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
                                            — i  —

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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
                                         — ii —

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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
                                            — iii —

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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
                                            — iv —

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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
                                           - 1 -

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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.
                  Report of the Federal Advisory Committee on the TMDL Program, July 1998
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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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                                                                     Chapter 2: Introduction
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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                                                                   Chapter 2: Introduction
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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                                                    Chapter 3:  Identifying Impaired Waters
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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                                                    Chapter 3:  Identifying Impaired Waters
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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                                                            Chapter 5:  TMDL Development
       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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                                                            Chapter 5: TMDL Development
              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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                                                            Chapter 5:  TMDL Development
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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                                                            Chapter 5: TMDL Development
                   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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                                                            Chapter 5:  TMDL Development
                   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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                                                            Chapter 5: TMDL Development
       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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                                                            Chapter 5:  TMDL Development
       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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                                                             Chapter 5:  TMDL Development
                   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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                                                            Chapter 5: TMDL Development
       —     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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                                                            Chapter 5: TMDL Development
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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                                                     Chapter 5:  TMDL Development
       >•      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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                                                     Chapter 5: TMDL Development
       ••      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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                                                     Chapter 5: TMDL Development
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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                                                           Chapter 5:  TMDL Development
              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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                                                           Chapter 5:  TMDL Development
       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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                                          Chapter 5: TMDL Development
 —     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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                                                            Chapter 5:  TMDL Development
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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                          Chapter 6:  Impairments Due to Extremely Difficult Problems, Atmospheric
                                                                Deposition, and Flow Modification

                   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
                                                               Deposition, and Flow Modification

       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.
                  Report of the Federal Advisory Committee on the TMDL Program, July 1998
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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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                          Chapter 6: Impairments Due to Extremely Difficult Problems, Atmospheric
                                                               Deposition, and Flow Modification

                          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


                  Report of the Federal Advisory Committee on the TMDL Program, July 1998
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                          Chapter 6: Impairments Due to Extremely Difficult Problems, Atmospheric
                                                               Deposition, and Flow Modification

                   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.
                  Report of the Federal Advisory Committee on the TMDL Program, July 1998
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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.
                  Report of the Federal Advisory Committee on the TMDL Program, July 1998
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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.
                  Report of the Federal Advisory Committee on the TMDL Program, July 1998
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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.
                  Report of the Federal Advisory Committee on the TMDL Program, July 1998
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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).
                  Report of the Federal Advisory Committee on the TMDL Program, July 1998
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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).
                 Report of the Federal Advisory Committee on the TMDL Program, July 1998
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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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                     Chapter 10:  Coordination, Technical Support, and Capacity-Building
       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
Report of the Federal Advisory Committee on the TMDL Program, July 1998
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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.)
                  Report of the Federal Advisory Committee on the TMDL Program, July 1998
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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.)
                  Report of the Federal Advisory Committee on the TMDL Program, July 1998
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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:
                  Report of the Federal Advisory Committee on the TMDL Program, July 1998
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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.
                  Report of the Federal Advisory Committee on the TMDL Program, July 1998
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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.
                 Report of the Federal Advisory Committee on the TMDL Program, July 1998
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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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   Appendix G: Outline of the Hierarchy Approach to TMDL Approval (With Examples)
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.
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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
                  Report of the Federal Advisory Committee on the TMDL Program, July 1998
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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.
                  Report of the Federal Advisory Committee on the TMDL Program, July 1998
                                               I-6

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