pace in some States, but most TMDLs
remain to be completed. Many of the waters still
needing TMDLs are impaired by contributions
from both point and nonpoint sources.
EPA has undertaken a variety of steps to
strengthen the TMDL program, including
establishing this Federal Advisory Committee.
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2.2
KEY PRINCIPLES
The detailed recommendations in this report are based on certain important broad areas of agreement
among Committee members. Key among these areas of agreement are the six inter-related precepts in this
Section.
1.
Restoring Impaired Waters Must Be a High Priority for All Responsible Agencies and Sources
Waters not meeting the Clean Water Act's basic
goals deserve special care and attention. Section
303(d)(1) establishes the Clean Water Act's
primary mechanism for addressing water quality
impairments—the TMDL program. Developing
and implementing TMDLs, as required by the Act,
should be a high priority for EPA and State
agencies, federal land managers, point sources
and nonpoint sources, local governments, and
other stakeholders. Many provisions of the Act
address impaired waters and authorize actions to
improve water quality. (Note, for example, that
§304(1) focuses on waters impaired by toxic
pollutants and §319 focuses on waters impacted
by nonpoint sources.) However, of all Clean
Water Act provisions, only the §303(d)(1) TMDL
program provisions focus broadly on waters that
do not meet water quality standards, including
beneficial uses.
The Committee believes it is critical for
stakeholders as well as relevant federal and State
agencies, to assign high priority to supporting
completion of and implementing TMDLs. All
contributors to remaining impairments—e.g.,
including affected point and nonpoint sources,
industry, agriculture, forestry, mining,
construction, municipalities, and affected tax- and
rate-payers—are among stakeholders in the TMDL
program and need to contribute to solving these
problems. Federal land managers should also
help assure completion and implementation of
needed TMDLs on the lands they manage. As a
matter of equity, all those sectors of society
preventing the nation's waters from attaining their
full beneficial uses should contribute to cleaning
up impaired waters. All stakeholders, including
environmental groups, resource users, and the
general public, have a right to participate fully in
all aspects of TMDL decision making.
2.
Implementing TMDLs Is the Key to Program Success
This Committee's primary interest is in
expeditiously eliminating water quality
impairments. The TMDL program must help the
nation achieve the federal goal of restoring and
protecting the physical, chemical and biological
integrity of the nation's waters. To do this, the
pace of TMDL development needs to be increased
substantially, and TMDLs need to be implemented
promptly. The identification of impaired waters
and development of TMDLs will require a
significant commitment of State and federal
resources and must not be merely a planning
exercise to satisfy a statutory directive. TMDLs
must be implemented if standards are to be
attained.
Improving the TMDL program, in large measure,
will mean improving the way a wide range of
State and federal actions are directed at restoring
impaired waters. Direct ties are needed between
the TMDL program and the programs that
implement TMDL allocations to keep efforts
focused on achieving water quality improvements
and restoring full protection of beneficial uses.
The TMDL itself does not establish new regulatory
controls on sources of pollution. (For example,
wasteload allocations for point sources need to be
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Chapter 2: Introduction
incorporated into enforceable NPDES permits.)
To assure implementation of TMDLs, EPA, States,
Tribes, federal land managers, and local
governments must effectively exercise their legal
authorities and mobilize programs, resources,
incentives, and public education efforts to
implement TMDLs. Private landowners,
businesses, and citizens must respond to these
challenges with their own efforts, resource
commitments, and support for water quality
restoration. States and EPA need to establish
definite milestones and schedules for specific
actions to fully implement TMDLs.
3.
Communication with the Public is Crucial
All stakeholders, including the general public,
have a right to know about the health of their
water bodies and, especially, about waters that are
impaired and require corrective action.
Stakeholders have a right to participate by
contributing information and views as decisions
are being made about actions that will affect water
quality. When stakeholders contribute reliable,
relevant information on water quality, agencies
must consider that information in making listing
decisions and developing TMDLs. It is critical
that States and the public exchange information
and views early in the process, when decisions
are being considered on the need for additional
data collection and States are interpreting their
standards for use in the listing and TMDL
development processes. State and EPA public
communications on TMDLs need to be more
inclusive and consistent than they have been to
date.
4.
Stakeholder Involvement in the TMDL Program Is a Key to Successful Implementation
Agencies sometimes lose sight of the need to
motivate and involve those who can or are
required to take action to remedy water quality
impairments. Inviting and encouraging
stakeholders to become involved and winning
their support and commitment to implement
TMDLs is important in all aspects of the program.
This may be especially useful in stimulating
voluntary action that goes beyond compliance
with regulatory requirements.
Environmental agencies need to work with
stakeholders, including the general public, on
TMDL development and implementation on an
individual watershed basis. States and EPA have a
responsibility to establish and foster existing
effective partnerships with businesses,
governments at all levels, private landowners,
resource user groups, environmental advocacy
groups, watershed councils, and others with the
potential ability to advance implementation of a
TMDL. Where new efforts are needed to establish
effective working relationships, these efforts
should begin at the time characterization of a
water is beginning and continue through the
TMDL process, until attainment is achieved.
States and EPA retain responsibility for making
listing and TMDL establishment decisions in
accordance with the law, but stakeholders will
support governmental decisions and take action to
solve water quality problems most readily when
they are involved in the overall process.
5.
Governments' Capacity to Carry Out the TMDL Program Needs to Be Strengthened Significantly
More needs to be done in most aspects of the
program to assure development and
implementation of TMDLs, a higher degree of
consistency (nationally, regionally, and within
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Chapter 2: Introduction
States), and a more sound scientific and policy
basis for decision making. From water quality
standards-setting to ambient monitoring and
through TMDL implementation follow up, more
complete and useful national regulations,
guidance, technical support, and tools are
needed. In almost all program areas in both EPA
and State water quality agencies, staffing levels
and resources need to be increased in order to
meet the program's challenges.
The Committee is pleased that EPA has worked
closely with it over the past months and has
continued to make progress in strengthening
TMDL program guidance and technical support.
However, the infrastructure (including regulations,
guidance, technical support, modeling tools,
ambient data, and staffing) of the TMDL program
is inadequate given the need to address water
quality impairments. Efforts to achieve
improvements must increase. Not only EPA, but
also other federal agencies need to determine how
to adjust programs and activities and take action
wherever possible to carry out the law more
effectively to assure water quality standards
attainment. Federal capacity to support TMDL
program objectives needs to be increased.
At the State level, similar capacity and
infrastructure improvements are needed.
Technically sound, comprehensive water quality
monitoring, increased and more effective
coordination of water quality programs (including
but not limited to Clean Water Act programs), and
more technical expertise in TMDL-related matters
are critical. Funding and staffing levels in State
TMDL (and TMDL-related) programs are lower
than is needed to meet the requirements of federal
law. EPA can support States in improving their
capacity to carry out the TMDL program by,
among other things, providing tools for
appropriate resource needs analysis and
promoting a national dialogue on the importance
of restoring impaired waters to water quality
standards attainment.
6. In Case of Uncertainty, an Iterative Approach to TMDL Development and Implementation Will
Assure Progress toward Water Quality Standards Attainment
In all cases, the goal of the TMDL program is to
establish TMDLs that will lead to expeditious
attainment of water quality standards. For many
waters, TMDLs can be developed and
implemented with confidence based on readily
available data. For some waters, there may be
less certainty about how to restore water quality
or, despite best efforts, the initial TMDL does not
produce full attainment of water quality standards.
Even in these cases, progress can be made.
Lack of certainty is not an excuse for inaction.
Rather, it is a reason to use the best possible data
readily available on each impaired water and then
to take a reasonable, balanced, scientifically
defensible, iterative approach to setting goals and
implementing actions to achieve standards. States
should set goals and develop implementation
plans based on reliable existing data, provide for
additional data gathering and monitoring of
results achieved, assess the need for revision
according to specified schedules, and revise goals
and implementation plans as appropriate. It is
always necessary to use the best available science
and the most reliable, readily available data to
avoid imposing unnecessary costs on sources and
to assure the efficacy of strategies to meet
standards.
On a broad programmatic basis, some general
TMDL decision criteria can be simple and clear-
cut and, where this is the case, the criteria should
be clearly defined by EPA. However, much of
EPA's TMDL guidance will need to address
categories of waters, stressors, or sources, rather
than generalizing for all of them. Additional
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Chapter 2: Introduction
research may be necessary to address unanswered
scientific questions. Procedures and decision
criteria may need to consider a wide range of
complex hydrological, chemical, biological,
physical, political, economic and social issues.
This will take time. Qualified professionals need
to make judgments based on the facts, current
scientific understanding, and reasonable,
scientifically defensible assumptions. In the end,
there may be relatively few "cookie-cutter"
approaches to developing TMDLs for impaired
waters. However, as TMDLs are completed for
difficult problems, later TMDLs for similar
problems will be easier to complete. For certain
TMDLs, the iterative approach will allow for
expeditious progress toward attainment of water
quality standards as EPA's guidance and the
general level of scientific understanding continue
to improve.
The following chapters of this report address specific aspects of the TMDL program that the Committee
has identified as particularly important to the TMDL program. The recommendations in these chapters
are intended to assist EPA in identifying the highest priorities for strengthening the program. The
Committee focused on policy rather than legal considerations. Some members are confident that legal
authority exists for implementation of the Committee's recommendations. Other members are uncertain
whether legal authority exists for implementation of some recommendations. The Committee recognizes
that EPA will need to determine whether authority exists.
2.3
CLARIFICATION OF KEY TERMS
Throughout this report, the term "pollution
load allocation" is used in lieu of "pollutant
load allocation." The Committee recognizes
that there legal questions have been raised
over whether TMDLs are required for all types
of pollution, or only for the discharge of
pollutants. However, the Committee was not
able to reach agreement on this legal issue.
("Pollution" is used as a default term for
reasons related to the drafting history of the
report.) Some members of the Committee
believe that TMDLs for all sources of pollution
are necessary to address all impaired waters
listed under §303(d)(1). Other members
believe that the program should be limited to
pollutant loads because TMDLs are best suited
to addressing those issues.
Throughout this report, where States are
mentioned, Tribes that may ultimately be
authorized to implement the program are
intended to be included. Tribes may also be
stakeholders in TMDL processes for waters not
on their lands but affecting their rights or
water quality. Throughout this report,
wherever stakeholders are mentioned, such
Tribes are intended to be included.
The term stakeholders, as used in this report,
is intended to be read broadly, and would
include, at a minimum, the following: the
general public; environmental and other
public interest groups; affected tax- and
rate-payers; affected point and nonpoint
sources (including industries, landowners, and
wastewater treatment owners and operators);
and interested or affected governmental units
with public responsibilities but who are not
directly responsible for TMDL development
(e.g., local governments and various State,
Tribal, and federal agencies).
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CAUTION TO READERS OF THIS REPORT:
It is very important to read the recommendations the report are interrelated and some components
in this report together, as a whole. Individual are explained or clarified in other Chapters.
recommendations should not be taken out of
context. Many Sections and recommendations in
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Chapter 3: Identifying Impaired Waters
BACKGROUND
Section 303(d) of the Clean Water Act directs
States, authorized Tribes, and/or EPA to identify
and list all waters for which the first round of
technology-based standards are not stringent
enough to meet applicable water quality
standards. By regulation, EPA expanded upon this
provision to include more stringent effluent
limitations and pollution control requirements.
According to EPA, waters that do not meet any
water quality standard component, including
numeric or narrative criteria or designated uses,
must be included on the §303(d)(1) list.
EPA regulations at 40 CFR 130.7(b)(5) direct States
to base listing decisions on "all existing and
readily available water quality-related data and
information," including both monitored and
evaluated data and information. "Monitored" data
refers to direct measurements of water quality,
including sediment and some fish tissue analyses.
"Evaluated" data and/or information provides an
indirect appraisal of water quality through
information on historical adjacent land uses,
riparian health and habitat, the location of
sources, results from predictive modeling using
input variables, and some surveys of fish and
wildlife.
3.1 DATA REQUIREMENTS FOR §303(d)(1) LISTING
Problem
Statement
Discussion
Well-designed monitoring programs are vital elements in environmental agencies'
overall efforts to characterize, identify, and ensure the protection and restoration of
waters not meeting or not expected to meet water quality standards. However,
monitoring is expensive and time-consuming and environmental agency resources
for monitoring have declined in recent years. Monitoring resources will need to be
carefully focused to have the greatest positive influence on water quality.
We recognize that the costs associated with implementing TMDLs may impact
communities and businesses located along listed waters. If properly implemented,
however, the TMDL program will improve the quality of waters listed pursuant to
§303(d)(1) and will benefit those communities and businesses, as well as the
environment. It is critical that §303(d)(1) listing decisions be based on high quality,
sound scientific information. If waters are now listed on the basis of inadequate
data, however, TMDL development resources are being diverted from addressing
clearly documented impairments. On the other hand, some States may currently be
omitting waters from their §303(d)(1) lists for which some, though inadequate or
incomplete, data and/or information indicate nonattainment of standards. In
addition, only a fraction of all waters are monitored to identify impairments, and
many other waters are tested for only limited types of impairments. What are the
minimum data requirements needed to support §303(d)(1) listing? Should States
omit waters from their lists on the basis of data age, quantity, type, or source? How
should evaluated data or information be used during listing?
The Committee endorses EPA's position that listing decisions should be based on
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Chapter 3: Identifying Impaired Waters
"all existing and readily available water quality-related data and information." A
State's first and most important task is to use the best information it can acquire to
conscientiously identify all waters within its boundaries that do not meet water
quality standards. (Some additional suggestions for improving water quality
monitoring for TMDLs are also provided in Chapter 10 of this report.) We
encourage agencies to establish QA/QC programs and other means of assuring that
water quality data are reliable and to consider all reliable data and information,
including that collected by citizen volunteers and dischargers, during §303(d)(1) list
development.
For types of impairment amenable to assessment using monitored data, we strongly
prefer basing §303(d)(1) listing decisions on monitored data but recognize that most
environmental agencies' monitoring networks may not be comprehensive enough to
provide such information, both in terms of the geographic scope and the types of
data collected. We recognize, furthermore, that some types of impairments may not
be amenable to monitored data. As a result, agencies may sometimes need to use
evaluated data and information. Evaluated data and information can be especially
useful in determining attainment of uses. This information is appropriate to use in
direct support of listing decisions, however, only when it is reliable and in
accordance with applicable data collection and/or QA/QC program requirements.
Inefficiencies in coordinating and funding monitoring programs create barriers to the
accurate identification of waters not meeting water quality standards and supporting
TMDL development. This is a problem State, Tribal, and EPA monitoring programs
must address and is a serious concern to the Committee. (See Chapter 10 for more
discussion on this point.) Because the Committee's charge was to recommend
changes to the TMDL program, specifically, we did not study monitoring program
issues in detail.
Our recommendations in this section focus most specifically on EPA actions to
improve initial identification of water quality impairments in support of §303(d)(1)
listing. Data collected to assess attainment of all components of water quality
standards (rather thanjust numeric criteria) will allow faster and more reliable
§303(d)(1) listing decisions.
E Recommendations
1. The Committee recommends that EPA require and assure needed improvements in State efforts to
monitor waters to characterize the general health of aquatic systems and determine
(non)attainment of any component of water quality standards, including narrative criteria and
designated uses.
2. The Committee recommends that EPA encourage States to collaborate with water utilities, other
agencies, and other stakeholders to identify impaired drinking water supplies and other types of
nonattainment.
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Chapter 3: Identifying Impaired Waters
3. The Committee recommends that EPA issue guidance providing that States base listing decisions
to the maximum extent possible on monitored and evaluated data and information gathered in
accordance with appropriate QA/QC program and data collection and analysis protocols.
4. The Committee recommends that EPA revise §106 guidance, as appropriate, to reflect State
monitoring program changes needed to support §303(d)(1) listing needs.
5. The Committee recommends that EPA strongly encourage States to identify (on a separate non-
§303(d)(1) list) waters for which some data indicate impairment (although the data are not
conclusive), and to give these waters priority for monitoring attention.
3.2
LIST COMPREHENSIVENESS
Problem
Statement
Discussion
The Clean Water Act in §303(d)(1) directs States to (1) identify all waters within their
boundaries for which the first round of point source effluent limitations are "not
stringent enough to implement any water quality standards applicable to such
waters," (2) include these waters in a §303(d)(1) list submittal to EPA, and (3) rank
and schedule these waters for TMDL development. Should States be allowed to
consider factors other than nonattainment during §303(d)(1) list preparation?
Should States be required to list all impaired waters or can special exemptions be
provided, such as factors related to uncertainty, cost, availability of Clean Water Act
controls, or deference to other watershed programs?
The §303(d)(1) list should, and under law must, identify waters that do not meet
water quality standards following the application of required pollution controls. The
Committee concurs with EPA's current approach of considering all components of
water quality standards, including use designations, during §303(d)(1) listing.
(However, see Section 3.3 (Threatened Waters) and Section 6.2. (Atmospheric
Deposition) for further Committee discussion of specific related issues.)
We recognize that State/Tribal numeric criteria may not adequately reflect the
desired water quality condition to support existing and designated uses and may
occasionally need to be revised (e.g., to address natural background conditions
appropriately or to establish additional numeric criteria to protect designated uses).
Such deficiencies, however, cannot be wholly "cured" through the TMDL program
but must also be addressed by State/Tribal standards programs. We are very
concerned about the need to improve and further develop EPA's water quality
criteria guidance and State/Tribal water quality standards and encourage EPA to
strengthen these programs in the near future. The Committee, however, did not
discuss water quality standards program issues in detail.
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E Recommendations
1. The Committee recommends that each State §303(d)(1) list identify waters not attaining water
quality standards (including narrative and numeric criteria and beneficial use designations). (But,
See Section 3.3 regarding Threatened Waters, Section 3.4, regarding waters expected-to-meet
standards based on existing or planned control requirements, and Chapter 6 regarding other
Special Situations.)
2. The Committee recommends that EPA issue guidance and regulations that explain how States are
to apply narrative criteria in §303(d)(1) listing.
3. The Committee recommends that the possibility of future standards revisions not delay TMDL
development. EPA should encourage States to conduct their reviews of water quality standards in
a timely manner, and in accordance with established water quality review standards. If, however,
States modify existing standards, they should not wait until the next listing cycle to determine
whether the water does not meet the newly adopted standard.
4. The Committee recommends that EPA, in conjunction with States and Tribes, develop a strategy
for addressing drinking water contaminants, especially pathogenic organisms in source water, in
water quality standards, §303(d)(1) listing decisions, and TMDLs. Similar strategies should be
developed for other types of severe water quality problems such as those related to fish
contamination and severe aquatic life impairment.
3.3 THREATENED WATERS
Problem One of the Clean Water Act's fundamental goals is to protect water quality from
Statement deterioration. This goal is to be implemented, in part, through antidegradation
policies, which are components of State/Tribal water quality standards. EPA's
antidegradation policy seems to be inconsistently applied by States and Tribes. As a
possible result, waters that might have been protected from imminent impairment
have not been and, over time, may move out of attainment with water quality
standards. Generally, the Committee considers it more desirable, both
economically and environmentally, to protect than to restore water quality. Given
this, how should threatened waters be treated under §303(d)(1)?
Discussion EPA's regulations direct States and authorized Tribes to identify threatened waters on
the §303(d)(1) list but do not specifically define such waters. To date, this listing
requirement has not been strictly followed even though threatened waters may
benefit from TMDL program attention. Through the TMDL process, environmental
agencies aware of a water's "threatened" status can make appropriate management
decisions for such waters (e.g., on permitting, nonpoint source program priorities,
and monitoring) and thus prevent impairments. On the other hand, States/Tribes
could rely on other existing Clean Water Act authorities (e.g., the antidegradation
policy and §319 programs) to address threatened waters without relying on TMDLs.
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Chapter 3: Identifying Impaired Waters
If threatened waters were not identified on §303(d)(1) lists, the TMDL program
could focus more effectively on addressing existing impairments.
E Recommendations
1. The Committee recommends that EPA adopt by regulation the following definition of threatened
waters if the agency continues to require §303(d)(1) listing of these waters.
"Threatened waters are those waters that are likely to exceed water quality standards within the
next two years (i.e., within the next §303(d)(1) listing cycle). This determination should be based
on data that show a statistically significant declining trend or on agency knowledge of specific
pending changes (e.g., requests for new permits) that would adversely impact water quality."
2. The Committee recommends that EPA and State water quality programs work to protect waters in
attainment with standards from further degradation and provide incentives/disincentives to keep
waters from moving to nonattainment status.
3. The Committee believes it would be desirable for States/Tribes to deal with threatened waters in
a consistent manner.
4. The Committee recommends that threatened waters be addressed at a geographic scale that
allows the State to identify and address broadly the causes of and potential solutions to the
pending water quality nonattainment problem. Constraints placed on source activities along
threatened waters should be tailored to the specific problem/situation.
5. The Committee recommends that EPA strengthen its implementation of federal antidegradation
requirements and require full implementation of State antidegradation policies.
6. The Committee recommends that threatened waters be put on a discrete list for focused
attention, with the goal of keeping them from becoming impaired.
7. The Committee recommends that a watershed-based loadings analysis be performed for
threatened waters as soon as possible, consistent with the State's TMDL priority list, but at a
minimum before the State issues new or modified permits that allow increased discharges to a
threatened water or allows other actions that would contribute to increased pollution to a
threatened water over which the State has approval authority. The analysis would not necessarily
include all of the components of a TMDL for impaired waters, but would have to provide for
restoration so that the water is no longer threatened.
3.4 POSSIBLE EXEMPTIONS FROM LISTING FOR WATERS SUBJECT TO ALTERNATIVE CONTROL
STRATEGIES (THE SO-CALLED "EXPECTED TO MEET WATERS")
Problem There are many waters that fail to meet water quality standards but for which other
Statement pollution control requirements or actions are planned or are being implemented that
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Chapter 3: Identifying Impaired Waters
are expected to provide for standards attainment. Under EPA's guidance, States
have the option not to list these waters under §303(d)(1) in specific circumstances.
Should the TMDL program treat these waters like other waters not meeting water
quality standards or, alternatively, track them elsewhere?
Discussion The term "expected to meet" is not found in the statute or regulations governing the
TMDL process but can be inferred from the regulatory language found at 40 CFR
130.7(b)(1). EPA's 1991 TMDL guidance provides that States may decide not to list
water-quality limited waters when the planned controls (as specified in 40 CFR
130.7(b)) are enforceable, specific to the pollution problem, stringent enough to
meet water quality standards, and either being implemented or subject to an
implementation schedule. EPA's 1993 listing guidance provides further clarification,
stating that where needed load reductions are to be attained through additional
nonpoint source controls, such controls should be expected to lead to attainment of
standards by the next listing cycle. If not, the waterbody should be listed.
The Committee felt strongly that "expected to meet" waters should be tracked
carefully for progress toward standards attainment. We were unable to reach
agreement, however, on whether States should have the option to exclude "expected
to meet" waters from the §303(d)(1) list. Some Committee members supported
EPA's current approach (as articulated in the guidance) and felt that it provided a
strong incentive to improve water quality while allowing States to take advantage of
solutions already established by related regulatory programs.
Other Committee members could support exemptions from listing only if the
existing policy is established in regulations and the following details are included:
1. A specific timetable for water quality standards attainment is included; and
2. The exemption is granted only once after a waterbody's initial identification
as "expected to meet" and is non-renewable.
3.5 SOURCE CONSTRAINTS AND ACTIONS DURING PERIOD BETWEEN LISTING AND TMDL
DEVELOPMENT
Problem The goal of the Clean Water Act is to restore and maintain the chemical, physical,
Statement and biological integrity of the Nation's waters. For point sources, this is
accomplished primarily through the NPDES permitting program (pursuant to which
States/Tribes are to establish individual permit conditions, including effluent
limitations, that protect waters from violating water quality-standards). For nonpoint
sources, this is accomplished through a mixture of regulatory and voluntary and/or
incentive-based programs.
Point Sources: Section 302(a) of the Act requires that where a water quality
permitting authority determines that "discharges of a pollutant from a point
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Chapter 3: Identifying Impaired Waters
source...would interfere with the attainment or maintenance of [applicable] water
quality standards, effluent limitations (including alternative effluent control
strategies) for such point source...shall be established which can reasonably be
expected to contribute to the attainment or maintenance of such water quality." To
protect waters that do not meet water quality standards from new sources (as defined
in regulations at 40 CFR 122.2—included in Appendix F of this report) of problem
pollutants, EPA regulations provide (in part) at 40 CFR 122.4(1) that "No new permit
may be issued to a new source or a new discharger, if the discharge from its
construction or operation will cause or contribute to the violation of water quality
standards." For all NPDES permits, including those being reissued, EPA regulations
at 40 CFR 122.44(d) require that effluent limitations be included to meet water
quality standards and wasteload allocations (see specifically 40 CFR
122.44(d)(1)(vii)(B), in Appendix F). The regulations at 40 CFR 122.44(d)(l) provide
that all permits must include "any requirements in addition to or more stringent than
promulgated effluent limitation guidelines or standards [under other sections of the
Clean Water Act] necessary to achieve water quality standards established under
§303 of the Clean Water Act, including State narrative criteria for water quality."
Requirements may include zero discharge limitations in certain cases.
Nonpoint Sources: EPA regulations do not address limitations on nonpoint source
activities that may cause or contribute to an impairment, although some States may
have regulations addressing this situation and Clean Water Act §319 requires that
States consider the impact of nonpoint sources on water quality standards
attainment and maintenance.
The Role of the TMDL Program: The TMDL program is charged, in part, with
effecting impaired waters' rapid recovery and attainment of water quality standards.
When the TMDL is established, its provisions implement and, in effect, supplant the
point source restrictions and limitations established under the regulations cited
above. The TMDL's allocations may limit (and may or may not prohibit) new or
increased discharges, so long as it provides for attaining standards by other means.
The TMDL may ultimately provide more flexibility than would result from a source-
by-source application of existing regulations.
A TMDL for any given water, however, could be scheduled for attention and
completion several years after initial §303(d)(1) listing. Do opportunities exist for
point/nonpoint source agreement and action during the period between listing and
TMDL development when new or additional discharges of problem pollutants from
permitted sources are regulatorily prohibited or restricted? Under what conditions, if
any, can the point source restrictions set forth, above, be modified or suspended?
Should available authorities be used to apply certain similar restrictions to nonpoint
sources?
Discussion In the period between listing and TMDL development, States are now required to
implement the restrictions on new or additional discharges that will cause or
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Chapter 3: Identifying Impaired Waters
contribute to an exceedance of water quality standards. To date, however, States
have not always implemented these requirements, nor has EPA generally
emphasized the restriction on new sources (as defined in 40 CFR 122.2) contained
in 40 CFR 122.4(1). Some Committee members are concerned that enforcing the
discharge restriction may in fact encourage development to spread to less-polluted
areas with fewer restrictions on land or water use. Others are concerned about the
regulation's likely impact on industry and local economies. Some are concerned
that the failure to apply the restrictions leads to increased environmental
degradation. Our recommendations, below, attempt to provide some flexibility to
address these concerns. The Committee strongly believes, however, that the existing
restrictions on new or additional discharges provide sources with a powerful
incentive to clean up the water even before a TMDL is completed and must be
actively implemented by the States and enforced by EPA.
In addition to implementing the current regulatory restrictions, environmental
management agencies should actively encourage and support stakeholders who
want to stabilize and enhance water quality before a TMDL is in place. These
efforts will be compatible with and should produce results or action plans that could
be incorporated into a TMDL for the waterbody. The most successful stakeholder
efforts will lead to the full restoration of the water and attainment of water quality
standards and ultimately the water's removal from the §303(d)(1) list before a TMDL
is developed. Stakeholder leadership during this interim period should not be
confused with stakeholder efforts to fund and assist actual TMDL development,
however, although stakeholders may play active roles in both of these related efforts.
(The second topic of stakeholder participation in TMDL development is discussed in
Section 7.2, below.)
E Recommendations
1. The Committee recommends that States fully implement and EPA enforce the current statutory
and regulatory restrictions on new or expanded discharges that will cause or contribute to a
water quality standards violation. The provision at 40 CFR 122.4(1) should continue to be
applied to all waters not meeting water quality standards, subject only to the exceptions
discussed below.
2. The Committee recommends that EPA issue regulations directing States to develop watershed
characterizations and stabilization plans for all §303(d)(1)-listed waters.
3. The Committee recommends that the "watershed characterization" include, at a minimum, the
following information:
— the condition and/or perceived impairment of the watershed;
— significant point and nonpoint sources contributing to the impairment; and
— a listing of remaining data gaps and data sources needed for TMDL development.
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Chapter 3: Identifying Impaired Waters
The Committee recommends that the mandatory "stabilization plan" identify and implement
applicable State/federal authorities that will prevent further water quality degradation.
The Committee recommends that EPA issue regulations also authorizing an additional optional
stabilization plan to encourage States to work with interested stakeholders to prevent worsening
water quality and possibly to begin to move toward standards attainment. The optional
stabilization plan would identify mechanisms that might allow for exceptions from the point
source discharge restrictions (or other applicable interim constraints) upon demonstration that
the optional stabilization plan results in parameter-specific net progress in water quality through
means other than those restrictions. States (and stakeholders) would also be encouraged to
explore and implement additional measures that would lead to or help obtain restoration of water
quality. During the optional stabilization planning phase, States must ensure that the public,
environmental groups, and resource users have an opportunity to participate in the process.
Ultimately, if these measures restore water quality so that water quality standards are attained, the
water may be removed from the §303(d)(1) list.
The Committee recommends that unless a water meets water quality standards as a result of a
stabilization effort or is delisted in accordance with the recommendations in Section 3.6 of this
report, it will remain on the schedule for TMDL development.
3.6
DELISTING
Problem
Statement
Discussion
The Clean Water Act does not directly address the issue of removing waters from the
§303(d)(1) list. According to EPA's guidance for the 1994 §303(d)(1) list, States may
remove waters when: (1) new information shows that "the original basis for listing is
determined to be inaccurate" or (2) EPA has approved a TMDL designed to attain
water quality standards. Given the interim constraints that apply to listed waters,
sources' (likely) interest in not being located along listed waters, and State agency
interest in demonstrating progress in TMDL program activities, when should waters
be taken off the §303(d)(1) list? Is the §303(d)(1) list a TMDL to-do list, a list of
waters not meeting water quality standards, or something else?
Because States may now remove waters not meeting water quality standards from
the §303(d)(1) list when the water's TMDL has been approved, the §303(d)(1) list
has been historically viewed as a "TMDL to-do list," a list to stimulate prompt TMDL
development activities. In its review of this issue, the Committee considered how
keeping a water on the list until attainment might speed TMDL implementation (as
well as development) and thus further the major objective of §303(d)(1): restoring
impaired waters. As well, maintaining the list until attainment allows the States and
the public to better monitor implementation and to track progress toward water
quality goals.
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E Recommendations:
1. The Committee recommends that EPA revise its §303(d)(1) regulations to provide that States may
remove waters from the §303(d)(1) list only when:
— the listed water has attained water quality standards; or
— new information indicates that "the original basis for listing is determined to be
inaccurate" (in other words, the new information indicates that the listed water meets
applicable water quality standards).
2. The Committee recommends that states develop a procedure for submitting listing/delisting
petitions to EPA between listing cycles. The same basic criteria and procedures must be used for
listing/delisting waters.
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Chapter 4: Scheduling/Priority Ranking/Targeting
BACKGROUND
The Committee considered the statutory and influenced by EPA's policy guidance (August 8,
regulatory requirements for priority ranking, 1997) and the specific scheduling requirements in
targeting, and scheduling and also discussed how various TMDL lawsuit settlement documents. The
these activities might best advance agency following recommendations are intended to help
workload planning and environmental protection and encourage States and EPA to perform TMDL
goals. Our review of scheduling, priority ranking, functions consistently and efficiently.
and targeting waters for TMDL attention was
4.1 OVERALL TIMEFRAME FOR TMDL DEVELOPMENT
Problem TMDL development has proceeded slowly and few waters have been restored as a
Statement result of TMDLs. States will need to carefully plan their activities for maximum
efficiency to solve existing impairments. Should a State be encouraged/required to
complete TMDLs for all listed waters in a specific number of years? If so, how
should that timeframe be determined?
Discussion During our deliberations, EPA issued a new policy memorandum (August 8, 1997,
memorandum from Assistant Administrator for Water Robert Perciasepe to Regional
Administrators and Regional Water Division Directors) providing that States should
generally set 8-13 year overall schedules for developing TMDLs for waters listed
under §303(d)(1) (beginning with the 1998 list). The memorandum included a set of
factors that States can use to set longer schedules in exceptional cases.
Setting overall timeframes that include a pace requirement also helps encourage
early agency action and informed work planning. The Committee agrees, however,
that several important factors can affect the length of the schedule and has worked
to identify factors it regards as most important. The Committee also has considered
how setting overall schedules can be affected by other TMDL program functions
(especially developing implementation plans, which would be a new requirement if
the Committee's recommendations are adopted). We generally support the EPA
policy recommendation cited above (with slight modification) and recommend that
EPA provide additional direction on the pace within the overall schedule of TMDL
development, consistent with the following recommendations.
E Recommendations
1. The Committee recommends that EPA, by regulation, direct States to set expeditious timeframes,
of not more than 8-15 years, for States to complete their TMDL development. TMDLs for high
priority waters must be submitted to EPA for approval by (a) no later than five years after the State
submits its 1998 §303(d)(1) list; and (b) for high priority waters listed for the first time after the
1998 listing cycle, no later than five years after the State firsts submits a §303(d)(1) list identifying
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Chapter 4: Scheduling/Priority Ranking/Targeting
that water. TMDLs for medium priority waters should be completed within eight to ten years of
listing; low priority TMDLs should be completed no later than 15 years after initial §303(d)(1)
listing. [At the time EPA announced its policy, the Committee concurred with EPA's 8-13 year
range for overall TMDL development timeframes. However, because the Committee is
recommending that States be required to develop watershed characterization and stabilization
plans and to submit implementation plans to EPA, members determined that a two-year extension
is appropriate.] (See Section 4.2, below, for a discussion pertaining to setting priorities for TMDL
development.)
2. The Committee recommends that absent one of the showings required in recommendation 3,
below, EPA disapprove any TMDL for a high priority water that is not submitted to EPA for
approval within the deadlines in recommendation 1, above (i.e., EPA must disapprove the
constructive nonsubmission of the TMDL).
3. The Committee recommends that a State may obtain a one-time extension for submitting a TMDL
for a high priority water to EPA for approval only if the State submits, and EPA approves, a written
request demonstrating that the State has made all best efforts to meet the deadline and that the
extension is as short as possible and:
— the TMDL will be completed and submitted to EPA for approval no later than six months
after the end of the five-year timeline or will be distributed for review and public
comment within two months and will be submitted to EPA for approval within six
months after the end of the public comment period; or
— new information (i.e., information that was not available at the time of listing and priority
setting) reveals that the technical assumptions upon which the State was relying to
develop the TMDL proved to be incorrect, and that the deadline extension is necessary to
rectify the technical problems preventing timely completion of the TMDL; or
— (a) the waterbody has unique physical or chemical characteristics (e.g., bathymetry,
currents, additive and synergistic persistent bioaccumulative toxic pollutants) and a broad
spectrum of load contributions from non-NPDES sources, which prevent timely
completion of the TMDL; (b) the State has prepared an initial characterization of the
waterbody and has developed a workplan with express timelines for development of the
TMDL; and (c) at the time of the demonstration to EPA, the State has met each of the
timelines in the TMDL workplan.
The Committee recommends that EPA not approve extensions that exceed one year unless the
State further demonstrates that despite all best efforts it is not feasible to complete the TMDL
within one year.
4. The Committee recommends that overall TMDL development timeframes be incorporated in the
State's Performance Partnership Agreement and/or other appropriate workplanning agreements
with EPA. EPA should monitor State performance to assure milestones and scheduling needs are
met and that States are dedicating adequate resources to this effort.
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Chapter 4: Scheduling/Priority Ranking/Targeting
5. The Committee recommends that EPA approve §303(d)(1) lists only if the State's schedule is as
expeditious as possible and its workload is generally distributed proportionately over the TMDL
development schedule. EPA should not accept a schedule in which a disproportionate share of
the workload necessary to complete the TMDLs is assigned to the latter portion of the schedule.
EPA should further require the State to demonstrate that it has adequate personnel and resources
to complete TMDLs according to the proposed schedule.
6. The Committee recommends that a State be allowed to consider the following factors in
determining overall (8-15 year) timeframes:
— number of waters on the §303(d)(1) list, including
•• number of TMDLs to be completed
•• number of river/shoreline miles; and
— complexity of TMDLs as determined by:
•• number of sources on listed waterbodies;
•• number of different types of sources on listed waterbodies;
•• size and characteristics of the waterbody (e.g., physical complexity, bathymetry,
tides, currents);
•• general extent to which other factors (e.g., nonpoint source, remote, or difficult
historical contributions) will need to be addressed in TMDLs; and
•• number ofjurisdictions involved in the TMDL development process (e.g., as with
interstate and international waters).
7. The Committee recommends that, secondarily, a State be allowed to consider the following
factors in determining overall timeframes for TMDL development: resources available to develop
TMDLs; availability of suitable data or models; and interest in/need for extensive public
participation.
8. The Committee recommends that States provide opportunities for public review and comment on
proposed overall timeframes.
4.2 PRIORITY RANKING, TARGETING, AND SCHEDULING
Problem Currently, priority ranking and targeting decisions are left almost entirely to States'
Statement discretion and can be based on a variety of factors. Should priority ranking of listed
impaired waters be based on any factors beyond those provided by §303(d)(1)(A):
severity of pollution and uses to be made of a listed water? If so, which ones, and
under what conditions? If so, how does this affect the statutory requirements? How
do priority ranking, targeting, and scheduling individual TMDLs work together?
Discussion Under §303(d)(1)(A), "States shall establish a priority ranking for such [§303(d)(1)-
listed] waters, taking into account the severity of pollution and uses to be made of
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Chapter 4: Scheduling/Priority Ranking/Targeting
such waters." Targeting is first introduced in 40 CFR 130.7(b)(4) of EPA's
regulations, which states that "priority ranking shall specifically include the
identification of waters targeted for TMDL development in the next two years" and
is further developed through later guidance. Scheduling individual TMDLs for
attention is contemplated by the statute at §303(d)(1)(C) which requires TMDLs to
be established for aN. §303(d)(1) listed waters "in accordance with the priority
ranking" and is further articulated in the August 8, 1997 Perciasepe policy
memorandum which directs EPA Regions to secure written agreements with States
"establishing an appropriate schedule for the establishment of TMDLs for all listed
waters..., beginning with the 1998 list."
Priority ranking, targeting, and scheduling individual TMDLs for attention are related
but not identical activities. The Committee believes that, taken together, these
activities should focus agency attention on the 'right waters' at the 'right time.' The
Committee is concerned that, in the absence of new, specific guidance, States will
not undertake rigorous, logical priority ranking, targeting, and scheduling. At the
same time, we are mindful of the importance of State/Tribal flexibility and the many
factors that must be considered in planning this complex work.
We conclude that additional guidance on these topics would be valuable to
environmental agencies. Such guidance should also direct States to clarify for the
public, affected sources, and other stakeholders how individual TMDLs are
scheduled and should also recognize that a higher priority water may sometimes be
best served by a somewhat longer and fuller development process.
E Recommendations
1. The Committee recommends that EPA issue regulations requiring States to prepare schedules to
develop TMDLs for all waters listed pursuant to §303(d)(1). The regulatory provision should
require schedules to be designed so as to ensure completion of all TMDLs within the designated
overall timeframe. At the same time, the schedules should be flexible enough to allow States to
modify them upon provision of appropriatejustification. The scheduling requirement should
replace the targeting requirement established by current regulations.
2. The Committee recommends that EPA issue guidance for States on how to conduct priority
ranking and scheduling, using the two step process described below.
— Step One (To Identify High Priority Waters) (to address the explicit statutory priority
factors, "uses to be made of [listed] waters" and "severity of pollution"):
•• To evaluate the significance of a given use, assign high priority to waters with
demonstrable threats to human health and/or to important native aquatic species.
Other uses that may bear secondary consideration (but which should not take
precedence over the high priority uses, above) include historical, cultural,
economic, and esthetic uses.
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Chapter 4: Scheduling/Priority Ranking/Targeting
•• To determine the severity of the pollution, consider at a minimum the
conditions and types of pollutants present.
— Step Two (For Waters Not in High Priority Group): To promote efficient development of
TMDLs and to assure that the overall 8-15 year timeframe requirement is met, consider
other factors related to sound environmental management in establishing priority
rankings and schedules. States may consider the following factors:
•• harm to point sources from not having a TMDL in place to allow for increased
loads into water quality limited waters, certainty for permit shields, and long
range planning;
- imminence of any threat to the environment;
>• the complexity of correcting the water quality problem (including the
availability of controls; the value of or need for a longer TMDL process to collect
more data, identify sources, and/or refine analyses; the degree to which an
iterative approach to the TMDL is likely to be needed (e.g., because efficacy of
control measures is very uncertain); the number of different types of sources on
listed waterbodies; the size and characteristics of the waterbody (e.g., physical
complexity, bathymetry, tides, currents); or the number ofjurisdictions involved
in the TMDL development process (e.g., as with interstate and international
waters);
•• opportunities to influence actions or decisions that will not be open for review
or revision over a long (i.e., greater than five-year) term (e.g., with FERC
relicensing for dams);
•• the ease with which TMDLs could be done for lower priority parameters at the
same time as higher priority parameters for the same waterbody; and/or
•• opportunities to "nest" TMDL processes geographically to more efficiently and
effectively advance environmental protection goals, conduct monitoring, identify
sources, select solutions, engage the public, and advance implementation.
3. The Committee recommends that EPA require States to document their priority ranking and
scheduling process (including a discussion of how uses are ranked) and decisions. EPA should
review this documentation as part of its review of a State's §303(d)(1) list and priority ranking
submittal.
4. The Committee recommends that EPA issue guidance instructing States to make information
about their priority ranking and scheduling decisions available for public review and comment
during the listing process and before such information is submitted to EPA.
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Chapter 5: TMDL Development
5.1
INTRODUCTION/REVIEW OF KEY COMPONENTS OF A TMDL
TMDLs must be developed for all waters that
States must list under Clean Water Act §303(d)(1).
This chapter summarizes Committee
recommendations for development of TMDLs,
and approval criteria for individual TMDL
submissions.
States submit each TMDL to EPA for review and
approval. EPA must complete a TMDL if it
disapproves a State TMDL submission. Section
303(d) provides that TMDLs are to be developed
"at a level necessary to implement the applicable
water quality standards 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."
In general, a TMDL is a quantitative, action-
oriented analysis of how to attain water quality
standards for waterbodies where standards are not
being met. However, there is a need for greater
clarity in determining what constitutes an
acceptable TMDL, including the appropriate level
of quantification, detail, likelihood of attainment,
and prescript!veness. In addition, because TMDLs
must be developed for all the many types of
impaired waters, there is a need to provide a
range of options for tailoring approval criteria to
specific situations. At the same time, there is a
need for consistency in EPA TMDL approval
decisions.
The Committee identified seven necessary
components of the TMDL development and
implementation process. The content and level of
detail required for each component may vary to
some extent. The components, described in more
detail in Section 5.4, define a
TMDL/implementation plan and are used as an
organizing framework for this chapter of the
report. While the Committee agreed that EPA
should require States to complete an
implementation plan (component (e) below) for
each TMDL, it disagreed on whether the plan
should be submitted pursuant to §303(d) or
§303(e). (See Section 5.6 below and Appendix H
for a discussion of this point.) The necessary
components are:
a. Target identification (selection of one or more
quantified end-points (i.e., a measurable
environmental characteristic that indicates
compliance with water quality standards),
which may include estimating the water's
maximum loading capacity);
b. Identification of current deviation from the
target/level of pollution reduction necessary
to meet the target (characterization of how
and the extent to which baseline conditions in
the waterbody deviate from the target level);
c. Source identification (identification of sources
that contribute to the impairment);
d. Allocation of pollution loads (or alternative
providing an equivalent demonstration of
attainability of standards) (includes
assignment of control responsibility among
sources of the impairment);
e. Implementation plan (the Committee did not
agree on whether this would be part of the
TMDL or submitted to EPA separately under
§303(e), but did agree the plan should be
prepared concurrently with the TMDL and
include the plan and schedule for
implementation of control or restoration
activities to eliminate the impairment and for
carrying out TMDL components (f) and (g));
f. Process for monitoring/assessment of
effectiveness (provisions for evaluating the
TMDL's effectiveness in achieving attainment
of water quality standards); and
g. Process for TMDL revision (provisions for
modifying and/or revising the TMDL based on
monitoring/assessment of effectiveness).
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Chapter 5: TMDL Development
Some of these components of the TMDL and
implementation plan have been described in EPA
guidance and/or are part of EPA's existing TMDL
approval criteria. However, some of the
components—such as the implementation plan
and the provisions on evaluation and revision
where necessary—are new.
Actual implementation of the TMDL—as specified
in the implementation plan and schedule—should
begin immediately following the TMDL's
approval by EPA.
5.2
MODELING ISSUES/DATA NEEDS/UNCERTAINTY
Problem
Statement
Discussion
Many aspects of TMDL development can involve uncertainty due to limited data or
knowledge. What improvements in data gathering and modeling capabilities are
most needed to ensure TMDLs are developed to ensure elimination of water quality
impairments?
Several steps in TMDL development and implementation planning may require data
gathering and the use of predictive water quality models. For example, the
following information needs are often associated with the first six components (a-f)
described above in Section 5.1:
COMPONENT
MODELING/DATA/ASSUMPTIONS NEEDED TO:
a.
b.
c.
d.
e.
f.
Target
Identification
Deviation from
Target
Source
Identification
Allocation of
Pollution Loads
Implementation
Planning
Monitoring/
evaluation
Develop numeric target for water quality conditions (e.g., criterion)
Translate criterion to numeric loading capacity level (quantified
pollution load from all sources, including background, necessary to
meet criterion, e.g., through a predictive analysis of pollution in the
waterbody)
Quantify the amount and timeframe of deviation between
current/future loading levels and the loading capacity level
Identify all sources or source categories
Quantify the amount of load from sources, including natural
background
Ensure that allocations will lead to attainment of water quality
standards
Estimate the effectiveness of controls/management measures
Determine that controls/management measures are sufficient to
achieve the TMDL allocations
Determine the likelihood of actual implementation of control
strategies
Assess whether the implementation of controls/management measures
has occurred
Evaluate the effectiveness of controls/management measures, and
whether they are meeting allocations
Demonstrate attainment of water quality standards
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Chapter 5: TMDL Development
Although some minimum, reasonable amount of data and information are necessary
to develop a TMDL, lack of certainty should not delay TMDL development. A
starting point would be the data and information that were used to support the
decision to list the water under §303(d)(1). However, many TMDLs may require
additional data and/or modeling capability, to reduce uncertainty associated with
each necessary analytic step. The Committee recognizes that TMDL development
has been inhibited by inadequate data collection, incompatible data from different
sources, failure to collect necessary flow and water quality data concurrently, failure
to collect data on sources and on uses, failure to follow proper analytic techniques
in collecting data, and inadequate models. Future data collection and model use
and development should be increased, improved, and coordinated to minimize or
eliminate these difficulties.
In general, we believe our recommendations on data and information needs are
consistent with previously issued EPA guidance or current practice. However, the
detail and scope of the Committee's recommendations on this topic reflect our
concern that progress must continue in the areas of data gathering and analysis and
modeling capabilities to ensure a strong and effective TMDL program.
E Recommendations
1. The Committee recommends that EPA determine what changes in the type and extent of State and
national monitoring activity are most needed to support TMDL development. For example,
additional monitoring may be necessary to identify sources of impairment (including natural
background), meet model input requirements, and evaluate control actions called for by a TMDL.
2. The Committee recommends that EPA and States undertake efforts, including issuance of EPA
guidance on State monitoring program adequacy, to ensure that the type and quality of data
collection by State/federal agencies, local governments, stakeholders, and citizens conforms to
water quality standards and TMDL development needs.
3. The Committee recommends that EPA investment in better modeling capabilities for TMDL
development be one of its highest TMDL program priorities. EPA should put relatively more
effort into improving existing models and their application (providing guidance on how to use
them and making them easier to use) than into developing new models, although both are very
important.
4. The Committee recommends that EPA particularly support the development and/or appropriate
application of models to assist in TMDL development for waters where wet weather flow
conditions (e.g., stormwater runoff from fields, buildings, and streets) are likely to influence the
cause and nature of impairments, as well as the potential solutions to the impairment.
5. The Committee recommends that, consistent with current EPA practice, States shall consider and
use as appropriate all existing and readily available reliable data and information, e.g., data
collected consistent with a State agency's minimum data requirements and/or its QA/QC
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program. Although some data gathering may be necessary early on in the process, lack of
certainty must not delay TMDL development. Data requirements for TMDL development cannot
be prescribed generally, but depend upon the needs of each TMDL. The following factors affect
how much data are necessary for development of a TMDL:
— the extent of follow-up monitoring called for by the TMDL: although some minimum,
reasonable amount of data are necessary, relatively less data may be necessary prior to
TMDL development if the TMDL has relatively stronger follow-up monitoring/evaluation
and revision provisions, as long as the TMDL meets approval criteria;
— the potential impact on the environment: cases where there are significant or
potentially irreversible costs to the environment/beneficial uses, such as threats to human
health or endangered species, may require (in addition to immediate action) more data
gathering throughout the TMDL development and implementation process to ensure the
TMDL is effective;
— the potential impact on sources: TMDLs that are likely to lead to relatively more costly
implementation measures may warrant more data gathering; and
— data needs of models and other tools necessary to develop an approvable and
scientifically defensible TMDL.
6. The Committee recommends that EPA evaluate and develop simpler reliable analytical
techniques that require fewer data to help initiate TMDL development. In some cases, these
techniques may be sufficient to develop the TMDL; in others, these techniques could help focus
additional, more intensive data gathering and modeling efforts.
7. The Committee recommends that EPA and States help meet the need for data to develop TMDLs
by:
— encouraging or initiating early efforts to gather and compile data, prior to scheduled
TMDL development;
— clarifying the type, amount, and format of data for models likely to be used in developing
the TMDL (e.g., water quality coupled with flow data);
— developing work plans cooperatively to ensure that adequate data and information are
gathered;
— using relevant data collected by other agencies (e.g., Census of Agriculture and Natural
Resource Inventory, USGS monitoring, data collected by land management agencies);
and
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entering into agreements (such as Memoranda of Agreement) with other data-gathering
agencies and other entities so that data and information useful in TMDL development can
be acquired in a timely manner.
5.3
GEOGRAPHIC SCOPE
Problem
Statement
Discussion
The geographic scope of waterbodies listed under §303(d) varies from relatively
short stream segments to longer waterbodies. In some cases, several segments
within a single watershed are listed. How should States and/or EPA determine
geographic scope in developing TMDLs?
The geographic scope of a TMDL will vary considerably with the scope of the
problem to be addressed and the location of sources that contribute to the problem.
Thus, TMDLs may vary in scope from basin-wide programs (such as the entire
Columbia River basin) to the watershed of small headwater streams, to individual
stream segments contaminated by a particular pollutant discharged by a limited
number of sources. Thus, there can be no fixed rules regarding the appropriate size
or scope of a TMDL, and waterbodies may still be identified by segment in the
listing process. At the same time, however, it is critical to the success of individual
TMDLs and the program as a whole that TMDLs be defined according to appropriate
size and scope. In this regard, legitimate concerns might be raised at both ends of
the spectrum, i.e., a particular TMDL might be either too large or too small to be
effective.
A TMDL might be too large if its size and complexity precludes meaningful
monitoring, evaluation, and implementation. However, some water quality
problems are characterized by large geographic scale, in terms of both the size of
the area in which the problems exist and the geographic range of the sources of the
problem. (Nutrient enrichment of the Chesapeake Bay and oxygen depletion in the
Gulf of Mexico are examples of this phenomenon.) This problem has been
addressed in many watershed programs through the concept of "nesting," in which
the entire affected watershed is analyzed in an umbrella program, but the program is
divided into a series of nested programs at smaller, more manageable scales for
purposes of monitoring, source identification, identification and implementation of
solutions, and participation by contributing sources and the public. By contrast, a
TMDL might be too small if its geographic scope is defined so narrowly that the
entire problem area is not included in the analysis, and in particular if all sources
contributing to the problem are not identified and addressed. The issue is
complicated by the fact that the geographic range in which water quality problems
occur may be different from the geographic range in which contributing sources
exist. (For example, the problems may exist predominantly downstream from the
areas in which the contributing sources exist.)
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E Recommendations
1. The Committee recommends that EPA include in its revised regulations basic principles defining
the appropriate size of TMDLs under various circumstances. The rules should establish the
following requirements:
— The TMDL must identify fully the geographic range of the waterbody in which the water
quality problem occurs. Where existing monitoring is not adequate to define the
geographic scope of the problem, additional monitoring and assessment must be
conducted during TMDL development in order to delineate the scope of affected waters
fully.
— The TMDL must identify fully the geographic range of the watershed or watersheds in
which all significant sources that contribute to the problem exist, so that all such sources
can be included in the pollution load allocation process. Where existing information is
not adequate to define the geographic scope of the contributing sources, additional
analysis must be conducted during TMDL development in order to identify the
geographic range of all contributing sources.
— Where the size of the affected watersheds or area of source contribution is too large, so
that monitoring, source identification, identification and selection of solutions, public
participation and implementation cannot be conducted efficiently, the TMDL process
may be "nested" such that appropriate monitoring, public participation, and
implementation is conducted at the appropriate geographic scale.
— Where the affected watershed crossesjurisdictional lines, some mechanism must be used
to ensure all responsible decision-makers participate in the TMDL development process.
In cases where the watershed crosses international boundaries, representatives from the
affected countries should be encouraged to participate.
— Where possible, georeferencing techniques should be used to make the scope of the
TMDL available to all affected stakeholders.
5.4 CRITERIA FOR APPROVAL
Problem Due to limitations of science and resources, it is impossible to eliminate all
Statement uncertainty associated with the development of TMDLs, although the degree of
uncertainty will vary. Moreover, impaired waters differ according to how the
impairment is characterized (e.g., failure to meet numeric or narrative water quality
criteria); causes of impairment (e.g., current or past loading, point or nonpoint
sources), and optimum solutions for eliminating the impairment. What should
guide TMDL development and EPA approval decisions to provide for: (1) TMDL
development in the face of uncertainty; (2) needed flexibility to meet different types
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of impairments; and (3) confidence that the TMDL will successfully eliminate the
impairment in a timely fashion?
Discussion The Committee recognizes that:
— progress in TMDL development (and implementation) must be made
despite uncertainties that will exist;
— TMDL approval criteria must address a fundamental problem—that different
aspects of TMDLs vary in the degree to which loads can be rigorously
quantified (for example: failures to support narrative criteria may not be
easily quantified (although surrogate measures may help); source
contributions (in particular, those of nonpoint sources) may not be well
known; and pollution fate and transport may be difficult to determine);
— approval criteria must address a variety of different types of water quality
impairments, such as problems caused by excessive ongoing pollution
loading, past pollution loading, modifications to flow, and/or habitat
alteration;
— quantitative rigor and accurate, thorough data are desirable, and the best
available science should always be applied;
— TMDLs need to have follow-up monitoring/evaluation provisions and built-
in corrective mechanisms (feedback loops), to ensure that actions called for
during development of the TMDL and/or its implementation are effective at
meeting water quality standards and that public and private resources are
not wasted;
— TMDL approval decisions should be as objective and consistent as possible,
even though some degree of subjectivity andjudgment will be necessary;
and
— TMDL approval criteria should be as straightforward and as easy to apply as
they can be.
Based on these considerations, the Committee recommends that EPA and the States
use a "hierarchy approach" to TMDL development and approval. Key aspects of this
approach are outlined in the recommendations below; a more detailed description,
along with examples of how the approach might be applied, appear in Appendix G.
The Committee's recommendations broaden the scope of the TMDL development
process to include implementation planning and follow-up monitoring, and clarify
that TMDLs may be expressed in terms other than daily loads. The Committee
agreed that an implementation plan must be prepared and submitted to EPA for each
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TMDL but did not agree on whether the implementation plan should be part of the
TMDL under §303(d) or submitted pursuant to §303(d) or §303(e). (See Section 5.6
below, and Appendix H.) In other respects, the Committee's recommendations for
what constitutes an approvable TMDL are probably consistent with EPA's current
TMDL policies. However, we believe our recommendations would help make
TMDL approval criteria more explicit, thus providing greater clarity on how TMDLs
are to be developed and reviewed for approval/disapproval with objectivity and
consistency.
E Recommendations
1. The Committee recommends that EPA issue regulations and guidance requiring that, to be
approvable, each TMDL submittal must include the interrelated components listed below. The
specific content and detail associated with each component could vary among TMDLs. EPA
should base its approval decisions on whether, taken together, the "package" of TMDL
components is deemed likely to lead to attainment of water quality standards. The components
include:
a. Target identification: determining the pollution of concern, and quantifying the target (or
desired end-point(s)) of the TMDL process);
b. Identification of current deviation from the target: quantifying the degree to which
conditions in the waterbody deviate from the desired target, and the pollution load that
must be reduced to meet the target;
c. Source identification: identifying the responsible sources, or categories of sources, of the
pollution of concern, and quantifying the degree to which each source (or source
category) contributes to the problem;
d. Allocation of pollution loads: setting quantified pollution reduction responsibilities
among the identified sources, along with a quantified margin of safety, any allocation for
future growth, seasonal variations, and, if necessary, other factors to address variable flow
conditions;
e. Implementation plan: specifying and quantifying control actions and implementation
tools, methods, and authorities that will be used to achieve the allocations and eliminate
the impairment, in addition to schedules and milestones for implementing the called-for
actions, evaluating the TMDL (see (f) below), and correcting the TMDL (see (g) below) if
the TMDL is found to be ineffective (see Appendix H for a discussion of the unresolved
issues concerning EPA review of the implementation plan);
f. Process for follow-up monitoring and assessment of effectiveness: determining the
degree of use attainment, remaining variance from the target, compliance with
implementation plan, and the accuracy of sources and source contributions identified in
the TMDL; and
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g. Process for TMDL revision: describing how the TMDL will be modified and/or revised to
ensure water quality standards are met, in response to follow-up monitoring and
evaluation results.
2. The Committee recommends that the highest level of quantitative rigor currently available
always be applied to components a-d. If the highest level of quantitative rigor is not feasible (due
to lack of data or information), the "next best" level of quantification should be applied (however,
the best available scientific rigor should always be applied). This "hierarchy approach" allows
TMDLs to be developed that will meet water quality standards for all §303(d)-listed waters,
despite the fact that TMDLs may vary in the degree to which they can be quantified. (See
Appendix G for examples of how the hierarchy approach could be applied.)
3. The Committee recommends that EPA apply a principle of "inverse proportionality" in
determining the degree of rigor or specificity needed in various TMDL components. For TMDLs
that contain relatively less rigor in components a-d, relatively more specificity or rigor is needed
in components e through g, although some minimum, reasonable degree of quantitative rigor is
necessary to support a finding that the TMDL will lead to attainment and progress can be
measured. For example, TMDLs that contain less quantitative rigor in the target identification
component must contain a higher degree of implementation specificity, and more
frequent/detailed provisions for follow-up evaluation and potential revision. All implementation
plans must be sufficiently detailed to lead to attainment of water quality standards.
4. The Committee recommends that when data or scientific information alone are insufficient to
determine a course of action, EPA and the States use "best professional judgment" in
developing TMDLs. States and EPA should clarify the role of best professional judgment in
making assumptions necessary for TMDL development, and ensure that "best professional
judgment" is exercised by trained and experienced professionals, based on the best available
science and data. EPA should require that assumptions are documented and submitted as part of
the TMDL. Some minimum or reasonable amount of data and information should be required for
each TMDL, and EPA should define this level where possible. A TMDL developed with greater
reliance on "best professional judgment" should include relatively more provisions for follow-up
evaluation and revision.
5. The Committee recommends that EPA and States provide clear information to the public (all
stakeholders,) about the use of "best professional judgment" in TMDL development early on in
the process, to promote more stakeholder acceptance and commitment. TMDLs developed
using a high degree of "best professionaljudgment" may require additional public
education/outreach efforts. The public should have an opportunity to provide information to
assist State/EPA best professionaljudgment decisions.
6. The Committee recommends that in some instances (e.g., when the impairment is tied to a
pollutant for which a numeric criterion is not possible or when an impairment cannot be tied to a
single pollutant), EPA and the States use surrogate measures in TMDL development. Surrogate
measures may include numeric environmental indicators other than numeric criteria for targets
(component a) and quantified measures other than pollution loads for allocations (component d).
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If surrogate measures are used, a higher degree of implementation specificity and stronger
procedures for follow-up monitoring and evaluation may be required. In the same manner as
other TMDLs, TMDLs with surrogate measures should guide actions (regulatory and/or voluntary)
necessary to achieve water quality standards. EPA and the States should also ensure that
surrogate measures are tied to the water quality standard, and, when implemented, will lead to
attainment of the water quality standard.
7. The Committee recommends that EPA support (in regulation, guidance, and/or a policy
statement) the concept that, in some instances, the quantified allocation of pollution may be
expressed using units of measure other than daily loads. The regulation, guidance, or policy
statement should identify the types of situations in which such alternative units are appropriate
(such as where impairments are significantly affected by storm-driven flows and may need to
conform to accepted models that use longer than daily temporal units). The use of such
alternative units must be supported, where appropriate, by a showing that the resulting
allocations are sufficient to eliminate the impairment, addressing all aspects of the water quality
standard and the full adverse effects of the pollutant in question (for example, where appropriate,
the difference between acute short-term impacts during storm flows and long-range effects of the
pollutants in the system over time, or the difference between short-term changes in water column
concentrations and the long-range impacts of pollutant concentrations in sediments and biota).
Resulting load allocations and follow-up monitoring should be tailored to the appropriate time-
scales for each relevant set of health or environmental impacts, and, where appropriate, for the
models used to develop the TMDL.
8. The Committee recommends that the statutorily-prescribed "margin of safety" (MOS) be
included in the TMDL allocation. The MOS should address modeling uncertainties associated
with relating loads to water quality conditions. However, States should not view the MOS as a
substitute for basic data and rigor in TMDL development (i.e., the MOS is not subject to the
"inverse proportionality" principle). Consistent with the hierarchy approach, the best available
science should always be used.
9. The Committee recommends that EPA develop guidance and tools to enable the hierarchy
approach as described above (and in Appendix G) to be easily applied in actual TMDL
development and approval decisions. EPA should consider devising a practical tool, such as a
template, flowchart, or interactive computer program to assist States in developing TMDLs.
10. The Committee recommends that EPA support pilot projects that illustrate model approaches to
TMDL development/implementation planning (for example, on useful surrogate measures) and
disseminate information generated from these projects to States.
5.5 THE ALLOCATION PROCESS
Problem Allocating load reduction responsibilities among sources is an important and
Statement difficult part of the TMDL development process. Allocation decisions are often
contentious, given that allocation decisions determine implementation
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responsibilities and impose costs on sources. While the allocation scheme must
achieve the TMDL and attain water quality standards, many other factors may
influence States' allocation decisions, such as concerns for equity, cost-effectiveness,
enforceability, and technological feasibility. In addition, difficult questions must be
addressed when making allocation decisions such as whether and how to make an
allocation for future growth. Given the difficulty of making allocation decisions,
what, if anything, should EPA do to assist States? Are there particular allocation
principles that EPA should promote?
Discussion The Committee is most concerned that TMDL allocations be sufficient to meet water
quality standards. The TMDL implementation plan must include assurances that
allocations will be met, and specify how they will be met. The Committee generally
concluded that a variety of approaches to allocations are legitimate and that it is
important to provide flexibility for States to use the method that is most likely to
work best in a given watershed. The Committee identified several general principles
it believes EPA should convey to States as appropriate considerations in making
allocation decisions. EPA and States may currently consider these principles in
developing TMDLs, but this may not be consistently done. The Committee noted
that States (and stakeholder groups) may not always be aware of the different
methods that have been successfully used. (It should be noted that the Committee's
recommendations on allocation are not intended to affect and do not address
jurisdictional issues among States, Tribes, and EPA.)
E Recommendations
1. The Committee recommends that EPA convey (through guidance) the following principles to
assist States in making allocation decisions.
— To be approvable, a TMDL's allocation scheme must be designed to achieve water
quality standards. The TMDL implementation plan must clearly demonstrate how the
allocation is to be achieved.
— EPA should encourage States, within a watershed framework, to determine an equitable
allocation of pollution control responsibilities, as long as it is clear that the allocation
will achieve water quality standards. In this framework, States (with input from
stakeholders) may consider several factors including technical and programmatic
feasibility, cost-effectiveness, relative source contributions, and the degree of certainty of
implementation (including the "reasonable assurances" in the implementation plan (see
Section 5.6 below, recommendation 2.d), past experience with similar approaches, and
enforceability of point and nonpoint source controls).
— Although an allocation for future growth is not required, States should always consider
including future growth in allocations, and document their decisions. The
documentation should clearly explain to sources the implications of the growth
allocation decision, especially if there is no allocation for growth.
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— States may consider innovative approaches when making allocation decisions, if (1) the
TMDL implementation plan provides reasonable assurances that allocations will be
achieved and water quality standards met when using the approach; (2) all legal
requirements associated with the allocation process (and the TMDL process in general)
are met; and (3) the TMDL implementation plan contains detailed, specific provisions for
follow-up evaluation of the innovative approach, and potential revision or elimination of
the innovative approach in favor of a more traditional approach based on that review.
2. The Committee recommends that EPA distribute "informational guidance" on allocation methods
that have been successfully used, to assist States and stakeholder groups devise an appropriate
and effective allocation scheme for specific circumstances. The guidance might include:
clarification of purpose and legal requirements of the allocation process; case studies of different
allocation approaches; information needs for different allocation approaches; and "process"
suggestions, such as effective negotiation methods and ways to involve stakeholders. The
informational guidance should allow States to review alternative allocation methods, compare
them with their particular objectives, and choose the best method for the watershed to attain
water quality standards.
5.6
THE IMPLEMENTATION PLAN
Problem
Statement
The Clean Water Act does not expressly specify whether implementation plans are
required as part of a TMDL submission, although §303(e) requires approved TMDLs
to become part of a State Continuing Planning Process (CPP). EPA's practice in the
past has not required implementation plans be part of State TMDL submissions.
However, some State CPPs have not been addressed for two decades while others
are more actively applied. Given that TMDL development will lead to attainment of
water quality standards — one of the ultimate goals of the Clean Water Act—only if
TMDLs are actually implemented, should EPA require implementation plans for
individual TMDLs?
Discussion
Since the purpose of a TMDL is to bring about attainment of water quality standards,
the mandates of the Clean Water Act will be thwarted and resources will be wasted
if TMDLs are completed but not implemented. Because the goal of the TMDL
program is to correct impairments and achieve beneficial uses of our nation's
waters, and the purpose of individual TMDLs is to clean up specific impaired
waters, States and EPA need to address implementation effectively at the time of
TMDL development.
Committee members disagreed on whether the implementation plan should be
required under Section 303(d) (as part of the TMDL) or under the State's Continuing
Planning Process under Section 303(e). (The Committee's brief analysis of these
alternative approaches is discussed in Appendix H). The Committee did agree that,
under the Clean Water Act, an implementation plan could be required by EPA.
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E Recommendations
1. The Committee recommends that EPA issue regulations requiring that an implementation plan
and schedule be prepared and submitted to EPA with each TMDL. The schedule specified in the
implementation plan should provide that implementation activities will begin immediately after
EPA approval of the TMDL to ensure water quality standards are met as soon as possible, and to
avoid the TMDL's becoming outdated or "stale" before being used to guide control efforts. The
implementation plan would be based on the TMDL that has been developed, including
allocations, background pollutant levels, and geographic boundaries. States should be held
accountable for developing implementation plans under the Clean Water Act to help ensure that
implementation gets high priority, that water quality problems are being addressed, and that the
goals of the Clean Water Act will be met. If EPA decides that the implementation plan
requirement should be under §303(e), then EPA's CPP regulations need to be updated and
improved. Even if EPA does not rely on §303(e) to require implementation planning, the
Committee would recommend a review and possible revision to the CPP regulations.
2. The Committee recommends that EPA issue regulations requiring that each TMDL
implementation plan contain all nine of the components described below. However, the level of
detail associated with each component may vary among TMDLs, depending upon the complexity
of the TMDL and other factors, as provided in the hierarchy approach (see Appendix G).
a. Description of actions (control actions and/or management measures) that will be
implemented to achieve the TMDL. The description contained in each TMDL may vary
depending upon the complexity of the problem and control actions, but at a minimum
the description must include:
For point sources: a list of NPDES permits and corresponding wasteload allocations,
(details of how wasteload allocations will be achieved can be worked out in the permits
as they are written and/or revised), and the schedule for revision of these permits, if
necessary, to incorporate the TMDL allocations.
For nonpoint sources (see also Section 5.8 below for a discussion of approaches to
nonpoint source implementation planning): load allocation(s) (or an alternative
providing equivalent demonstration of attainability of water quality standards), and a
description of management practices or measures/control actions, including:
>• who must undertake the management practices/measures or control actions
(identified parties could include either individual sources or logical groupings of
sources, as the State determines is most appropriate to guide implementation of
the particular TMDL);
>• what actions identified sources must take to meet their allocations (including an
assessment of the anticipated effectiveness of the actions, how the actions would
be expected to achieve the TMDL allocations, and what additional actions may
be needed);
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>• when those actions must be implemented (including any seasonal variations);
and
•• where the actions apply (the geographic boundaries for sources and control
actions/management measures).
In regard to nonpoint source management measure or control action descriptions, it
should be noted that:
•• Nonpoint source actions can include voluntary, incentive-based measures as
well as regulatory controls, and "bad actor" provisions. However, for voluntary
and/or incentive-based measures, the assumptions the State uses to provide
"reasonable assurances" must be specified (see 2.d below).
•• If nonpoint source actions are already described by an existing program (e.g.,
Coastal Nonpoint Pollution Control Program), then the description of those
actions could be referenced and attached to the submittal along with a
description of how and when these actions will be implemented and are
expected to meet the allocation in the TMDL (see Section 8.1, Recommendation
7). If existing programs have already been implemented and nonattainment
continues, this approach alone would be inadequate.
•• The hierarchy approach to TMDL development and approval should inform the
level of detail needed to describe nonpoint source actions and follow-up
monitoring activities. For example, implementation plans for TMDLs that rely on
a set of quantifiable actions because quantifiable target and load allocations are
not available would require much more detailed specificity on those planned
actions (see case #4 under Step 1 of the hierarchy approach description,
Appendix G).
b. A schedule for implementing specific activities (management measures, control actions,
and other follow-up activities) deemed necessary to achieve the TMDL. This schedule
addresses source activities as well as activities expected from the State/EPA, such as
certain follow-up monitoring or evaluation activities. This should include:
•• A schedule for issuing new and/or revising existing applicable NPDES permits;
•• A schedule for implementing (and, if necessary, developing) nonpoint source
management measures and/or control actions. The schedule should call for
such activities to begin immediately after approval of the TMDL (i.e., the
schedule cannot delay all implementation activity until some point in the future);
•• A schedule for completion of the milestones for management measures/control
actions (see component g);
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•• The estimated timeframe for control action/management measure effectiveness
in meeting water quality standards (see component f); and
•• A schedule for revising the TMDL in the event revisions should prove to be
necessary (see component h)
c. The legal authorities under which the control actions will be carried out (for example,
Clean Water Act NPDES permitting requirements, Clean Water Act §401 Certification,
Federal Land Policy and Management Act §202, CZARA, State forest practices acts, State
water laws, State nonpoint source management programs, and/or watershed management
plans) and whether those actions are enforceable. The plan should also include
information on how the specified authorities will be used and enforced, and by whom.
d. "Reasonable assurances":
(1) That nonenforceable actions (for certain nonpoint source activities) will result in the
load allocations for nonpoint sources required by the TMDL. This would, at a minimum,
include:
•• demonstration of the availability of funds to implement the nonenforceable
actions;
•• description of the process for entering into any necessary agreements (such as
with/among various federal, Tribal, State, and local agencies/entities, private
landowners, others) to carry out such nonenforceable actions and the probability
of success in achieving such agreements;
•• an assessment of the likelihood of continuation of governmental programs (e.g.,
Conservation Reserve Program) that are planned to assist in implementation; and
•• an analysis of the anticipated effectiveness of the management measures (a
demonstration of how, if implemented, they will actually lead to desired
reductions; an evaluation of the success of existing/prior programs calling for
similar controls in the watershed or a similar watershed may be used in this
analysis).
(2) That adequate funding for planned point source controls (e.g., planned POTW
upgrades) is expected to be available.
e. An estimate of the time required to attain applicable water quality standards and a
demonstration that the standards will be met as expeditiously as practicable. It would
be expected that actions called for to implement the TMDL would begin immediately
after approval of the TMDL submittal.
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f. A monitoring plan designed to determine the effectiveness of the implementing actions
and whether allocations were met. This plan must include at least the following
components:
•• a plan for assessing whether management measures/control actions are being
implemented as planned;
•• a plan for assessing whether allocations are sufficient to attain water quality
standards;
•• a plan for assessing the improvement in water quality conditions (reflecting time
necessary to ensure that water quality standards are met);
•• a plan for assessing whether the milestones described in component (g) are being
met; and
•• a plan for assessing the effectiveness of management measures/control actions.
In addition, the implementation plan/schedule should indicate who will carry out (and
pay for) the monitoring activities.
g. Measurable milestones for determining whether the implementation plan is being
properly executed, and for determining whether applicable water quality standards are
being achieved. While the milestones selected may vary depending upon what is most
appropriate for the particular TMDL to be implemented, they must be sufficient to
demonstrate adherence to the implementation plan. The measurable milestones must
include:
•• appropriate incremental, measurable water quality targets to ensure that progress
is being made (associated with the periodic monitoring called for in the
monitoring plan (component f)); and
•• milestones for implementing control actions, for example:
— the number of permits to be modified by a date certain; and
— a quantifiable measure of the nonpoint source actions implemented by a
date certain (which, depending upon the situation, could be an estimate of
the number of specific control actions taken, the number of farms adopting
management measures, acres of forests adopting certain management
practices, or other measure suitable to demonstrate on-the-ground
implementation).
h. The ramifications of failing to meet these milestones. The ramifications (i.e., what
happens next) depend on why the milestones are not being achieved and the degree to
which the milestones have not been met. The ramifications should explain the TMDL
corrective mechanism, including how and when it would be necessary for the State to
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modify each component of the TMDL (allocations, point or nonpoint source control
actions/management measures in the implementation plan, monitoring plan, etc.), and
when it may be appropriate to "re-open" or re-submit the TMDL.
A schedule for revising (and submitting to EPA for approval) the State's CPP and
applicable (preferably sub-basin) Water Quality Management Plans to include the
TMDL, and the proposed Water Quality Plan Revision. (The schedule for revising the
CPP and Water Quality Management Plan is more important if the implementation plan
is carried out through §303(e); see Appendix H.) A State may be able to combine several
TMDLs in a CPP and WQMP revision.
5.7
DEADLINES FOR ATTAINMENT
Problem TMDLs (with their associated implementation plans) are designed to lead to
Statement attainment of water quality standards. Should EPA establish a deadline for TMDLs
to attain water quality standards?
Discussion The Committee agrees that TMDLs should be designed and implemented with a goal
of expeditiously attaining compliance with water quality standards. The Committee
could not agree, however, whether to recommend establishing a specific deadline
for attainment, either programmatically or with respect to individual TMDLs.
The Committee has stated that its primary interest is in "expeditiously eliminating
water quality impairments" (see Section 2.2). The Committee has recommended
that TMDL implementation plans include "an estimate of the time required to attain
applicable water quality standards and a demonstration that the standards will be
met as expeditiously as practicable," "measurable milestones," and "provisions for
follow-up monitoring, evaluation and potential revision" (see Section 5.6, above).
Some members of the Committee wanted to recommend that EPA revise its
regulations to require specific deadlines for attainment as a condition of EPA
approval of individual TMDLs submitted by States, including a demonstration that
the proposed deadline is as expeditious as practicable. This requirement would
apply whether the implementation plan were part of the TMDL or not.
Other members of the Committee agreed with the existing language in the report
regarding expeditious attainment but did not agree that specific regulatory deadlines
should apply to each TMDL.
5.8 NONPOINT SOURCE APPROACHES
Problem
Statement
Historically, nonpoint sources have not been regulated as comprehensively as point
sources and the water quality programs for point and nonpoint sources differ in a
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Chapter 5: TMDL Development
variety of ways. Point source permits must reflect TMDL wasteload allocations.
How are pollution reduction actions for nonpoint sources to be addressed in
TMDLs?
Discussion Nonpoint sources (both urban and rural) cause or contribute to impairments in
waterbodies throughout the United States. State surveys indicate that nonpoint
sources are significant and widespread contributors of pollution to impaired waters.
All members agree that waters impaired by both point and nonpoint sources should
be listed under §303(d)(1)(A) of the Clean Water Act and have TMDLs prepared for
them. In addition, all members agree that any water not meeting water quality
standards due entirely or in part to nonpoint source contributions should be
assigned priority for attention under §319 State Nonpoint Source Management
Programs and that their attainment/nonattainment status should be tracked and
made public. The Committee recognizes that there are legal issues that have been
raised as to whether waters impacted only by nonpoint sources are to be listed
under §303(d)(1)(A), §303(d)(3), or only under §319. However, the Committee has
decided not to address these legal issues in its report.
E Recommendations
1. The Committee recommends that load allocations for nonpoint sources be established and
implemented according to the principles set out elsewhere in this report (including, most
specifically, "Criteria for Approval" (5.4), "The Implementation Plan" (5.6), "Tracking and
Assessing TMDL Effectiveness; the Importance of an Iterative or Adaptive Approach" (5.9); and
the related "Outline of the Hierarchy Approach to TMDL Approval" (Appendix G)). Under these
principles, the combination of best management practices and any requirements of State and
federal law for nonpoint sources, along with existing and new controls adopted by point sources
(where appropriate), are to be sufficient to meet water quality standards. In accordance with
§319(a)(1 )(C) of the Clean Water Act, States should identify best management practices and
measures to control nonpoint sources causing or contributing to nonattainment of water quality
standards, and provide for these sources to reduce, to the maximum extent practicable, the level
of pollution they contribute. (See also Section 10.1 for recommendations on the responsibilities
of federal land managers in assuring the adequacy of TMDL implementation plans for lands
within theirjurisdiction.)
2. The Committee recommends that, as described in the Sections of this report referenced above, if
the initial combination of controls established in the TMDL implementation plan produces less
water quality improvement than expected, States modify the TMDL and/or its implementation
plan to assure that the goals will be met. In developing the revised TMDL and/or plan, States
shall review existing point source permit control requirements for compliance and/or necessary
modifications and also shall:
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a. review the best management practices and measures they previously identified for
nonpoint sources and revise them as necessary to assure that they continue to produce
the maximum practicable pollution reduction;
b. identify any additional nonpoint sources (or classes of nonpoint sources) that should
participate in achieving the TMDL's goals;
c. identify any additional management measures and/or controls that, to the maximum
extent practicable, will reduce the pollution of concern from nonpoint sources in the
affected water; and
d. exercise any additional legal authorities to address nonpoint sources, as necessary.
3. The Committee recommends that, in reviewing and approving TMDLs, EPA assure that the
combination of load/wasteload allocations is designed to result in water quality standards
attainment and disapprove any TMDL that is not expected to provide for attainment. However, it
is the State's responsibility to determine what nonpoint source best management practices and
measures are to be included in the implementation plan and which of these practices and
measures are to be regulatory, nonregulatory, incentive-based and/or voluntary. (See Section
10.1 for recommendations on the responsibilities of federal land managers in assuring the
adequacy of TMDL implementation plans for lands within theirjurisdiction.)
5.9 TRACKING AND ASSESSING TMDL EFFECTIVENESS; THE IMPORTANCE OF AN ITERATIVE
OR ADAPTIVE APPROACH
Problem Following TMDL development and approval, information may become available
Statement suggesting that TMDL targets, load allocations, or planned implementation strategies
need to be refined to ensure the TMDL will achieve water quality standards. In
addition, although many TMDLs can be developed with confidence based on
available data and scientific understanding, some may need to be developed where
there is considerable uncertainty about sources, causes of impairments, or other
relevant factors. EPA's current guidance allows a "phased approach" to TMDL
development in cases of significant uncertainty. TMDLs developed using the phased
approach must include all EPA required elements and be designed to lead to water
quality standards attainment but also contain explicit provisions for follow-up
monitoring and potential revision. To what extent should TMDLs include provisions
for evaluation and iterative improvement?
Discussion As indicated in Section 5.6 above, the Committee recommends that all TMDLs
include follow-up monitoring and potential revision provisions. Tracking TMDL
implementation and water quality progress, and modifying TMDLs and
implementation plans as necessary to ensure attainment of water quality standards is
important to:
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— Address uncertainty that may exist in many aspects of TMDL development.
TMDL allocations and implementation plans may need to be adjusted as
new information addressing areas of uncertainty becomes available. It is
expected, in fact, that some TMDLs will need to be perfected through an
iterative process based on water quality data gathered throughout and
following implementation.
— Oversee TMDL implementation, to ensure that the implementation plan is
carried out.
— Ensure that the TMDL remains effective, given economic, demographic,
and/or physical changes that may occur in the watershed after the TMDL is
developed. The TMDL may need to be adjusted to account for such
changes.
In all cases, a TMDL should be developed using the best available information, and
be designed to attain water quality standards. The best effort should be made to "get
it right" when the TMDL is initially developed, hence avoiding the need for future
revision. In some cases (i.e., where data or information on the causes of impairment
is slight or of poor quality) it may be apparent at the outset that additional data are
needed before fully developing and implementing all the specific control actions
that will be needed to achieve the TMDL. In these instances, implementation of
control actions/management measures that are reasonably certain to result in
progress toward attainment should begin immediately. At the same time, additional
data gathering (according to a schedule specified in the TMDL's implementation
plan) would take place to determine the remaining control actions/management
measures required to achieve water quality standards. The TMDL implementation
plan should specify a schedule for development and full implementation of
additional control actions/management measures, and should call for planned future
revisions to the TMDL to include a schedule for implementation of additional
actions. Similarly, controls/management measures may be adjusted to be less
stringent if appropriate, although this would need to be done consistent with anti-
backsliding provisions for point sources. The revised implementation plan would
then be submitted to EPA.
Requiring provisions for follow-up monitoring, evaluation, and potential revision
could add to the effort needed to prepare TMDLs, but these steps are critical to
ensuring that water quality standards are ultimately attained. As indicated by the
hierarchy approach, TMDLs differ in the type and extent of follow-up monitoring
and evaluation they require. However, each TMDL must include a step for
establishing that water quality standards have been attained.
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E Recommendations
1. The Committee recommends that, as set forth in Sections 5.4 and 5.6, each TMDL contain
provisions for follow-up monitoring, evaluation, and potential revision, to allow for an iterative
(or adaptive or phased) approach in cases of uncertainty or lack of success in achieving
standards. In all cases, TMDLs (with their associated implementation plans) must be designed to
meet water quality standards, but must be modified if necessary or appropriate when new science
and information becomes available.
2. The Committee recommends that the type and extent of monitoring, evaluation, and revision
required be appropriate for the particular TMDL and watershed. For example, as indicated by the
hierarchy approach (and its principle of "inverse proportionality"), there should be more detailed
and frequent follow-up monitoring for TMDLs developed with relatively less quantitative rigor.
3. The Committee recommends that in addition to issuing regulations requiring an implementation
plan (which will include provisions for follow-up monitoring), EPA issue guidance on acceptable
follow-up monitoring and evaluation provisions, reflecting that each TMDL's implementation
plan should describe the consequences of follow-up monitoring, as well as the consequences of
failing to undertake the follow-up activities.
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Chapter 6: Impairments Due to Extremely Difficult Problems,
Atmospheric Deposition, and Flow Modification
PROBLEM STATEMENT
Waters not meeting water quality standards as a special issues for the Committee. How should the
result of special challenges related to extremely TMDL process address waters impaired by such
difficult to solve historic problems, atmospheric factors?
deposition, and modifications to flow presented
6.1 EXTREMELY DIFFICULT PROBLEMS
Discussion Some water quality standard nonattainment is due in part, or entirely, to extremely
difficult to solve historic problems. The Committee believes that waters facing
special challenges fall into two categories, discussed further below. Special policy
considerations may be appropriate in addressing the water quality impairments
caused by these challenges. (These policy considerations apply to both categories
with the exception of the treatment of allocations.) The Committee notes that local
government is generally responsible for land use planning and solutions to these
problems must respect this authority, so long as land use planning is consistent with
the TMDL.
The first narrow category of difficult historic problems is based on the presence of
(a) a physical structure or physical modification that would be impossible or
virtually impossible to remove; or (b) those instances where solving the problem will
cause more environmental harm than good. The Committee agrees that the
following circumstances are included in this first category: large existing dams (not
including their operation, maintenance, or potential modifications); interstate
freeways; contaminated sediments where a risk assessment performed pursuant to
CERCLA, RCRA, or a similar clean-up authority demonstrates that performing
remediation would cause more environmental harm than good or where natural
recovery is found to be the preferred approach; urban impervious areas such as
permanent loss of habitat for aquatic life that could affect water quality (but not for
things covered by stormwater management); waste sites where complete removal is
deemed impracticable; sources of banned and persistent contaminants where the
removal of the overlying infrastructure or agricultural topsoil would cause
widespread hardship, for example, the presence of chlordane used for termite
control under structures; and channelization where development is right up to the
bank.
The Committee also recognizes a second category of historic problems that require
special consideration. These include circumstances where remediation/restoration
is technically and/or practically very difficult and extremely costly, where the
operation of large physical installations can be managed (but possibly involve costly
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modifications), where restoration is a function of processes that are inherently slow
(e.g., growing trees), or where no federal, State, or local agency has legal authority to
force active restoration. These circumstances are likely to take a long time to affect.
The following examples illustrate these circumstances: small dams, culverts,
abandoned roads, abandoned railways, some abandoned mines, contaminated
sediments (other than those in the first Category described in the preceding
paragraph), urban stormwater runoff from impervious surfaces, combined sewer
overflows (CSOs), sanitary sewer overflows (SSOs), land clearing activities (where
reforestation is necessary to stabilize a site), dikes, field tiles, active CERCLA clean-
up sites, nitrate-laden groundwater, extreme stream modifications (e.g.,
channelization, loss of meander), and operation and management of dams and
channels.
E Recommendations
1. The Committee recommends that EPA require States to include waters impaired wholly or
partially by both categories of special challenge sources on their §303(d)(1) lists.
2. The Committee recommends that the first category of special challenge sources be given a
background allocation. Special challenge sources in the second category should be given
allocations with timeframes appropriate for meeting the allocation.
3. The Committee recommends that States/Tribes/EPA proceed on the assumption that a feasible
TMDL can be developed for impairments involving special challenge sources. The TMDL should
include a (waste)load allocation(s) for the special challenge source, whereupon the
implementation plan must lay out specific steps to address this source, based on the nature of the
problem.
4. The Committee recommends that, where necessary, a TMDL implementation plan involving
special challenge sources allow a relatively longer timeframe for water quality standards
attainment. Different timeframes for implementation of (waste)load allocations may be needed
for special challenge vs. existing sources. For example, existing sources may be required to
achieve necessary load reductions quickly (i.e., within a compliance schedule in a 5-year NPDES
permit), even if achieving prescribed load reductions for these historic sources is anticipated to
take longer. In such a situation, the State may consider relying more on a phased (or iterative)
TMDL approach, in which expected loading reductions from special challenge sources over the
long-term are factored in when establishing short-term allocations for permit limits for point
sources.
5. The Committee recommends that reasonable reductions be required of existing sources in light
of the relative contribution of special challenge sources. During the time a TMDL is being
developed for a water impaired by these sources, States may need to make permitting decisions
for existing point sources of the pollutant whose contributions of the problem pollutant may be
minor in relation to the special challenge source. In deciding on control actions for existing point
sources during that time, States should apply a principle of requiring reasonable reductions, but
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Chapter 6: Impairments Due to Extremely Difficult Problems, Atmospheric
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should not impose extensive burdens on these sources where the reductions accomplished will
not significantly contribute to attainment of the water quality standard.
6. The Committee recommends that, in general, EPA require that TMDLs addressing special
challenge sources contain a high degree of specificity in their implementation plans and detailed
provisions for follow-up monitoring, since source identification and allocation for TMDLs
involving these problems may require creative solutions and a relatively longer time period for
implementation. While some TMDLs for special challenge problems may require future revision
based on such monitoring, like other TMDLs they must always contain all TMDL elements and be
designed to lead to full attainment of water quality standards.
7. The Committee recommends that as a last resort, if no strategy can be found to address the
special challenge source, States may conduct a Use Attainability Analysis (UAA) in which they
would be required tojustify a change in designated uses.
6.2 ATMOSPHERIC DEPOSITION
Discussion The Committee did not reach agreement on all aspects of how the TMDL program
should address waters impaired by atmospheric deposition. However, the
Committee did recognize that atmospheric deposition of toxic pollutants (such as
mercury and lead) or of nutrients (such as nitrogen) may contribute to water quality
impairments in many waterbodies. Atmospheric deposition is somewhat different
from a historic special challenge problem because the sources of atmospheric
deposition are likely to be ongoing. However, like special challenge problems,
impairments wholly or partially caused by atmospheric deposition pose several
important challenges to environmental agencies. Some of the challenges discussed
by the Committee include:
— Source uncertainty: tracing observed pollutants back to atmospheric
transport mechanisms, distinguishing between atmospheric and non-
atmospheric pollutant contributions, and/or attributing atmospheric
pollutant loadings to specific sources;
— Control authority: identifying local, State, Tribal, or federal regulatory
authorities that can be used to modify source air emissions to meet needed
waterbody loading reduction goals or mobilizing authorities under Clean
Water Act, Clean Air Act, or other statutes to address air sources in one
jurisdiction that are adversely impacting waters in another; and
— Control strategies: providing adequate assurances of implementation or
developing reasonable, expeditious, and approvable TMDL action plans or
strategies for air sources, especially distant sources outside thejurisdiction
of the environmental agency preparing the TMDL.
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Chapter 6: Impairments Due to Extremely Difficult Problems, Atmospheric
Deposition, and Flow Modification
Given these challenges, the Committee agreed that the problem of atmospheric
deposition may be important to many water quality problems, not always well
understood scientifically, and particularly difficult for States to address. The
Committee recommends that EPA conduct and encourage more research into the
causes and solutions of waterbody impairment due to atmospheric deposition (See
Section 10.2). However, the Committee did not agree on recommendations for
listing waters impaired by atmospheric sources, nor on strategies for developing
TMDLs if such waterbodies are listed. Various Committee perspectives on
§303(d)(1) listing and TMDL development for waters impaired by atmospheric
sources are summarized below.
Section 303(d)(1) Listing
Some members felt that, for legal and policy reasons, all waters impaired by
atmospheric deposition must be listed. They view the §303(d)(1) list as the list of
waters not meeting standards irrespective of the source(s) of the nonattainment
problem, and therefore believe the law mandates that these waters be listed. They
also note that the lack of knowledge about the source(s) of impairment at the time
States make listing decisions will make it impossible to exclude waters from listing
based on source considerations. As with historic special challenge problems, they
believe that difficulty in addressing the impairment should not influence listing
decisions since these concerns are meant to be addressed during TMDL and
implementation plan development. The fact that atmospheric deposition may cross
State boundaries should not influence listing decisions, in their view, because EPA
can assist in developing TMDLs in these instances, and may be assigned
responsibility under the State's TMDL to address air sources. They believe that
listing waters impaired by atmospheric deposition will ultimately lead to more rapid
progress toward water quality standards attainment, by promoting identification of
sources and solutions through the TMDL development process. The proponents of
this approach also feel that §303(d)(1) listing will help to highlight problems caused
by atmospheric deposition, and that this, in itself, will be helpful in stimulating
appropriate action.
Other Committee members believe that waterbodies impaired by atmospheric
deposition generally should not be listed pursuant to §303(d)(1). They believe that
Congress did not require or intend for air emissions to be addressed under the Clean
Water Act, and that EPA, States, and Tribes can highlight water quality problems
caused by atmospheric deposition and make progress toward water quality
standards attainment outside of the TMDL process. These members held several
different views on the circumstances under which waterbodies impaired by
atmospheric deposition should or should not be listed. Each of the following
options were favored by one or more of these members:
1. No waterbodies impaired by atmospheric deposition should be listed
because the level of scientific understanding needed to establish cause and
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Chapter 6: Impairments Due to Extremely Difficult Problems, Atmospheric
Deposition, and Flow Modification
effect relationships (i.e., to identify sources and establish allocations) is not
yet available.
2. In cases where the extent of atmospheric deposition is unknown, the
waterbody should be listed under §303(d)(1). If it is known that
atmospheric deposition is a significant contributor to the impairment the
waterbody should not be included on the list or should be removed from
the list if already listed. In this context, "significant" cannot be defined
generally but depends upon the degree of atmospheric contribution, and the
feasibility of addressing the impairment from non-atmospheric sources. For
example, if the atmospheric contribution is so large that reasonable
reductions from non-atmospheric sources will not significantly contribute
toward attainment, the waterbody should not be listed.
3. Waters impaired by atmospheric deposition should not be listed when the
sources of atmospheric deposition cross State, Tribal, or national
boundaries, because the State would have no ability to control such sources
in order to implement a TMDL. If the atmospheric sources of the
impairment are entirely within State boundaries, the State would be able to
develop a TMDL, and the waterbody should be listed.
TMDL Development
The Committee did not agree on all aspects of TMDL development for waters
impaired by atmospheric deposition, assuming that such waterbodies are listed
under §303(d)(1). Members identified the following possible approaches:
1. Where atmospheric deposition causes or contributes to water quality
impairments, the TMDL development process recommendations for historic
special challenge sources would also generally apply (i.e., allowing for a
relatively longer timeframe for water quality standards attainment, ensuring
that non-atmospheric sources do not have to face extensive regulatory or
economic burdens if they do not significantly contribute to the impairment,
and encouraging a creative, problem-solving approach to TMDL
development using whatever authorities are available).
2. EPA should assume a greater role in developing (or assisting States in
developing) TMDLs in cases where out-of-State atmospheric sources
dominate. EPA may need to address these atmospheric sources through
authorities it has under the Clean Air Act, and EPA is encouraged to develop
and apply these Clean Air Act authorities. TMDLs should "trigger" EPA's
use of Clean Air Act authorities to address impaired waters.
3. For cases where several impairments are entirely due to the same set of
atmospheric sources (e.g., many small lakes with mercury contamination), a
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State (or EPA) could develop one TMDL (with one implementation plan) to
address several waterbodies and thus ease the resource burden on the
agency. In such a case, the "watershed" in question would actually be the
airshed that includes all sources that contribute to the impairment. States
would need EPA assistance to address contributing atmospheric sources
located outside State boundaries.
6.3 MODIFICATIONS TO FLOW
Discussion Some impairments result from modifications to flow, rather than (or in addition to)
loading of specific pollutants. The Committee's discussion of flow modification
focused primarily on waters adversely affected by hydrological modifications
resulting in insufficient or low flow, such as instream diversions (e.g., for irrigation),
or water storage (e.g., catchments). However, the Committee noted that there are
other types of flow modifications that can cause water quality impairments, which
TMDLs will need to address in some cases. These include human modifications
resulting in high flows and freshwater inflows to estuarine areas (that can cause
channel scouring, changes in flow velocity, and other physical and chemical
problems leading to adverse effects on aquatic life and water quality standards).
While we do not offer specific recommendations based on type of flow
modification, our more general recommendations affirm that water quality standards
nonattainment problems resulting from flow modification are generally within the
scope of the Clean Water Act, important to water quality standards attainment, and
therefore relevant to the TMDL program.
Water rights are generally governed by State law and it is beyond the Committee's
charge to review these laws or to suggest changes in water rights laws or procedures.
The Committee believes its recommendations are consistent with Clean Water Act
§101(g), which specifically preserves Statejurisdiction over quantity allocations.
The Committee believes that where impairments are due to flow alterations, either
alone or in combination with other sources of impairment, they must be addressed
by the TMDL program to the extent possible. For example, it may be possible in
many instances to work within State water laws to address flow problems and attain
water quality standards. Federal land management agencies also have the ability to
help solve flow problems and should also work with States to assure compliance
with CWA §401 certifications. Although not a preferred approach, States could
choose to undertake a Use Attainability Analysis (UAA) and this may in some cases
eliminate the need to develop a TMDL. As a last resort, under the current
regulations, States may, under certain circumstances, employ a non-UAA approach
to changing a non-existing designated use (see 40 CFR §131.10 (d)(2) and (4)).
The Committee's recommendations on problems caused by flow modifications are
of a general nature because, similar to special challenge problems, addressing such
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Chapter 6: Impairments Due to Extremely Difficult Problems, Atmospheric
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impairments may require creative problem-solving approaches, and in some cases, a
relatively longer time period to achieve water quality standards. Moreover, the
Committee recognizes that because State water laws differ widely, and land use
planning is an activity within the purview of local governments, it would be difficult
to develop specific approaches to flow concerns that could be applied to the TMDL
program nationally.
E Recommendations
1. The Committee recommends that EPA require States to include waters impaired wholly or
partially by modifications to instream flows on their §303(d)(1) lists.
2. In situations where modifications to instream flow cause or contribute to water quality standards
violations, the Committee recognizes that because of legal, institutional, and political difficulties,
in some cases, more time for creative solutions or funding of those solutions may be needed for
TMDL development and implementation. The Committee recommends that States and EPA
consider these circumstances during the TMDL process.
3. The Committee recommends that States identify strategies for inclusion in TMDL implementation
plans to deal with impairments caused wholly or partly by modifications to flow.
4. The Committee recommends that federal agencies recognize their responsibility to work within
existing legal structures to address flow modification issues which fall under theirjurisdiction as
part of TMDLs. EPA should assist and encourage other federal agencies to meet these
responsibilities.
5. The Committee recommends that EPA provide technical assistance, information and data
searches, and model water use efficiency/conservation information to States, and encourage the
application of innovative approaches to addressing flow-related problems, such as water
"trading" schemes that allow the improvement of flow.
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Chapter 7: Public Participation and Stakeholder Involvement
7.1 PUBLIC PARTICIPATION IN §303(D)(1) LISTING AND TMDL DEVELOPMENT ACTIVITIES
Problem
Statement
Discussion
Communicating with the public and promoting public input into §303(d)(1) listing
and TMDL development is key to a successful, robust TMDL program. For progress
to be made in cleaning up our nation's waters, the public should be aware of water
quality impairments and support actions to eliminate them. At the same time,
conveying the complex, often technical information associated with TMDLs is
difficult, time-consuming, and resource-intensive for State agencies. What, if any,
changes are needed to provide for more meaningful public participation in
§303(d)(1) listing and TMDL development activities?
The Committee strongly believes that meaningful and well-timed public
participation is a cornerstone of a successful TMDL process. Public participation
requirements for the TMDL program are generally described in Clean Water Act
regulations at 40 CFR Part 25 and are expanded on in §303(d) program-specific
regulations and guidance. The regulations state, in part, that environmental
agencies should actively solicit data and information relevant to §303(d)(1) list
development from local, State, and federal agencies, members of the public, and
academic institutions. Public notice is required prior to submittal of a list or TMDL
to EPA for approval, and §303(d) program guidance also requires that States provide
for "adequate public participation" in list development, priority ranking, and TMDL
development activities. EPA must complete the public participation process for any
lists and TMDLs it develops.
Reasonable national consistency in list content and presentation would promote
public interest in and understanding of the §303(d)(1) listing process, and help
stimulate informed participation in and support for the program. While the
Committee recognizes that several States have already invested substantial resources
in developing and updating their §303(d)(1) lists, some format changes may be
relatively easy to incorporate in future listing cycles.
Full adherence to legal requirements will help promote public participation.
However, we are concerned that merely following the minimum legal requirements
for providing public notice of TMDL listing and development decisions will fail to
inform concerned citizens of opportunities to participate and will cause agencies to
lose valuable information, input, and cooperation from the public. While increased
State, Tribal, local government, and/or EPA efforts to involve the public may require
more time and agency resources, we are confident that meaningfully engaging the
public at early stages will, in the long run, lead to better-supported, more cost-
effective, and expeditiously implemented TMDLs. Assuring implementation that
leads to actual water quality standards attainment is, after all, the primary goal of the
TMDL program.
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Chapter 7: Public Participation and Stakeholder Involvement
E Recommendations
1. The Committee recommends that States actively solicit public comment on all proposed
§303(d)(1) lists and TMDLs. Public comment on all proposed §303(d)(1) lists and TMDLs should
be solicited before lists and TMDLs are submitted to EPA for approval so that members of the
public have adequate opportunities to influence agency decisions. (States must provide the
public with clear listing criteria and specific bases for listings to assist them in commenting on the
list). Very extensive public outreach and involvement is recommended in watersheds where
public interest is high, solutions are complex and costly, and where there are large nonpoint
source communities. States should maintain a notification list of all interested parties in a given
watershed, and use it to notify interested parties in advance of public participation opportunities.
States should also post (in writing and, if possible, electronically) a schedule of public
participation opportunities relating to listing and TMDL development activities.
2. The Committee recommends that EPA encourage States to put in place a two-step listing process
to ensure that early and informed public comment occurs on §303(d)(1) lists. In the first step, the
State would issue a draft list with supporting information (i.e., a listing decision "matrix") and
request nominations/comments for additions or other changes. In the second step, the State
would issue a revised "matrix," solicit comments on the list, and accept data/information
regarding contested listings.
3. The Committee recommends that States consider listing waters nominated by the public and
other agencies under §303(d)(1), and must list them if supporting data indicate an impairment
and meet specified listing criteria and are reliable, e.g., meet State data collection protocols
and/or QA/QC program requirements. Waters nominated by the public on the basis of
questionable data should be targeted for additional data collection, where warranted. (See
Section 3.1 for recommendations on data requirements for listing.)
4. The Committee recommends that EPA encourage States to hold periodic informal public
meetings to explain the TMDL process, and to solicit input from the public on the development
and implementation of specific TMDLs, in cases where such meetings are likely to be useful in
promoting water quality goals.
5. The Committee recommends that EPA encourage States (in guidance) to make the following
§303(d)(1) list information available to the public, to provide regular updates to keep the public
informed, and to link §303(d)(1) lists to mapping programs:
— waterbody segment name and number;
— waterbody's geographic location (including a georeference);
— standards violated (e.g., numeric and narrative criteria and beneficial use support;
— reference to data and reports used to support the listing decision (and reports not used to
support the listing decision);
— information on the severity of impairment and/or criteria exceedances;
— rationale for decision to list or not list; and
— priority ranking and scheduling for TMDL development.
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Chapter 7: Public Participation and Stakeholder Involvement
The Committee recommends that States and EPA encourage and support high quality private
citizen/entity water quality monitoring and clearly communicate how and when such
information can be incorporated into TMDL development activities. If data are reliable, they
should be used in TMDL development activities.
The Committee recommends that EPA, States, and Tribes consider expanding existing efforts to
develop and distribute educational materials on water quality, including modules for school
curricula, pertaining to water quality issues as a way of stimulating public knowledge of and
interest in watershed protection and TMDL program activities.
The Committee recommends that EPA encourage relatively more public outreach in TMDLs
where "best professional judgment" will be more heavily relied upon. The use of best
professionaljudgment in TMDL listing and development decisions should be documented and
explained, and this information should be shared with other professionals and made available to
the public.
7.2. STAKEHOLDER INVOLVEMENT IN TMDL DEVELOPMENT
Problem
Statement
Discussion
Stakeholders often have a strong interest in shaping how and when a TMDL is
developed and implemented. For a variety of reasons, stakeholders may wish to
play a substantial role in (or even lead) some TMDL development efforts. The States
and EPA may find stakeholder interest and involvement to be very valuable, given
capacity constraints. However, without proper constraints, stakeholder-led efforts
may not always be (or be perceived to be) fully objective, or meet all procedural
requirements. Given these concerns, to what extent should EPA/States allow or
encourage stakeholders to participate in developing a TMDL?
State environmental management agencies and EPA are generally responsible for
TMDL development. Stakeholders may be able to make an important contribution
to TMDL development and should be encouraged to do so. The Committee believes
that stakeholder agreement to and support of the TMDL will often result from, as
well as promote, strong technical analysis. EPA and States must ensure that a TMDL
is developed using the best possible data and analysis. Therefore, as with any other
TMDL, a TMDL being developed with significant stakeholder involvement must be
scientifically sound, meet all legal and procedural requirements, and be assured of
implementation.
Given the number of TMDLs that need to be developed, several years will elapse in
some cases between waterbody listing and TMDL development. This delay may be
problematic for sources and other stakeholders. It may be difficult for sources to
delay making decisions about long-term capital investments and other
improvements until a TMDL is completed and approved. In some instances,
stakeholders may be eager to begin restoring their waterbody as soon as possible,
rather than waiting until the State's scheduled date for initiating TMDL development.
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Chapter 7: Public Participation and Stakeholder Involvement
In other cases, active watershed councils or similar bodies are moving forward with
restoration plans that could be modified to meet TMDL goals if they were known. In
addition, stakeholders may be willing to invest in water quality monitoring and
analysis because they fear the State will not have the resources to gather as much
data as is optimal. The Committee also anticipates that in some cases, efforts to
develop a stabilization plan, or existing watershed management programs, will help
promote stakeholder involvement (see Section 3.5).
States and EPA also have an interest in substantial stakeholder involvement in TMDL
development. States and EPA have limited resources, which could go further if
stakeholders (including other agencies) were able to carry out and/or finance certain
TMDL development activities. Enabling/encouraging stakeholder efforts to fund and
assist in development of TMDLs may accelerate the overall pace of TMDL
development, enhancing a State's ability to complete its TMDLs on schedule.
Finally, and perhaps most importantly, stakeholders will generally be more likely to
implement a TMDL in which they have participated.
All TMDLs must be submitted by States to EPA for approval, so stakeholders will
need State endorsement of their efforts. Early and ongoing State participation and
supervision (rather than merely after-the-fact review) in stakeholder TMDL efforts is
critical to the success of any stakeholder driven effort. Such State participation is
necessary, even though it could affect other State TMDL activities and TMDL
development schedules, because the State has the ultimate legal responsibility to
develop TMDLs and its supervision is needed to foster the credibility of any
stakeholder effort. Without adequate controls and oversight, TMDL activities carried
out by stakeholders might not be fair to all concerned parties, meet all legal or
procedural requirements, or be fully objective, and thus could ultimately delay the
TMDL's completion and ability to meet water quality goals. Some TMDLs and
TMDL activities may be relatively more appropriate for stakeholder participation
than others, and some are inappropriate for stakeholders to lead.
E Recommendations
1. The Committee recommends that States and EPA encourage and support a substantial role for
stakeholders in TMDL development, particularly in funding and participating in appropriate (e.g.,
consistent with the State's technical protocols and/or QA/QC program) data collection and
analysis and in TMDL implementation. The agency legally responsible for TMDL development
(the State or EPA) must ensure that TMDL activities carried out by stakeholders meet all
requirements applicable to TMDLs developed by the State, including providing adequate
opportunities for public comment/participation.
2. The Committee recommends that States (or EPA) enter into a written agreement with stakeholders
when allowing (and especially when relying upon) stakeholders to carry out any TMDL activities.
The agreement should clarify stakeholder roles and State expectations for TMDL development,
call for a balance of stakeholders to participate in TMDL activities, and specify when the
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Chapter 7: Public Participation and Stakeholder Involvement
overseeing State regulatory agency should step in if, at some agreed-upon point, adequate
progress in TMDL development has not been made or the terms of the agreement are not being
met. Prior to entering into an agreement with stakeholders to carry out any TMDL activities,
States should clearly inform stakeholders of what is required for the TMDL.
3. The Committee recommends that States help assure objectivity in TMDL activities conducted by
stakeholders, by requiring in the written agreement that stakeholders provide information to assist
in documenting assumptions (while respecting confidential business information), and that
stakeholders consult early and often with the State and other stakeholders on planned and
ongoing activities. The agreement should also specify how the State will ensure there are
adequate mechanisms for providing all interested stakeholders with a meaningful opportunity to
participate. Use of a neutral facilitator should be considered where appropriate.
4. The Committee recommends that States and EPA, as appropriate, make it clear (in the written
agreement and elsewhere) that they are legally responsible for interpreting water quality
standards, setting targets, establishing the waterbody's total load, allocating loadings, and
assuring implementation of all appropriate requirements. However, they should consider
information voluntarily provided by stakeholders when developing a TMDL (to the extent such
input is useful and deemed accurate, including stakeholder analyses or modeling to determine
pollution sources and the waterbody's needed load reductions).
5. The Committee recommends that EPA and States make it clear that the legally responsible agency
may not delegate its role of assuring adequate public participation processes, meeting all legal
procedural requirements, and providing all interested stakeholders an opportunity to become
involved. However, stakeholders may play an important role in public participation (e.g., by
inviting and encouraging other stakeholders to participate fully in any parts of the TMDL process
they undertake).
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Chapter 8: EPA's Role in TMDL Review and Program Oversight
8.1
EPA OVERSIGHT/MANAGEMENT OF THE TMDL LISTING AND DEVELOPMENT PROCESS
Problem Clean Water Act §303(d) requires EPA to review and approve or disapprove State-
Statement submitted lists of waters in need of TMDLs and individual TMDLs, to ensure their
legal adequacy and, for TMDLs, sufficiency to achieve water quality standards. State
lists and TMDLs can vary widely in type and quality. In addition, EPA's approval
workload will substantially increase in the near future along with the pace of TMDL
development. What improvements can EPA make to more consistently and
efficiently meet its review requirements, while ensuring that State §303(d)(1) lists
and TMDLs meet program requirements? How detailed should EPA's review be?
Discussion Section 303(d) provides that EPA must approve or disapprove any State §303(d)(1)
list or TMDL within 30 days after it is submitted. If EPA disapproves a submission
and the State does not agree to correct the problems, then EPA must, within 30 days
after its disapproval, complete the list or establish the TMDL as necessary to
implement the water quality standard.
Under current practice, EPA considers a number of factors when reviewing a State
§303(d)(1) list, including whether the list includes the required components, the
basis of listing decisions, and the process used to develop the list. In its review of a
TMDL, EPA determines whether the TMDL is sufficient to meet water quality
standards.
In general, EPA should offer early assistance and work cooperatively with States to
increase the likelihood that State list and TMDL submittals are approvable. There is
an urgent need for efficiency and clarity in approval processes, given that the
volume of TMDLs EPA must approve is likely to increase dramatically. The
Committee also recognizes there is a need for flexibility in EPA's level of oversight,
given the dynamic relationships between States, Tribes, and EPA Regions, as well as
the wide variety of types of TMDLs to be completed; however, EPA is legally
responsible for ensuring that States' TMDLs are sufficient to meet water quality
standards, and are not arbitrary and capricious. While several of the Committee's
recommendations may support EPA's current practice, they provide specific
suggestions on how to address the Committee's concerns.
E Recommendations
1. The Committee recommends that EPA provide assistance to States early on and throughout the
process of §303(d)(1) list and TMDL development (rather than after-the-fact), to ensure that State
submissions will be approvable by EPA; this should help minimize disapprovals and wasted
effort.
The Committee recommends that EPA offer early and periodic review (rather than reacting only
after a TMDL or list is submitted). The level of EPA review and assistance may vary for each
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Chapter 8: EPA's Role in TMDL Review and Program Oversight
TMDL, taking into account the length of the State's §303(d)(1) list, type of TMDL, and other
relevant circumstances. EPA's oversight of, and assistance to, State TMDL listing and TMDL
development should be focused on assuring approvability when the State action is submitted for
EPA approval.
3. The Committee recommends that EPA's oversight and review of State TMDLs be marked by
specific milestones and progress checkpoints. Its purpose should be to assure that TMDLs
ultimately meet federal requirements and to provide useful and early assistance to the State, as
necessary. Failure to meet a single checkpoint should not constitute grounds for immediate
disapproval of a TMDL, so long as the deficiency is corrected before final approval.
4. The Committee recommends that the degree of EPA oversight of/involvement in TMDL
development activities vary according to relevant factors, such as:
— the degree of controversy and technical complexity;
— the extent to which the TMDL is considered innovative or ground-breaking;
— whether the TMDL involves multiplejurisdictions (and other federal agencies);
— the quality of State performance or extent of State program experience: States with
extensive experience or superior past TMDL program performance should require less
rigorous reviews by EPA; and
— the degree and balance of stakeholder involvement.
5. The Committee recommends that EPA define, in regulations and guidance, specific procedures
and criteria for preparation of TMDLs, based on the approval criteria described in Section 5.4. If
the State adopts these procedures and criteria and agrees to apply them, EPA could approve the
State's approach initially to ensure that it meets EPA guidelines. Then, EPA review of individual
TMDLs could be less rigorous (although it is still necessary that EPA determine that each TMDL is
sufficient to meet water quality standards, and EPA approval is still subject tojudicial review).
More detailed EPA review should be required in cases where the State deviates from the specified
procedures for TMDL development.
6. The Committee recommends that EPA incorporate into guidance a TMDL checklist that describes
the recommended features of an approvable TMDL submission. The checklist, based upon the
approval criteria described in Section 5.4, would help to: (1) streamline the review process; and
(2) provide greater certainty to States, EPA, and the public regarding the features of an approvable
TMDL.
7. The Committee recommends that components of an existing program, including water quality
analyses, pollution controls, and/or management measures, or modifications of such
components, may be approved as or incorporated into a TMDL if the State shows, and EPA
finds, that the State submittal meets all substantive approval requirements of a TMDL (including
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Chapter 8: EPA's Role in TMDL Review and Program Oversight
appropriate alternative approval options identified in "The Outline of the Hierarchy Approach to
TMDL Approval" (Appendix G)) and was adopted after adequate opportunities for public
participation. (See also Section 5.6, Recommendation 2.a.)
8.2 ASSESSING STATE PROGRAM EFFECTIVENESS: EPA'S ROLE IN OVERALL PROGRAM
DEVELOPMENT
Problem In addition to its review and approval role for §303(d)(1) lists and TMDLs, EPA has a
Statement responsibility to oversee the overall TMDL program, just as it does for other EPA-
authorized and funded environmental programs. In this role, EPA provides general
technical assistance and guidance to States, and works to ensure consistency across
States. How might EPA best oversee and assist State TMDL programs?
Discussion EPA has an important role both in assessing State TMDL program performance and
assisting States to carry out TMDL program activities. Our recommendations in this
section focus on overall program assessment, along with integration of TMDL
activities into other State and EPA planning activities and specific incentives that
might help ensure strong overall State performance in the TMDL program. (Note:
Sections 10.3 and 10.4 below contain additional recommendations on guidance
and other tools needed to assist State decision makers, as well as capacity-building
for State programs.)
E Recommendations
1. The Committee recommends that the extent of EPA oversight of, and assistance to, overall State
TMDL programs be based on the degree of complexity and volume of State TMDL activity and
past State TMDL program performance. Some degree of EPA oversight and feedback on State
TMDL performance is always necessary. This programmatic oversight is in addition to EPA's
mandatory duty to review and approve or disapprove a State's §303(d)(1) list and individual
TMDLs.
2. The Committee recommends that when assessing the overall effectiveness of a State TMDL
program, EPA consider the (1) sufficiency of decisions: whether specific State listing and TMDL
development decisions are based on best available science and will ensure attainment of water
quality standards; (2) timeliness: whether the State TMDL program meets all statutory, regulatory,
or court-imposed deadlines; and (3) sufficiency of process: whether the State's TMDL program
meets statutory and regulatory procedural requirements (including public participation
provisions), and how well the State meets (orjustifies deviation from) program guidance.
3. The Committee recommends that State TMDL development schedules be incorporated in the
State's Performance Partnership Agreement with EPA. (See Section 4.1, Recommendation 4).
Those agreements should also reflect other appropriate TMDL activities since addressing water
quality impairments should be the water program's highest priority.
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Chapter 8: EPA's Role in TMDL Review and Program Oversight
4. The Committee recommends that EPA use a combination of incentives and disincentives to
ensure strong State performance in the TMDL program, such as: grants (to reward good
performance) and published EPA reports about program progress and results (to enhance State
program accountability to the public).
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Chapter 9: The Role of Tribes
Problem
Statement
Discussion
Tribes have a strong interest in protecting the quality of waters on tribal lands, other
waters for which they retain rights to fish and otherwise use, and waters that affect
uses to which they have rights. Jurisdictional issues and lack of understanding of
the Tribes' government-to-government relationship with the federal government can
complicate tribal roles in watershed management. In 1986, the Clean Water Act
was amended to allow Tribes to seek authorization for their Clean Water Act
programs. Currently, a number of Tribes are seeking Water Quality Standards and
other Clean Water Act program approval. To date, however, no Tribe has sought
TMDL program authorization. In fact, many Tribes are only now learning about the
TMDL process. How can Tribes participate most effectively in TMDL program
activities, both on tribal lands and outside tribal boundaries?
Many Tribes are currently building their Clean Water Act capacity. Others,
however, face pressing needs elsewhere that make it difficult to give water quality
protection high priority. Tribes will need sufficient time, resources, and program
support to build water quality and TMDL program capacity. The Committee
applauds EPA and States for their increasing efforts to work with Tribes on water
quality issues. At the same time, we see the need for additional attention and want
EPA to carefully consider how to use its available resources to best support Tribes in
these endeavors.
Whether or not Tribes choose to develop TMDL program capacity, they remain
keenly interested in and want to participate in TMDL development activities that
affect tribal rights and/or lands. As well, some Tribes gather extensive data on water
quality and the health of fisheries that can be used in TMDL programs. To respect
Tribal sovereignty and work effectively with Tribes on water quality issues, however,
EPA and State agency staff often need to learn more about the government-to-
government relationship. Effective TMDL program Tribal outreach and education
must therefore serve two purposes: support Tribes as they work to build water
quality protection capacity; and prepare EPA and/or State agency personnel to seek
input from and work with Tribes to address water quality problems, both on and off
tribal lands.
E Recommendations
1. The Committee recommends that Tribes not be treated simply as members of the public who are
interested in watershed management or protecting specific waters. Rather, they are sovereign
governments with established rights related to the management and protection of natural
resources and have a trust relationship with the federal government. EPA should consider using
the model Memorandum of Understanding project in Washington State involving Tribes, EPA
Region 10, and Washington Department of Ecology as a national model for building Tribal-EPA-
State partnerships.
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Chapter 9: The Role of Tribes
2. The Committee recommends that EPA increase efforts to help educate Tribes about the substance
and importance of the TMDL program.
— Develop and distribute training video series, fact sheets, newsletters, and other
training/educational materials that help build Tribes' awareness and understanding of the
TMDL program;
— Reserve spots for Tribal representatives at EPA-sponsored training sessions and, where
possible and appropriate, hold one-on-one trainings with Tribal Environmental/Water
Quality Program staff (e.g., through staff exchange programs); and
— work with the National Indian Workgroup, the Tribal Operations Committee, and other
appropriate advisory groups, to link TMDL program outreach efforts to other efforts
already involving Tribes and in which Tribes have developed trust or allegiance.
3. The Committee recommends that EPA increase the financial resources it makes available to
Tribes to build Tribal TMDL program capacity.
4. The Committee recommends that EPA headquarters work with State and EPA regional staff to
ensure that the government-to-government relationship is respected during §303(d)(1) list and
TMDL development and review.
— EPA should train EPA Regional TMDL Coordinators and State Agency staff about the
government-to-government relationship.
— EPA should require that State TMDL processes provide adequate opportunities for Tribal
input and data to be used in §303(d)(1) listing and development decisions for waters not
on tribal lands that directly affect tribal interests (e.g., upstream activities that affect tribal
waters).
— EPA should not approve any TMDL for which the State failed to attempt to consult with
appropriate Tribes during allocation discussions.
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Chapter 10: Coordination, Technical Support, and Capacity-Building
10.1 COORDINATING FEDERAL ACTIVITIES FOR WATERS NOT MEETING WATER QUALITY
STANDARDS
Problem More than 30% of the land area in the United States is federally managed by
Statement agencies such as BLM, USFS, the U.S. Park Service, Department of Defense,
Department of the Interior, and others. Most of these lands are in the western
United States. Who should develop TMDLs for waters that are primarily or entirely
on federal lands? What is the role of federal land managers in TMDL development
and implementation?
Discussion Strong federal leadership in restoring impaired waters will help bring about strong
public support for the program. EPA is the leader among federal agencies in
protecting water quality but other agencies also have an important and unique role
to play in meeting the goals of the Clean Water Act and restoring impaired waters,
including implementation of §303(d)(1). Section 313 of the Clean Water Act
specifically mandates that federal agencies "shall be subject to and comply with all
Federal, State, interstate, and local [water pollution control and abatement]
requirements." The importance of this mandate is especially clear in western States
that have significant water quality pressures from federally permitted logging,
grazing, and mining activities.
E Recommendations
1. The Committee recommends that EPA require States to include waters that do not meet water
quality standards and that flow through or are located on federal lands in their §303(d)(1) list
submittals. EPA, in its review of a State's §303(d)(1) list and priority ranking, should verify that
such waters are listed and ranked/scheduled in an appropriate manner. (See also Section 4.2 of
this report for related discussion of priority ranking and scheduling.)
2. The Committee recommends that federal land management agencies be required to monitor
waters on their lands for compliance with water quality standards and/or TMDL requirements and
to regularly provide such information to EPA and/or the appropriate State environmental agency.
Furthermore, EPA should work closely with other federal agencies, including all agencies
responsible for federal facilities discharging to surface waters or for federal lands management, to
ensure that the data they collect conforms to water quality standards, State protocols, and
TMDL development needs. States must endeavor to obtain and consider all such data in the
possession of federal agencies. (See also Sections 5.2 and 10.3 for additional Committee
discussion related to monitoring.)
3. The Committee recommends that in the time between §303(d)(1) listing and TMDL development,
federal agencies use available authorities (e.g., USDA's Conservation and/or Wetlands Reserve
Programs on eligible private lands, highway construction authorities under ISTEA, limitations on
HUD funding for urban development, logging and grazing permit authorities, or licensing
authorities) to minimize or prohibit, as appropriate, new or increased pollution loadings that will
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Chapter 10: Coordination, Technical Support, and Capacity-Building
cause or contribute to a water quality standards violation from point and nonpoint sources
pending the TMDL's completion. In addition, federal facilities subject to NPDES permitting must
meet the same requirements as other point source dischargers during this interim period. (See
Section 3.5 for related discussion.)
4. The Committee recommends that EPA and States ensure that TMDL requirements are
incorporated in NPDES permits for federal facilities, that those requirements are fully
implemented (and enforced as necessary), and that other Clean Water Act programs affecting
federal facilities or activities (e.g., nonpoint source management programs that affect federally
funded highway construction) also are carried out to assure that TMDLs are effectively
implemented.
5. The Committee recommends that States, EPA, and federal agencies all participate in TMDL
development on federal lands. Consistent with EPA's current policy, States should retain
responsibility for developing TMDLs for impaired waters on federal lands. Federal land managers
should fund data collection and analysis needed to identify waters on their lands that do not
meet water quality standards and to develop TMDLs for them. Federal land managers must
provide such data and analyses to the appropriate State. EPA should play a more prominent role
in TMDL development activities on federal lands when it (1) is invited to [by the State] or (2) fails
to see adequate progress toward TMDL development.
6. The Committee recommends that federal land managers be required to assure that allocations
over which they have oversight and authority are met. Each affected federal agency must
develop plans, including specific milestones, that describe all steps the agency will take,
including reopening appropriate permits and licenses, as necessary to assure (waste)load
allocations and schedules will be met expeditiously. This information should be incorporated
into the TMDL implementation plan.
7. The Committee recommends that permitted users of federal lands and other stakeholders be
included early on in discussions pertaining to allocation decisions.
8. The Committee recommends that EPA use its influence, to the maximum extent of its authority, to
ensure that States, federal land management agencies, and permitted users of those lands, comply
with the law and use all existing State and federal authorities to fully implement and meet the
provisions of approved TMDLs. The State retains responsibility for obtaining appropriate
reductions through its independent authorities and the activities it permits (e.g., through CWA
§401 certifications and/or NPDES requirements).
— No federal permit or license (e.g., CWA §404 permits) should be issued unless the
activity complies with applicable TMDLs.
— Non-EPA federal permits and licenses must be reopened expeditiously and revised
pursuant to all applicable TMDLs. However, it may be appropriate for long-term permits
(i.e., those having cycles longer than five years) that will expire within one to two years to
be revised at the time of reissuance.
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Chapter 10: Coordination, Technical Support, and Capacity-Building
10.2 COORDINATION CHALLENGES AND OPPORTUNITIES
The Committee sees a strong need to link EPA's examples of such activities. The Committee
TMDL program much more closely to other recognizes that TMDL program goals must be
environmental programs, both within and outside balanced with other agencies' and/or offices'
EPA. Water quality problems can result from competing goals and priorities. However,
many activities beyond the scope of EPA's water correcting impairments in the nation's waters
quality program authorities. Air deposition, should be a high priority for all.
highway construction, grazing, and timber
harvesting on federal lands arejust a few
10.2.1 Coordination with Other Federal Agencies
Problem All federal agencies have a duty to meet Clean Water Act requirements, including
Statement those under §303(d); some also have water quality protection duties under their own
authorizing statutes. How can EPA best coordinate its TMDL program efforts with
related efforts by other federal agencies? What role should EPA play? How might
other agencies support and advance restoration of impaired waters?
Discussion Federal facilities and federal lands must be managed in a way that ensures
compliance with the Clean Water Act, including the TMDL requirements. They
should be managed to serve as models to businesses and landowners in assuring
water quality protection and bringing impaired waters into attainment with
applicable standards. Federal agencies need to work cooperatively and proactively
with State environmental agencies and EPA to protect and restore the quality of
waters that flow through federal lands or to which federal facilities are discharging
pollution.
E Recommendations
1. The Committee recommends that all federal agencies use all available authorities and take all
necessary actions to carry out the requirement to ensure that activities they conduct, authorize,
permit, or fund meet Clean Water Act requirements (including §303(d)) and State water quality
goals.
2. The Committee recommends that, where appropriate, federal agencies coordinate their
monitoring programs and develop consistent protocols to avoid duplication of effort and
improve their ability to obtain and transfer common information.
— EPA/States enter into Memoranda of Understanding or Agreement, as appropriate, with
federal agencies to specify activities (e.g., data collection) on which to coordinate or
participate in support of TMDL program efforts to identify and restore impaired waters.
3. The Committee recommends that in completing and implementing TMDLs, EPA and other federal
agencies ensure that the requirements of the Endangered Species Act, the Magnuson-Stevens
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Chapter 10: Coordination, Technical Support, and Capacity-Building
Fisheries Management and Conservation Act, and other applicable statutes are met. This will
require, among other things, that EPA and States:
— work with the U.S. Fish and Wildlife Service, the National Marine Fisheries Service
(together: the Services), and the appropriate State agencies to assess the geographic range
of all federally and State-recognized threatened, endangered, and sensitive species that
may potentially be affected by water pollution to assist in properly identifying waters for
the§303(d)(1) list; and
— work with the Services and appropriate State agencies to identify all federally and State-
recognized threatened, endangered, and sensitive species that may be affected by
pollution in the geographic area of §303(d)(1)-listed waters; and
— coordinate with, and where appropriate formally consult with, the Services and/or the
appropriate State agencies to ensure that individual TMDLs are adequately protective of
federally and State-recognized threatened, endangered, or sensitive species.
4. The Committee recommends that to promote federal consistency, EPA circulate all approved
§303(d)(1) lists and relevant TMDLs to federal agencies. EPA should also invite other federal
agencies to consult with EPA/States on pertinent TMDLs.
5. The Committee recommends that EPA encourage other federal agencies to give priority to
funding projects, where appropriate (e.g., through USDA's Conservation Programs or NOAA's
Coastal Nonpoint Pollution Control Programs), to identify and restore impaired waters listed
under §303(d)(1).
6. The Committee recommends that EPA explore opportunities to include or build upon Habitat
Conservation Plans and Forest Management Plans (and other federal planning processes
addressing water quality) in §303(d)(1) listing and TMDL development and implementation
planning activities. Such processes should be integrated as fully as possible with TMDL efforts to
focus management planning and implementation activities on restoring water quality, even
though these planning processes will not automatically substitute for and/or be approvable as a
TMDL. (See also Sections 5.6 (recommendation 2.a.) and 8.1 (recommendation 7) for other
recommendations related to this topic.)
10.2.2 Jurisdictional Coordination for Shared Pollution Problems
Problem TMDLs often require the cooperation of two or more overseeing agencies (e.g., to
Statement address waterbodies that straddle two or morejurisdictions or that are affected by
sources in otherjurisdictions). What is the best way to address water quality
problems that involve two or morejurisdictions? At what point should EPA become
involved (or exert leadership) in these efforts?
Discussion Not all water quality problems in waterbodies that flow through multiple
jurisdictions are shared pollution problems. However, for those that are, the
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Chapter 10: Coordination, Technical Support, and Capacity-Building
Committee believes interjurisdictional cooperation and coordination is the best way
to assure that proposed TMDLs are sound, equitable, and assured of
implementation.
E Recommendations:
1. The Committee recommends that state environmental management agencies continue to
coordinate TMDL development and evaluation activities for shared pollution problems.
— EPA should play a prominent role, including development of necessary TMDLs, in
multijurisdictional TMDL discussions/activities when (1) it is invited to by one or more of
the State environmental management agencies or (2) it determines that the State agencies
are not making adequate progress.
— EPA should clarify in guidance how it will determine which multijurisdictional TMDL
processes require its focused attention.
2. The Committee recommends that EPA synchronize TMDL scheduling, development, and/or
implementation activities for waters shared by multiplejurisdictions where this will not result in
unreasonable delays and will promote coordinated, effective solutions.
3. The Committee recommends that EPA disapprove TMDLs that will cause or contribute to
violations of downstream water quality standards. EPA should encourage States to work with
downstreamjurisdictions to make sure water quality standards of the downstreamjurisdiction
will be met by the TMDL.
10.2.3 Coordination Challenges and Opportunities within EPA
Problem TMDL program staff and even water quality program staff lack authority to address
Statement many causes of impairment. It is critical to the success of the TMDL program that
all the relevant environmental authorities be brought to bear to assure attainment.
How can/should the TMDL program integrate its efforts with those of other
EPA/State/Tribal environmental programs?
Discussion There appear to be numerous opportunities to better coordinate EPA TMDL program
activities with a variety of other environmental quality programs (both within and
outside Clean Water Act authorities).
There are at least five challenges to integrating the TMDL program with related
Clean Water programs (e.g., the NPDES permitting program and the §319 Nonpoint
Source program): (1) Clean Water Act programs are driven by somewhat different
missions and purposes (e.g., the §319 program focuses on waterbodies adversely
affected or potentially adversely affected by nonpoint sources and the NPDES
program focuses on point sources regardless of the quality of the receiving water);
(2) programs adhere to different schedules (e.g., to collect data in support of
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Chapter 10: Coordination, Technical Support, and Capacity-Building
Congressional reporting); (3) programs base decisions on data meeting various tests
of required rigor (e.g., §319 lists rely on anecdotal as well as assessed information);
(4) programs do not necessarily share definitions for key terms (e.g., "impaired,"
"threatened," or "monitored" waters); and (5) historically, States have adopted a
wide range of approaches to implementing these Clean Water Act programs.
EPA's Office of Water, through its emphasis on the watershed approach and other
management innovations, has been working to address many of these concerns.
However, more needs to be done. As well, it will be important for EPA to look at
ways and encourage authorized States and Tribes to use the Resource Conservation
and Recovery Act, Clean Air Act, CERCLA, and FIFRA authorities (and other statutes
it implements) to implement TMDLs and address causes of impairments.
E Recommendations
1. The Committee recommends that EPA recommend (and/or use §106 grant authority to require
that) States coordinate data collection activities for (at least) the Sections 303(d), 305(b), and 319
programs to eliminate redundancies.
— EPA should help States integrate and consolidate water quality data collection activities
to eliminate redundancies and assure that collected data are useful for the TMDL
program.
2. The Committee recommends that EPA provide guidance to NPDES permit writers on how to use
information in §303(d)(1) lists and TMDLs during review of individual permits and add location
of a source on a §303(d)(1)-listed water as a factor to consider in determining when EPA reviews
State-issued NPDES permits.
3. The Committee recommends that EPA increase its efforts to review and apply, as appropriate.
Clean Air Act authorities to address water quality impairments caused by air deposition of
pollutants. (See also Section 6.2 for related Committee discussion).
4. The Committee recommends that EPA Offices of Water and Air acceleratejoint efforts to
understand sources, transport and fate of airborne pollution to waters. In particular, EPA should
identify the relative proportions of natural and anthropogenic sources of airborne nitrogen loads
in different parts of the nation.
5. The Committee recommends that EPA use its §319 Nonpoint Source Management program
oversight authority to assure that States give funding priority to nonpoint sources causing or
contributing to impairments of §303(d)(1)-listed waters to meet TMDL implementation plan
provisions.
6. The Committee recommends that EPA remove restrictions on the use of §319 funds so that
States will have the flexibility to decide what percentage of these funds can be used to develop
TMDLs for waters which are significantly impaired by nonpoint sources.
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The Committee recommends that EPA ensure that waters not attaining standards are given high
priority in relevant programs under the Clean Air Act, RCRA, CERCLA, FIFRA, and other statutes
it implements. EPA should ensure that actions taken under these statutes are tied into and
conform with the needs and requirements of TMDLs and standards.
The Committee recommends that TMDL program staff in the regional EPA offices cooperate with
each other to promote consistent and equitable TMDL policies nationwide.
10.3 TECHNICAL GUIDANCE AND ASSISTANCE NEEDS
Problem
Statement
Discussion
The TMDL program is broad and complex. TMDLs address many different types of
impairments, types of waters, and types of sources. TMDLs must coordinate and
integrate a wide variety of federal, State, and local authorities and programs. At the
same time, State experience with the TMDL program varies widely. State programs
may not currently possess the full range of knowledge necessary to apply the TMDL
program to restore and protect impaired waters. What technical assistance and
guidance should EPA provide to ensure State TMDL programs are strong and
effective?
One of EPA's most important responsibilities in administering the TMDL program is
to provide technical guidance, technical assistance, and training to States to assist
them in developing their program capacity and carrying out their TMDL program
responsibilities. High quality technical guidance and assistance is critically
important for a strong and effective TMDL program, as it will help ensure a
reasonable degree of consistency across States in TMDL program activities, promote
efficiency in TMDL listing and development decisions, help assure the defensibility
of State actions, better ensure implementation, and generally foster the application
of sound science throughout the TMDL process.
EPA guidance and policy statements are used as the basis of approval decisions, and
are an important resource for States in making decisions about TMDL listing and
development. The Committee's recommendations are directed at future EPA
guidance as well as regulatory revisions.
In addition to formal guidance, EPA provides technical assistance (such as training
programs, information clearinghouses, and expert assistance) to States, and
develops/provides science and tools to assist in TMDL program activities.
The Committee focused on identifying the highest guidance and technical assistance
priorities, given that EPA has a limited capacity for such activities. Our
recommendations focus on: (1) the aspects of the TMDL program for which
technical assistance is particularly needed; and (2) the methods of delivering
technical assistance that are most appropriate. It should be noted that the
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Chapter 10: Coordination, Technical Support, and Capacity-Building
Committee has included recommendations on guidance and technical assistance
throughout this report. The list below focuses on high priority needs to improve the
scientific support and technical defensibility of TMDL actions. (See also Chapter 9
for additional discussion and recommendations concerning technical assistance for
Tribes).
E Recommendations
1. The Committee recommends that EPA continue to increase its efforts to provide comprehensive
guidance (and regulations,) in a clear and usable format for States, EPA staff, and stakeholders to
use in all TMDL program efforts. Greater clarity is needed in almost all aspects of the TMDL
program.
2. The Committee recommends that EPA's highest priorities for science and tool development
include improving monitoring and modeling capabilities, and providing related technical
assistance/training; EPA's second highest priorities include assisting States in development of
additional numeric criteria and to increase understanding of the effectiveness of best management
practices; and EPA's third highest priorities include developing tools to assist in stakeholder
communication, developing a better understanding of the costs associated with TMDL
development and implementation, and establishing methodologies to assist in evaluating TMDL
effectiveness.
3. The Committee recommends that EPA and States/Tribes support and increase current monitoring
and data gathering efforts to the fullest extent possible, because data availability is critically
important for a strong TMDL program. EPA should make monitoring for the TMDL program a
higher priority than it is currently relative to the monitoring needs of other programs, and should
encourage States/Tribes and other federal agencies to do so as well. EPA should also revise §106
guidance to reflect State monitoring program changes needed to support the TMDL program.
4. The Committee recommends that EPA continue to support ongoing efforts (such as the
Intergovernmental Task Force on Monitoring) to promote data coordination among agencies and
institutions, and to standardize monitoring data. (This is critically important because EPA and the
TMDL program rely primarily on States/Tribes, local governments, and other federal agencies to
gather data). (See related recommendations in Section 10.2, above.)
5. The Committee recommends that EPA develop guidance on TMDL development and data needs
for critical conditions associated with high flow/wet weather. There is a need for greater clarity
on how to develop TMDLs (for example, what assumptions to make on source identification and
allocation) under high flow conditions, when nonpoint source loads are more likely to dominate.
6. The Committee recommends that EPA make targeted technical assistance a high priority and, in
the spirit of partnership, work with States to provide such technical assistance where and when it
is most useful. Different approaches to training/technical assistance are appropriate for different
aspects of the TMDL program. For example:
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Chapter 10: Coordination, Technical Support, and Capacity-Building
— Templates, flowcharts, and (computerized) checklists are needed in such aspects as:
making listing decisions; ensuring that all available (existing) data are used in TMDL
development; ensuring that gathered data conform fully with water quality standards, are
reliable, and are in the proper format; ensuring environmental justice issues are
considered among beneficial use support considerations; making and documenting
assumptions (including those used to develop adequate surrogate measures); selecting
and documenting the establishment of TMDL endpoints; and training staff in the tools
and procedures that are necessary for TMDL development. Such tools will help foster
greater consistency among States, facilitate EPA review, streamline many TMDL
processes, and assist in documenting decisions.
— Increased Regional EPA staff assistance to States is needed in almost all aspects of the
TMDL program.
— A specialized team (of EPA staff/consultants) to provide expert assistance would be
particularly valuable for helping States/Tribes with model applications.
— Workshops and training programs are needed (on an ongoing basis) in several areas,
including: applying/interpreting water quality standards in the TMDL program; identifying
sources; making and documenting assumptions; choosing models; establishing wasteload
and load allocations (including the Margin of Safety); developing implementation plans;
and establishing iterative TMDL processes (provisions for follow-up and evaluation).
7. The Committee recommends that EPA explore new training techniques, such as checklists and
satellite training, to achieve technical assistance objectives cost-effectively and to provide
consistent communication to and among EPA Regions, States, and Tribes.
10.4 EPA, STATE AND TRIBAL CAPACITY
Problem Federal and State TMDL programs face tremendous workload challenges now and in
Statement the future. Monitoring waters, identifying impairments, developing (and defending)
needed TMDLs, and assuring both implementation and revisions as necessary to
assure attainment will take many years, even with adequate staffing and support.
EPA and States are poorly equipped to face these challenges. Staffing and support is
inadequate given the urgent need to solve water quality impairments and the public
interest in doing this expeditiously, fairly and cost effectively. EPA and many States
are working hard to strengthen their programs and increase their efforts. What more
should EPA do to address capacity problems in the TMDL program?
Discussion EPA's TMDL program is understaffed at all levels, as are State implementation
programs. Although there have been increases recently, at least in the regional
offices, there are currently only three full-time headquarters staffers working on the
program and far too few EPA regional experts available to work with States to assure
that lists and TMDLs are approvable. Of necessity, much of the work being done by
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Chapter 10: Coordination, Technical Support, and Capacity-Building
this small staff is reactive (e.g., reviewing State actions, responding to lawsuits, and
addressing issues and questions raised by others). Progress has been made in
producing strategies and guidance to support the program. However, to meet the
guidance and support needs summarized above and to respond to the
recommendations in this report for revising and strengthening the program,
additional staff will be needed to more fully flesh out the national infrastructure,
support State efforts, coordinate with other programs and federal agencies, and
manage this large and critical program to restore water quality.
An early investment in improving the program's technical, regulatory and guidance
infrastructure will help avoid inefficiencies and inconsistencies in the program that
would otherwise be problematic in future years. The program is in early stages of
implementation and many more TMDLs remain to be done. An adequate
investment in developing model TMDLs for particularly difficult problems and
providing technical support to States and stakeholders will save the agency the
resources otherwise required to carry out the program where States fail to submit
approvable lists and TMDLs. In addition, resources potentially needed to defend
and correct deficiencies in TMDLs can be minimized through proper advance work
to strengthen guidance and technical support.
EPA also needs to focus more resources on related programs to support the
restoration of impaired waters. For example, water quality criteria are needed to
more fully address use impairments resulting from such causes as excessive nutrient
loadings, sediment and habitat loss. As another important example, monitoring
programs need to be expanded so that impairments can be identified, progress can
be tracked, and attainment can be documented when it is achieved.
EPA should also help identify lower priority activities on which federal and State
water quality programs could reduce emphasis while focusing more effectively on
providing for attainment of water quality standards in waters listed under §303(d)(1).
Other federal agencies need to devote more resources to TMDL-related activities as
well. For example, the U.S. Forest Service and the Bureau of Land Management
need to build TMDL-related monitoring, analysis and implementation, including
restoration, into their budgets routinely where they manage land through which
impaired waters flow or are major stakeholders on impaired waters. These agencies
are legally required to comply with the Clean Water Act, State water quality
standards, and TMDLs. USGS and other agencies with environmental monitoring
responsibilities should increase monitoring efforts in support of the TMDL program.
EPA cannot and should not be expected to bear the entire cost of these activities.
(See also Sections 10.1 and 10.2 for discussion of related issues.)
Some States have recognized the value of (as well as the need for) strengthening
their TMDL program capacity by dedicating more staff and support to the effort.
Others have not, even though they may have recently identified large numbers of
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Chapter 10: Coordination, Technical Support, and Capacity-Building
impaired waters needing TMDLs and have little experience preparing TMDLs. The
quality and number of TMDLs these States can produce will be severely constrained
by the limited capacity of current staff and support. EPA can do more to help these
States improve their ability to carry out the TMDL program effectively by promoting
national dialogue on the need to meet water quality standards and providing
analytical methods and tools to help estimate TMDL program capacity needs.
In the meantime, EPA is being or may be required by law to step in and make
decisions on identification and TMDL development for impaired waters in these
States, diverting valuable EPA resources from making the program infrastructure
more robust and providing expert technical assistance in particularly complex or
difficult impairment situations. Historically, such EPA action (and/or the threat of
EPA taking direct action) has caused States to appropriate additional funds or
reprogram existing resources to strengthen a deficient program. Nevertheless, even a
temporary diversion of EPA resources could have an important long term negative
impact on the national effort at this crucial stage of the program.
E Recommendations
1. The Committee recommends that EPA lead a national dialogue involving high level policymakers
in State and federal government, as well as local governments and other stakeholder groups, to
promote political and fiscal commitment to attaining water quality standards and restoring
impaired waters.
2. The Committee recommends that EPA seek authorization for or reprogram increased staff and
dollars into the TMDL program at headquarters and in the regions to carry out the
recommendations in this report so that impaired waters are restored in the shortest possible time.
EPA should also review existing programs for opportunities, and consider new mechanisms to
support State TMDL programs (e.g., by making funds available or increasing the funds available
for TMDL development through the State Revolving Fund, §319 grants, and other programs or
funding authorities with shared water quality goals.
3. The Committee recommends that EPA and States be encouraged to review existing water quality
program guidance and requirements (e.g., through the Performance Partnership Agreement
process) to identify lower priority activities that could be assigned reduced emphasis in order to
increase emphasis on TMDL efforts. States should propose how program priorities should
change and then work with EPA to reach an agreement on how to implement agreed-to changes
via EPA Regional Office/State agreements, workplans, and other appropriate agreements.
4. The Committee recommends that, in the short term, EPA seek authorization for or reprogram
increased staff and dollars to increase assistance to States for TMDL development, to perform
TMDL review and approval activities in a timely manner, and to carry out its responsibility to
take TMDL program actions where State actions are inadequate. (As States increase their
capacity, these resources could be reprogrammed into other priority activities.)
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Chapter 10: Coordination, Technical Support, and Capacity-Building
5. The Committee recommends that EPA seek authorization for or reprogram resources into
monitoring, standards and other implementation activities (such as NPDES and §319 programs)
as necessary to ensure that: impaired waters are more accurately identified; TMDL development
is more solidly based on quantified data and scientifically sound analysis and standards; and
implementation of the program, including full protection of beneficial uses, is assured.
6. The Committee recommends that EPA, in cooperation with State water quality officials, work
with other federal agencies to assure that they have provided for TMDL-related activities in their
budgets and work plans and to encourage those agencies to provide assistance to States for
TMDL-related efforts. (See also Sections 10.1 and 10.2 for other recommendations on federal
coordination.)
7. The Committee recommends that EPA foster and encourage States to seek additional funds and
staff to carry out their TMDL programs. For example, EPA should develop (and/or assist States in
developing) sound analytical methods and tools to identify TMDL program needs under various
scenarios, including various TMDL completion schedules. In addition, EPA should consider
conducting a national TMDL capacity needs survey, focusing first on capacity for TMDL
monitoring, listing and development and expanding later, if appropriate, to include
implementation needs. EPA should also consider offering incentives to States to improve their
TMDL program capacity (e.g., by allowing certain reports or other work to be postponed when
States are increasing resources to restore impaired waters through the TMDL program).
8. The Committee recommends that EPA increase its efforts to strengthen Tribal capacity to carry
out and participate effectively in the TMDL program in accordance with Chapter 9 of this report.
EPA should also provide financial assistance to Tribes to support TMDL program development.
9. The Committee recommends that EPA and States encourage stakeholders to participate fully in
the TMDL program and to fund watershed planning and protection activities wherever possible.
(See also Chapter 7 for additional recommendations on stakeholder participation.)
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Appendix A: NACEPT Committee Charge
National Advisory Council for Environmental Policy and Technology (NACEPT) TMDL Committee Charge
BACKGROUND
Section 303(d) of the Clean Water Act (CWA) establishes the TMDL, or total maximum daily load,
process as a tool to implement State water quality standards. States are required to identify and list water
bodies where water quality standards are not met following the application of technology based controls,
and to establish TMDLs for these quality limited waters. The U.S. Environmental Protection Agency (EPA)
is required to approve or disapprove State lists and TMDLs, and to develop lists and TMDLs where States
fail to do so.
EPA is seeking advice and innovative suggestions for new policy and regulatory directions from
stakeholders who bring broad perspectives and diverse backgrounds to the deliberations. Recent
litigation illustrates the need for EPA and interested stakeholders to review the current TMDL program and
recommend changes. EPA believes that a broad scale view of the program will provide consensus
recommendations consistent with current CWA requirements. The results of these deliberations will be
advice and consensus policy recommendations to the Administrator, the Assistant Administrator for
Water, and the NACEPT. The advice and policy recommendations will address:
• the role of TMDLs within watershed protection and planning activities;
• the development of lists under Section 303(d);
• the relationship of 303(d) lists to other CWA listing requirements;
• the rate and pace of TMDL development;
• the science and tools needed to implement the law and the recommendations; and
• the respective roles and responsibilities of the States, Tribes, and EPA.
To build this consensus, constructive and substantive discussion is needed among the stakeholders, as is
the development of a wide range of information to focus and address the substantive concerns. The
committee will help develop this consensus by:
• having a membership of motivated individuals with a broad knowledge base concerning the
complexities of the issues;
• holding open meetings in which the members address and work toward consensus around the
policy issues;
• holding four public meetings in four geographically diverse parts of the country to hear specific
public suggestions and concerns on the policy issues; and,
• responding to particular policy issues raised by EPA and other stakeholders.
CHARGE
Strengthening of the TMDL program and its role in watershed management is a critical component of
success for the new directions of the national water program. It is in this spirit that the FACA
subcommittee is charged to:
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Appendix A: NACEPT Committee Charge
1. Recommend ways to improve the effectiveness, efficiency and pace of State, Tribal and EPA
TMDL programs under 303(d) of the Clean Water Act;
2. Identify barriers (i.e., in regulations, guidance, technical support, etc.) to success and recommend
ways to overcome them;
3. Recommend the appropriate roles of States, Federal agencies, Tribes, and members of the Public
to achieve success;
4. Recommend criteria by which to measure the success of each recommendation implemented.
The TMDL committee will include 20 individuals whose depth and breadth of experience enable them to
knowledgeably consider multiple areas (e.g., industry, agriculture, environmental public interests, mining,
forestry, as well as State, Tribal, and municipal interests) impacted by the committee's decisions.
Additionally, these stakeholders were selected based on their experience with and interest in developing
consensus recommendations, and their knowledge, expertise, and ability to devise innovative approaches
to water quality issues.
The initial meeting will be held in Washington DC. Future meetings may be planned for various
geographic areas where the problems are dominant and where local public input can be obtained. EPA
anticipates the committee will complete its work within 18 months of its initial meeting.
EPA expects the committee to provide advice on TMDL issues and to prepare a consensus report which
identifies stakeholder recommendations in the four areas cited above. It is not the purpose of this
committee to recommend changes in the law or appropriations. The committee's recommendations will
be presented to the Administrator, the NACEPT and to the Assistant Administrator for Water to use in the
formulation of future national TMDL policy, and to measure the success of that policy.
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Appendix B: List of Committee Members
FEDERAL ADVISORY COMMITTEE ON TMDLS
Mr. Bob Adler
University of Utah
Mr. Fredric Andes
Sonnenschein Nath & Rosenthal
Mr. John Barrett
Cotton and Grain Producer
Ms. Nina Bell
Northwest Environmental Advocates
Mr. J. Brad Burke
Southern Company Services, Inc.
Ms. Cheryl Creson
Sacramento County (CA) Engineering
Mr. Philip Cummings
The Accord Group
Mr. Dale Givens
Louisiana Department of Environmental Quality
Dr. L.D. McMullen
Des Moines Waterworks
Mr. William Nielsen
Eau Claire City Council
Ex Officio Members
Mr. Art Bryant
Watershed and Air Management Division,
USDA Forest Service
Mr. John Burt
U.S. Department of Agriculture
Mr. Geoffrey Grubbs
U.S. EPA Office of Wetlands, Oceans, and
Watersheds
Ms. Jane Nishida
Maryland Department of the Environment
Mr. Robert Olszewski
The Timber Company
Mr. Richard Parrish
Southern Environmental Law Center
Ms. Danita Rodibaugh
Pork Producer and Grain Farmer
Mr. John Roanhorse
InterTribal Council of Arizona
Ms. Melissa Samet
Earthjustice Legal Defense Fund
Ms. Linda Shead
Galveston Bay Foundation
Ms. Susan L. Sylvester
Wisconsin Department of Natural Resources
Ms. Lydia Taylor
Oregon Department of Environmental Quality
Mr. Ed Wagner
CH2M Hill
Designated Federal Officials
Ms. Hazel Groman
Mrs. Corinne Wellish
Lead Contractor Support
Ms. Martha Prothro
Ross & Associates Environmental Consulting, Ltd.
Mr. Kevin Kratt
Tetra Tech, Inc.
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Appendix C: Committee Ground Rules
TMDL ADVISORY COMMITTEE PROCEDURAL PROTOCOLS
GOAL
The goal of the Federal TMDL Advisory Committee is to advise the United States Environmental
Protection Agency (EPA) on ways to improve the implementation of the Total Maximum Daily
Load (TMDL) program under Section 303(d) of the Clean Water Act. The Committee will share
and discuss information on the status of the TMDL program and analyze the key issues related to
its full implementation. The Committee will prepare a report to EPA containing its advice and
recommendations regarding the TMDL program.
PARTICIPANTS
a. Additional Members: No new individuals will be added to the Committee unless a
Committee member has resigned. In this event, the Assistant Administrator for Water
shall appoint a replacement.
b. Attendance at Meetings: A Committee member may be accompanied by such other
individuals as the Committee member believes to be appropriate; however, only the
Committee member will have the privilege of sitting at the table, speaking during the
meetings, and participating in consensus determinations. Committee members are
expected to attend all full meetings and participate fully in the Committee's deliberations.
c. Workgroups: Generally, the Committee will operate as a whole. However, some tasks
(such as research or drafting) may be better performed by smaller groups. The Committee
has discretion to form workgroups to carry out specific assignments from the Committee.
Committee members may serve on workgroups; in addition, the Committee may invite
outside individuals to attend workgroup meetings or conference calls if it feels particular
expertise or perspectives not held by Committee members are needed. Each Committee
member will be notified of all workgroup meetings, and is welcome to attend any
workgroup meeting or conference call. All workgroup meetings will be held between the
Committee sessions, and may be held in person or by teleconference. Workgroups are
not authorized to make decisions for the Committee as a whole.
DECISION MAKING
a. Consensus:
1. Procedural Matters: The Committee will operate by consensus on procedural
matters. Consensus for this purpose may be defined differently by the Committee
depending on the significance of the matter being decided. Generally,
"consensus" means that all members of the Committee agree they can at least
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Appendix C: Committee Ground Rules
abide by the proposed approach, even if a member might prefer another
approach.
2. Substantive Matters: In developing advice and recommendations for EPA, the
Committee will operate by consensus to the extent possible. "Consensus" means
that all members of the Committee agree they can accept the proposed position,
even if a member might prefer a different position. If consensus is achieved, it
will take the form of a written statement that will be appropriately authorized by
signature of each member. The Committee will always work toward consensus,
avoiding a formal vote; however, should a vote be necessary, the vote tally will
be recorded. If consensus cannot be achieved on a substantive matter, majority
and significant minority views on that matter will be presented in the
Committee's report.
b. Absent Members: The members recognize that emergencies may arise necessitating the
absence of a member. In such cases, the members will attempt to be sensitive to the
views of the absent member by soliciting input in advance, delaying decisions, or
contacting the member during the meeting as appropriate. The absent member may
communicate to the facilitator any issue or view that member wishes to convey to the
other members. The facilitator will present the absent member's position or view but will
not argue for it or vote on behalf of that member.
IV. PROCEDURES
a. Open Meetings: Committee meetings will be open to the public and, if time allows, the
Committee may invite members of the public to comment during designated public
comment periods. In addition, public workshops may be held in conjunction with
scheduled Committee meetings in order to solicit additional public input to Committee
deliberations. Workgroup meetings may not be open to the public; however, written
workgroup products will be made available to the public and workgroups will report to
the full Committee at open meetings. Background materials distributed to all Committee
members as well as approved meeting summaries will be available to the public.
b. Meeting Summaries: Draft summaries of Committee meetings will be prepared by the
facilitators and approved by the Committee at the following meeting.
c. Agendas: Meeting agendas will be drafted by the facilitator in consultation with EPA and
based on the Committee's instructions at the last meeting. The agenda will be reviewed
at the beginning of each meeting and may be refined by the Committee.
d. Background Materials: The facilitator (and, on occasion, EPA or other sources) may
provide background materials to Committee members in advance of Committee
meetings. All requests for, and distribution of, background materials (from EPA or other
sources) to all Committee members will occur through the facilitator to ensure equal
sharing of information. Members may draft position papers or provide other material to
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Appendix C: Committee Ground Rules
be circulated through the facilitator. The facilitator must distribute any written
information any member of the Committee wishes the Committee as a whole to receive.
e. Thoroughness of Deliberations: During the course of Committee deliberations, every
relevant issue raised will be recorded and addressed. To expedite the process, agreed-
upon lower priority issues may be recorded and set aside to be dealt with at a later date.
If issues raised are not those EPA has identified for Committee deliberation, they will be
recorded as such.
V. ROLES AND RESPONSIBILITIES
a. Facilitator: A neutral facilitator will chair the meetings and work with all of the members
to ensure that the process runs smoothly. The facilitator serves at the pleasure of the
Committee. The role of the facilitator includes developing meeting agendas, focusing
discussions, assuring fair opportunity for members to participate in Committee
proceedings, working to resolve any impasses that may arise, distributing background
materials, preparing meeting summaries, assisting in the location and/or preparation of
background materials, distributing documents the Committee or a workgroup develops,
assisting workgroups as directed by the Committee, supporting EPA and the Committee
in conducting public outreach and assuring appropriate public participation, moderating
public workshops, providing assistance to Committee members regarding Committee
business between meetings, and other functions as the Committee requests. The
facilitator will also assist the Committee in preparing its final report (editing and
distributing drafts, compiling comments, etc.), although the Committee is solely
responsible for developing the content.
b. Committee Members: Committee members are expected to attend all full Committee
meetings. In addition, members may be asked to participate in several public meetings
that may be held immediately following certain Committee meetings to obtain additional
public input on TMDL activities. All members agree to act in good faith in all aspects of
the Committee's deliberations. Committee members are expected to present their own
personal opinions based on their experience, perspective, and training, and to work
constructively and collaboratively with other members toward reaching consensus.
Personal attacks and prejudiced statements will not be tolerated at any time during the
process.
c. EPA Staff: EPA staff will be responsible for briefing the Committee about technical or
programmatic issues (and/or preparing background materials), as requested by the
Committee through the facilitator. EPA staff will also attend the meetings and be
available to answer programmatic or technical questions posed by the Committee. EPA
staff are also responsible for identifying issues on which Committee advice is sought, as
well as any issues on which Committee advice is not sought (should such issues arise).
d. Ex Officio Panel of Federal Representatives: Three federal agency representatives,
including one from EPA and two others to be selected by EPA, will participate in
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Appendix C: Committee Ground Rules
Committee discussions as ex officio Committee members. The federal representatives
will provide policy and program information and advice to the Committee and support
the Committee's overall efforts; they will not participate in consensus determinations or
sign the Committee's final report to EPA.
VI. SAFEGUARDS
a. Right to Withdraw: Any member may withdraw from the Committee at any time without
prejudice.
b. Other's Positions: By participating, members agree that they are entering into a covenant
of mutual respect and professional courtesy. When speaking in outside public forums,
each member may express his or her point of view about the issues before the
Committee; however, members agree not to report, by name, any other member's
position or point of view. The members also agree that they will not publicly predict the
outcome of the Committee's deliberations.
c. Information:
1. All members agree to openly exchange relevant information that is readily
available to them. If a member believes he or she cannot or should not release
relevant information, the member will provide the substance of the information
in some form (such as by aggregating data, by deleting non-relevant confidential
information, by providing summaries, or by furnishing it to the facilitator to use
or abstract) or a general description of it and the reason for not providing it
directly.
2. Members will provide information as much in advance of the meeting at which it
is to be discussed as is reasonably possible.
3. Information and data provided to the Committee are a matter of public record.
4. The Committee does not have authority to protect confidential business
information (CBI). When information required for Committee deliberations can
only be derived from CBI (i.e., innovative technology, cost, or pricing
information), the information may only be received by the Committee in
aggregate form so as to protect specific CBI from release.
5. No member is expected to share advance information on its plans or strategy for
filing or defending against litigation over TMDL issues. No member is expected
to share any information that is subject to attorney/client privilege.
d. Press: Representatives from the press may attend Committee meetings. The press may
also ask members to comment or answer questions about the Committee's business.
Committee members agree that each member may offer his or her individual perspective;
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Appendix C: Committee Ground Rules
each member agrees not to attribute positions or views to other members by name, nor
predict the outcome of the Committee's deliberations. To ensure consistency and
accuracy in reporting on general Committee operations, members are encouraged to
direct press inquiries concerning overall Committee plans and procedures to EPA's
Designated Federal Official for the Committee.
VII. PRODUCTS
a. Meeting Summaries: The facilitator will prepare and distribute draft meeting summaries
following each meeting. These meeting summaries will be reviewed by Committee
members at the following meeting; upon unanimous approval, they will become work
products of the Committee.
b. Final Report: The Committee will prepare, with the assistance of the facilitator, a draft
and final consensus report, which: reviews issues discussed; provides advice
(recommendations) to EPA on issues for which there was agreement (and supplies a
rationale for this advice); discusses areas of disagreement; describes significant minority
views; and identifies any remaining unresolved issues. The format, authorship, and
precise content of this report will be determined by the Committee itself, although EPA
may request a specific format. All Committee members will have the opportunity to
review and comment upon the draft report. All Committee members will be asked to
sign the final report.
VIM. MEETING PLANS
a. Number of Meetings: There will be a minimum of five two or three day full Committee
meetings which are expected to occur in the 18 month period beginning with the first
meeting. Beginning with the second full Committee meeting, public meetings to solicit
additional input on TMDL issues may be scheduled to take place immediately following
the Committee's meeting. In consultation with EPA, the Committee will determine the
scheduling of the meetings and the need for any additional meetings. The Committee
will also determine the timing and number of workgroup meetings, if any. Workgroup
meetings cannot occur during full Committee meetings.
b. Location of Meetings: A minimum of one full Committee meeting will occur in
Washington, DC. The remaining full Committee meetings are expected to be at different
locations around the country, as determined by the Committee in consultation with EPA.
IX. DEFINING "CONSENSUS" AND ADDRESSING DIVERSE VIEWS
(Addendum to the Procedural Protocols ("Ground Rules") of the Federal Advisory Committee on
the TMDL Program. Agreed upon by Committee members in Salt Lake City on 1/21/98.)
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Appendix C: Committee Ground Rules
Defining Consensus:
In accordance with the preference expressed in the current Ground Rules, the Committee
should continue to operate by general consensus rather than by vote as much as possible.
However, the facilitator or any member may call for a vote on a specific recommendation
on which discussion has been substantially exhausted and consensus is in doubt.
When a vote is called for, members will be asked to indicate whether they agree,
disagree, or (while not necessarily agreeing) "can live" with the recommendation.
A recommendation will be adopted as a Committee recommendation when 18 or more
members agree or can live with the recommendation.
A vote may also be called for on related recommendations where this might allow for
greater agreement than a vote on only one separate recommendation.
Diverging Views:
The Committee should continue to work towards consensus and minimize differences as
much as possible.
However, where agreement cannot be achieved, the Committee will treat diverse views
in a consistent manner. For example:
a. The Committee is divided on a very important issue after discussing it in depth.
The report will summarize in a balanced and objective manner the most
significant views of members on any issue for which a recommendation garners
10 or more votes but does not pass by supermajority. The discussion will be
included in an appropriate section/chapter of the report. (Note: a very limited
number of major issues may also be addressed in some manner in an appendix.)
b. Memberfs) wish to file a minority report. Generally, minority reports are
discouraged since they can detract from the consensus recommendations.
However, minority reports are allowed and will be included as appendices to the
report in two circumstances:
1. where the member(s) voted against a recommendation that carried by a
supermajority of 18, and
2. where the member(s) voted for a recommendation that did not pass and
also did not garner the 10 votes needed for an issue to be included for
discussion under (a) above.
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Appendix C: Committee Ground Rules
Minority reports should be as brief as possible but no longer than 3 pages per
issue; all members wishing to dissent on the issue shouldjoin in the minority
report.
c. The Committee is divided on an issue but has not discussed it in depth and/or
one or more members have raised a substantive issue but it has not been
addressed by the full Committee. A list of any such issues will be included in the
report. In addition, any member(s) may submit to the facilitators a proposal of up
to two pages on any issue not addressed in the facilitated process. The
facilitators will circulate any such proposal to all other members for concurrence.
If 14 members concur with the proposal, it will be circulated with the next draft
report for further consideration. If 18 members concur with the proposal, it will
be included in the next draft report as a proposal/placeholder for approval at the
final meeting. Any such proposals that ultimately do not garner the necessary 18
concurrences will be listed in the report.
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Appendix D: Contractor Information
TETRA TECH, INC.
Tetra Tech provides comprehensive engineering and consulting services focusing on innovative solutions
to complex environmental problems. These services include client sponsored research and development,
environmental assessment and permitting, engineering, construction management, remedial design and
remediation. Tetra Tech believes its strong research and development capabilities and extensive
technical expertise allow it to provide innovative and cost-effective solutions to its clients' environmental
problems. While maintaining a focus on water quality issues since our founding in 1966, we have been
at the forefront of developing effective solutions to address current environmental challenges. As new
environmental issues have appeared over the past three decades, Tetra Tech has responded by developing
the capabilities to address those concerns with scientifically sound, cost-effective solutions.
Tetra Tech's experienced professionals serve our customers from over 70 offices. In the public sector, we
serve the Environmental Protection Agency; the Department of Defense; the Department of Energy; and
other federal, state and local government agencies concerned with environmental protection. In the
private sector, our clients include major aerospace, pharmaceutical, mining, manufacturing, and high
technology companies.
ROSS & ASSOCIATES ENVIRONMENTAL CONSULTING, LTD.
Ross & Associates Environmental Consulting, Ltd. Is an environmental and natural resources consulting
firm located in Seattle, Washington. The firm was founded in 1987 by Bill Ross, the former
Commissioner of the Alaska Department of Environmental Conservation.
Ross & Associates provides facilitation and mediation services, policy development, strategic analysis,
and management consulting, primarily for public agency clients. It specializes in assisting clients to
comprehend the full depth of the issues in question, and to develop and implement policies and
strategies to address or resolve them. The range of services the firm provides includes management
information system development; economic and technical analysis; regulatory and statutory review;
public communications and involvement; and intergovernmental consultation, mediation, and
facilitation. The firm is particularly skilled in innovative environmental programs, and addressing
problems from a holistic ecosystem point of view. The strengths of the firm are focused upon assisting
clients to formulate strategies for policy development and institutional change to meet the challenges of
today's, and tomorrow's, critical environmental issues.
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Appendix E: Unaddressed Issues
Because of time limitations, the Committee could not address all issues related to the TMDL program.
Issues identified by individual members as important to them but not addressed by the Committee are
listed below.
1. Federal Coordination: The report implies that many federal agencies have a role in protecting
water quality (Chapter 10.1, recommendation 3), but the Committee did not have time to discuss
or make recommendations regarding EPA's potential role under §313 of the Clean Water Act in
ensuring that all federal agencies "engaged in any activity which may result in the discharge or
runoff of pollutants" not cause or contribute to violations of water quality standards.
2. Judicial Review: The TMDL (particularly the WLA component) is a binding legal determination
for whichjudicial review must be available, at a minimum, through State administrative
procedure statutes.
3. Details of and distinctions in the iterative process, including TMDLs designed to be phased,
revised TMDLs, revised implementation plans, and revised controls.
4. The relationship between current schedules for TMDL development and §303(d)(1) lists that are
growing.
5. Procedures for interim delisting.
6. The need for federal consistency and details of data quality (e.g., age, percent exceedances, etc.)
and sources of data that are used for listing.
7. A consistent and detailed priority ranking methodology.
8. How TMDLs should address multiple pollutants and/or stressors.
9. Methods of improving the antidegradation policy program, including how antidegradation plays a
role in TMDL development and §303(d)(1) lists.
10. Areas of uncertainty in the TMDL program that impact sources and environmental protection, and
the need to devise solutions that decrease uncertainty.
11. Timing of measuring the net progress on water quality improvements from stabilization plans and
the interplay between the "prohibition" and TMDL development and implementation.
12. The details of needed tracking methods for TMDL development, implementation, follow-up
monitoring, attainment of allocations, interim targets, and water quality standards.
13. Ways of addressing complex equity issues (e.g., allocation schemes between new cleaner sources
and older dirtier sources, regulated and unregulated nonpoint sources, upstream and
downstream).
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Appendix E: Unaddressed Issues
14. Importance of complex work planning to timely development of TMDLs and maintenance of
overall schedules.
15. Role of TMDLs in remedying issues of environmental injustice, including the subsistence level
consumption of contaminated fish by low income, immigrant and ethnic populations and other
forms of pollution affecting subpopulations.
16. The importance of EPA standardizing required components of the TMDL program in order to
enhance approvability, ease of approval, and efficiency, including list presentation, TMDL
development, application of narrative criteria, details of the watershed
characterization/stabilization plan, etc.
17. The need to strike a balance between national consistency and state flexibility, particularly in the
face of insufficient resources.
18. Clarity on details of and sufficiency of surrogate measures in TMDLs.
19. Sufficiency of detail in source identification (broad categories, individual sources).
20. Importance of collecting adequate flow data corresponding to water quality monitoring.
21. Consequences of state/stakeholder failures to implement TMDLs.
22. Methods of protecting aquatic wildlife from toxic pollutants through TMDLs, including protection
from sublethal effects.
23. Connection between the TMDL program and expeditious attainment of allocations for
stormwater.
24. Establishing the definition of "priority ranking" (i.e., high/medium/low versus ranked) and
methods to drive consistency in priority ranking by states.
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Appendix F: Statutory and Regulatory Language
FEDERAL WATER POLLUTION CONTROL ACT
Section 303 (d)
(2) (A) Each State shall identify those waters within its boundaries for which the effluent limitationsrequired by section
301 (b)(I)(A) and section 301(b)(l)(B) are nor stringent enough to implement any water quality standard applicable
to such waters. The State shall establish a priority ranking for such waters, taking into account the leverity of the
pollution and the uses to be made of such waters.
(B) Each State shall identify those waters or parts thereof within its boundaries for which controls on thermal
discharges under section 301 ere not stringent enough to assure protection and propagation of a balanced indigenous
population of shellfish, fish, ami wildlife.
(C)Each State shailestablLshfbrdtewatersidentifiedin paragraph (1)(A) ofthis subsection, andin accordance with
the priority rantdng, the totalmanmumdaifyload, for those pollutants which the Administrator identifies under section
304(a) (2) as suitable for such calculation. Such toad shall t>( established at a ievei necessary (p implement the
applicable -water quality standards with seasonal variations and a margin of safety which takes into accaun t any lack
of knowledge concerning the relationship between effluent limitations and water quality.
(D) Each State shall estimate for the waters identified inparagruph (1)(B) of this subsection the total maximum daily
thermal load required to assure protection and propagation of a balanced, indigenous population of shellfish, fish
and wildlife. Such estimates shall take into account the normal water temperatures, flow rates, seasonal variations,
tnsTifit; sources of heat input, and ihe dissipative capacity of the identified waters or pans thereof. Such ejrimaiej
shall include a calculation of the maximum heal inpui thai can be made into eech such part and shall include a
margin ofiafetywhich takes into account any lackofknoivledgr concerning ihf development of thermal water quality
criteria for such protection and propagation in the identified waters or pans thereof.
(2) Each State shall submit to ihe Administrator jrom time 10 lime, with the first such submission not later than one
hundred and eighty days after ihe date of publication of the first identification of pollutants under section
304(a)(2){D), for his approval the waters identified and the loads established under paragraphs (1)(A), (1)(B),
(I)(C), and (!)(£>) of this subsection. The Administrator shall either approve or disapprove such identification and
load not later lhan thirty days after ihe date of submission. If ihe Administrator approves such identification and load,
such State shall incorporate ihem into its current plan under subsection (e) of this section. If the Administrator
disapproves suck identification and load, he shall not later titan thirty days after the date of such disapproval identify
xtch waters in such State and establish such loads far such waters as he determines necessary to implement the water
qualitysiandardr (tpplicableto such waters and upon such identification and establishment the State shall incorporate
them into its current plan under subsection (e) of this section.
(3) for the specific purpose of developing information, each State shall identify all waters within its boundaries which
it has not identified under paragraph (1)(A) and (1)(S) of [fits subsection and estimate for such waters the total
maximum daity load wiih seasonal variations and margins of safety, for those pollutants which the Administrator
identifies under section 3Q4(a)(2) as suitable for such calculation and for thermal discharges, at a level thai would
assure protection and prapagcriar of a balanced indigenous population offish, shellfish and wildlife.
(4} LIMITATIONS ON REVISION OF CERTAIN EFFLUENT UMFTAT1ONS.--
(A) STANDARD NOT A TTAINED.~For waters identified undo-paragraph (J)(A) where the applicable water
quality standard has not yet been attained, any effluent limitation based on a total marimum daily load or other waste
loada&octstion established under this section may be revised onfyif(i) the cumulative effect of all such revised effluent
limitations based on such total maximum daily load or waite load allocation will assure the attainment of such water
auality standard, or (ii) the designated use which if not being attained is removed in accordance with regulations
established under this section.
(B) STANDARD ATTAINED. -For waters identified under paragraph (1)(A) where iht quality of such tauten equals
or exceeds levels necessary to protect the designated ust for such waters or otherwise required by applicable water
quality standard, any effluent limitation based on a total maximum daily load or other waste load allocation
established under this section, or any water quality standard established under this section, or any other permitting
standard m(ty be revised only if such revision is subject if an-i consistent »w« the anadegradation policy established
under this section.
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Appendix F: Statutory and Regulatory Language
Regulatory Language
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY
Sec. 122.2 Definitions
(excerpt)
New discharger means any building, structure, facility, or installation:
(a) From which there is or may be a "discharge of pollutants;"
(b) That did not commence the "discharge of pollutants" at a particular "site" prior to August 13, 1979;
(c) Which is not a "new source;" and
(d) Which has never received a finally effective NDPES permit for discharges at that "site."
This definition includes an "indirect discharger" which commences discharging into "waters of the United
States" after August 13, 1979. It also includes any existing mobile point source (other than an offshore or
coastal oil and gas exploratory drilling rig or a coastal oil and gas developmental drilling rig) such as a
seafood processing rig, seafood processing vessel, or aggregate plant, that begins discharging at a "site"
for which it does not have a permit; and any
offshore or coastal mobile oil and gas exploratory drilling rig or coastal mobile oil and gas developmental
drilling rig that commences the discharge of pollutants after August 13, 1979, at a "site" under EPA's
permittingjurisdiction for which it is not covered by an individual or general permit and which is located
in an area determined by the Regional Administrator in the issuance of a final permit to be an area or
biological concern. In determining whether an area is an area of biological concern, the Regional
Administrator shall consider the factors specified in 40 CFR 125.122 (a) (1) through (10). An offshore or
coastal mobile exploratory drilling rig or coastal mobile developmental drilling rig will be considered a
"new discharger" only for the duration of its discharge in an area of biological concern.
New source means any building, structure, facility, or installation from which there is or may be a
"discharge of pollutants," the construction of which commenced:
(a) After promulgation of standards of performance under section 306 of CWA which are applicable to
such source, or
(b) After proposal of standards of performance in accordance with section 306 of CWA which are
applicable to such source, but only if the standards are promulgated in accordance with section 306
within 120 days of their proposal.
[48 FR 14153, Apr. 1, 1983, as amended at 48 FR 39619, Sept. 1, 1983; 50 FR 6940, 6941, Feb. 19,
1985; 54 FR 254, Jan. 4, 1989; 54 FR 18781, May 2, 1989; 54 FR 23895, June 2, 1989; 58 FR 45039,
Aug. 25, 1993; 58 FR 67980, Dec. 22, 1993]
Sec. 122.4 Prohibitions (applicable to State NPDES programs, see Sec. 123.25).
No permit may be issued:
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Appendix F: Statutory and Regulatory Language
(a) When the conditions of the permit do not provide for compliance with the applicable requirements
of CWA, or regulations promulgated under CWA;
(b) When the applicant is required to obtain a State or other appropriate certification under section 401
of CWA and Sec. 124.53 and that certification has not been obtained or waived;
(c) By the State Director where the Regional Administrator has objected to issuance of the permit under
Sec. 123.44;
(d) When the imposition of conditions cannot ensure compliance with the applicable water quality
requirements of all affected States;
(e) When, in thejudgment of the Secretary, anchorage and navigation in or on any of the waters of the
United States would be substantially impaired by the discharge;
(f) For the discharge of any radiological, chemical, or biological warfare agent or high-level radioactive
waste;
(g) For any discharge inconsistent with a plan or plan amendment approved under section 208(b) of
CWA;
(h) For any discharge to the territorial sea, the waters of the contiguous zone, or the oceans in the
following circumstances:
(1) Before the promulgation of guidelines under section 403(c) of CWA (for determining degradation of
the waters of the territorial seas, the contiguous zone, and the oceans) unless the Director determines
permit issuance to be in the public interest; or
(2) After promulgation of guidelines under section 403(c) of CWA, when insufficient information exists
to make a reasonablejudgment whether the discharge complies with them.
(i) To a new source or a new discharger, if the discharge from its construction or operation will cause
or contribute to the violation of water quality standards. The owner or operator of a new source or new
discharger proposing to discharge into a water segment which does not meet applicable water quality
standards or is not expected to meet those standards even after the application of the effluent limitations
required by sections 301(b)(1)(A) and 301(b)(1)(B) of CWA, and for which the State or interstate agency
has performed a pollutants load allocation for the pollutant to be discharged, must demonstrate, before
the close of the public comment period, that:
(1) There are sufficient remaining pollutant load allocations to allow for the discharge; and
(2) The existing dischargers into that segment are subject to compliance schedules designed to bring
the segment into compliance with applicable water quality standards.
[48 FR 14153, Apr. 1, 1983, as amended at 50 FR 6940, Feb. 19, 1985]
Sec. 122.44 (d)(1)(vii)
(vii) When developing water quality-based effluent limits under this paragraph the permitting authority
shall ensure that:
(A) The level of water quality to be achieved by limits on point sources established under this
paragraph is derived from, and complies with all applicable water quality standards; and
(B) 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 40 CFR 130.7.
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Appendix F: Statutory and Regulatory Language
[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 31842, Aug. 8, 1984; 49
FR 38049, Sept. 26, 1984; 50 FR 6940, Feb. 19, 1985; 50 FR 7912, Feb. 27, 1985; 54 FR 256, Jan. 4,
1989; 54 FR 18783, May 2, 1989; 54 FR 23895, June 2, 1989; 57 FR 11413, Apr. 2, 1992; 57 FR 33049,
July 24, 1992; 60 FR 15386, Mar. 23, 1995]
Sec. 130.7 Total maximum daily loads and individual water quality-based effluent limitations.
(a) General. The process for identifying water quality limited segments still requiring wasteload
allocations, load allocations and total maximum daily loads (WLAs/LAs and TMDLs), setting priorities for
developing these loads; establishing these loads for segments identified, including water quality
monitoring, modeling, data analysis, calculation methods, and list of pollutants to be regulated;
submitting the State's list of segments identified, priority ranking, and loads established
(WLAs/LAs/TMDLs) to EPA for approval; incorporating the approved loads into the State's WQM plans
and NPDES permits; and involving the public, affected dischargers, designated areawide agencies, and
local governments in this process shall be clearly described in the State Continuing Planning Process
(CPP).
(b) Identification and priority setting for water quality-limited segments still requiring TMDLs.
(1) Each State shall identify those water quality-limited segments still requiring TMDLs within its
boundaries for which:
(i) Technology-based effluent limitations required by sections 301 (b), 306, 307, or other sections of the
Act;
(ii) More stringent effluent limitations (including prohibitions) required by either State or local authority
preserved by section 510 of the Act, or Federal authority (law, regulation, or treaty); and
(iii) Other pollution control requirements (e.g., best management practices) required by local, State, or
Federal authority are not stringent enough to implement any water quality standards (WQS) applicable to
such waters.
(2) Each State shall also identify on the same list developed under paragraph (b)(1) of this section those
water quality-limited segments still requiring TMDLs or parts thereof within its boundaries for which
controls on thermal discharges under section 301 or State or local requirements are not stringent enough
to assure protection and propagation of a balanced indigenous population of shellfish, fish and wildlife.
(3) For the purposes of listing waters under Sec. 130.7(b), the term "water quality standard applicable
to such waters" and "applicable water quality standards" refer to those water quality standards established
under section 303 of the Act, including numeric criteria, narrative criteria, waterbody uses, and
antidegradation requirements.
(4) The list required under Sees. 130.7(b)(1) and 130.7(b)(2) of this section shall include a priority
ranking for all listed water quality-limited segments still requiring TMDLs, taking into account the severity
of the pollution and the uses to be made of such waters and shall identify the pollutants causing or
expected to cause violations of the applicable water quality standards. The priority ranking shall
specifically include the identification of waters targeted for TMDL
development in the next two years.
(5) Each State shall assemble and evaluate all existing and readily available water quality-related data
and information to develop the list required by Sees. 130.7(b)(1) and 130.7(b)(2). At a minimum "all
existing and readily available water quality-related data and information" includes but is not limited to all
of the existing and readily available data and information about the following categories of waters:
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Appendix F: Statutory and Regulatory Language
(i) Waters identified by the State in its most recent section 305(b) report as "partially meeting" or "not
meeting" designated uses or as "threatened";
(ii) Waters for which dilution calculations or predictive models indicate nonattainment of applicable
water quality standards;
(iii) Waters for which water quality problems have been reported by local, state, or federal agencies;
members of the public; or academicinstitutions. These organizations and groups should be actively
solicited for research they may be conducting or reporting. For example,
university researchers, the United States Department of Agriculture, the National Oceanic and
Atmospheric Administration, the United States Geological Survey, and the United States Fish and Wildlife
Service are good sources of field data; and
(iv) Waters identified by the State as impaired or threatened in a nonpoint assessment submitted to EPA
under section 319 of the CWA or in any updates of the assessment.
(6) Each State shall provide documentation to the Regional Administrator to support the State's
determination to list or not to list its waters as required by Sees. 130.7(b)(1) and 130.7(b)(2). This
documentation shall be submitted to the Regional Administrator together
with the list required by Sees. 130.7(b)(1) and 130.7(b)(2) and shall include at a minimum:
(i) A description of the methodology used to develop the list; and
(ii) A description of the data and information used to identify waters, including a description of the data
and information used by the State as required by Sec. 130.7(b)(5); and
(iii) A rationale for any decision to not use any existing and readily available data and information for
any one of the categories of waters as described in Sec. 130.7(b)(5); and
(iv) Any other reasonable information requested by the Regional Administrator. Upon request by the
Regional Administrator, each State must demonstrate good cause for not including a water or waters on
the list. Good cause includes, but is not limited to, more recent or accurate data; more sophisticated
water quality modeling; flaws in the original analysis that led to the water being listed in the categories in
Sec. 130.7(b)(5); or changes in conditions, e.g., new control
equipment, or elimination of discharges.
(c) Development of TMDLs and individual water quality based effluent limitations.
(1) Each State shall establish TMDLs for the water quality limited segments identified in paragraph
(b)(1) of this section, 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 paragraph (b)(1) of this section. Calculations to establish
TMDLs shall be subject to public review as defined in the State CPP.
(2) Each State shall estimate for the water quality limited segments still requiring TMDLs identified in
paragraph (b)(2) of this section, the total maximum daily thermal load which cannot be exceeded in order
to assure protection and propagation of a balanced, indigenous population of shellfish, 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
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Appendix F: Statutory and Regulatory Language
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.
(d) Submission and EPA approval.
(1) Each State shall submit biennially to the Regional Administrator beginning in 1992 the list of waters,
pollutants causing impairment, and the priority ranking including waters targeted for TMDL development
within the next two years
as required under paragraph (b) of this section. For the 1992 biennial submission, these lists are due no
later than October 22, 1992. Thereafter, each State shall submit to EPA lists required under paragraph (b)
of this section on April 1 of every even-numbered year. The list of waters may be submitted as part of the
State's biennial water quality report required by Sec. 130.8 of this part and section 305(b) of the CWA or
submitted under separate cover. All WLAs/LAs and
TMDLs established under paragraph (c) for water quality limited segments shall continue to be submitted
to EPA for review and approval. Schedules for submission of TMDLs shall be determined by the Regional
Administrator and the State.
(2) The Regional Administrator shall either approve or disapprove such listing and loadings not later
than 30 days after the date of submission. The Regional Administrator shall approve a list developed
under Sec. 130.7(b) that is submitted after the effective date of this rule only if it meets the requirements
of Sec. 130.7(b). If the Regional Administrator approves such listing and loadings, the State shall
incorporate them into its current WQM plan. If the Regional
Administrator disapproves such listing and loadings, he shall, not later than 30 days after the date of such
disapproval, identify such waters in such State and establish such loads for such waters as determined
necessary to implement applicable WQS. The Regional Administrator shall promptly issue a public notice
seeking comment on such listing and loadings. After considering public comment and making any
revisions he deems appropriate, the Regional Administrator shall transmit the listing and loads to the
State, which shall incorporate them into its current
WQM plan.
(e) For the specific purpose of developing information and as resources allow, each State shall identify
all segments within its boundaries which it has not identified under paragraph (b) of this
section and estimate for such waters the TMDLs with seasonal variations and margins of safety, for those
pollutants which the Regional Administrator identifies under section 304(a)(2) as suitable for such
calculation and for thermal discharges, at a level that would assure protection and propagation of a
balanced indigenous population of fish, shellfish and wildlife. However, there is no requirement for such
loads to be submitted to EPA for approval, and establishing TMDLs for those waters identified in
paragraph (b) of this section shall be given higher priority.
[50 FR 1779, Jan. 11,1985, as amended at 57 FR 33049, July 24, 1992]
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Appendix G: Outline of the Hierarchy Approach to TMDL Approval
(With Examples)
INTRODUCTION
The following proposal addresses the fundamental problem of TMDL approval: that different aspects of
TMDLs vary in the degree to which they can be rigorously quantified. This variability applies to different
types of TMDLs, different types of problems that TMDLs seek to address, and pollution from different
types of sources. Moreover, there may be differences in the degree to which separate components of the
TMDL process require or are amenable to quantification, including the degree to which use impairment
can be attributed to a particular pollutant or other type of pollution, the degree to which water quality
conditions deviate from a water quality standard or other desired norm, the degree to which the deviation
can be attributed to specific sources or categories of sources, the degree to which a precise "load
allocation" can be assigned to individual sources, and the degree to which such load allocations can be
correlated with specific remedial measures. Similar issues apply to the degree of subsequent monitoring
and follow-up actions required, as well as the level of required EPA oversight. However, flexibility to
account for different circumstances does not translate to unbounded discretion based on subjective
judgments or unrestricted differences in interpretation. Rather, different circumstances should be
addressed through a set of determinate, objective criteria (that is, objective as opposed to subjective
flexibility).
The following proposal suggests the same basic "hierarchy" approach to each type of variability. The
degree of quantitative rigor that is possible should not be viewed as an absolute (all-or-nothing)
determination. Some reasonable minimum amount of reliable data is always needed in TMDL
development. If the highest level of quantitative rigor is not possible, an intermediate level of rigor
should be considered (the "next-best" approach). At the same time, there is a logical relationship
between the degree of rigor possible in the early phases of the TMDL process and the degree of rigor
required in the subsequent monitoring, revision and follow-up phases of the process (the concept of
inverse proportionality). When types of TMDLs and TMDL components are amenable to quantification
with a high degree of certainty, the need for supplemental or related implementation rigor is relatively
low. By contrast, when the type of TMDL and TMDL component is not amenable to precise
quantification, or when that quantification is subject to considerable uncertainty, the degree of rigor
associated with supplemental or associated implementation measures increases.
The hierarchy approach, in turn, suggests that the TMDL approval and revision process be divided into a
series of related steps; each of which should involve ample opportunities for public participation and
stakeholder involvement. Issues involving approval procedures will be identified and addressed
separately.
Step 1 - Target Identification. Identification of the pollutant or other type of pollution,
and quantification of the target (or "desired end-point") of the TMDL process.
Step 2 - Identification of Variance from Target. Quantification as early as possible, based on all
readily available information (including information on flow conditions, existing water quality, pollution
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Appendix G: Outline of the Hierarchy Approach to TMDL Approval (With Examples)
loads and other factors) or additional monitoring where necessary, of the degree to which conditions in
the water body deviate from the desired target or end-point.
Step 3 - Source Identification. Identification as early as possible of the responsible sources or
categories of sources of pollution, and the degree to which each source (or category of source)
contributes to the problem, with additional monitoring if needed to support fair and adequate load
allocations.
Step 4 - Pollution Reduction Allocation. Allocation of pollutant loads (including pollution
reduction responsibilities) among the identified sources and other factors, including wasteload allocations
(WLAs) for point sources, load allocations (LAs) for nonpoint sources or categories of nonpoint sources,
the statutorily-prescribed margin of safety (MOS), and any allocation for future growth, potentially with
seasonal variations or other factors to address variable flow conditions.
Step 5 - Identification of Implementation Methods. Specification and quantification of the
implementation tools and methods that will be used to achieve the prescribed allocations.
Step 6 - Monitoring and Assessment of Effectiveness. Monitoring and assessment to determine
the degree of use attainment, remaining variance from the target, degree of compliance with
implementation methods, verification of pollution source identification and potentially identification of
additional sources or categories of sources.
Step 7 - TMDL Revision (if necessary). Where necessary, in response to step 6, revision as
appropriate of the applicable pollution reduction allocations and implementation methods.
[Continue steps 6 and 7 until use impairment is eliminated (target is achieved).]
Suggestions for how this hierarchy approach might be applied to each issue, along with some examples
where needed for purposes of clarification, are given below. It should be noted that the examples
provided here are for explanatory purposes only. EPA must ultimately determine (through guidance or
other tools) the way in which the hierarchy approach (the principles described here) should be applied in
making individual TMDL development and approval decisions.
STEP 1 - TARGET IDENTIFICATION
Proposed rigor hierarchy and associated proportionality requirements:
1. When the impairment can be tied to a specific pollutant with an existing numeric
criterion, that pollutant and that criterion should be used to develop the TMDL. Use of an existing
numeric criterion should be presumed to be adequate, so long as subsequent monitoring verifies post-
implementation compliance with the criterion and elimination of the use impairment.
Example: Toxicity to fish is found to be caused by residual chlorine from disinfection, and
a specific numeric criterion for chlorine is included in the WQS.
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Appendix G: Outline of the Hierarchy Approach to TMDL Approval (With Examples)
2. When the impairment can be tied to a specific pollutant without an existing numeric
criterion, a criterion should be developed wherever possible (either state-wide or on a site-specific basis)
and used to develop the TMDL. Use of a new numeric criterion should require additional post-
implementation verification that the new criterion is adequate to address the problem. If not, a procedure
should be in place to modify the criterion and to impose additional remedial measures to meet the new
criterion.
Example: Toxicity to fish is found to be caused by residual chlorine from disinfection, for
example, through whole effluent toxicity testing, but no specific numeric
criterion for chlorine is included in the WQS. The state should develop a
chlorine WQC, or a site-specific criterion for chlorine.
3. When the impairment is tied to a pollutant for which a numeric criterion is not possible,
or where the impairment is identified but cannot be attributed to a single traditional "pollutant," the state
should try to identify another (surrogate) environmental indicator that can be used to develop a quantified
TMDL, using numeric analytical techniques where they are available, and best professional judgment
(BPJ) where they are not. The criterion must be designed to meet water quality standards, including the
waterbody's designated uses. The use of BPJ does not imply lack of rigor; it should make use of the
"best" scientific information available, and should be conducted by "professionals." When BPJ is used,
care should be taken to document all assumptions, and BPJ-based decisions should be clearly explained
to the public at the earliest possible stage.
If they are used, surrogate environmental indicators should be clearly related to the water quality standard
that the TMDL is designed to achieve. Use of a surrogate environmental parameter should require
additional post-implementation verification that attainment of the surrogate parameter results in
elimination of the impairment. If not, a procedure should be in place to modify the surrogate parameter
or to select a different or additional surrogate parameter and to impose additional remedial measures to
eliminate the impairment.
Example: A stream suffers from elevated temperature that cannot be traced to thermal
discharges. The divergence from the numeric temperature criterion (delta T) is
useful to quantify the divergence from the WQS, but is not useful in developing
restoration strategies. Instead, the state determines that healthy streams of similar
types are characterized by X percent more stream side cover vegetation. This
differential is established as the numeric goal of the TMDL.
4. When impairment cannot be tied to either a specific pollutant or to a surrogate
environmental parameter, the state should try to identify a quantifiable set of remedial measures that it
believes, using numeric analytical techniques when they are available or best professional judgment
when they are not, are likely to eliminate the impairment. Use of a numeric standard based on
implementation of specified remedial measures should require additional post-implementation
verification that attainment of the measures results in elimination of the impairment. If not, a procedure
should be in place to modify the measures or to select and to impose different or additional measures to
eliminate the impairment.
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Appendix G: Outline of the Hierarchy Approach to TMDL Approval (With Examples)
Example: A stream suffers from excess sedimentation, but because the total annual
sediment load is less important than peak loads during certain critical storm
events and seasons, it is not possible or useful to establish a TMDL based on total
sediment load reductions. Instead, the state identifies the percent of the
streambank that needs to be stabilized and revegetated in order to eliminate the
impairment.
5. When the impairment can be tied to multiple pollutants, the state should either: (a)
establish a multi-parameter TMDL that accounts for any additive or synergistic effects, if adequately
documented; (b) determine which of the pollutants is most dominant or limiting under the circumstances,
and develop the TMDL based on that pollutant; or (c) identify an indicator pollutant that can be used to
define the numeric goals of the TMDL. Use of a multiple parameter, indicator pollutant or dominant
pollutant criterion should require additional post-implementation verification that the criterion is
adequate to address the problem. If not, a procedure should be in place to modify the criterion and to
impose additional remedial measures to meet the new criterion.
Example: A lake is eutrophying due to loads of nitrogen, phosphorus, or both. The state
could either: (a) establish a trophic status index based on the multiple pollutants;
(b) conduct a study that indicates that nitrogen is the limiting pollutant and
establish a TMDL based on that pollutant; or (c) establish a TMDL based on an
indicator of harm such as chlorophyll A levels.
STEP 2 - IDENTIFICATION OF VARIANCE FROM TARGET
Proposed rigor hierarchy and associated proportionality requirements:
1. Where existing monitoring data are sufficient to quantify the degree to which conditions
in the water body deviate from the target identified in Step 1, that degree of variance should be used to
establish pollution reduction allocations (Step 4). Where deviation from the target is variable (as is likely
in most cases), a conservative variance level should be used to establish pollution reduction targets. An
overall pollution reduction target based on adequate existing data should be presumed sufficient, subject
to subsequent verification of compliance with the target and use attainment.
Example: Existing data show that the water body has dissolved oxygen levels that range
from 3.0 to 4.0 mg/L, compared to a WQS of 5.0 mg/L. The degree of variance
from the standard should be 2.0 mg/L.
2. Where existing monitoring data are not sufficient to quantify the degree to which
conditions in the water body deviate from the target identified in Step 1, additional monitoring should be
conducted in order to establish the necessary pollution reduction targets. An overall pollution reduction
target based on adequate new data should be presumed sufficient, subject to subsequent verification of
compliance with the target and use attainment.
Example: Same as above using newly-collected data.
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Appendix G: Outline of the Hierarchy Approach to TMDL Approval (With Examples)
3. Where it is not technically feasible to collect monitoring data adequate to quantify the
existing deviation from the target, or where the target chosen is not amenable to such quantification, best
professional judgment or indirect methods should be used to estimate the degree to which the water body
deviates from the target. In such cases, additional monitoring will be needed to confirm the adequacy of
the surrogate targets chosen, with revisions as necessary to eliminate use impairment.
Example: Spawning beds are impaired due to excess deposition of fine sediments, but it is
not possible to monitor fine sediment runoff levels precisely, or to estimate the
load reductions necessary to restore the spawning beds. Instead, stream bank
restoration and logging road stabilization projects will be undertaken in an effort
to reduce sediment loads. Best professional judgment should be used to estimate
the necessary number of miles of stream banks and roads that must be restored or
stabilized. Subsequent monitoring and assessment of spawning habitat and
success will be needed to ascertain the adequacy of the restoration and
stabilization targets.
STEP 3 - SOURCE IDENTIFICATION
Proposed rigor hierarchy and associated proportionality requirements:
1. When the target violation or use impairment is known to be caused exclusively by one or
more known sources, and adequate existing data are available to quantify the percentage of pollution
caused by those sources, pollution reduction allocations can be made based on that information. In such
cases, it should be presumed that pollution reductions by those sources will be adequate to attain the
target and eliminate use impairment. If additional pollution sources are found, the allocation may be, but
does not necessarily have to be, revised; for example: (a) additional pollution reductions can be required
from those sources to provide an additional margin of safety and equity among sources; (b) potential
pollution reductions from those sources can be identified and implemented if the initial scheduled
reductions are inadequate to attain the target and eliminate use impairment; or ® the existing allocations
can be modified to account for the new expected pollution reductions so long as total projected
reductions remain adequate to meet the target.
Example: Excess nitrogen loads to a river are known to be caused by discharges from two
factories and two sewage treatment plants, and accurate data are available on the
total mass of nitrogen coming from each source.
2. When some pollution sources are known, and existing data are available to quantify the
percentage of pollution caused by those sources, but it is known or expected that additional pollution
sources exist, additional monitoring and source identification should be conducted to identify the
remaining sources. If such sources can be identified readily and quickly, pollution reduction allocations
can be made based on that information. In such cases, it should be presumed that pollution reductions
by those sources will be adequate to attain the target and eliminate use impairment. If not all sources and
source contributions can be identified quickly, preliminary pollution reduction allocations adequate to
meet the target and eliminate use impairment should be made based on existing information. If
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Appendix G: Outline of the Hierarchy Approach to TMDL Approval (With Examples)
additional pollution sources are found, the allocation may be, but does not necessarily have to be,
revised; for example: (a) additional pollution reductions can be required from those sources to provide an
additional margin of safety and equity among sources; (b) potential pollution reductions from those
sources can be identified and implemented if the initial scheduled reductions are inadequate to attain the
target and eliminate use impairment; or (c) the existing allocations can be modified to account for the
new expected pollution reductions so long as total projected reductions remain adequate to meet the
target.
Example: Same as above, but it is expected that additional nitrogen loadings derive from
sanitary sewer overflow points. Additional monitoring and investigation could
determine the location of such discharge points, along with appropriate
remediation strategies.
3. If the responsible pollution sources are known, but inadequate data exist to quantify the
amount of pollution caused by each source or category of source, additional monitoring should be
conducted, where technically feasible, to quantify pollution contributions. Pollution reduction
allocations should be made based on that new information, subject to later verification of target
attainment and elimination of use impairment.
Example: Same as above, but additional, unknown concentrations of nitrogen are being
released by small, package treatment plants for which extensive monitoring has
not been performed. Additional monitoring should be able to identify these
additional loadings quickly and with relative certainty.
4. If the responsible pollution sources are known, but it is infeasible or impossible to
quantify the amount of pollution caused by each source or category of source with precision, estimated
pollution contributions should be determined based on best professionaljudgment, and pollution
reduction allocations should be made based on those estimates. Although based on the best science and
all available data, such estimates should be subject to more detailed ambient monitoring to determine the
effectiveness of pollution controls in reducing ambient pollution, along with verification of target
attainment and elimination of use impairment.
Example: Same as above, but it is expected that additional nitrogen derives from runoff
from known areas of row crop agriculture. While it may not be feasible to
conduct accurate "edge-of-field" monitoring to quantify such additional loadings
precisely, information on crop mixtures, acreage, fertilizer application rates and
methods, soil types, slopes, hydrologic data, etc., can be used to estimate
additional total loadings from these sources.
5. If it is infeasible or impossible to identify individual pollution sources with precision, best
professionaljudgment should be used to identify the sources or categories of sources that are most likely
to be responsible for the pollution, based on all available information about existing land use or
management practices. Estimated pollution reduction allocations should be made based on such
judgments. Although based on the best science and all available data, such estimates should be subject
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Appendix G: Outline of the Hierarchy Approach to TMDL Approval (With Examples)
to more detailed ambient monitoring to determine the effectiveness of pollution controls in reducing
ambient pollution, along with verification of target attainment and elimination of use impairment.
Example: Same as above, but it is expected that additional nitrogen loadings derive from
runoff from suburban lawns, parks, golf courses, etc. Based on the percentage of
surface area characterized by such uses, and information on typical fertilizer
application rates, etc., rough estimates can be made of total loadings from these
sources.
STEP 4 - POLLUTION REDUCTION ALLOCATION
Proposed rigor hierarchy and associated proportionality requirements:
CAUTION: The following application of the hierarchy concept may not be entirely appropriate, because
alternative approaches to pollution reduction allocations may reflect legitimate differences in regulatory
philosophy. For example, one state might believe that it is most appropriate to favor older over newer
sources in setting allocations; another might favor a purely pro rata approach based on equal pollution (or
pollution reduction) percentages; while another might favor equalizing the total or incremental costs of
pollution reduction among sources.
1. If data exist to identify the cost, technical feasibility, and other factors relevant to
pollution reduction allocation decisions for all sources, such information should be used to make
allocation decisions. If this information is known with relative certainty, it should be presumed that the
resulting allocations will be effective, subject to verification of target attainment and elimination of use
impairment.
Example: For the sewage treatment plants discussed above, the cost and efficacy of
additional nitrogen controls is known with relative certainty, and can be used to
determine potential incremental reductions from those sources.
2. If information on cost, technical feasibility and other factors relevant to pollution
allocation decisions is known with less certainty, additional monitoring and assessment will be needed to
verify the efficacy of the pollution reduction strategies chosen, as well as verification of target attainment
and elimination of use impairment.
Example: With respect to the SSOs mentioned above, some information is available on the
strategies chosen to reduce or eliminate SSO discharges, such as water
conservation, rerouting of flows within the sewer system, etc. However, the
effectiveness of the chosen controls cannot be known with certainty absent
implementation and follow-up analysis, with additional measures added if
necessary to correct remaining problems.
3. If information on cost, technical feasibility and other factors relevant to pollution
allocation decisions is not known, such information should be collected and analyzed where it is
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Appendix G: Outline of the Hierarchy Approach to TMDL Approval (With Examples)
possible to do so expeditiously and effectively, and such information should be used as the basis for
allocation decisions.
Example: With respect to the industrial sources mentioned above, additional engineering
studies are needed to determine the costs and means available to reduce nitrogen
discharges further from those sources.
4. If information on cost, technical feasibility and other factors relevant to pollution
allocation decisions cannot be collected and analyzed expeditiously and effectively, allocation decisions
should be made based on best professional judgment regarding the cost and technical feasibility of
alternative pollution reduction strategies. More detailed follow-up monitoring and assessment will be
needed to verify the efficacy of the pollution reduction strategies chosen, as well as verification of target
attainment and elimination of use impairment.
Example: With respect to the row crop runoff discussed above, only general information is
available on the effectiveness in reducing nitrogen loadings of best management
practices such as soil testing, timing of fertilizer application, etc. While less
precise than for point sources, such estimates can be used to establish initial load
reduction allocations, subject to follow-up monitoring and evaluation.
5. If the cost and technical feasibility of pollution reduction strategies cannot be estimated
based on best professional judgment, another (default) method must be chosen on which to base
allocation decisions, such as equal percentage reduction by all sources, equal incremental reduction by
all sources, etc. (technology-forcing). More detailed follow-up monitoring and assessment will be needed
to verify whether the assigned pollution reductions are achieved, as well as verification of target
attainment and elimination of use impairment.
Example: No technology is currently known to be available to reduce discharges of a toxic
pollutant from three facilities in a particular industry (the only dischargers of the
pollutant), but it is known that such reductions are necessary to meet the WQS
and to eliminate use impairment. Load reduction allocations are made on a pro
rata basis (such as 30 percent reduction per plant), with a specified (e.g., 3-yearj
compliance schedule in the revised NPDES permits. The dischargers must find
ways to comply with the new permit limits through research and development in
new pollution prevention or pollution control methods.
STEP 5 - IDENTIFICATION OF IMPLEMENTATION METHODS
Proposed rigor hierarchy and associated proportionality requirements:
1. For waters where impairment is limited to or dominated by point sources, and where
specific numeric criteria are available and amenable to the calculation of WLAs that can be included in
new or revised NPDES permits, implementation should be fairly straightforward, and should include:
specific timetables and commitments to issue or revise the permits with fixed compliance schedules,
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Appendix G: Outline of the Hierarchy Approach to TMDL Approval (With Examples)
monitoring and enforcement commitment (including the nature and frequency of compliance monitoring,
and who is responsible for such monitoring), ambient monitoring to determine whether achievement of
the WLAs results in attainment of the WQS, and a feedback loop requiring revised WLAs, permits, etc., if
the WLAs turn out to be inadequate. This should include specific milestones and benchmarks, including
interim target deadlines as well as a final expected attainment date, against which the adequacy of the
initial load allocation and implementation plan is measured, and that trigger appropriate revisions.
2. For waters where impairment includes significant or dominant nonpoint source
contributions, implementation provisions will need to be more rigorous and iterative. Nonpoint source
implementation provisions should include the identification of specific BMPs and other measures
designed to achieve the necessary LAs, including identification of the specific practices that will be
employed, by whom, where, and by when, and with what implementation or enforcement requirements
and assurances (such as permits, contracts, cross-compliance requirements, plan approvals, etc.). This
should include specific milestones and benchmarks including interim target deadlines as well as a final
expected attainment date against which the adequacy of the initial load allocation and implementation
plan is measured, and that trigger appropriate revisions. Additional monitoring and assessment will
require ambient monitoring to determine the effect of the practices on water quality and related
conditions; compliance assessment to determine the degree to which the selected practices are
implemented; and to the extent possible, assessments of the efficacy and impacts of the practices chosen.
Based on this monitoring and assessment program, the TMDL should include a specific timetable and
process for evaluation of whether additional practices must be employed, by whom, where, and by when,
in order to eliminate the remaining impairment. In choosing among implementation options, however,
relatively more certainty about efficacy and need should be sought as the expected costs of
implementation increase.
3. For waters where remedies involve restoration strategies to address "legacy pollutants,"
habitat impairment (such as channelization or loss of riparian cover), water withdrawals, pollution
"trading," or other special issues, implementation provisions will need to be different than but similar to
those suggested for nonpoint sources. For example:
a. For waters where it is believed that use impairment can be reduced or eliminated through
habitat restoration projects, implementation provisions should include identification of the specific
restoration projects that will be undertaken, by whom, where, and by when, and what implementation
provisions are included to provide assurance that the projects will be completed (funding, assignment of
responsibility, applicable enforcement and compliance provisions, etc.). Additional monitoring and
assessment will require ambient monitoring to determine the effect of the restoration projects on water
quality and related conditions; compliance assessment to determine the degree to which the selected
projects are implemented; and to the extent possible, assessments of the efficacy and impacts of the
projects chosen. Based on this monitoring and assessment program, the TMDL should include a specific
timetable and process for evaluation of whether additional projects or practices must be employed, by
whom, where, and by when, in order to eliminate the remaining impairment.
b. For waters where it is believed that use impairment can be reduced or eliminated through
elimination or mitigation of legacy pollution, implementation provisions should include identification of
the specific remediation projects that will be undertaken, by whom, where, and by when, and what
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Appendix G: Outline of the Hierarchy Approach to TMDL Approval (With Examples)
implementation provisions are included to provide assurance that the projects will be completed
(funding, assignment of responsibility, applicable enforcement and compliance provisions, etc.).
c. For waters where it is believed that use impairment can be reduced or eliminated through
practices to increase instream flows, implementation provisions should include identification of the
specific water conservation, withdrawal timing, or other projects that will be undertaken, by whom,
where, and by when, and what implementation provisions are included to provide assurance that the
projects will be completed (funding, assignment of responsibility, applicable enforcement and
compliance provisions, etc.).
d. For waters where it is believed that use impairment can be reduced or eliminated through
pollution reduction trading, or where it is believed that the same result can be achieved at lower costs
through trading, implementation provisions should include identification of the specific trading
provisions and "rules" that will be employed, by whom, where, and by when, and what implementation
provisions are included to provide assurance that the traded pollution reductions will be achieved, and
for comparable forms of pollution with comparable impacts (funding, assignment of responsibility,
enforcement and compliance provisions, etc.).
In all of these cases, additional monitoring and assessment will be required to determine the effect of the
restoration, conservation, remediation, trading or similar projects on water quality and related conditions;
compliance assessment to determine the degree to which the selected projects are implemented; and to
the extent possible, assessments of the efficacy and impacts of the projects chosen. This should include
specific milestones and benchmarks, including interim target deadlines as well as a final expected
attainment date, against which the adequacy of the initial load allocation and implementation plan is
measured, and that trigger appropriate revisions. Based on this monitoring and assessment program, the
TMDL should include a specific timetable and process for evaluation of whether additional projects or
practices must be employed, by whom, where, and by when, in order to eliminate the remaining
impairment.
STEP 6 - MONITORING AND ASSESSMENT OF EFFECTIVENESS
The degree of follow-up monitoring and assessment depends on the relative degree of rigor and
precision obtained in Steps 1-5. To avoid duplication, the specific weaknesses in earlier steps that
trigger heightened monitoring and assessment requirements will not be repeated here.
STEP 7 - TMDL REVISION (IF NECESSARY)
Same as Step 6, but with respect to the requisite need for TMDL revisions if follow-up monitoring
and assessment indicates that the initial application of Steps 1 - 5 was not adequate to attain the target
and to eliminate use impairment.
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SUFFICIENCY OF APPROVAL PROCEDURES
The following section describes how the Hierarchy Approach—in particular, the concept of inverse
proportionality—can apply to procedures under which EPA reviews individual TMDLs. It should be
noted that this section forms the basis of several of the recommendations included in Section 8.1 of the
report (on EPA oversight).
Proposed rigor hierarchy and associated proportionality requirements
1. EPA defines specific procedures for preparation of TMDLs. If the State adopts those
criteria and agrees to apply them, EPA should approve the procedures initially to ensure that they comply
with the EPA guidelines. Then, EPA oversight over individual TMDLs can be less rigorous. Increased
opportunities for public participation and stakeholder involvement, if they reflect the full range of affected
interests, also may suggest less detailed EPA oversight.
2. The State might adopt the specific EPA procedures and apply them to most TMDLs,
which will receive less EPA oversight. However, the State might deviate from those procedures for
complex TMDLs or other TMDLs that require different treatment. Such cases will be targeted for
increased EPA review.
3. If the State adopts standard procedures that differ from those proposed by EPA, to
account for legitimate differences in ecology, hydrology, pollution sources, etc., EPA will conduct more
rigorous review of the initial procedures. Once these procedures are approved, increased EPA review of
individual TMDLs will be needed initially to confirm that they are appropriate. Thereafter, the same
approval procedures as identified in 1 and 2 will be appropriate.
4. If the State adopts standard procedures for the preparation of certain categories of TMDLs
within the State (for example, TMDLs involving predominantly nonpoint source pollution from similar
patterns of row crops in very similar watersheds), EPA will conduct more rigorous review of the initial
procedures. Once these procedures are approved, increased EPA review of individual TMDLs will be
needed initially to confirm that they are appropriate. Thereafter, the same approval procedures as
identified in 1 and 2 will be appropriate.
5. If the State adopts a case-by-case approach to TMDL development rather than adopting
standard procedures, detailed individual review of TMDLs will be required.
6. The State undertakes significant efforts, such as increased data gathering efforts or
comprehensive implementation programs, to reduce the level of uncertainty as to whether a TMDL will
lead to WQS attainment. Relatively less detailed EPA review is appropriate in such cases.
7. If the State believes that existing programs or requirements are adequate to attain the
goals of the TMDL program, such program will be presumed adequate if the State shows that the existing
program or set of requirements is comparable in all respects to the requirements of the TMDL program
(complete functional equivalence), including all of the rules and procedures set forth above, as applied to
the individual water body. In other words, rather than preparing a new "program" to meet the TMDL
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Appendix G: Outline of the Hierarchy Approach to TMDL Approval (With Examples)
requirement, the State will formally submit the existing program and accompanying requirements as the
TMDL for the subject water body, subject to EPA review and approval. This does not, however, imply
automatic approval of TMDLs developed pursuant to these equivalent procedures or programs. Rather,
each such TMDL will be subject to the same rules of submission and approval as other TMDLs.
Report of the Federal Advisory Committee on the TMDL Program, July 1998
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Appendix H: Discussion Paper on Legal Authority for TMDL
Implementation Plans
To assist in its deliberations, the Committee established a special subgroup to review the options for
requiring implementation plans. During the subgroup's review efforts in mid-1997, Bob Perciasepe,
Assistant Administrator for Water at EPA, issued a policy memorandum addressing TMDL pace and
implementation questions and suggesting that implementation would be provided for under §303(e).
However, EPA has made it clear that this is an interim policy that may be revised based on
recommendations from the TMDL FACA Committee.
The Committee has agreed to recommend that implementation plans be developed as part of the TMDL
process and has agreed upon certain elements that need to be in the plan, including the State's plan for
taking regulatory and non-regulatory action to carry out the TMDL, a description of the ramifications of
failure of the plan to attain water quality standards, and provisions for modification of the TMDL should it
fail.
AREAS OF AGREEMENT
The Committee's recommendations reflect several important areas of agreement on how best to require
implementation planning. These include the following points:
1. Implementation plans should be required as part of the TMDL process and should be completed
and submitted to EPA at the time a TMDL is completed/submitted. Such a requirement will
promote reasonably expeditious implementation and help avoid the problem of the TMDL
becoming outdated or "stale" before implementation is undertaken.
2. States should be held accountable for developing implementation plans through incentives (or
applicable sanctions, if necessary) to help ensure that implementation gets high priority and that
water quality problems are addressed.
3. Accountability mechanisms available under §303(d) would include:
• recognizing a TMDL as "complete," and therefore approvable by EPA, only when the
implementation plan is complete, and
• possible citizen suit enforcement of the requirement to develop TMDLs, including the
implementation plan.
4. Accountability mechanisms available under §303(e) could include a variety of oversight and
leadership tools through which EPA generally influences State action.
5. If EPA should decide to rely on §303(e) to require implementation planning, EPA would need to
substantially revitalize the §303(e) Continuing Planning Process (CPP) and may need to revise the
regulations implementing that provision to include a specific requirement for TMDL
implementation planning.
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Appendix H: Discussion Paper on Legal Authority for TMDL Implementation Plans
6. If EPA itself is responsible for completing the TMDL, the Agency should seek ways to develop the
implementation plan cooperatively with affected States and localities so that needed actions can
be identified at all levels of government. It would be expected, however, that implementation
plans developed by EPA would rely more heavily on federal actions to achieve water quality
goals.
UNRESOLVED ISSUE
In its discussion of implementation plans, the subgroup considered whether States should submit
implementation plans prepared for a TMDL as part of the TMDL itself (under CWA §303(d)), or,
consistent with EPA's interim policy, as part of the State's CPP (under CWA §303(e)). The subgroup and,
subsequently, the Committee did not reach consensus on this point. While there was agreement that
§303 provides sufficient authority to require TMDL implementation plans, some members felt strongly
that §303(d) can be read to require submittal of implementation plans as part of the TMDL and expressed
strong preference for this approach, while others felt strongly that only the §303(e) CPP is legally
available.
Perceived advantages associated with requiring implementation plans under §303(d) were that this
approach would be more simple and administratively straightforward, and, most importantly, would
make actual implementation more likely. Some members, however, had some concerns that reliance on
§303(d) could lead tojudicial enforcement of TMDL implementation plans in unexpected or unintended
ways (e.g., by requiring States or EPA to establish new regulatory authorities for implementation).
On the other hand, perceived advantages associated with requiring implementation plans under §303(e)
were that it might impose a lesser burden on EPA in reviewing individual TMDLs, and that
implementation planning, in the view of some members, is best handled as part of the State's broader
water quality management efforts, which are to be described under §303(e). Members who favored
reliance on §303(d), however, were concerned that reliance on §303(e) would require significant
revitalization of the Continuing Planning Process—a controversial and resource-intensive undertaking—
and, even if this were done, the resulting process for managing implementation planning would be
difficult, cumbersome, and time-consuming.
An important difference between requiring implementation planning under §303(d) and §303(e) is that
requiring implementation plans under §303(d) would subject the plans to EPA review and approval along
with the TMDL, at the same time the TMDL is submitted. The extent and timing of EPA review of TMDL
implementation plans submitted under § 303(e) is less clear (as indicated above, implementing
regulations under §303(e) would need to be revised to make this more clear). Members who favored
reliance on §303(d) were concerned that §303(e)'s lack of specific EPA review and approval requirements
for individual TMDL implementation plans may make their establishment appear to be less important,
and their actual implementation less likely.
In addition, because EPA is statutorily required to complete TMDLs in the event a State fails to do so,
requiring implementation plans under §303(d) could ultimately subject EPA to a requirement to complete
a State's TMDL implementation plan. Clearly, EPA could develop implementation plans, but it may not
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Appendix H: Discussion Paper on Legal Authority for TMDL Implementation Plans
have the authority a State would have to carry out the plan and, because of this, some members were
concerned that at least in some cases plans established by EPA could become simply paper exercises.
Others noted that even if EPA could not fully implement the plan, having an EPA plan would be better
than having no plan at all. Members noted, however, that EPA could and should work to enlist the
proper State and local agencies to support and implement the plan in these cases. It was noted, however,
that it may be difficult to enlist State support in implementation if the State failed to complete an
approvable TMDL in the first instance.
It is unclear whether, under §303(e), EPA would have responsibility for establishing plans in the event a
State fails to do so. Some members saw this as a potential advantage, since if §303(e) does not require
EPA to step in if States fail to act, EPA would not need to establish plans it might not be able to
implement. Others were concerned that without federal back-up, States might not complete adequate
implementation plans or do so promptly.
Report of the Federal Advisory Committee on the TMDL Program, July 1998
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Appendix I: Minority Reports
This Appendix contains minority reports prepared by Committee members who voted against specific
report language adopted by the Committee under its Groundrules by a vote of 18 or more members (see
Committee Groundrules, Appendix C).
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Appendix I: Minority Reports
MINORITY REPORT
Melissa Samet
6/8/98
EPA TMDL FACA
The FACA voted to recommend that "EPA, by regulation, direct States to set expeditious timeframes, of
not more than 8-15 years, for States to complete their TMDL development."
I disagree with the portion of this recommendation that would allow States to have 8 to 15 years to
complete their TMDLs. It is critical that States prepare all their TMDLs as expeditiously as possible.
However, the timeframe recommended by the Committee does not accomplish this. Instead, States
should be required to complete all of their TMDLs within 5 to 6 years (this time period should be shorter
if EPA does not adopt the Committee's recommendation to require implementation plans to be submitted
with each TMDL).
The Clean Water Act established a national goal of eliminating the discharge of pollutants into the
navigable waters by 1985. Clean Water Act § 101(a)(1), 33 U.S.C. § 1251(a)(1). TMDL development
was to have begun by 1973. Clean Water Act § 304(a)(2), 33 U.S.C § 1314(a)(2). Thus, it was the intent
of Congress that all TMDLs would be developed and implemented, and water quality standards attained
within 12 years. It is now 25 years after the TMDL process was to have begun, and 13 years after the goal
of clean water was to have been met, and innumerable TMDLs still have not even been started. Even
more importantly, no waters have attained water quality standards as a result of the Clean Water Act's
TMDL requirements.
This delay is unconscionable. And, it has resulted in very real impacts. For example, children in the
Great Lakes and elsewhere are suffering from developmental impairments and a host of other health
problems; we all have been exposed to known and potent carcinogens; salmon and fish eating birds,
including our national bird, the bald eagle, have plummeted to the brink of extinction; fish eating species
such as mink and alligators are suffering from reproductive failure, impaired sexual development, and
immune system deficiencies; and in the Gulf of Mexico, there is a yearly die-off of all marine life that
cannot escape a zone of hypoxic waters - waters so devoid of oxygen due to nutrient overenrichment
from the Mississippi River that marine life cannot survive - that is larger than the States of Connecticut
and Rhode Island combined.
There is nojustification for allowing this assault to continue. To the contrary, the Clean Water Act,
national policy, and our ethical obligations, require that the nation's waters be cleaned up as quickly as
possible. TMDL development is a critical step in this process, but it isjust a first step.
Once developed, TMDLs still must be fully implemented and water quality standards attained before our
waters will be clean and safe. Thus, the TMDL development phase should be completed as expeditiously
as possible. In no event should this phase take as long as the 8 to 15 years recommended by the
Committee.
Report of the Federal Advisory Committee on the TMDL Program, July 1998
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Appendix I: Minority Reports
MINORITY REPORT
Rob Olszewski
6/2/98
EPA TMDL FACA
The TMDL FACA discussed the process around setting 'baselines" of pollutant loadings for impaired
waters in relation to a number of different subtopics. During the specific discussions regarding
stabilization plans, I expressed a dissenting vote in order to express the concern that application of
"baseline" loads related to forestry operations present some unique challenges that should be
acknowledged in the process. This same objection could have been expressed in a number of different
elements of the FACA's discussion, but I chose to only state this position once in order to be able to
articulate this particular concern in a minority report.
Forestry operations are unique because of the fact that this particular land use does not require annual
"treatments" or specific activities to occur on given sites on a yearly basis. In addition to this fact, the
timberlands within any given impaired watershed are not typically divided equally in terms of acreage by
specific age classes. Many impaired watersheds may also have hundreds of individual small, private
nonindustrial forest landowners with varied objectives. Market conditions also can change significantly
from year to year, with high demand driving more of these individual landowner's decisions to sell timber
in one year compared to another. As a result of these and other factors, the number of specific
silvicultural activities occurring in a given impaired watershed may vary significantly in any given year.
Because of these unique circumstances, states should not set baseline allocations related to forestry
operations based on the input from any given specific year. Some type of rolling year-over-year average
should be used related to the impacts associated with this land use. Otherwise, baseline allocations
where silvicultural operations represent a potential impact could be set at levels too low if only a few
activities occurred in a "baseline" year, or conversely, too high if a larger than typical number of activities
occurred in a given year.
Obviously, weather-related events are also a key factor in driving variability among silvicultural nonpoint
sources but this particular minority opinion is targeted at the concern with the operational variability and
timing of forestry as a unique land use, and the need to recognize this fact when developing baselines,
allocations, and implementation strategies associated with the TMDL Process.
Report of the Federal Advisory Committee on the TMDL Program, July 1998
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Appendix I: Minority Reports
TOTAL MAXIMUM DAILY LOADS — MINORITY REPORT
submitted by
The Honorable William D. Nielsen
City Council President
Eau Claire, Wisconsin, National League of Cities
TMDL FACA Subcommittee Member
and
J. Brad Burke
TMDL FACA Subcommittee Member
Thisjoint minority report to the TMDL FACA Subcommittee Report (Subcommittee Report) is being
submitted by TMDL FACA Subcommittee members William D. Nielsen and J. Brad Burke. In this
minority report, Mr. Nielsen and Mr. Burke oppose the Subcommittee Report on two major issues:
the assignment of pollutant reductions based on "enforceability," which legitimizes
environmental inequity and imposes a disproportionate burden on point sources; and,
the issues raised with respect to cities and dams in Section 6.1, "Extremely Difficult Problems ...,"
which is totally inappropriate and fails to account for the fact the neither dams nor cities are
exclusively or necessarily linked to water quality impairments.
ENFORCEABILITY AS ALLOCATION CRITERION
Incorporating "enforceability" as a criterion for allocating pollutant reductions is inherently
inequitable and has significant ramifications for concerns about environmental justice, as described
below.
Since "enforceability," in terms of federal authority, is applicable only to point sources, inclusion
of this concept in determining allocations will result in point sources bearing more than their fair share of
responsibility for attainment of designated uses in the nation's waterbodies, a result completely
unacceptable to the municipal community. It is inequitable to require municipal residents, whatever
their economic circumstances, to bear these additional costs (through either tax or rate increases or
diversion of local resources from other services) of stream restoration regardless of the sources of
degradation. Municipalities will accept full responsibility for the pollutants attributable to municipal or
municipally-located sources (i.e., sources over which we have authority and/or control); municipalities
cannot and will not accept responsibility for the loadings of those outside their political boundaries. (See
also Chapter 6., Impairments Due To ..., Section 6.1, Extremely Difficult. . ., Recommendation 3.
which again singles out point sources for more rigorous requirements in determining "short-term
allocations for permit limits." While some attempt was made in the following Recommendation 4. to
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Appendix I: Minority Reports
mitigate the impact on point sources, with the deletion of "regulatory or economic" as modifiers, it is now
sufficiently vague as to be meaningless.)
In addition, allocations based on "enforceability" will result in severe restrictions, if not outright
moratoria, on growth and/or revitalization in urbanized areas. While the Report suggests "growth" may
(not mandatory) be a consideration in the allocation process, overall the document is clearly hostile to
development and re-development (see, e.g., Chapter 3, Identifying Impaired Waters, Section 3.5, Source
Constraints, Problem Statement, Point Sources, with respect to "zero discharge" as well as subsequent
discussion on "restrictions on new or additional discharges"). Cities can neither accept nor support a
federal "no-growth" policy developed by a federal advisory committee. Such a policy has broad
ramifications beyond controlling pollution of the nation's waterways. Allocations based on enforceability
establish a de facto "no-growth" policy placing untenable burdens on point sources while leaving others
free to continue their activities unencumbered by any constraints. This presents an equity question of
major proportions that is not appropriately addressed by the TMDL FACA.
Like municipalities, industry will also be forced to bear more than its fair share of responsibility
for attainment of designated uses. Through its compliance with effluent guidelines regulations, industry
has already contributed substantially to the cause of clean water. It is patently unfair to encourage states
to impose further burdens on point sources merely because of the absence of federal enforcement
authority over nonpoint sources.
The modifications adopted by the FACA at the May meeting with respect to "Section 5.5 The
Allocation Process, 1.," (Chapter 5, TMDL Development) are subject to a variety of interpretations
potentially inimical to the interests of cities and industry, and are inadequate to resolve the concerns
raised above.
We are disappointed, given the recent policy pronouncements from both Vice President Gore
(the Clean Water Action Plan) and EPA ("Picking Up the Pace"), that a stronger statement with respect to
load allocations reflective of actual sources of pollution, was not advocated by the Agency or
incorporated in the Subcommittee Report.
EXTREMELY DIFFICULT TO SOLVE PROBLEMS
The revised Section 6.1, Impairments Due to Extremely Difficult to Solve Problems, also
presents significant concerns. First, there was little, if any, input by municipal representatives in the
development of this section.
Second, we cannot agree that the very existence of cities is a "problem" - special or otherwise.
Growth and development do not perse translate into deteriorating water quality. Given our advanced
level of technology - growth AND water quality can coexist. In many respects, protection of water
quality is more likely to be facilitated by encouraging people to live in cities rather than developing and
populating green space.
Third, we also do not concur on the issue of including municipally-owned/operated facilities in
this section of the Report. We know of no one - not EPA, not the environmental activists, not city
employees operating the Phase I stormwater permit program - who is able to suggest how urban
stormwater runoff can be addressed to meet water quality standards. Since the recently proposed Phase II
regulations tie the urban stormwater permit program to the TMDL program, we also believe this provision
totally eliminates any advantages cities may have been granted by the August 1996 Interim Permitting
Approach for Water Quality-Based Effluent Limitations on Storm Water Permits (which essentially
acknowledged that numerical effluent limits for stormwater runoff are infeasible and hence, inappropriate
at this time). Furthermore, unless EPA is proposing massive expenditures of non-existent local resources
for significant expansion of POTWs and related facilities, it is unlikely that municipalities can entirely
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Appendix I: Minority Reports
eliminate CSOs or SSOs. We simply cannot agree to a policy that requires municipalities to achieve the
impossible with attendant penalties for failure to do so.
Fourth, with respect to "flows," local elected officials firmly maintain that land use planning is an
activity solely within the purview of local government. There is neither precedent nor authority for
federal pre-emption of this most significant local government function. We vehemently object to and
oppose any proposal granting EPA control - directly or indirectly - over land use planning within a
municipality. (See, e.g., Chapter 5, TMDL Development, Section 5.4, Criteria for Approval,
Recommendations, 1. d. See also, Chapter 6, Impairments Due to Extremely Difficult to Solve
Problems, Section 6.3 Modification to Flow, and Chapter 8, EPA's Role, Section 8.2, Assessing State
Program Effectiveness, Recommendation 1. calling for enhanced EPA oversight [intrusion?] when
addressing complex TMDLs.) As the nation's body of knowledge of water quality impacts has expanded
and been more widely disseminated, local elected officials increasingly recognize the impact of altered
flow patterns on receiving waters and account for these in locally developed land use plans and zoning
decisions.
Fifth, we oppose the inclusion of "large existing dams" within the first category of "difficult
historic problems" (Section 6.1 Discussion). Congress never intended that the TMDL program address in
any way water quality impairments attributed to dams. That is evident from the language of §303(d)(1)(c),
which requires development of TMDLs for "pollutants," not "pollution." Therefore, it is wholly
inappropriate for the Subcommittee to recommend §303(d)(1) listing of waters impaired by dams, and to
recommend "reasonable reductions" to the allocations of existing sources based on relative conditions to
impairments by dams. Furthermore, it is impractical to require listing of waters impaired by dams
because the majority of dams are permanent structures that typically provide significant societal benefits,
such as supplying drinking water and/or energy. Also, flow modifications caused by dams are already
subject to extensive regulation by federal authorities (e.g., the Federal Energy Regulatory Commission
[FERC]), and extension of the TMDL program to waters impaired by dams will only create a confusing
regulatory overlap. Water quality is already a significant consideration in FERC decisions.
Sixth, we specifically oppose Recommendation 4, which proposes "reasonable reductions" of the
allocations of existing sources "in light of the relative contribution of special challenge sources" such as
contributions to impairments caused by dams. The Subcommittee makes this recommendation despite its
acknowledgment that the contribution of the existing sources "may be minor in relation to the special
challenge source." This is patently unfair. Many impairments caused by what the Subcommittee refers to
as "special challenge sources" developed over a long period of time. It is inappropriate to penalize
current dischargers for such "special challenge" sources, particularly when reductions in their allocations
will not significantly quicken attainment of water quality standards.
Pollutant allocations for current dischargers should not be affected by the perceived need to
address "special challenge sources" unless reasonable reductions by the current dischargers would be
expected to significantly improve water quality for the pollutant of concern within the next five-year
NPDES permit cycle.
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