[Federal Register Volume 64, Number 162 (Monday, August 23, 1999)]
[Proposed Rules]
[Pages 46012-46055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21416]
[[Page 46011]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 130
Proposed Revisions to the Water Quality Planning and Management
Regulation; Proposed Rule
Federal Register / Vol. 64, No. 162 / Monday, August 23, 1999 /
Proposed Rules
[[Page 46012]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 130
[FRL-6424-2]
RIN 2040-AD36
Proposed Revisions to the Water Quality Planning and Management
Regulation
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: Today's action revises, clarifies and strengthens the
Environmental Protection Agency's (EPA) current regulatory requirements
for establishing Total Maximum Daily Loads (TMDLs) under the Clean
Water Act (CWA). Today's proposed rule will provide States, Territories
and authorized Tribes with the necessary information to identify
impaired waters and to establish TMDLs to restore water quality.
Today's proposed rule clarifies and strengthens how TMDLs are
established so they can more effectively contribute to improving the
nation's water quality. Through this proposal, State, Territorial and
authorized Tribes can tailor their water quality programs to address
the characteristics, problems, risks, and implementation tools
available in individual watersheds, with meaningful involvement of
stakeholders in the local community. Also in today's Federal Register,
EPA is proposing a companion rule amending NPDES and water quality
standards regulations to better support establishment of TMDLs.
DATES: Comments on this proposal must be submitted on or before October
22, 1999. Comments provided electronically will be considered timely if
they are submitted by 11:59 P.M. (Eastern time) October 22, 1999.
ADDRESSES: Send written comments on the proposed rule to the Comment
Clerk for the TMDL Program Rule, Water Docket (W-98-31), Environmental
Protection Agency, 401 M Street, S.W., Washington, DC 20460.
For information on Filing comments, see ``Additional Comment
Information'' in SUPPLEMENTARY INFORMATION.
A copy of the supporting documents cited in this proposal is
available for review at EPA's Water Docket; Room EB-57 (East Tower
Basement), 401 M Street, SW, Washington, DC 20460. For access to docket
materials, call (202) 260-3027 between 9 a.m. and 3:30 p.m. for an
appointment. An electronic version of this proposal will be available
via the Internet at: http://www.epa.gov/OWOW/tmdl/index.html>.
FOR FURTHER INFORMATION CONTACT: Hazel Groman, U.S. EPA, Office of
Wetlands, Oceans and Watersheds (4503F), 401 M St., S.W., Washington,
D.C. 20640, (202) 401-4078.
SUPPLEMENTARY INFORMATION:
Authority: Clean Water Act Sections 106, 205(g), 205(j), 208,
303, and 305.
Additional Comment Information
EPA requests that commenters submit any references cited in their
comments. EPA also requests that commenters submit an original and 3
copies of their written comments and enclosures. Commenters that want
receipt of their comments acknowledged should include a self-addressed,
stamped envelope. All comments must be postmarked or delivered by hand.
No facsimiles (faxes) will be accepted.
EPA will also accept comments electronically. Comments should be
addressed to the following Internet address: ow-docket@epa.gov.
Electronic comments must be submitted as an ASCII or WordPerfect file
avoiding the use of special characters and any form on encryption.
Electronic comments must be identified by the docket number W-98-31,
and may be filed online at many Federal depository Libraries. No
confidential business information (CBI) should be sent via e-mail.
Entities Potentially Regulated by the Proposed Rule
----------------------------------------------------------------------------------------------------------------
Examples of potentially
Category NAICS Codes SIC Codes regulated entities
----------------------------------------------------------------------------------------------------------------
State, Local, Tribal Government.... N/A.................... N/A................... States, Territories, and
authorized Tribes.
Federal Government................. N/A.................... N/A................... EPA.
----------------------------------------------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in this table could also be regulated. To determine whether
your facility, company, business organization, etc., is regulated by
this action, you should carefully examine the applicability criteria in
Sec. 130.20 of the proposed rule. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the FOR FURTHER INFORMATION CONTACT section.
A. Background
1. What Are the Current Statutory and Regulatory Requirements for
Identifying Waterbodies That Require TMDLs and Establishing TMDLs?
The CWA includes a number of programs aimed at restoring and
maintaining water quality. These include national technology-based
effluent limitation guidelines; national water quality criteria
guidance; State, Territorial and authorized Tribal water quality
standards; State, Territorial and authorized Tribal nonpoint source
management programs; funding provisions for municipal wastewater
treatment facilities; State, Territorial and authorized Tribal 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, but many waterbodies remain
impaired by one or more pollutants. For example, the National Water
Quality Inventory Report to Congress for 1996 indicates that of the 19
percent of the Nation's rivers and streams that have been assessed, 35
percent of these do not fully support water quality standards or uses
and 8 percent of these are threatened. Of the 72 percent of estuary
waters assessed, 38 percent are not fully supporting water quality
standards or uses and 4 percent are threatened. Of the 40 percent of
lakes, ponds, and reservoirs assessed (not including the Great Lakes),
39 percent are not fully supporting water quality standards or uses and
10 percent are threatened.
The goal of establishing TMDLs is to assure that water quality
standards are attained and maintained. Section 303(d) of the CWA
requires States, Territories and authorized Tribes to identify and
establish a priority ranking for waters
[[Page 46013]]
for which existing pollution controls are not stringent enough to
attain and maintain State, Territorial and authorized Tribal water
quality standards, establish TMDLs for those waters, and submit, from
time to time, the list of waters and TMDLs to EPA. Section 303(d)
requires EPA to review and approve or disapprove lists and TMDLs within
30 days of the time they are submitted. If EPA disapproves a list or a
TMDL, EPA must establish the list or TMDL for the State, Territory or
authorized Tribe.
EPA issued regulations governing identification of impaired waters
and establishment of TMDLs, at 40 CFR 130.7, in 1985 and revised them
in 1992. The current regulations provide that:
State, Territorial and authorized Tribal lists must
include those waters for which more stringent effluent limitations
or other pollution controls (e.g., best management practices)
required by local, State, or Federal authority are not stringent
enough to attain and maintain applicable water quality standards;
State, Territorial and authorized Tribal lists must be
submitted to EPA every two years, on April 1 of every even-numbered
year;
The priority ranking for listed waters must include an
identification of the pollutant or pollutants causing or expected to
cause the impairment and an identification of the waterbodies
targeted for TMDL development in the next two years;
States, Territories and authorized Tribes, in
developing lists, must assemble and evaluate all existing and
readily available water quality-related data and information;
States, Territories and authorized Tribes must submit,
with each list, the methodology used to develop the list and provide
EPA with a rationale for any decision not to use any existing and
readily available water quality-related data and information; and
TMDLs must be established at levels necessary to
implement applicable water quality standards with seasonal
variations and a margin of safety that takes into account any lack
of knowledge concerning the relationship between effluent
limitations and water quality.
Existing regulations define a TMDL as a quantitative assessment of
a water quality problem. The TMDL specifies the amount of a particular
pollutant that may be present in a waterbody, allocates allowable
pollutant loads among sources, and provides the basis for attaining or
maintaining water quality standards. TMDLs are established for
waterbody and pollutant combinations for waterbodies impaired by point
sources, nonpoint sources, or a combination of both point and nonpoint
sources.
Indian Tribes may be authorized to establish TMDLs for waterbodies
within their jurisdiction. To date, however, no Tribe has sought or
received CWA authority to establish TMDLs.
2. What Was the TMDL Federal Advisory Committee Act (FACA) Committee
and What Did It Do?
In November 1996, EPA established a Federal Advisory Committee Act
Committee (FACA Committee) to provide recommendations on improving
regulations and guidance for identifying impaired waterbodies and
establishing TMDLs. EPA charged the FACA Committee, a subgroup of the
National Advisory Council for Environmental Policy and Technology, with
recommending ways to improve the effectiveness and efficiency of State,
Territorial, Tribal and EPA efforts to identify waterbodies for which
TMDLs must be established and the way in which TMDLs are established.
EPA asked the FACA Committee to provide advice on new policy and
regulatory directions for TMDLs, including their role in watershed
protection, the identification of impaired and threatened waterbodies,
the pace of TMDL establishment, the science and tools needed to support
the establishment of TMDLs and the roles and responsibilities of
States, Territories, Tribes and EPA in establishing TMDLs.
The 20 FACA Committee members were a geographically balanced and
highly motivated group of individuals with diverse interests in,
knowledge of, and broad perspectives on TMDLs. Members included State
and 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. Members
came from both the public and private sectors, and each brought to the
committee 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 and Forest Service, and EPA's
Office of Water served as ex officio members of the FACA Committee.
The FACA Committee completed its deliberations in May 1998 and
submitted its final report to EPA on July 28, 1998. The FACA
Committee's final report includes over one hundred and sixty
recommendations for improving government efforts to identify impaired
waters and establish TMDLs.
B. Summary of the Proposed Rule
1. What Is the Purpose of Today's Proposed Rule?
The purpose of today's proposed rule is to clarify and strengthen
how TMDLs are established so they can more effectively contribute to
improving the nation's water quality. Through this proposal, EPA
intends to provide clear regulatory requirements that are consistent
with State, Territorial and authorized Tribal water quality programs,
in particular State, Territorial and authorized Tribal watershed
approaches to water quality management. Under these approaches, water
quality programs can be tailored to the characteristics, problems,
risks, and implementation tools available in individual watersheds,
with meaningful involvement stakeholders in the local community.
In developing the proposal, EPA has carefully examined the
recommendations of the FACA Committee, as well as recommendations
proposed to EPA by interested stakeholders, including State and local
governments, other Federal agencies, environmental advocacy
organizations, industry, agriculture, and citizens. This proposal also
reflects the lessons learned by EPA and the States since 1992, when
this regulation was last revised.
Pursuant to section 518(e) of the CWA, EPA is authorized to treat
an Indian Tribe in the same manner as a State for purposes of
establishing lists of impaired waters and TMDLs. Section 130.6(d) of
EPA's water quality planning and management regulations provides that a
federally-recognized Indian Tribe is eligible for treatment as a State
for purposes of that rule if (1) The Tribe has a governing body capable
of carrying out substantial governmental duties and powers; (2) the
functions to be exercised by the Tribe pertain to the management and
protection of water resources which are held by a Tribe, by the United
States in trust for Indians, by a member of a Tribe if such property is
subject to a trust restriction on alienation, or otherwise within the
borders of an Indian reservation; and (3) the Tribe is reasonably
expected to be capable of carrying out the functions to be exercised
consistent with the terms and purposes of the CWA and applicable
regulations.
Today, EPA is clarifying that it interprets Sec. 130.6(e) as
implementing section 518(e) for purposes of allowing Indian Tribes to
apply to EPA for authority to establish lists of impaired waters and
TMDLs pursuant to section 303(d) of the CWA. Accordingly, if a
[[Page 46014]]
federally-recognized Indian Tribe can demonstrate to EPA that it meets
the test contained in Sec. 130.6(d) for purposes on the TMDL program,
EPA will authorize it to establish lists of impaired waters and TMDLs
for reservation surface waters over which the Tribe has jurisdiction.
EPA interprets the term ``reservation'' in Sec. 130.6(d)(3) in
light of Supreme Court case law, including Oklahoma Tax Comm'n v.
Citizen Band Potawatomi Indian Tribe of Oklahoma, 111 S.Ct. 905, 910
(1991), in which the Supreme Court held that a ``reservation'' includes
trust lands that have been validly set apart for the use of a Tribe
even though the land has not been formally designated as a reservation.
See 56 FR 63881.
In applying to EPA for authority to establish lists of impaired
waters and TMDLs, Tribes are to follow the application requirements
contained in Sec. 131.8(b) of EPA's water quality standards
regulations. In reviewing such applications, EPA will follow the
procedures contained in Sec. 131.8(c). In the final rule, EPA is
considering revising language in Sec. 131.8(b) and (c) to clarify that
they apply to treating Tribes in the same manner as States for
Sec. 303(d) lists and TMDLs, as well as water quality standards. (See
revised Sec. 131.8(b) and (c) in docket.) EPA requests comments on this
approach.
Under today's proposed rule, in order to be treated in the same
manner as a State, an Indian Tribe would need adequate authority over
the waters for which it seeks to establish lists and TMDLs. The
jurisdiction of Indian Tribes generally extends ``over both their
members and their territory.'' United States v. Mazurie, 419 U.S. 544,
577 (1975). However, Indian reservations may include lands owned in fee
by nonmembers. ``Fee lands'' are privately owned by nonmembers and
title to the lands can be transferred without restrictions. The Supreme
Court, in Montana v. U.S., 450 U.S. 544, 565-66 (1981), noted that
tribes may have authority over nonmember activities on reservation fee
lands in certain circumstances, including when the nonmember conducts
``threatens or has some direct effect on the political integrity, the
economic security, or the health or welfare of the Indian tribes.''
EPA addressed the Montana test in the 1991 preamble to the Agency's
final rule regarding tribal water quality standards programs under the
CWA. In that 1991 preamble, in view of some judicial uncertainty at
that time regarding the degree of impacts necessary to satisfy the
Montana test, EPA established an ``operating rule'' that requires
tribes seeking eligibility to set water quality standards governing
activities of nonmembers on fee lands to show that the effects are
``serious and substantial.'' 56 FR 64878. EPA noted that ``[t]he choice
of an Agency operating rule containing this standard is taken solely as
a matter of prudence in light of judicial uncertainty and does not
reflect an Agency endorsement of this standard per sc.'' Since 1991,
however, the Supreme Court has reaffirmed Montana's impacts test
verbatim without addressing the need for ``serious'' or ``substantial''
impacts. E.g. Strate v. A-1 Contractors, 117 S.Ct 1404 (1997); South
Dakota v. Bourland, 508 U.S. 679 (1993). While not required to do so,
as a matter of policy EPA will continue to look to see whether serious
and substantial impacts exist when evaluating tribal authority under
the Montana test.
In Strate, 117 S.Ct. At 1414, the Supreme Court made clear that
Montana remains the controlling standard for evaluating tribal
authority over nonmember activities in fee lands. The Court emphasized
in Strate that the purpose of Montana's impacts test is to insure that
Tribes retain their powers of self-government. EPA believes that
protecting the public through environmental protection programs from
serious and substantial effects on health and welfare is a core
governmental function whose exercise is critical to self-government.
See 56 FR 64879.
Whether an Indian Tribe has jurisdiction over activities of
nonmembers on fee lands will be determined case-by-case, based on
factual findings. The determination as to whether the required effect
is present in a particular case depends on the circumstances. The
Agency believes, however, that the activities covered by the TMDL
program generally have the potential for direct impacts on human health
and welfare that are serious and substantial. See 56 FR 64878. EPA's
approach to evaluating tribal jurisdiction on fee lands was recently
upheld by the Ninth Circuit Court of Appeals in Montana v. EPA, 137 F
3d 1135 (9th Circuit), cert. Denied, 119 S.Ct. 275 (1998).
The process that the Agency will use for Indian Tribes seeking to
demonstrate their authority over nonmembers on the fee lands for the
TMDL program includes a submission of a statement under Sec. 131.8(b)
explaining the legal basis for the applicant Indian Tribe's authority.
The Indian Tribe must explicitly assert and demonstrate jurisdiction,
i.e., show that activities covered by the TMDL program conducted by
nonmembers on fee lands could lead to water quality impairments that
have impacts on the health, welfare, economic security or political
integrity of the Indian Tribe and its members that are serious and
substantial. However. EPA will also rely on its generalized findings
regarding the relationship of activities regulated under water quality
programs and impacts to Tribal health, welfare, economic security or
political integrity. See 56 FR at 64878 and 64879.
Under Sec. 131.8(c)(2)(ii), appropriate governmental entities
(i.e., States, Tribes and other Federal entities located contiguous to
the reservation of the Tribe that is applying for treatment in the same
manner as a State) will be provided notification of and an opportunity
to comment on the Indian Tribe's jurisdictional assertions prior to
EPA's action on the Indian Tribe's application. EPA will seek to make
its notification sufficiently prominent to inform local governmental
entities, industry and the general public, and will advise interested
parties to direct comments on tribal jurisdiction to appropriate
governmental entities.
The Agency recognizes that jurisdictional disputes between Indian
Tribes and States can be complex and difficult and that it may, in some
circumstances, be most effective to address such disputes by attempting
to work with the parties in a mediative fashion. However, EPA's
ultimate responsibility is protection of human health and the
environment. In view of the mobility of environmental problems, and the
interdependence of various jurisdictions, it is imperative that all
affected sovereigns work cooperatively for environmental protection.
2. What Are the Key Changes the Proposed Rule Makes to Existing
Regulatory Requirements?
Below is a summary of the key changes to the existing regulatory
requirements that are being proposed today:
Revised definitions of TMDL, wasteload allocation, and
load allocation;
Definitions of impaired waterbody, threatened
waterbody, pollution, pollutant, reasonable assurance and waterbody
that clarify EPA's existing interpretation of these terms;
A new requirement for a more comprehensive list and a
new format for the list;
A new requirement that States, Territories and
authorized Tribes establish and submit schedules for establishing
TMDLs for all waterbodies impaired or threatened by pollutants;
A new requirement that the listing methodologies
developed by States, Territories and authorized Tribes be more
[[Page 46015]]
specific, subject to public review, and submitted to EPA on January
31 of every [second], [fourth] or [fifth] year;
A possible change in the listing cycle so that States,
Territories and authorized Tribes submit lists to EPA on October 1
of every [second], [fourth] or [fifth] year beginning in the year
2000;
Clarification that TMDLs include 10 specific elements;
A new requirement for an implementation plan as a
required element of a TMDL; and
New public participation requirements.
Today's proposed rule language encompasses all of 40 CFR part 130
even though EPA is not proposing to revise most of the existing
sections in this Part. EPA is, however, proposing to reformat the part
to include subparts and to extensively renumber the sections in part
130, in addition to the substantive revisions discussed in detail
below. EPA is also proposing to delete Sec. 130.3, which sets out the
same definition of ``water quality standard'' that is found in the
water quality standards regulations at 40 CFR part 131 and, as a
result, is duplicative and unnecessary. Today's proposal also would
delete Sec. 130.10(d), which is obsolete and no longer relevant since
it provided for a one-time deadline of February 4, 1989, for State
submission of certain water quality information. In light of the extent
of these formatting and numbering changes, EPA is publishing all of 40
CFR part 130 to show how the changes proposed today relate to the
existing sections of the current regulation. The following table of
contents for part 130 identifies each of the sections in the proposed
rule and highlights the proposed changes.
40 CFR Part 130 as Revised and Reorganized by Today's Proposal
Subpart A: Summary, Purpose, and Definitions
130.0 Program summary and purpose (unchanged)
130.1 Applicability (unchanged)
130.2 Definitions (amended in part)
130.3 Deleted
Subpart B: Water Quality Monitoring and Reporting
130.10 Water quality monitoring (formerly Sec. 130.4, unchanged)
130.11 Water quality report (formerly Sec. 130.8; unchanged)
Subpart C: Identifying Impaired and Threatened Waterbodies and
Establishing Total Maximum Daily Loads (TMDLs) (formerly Sec. 130.7;
amended; see below)
130.20 Who must comply with subpart C of this rule?
130.21 What is the purpose of this subpart?
130.22 What data and information must you assemble to identify and
list impaired or threatened waterbodies?
130.23 How do you document your approach for considering and
evaluating all existing and readily available data and information
to develop your list and priority rankings?
130.24 When must your methodology be submitted to EPA?
130.25 What is the scope of your list of impaired or threatened
waterbodies?
130.26 How do you apply your water quality standards
antidegradation policy to the listing of impaired and threatened
waterbodies?
130.27 How must you format your list of impaired or threatened
waterbodies?
130.28 How do you prioritize the waterbodies on Part 1 of your
list?
130.29 When can you remove a waterbody from your list?
130.30 When must you submit your list of impaired or threatened
waterbodies and priority rankings to EPA and what will EPA do with
it?
130.31 What must your schedule for submitting TMDLs to EPA contain
and when must you submit it to EPA?
130.32 Must you establish TMDLs?
130.33 What are the minimum elements of a TMDL submitted to EPA?
130.34 How are TMDLs expressed?
130.35 What actions must EPA take on TMDLs that are submitted for
review?
130.36 Can EPA establish a TMDL if you fail to do so?
130.37 What public participation requirements apply to the list,
priority rankings, schedule, and TMDLs?
130.38 What is the effect of the proposed rule on transitional
TMDLs?
Subpart D: Water Quality Planning and Implementation
130.50 Continuing planning process (formerly Sec. 130.5; amended,
see below)
130.51 Water quality management plans (formerly Sec. 130.6;
amended, see below)
Subpart E: Miscellaneous Provisions
130.60 Designation and De-Designations (formerly Sec. 130.9;
unchanged)
130.61 State submittal to EPA (formerly Sec. 130.10; removed
section, otherwise unchanged)
130.62 Program management (formerly Sec. 130.11; unchanged)
130.63 Coordination with other programs (formerly Sec. 130.12;
unchanged)
130.64 Processing application for Indian Tribes (formerly
Sec. 130.15; unchanged)
130.65 Petitions to EPA to establish TMDLs (new section)
3. What Definitions Are Being Added or Revised by this Proposal?
Existing requirements. The existing regulations contain definitions
of ``TMDL,'' ``wasteload allocation,'' and ``load allocation.''
Proposed rule. Today's action proposes revisions to the definitions
of ``TMDL'', ``wasteload allocation,'' and ``load allocation'' that
clarify and add to the required elements of TMDLs and the ways in which
TMDLs can be expressed. Today's action also proposes adding definitions
for the terms ``pollution,'' ``pollutant,'' ``impaired waterbody,''
``threatened waterbody,'' ``thermal discharge,'' ``reasonable
assurance'' and ``waterbody.''
Today's proposal significantly revises the text of the regulatory
definition of ``TMDL.'' The proposed revisions are intended primarily
to define what a TMDL is and the elements it must contain. Instead of
describing a TMDL as the sum of wasteload allocations and load
allocations, as in the current regulations, EPA proposes to define a
TMDL as a written analysis of an impaired waterbody established to
ensure that water quality standards will be attained and maintained
throughout the waterbody in the event of reasonably foreseeable
increases in pollutant loads. The proposed revision to the definition
of ``TMDL'' also includes a statement describing the 10 basic elements
of a TMDL required for approval by EPA, as contained in proposed 40 CFR
130.33(b) and discussed in section 5.a. of this preamble.
EPA is proposing to revise the definition of a TMDL for a number of
reasons. Current regulatory requirements have engendered different
interpretations. States, Territories and authorized Tribes need greater
certainty in establishing TMDLs and submitting them to EPA for
approval. EPA requires a more precise definition to promote consistency
in reviewing and approving TMDLs nationally. Other stakeholders need a
clear understanding of what the minimum regulatory requirements are for
TMDLs.
EPA is also proposing to revise the definition of a TMDL to clarify
that TMDLs are established for pollutant(s) and that a TMDL sets the
amount of pollutant(s) that may be present in a waterbody and still
assure that the water quality standards are attained or maintained.
Although States, Territories and authorized Tribes have the flexibility
to develop a TMDL for a single pollutant in a listed waterbody and
develop TMDLs for other pollutants on that waterbody at a later date,
EPA encourages States, Territories and authorized Tribes to develop
TMDLs for all pollutants impairing a listed waterbody at the same time.
In addition, EPA is revising the definition to clarify the ways in
which TMDLs can be expressed to meet the requirements of the CWA.
In addition, EPA is proposing to include in the definition of
``TMDL'' a statement of the statutory requirement that a TMDL be
established with seasonal variations. EPA interprets this
[[Page 46016]]
statutory language as requiring that TMDLs be established to implement
water quality standards in any season. While there may be other ways a
TMDL can be established ``with'' seasonal variation, the proposed
interpretation is consistent with the statutory directive that TMDLs
``be established at a level necessary to implement the applicable water
quality standards with seasonal variation.'' The most straightforward
interpretation of this language is that Congress intended for TMDLs to
be established at levels that describe the maximum allowable loading in
different seasons of the year, to implement standards year-round. This
may require that, for some pollutants, different TMDLs are established
for different levels of instream flow, based on variations in flow over
the course of the year.
TMDLs may be established on a watershed basis. TMDLs established on
a watershed basis must, like all TMDLs, be established for each
pollutant identified as causing or expected to cause an exceedance of
water quality standards and assure that water quality standards are
attained and maintained throughout the watershed. Certain pollutants,
e.g. nutrients, might be best addressed by allocating pollutant loads
on a watershed, rather than on a segment-specific, basis. In such
cases, TMDLs established for a watershed would be more likely to result
in effective control measures than segment-by-segment TMDLs.
Finally, EPA proposes to amend the definition of ``TMDL'' to
clarify that TMDLs must be established to ensure that water quality
standards will be attained and maintained in the event of reasonably
foreseeable increases in pollutant loads. This proposed revision is
intended to address waters that are currently impaired or threatened
and are expected to experience increased pollutant discharges. Since
the CWA requires TMDLs to be established at levels ``necessary to
implement'' standards, States, Territories and authorized Tribes need
to address anticipated increases in pollutant loadings that could
result in (or exacerbate) the current failure to attain and maintain
water quality standards. While there may be situations where load
increases cannot reasonably be anticipated, generally it should be
possible to establish TMDLs in such a manner as to anticipate increases
in pollutant loadings over time. For this reason, EPA is proposing to
clarify the current definition of ``TMDL'' by explicitly stating that
TMDLs must assure attainment and maintenance of applicable standards in
the event of reasonably foreseeable load increases.
EPA is proposing clarifying revisions to the current definition of
``load allocation.'' These proposed revisions explicitly include
atmospheric deposition as a nonpoint source of pollutants, codifying
EPA's current interpretation. EPA's authority to require load
allocations for atmospheric deposition is discussed in greater detail
in section 4.b. of this preamble. Today's proposed Sec. 130.33(b)(6)
also clarifies that load allocations may, if possible, contain
allocations to categories, subcategories, or individual sources while
emphasizing EPA's intent to require establishment of TMDLs where
sufficient information is not available to allocate loads to individual
nonpoint sources.
EPA is proposing to allow some wasteload allocations to contain an
allocation to a single point source or to a group of point sources.
Current regulations require a wasteload allocation for each existing or
future point source. EPA is proposing at Sec. 130.33(b)(5) to allow
allocations to categories or subcategories of point sources that are
subject to a general permit (including storm water, combined sewer
overflows, abandoned mines, and combined animal feeding operations),
and to categories and subcategories of sources where the pollutant load
does not need to be reduced in order to meet water quality standards.
Wasteload allocations for individual point sources would still be
required for each industrial and municipal point source permitted under
CWA section 402. It is appropriate to allocate to the aggregate of
sources covered by a general permit since the number and identity of
sources discharging under a general permit generally will not be known.
Since the CWA does not contain the terms ``load allocation'' and
``wasteload allocation,'' EPA has discretion to interpret these terms,
created in the regulations to implement the TMDLs, in a reasonable
manner.
EPA is proposing to amend the current regulations by adding
definitions of the terms ``impaired waterbody'' and ``threatened
waterbody.'' The proposed definitions of these terms are derived from
the definitions in EPA's guidance (Guidelines for Preparation of the
Comprehensive State Water Quality Assessments (305(b) Reports and
Electronic Updates, EPA-841-B-002A, September 1997) on section 305(b)
reports. The addition of these definitions clarifies States',
Territories' and authorized Tribes' listing and TMDL establishment
obligations by clarifying the kinds of waterbodies that must be
included on section 303(d) lists and the kinds of waterbodies for which
TMDLs must be established. EPA's rationale for the types of waterbodies
for which TMDLs must be established is discussed in greater detail in
section 4.b. of this preamble.
EPA is also proposing a definition of the term ``reasonable
assurance.'' EPA proposes to define ``reasonable assurance'' in
Sec. 130.2(p) as a demonstration that wasteload allocations and/or load
allocations in a TMDL will be implemented. EPA proposes that each TMDL
contain reasonable assurance that allocations contained in TMDLs will
in fact be implemented to attain and maintain water quality standards.
EPA's incorporation of this term in Sec. 130.33(b)(10)(iii) dealing
with TMDL implementation plans emphasizes EPA's view that
implementation of the allocations in TMDLs is critical to the ultimate
attainment of standards in waterbodies across the country. The proposed
regulations provide that reasonable assurance for point sources is
demonstrated by procedures that ensure that enforceable NPDES permits
will be issued to implement applicable wasteload allocations for point
sources. For nonpoint sources, reasonable assurance means that nonpoint
source controls will be implemented to achieve applicable load
allocations. For nonpoint sources reasonable assurance would need to be
specific to the pollutant of concern, expeditiously implemented and
supported by reliable delivery mechanisms and adequate funding.
EPA also proposes to add to the regulations the CWA's definitions
of ``pollutant'' and ``pollution.'' This decision is explained in
greater detail in section 4.b. of this preamble. This amendment is
intended to clarify that the statutory definitions apply to these terms
as used in the TMDL regulations. Similarly, EPA is proposing a
definition of ``thermal discharge'' to clarify the meaning of that term
for the purposes of TMDLs..
EPA is proposing to clarify that the definition of pollutant
encompasses drinking water contaminants that are regulated under
section 1412 of the Safe Drinking Water Act (SDWA) and that may be
discharged to waters of the U.S. that are the source waters of one or
more public water systems. This clarification is consistent with both
the language and the intent of the CWA. First, drinking water
contaminants that meet the criteria of this clarification fall within
the meaning of one or more of the terms
[[Page 46017]]
used to define pollutant. Second, ``public water supplies'' is listed
under section 303(c)(2)(A) of the CWA as a potential beneficial use to
be protected by water quality standards.
To elaborate, all microbial contaminants that may be discharged to
waters of the US (e.g., bacteria, viruses and other organisms) fall
under the term ``biological materials''; chemical contaminants that may
be discharged to waters of the US (e.g., industrial solvents,
pesticides) fall under the term ``chemical wastes''; and all radio
nuclides that may be discharged to waters of the U.S. fall under the
term ``radioactive materials''. Drinking water contaminants regulated
in the future that meet this criteria will also fall under one or more
of these terms.
Under the SDWA, pollutants are referred to as ``contaminants'' and,
pursuant to section 1412, EPA is required to ``promulgate a national
primary drinking water regulation for a contaminant * * * if the
Administrator determines that: (i) The contaminant may have an adverse
effect on the health of persons; (ii) the contaminant is known to occur
or there is a substantial likelihood that the contaminant will occur in
public water systems with a frequency and at levels of public health
concern; and (iii) in the sole judgment of the Administrator,
regulation of such contaminant presents a meaningful opportunity for
health risk reduction for persons served by public water systems.''
Finally, EPA is proposing a definition of the term ``waterbody''
that codifies EPA's interpretation of the term for the purposes of
TMDLs. The proposed definition includes a broad range of waterbodies,
geographically defined so that members of the public can easily locate
waterbodies included on States', Territories' and authorized Tribes'
section 303(d) lists. Section 303(d) distinguishes between waterbodies
impaired by pollution and pollutants generally and waterbodies affected
by ``thermal discharges.'' For waterbodies impaired by pollution and
pollutants generally, listing and/or TMDL decisions are based on
whether the water is or is not attaining or maintaining water quality
standards.
Waterbodies affected by ``thermal discharges,'' are subject to
different listing criteria and requirements for establishing TMDLs.
Under section 303(d)(1)(B), each State shall identify those waterbodies
for which controls on thermal discharges under section 301 are not
stringent enough to assure ``protection and propagation of a balanced,
indigenous population of shellfish, fish and wildlife.'' Similarly,
under section 303(d)(1)(D), States shall estimate for such waterbodies
``the total maximum daily thermal load required to assure protection
and propagation of a balanced, indigenous population of shellfish, fish
and wildlife.''
This distinction between ``pollution'' and ``pollutants'' generally
and ``thermal discharges'' has its origins in section 316 of the CWA.
Section 316 provides that the ``balanced, indigenous population''
standard (``BIP'') may be applied to determine the thermal component of
an effluent limit for any point source subject to the provisions of
sections 301 or 306 in lieu of more stringent effluent limitations. The
drafters of section 316 believed that thermal discharges from point
sources should be treated in a different manner than other pollutants.
[CWA Leg. His. at 227-28]. Congress believed that steam-electric
generating plants were the major sources of thermal discharges subject
to CWA regulation. [CWA Leg. His. at 263]. It believed that thermal
discharge limits for such facilities should be set on a case-by-case
basis, taking into account the nature, physical characteristics, and
dissipative capabilities of the receiving water. [Id.].
This distinction was carried over into section 303(d). It is
important to note, however, that the more flexible ``BIP'' standard
only applies to listing and TMDL actions related to thermal discharges
from point sources. It does not apply to listing and TMDL decisions
related to heat excesses in waterbodies resulting from other causes,
such as solar radiation, channel and habitat modification and lack of
stream flow. Where heat build up is a result of those (and other non-
point source discharge) causes, decisions to list and establish TMDLs
related to heat must be based on the applicable water quality standard
for heat. In other words, whereas listing and TMDL decisions for
``thermal discharges'' from point sources are regulated under CWA
sections 303(d)(1)(B) and 303(d)(1)(D), such decisions for water bodies
impaired by heat from other causes are regulated under CWA sections
303(d)(1)(A) and 303(d)(1)(C).
This is a reasonable interpretation of the statute. Given the
express language of sections 303(d)(1)(B) and (D), it is clear that
Congress wanted lists and total maximum daily thermal loads to address
the problems presented by discharges of heat from point sources, i.e.,
thermal discharges, albeit using a different standard (``BIP'') than
for other pollutants covered by sections 303(d)(1)(A) and (C). Because
Congress included ``heat'' in the definition of ``pollutant,'' EPA also
reads section 303(d) as covering all forms of heat-impaired waterbodies
and not just those affected by thermal discharges. Congress's express
reference to ``thermal discharges'' was not intended to limit the
section's applicability to impairments caused by point sources.
Instead, Congress merely wanted to ensure that point source thermal
discharges were given the same treatment under section 303(d) as under
section 316. Where water quality standards for temperature are not
being attained due to other causes, e.g., sediment runoff, habitat
degradation, flow diversion, sections 303(d)(1)(A) and (C) would apply.
Comments sought. EPA solicits comment on any or all aspects of the
proposed revisions to the existing definitions and the addition of new
definitions.
4. What Are the Proposed Rule's Requirements for Identifying and
Listing Impaired or Threatened Waterbodies?
a. Assembling the Data and Documenting the Approach for Considering and
Evaluating Existing and Readily Available Data and Information
Existing requirements. Existing regulations require States,
Territories and authorized Tribes to assemble and evaluate ``all
existing and readily available water quality-related data and
information'' when developing their lists. Existing regulations specify
that ``all existing and readily available water quality-related data
and information'' includes, but is not limited to, data and information
about: waterbodies identified in: (1) The States', Territories' and
authorized Tribes' most recent approved section 303(d) list; (2)
States', Territories', and authorized Tribes' most recent CWA section
305(b) report as ``partially meeting'' or ``not meeting'' designated
uses or as ``threatened''; (3) section 319 nonpoint source assessments;
(4) drinking water source assessments under section 1453 of the Safe
Drinking Water Act; (5) dilution calculations or predictive models
which indicate nonattainment of water quality standards; and (6) data
and information reported by local, State, or Federal agencies, e.g.
National Water Quality Assessment, (NAWQA), National Stream Quality
Accounting Network (NASQAN), members of the public, or academic
institutions.
In addition, existing regulations require States, Territories and
authorized Tribes to submit to EPA a description of the methodology
used to develop the list, a description of the data and information
used to list
[[Page 46018]]
waterbodies, a rationale for any decision to not use any existing and
readily available data and information, and any other reasonable
information requested by the Regional Administrator, including ``good
cause'' for not including a waterbody or waterbodies on the list.
Proposed rule. EPA recognizes, as did the FACA Committee, that
well-designed monitoring programs are vital elements in States',
Territories', and authorized Tribes' efforts to characterize, identify,
and ensure the protection and restoration of impaired and threatened
waterbodies. Because monitoring is expensive and time-consuming,
however, it is generally the case that only a small percentage of each
States', Territories', and authorized Tribes' waterbodies are actually
being monitored to identify impairments or threats, and States,
Territories, and authorized Tribes must strive continually to expand
the scope of their monitoring programs by carefully focusing resources
to achieve the greatest positive influence on water quality.
In today's proposal, at Sec. 130.22, EPA is retaining the
requirement that States, Territories, and authorized Tribes assemble
and consider all existing and readily available data and information to
identify impairments and threats to impairment and develop their lists.
The sources of existing and readily available data and information
specified in the proposed regulation constitute the basic sources and
types of information States, Territories and authorized Tribes need to
consider in order to determine which waterbodies are impaired and
threatened. In addition, these sources of data and information are
required to be developed and collected by both the CWA and the SDWA and
are generally available to States, Territories, authorized Tribes and
stakeholders.
In developing today's proposal, EPA considered the proper role of
``monitored data'' and ``evaluated data and information.'' Monitored
data refers to direct measurements of water quality, including
sediment, bioassessments and some fish tissue analyses. Evaluated data
and/or information provides an indirect appraisal of water quality
through such sources as information on historical adjacent land uses,
aquatic and riparian health and habitat, location of sources, results
from predictive modeling using input variables and some surveys of fish
and wildlife. The FACA Committee recognized the differences in
available data and information. Although the committee preferred basing
listing decisions on monitored data, it also recognized the reality of
needing to use evaluated information. Today's proposal therefore
reflects the need for States, Territories, and authorized Tribes to
consider and evaluate both monitored and evaluated data and
information. EPA agrees with the FACA Committee's recommendation that
the best available data and information for each waterbody being
considered for listing should be used. It is appropriate to use both
monitored and evaluated data.
EPA is proposing at Sec. 130.22(b)(4) to include the results of
source water assessments conducted under section 1453 of the SDWA as
``existing and readily available data'' which States, Territories, and
authorized Tribes must consider in deciding whether to list a waterbody
as impaired or threatened. Under the Source Water Assessment Program
(section 1453, SDWA), States must ``delineate the boundaries of the
assessment areas from which one or more public water systems . . .
receive supplies of drinking water'' and, within each delineated area,
``identify the origins of contaminants'' for which safety standards
have been established to ``determine the susceptibility of the public
water systems to such contaminants.'' These delineated areas will
include one or more stream segments, or waterbodies, upstream of each
intake. The assessments will identify each pollutant (contaminant), and
the origins thereof, to which a public water system has some degree of
susceptibility.
A ``national primary drinking water regulation'' (NPDWR) is the
SDWA's term for a drinking water safety standard. Safety standards are
typically established as ``maximum contaminant levels'' (MCLs) and
expressed as concentrations e.g., milligrams per liter (mg/l). Safety
standards are sometimes established as ``action levels'', or a similar
term, but are also expressed as concentrations. Therefore, drinking
water safety standards provide reference points (a) Against which
States can compare water quality monitoring data, or (b) that States
can use to add or revise water quality criteria to support public water
supply use, in the absence of more stringent criteria that support more
sensitive ecological uses.
Source water assessments will need to incorporate data from
compliance monitoring and ambient water quality monitoring to support
use of the assessment results as a basis for listing a waterbody as
impaired or threatened. In some cases, this is easily accomplished
e.g., where compliance monitoring for chemical contaminants is required
at the intake or where compliance monitoring data is unaffected by
intervening treatment that is not designed to address the contaminant
at issue. In other cases, where intervening treatment is affecting the
monitoring results, it may be possible to estimate (back calculate) the
ambient water values from the compliance monitoring results.
If the listing is based on a designated use but the State has not
adopted a water quality criterion for the pollutant(s) of concern,
either in support of public water supply use or in support of a more
stringent use (e.g., aquatic habitat), the State should use a reference
point sufficiently below the drinking water safety standard (maximum
contaminant level or MCL) to prevent excursions above the safety
standard at the source water intake as its starting point for
developing a TMDL
Today's proposal, at Sec. 130.23, also retains the requirement that
States, Territories, and authorized Tribes submit to EPA a methodology
documenting their approach for considering and evaluating the data and
information used to develop the list and priority rankings. Today's
proposal requires States, Territories, and authorized Tribes to explain
to EPA and to the public how they will consider and evaluate chemical,
physical, biological and radiological data and information and describe
the data thresholds they will use to define waterbodies that are
impaired or threatened and are required to be listed.
EPA is also requiring that the methodology used to compile the
section 303(d) list must contain a description of the method and
factors used to assign a priority ranking to the waterbodies on a list,
i.e., how States, Territories and authorized Tribes consider the
severity of the impairment or threat of impairment and the uses to be
made of the waterbody and any other factors in assigning priority
rankings to listed waterbodies (see section 4.d, below). Moreover,
States, Territories and authorized Tribes must provide for public
notice and comment on a draft version of the methodology and submit the
final methodology, along with a summary of the public comments, to EPA
on January 31 of every listing year, which is eight months before the
October 1 list submission deadline. The proposed rule provides that EPA
will review the listing methodology and may provide comments to the
State, Territory or authorized Tribe. EPA recognizes that final
regulations may be promulgated after January 31, 2000. In this event,
EPA may decide in the final regulations to specify an alternative date,
most likely in year 2000, for States, Territories, and authorized
Tribes to
[[Page 46019]]
submit their methodology to EPA. EPA solicits comment on when to
require submittal of the listing methodology, in the event that the
regulations are promulgated after January 31, 2000.
These additional requirements are aimed at providing EPA and the
public with a comprehensive description of each State's, Territory's
and authorized Tribe's approach for listing waterbodies. It is critical
that the public have an opportunity to understand and participate in
the States', Territories' and authorized Tribes' listing process. These
requirements are also intended to help ensure that States, Territories
and authorized Tribes consistently use reliable and credible data and
information. While EPA does not expect every State, Territory and
authorized Tribe to use exactly the same information and have exactly
the same minimum data requirements for identifying and listing impaired
and threatened waterbodies, EPA does expect each State, Territory and
authorized Tribe to document and follow a deliberate, logical, and
consistent approach for making listing decisions.
EPA will consider the methodology when it reviews and approves or
disapproves the section 303(d) list. EPA's comments on the methodology
will address whether the methodology will result in the identification
of all impaired or threatened waterbodies. When EPA reviews the
State's, Territory's or authorized Tribe's list, EPA will review how
the State, Territory or authorized Tribe responded to comments raised
during EPA's review of the methodology. EPA may cite any unremedied
deficiencies it raised in comments to the State, Territory or
authorized Tribe as a factor in a decision to disapprove all or part of
the State's, Territory's or authorized Tribe's list.
Today's proposal therefore requires that States, Territories and
authorized Tribes document their methods for determining impairment and
develop appropriate decision rules based on whether they are
considering and evaluating physical/chemical, biological, radiological,
or aquatic and riparian habitat data and information. The methodology
may, for example, explain how many exceedances of a numeric chemical
criteria constitute an impairment or threat. Similarly, the methodology
may explain how information on riparian condition and streambank
stability might be used to determine whether a waterbody is impaired or
threatened.
Today's proposal recommends a closer relationship between the
section 303(d) and section 305(b) processes by requiring the section
303(d) listing methodology to describe how section 305(b) information
will be used to determine which waterbodies should be included on the
section 303(d) list. EPA recommends that States, Territories and
authorized Tribes use the section 305(b) guidelines for defining waters
that are impaired or threatened when developing this part of the
section 303(d) listing methodology. While these section 305(b) decision
rules represent a solid starting point for State, Territorial and
authorized Tribal section 303(d) listing methodologies, EPA encourages
State, Territorial and authorized Tribal listing methodologies for
section 303(d) to be more specific, if necessary, to determine which
waterbodies are impaired or threatened. EPA also encourages consistency
between water quality reported in the section 305(b) report and the
section 303(d) list of impaired and threatened waterbodies,
particularly in regard to waterbodies that are impaired for purposes of
section 303(d) and not supporting or partially supporting uses as
reported under section 305(b).
Today's proposal eliminates the existing regulatory provisions that
States, Territories and authorized Tribes provide EPA with a rationale
for any decision not to use any existing and readily available data and
information, and that, upon request by the EPA Regional Administrator,
States, Territories or authorized Tribes may demonstrate ``good cause''
for not including a waterbody or waterbodies on the list. These
provisions are redundant and unnecessary in light of the more specific
requirements in today's proposal for States, Territories and authorized
Tribes to provide EPA and the public with a more detailed methodology
for developing their lists.
EPA also agrees with the concern expressed by some States,
Territories, or authorized Tribes that listing decisions and TMDL
calculations be based on high-quality data that meets State procedures
for data quality and will, if necessary, stand up to legal challenge.
EPA intends for the methodology required by today's proposal to
support, not undermine, State procedures for assuring data quality and
use of appropriate analytic methods. Further, EPA intends that the
proposed requirement in Sec. 130.22 for States, Territories, and
authorized Tribes to consider all existing and readily available
information and document their approach for doing so be consistent with
the State, Territorial, or authorized Tribal data quality control
procedures and methodologies documented in accordance with proposed
Sec. 130.23. Accordingly, data which does not meet data requirements
established in the methodology required by today's proposal need not be
used for listing; likewise, data that does meet data requirements in
the methodology must be used. EPA requests comment on the requirements
in Sec. 130.22 and Sec. 130.23.
Today's proposal also recommends that, where the waterbody is
designated for drinking water use, the TMDL methodology should address
information developed for source water assessments under the SDWA. The
types of information developed for source water assessments that will
be important in determining impairment of waterbodies and needed
corrective actions are the information that States, Territories and
eligible Tribes use to delineate source water areas, identify the
origin of contaminants, and determine public water system
susceptibility.
Exceedance of a narrative criterion is a basis for placing a
waterbody on the section 303(d) list. EPA recognizes that to establish
a TMDL where a narrative criterion has been exceeded, it is necessary
to quantify how the narrative criterion should be interpreted for
specific pollutant loads. EPA's Water Quality Standards Regulation
Advance Notice of Proposed Rulemaking (ANPRM) describes current
requirements for States and authorized Tribes to identify the
procedures they intend to use to interpret and implement narrative
criteria as they pertain to point source discharges of toxics (63 FR
36742 at 36765, July 7, 1998). The ANPRM emphasizes the need for clear
procedures for interpreting and implementing narrative criteria and
requests comment on whether the current identification requirements
should be expanded to include interpretation of narratives as they
pertain to nonpoint sources and pollutants in addition to toxics (see
ANPRM at 36765, questions 6 and 7). EPA's current thinking is that such
interpretation and implementation procedures are necessary and, if
required, should be required by amending the water quality standards
regulation as contemplated in the ANPRM discussion cited here.
The methodology proposed today requires, at Sec. 130.23(d)(2), a
process for resolving disagreements with other jurisdictions. States,
Territories and authorized Tribes often have different water quality
standards for boundary waterbodies. Establishing TMDLs for boundary
waterbodies requires agreement on how to determine when a
[[Page 46020]]
waterbody is impaired or threatened and for what pollutant load the
TMDL must be established. Having dispute resolution mechanisms in place
will eliminate many potential disagreements and conflicts.
Finally, the proposal requires, at Sec. 130.23(e), that the
methodology specify exactly what conditions must exist before the
waterbody is removed from the list of impaired and threatened
waterbodies.
Other options considered. In developing today's proposal, EPA
considered several other options. One option considered was to retain
all existing regulatory requirements. EPA also considered developing,
and requiring all States, Territories and authorized Tribes to follow,
a single national listing methodology and criteria to develop their
lists. EPA also considered two default listing approaches. First, EPA
considered streamlining the listing process by requiring that, absent
data and information indicating attainment of water quality standards,
waterbodies must be included on State, Territorial and Tribal lists.
Alternatively, EPA considered streamlining the listing process by
requiring that waterbodies not be included on State, Territorial and
authorized Tribal lists unless data and information demonstrated non-
attainment of water quality standards.
Comments sought. EPA seeks comments on whether the TMDL regulations
should retain the requirement that States, Territories and authorized
Tribal lists consider and evaluate existing and readily available data
and information in developing their lists of impaired and threatened
waterbodies. EPA would also like comments on whether the regulation
should more specifically define national minimum criteria or thresholds
that define waterbodies that are impaired or threatened (e.g., existing
criteria used for development of 305(b) reports). EPA is also seeking
comment on the proposal to require States to provide more details on
their listing methodologies and eliminate the current provision that,
upon request by the EPA Regional Administrator, States, Territories and
authorized Tribes may demonstrate ``good cause'' for not including a
waterbody or waterbodies on the list. EPA solicits comments on any
aspects of the proposal, including the options considered.
b. Scope of the list
Existing requirements. Existing regulations (40 CFR 130.7(b)(1))
require that State, Territorial and authorized Tribal lists include
waterbodies for which pollution control requirements required by local,
State, or Federal authority, including technology-based or more
stringent point source effluent limitations or nonpoint source best
management practices, are not stringent enough to implement water
quality standards. In addition, existing regulations require States,
Territories and authorized Tribes to identify the pollutants causing or
expected to cause violations of water quality standards. EPA guidance
on the scope of the list has been incomplete. Successive guidance
documents, starting with the guidance issued in April 1991 (Guidance
for Water Quality-based Decisions: The TMDL Process, EPA 440/4-91-001,
April 1991), did not specifically address whether the definition of
pollution contained in section 502(19) (``the man made or man-induced
alteration of the chemical, physical biological or radiological
integrity of water''), or the definition of pollutant in section 502(6)
(``the term pollutant means dredged spoil, solid waste, incinerator
residue, sewage, garbage, sewage sludge, munitions, chemical wastes,
biological materials, radioactive materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirt and industrial, municipal and
agricultural waste discharged into water * * *'') of the CWA, was the
proper basis of determining impairment and listing waterbodies on the
section 303(d) list. The result was that some States, Territories and
authorized Tribes used the broader definition of pollution while others
used the narrower definition of pollutant to identify and list impaired
waterbodies. EPA approved lists which identified impaired waterbodies
on the basis of both definitions. In August, 1997 EPA issued guidance
(New Policies for Establishing and Implementing Total Maximum Daily
Loads, Robert Perciasepe, Assistant Administrator for Water, August 8,
1997), to clarify the listing requirements for the lists due in April,
1998. The best reading of this guidance and the National Clarifying
Guidance for 1998 State and Territory Section 303(d) Listing Decisions,
Robert H. Wayland III, Director, Office of Wetlands, Oceans and
Watersheds, August 27, 1998) issued for the lists due in April, 1998,
is that waterbodies are required to be listed and scheduled for
establishment of TMDLs only if a pollutant was identified as the source
of the impairment and that TMDLs are required only where the impairment
or threat is directly attributable to a pollutant, such as nitrogen,
copper or excessive sediment. Proposed rule. Today's proposal at
Sec. 130.25 clarifies that States, Territories and authorized Tribes
must list waterbodies impaired or threatened by point sources only, a
combination of point and nonpoint sources, and nonpoint sources only,
including atmospheric deposition. The proposal also clarifies that
waterbodies must be listed regardless of whether the impairment or
threat is caused by individual pollutants, multiple pollutants or
pollution from any source, including atmospheric deposition.
Listing Requirement: Point/Nonpoint Sources. Although some have
argued to the contrary, section 303(d) provides ample authority to list
waterbodies impaired by nonpoint sources of pollution and establish
TMDLs for waterbodies impaired by nonpoint sources of pollutants.
Looking first at the words of section 303(d), there is no express
exclusion of nonpoint source impacted waterbodies from the statute's
requirements. Section 303(d)(1)(A) requires identification of ``those
waterbodies * * * for which effluent limitations required by section
[301(b)(1) (A) and (B)] * * * are not stringent enough to implement any
water quality standard. * * *'' Nowhere does the section say that
nonpoint source impacted waterbodies need not be listed. While it is
true that the effluent limitations required by section 301 apply only
to point sources, this fact does not necessarily restrict the scope of
section 303(d) to point source-only waterbodies.
In general, there are three categories of waterbodies that a State,
Territory or authorized Tribe needs to consider for inclusion on its
section 303(d) list. First, there are waterbodies impacted solely as a
result of point sources. Second, there are waterbodies impacted by both
point and nonpoint sources (``blended waterbodies''). Third, there are
waterbodies impacted only by nonpoint sources. It is reasonable to read
the language of section 303(d)(1)(A) to encompass all three categories
of waterbodies.
Waterbodies in the first two categories (point source-only impacts
and blended waterbodies) satisfy the section 303(d) listing criteria if
those waterbodies do not meet standards (or are threatened) despite the
existence of section 301 effluent limits on those waterbodies' point
sources. Because those waterbodies do not meet standards (or are
threatened), and because they have point source discharges feeding into
them, it necessarily follows that existing section 301 limitations on
those dischargers (if any) are not stringent enough to implement
applicable water quality standards.
[[Page 46021]]
Waterbodies in the third category (i.e., those without point source
dischargers on them) can also meet section 303(d)(1)(A)'s listing
criteria. The first step would be a determination that such waterbodies
are not meeting standards. If such a determination is made, it follows
that such waterbodies must be listed. By definition such waterbodies
have no point source dischargers on them, and, therefore, section 301-
required effluent limits can never be stringent enough to implement
applicable water quality standards. Therefore, such waterbodies meet
the statutory criteria for listing found in section 303(d)(1)(A).
Accordingly, it is reasonable for EPA to read the listing requirement
language of section 303(d)(1)(A) as extending to nonpoint source-only
impacted waterbodies.
The same is true of section 303(d)(1)(C) dealing with TMDLs. That
section provides that each State shall establish for the waterbodies
identified on a State's list TMDLs ``for those pollutants which the
Administrator identifies under section [304] * * * as suitable for such
calculation.'' Section 304(a)(2)(D) required EPA to publish ``for the
purposes of section [303] * * * the identification of pollutants
suitable for maximum daily load measurement correlated with the
achievement of water quality objectives.'' (Emphasis added). EPA
identified such pollutants in December 1978. At that time it said
``[a]ll pollutants, under the proper technical conditions, are suitable
for the calculation of total maximum loads''. 43 FR 60665 (Dec. 28,
1978).
As with section 303(d)(1)(A), there is no express exclusion of
nonpoint source waterbodies from the TMDL requirements of section
303(d)(1)(C). Assuming that section 303(d)(1)(A) lists cover nonpoint
source waterbodies, TMDLs must also be established for pollutants in
those waterbodies because--by its very terms--the reach of section
303(d)(1)(C) is coextensive with that of 303(d)(1)(A) (``shall
establish for the waterbodies identified in paragraph (1)(A)'').
EPA's belief that section 303(d) applies to nonpoint sources is
also consistent with the Clean Water Act's definition of pollutant. An
examination of the Act ``as a whole'' supports an interpretation that
Congress did not intend to limit the term ``pollutant'' to point
sources. The relevant provisions of section 502(6) define the term
``pollutant'' as follows:
The term pollutant means dredged spoil, solid waste, incinerator
residue, sewage, garbage, sewage sludge, munitions, chemical wastes,
biological materials, radioactive materials, heat, wrecked or
discarded equipment, rock, sand, cellar dirt and industrial,
municipal, and agricultural waste discharged into water.
Section 319, a section that exclusively addresses nonpoint sources,
provides clear evidence that Congress did not intend to limit the use
of the term ``pollutant'' to point sources. The very first element of a
state's section 319 plan is an ``identification of the best management
practices and measures which will be undertaken to reduce pollutant
loadings resulting from each category, subcategory, or particular
nonpoint source. * * *'' section 319(b)(2)(A)(emphasis added). In
addition, every year each State must report to EPA any ``reductions in
nonpoint source pollutant loading and improvements in water quality. *
* *'' section 319(h)(11)(emphasis added). Finally, in its report to
Congress, EPA must also identify ``the progress made in reducing
pollutant loads and improving water quality * * *'' as a result of
nonpoint source focused activities carried out under section 319.
section 319(m)(2)(D) (emphasis added).
In drafting section 319, it is clear that Congress understood that
nonpoint sources could cause pollutant loadings to waterbodies. Indeed,
it asked the States to identify measures to reduce those nonpoint
pollutant loadings and required annual reports of any reductions. In
the face of these directives, it is not reasonable to think that
Congress somehow understood the section 502 definition of ``pollutant''
to apply narrowly to only point sources.
Other sections of the CWA also indicate that Congress felt quite
comfortable with the idea that ``pollutants'' can come from nonpoint
sources. See Section 320(b)(3) (estuary management conference shall
``develop the relationship between the inplace loads and point and
nonpoint loadings of pollutants to the estuarine zone * * *'')
(emphasis added); section 105(d)(1)(EPA shall develop ``waste
management methods applicable to point and nonpoint sources of
pollutants to eliminate the discharge of pollutants, including, but not
limited to, elimination of runoff of pollutants and the effects of
pollutants from inplace and accumulated sources'') (emphasis added);
section 107(a) (in context of mine remediation projects, linking
``acid'' and ``sediment'' impacts to ``other pollutants'' without
specifying that they must originate from point sources) (emphasis
added); section 117(a)(4) (Chesapeake Bay Office shall determine
``impact of pollutant loadings of nutrients, chlorine, acid
precipitation, dissolved oxygen, and toxic pollutants'' on Bay without
specifying that such pollutants must originate from point sources)
(emphasis added); section 119(c)(2)(F) (Long Island Sound Office shall
study atmospheric deposition of acidic and other pollutants into Long
Island Sound'' without specifying that such pollutants must originate
from point sources) (emphasis added).
Pollutant/Pollution. Today's proposed rule requires States,
Territories and authorized Tribes to list all waterbodies impaired or
threatened by pollutants, as defined in 40 CFR 130.2(d), and pollution,
as defined in 40 CFR 130.2(c). Section 303(d)(1)(A) requires that
States, Territories and authorized Tribes identify all waterbodies for
which certain specified effluent limits are not stringent enough to
implement water quality standards. The focus of the section is on
whether or not the water is meeting standards following application of
effluent limits. There is no indication that, to be listed, the water
must be impaired by a pollutant as opposed to some other form of
pollution. Indeed, the section expressly states that, when assigning a
priority ranking to listed waterbodies, the State, Territory or
authorized Tribe must account for the severity of the waterbody's
``pollution.'' EPA interprets this to mean that a waterbody can be
listed if it is impaired or threatened by either pollution or a
pollutant.
EPA's interpretation is consistent with the broad goal articulated
in section 101(a) of the CWA ``to restore and maintain the chemical,
physical, and biological integrity of the nation's waterbodies.'' This
consistency is evidenced by the fact that the above-stated goal is
mirrored in the Act's definition of ``pollution'' in section 502(19),
which is incorporated into the regulations at 40 CFR 130.2(c): ``the
man-made or man-induced alteration of the chemical, physical,
biological, and radiological integrity of water.'' Accordingly, EPA
interprets the statute to allow it to require that waterbodies be
listed when any such alteration of their chemical, physical,
biological, and radiological integrity causes them to be impaired or
threatened. Such alteration can be caused by ``pollutants,'' as that
term is defined in section 502(6) of the CWA, or any broader causes of
impairment from pollution, such as low flow or degraded aquatic or
riparian habitat.
Although the FACA Committee was not able to reach consensus on this
issue, the committee noted on page 5 of its report that the TMDLs
``establish the CWA's primary mechanism for addressing water quality
impairments'' and, of all CWA provisions, only the
[[Page 46022]]
TMDL provisions ``focus broadly on waterbodies that do not meet water
quality standards, including beneficial uses.'' The FACA Committee also
recognized that ``all stakeholders, including the general public, have
a right to know about the health of their waterbodies and, especially,
about waterbodies that are impaired and require corrective action.'' It
is appropriate to have the section 303(d) list serve as a comprehensive
accounting of waterbodies impaired or threatened by pollution and
pollutants.
While EPA interprets section 303(d) to require identification of
all waters not meeting water quality standards, whether caused by
pollutants or pollution, EPA interprets section 303(d) to require that
TMDLs only be established where a waterbody is impaired or threatened
by a ``pollutant''. (See 130.32(a)). The term pollutant is defined in
section 502(6) of the CWA and in the proposed 40 CFR 130.2(d) as
follows:
``The term pollutant means dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt and
industrial, municipal, and agricultural waste discharged into
water.'' [Omitted here are certain statutory exclusions.]
Section 303(d)(1)(C) expressly provides that, for listed
waterbodies, States shall establish TMDLs ``for those pollutants which
EPA has identified as suitable for such calculation''. Section
304(a)(2)(D) required EPA to publish ``for the purposes of section
[303] * * * the identification of pollutants suitable for maximum daily
load measurement correlated with the achievement of water quality
objectives.'' EPA identified such pollutants in December 1978. At that
time, EPA said that ``[a]ll pollutants, under the proper technical
conditions, are suitable for the calculation of total maximum loads''.
43 FR 60665 (Dec. 28, 1978). The clear reference to ``pollutants'' in
section 303(d)(1)(C), as well as in sections 303(d)(3) and
304(a)(2)(D), supports the conclusion that EPA is authorized to require
that TMDLs be established only for pollutants as defined in section
502(6), and not for pollution.
EPA acknowledges an argument could be made that, while Congress was
not as specific about its use of the word ``pollutant'' in section
303(d)(1)(A) dealing with listing as it was in section 303(d)(1)(C)
dealing with TMDLs, the scope of a State's list should be the same as
its obligation to do TMDLs. By that logic, only waterbodies impaired or
threatened by pollutants would be included on a State's list. EPA
disagrees with this position, not only because it believes its own
interpretation of section 303(d) is more reasonable, but also because
it sees great value in listing waterbodies impaired or threatened by
both pollutants and pollution.
Threatened Waters. Today's proposal at Sec. 130.25 retains the
existing regulatory requirement that States, Territories and authorized
Tribes list impaired and threatened waterbodies. To further clarify the
scope of this requirement, EPA is also proposing at Sec. 130.2(n) to
define a threatened waterbody as one that currently meets water quality
standards, but for which adverse declining trends indicate that
standards will be exceeded by the next listing cycle.
The FACA Committee spent considerable time addressing this issue,
both in terms of whether threatened waterbodies should be listed and,
if so, how to define ``threatened waterbodies.'' They did not reach
consensus on whether the TMDL regulations should require States to list
threatened waterbodies. The FACA Committee recommended that
``threatened waterbodies be put on a discrete list for focused
attention, with the goal of keeping them from becoming impaired.'' The
Committee did not recommend that TMDLs be required for threatened
waterbodies. The Committee did recommend that a watershed-based
loadings analysis be performed for threatened waterbodies as soon as
possible, consistent with the State's priority list, but at a minimum,
before new or modified permits that allow increased discharges to a
threatened waterbody or other actions that would contribute to
increased pollution to a threatened waterbody over which the State has
approval authority, are issued. The loadings analysis would not
necessarily include all of the components of a TMDL for impaired
waterbodies, but would have to provide for restoration so that the
waterbody is no longer threatened.
EPA interprets section 303(d)(1)(A) to provide authority for EPA to
require that states list threatened, as well as impaired, waterbodies.
Pursuant to that section, each state must identify those waterbodies
for which effluent limitations required by section 301(b)(1)(A) and (B)
``are not stringent enough to implement any water quality standard
applicable to such waterbodies.'' In the case of ``threatened
waterbodies'', data showing a declining trend in water quality may
indicate that, although the waterbody currently attains water quality
standards, it is not likely to do so by the time of the next listing
cycle. That being the case, the State may determine that currently
applicable effluent limitations are not stringent enough to implement
water quality standards. If they were stringent enough, there would not
be a declining water quality trend foreshadowing nonattainment before
the next listing cycle. Rather than ignore such declining water quality
data, the CWA gives EPA the authority to require that threatened waters
be listed.
EPA's decision to propose that the list include threatened
waterbodies is consistent with one of the CWA's fundamental goals--to
protect water quality from deterioration. In addition, the inclusion of
threatened waterbodies on State, Territorial and authorized Tribal
lists reflects EPA's view that it is more desirable, both
environmentally and economically, to protect waterbodies from possible
impairment than to wait until they are impaired and then need to be
restored. Through today's proposed comprehensive listing process,
States, Territories and authorized Tribes can become aware of the
threatened status of a particular waterbody and then initiate actions
to prevent the waterbody from becoming impaired. EPA is specifying,
consistent with the FACA recommendations, a definition of threatened
waterbodies as likely to exceed water quality standards within the next
two years when the determination that a waterbody is threatened is
based on data that show a significant declining trend or knowledge of
specific changes that would adversely impact water quality. In
determining whether to list threatened waterbodies, states should
consider information on known sources that have either recently been
added or removed or are expected to be added or removed in order to
determine if an apparent declining trend is likely to continue, or if a
waterbody is likely to be impaired by the next listing cycle despite
the absence of a trend.
Atmospheric Deposition. The FACA Committee was not able to reach
consensus on how the TMDLs should address waterbodies impaired or
threatened by atmospheric deposition. Consistent with EPA's view that
the section 303(d) listing requirement applies to all sources of
impairment and threat, today's proposal at Sec. 130.25(b)(2) codifies
existing EPA policy that States must list waterbodies impaired or
threatened by atmospheric deposition. EPA recognizes that data,
analytical approaches and models to establish TMDLs for pollutants
originating from air deposition may not be immediately available,
especially for pollutants subject to long range transport in the
[[Page 46023]]
atmosphere. EPA recommends that where additional time is needed to
develop data, analysis, or models for air deposition of pollutants
significantly contributing to a water quality impairment, States,
Territories and authorized Tribes assign these waterbodies a low
priority for establishment of TMDLs.
Relationship to Antidegradation Requirements in Water Quality
Standards. Today's proposal (Sec. 130.26) also clarifies how State,
Territorial and authorized Tribal antidegradation policies affect the
identification and listing of impaired and threatened waterbodies under
section 303(d). Antidegradation policies and associated implementation
procedures are an essential part of State, Territorial and authorized
Tribal water quality standards programs and are required under 40 CFR
131. Antidegradation policies help ensure that water quality necessary
to support existing uses (Tier 1) and water quality which is better
than needed to support protection and propagation of fish, shellfish
and wildlife and recreation in and on the water (Tier 2) is maintained
unless through a public process, a decision has been made to allow some
decline in water quality. Antidegradation policies also identify and
protect waterbodies of exceptional recreational and ecological
significance. (Tier 3)
The purpose of section 303(d) is to identify impaired and
threatened waterbodies while the purpose of antidegradation policies is
to prevent deterioration of existing levels of good water quality.
There is a relationship, however, between section 303(d) listing
requirements and antidegradation policies.
Tier 3 waterbodies are waterbodies of exceptional recreational or
ecological significance. Generally, when a State, Territory or
authorized Tribe has identified waterbodies as Tier 3, no decline in
water quality is allowed. Today's proposal requires that decline in
water quality for Tier 3 waterbodies represents an impairment for the
purpose of section 303(d). These waterbodies must be identified and
listed.
Tier 2 waterbodies are waterbodies for which existing water quality
is better than necessary to support propagation of fish, shellfish,
wildlife and recreation. Since existing water quality is better than
required, these waterbodies do not need to be listed as impaired under
section 303(d). Any decline in existing water quality is not authorized
unless an antidegradation analysis is completed as required in 40 CFR
131. Tier 2 waterbodies may, however, be threatened and must be listed
when adverse trend data and information indicate that a designated use
will not be maintained by the time of the next listing cycle.
All waterbodies are subject to Tier 1 protection. Generally, Tier 1
waterbodies do not exceed section 101(a)(2) goals or do not have
additional assimilative capacity to receive additional amounts of a
pollutant without exceeding the existing use. Tier 1 waterbodies are
impaired and must be listed if the designated use is not being
attained. In some cases, Tier 1 waterbodies may be listed if existing
uses have been identified pursuant to 40 CFR 131.3. An existing use is
a use that has actually occurred since November 28, 1975 (when the
water quality standards regulation was published) or where water
quality is suitable to allow such a use to occur. States, Territories
and authorized Tribes must incorporate existing uses into their
designated uses pursuant to 40 CFR 131.10(i). The water quality
standards regulation provides, however, that a demonstration of an
existing use different than a designated use may be made to the State,
Territory or authorized Tribe. In the case that such a demonstration is
made by a member of the public, a waterbody must be listed if the
existing use is more protective than the designated use. EPA expects
that most Tier 1 waterbodies identified as impaired and listed on the
section 303(d) list will be listed on the basis of designated uses.
Options considered. In developing today's proposal, EPA considered
other options for defining the scope of the list. EPA considered
whether to limit the list to impaired waterbodies and not require
States, Territories and authorized Tribes to also list threatened
waterbodies. EPA recognized that this option might allow States,
Territories and authorized Tribes to focus the limited resources for
TMDLs more effectively on addressing existing impairments. EPA did not
propose this option because EPA believes it is inconsistent with the
goals of the CWA and a list that serves as a comprehensive public
accounting of impaired and threatened waterbodies. EPA also considered
whether to allow States, Territories and authorized Tribes not to list
waterbodies impaired or threatened by nonpoint sources only, as well as
waterbodies impaired or threatened by atmospheric deposition. EPA did
not propose these options because they are inconsistent with EPA's
interpretation of section 303(d) and the goals of the CWA. Finally,
when deciding on the proper scope of the list, EPA considered whether
to require States, Territories and authorized Tribes to establish TMDLs
for all waterbodies impaired or threatened by either pollutants or
pollution. Based on EPA's interpretation that section 303(d) requires
TMDLs to be established only where a waterbody is impaired or
threatened by pollutants, today's action does not propose that TMDLs be
established for waterbodies impaired or threatened by pollution.
Comments sought. EPA solicits comments on any or all aspects of the
proposal, including options considered. EPA solicits comments on the
proposed requirement that States, Territories and authorized Tribes
must list waterbodies impaired or threatened by pollution and by
pollutants. EPA also seeks comment on today's proposal to retain the
existing regulatory requirement to list threatened bodies. In addition,
EPA seeks comment on today's proposal to codify existing EPA guidance
to require States, Territories and authorized Tribes to list
waterbodies impaired or threatened by an unknown pollutant and by all
sources, including nonpoint sources only and atmospheric deposition.
EPA seeks comment on today's clarification that TMDLs must be
established only for waterbodies impaired or threatened by pollutants.
Finally, EPA seeks comments on the listing requirements for impaired
and threatened waterbodies stemming from State, Territorial, and
authorized Tribes' antidegradation policies.
c. Required Components of the List
Existing requirements. The existing regulations (at 40 CFR
130.7(b)) require that the list developed under section 303(d) of the
CWA consist of ``water quality-limited segments still requiring
TMDLs,'' but recognize that certain waterbodies, while impaired or
threatened, do not require TMDLs and therefore need not be included on
the list. The existing regulations (at 40 CFR 130.7(b)(1)) identify
such waterbodies as those that are expected to attain or are already
attaining water quality standards following the application of best
practicable control technology for point sources and secondary
treatment for publicly owned treatment works, more stringent effluent
limitations required by either Federal, State or local authorities, or
other required pollution controls (such as best management practices).
Existing regulations do not address the question of when States,
Territories and authorized Tribes can remove previously listed
waterbodies from their lists. Current guidance (Guidance for 1994
Section 303(d) Lists, Geoffrey H. Grubbs, Director, Assessment and
Watershed Protection Division,
[[Page 46024]]
November 26, 1993 and National Clarifying Guidance for 1998 State and
Territory Section 303(d) Listing Decisions, Robert H. Wayland III,
Director, Office of Wetlands, Oceans and Watersheds, August 27, 1997)
addresses the issue by identifying two circumstances that would justify
removing previously listed waterbodies. These circumstances are: (1) if
water quality standards are being attained or are expected to be
attained within two years, or (2) if, upon re-examination, the original
basis for listing the waterbodies is determined to be inaccurate. In
addition, current guidance (Guidance for 1994 Section 303(d) Lists,
Geoffrey H. Grubbs, Director, Assessment and Watershed Protection
Division, November 26, 1993) gives States, Territories and authorized
Tribes the option of removing previously listed waterbodies after EPA
approves a State-established TMDL.
Proposed rule. Today's proposal (at 40 CFR 130.27) eliminates the
term ``water quality-limited segments still requiring TMDLs'' from the
regulations and broadens the scope of the list. Today's proposal
requires States, Territories and authorized Tribes to list all impaired
or threatened waterbodies, regardless of whether the waterbody is
expected to attain water quality standards following the application of
technology-based controls required by section 301 and 306 of the CWA,
more stringent effluent limitations, or other required pollution
controls. As already discussed, this includes waterbodies impaired or
threatened by individual pollutants, multiple pollutants and pollution
from all sources, waterbodies impaired or threatened by unknown
pollutants or pollution and waterbodies impaired or threatened by
atmospheric deposition. The proposal also clarifies that States,
Territories and authorized Tribes must list waterbodies impaired or
threatened by point sources, a combination of point and nonpoint
sources only.
Today's proposal at Sec. 130.27 establishes a specific format for
States, Territories, and authorized Tribes follow which organizes the
types of waterbodies included on the list and clearly identifies which
waterbodies require the establishment of TMDLs. The proposed rule
requires that State, Territorial and authorized Tribal lists consist of
four parts:
Part 1--Waterbodies impaired or threatened by one or
more pollutants or unknown cause as defined by 40 CFR 130.2(d). A
TMDL is required for waterbodies on this part of the list.
Part 2--Waterbodies impaired or threatened by pollution
as defined by 40 CFR 130.2(c) but not impaired by one or more
pollutants. A TMDL is not required for waterbodies on this part of
the list.
Part 3--Waterbodies for which EPA has approved or
established a TMDL and water quality standards have not yet been
attained.
Part 4--Waterbodies that are impaired, for which
implementation of best practicable control technology for point
sources and secondary treatment for publicly owned treatment works
or controls enforceable by State, Territorial, authorized Tribal or
Federal law or regulation are expected to result in attainment of
water quality standards by the next listing cycle. A TMDL is not
required for waterbodies on this part of the list. If a waterbody on
Part 4 does not attain water quality standards by the time the next
list is due to EPA, it must be included on Part 1 of the list.
Today's proposal is meant to ensure that all impaired and
threatened waterbodies are identified and placed on the list. EPA does
not expect States, Territories, and authorized Tribes to list
waterbodies for which there is no existing and readily available data
and information that indicates the existence of an impairment or
threat. EPA does expect, however, the State, Territory, or authorized
Tribe to list impaired or threatened waterbodies if such data
demonstrates impairment or threat and believes a pollutant or pollution
is the cause of the impairment or threat. If the State, Territory, or
authorized Tribe believes a pollutant is the cause of the impairment or
threat, but does not know the specific identity of the pollutant, the
waterbody must be included on Part 1 of the list and scheduled for the
establishment of a TMDL. EPA expects that the pollutant causing the
impairment will be identified as part of establishing the TMDL. EPA
anticipates, in some cases, that new and additional data and
information may need to be generated to identify the cause of the
impairment. If the cause of the impairment or threat is identified as
pollution, no TMDL is required and the waterbody should be placed on
Part 2 of the list.
This requirement to list where the exact pollutant is unknown is
especially important with regard to waterbodies identified as impaired
or threatened on the basis of biological data or screening methods.
Unlike impairments or threats attributed to physical or chemical data
and information, in which the pollutant or pollution is intrinsically
known or evident, impairments or threats identified by the use of
biological data or screening methods may not be as easily traced back
to the underlying cause. A chemical pollutant, for example, that
exceeds in-stream criteria is generally identifiable. The pollutant or
pollution causing biological impairment, on the other hand, may not be
readily apparent. A bioassessment of a stream may indicate unhealthy
aquatic populations which fail to attain or maintain the designated
use. The bioassessment, however, generally does not indicate the
pollutant causing the impairment. EPA stresses that the first step in
establishing a TMDL for these kinds of impairments is identifying the
cause of the impairment and the pollutant for which the TMDL must be
established. Requiring waterbodies which are impaired or threatened but
for which the cause of the impairment or threat is unknown to be listed
on part 1 of the list will provide an incentive for States, Territories
and authorized Tribes to expeditiously identify the pollutant causing
the impairment or threat at the time when that waterbody is placed on
the list. If the cause of the impairment is determined to be pollution,
no TMDL is required and the waterbody should be placed on part 2 of the
list. This approach is consistent with EPA's evolving approach for the
use of biological assessments and criteria.
Today's proposal at Sec. 130.29 adopts the FACA Committee's
recommendations that waterbodies remain listed until water quality
standards are attained, and that a previously listed impaired waterbody
may be removed from the list only when new data or information indicate
that the waterbody has attained water quality standards or that the
waterbody was incorrectly listed. Similarly, the proposed rule
specifies that a previously listed threatened waterbody may be removed
from the list when new data or information indicate that the waterbody
is no longer threatened or that the waterbody was incorrectly listed.
EPA adopted these FACA Committee recommendations because it believes
that the section 303(d) list of impaired and threatened waterbodies is
a comprehensive accounting of where the water quality problems in any
State, Territory or authorized Tribe are. Retaining waterbodies on the
list until water quality standards are attained provides a way to
measure progress for program managers and other stakeholders.
EPA proposes that additional waterbodies be included on Part 4 of
the list. These waterbodies are waterbodies for which implementation of
best practicable control technology for point sources, secondary
treatment for publicly owned treatment works, or controls enforceable
by State or Federal law or regulation are expected to result in
attainment of water quality standards by the next listing cycle. Some
examples of enforceable controls which may achieve water quality
standards are state
[[Page 46025]]
regulations or local ordinances requiring erosion control, state laws
requiring manure management practices, NPDES controls for point sources
based on best available technology, and Habitat Conservation Plans
adopted under the Endangered Species Act (ESA). EPA believes that it is
appropriate to provide time to allow controls such as these to attain
water quality standards, especially in light of the large numbers of
TMDLs that need to be established nationally.
Section 303(d)(1)(C) provides that each State, Territory or
authorized Tribe shall establish TMDLs for waterbodies identified on
the Sec. 303(d) list ``for pollutants which the Administrator
identifies * * * as suitable for such calculation.'' Section
304(a)(2)(D) required EPA to publish ``for purposes of section [303] *
* * the identification of pollutants suitable for maximum daily load
measurement correlated with the achievement of water quality
objectives.'' EPA identified such pollutants in December, 1978. At that
time it said, ``all pollutants, under proper technical conditions, are
suitable for calculation of total maximum daily loads.'' (43 FR, 60665,
Dec. 28, 1978)
The current proposal does not change the determination that all
pollutants, under proper technical conditions, are suitable for
calculation of TMDLs. The proper technical conditions for TMDL
calculations are that data, analyses, or models are available or can
reasonably be developed to establish a TMDL consistent with the
requirements proposed today. Since EPA considers all pollutants
suitable for calculation in nearly all situations, today's proposed
rule does not enumerate or identify specific situations in which data,
analyses or models are not available to establish TMDLs. EPA could,
however, identify and describe situations, either in the final rule or
in guidance, for which the proper technical conditions are not
available to establish TMDLs. One example of a situation that EPA might
identify is waters impaired primarily by air deposition of pollutants.
If EPA were to identify specific situations where the proper technical
conditions for TMDLs are not available, EPA could also specify that
these waters could be included as a separate part of the list to be
reviewed at each review cycle by the State and approved by EPA. EPA
asks for comment on the advisability of identifying specific situations
where the proper technical conditions for establishment of a TMDL are
not met, and what those specific situations might be.
Other options considered. In developing today's proposal, EPA
considered other ways to format the list. The options EPA considered
focused on whether or not to divide the list into a number of different
parts or segments. EPA decided to create a segmented list as a way to
improve and better organize State and EPA management of the section
303(d) list and to provide important information to the general public
and other stakeholders about the status of the listed waterbodies and
the reasons for listing them. EPA also considered various options when
deciding the appropriate categories for segmenting the list. One option
EPA considered was whether to include a category for waterbodies for
which there is some evidence of threat or impairment, but which would
not be immediately scheduled for establishment of TMDLs. Waters could
have been placed in this category if the State, Territory or authorized
Tribe committed to collect additional data and information or conduct
additional monitoring necessary to support establishment of TMDLs. EPA
did not propose this option because it concluded that there was no need
to delay scheduling waterbodies for TMDL establishment based on less
than conclusive evidence of impairment or threat since any additional
needed data or information could be obtained during the period between
listing and State, Territorial and authorized Tribal establishment of
the TMDL.
EPA also considered whether to continue the current regulatory
requirement that gives States, Territories and authorized Tribes the
option not to list waterbodies that fail to meet water quality
standards, but for which other pollution control requirements or
actions are planned or are being implemented that are expected to
provide for standards attainment. The FACA Committee did not reach
consensus on this issue. EPA did not propose this option because it is
inconsistent with its view that the section 303(d) list should serve as
a comprehensive public accounting of all waterbodies impaired or
threatened by pollution and pollutants, irrespective of the tool or
mechanism being used to achieve standards.
EPA also concluded that allowing waterbodies to be removed from
State, Territorial or authorized Tribal lists once a TMDL has been
approved by EPA is inconsistent with our belief that State, Territorial
and authorized Tribal lists provide for a comprehensive public
accounting of all waterbodies that are not attaining or are not
expected to attain water quality standards. In addition, EPA agreed
with the FACA Committee that requiring waterbodies to remain listed
until they attain standards could serve as an incentive to establish
and implement the TMDL, resulting in the restoration of impaired
waterbodies.
Comments sought. EPA seeks comments on today's proposal to create a
new format for the list of impaired and threatened waterbodies and to
broaden the scope of the list to include waterbodies that are expected
to attain standards after the application of technology-based controls
required by sections 301 and 306 of the Act, more stringent effluent
limitations, or other required pollution controls. EPA also seeks
comment on our proposed criteria for removing waterbodies from the
list. EPA solicits comments on any or all aspects of the proposal,
including the options considered. EPA also asks for comment on the
advisability of identifying specific situations where the proper
technical conditions for establishment of a TMDL are not met, and what
those specific situations might be.
d. Assigning Priorities to Listed Waterbodies
Existing requirements. Section 303(d) of the CWA and EPA's existing
regulations require that States, Territories and authorized Tribes
assign a priority ranking to each listed waterbody. Existing
regulations specify that the priority ranking must include an
identification of the pollutant(s) causing or expected to cause each
waterbody's impairment and an identification of the waterbodies
targeted for TMDL development in the next two years. Section 303(d)
requires States, Territories and authorized Tribes to determine
priority rankings by taking into account the severity of the pollution
and the uses to be made of the waterbody. The statute does not explain
how these factors should be taken into account and the current
regulation does not expand on the statutory language. EPA guidance
(Guidance for Water Quality-based Decisions: The TMDL Process, EPA 440/
4-91-001, April 1991) acknowledges discretion in developing and
assigning priority rankings and suggests a number of factors that
States, Territories and authorized Tribes may consider, based on our
belief that the statutory factors are not exclusive. These factors
include immediate programmatic needs, vulnerability of particular
waterbodies as aquatic habitats, recreational, economic and aesthetic
importance of particular waterbodies, degree of public interest and
support and State, Territorial
[[Page 46026]]
authorized Tribal, or national policies and priorities.
Proposed rule. Today's proposal at Sec. 130.28 affirms the existing
statutory and regulatory requirement that States, Territories and
authorized Tribes assign a priority ranking to each listed waterbody.
It also includes a new requirement that States, Territories and
authorized Tribes assign either a ``high,'' ``medium,'' or ``low''
priority to each listed waterbody and pollutant combination on Part 1
of the list. States, Territories and authorized Tribes must assign a
``high'' priority to impaired waterbodies with water quality standards
designated uses as public drinking water supplies where the impairment
is contributing to a violation of an MCL, and for waterbodies in which
species listed as endangered or threatened under section 4 of the ESA
unless the State, Territory, or authorized Tribe shows that the
impairment does not affect the listed species. Today's proposal
maintains the existing regulations' requirement that the pollutant,
pollutants, and/or pollution causing or expected to cause impairment be
identified for each listed waterbody. Identification of each pollutant
or type of pollution that causes or contributes to impairment of a
waterbody is a critical part of the listing process because it sets the
stage for TMDL development and helps the State, Territory and
authorized Tribe determine appropriate priorities and schedules.
Today's proposal, however, eliminates the current requirement that the
priority ranking include an identification of the waterbodies targeted
for TMDL development in the next two years. This is because EPA is
proposing (at 40 CFR 130.31) a requirement that States, Territories and
authorized Tribes develop a comprehensive schedule for establishing
TMDLs for all waterbodies and pollutants on Part 1 of the list. A
separate requirement to identify the waterbodies for which TMDLs will
be developed over the next two years is unnecessary.
The priority ranking of impaired waterbodies and identification of
the pollutant(s) or pollution causing or expected to cause each
waterbody's impairment are important elements of each State list. The
CWA provides States, Territories and authorized Tribes broad discretion
in deciding how to rank their listed waterbodies. Adding a requirement
that States must assign waterbodies a priority ranking of either
``high,'' ``medium,'' or ``low'' will enhance national consistency and
help States and the public understand the relative significance of
establishing TMDLs on specific waterbodies. EPA is proposing that all
impaired and threatened waterbodies and pollutant combinations for
which the impairment contributes to a violation of an MCL in waters
where the designated use is public drinking water supply or in which a
threatened or endangered species is present, be assigned a high-
priority ranking by States, Territories and authorized Tribes. However,
if a State, Territory or authorized Tribe shows that the impairment
does not affect threatened or endangered species, it is not required to
assign a high priority to that waterbody.
As noted earlier in section 4.a. of this preamble, States,
Territories and authorized Tribes are required to provide EPA with a
methodology illustrating how they considered the severity of the
impairment and the use of the waterbody in identifying impaired and
threatened waterbodies. Today's proposal requires the same type of
illustration regarding the setting of priorities.
Finally, today's proposal provides, at Secs. 130.28(d) and (e),
that States, Territories and authorized Tribes may consider additional
factors such as efficiencies gained by establishing TMDLs for all
pollutants that cause or contribute to impairment of a listed
waterbody; establishing TMDLs for single or multiple pollutants in
multiple waterbodies on a watershed scale; the vulnerability of
particular waterbodies; the value of particular waterbodies; the
recreational, economic and aesthetic importance of particular
waterbodies; the cost and complexity of establishing and implementing
TMDLs; degree of public interest and support; and State, Territorial or
authorized Tribal policies in setting priorities. All of the above
factors are important and they should be considered when setting
priorities. Consideration of these factors will help States,
Territories, authorized Tribes and stakeholders set priorities
efficiently and in recognition of larger environmental and community
needs.
Section 130.32(b) provides that States, Territories and authorized
Tribes must establish TMDLs in accordance with the priority rankings
established in accordance with Sec. 130.28. EPA does not, however,
intend to disapprove an otherwise approvable TMDL simply because it was
not developed in accordance with a State's, Territory's or authorized
Tribe's schedule or the priority ranking assigned to the waterbody on
the section 303(d) list. EPA does not believe disapproving such a TMDL
is required by section 303(d) or consistent with the goal of
implementing TMDLs which conform with applicable water quality
standards. EPA may, however, consider the extent to which a State,
Territory or authorized Tribe is developing TMDLs that are not in
accordance with its priority rankings and schedule when making a
decision under Sec. 130.36(a) to step in and establish TMDLs. For
example, if a State, Territory or authorized Tribe is ignoring its high
priority waters and submitting too many low or medium priority TMDLs,
EPA may decide to establish some high priority TMDLs itself.
Other options considered. In developing today's proposal, EPA
considered other options for addressing the statutory requirement for
priority ranking. EPA considered proposing a more prescriptive approach
than the existing regulations and specifying factors that States,
Territories or authorized Tribes would have to consider when
determining whether to rank a particular waterbody as high, medium or
low. The factors considered include the type and individual
characteristics of the pollutant, e.g., toxic chemical, sediment; the
use of the waterbody, e.g., drinking water, cold water sport fishery;
the degree of impairment, e.g., numeric rankings; the difficulty and/or
time involved in establishing the TMDL, e.g., most difficult TMDLs
established first or in the alternative ranked lower to allow more time
for the technical work necessary to establish a TMDL; or the amount of
time expected to attain or maintain water quality standards. EPA also
considered deferring entirely to State discretion on deciding how to
rank waterbodies and not even requiring a basic high, medium or low
ranking. In selecting the approach proposed today, EPA also considered
the FACA Committee's recommendations to address this issue in guidance
and balanced the importance of national consistency with the need for
State latitude in setting priorities. EPA has determined that it is
appropriate to require States to assign rankings of high, medium or low
priority to each listed waterbody. EPA also considered not specifically
requiring that waterbodies with designated uses as public water
supplies in which there is a violation of an MCL or in which a
threatened and endangered species is present be designated ``high''
priority. EPA proposes to address these waters specifically because it
is important that these waterbodies be scheduled for TMDL establishment
as soon as possible and EPA wanted to make sure that human health and
endangered and threatened species concerns were
[[Page 46027]]
appropriately considered by all the States, Territories and authorized
Tribes. EPA also considered the option of making human health and
species concerns one (but not a determinative) factor in deciding
whether to rank a waterbody in the ``high'' category.
EPA also considered whether to retain the current regulatory
requirement that States, Territories and authorized Tribes identify the
waterbodies targeted for TMDL establishment over the next two years in
lieu of a new requirement that States, Territories and authorized
Tribes develop a comprehensive schedule for establishing TMDLs for all
waterbody and pollutant combinations on Part 1 of the list. However, as
explained in section 4.e, below, EPA agreed with the FACA Committee's
recommendation for a regulatory requirement that States, Territories
and authorized Tribes develop overall schedules for TMDL establishment
and today proposes to delete the targeting requirement.
EPA also considered providing different TMDL priority ranking
requirements for impairments or threats resulting from ``extremely
difficult to solve'' problems. An example impairment of this type is
contaminated sediments which often result from the legacy of past
introduction of pollutants. In many cases, the pollutant causing the
impairment or threat is no longer being discharged. Allocations and
cleanup may be difficult and require additional time to establish TMDLs
or attain or maintain water quality standards. EPA did not propose that
extremely difficult to solve problems be treated any differently
because waterbodies with these types of impairments may require action
sooner, rather than later, particularly when they meet the high
priority requirements established by the proposal.
Comments sought. EPA seeks comment on today's proposal to require
States, Territories and authorized Tribes to assign a high, medium, or
low priority to each listed waterbody and delete the current targeting
requirement. EPA seeks comments on requiring that impaired waterbodies
with designated uses as public drinking water supplies and for which
there is a violation of an MCL due to the impairment be ranked as high-
priority for establishment of TMDLs. EPA also seeks comments on
requiring that impaired waterbodies with endangered and threatened
species present be ranked as high-priority for establishment of TMDLs,
unless a State, Territory or authorized Tribe shows that the impairment
does not affect the species. EPA seeks comment on what types of
impairments, if any, should be considered difficult to solve and
whether these types of impairments should be treated differently as
priorities for establishing TMDLs are set. It also seeks comments on
the other options considered and any alternatives for ensuring that
human health and aquatic species concerns be given appropriate weight
in making listing decisions. EPA also seeks comment on whether to allow
the States, Territories and authorized Tribes to consider factors in
addition to the statutory factors in establishing priority rankings.
EPA solicits comments on any or all aspects of the proposal, including
the options considered. After considering all comments received and any
additional information that may become available, EPA may include any
of the options discussed here in the final rule.
e. Establishing a Schedule for TMDL Development
Existing requirements. Existing statutory and regulatory
requirements do not call for States to develop or submit to EPA a
schedule for developing TMDLs for all listed waterbodies. Current
regulations simply require that States identify, within their priority
rankings, those waterbodies for which TMDLs will be targeted for
development over the next two years.
The FACA Committee strongly endorsed a regulatory requirement that
States, Territories and authorized Tribes establish TMDLs according to
an expeditious schedule. One of the reasons for the committee's
recommendation is the historically low numbers of TMDLs established by
States, Territories and authorized Tribes. In reaching agreements with
some of the plaintiffs in recent litigation over TMDLs, EPA has
recognized the importance of timely TMDL establishment and has
committed to ensuring the establishment of TMDLs for all listed
waterbodies within time frames similar to that recommended by the FACA
Committee.
In August 1997, EPA's Assistant Administrator for Water issued a
policy memorandum specifically asking States, Territories and
authorized Tribes to develop 8-13 year schedules for establishing TMDLs
for all listed waterbodies, beginning with the lists submitted to EPA
in 1998. The August 1997 policy memorandum also described several
factors that States should consider in developing their schedules.
These factors, echoed in part by the FACA Committee's recommendations,
include: the number of waterbodies on a list, including the length of
river miles and number of lake acres impaired or threatened; the number
and complexity of TMDLs to be established; the availability of data or
models; and the relative significance of the environmental harm or
threat. The FACA Committee recommended that EPA regulations require
States, Territories and authorized Tribes to develop expeditious
schedules of not more than 8-15 years for establishing TMDLs for listed
waterbodies.
Proposed rule. Today's proposal, at Sec. 130.31, eliminates the
current regulatory requirement that States, Territories and authorized
Tribes, in their priority rankings, identify those waterbodies for
which TMDLs will be established over the next two years. EPA is today
affirming its August 1997 policy direction and the FACA Committee's
recommendation and is requiring that States develop comprehensive
schedules for establishing TMDLs for all waterbodies included on Part 1
of the list (as described in section 4.c, above). Today's proposal
requires that such schedules be as expeditious as practicable, provide
for a reasonable pace of establishing TMDLs over the life of the
schedule and not extend beyond 15 years. In addition, today's proposal
recommends that TMDLs for high priority waterbody and pollutant
combinations on Part 1 of the list should be scheduled for
establishment before medium and low priority waterbodies. Setting an
overall time requirement for TMDL establishment, as well as requiring a
reasonable pace of TMDL establishment over the duration of the
schedule, will encourage timely, concerted action by States,
Territories and authorized Tribes leading to increased numbers of
approved TMDLs.
The proposed requirement to establish a schedule for TMDL
development is consistent with the language of section 303(d), which
requires States to submit TMDLs for listed waterbodies beginning 180
days after the Administrator identifies the pollutants suitable for
TMDL calculation, and ``from time to time'' thereafter. The Act does
not define ``from time to time,'' and therefore EPA today proposes to
define that term to mean submission of TMDLs at a reasonable pace over
no more than the next fifteen years. In addition, EPA proposes that
State, Territorial and authorized Tribal schedules should provide for
establishment of high-priority TMDLs before TMDLs are established for
medium and low-priority waterbodies. It is reasonable to expect States,
Territories and authorized Tribes to establish TMDLs for high priority
waterbodies on Part 1 of their lists before establishing TMDLs for
lower priority waterbodies. While the number
[[Page 46028]]
of such waterbodies will differ from State to State, as will complexity
of TMDL development and resource availability, the proposed provision
should allow sufficient time for even those States with a relatively
large number of high-priority waterbodies on Part 1 of their lists to
establish TMDLs for waterbodies consistent with the requirements of
section 303(d) that priority rankings take into account the uses to be
made of waterbodies and the severity of the impairment when setting
priorities for establishing TMDLs.
Today's proposal recognizes the statutory requirement that States,
Territories and authorized Tribes assign a priority ranking to each
listed waterbody. EPA recognizes that there are a number of ways that
States, Territories and authorized Tribes may schedule TMDLs for
establishment and implementation. These include focusing on waterbodies
concurrently that are impaired by a particular pollutant or category or
subcategory of sources or that share common ecosystem characteristics.
EPA intends the prioritization and scheduling provisions in today's
proposal to be flexible enough to accommodate such considerations.
EPA also recognizes and supports the watershed approach, under
which States, Territories, and authorized Tribes may choose to
establish all TMDLs in the same watershed at the same time. EPA
strongly supports the watershed approach, but wants to ensure that
States, Territories, and authorized Tribes do not depart too far from
their priority rankings. EPA invites comment on the best way to
integrate the statutory requirement for priority rankings with the
watershed approach.
EPA recommends that States, Territories and authorized Tribes adopt
a goal to establish TMDLs for all high-priority waterbodies within five
years. EPA considered the FACA Committee recommendation that all high-
priority TMDLs be required to be established within five years. Today's
proposal, however, reflects that many States, Territories and
authorized Tribes will have more high-priority waterbodies than can
reasonably be expected to be established within five years based on
available resources. EPA also understands that it may not make sense
for States, Territories and authorized Tribes to individually schedule
every TMDL, especially those with medium or low priority. States,
Territories and authorized Tribes may schedule groups of TMDLs, on a
watershed or some other appropriate basis, for TMDLs to be established
in later years of the schedule.
Other Options Considered. In developing today's proposal, EPA
considered several options. For example, EPA considered maintaining the
current regulatory requirement that States, Territories and authorized
Tribes identify only those waterbodies for which TMDLs will be
developed over the next two years, and not requiring States to develop
an overall schedule for TMDL establishment. EPA did not propose this
option, even though it is often difficult to estimate the amount of
time needed to develop TMDLs, especially when lists may include
hundreds of impaired or threatened waterbodies. It is desirable for
States, Territories and authorized Tribes to plan, on a long-term
basis, for the establishment of all needed TMDLs. Moreover, many
States, Territories and authorized Tribes have adopted, or are moving
toward adopting, a rotating basin or watershed approach to water
quality management. Under such an approach, States, Territories and
authorized Tribes generally work sequentially through each of their
basins on a five year cycle. They may collect data in a basin in the
first year, analyze the data in the second year to assess the water
quality in the basin, establish TMDLs and other management strategies
in the third year, implement TMDLs and management strategies in the
fourth year, and monitor for progress in the fifth year. Developing an
overall schedule for TMDL establishment allows States, Territories and
authorized Tribes to ensure compatibility between their rotating basin
approaches and TMDL establishment.
Comments sought. EPA seeks comments on the proposed approach to
require States, Territories and authorized Tribes to develop schedules
for the establishment of TMDLs for all waterbodies on Part 1 of the
list. EPA also seeks comments on the proposed requirement that States,
Territories and authorized Tribes should schedule all high priority
TMDLs for establishment before establishing TMDLs for medium and low-
priority waterbodies. EPA solicits comments on any or all aspects of
the proposal, including the options considered and may adopt any of the
options discussed here in the final rule.
f. Submission of Lists, Priority Rankings, Listing Methodologies, and
Schedules to EPA
Existing requirements. The statute and existing regulations require
States to submit their lists to EPA for review and approval. Section
303(d) provides EPA with 30 days from the date of a State's submittal
to either approve or disapprove the list. If EPA disapproves the list,
EPA has an additional 30 days to establish the list. Existing
regulations specify that the lists submitted by States to EPA for
review must include the identification of the pollutant or pollutants
causing or expected to cause the impairment or threat, the priority
ranking of listed waterbodies, and the waterbodies identified for TMDL
development over the next two years. Existing regulations also require
States, Territories and authorized Tribes to submit to EPA their
listing methodology; existing regulations do not, however, provide for
EPA review and approval or disapproval of the methodology. Under the
existing regulations, State, Territorial and authorized Tribal lists
are to be submitted to EPA every two years, on April 1 of every even-
numbered year.
Proposed rule. Today's proposal at 40 CFR 130.27(b) maintains the
existing regulatory requirement that State, Territorial and authorized
Tribal waterbody lists identify the pollutant(s) and/or pollution
causing or expected to cause the impairment or threat, and the priority
rankings of waterbody/pollutant combinations. Lists of impaired and
threatened waterbodies must be submitted to EPA for review and approval
or disapproval. As required by the statute, EPA will have 30 days to
review and approve or disapprove each list. Today's proposal, at
Sec. 130.30(e), provides that EPA may establish a list of impaired and
threatened waterbodies, including pollutant/pollution combinations and
priority rankings, if a State, Territory or authorized Tribe asks EPA
to do so, or if EPA determines that a State, Territory or authorized
Tribe has not or is not likely to establish such list consistent with
the schedule specified in Sec. 130.30(a). As discussed later in this
preamble, EPA believes it has authority under section 303(d) of the
Clean Water Act to establish TMDLs if asked to do so, or if it
determines that States, Territories, or authorized Tribes have not or
are not likely to establish such TMDLs consistent with their schedules.
EPA believes that the same rationale articulated later in the preamble
in support of its authority, under certain circumstances, to establish
TMDLs also applies to establishment of lists of impaired waters.
EPA anticipates exercising its discretionary authority to establish
lists of impaired waterbodies on a case-by-case basis taking into
account a variety of factors, including whether the State, Territory or
authorized Tribe intends to submit a list at all, how late the State's,
Territory's or authorized Tribe's list will be, any explanations
offered by the
[[Page 46029]]
State, Territory or authorized Tribe for missing the submission
deadline, and whether EPA has reason to believe the State's,
Territory's, or authorized Tribe's list will be seriously flawed when
it is submitted. For example, EPA does not expect that it will
automatically decide to establish a list for a State, Territory or
authorized Tribe just because the State, Territory or authorized Tribe
may have missed the list-submittal deadline contained in
Sec. 130.30(a). However, if the State, Territory or authorized Tribe
misses its Sec. 130.30(a) deadline and, following inquiry from EPA, is
not able to provide assurances that its list of impaired waters will be
submitted for review within a reasonable period of time, EPA may
determine to exercise its discretionary authority to establish the list
itself. If, on the other hand, EPA concludes that the State, Territory,
or authorized Tribe is making a ``good faith'' effort to complete list
and submit it to EPA for review, EPA may decide not to establish a list
of impaired waters for the State, Territory or authorized Tribe. EPA
invites comment on its proposal to expressly assert in regulations its
discretionary authority to establish lists of impaired waters and on
the factors EPA should consider in exercising that authority.
EPA is clarifying by the use of the term ``order'' that its listing
actions are informal adjudications and not rulemaking actions under the
Administrative Procedure Act. Today's rule, at Sec. 130.30(d), also
requires EPA to notify the public in the Federal Register and in a
newspaper of general circulation of its actions and request public
comment for at least 30 days. EPA will send any portion of the list
that it has modified to the State for incorporation into its water
quality management plan.
Today's proposal, at Sec. 130.24, also maintains the existing
regulatory requirement that States, Territories and authorized Tribes
must submit their listing methodologies to EPA . Under today's proposal
States, Territories and authorized Tribes must submit their
methodologies to EPA nine months prior to the deadline for submission
of the list. As in the existing regulations, the proposal provides that
EPA will review and may provide the State, Territory and authorized
Tribe with comments on the methodology. EPA will not take any approval
or disapproval action on the State, Territorial or authorized Tribal
methodology.
EPA is not proposing at this time to approve or disapprove
individual listing methodologies. EPA does recognize that the integrity
of State, Territorial and authorized Tribal lists is strongly related
to an explicit and deliberate approach to identifying impaired and
threatened waterbodies. Requiring States, Territories and authorized
Tribes to provide EPA and the public with the listing methodology prior
to submission of the list will lead to more consistent, better defined
listing decisions. In addition, submission of State listing
methodologies to EPA prior to submission of the list will provide EPA
and States, Territories and authorized Tribes with an opportunity to
discuss exactly how impaired and threatened waterbodies are identified.
These discussions will substantially reduce questions and comments at
the time the section 303(d) list is submitted to EPA for action. EPA
recognizes that the methodologies submitted nine months prior to the
lists may be revised in response to feedback from the public or EPA, or
issues and concerns that may arise as the methodologies are actually
used to develop the lists. EPA is not proposing to approve or
disapprove State, Territorial or authorized Tribal listing
methodologies because it has adequate authority in its review of the
list of impaired or threatened waterbodies to assure that the
methodologies used by States, Territories and authorized Tribes
appropriately identify waterbodies required to be listed under section
303(d).
Today's proposal, at Sec. 130.31(b), adds a new requirement that
States, Territories and authorized Tribes submit schedules for
establishing TMDLs for all waterbodies listed on Part 1 of the list to
EPA for review. EPA is proposing that States, Territories and
authorized Tribes submit schedules for establishing TMDLs with every
list of impaired and threatened waterbodies submitted to EPA. Although
schedules will be submitted with lists, schedules are not part of the
lists and EPA will not develop a schedule if a State develops an
inadequate one or fails to submit one. While EPA does not propose to
approve or disapprove the schedules, EPA will consider the schedules in
evaluating the identification of waterbodies and priority ranking.
Approving or disapproving schedules is not required because EPA reviews
the priorities for establishing TMDLs in approving or disapproving the
State, Territorial and authorized Tribal list and EPA retains ultimate
authority to establish TMDLs if States, Territories and authorized
Tribes fail to do so. If a State, Territory or authorized Tribe submits
a schedule for Part 1 waterbodies that EPA concludes is inadequate
(e.g., because it extends beyond fifteen years), EPA would provide
comments to the State, Territory and authorized Tribe in its action on
the list, and would expect the State, Territory or authorized Tribe to
address EPA's comments. Finally, shifting the date of list submission
from April 1 to October 1 will ease the difficulties that States,
Territories and authorized Tribes may have in completing both section
305(b) reports and section 303(d) lists and submitting them to EPA on
time; both are currently due to EPA on April 1 of every even-numbered
year.
Options considered. Today's proposal requests comments on the
existing regulatory requirement that State, Territorial and authorized
Tribal lists be submitted every two years. The FACA endorsed the two-
year listing cycle, but EPA has received many suggestions from States,
Territories and authorized Tribes suggesting that lists be submitted at
four or five year intervals. EPA is considering retaining the two-year
listing interval, adopting a four-year or five-year listing cycle
interval, or requiring that States, Territories and authorized Tribes
submit their first list under the revised regulation no later than
October 1, 2000, with subsequent list submittals occurring at longer
intervals, e.g., every four years or every five years.
The existing two year listing cycle provides frequent intervals for
States, Territories and authorized Tribes, EPA and stakeholders to
identify impaired and threatened waterbodies and document progress in
attaining water quality standards. The two-year listing requirement is
also consistent with the section 305(b) reporting cycle. Such a short
listing cycle, however, may over emphasize the listing of waterbodies
as opposed to establishing and implementing TMDLs. A two-year listing
cycle may also be inefficient because States, Territories and
authorized Tribes generally do not find significant changes in water
quality over such a short period of time.
A four-year listing cycle is also being considered. This interval
would promote greater emphasis on establishing and implementing TMDLs,
as opposed to listing impaired and threatened waterbodies. It would
also allow for periodic coordination between section 303(d) lists and
section 305(b) reports. A four-year listing cycle would not, however,
provide for as frequent updates in progress towards attainment of water
quality standards for States, Territories and authorized Tribes, EPA
and stakeholders.
A five-year listing cycle is also being considered. A five-year
cycle would allow States, Territories and authorized
[[Page 46030]]
Tribes to focus more time and resources on establishing and
implementing TMDLs and is compatible with State, Territorial and
authorized Tribal rotating basin and watershed approaches. It would
also allow for a complete NPDES permitting cycle between each list.
Comments sought. EPA solicits specific comments on the cycle on
which States, Territories and authorized Tribes should submit lists to
EPA. EPA also solicits comments on whether EPA should approve or
disapprove State, Territories and authorized Tribal schedules and
whether schedules should be included as part of lists of impaired and
threatened waters. EPA solicits comment on any or all aspects of the
proposal, including the options considered.
g. Proposal To Change List Submission Deadline to October 1, 2000 in
the Existing TMDL Regulations
Proposed rule. In addition to the comprehensive revision of the
Part 130 regulations being proposed today, EPA also is proposing to
amend the existing regulations to change the current April 1 deadline
to October 1 for submission by the States, Territories, and authorized
Tribes of their lists of impaired waters. If after consideration of
public comments, EPA decides to promulgate this proposal, EPA intends
that it would promulgate this amendment as a separate action as soon as
possible after the close of the comment period.
The existing regulations at 40 CFR 130.7(d)(1) require States,
Territories, and authorized Tribes to submit their lists on April 1 of
every even-numbered year. EPA believes it makes sense to delay this
requirement until October 1. EPA prefers that the next lists submitted
should be based on the new requirements being proposed today. It is
unlikely that EPA will promulgate these comprehensive revisions well in
advance of the current April 1 deadline for submission of lists. To
avoid the States, Territories, and authorized Tribes developing lists
under the existing regulations to meet the April 1 deadline, EPA
proposes to move that deadline to October 1. EPA expects to promulgate
the comprehensive revisions well in advance of October 1. In that
event, States, Territories, and authorized Tribes will develop their
lists pursuant to the new regulations. In the event the new regulations
are delayed, States, Territories, and authorized Tribes would be
required to submit lists by October 1, 2000 pursuant to the existing
regulations.
Comments sought. EPA requests comment on this separate proposal to
amend the April 1 deadline in 40 CFR section 130.7(d)(1) to be October
1. EPA also requests comment on its proposal to promulgate this
amendment as a separate action as soon as possible after the close of
the public comment period. If you provide comments to EPA on this
separate proposal, EPA requests that you highlight those comments for
EPA's consideration immediately upon the close of the public comment
period.
5. What Are the Proposed Rule's Requirements for TMDL Establishment and
EPA Review of TMDLs Submitted by States, Territories and Authorized
Tribes?
a. Minimum Elements of a TMDL Submitted to EPA
Existing requirements. Pollutant loads may be transported into a
waterbody directly through effluent discharge, bank and bar erosion (in
streams, rivers, estuaries, and lakes), re-circulation (e.g., nutrients
in lakes, estuaries, and wetlands; contaminated sediments), solar
heating, atmospheric deposition, and groundwater flows; or indirectly
by overland flow caused by snowmelt or precipitation. A TMDL is
established to attain or maintain the water quality standard for a
specific pollutant that has been identified as the cause of an
impairment or threat to a waterbody. Consistent with this goal, the
existing TMDL regulations require States, Territories and authorized
Tribes to establish TMDLs at levels necessary to meet water quality
standards with seasonal variations and a margin of safety that takes
into account any lack of knowledge concerning the relationship between
pollutant loads and water quality. The existing regulations define
loading capacity as the greatest amount of loading that a waterbody can
receive without exceeding water quality standards and a TMDL as the sum
of the individual waste load allocations for existing and future point
sources and the load allocations for existing and future nonpoint
sources and for natural background. The existing regulations also
explain that TMDLs can be expressed, as either mass per time, toxicity,
or other appropriate measures that relate to a State's, Territory's and
authorized Tribe's water quality standard. The technical approach used
to develop TMDLs varies according to the pollutant of concern, the type
of waterbody, and the type and number of pollutant sources.
The ultimate goal of establishing TMDLs is to implement allocations
that will result in the attainment and maintenance of water quality
standards. Without implementation, a TMDL merely provides estimates of
the pollutant load reductions necessary to attain water quality
standards. Section 303(d) does not establish any new or additional
implementation authorities beyond those that currently exist under the
CWA or in State, Territory, local, Tribal or other Federal laws. TMDL
regulations currently do not require States, Territories and authorized
Tribes to develop implementation plans for TMDLs. Wasteload allocations
are implemented through effluent limits in NPDES permits. Load
allocations are implemented through a variety of State, local, Tribal,
and Federal programs, as well as voluntary action by committed
citizens.
Currently, EPA approval of TMDLs for waterbodies impaired from a
combination of point and nonpoint sources requires that the wasteload
allocation for the point source is determined on the basis of existing
or planned reductions in loadings from nonpoint sources. EPA thus
believes it is appropriate to require reasonable assurance that the
load allocations will be implemented.
Proposed rule. The FACA Committee described a TMDL as an ``action
oriented analysis of how to attain water quality standards'' that is
crucial to the ultimate success of TMDLs. Today's proposal, at
Sec. 130.33 and Sec. 130.34, establishes the minimum elements that
States, Territories, and authorized Tribes must include in any TMDL
submitted to EPA and the acceptable ways in which a TMDL can be
expressed. It clarifies that a TMDL must be calculated to ensure that
water quality standards will be attained and maintained throughout the
waterbody in the event of reasonably foreseeable increases in pollutant
loads. In today's proposal, TMDLs continue to provide for tradeoffs
between alternative point and nonpoint source control options so that
cost effectiveness, technical effectiveness, and the social and
economic benefits of different allocations can be considered by
decision-makers.
The technical approach used to establish individual TMDLs may vary
according to the pollutant of concern, the type of waterbody and the
type and number of pollutant sources. Today's proposal, at Sec. 130.33,
maintains the existing requirement that all TMDLs must consider the
total pollutant load to a waterbody from point, nonpoint, and
background sources. Today's proposal, at Sec. 130.34, also clarifies
that all TMDLs must contain an expression of the
[[Page 46031]]
pollutant load or load reduction necessary to assure that the waterbody
will attain and maintain water quality standards, including aquatic or
riparian habitat, biological, channel, geomorphological, or other
appropriate conditions that represent attainment or maintenance of the
water quality standard.
For example, a spawning use may be impaired because excessive
sediment (i.e., clean sediment) is clogging the interstitial spaces of
the stream bottom. These spaces normally provide habitat for the
insects that are a food source for fish and dissolved oxygen needed by
young fish to survive. While the ultimate water quality goal for this
problem may be to increase successful spawning by 20 percent, the TMDL
analysis and pollutant load allocation will be based on decreasing the
pollutant load of clean sediment in the stream system and must be
expressed in those terms. This example fits within the approach set out
in Sec. 130.34(3) for expressing TMDLs.
It is important that a TMDL be expressed in terms that are
appropriate to the characteristics of the waterbody and pollutant
combination. Today's proposal, at Sec. 130.34, allows States,
Territories and authorized Tribes to use one of four approaches when
expressing a TMDL: sources. A ``daily'' load allocation would not
provide the allocation of phosphorus necessary to attain or maintain
water quality standards because, while it might cover current loads, it
would not account for the amount of the pollutant stored in the lake or
reservoir. In addition, allocations expressed in terms of daily loads
might not account accurately for the different loadings and effect of
the pollutant on water quality in the lake resulting from different
seasons and climatic events. For a pollutant like phosphorus, the
average annual load is the best indicator of actual conditions in the
lake and best way to express the allocations established in any TMDL.
Similarly, waterbodies may be impaired by loadings of fine sediment
delivered to the waterbody from hillslope or bank erosion. Allocations
established as part of a TMDL for fine sediment would need to address
the variability of sediment loadings due to flows related to rainfall
or snowmelt, the natural background sediment loads carried by the
waterbody, channel characteristics and aquatic life needs. A daily load
of sediment would not necessarily be an accurate representation of the
natural background load, the variability in loadings over time and
season, or the amount of pollutant load reduction needed to maintain
sediment loads within the natural limits and requirements of the
waterbody to attain or maintain water quality standards. A seasonal or
annual in-stream sediment allocation would be a more accurate and
technically correct expression of the amount of sediment in the
waterbody over time that would attain or maintain water quality
standards.
Temperature is another example of a pollutant where other than
daily loads may be the most appropriate expression of an allocation
established as part of a TMDL. Temperature varies as a result of
climate and season. Aquatic life require a range of temperatures to
spawn, grow and maintain viable populations. A daily load of heat and
the resultant temperature in the waterbody is not as important as
maintaining the range required by the aquatic life through different
seasons and climatological events. Therefore, an allocation of
pollutants causing changes in temperature is often better expressed as
seasonal or monthly averages keyed to preservation of the needed
temperature ranges throughout the seasons.
EPA recognizes that some non-attainment of water quality standards
is due in part, or entirely, to extremely difficult to solve problems.
These include circumstances where attainment of water quality standards
is technically or practically difficult or costly. The FACA
recommended, and EPA concurs, that it is feasible to establish a TMDL
for these difficult to solve problems. Both EPA and the FACA
recognized, however, that some of the processes necessary to attain
water quality standards are likely to take a long time to show progress
in attaining water quality standards. EPA recognizes that
implementation plans for these types of TMDLs may allow a relatively
longer timeframe for water quality standards attainment.
The FACA Committee recommended that EPA clarify the minimum
elements of an approvable TMDL for States, Territories and authorized
Tribes and other stakeholders. The FACA Committee recommended that the
``TMDL development/implementation planning process'' be composed of
seven components: (1) Target identification; (2) identification of
needed pollutant reduction; (3) source identification; (4) allocation
of pollutant loads; (5) implementation plan; (6) monitoring and
evaluation; and (7) procedures for any needed revision based on
evaluation. The FACA Committee did not reach consensus on whether the
implementation plan is a required component of the TMDL under section
303(d) or whether the plan should be submitted separately from the TMDL
under section 303(e).
Today's proposal endorses the FACA Committee's recommendation for
regulatory clarification of the minimum elements of an approvable TMDL.
The minimum elements are discussed below.
Waterbody Name and Geographic Location. Identification of the name
and geographic location of the impaired or threatened waterbody. It is
important to identify not only the name and location of the waterbody
for which the TMDL is being established, but also the names and
geographic locations of the waterbodies upstream of the waterbody that
contribute significant amounts of the pollutant of concern. The
geographic location of the waterbody must be identified using a
nationally recognized georeferencing system. EPA will provide guidance
and technical support necessary to ensure standardized georeferencing.
Identify the Pollutant Load. Identification of the pollutant load
that may be present in a waterbody and still assure attainment and
maintenance of water quality standards. After identifying the waterbody
name and location, the next step in establishing a TMDL is to quantify
the pollutant load for the pollutant or pollutants that have been
identified as causing the waterbody impairment. For most or many
pollutants, numeric water quality standards are available. When no
numeric water quality standard is available, the pollutant load must
still be quantified. The numeric pollutant load selected depends on
consideration of the type of waterbody, its location, and how seasonal
variations impact water quality.
Identify the Deviation from the Pollutant Load. Identification of
the amount or degree by which the current pollutant load deviates from
the pollutant load representing attainment or maintenance of water
quality standards. Once the pollutant load has been identified, the
degree to which conditions deviate from that load can be calculated,
resulting in a determination of how much the existing pollutant load
must be reduced to meet the required pollutant load. In some
situations, the baseline load may not be quantifiable in which case the
required load reduction may be based on the degree to which water
quality deviates from the water quality standards and expressed in
terms of a percentage reduction rather than an absolute mass-per-time
reduction. Further, the allocations of the TMDL may be expressed in
terms of a percentage reduction on a source-by-source basis rather than
an absolute
[[Page 46032]]
mass-per-time load allocation to each source.
Source Categories, Source subcategories or Individual Sources.
Identification of the source categories, source subcategories, or
individual sources of the pollutant for which the wasteload allocations
and load allocations are being established. The source assessment
identifies (i.e., lists) and characterizes pollutant source(s) or
category(ies) of sources that cause the waterbody impairment. The
character of each pollutant source, its temporal loading and
variability and location with respect to the waterbody are important.
The factors to identify when conducting a source assessment include the
source type (e.g., point, nonpoint, background, atmospheric); relative
location and magnitude of each load; transport mechanisms (e.g., runoff
vs. infiltration); and time scale of loading to the waterbody (i.e.,
duration and frequency of loading to receiving waterbodies).
Wasteload Allocation and Load Allocation. Waste load allocations
for pollutants from point sources and load allocations for pollutants
from nonpoint sources, including atmospheric deposition and natural
background. Allocations are central to the TMDL process and TMDLs must
clearly specify an allowable load for each source. TMDLs must include a
wasteload allocation for each point source permitted under section 402
of the Clean Water Act discharging the pollutant for which the TMDL is
being established. In two circumstances, however, pollutant waste loads
may be allocated to a category or subcategory of sources or considered
part of background loads. The first is when the discharge is subject to
a general permit. As explained above, it is appropriate to allocate to
the aggregate of sources covered by a general permit since the number
and identity of sources discharging under a general permit generally
will not be known. The second circumstance is when the State, Territory
or authorized Tribe determines that certain pollutant loads relating to
specific individual point sources do not need to be reduced in order
for the waterbody to attain or maintain standards. In the case of
nonpoint sources, allocation of pollutant loads to categories or
subcategories of sources may be appropriate, especially if measures to
reduce these loads are implemented for a whole category at once.
Margin of Safety (MOS). A margin of safety, expressed as
unallocated assimilative capacity or conservative analytical
assumptions used in calculating the TMDL. Each TMDL must include a MOS
sufficient to account for technical uncertainties in establishing TMDLs
and describe the manner in which the MOS is determined and incorporated
into the TMDL. If a portion of the loading capacity is left unallocated
to provide an MOS, the amount left unallocated must be identified and
the basis for it described. If conservative modeling assumptions are
relied on to provide an MOS, the specific assumptions providing the MOS
must be identified. In either case, the basis for believing that the
MOS is sufficient to attain and maintain water quality standards must
be explained.
Seasonal Variations. TMDLs must account for seasonal variations and
critical conditions concerning receiving water flow (e.g., low flow
during drought periods), receiving water conditions (e.g. temperature),
beneficial use impacts (e.g., key aquatic life stages), pollutant
loadings (e.g., high flow nonpoint source runoff), and other
environmental factors that affect the relationship between pollutant
loading and water quality impacts. This ensures that the TMDL protects
the receiving water when it is most sensitive to the pollutant.
Allowance for Future Loading. States, Territories and authorized
Tribes must include an allowance for future loading in their TMDL that
account for reasonably foreseeable increases in pollutant loads and
carefully document their decision-making process. This allowance should
be based on existing and readily available data at the time the TMDL is
established. States, Territories, and authorized Tribes may choose to
completely allocate the pollutant loading for a waterbody and thus
leave no loading for future growth. EPA encourages State and local
governments to adopt ``Smart Growth'' policies and requirements. Where
adoption and/or implementation of ``Smart Growth'' policies and
requirements will reduce future loadings, the allowance for future
loadings may be reduced accordingly.
Implementation Plan. Today's proposal would revise the current
regulations by requiring States, Territories, and authorized Tribes to
submit a plan to implement the load allocations and waste load
allocations of a TMDL, or group of TMDLs, as a component of a TMDL.
Today's proposal reflects the FACA recommendation that TMDLs include
implementation plans and proposes to substantially adopt the FACA's
recommended minimum elements of an implementation plan. EPA is
proposing that the implementation plan itself would be required to
contain eight minimum elements: (a) implementation actions; (b) time
line; (c) reasonable assurance; (d) legal or regulatory controls; (e)
time required to attain water quality standards; (f) monitoring plan;
(g) milestones for attaining water quality standards; and (h) TMDL
revision procedures.
The proposal requires States, Territories and authorized Tribes to
submit implementation plans that show how each TMDL is to be
implemented. While States, Territories and authorized Tribes may submit
an individual implementation plan with each TMDL, EPA believes that it
is more effective for one implementation plan to describe how a number
of TMDLs will be implemented. One implementation plan may, for example,
show how all the TMDLs for a pollutant within an entire watershed will
be implemented or how implementation of TMDLs for different pollutants
within a particular basin will be implemented. EPA believes that this
approach provides States, Territories and authorized Tribes with the
flexibility to consider the complexity of water quality problems,
effectively implement solutions and take advantage of existing
implementation mechanisms such as management programs approved under
section 319 or rotating basin approaches.
EPA has authority to require an implementation plan as an element
of an approvable TMDL under section 303(d). Section 303(d) requires
that TMDLs ``be established at a level necessary to implement the
applicable water quality standards.'' (33 U.S.C. Sec. 1313(d)(1)(C)).
EPA is charged with approving or disapproving the TMDLs submitted by
States, Territories or authorized Tribes, 33 U.S.C. Sec. 1313(d)(2),
but aside from explicitly requiring that a TMDL be established ``with
seasonal variation'' and ``a margin of safety,'' Congress did not
clearly establish the individual elements of a TMDL necessary to enable
EPA to determine whether a specific TMDL is approvable as established
at the necessary level. EPA has inherent power to establish regulations
to fill this gap. Morton v. Ruiz, 415 U.S. 199, 231 (1974) (``The power
of an administrative agency to administer a congressionally created . .
. program necessarily requires the formulation of policy and the making
of rules to fill any gap left, implicitly or explicitly, by
Congress.''). EPA has previously determined that there are elements,
such as a separate determination of the proper allocations for point
sources (WLAs) and nonpoint sources (LAs), which are necessary for EPA
to determine whether statutory
[[Page 46033]]
goals are met by the TMDLs established by States, Territories and
authorized Tribes.
Today EPA is proposing that one additional appropriate way to
enable EPA to determine properly whether or not a TMDL is established
at the level necessary to implement the applicable water quality
standards is to require that an implementation plan be a component of a
TMDL submittal. In determining whether EPA is properly construing the
CWA, the first step is to determine ``whether Congress has directly
spoken to the precise question at issue.'' Chevron v. Natural Resources
Defense Council, 467 U.S. 837, 842 (1984). EPA has found that section
303(d) and its sparse legislative history are silent or ambiguous on
the specific question of whether or not an implementation plan should
be part of a TMDL. Therefore, the question is simply whether EPA's
construction of the statute is permissible. Id. at 842-843. Given the
statute's requirement that TMDLs, whether established by a State,
Territory, or authorized Tribe, or by the Administrator, ``be
established at a level necessary to implement the applicable water
quality standards,'' section 303(d)(1)(C); section 303(d)(2), EPA's
decision that one way to determine whether TMDLs are so established is
to review the State, Territorial, or authorized Tribal plan to
implement the TMDLs to see if it is a reasonable one. A plan which,
among other things, demonstrates that the State, Territory, or
authorized Tribe has selected specific implementation actions for
sources, calculates the time which it should take for those actions to
result in achievement of water quality standards, and establishes a
monitoring plan to determine whether standards are in fact being
achieved is, in EPA's judgment, an appropriate requirement to enable
EPA to approve TMDL submittals. Moreover, Congress' concern that the
establishment of TMDLs not be a paper exercise is manifest in its
requirement that they be tied to the implementation of water quality
standards and the requirement that approved TMDLs be incorporated into
the State, Territorial, or authorized Tribal plan for its navigable
waterbodies under section 303(e).
A consequence of today's proposal to require an implementation plan
as one of the minimum elements of a TMDL is that the plan itself, like
the other elements, is subject to EPA approval or disapproval. In
evaluating an implementation plan, EPA would assess whether the
State's, Territory's, or authorized Tribe's implementation plan
contains each of the components required by the regulation and
discussed in more detail below. If EPA disapproves a TMDL because it
determines that the implementation plan is inadequate, pursuant to the
statute, EPA would have 30 days to establish a TMDL, including an
implementation plan.
EPA's proposal to require an implementation plan under section
303(d) does not directly result in a more enforceable TMDL. EPA's
existing point source regulations require that permit effluent limits
``are consistent with the assumptions and requirements of any available
wasteload allocation for the discharge.'' 40 CFR 122.44(d)(1)(vii)(B).
Section 303(d) does not provide any additional CWA authorities to
implement nonpoint source controls, therefore, the implementation plan
will provide a program to deal with nonpoint source contributions to
impaired waterbodies using existing Federal, State and local
authorities and voluntary action to implement the allocations contained
in TMDLs.
Each TMDL implementation plan must contain the following
components:
Implementation actions. A description of the control actions and/or
management measures required to implement the allocations contained in
the TMDL, along with a description of the effectiveness of these
actions and/or measures in achieving the required pollutant loads or
reductions. These actions may vary depending on the pollutant for which
the TMDL is being established, the complexity of the water quality
problem and the controls required. For point sources, a list of NPDES
permits and a schedule for revising the permits to be consistent with
the TMDL is required.
For nonpoint sources, a description of best management practices or
other management measures is required. EPA expects that section 319
management programs will be the basis for this description. EPA expects
that the implementation plan would contain a description of what best
management practices and/or controls will be used and identify the
source categories, subcategories or individual source of the pollutant
for which the TMDL is being established. The implementation plan may
deal with sources on a watershed basis as long as the scale of the
implementation plan is consistent with the geographic scale for which
the TMDL allocations are being established.
EPA expects that the implementation plan would also describe what
actions will be implemented by source category, subcategory or
individual sources. The description of the actions should include an
analysis of the anticipated or past effectiveness of the best
management practices and/or controls that are expected to meet the
wasteload and load allocations. The implementation plan should describe
where the best management practices and/or controls will be
implemented. This description should tie the implementation activity to
the pollutant and geographic scale of the TMDL.
Timeline. The implementation schedule must contain a description of
when the activities necessary to implement the TMDL will occur. It must
include a schedule for revising NPDES permits to be consistent with the
TMDL. The schedule must also include when best management practices
and/or controls will be implemented for source categories,
subcategories and individual sources. Interim milestones to judge
progress are also required. The timeline should tie the implementation
activity to the pollutant, the description of implementation actions
and the geographic scale of the TMDL.
Reasonable assurance. The implementation plan must contain
reasonable assurance that the implementation activities will occur.
Reasonable assurance means a high degree of confidence that wasteload
allocations and/or load allocations in TMDLs will be implemented by
Federal, State or local authorities and/or voluntary action. For point
sources, reasonable assurance means that NPDES permits (including
coverage under applicable general NPDES permits) will be consistent
with any applicable wasteload allocation contained in the TMDL. For
nonpoint sources, reasonable assurance means that nonpoint source
controls are specific to the pollutant of concern, implemented
according to an expeditious schedule and supported by reliable delivery
mechanisms and adequate funding. Examples of reasonable assurance
include State, Territorial or authorized Tribal regulations or local
ordinances, performance bonds, memoranda of understanding, contracts or
similar agreements.
Voluntary and incentive-based actions may also be acceptable
measures of reasonable assurance. Like all other forms of reasonable
assurance for nonpoint sources, voluntary and incentive-based actions
must be specific to the pollutant of concern, implemented according to
an expeditious schedule, and be supported by adequate funding. Examples
of voluntary and incentive-based programs include State, Territorial,
or authorized Tribal programs to audit the implementation of
agricultural or forestry best management practices,
[[Page 46034]]
memorandums of understanding between States, Territories, or authorized
Tribes and organizations representing categories of sources or State-
approved programs for categories or subcategories of sources to ensure
effectiveness of best management practices. Voluntary participation by
landowners in agricultural or forestry water quality protection or
conservation programs, for example, installation or maintenance of
riparian buffers or implementation of activities to participate in
watershed-based effluent trades, is acceptable during establishment of
the initial TMDL, subject to the conditions established in the
regulation. However, if monitoring shows that voluntary measures are
not resulting in the progress towards attainment and maintenance of
water quality standards envisioned when the TMDL was approved, the
State, Territory, or authorized Tribe may need to establish a
regulatory approach.
EPA is aware that some States, Territories, or authorized Tribes
are concerned that the proposed definition of ``reasonable assurance''
would require adequate funding for implementation measures addressing
nonpoint sources at the time that the implementation plan is developed.
While States, Territories, or authorized Tribes may have difficulty in
completely identifying funding sources for all such measures, EPA
intends that States could describe, based on best information available
at the time, how adequate funding will be secured. In particular,
currently available funding sources should be identified specifically.
EPA requests comment on this particular provision of the reasonable
assurance component of the implementation plan.
Section 303(d)(1)(C) of the CWA provides EPA with authority to
require that reasonable assurance be included as one of the elements of
a TMDL's implementation plan. Section 303(d)(1)(C) provides that TMDLs
must be established at a level necessary to implement the applicable
water quality standards. Section 130.33(b)(10)(iii) of today's proposal
would require that each implementation plan contain a discussion of the
State's, Territories' or authorized Tribe's reasonable assurance that
wasteload allocations and load allocations will be implemented. Since
TMDLs must be established at a level to implement standards, it is
reasonable for EPA to require that the TMDL itself contain an
explanation of how that implementation will occur. Providing such an
explanation will allow the public to assess the adequacy of the TMDL
when it is offered by the State, Territory or authorized Tribe for
comment. It will also allow EPA an opportunity during its review of the
TMDL to better determine whether the TMDL will, in fact, achieve its
goal of bringing the waterbody into compliance with applicable water
quality standards.
If EPA disapproves a TMDL submitted by a State, Territory or
authorized Tribe, EPA may take a number of actions designed to provide
reasonable assurance that implementation will occur to the same extent
that a State would provide such assurance.
In the case of discharges from point sources, if EPA actions become
necessary, a combination of existing and proposed NPDES permit
authorities may be used to provide reasonable assurance. For example,
in those States where EPA retains authority to issue NPDES permits, EPA
currently has authority to issue NPDES permits to limit pollutant
discharges as needed to implement TMDLs (i.e., accomplish wasteload
reductions assigned to point sources in wasteload allocations). In
those States where EPA has delegated authority to issue NPDES permits,
current regulations give EPA clear authority to revise permit
conditions in a State-issued permit as needed to implement TMDLs and
otherwise comply with the Act.
Elsewhere in today's Federal Register, EPA is proposing changes to
the NPDES permit program regulations at 40 CFR parts 122 and 123. These
proposed changes would further clarify EPA's authorities which may be
used to provide reasonable assurance for point sources.
For some impaired waters, attainment of water quality standards may
require that pollutants from nonpoint sources be reduced. EPA has
strong and diverse authorities to implement controls over nonpoint
sources in the event that EPA were to disapprove a TMDL submitted by a
State and to develop a TMDL for the impaired water.
For example, section 504 of the CWA provides the EPA Administrator
with authority to address cases where a source or combination of
sources is presenting an imminent and substantial endangerment to the
health of persons, such as immediate health threats, or to the welfare
of persons, such as the inability to market locally-harvested shellfish
contaminated by water pollution. In these cases, the Administrator may
bring suit under the authority of section 504 to restrain any person to
stop the discharge of pollutants or to take any action as may be
necessary. Where a waterbody is identified as impaired under section
303(d), strong evidence may exist that the impairment may present an
imminent and substantial threat to the health or welfare of persons.
This authority can support implementation of nonpoint pollution
controls for impaired waters on a case-by-case basis.
In addition, EPA has authority to direct the way that States,
Territories, and authorized Tribes use funding provided under section
319 of the CWA to implement nonpoint pollution controls. This authority
is expressed in section 319(h)(1) of the CWA, which provides the EPA
Administrator with clear authority to put terms and conditions on
grants to States ``as the Administrator consider appropriate.'' Where
EPA develops a TMDL and decides that additional resources will be
necessary to provide reasonable assurance that the TMDL will be
implemented, EPA may use this authority to direct that an appropriate
amount of a State's, Territory's, or authorized Tribe's section 319
funding be devoted to implementing the EPA-developed TMDL. A number of
authorized Tribes and all States and Territories receive grants under
section 319; in 1999, the value of these grants is $200 million.
Taken together, these existing and proposed authorities for point
and nonpoint sources will enable EPA to implement TMDLs in those cases
where EPA establishes the TMDL in lieu of the State, Territory, or
authorized Tribe.
Legal or regulatory controls. The implementation plan must contain
a description of the legal authorities under which implementation will
occur. These authorities include, for example, NPDES, section 401
certification, Federal Land Policy and Management programs, legal
requirements associated with financial assistance agreements under the
Farm Bills enacted by Congress and a broad variety of enforceable
State, Territorial, and authorized Tribal laws to control nonpoint
source pollution. The Almanac of Enforceable State Laws to Control
Nonpoint Source Pollution (Environmental Law Institute, 1998) provides
information on the laws in each State.
Time required to attain water quality standards. The implementation
plan must contain an estimate of the time required to attain water
quality standards. The estimates of time required to attain water
quality standards must be specific to the source category, subcategory
or individual source and tied to the pollutant for which the TMDL is
being established. It must also be consistent with the geographic scale
of the TMDL, including the implementation actions. As noted
[[Page 46035]]
above, EPA recognizes that for some extremely difficult to solve
problems, implementation plans may allow relatively longer timeframes
for attainment of water quality standards.
Monitoring plan. The implementation plan must contain a monitoring
or modeling plan designed to determine the effectiveness of the
implementation actions and to help determine whether allocations are
met. The monitoring or modeling plan must be designed to describe
whether allocations are sufficient to attain water quality standards
and how it will be determined whether implementation actions, including
interim milestones, are occurring as planned. The monitoring plan must
also contain an approach for assessing the effectiveness of best
management practices and control actions for nonpoint sources.
Milestones for attaining water quality standards. The monitoring
plan must contain a description of milestones that will be used to
measure progress in attaining water quality standards. The milestones
must reflect the pollutant for which the TMDL is being established and
be consistent with the geographic scale of the TMDL, including the
implementation actions. The monitoring plan must contain incremental,
measurable milestones consistent with the specific implementation
action and the time frames for implementing those actions.
TMDL revision. The monitoring plan must contain a description of
when TMDLs must be revised. EPA expects that the monitoring plan would
describe when failure to meet specific milestones for implementing
actions or interim milestones for attaining water quality standards
will trigger a revision of the TMDL.
Endangered and Threatened Species Considerations. Today's proposal
at Sec. 130.33(d) provides that TMDLs shall not be likely to jeopardize
the continued existence of an endangered or threatened species listed
under section 4 of the Endangered Species Act or result in the
destruction or adverse modification of its designated critical habitat.
This provision reflects EPA's desire for expressly integrating the
water quality objectives of the CWA and the species protection goals of
the ESA. For example, EPA has recently developed a draft Memorandum of
Agreement with the Fish and Wildlife Service and National Marine
Fisheries Services describing how EPA will integrate species protection
goals into our water quality standards and NPDES permitting programs.
See 63 FR 2442 (January 15, 1999). EPA believes that consideration of
the needs of endangered and threatened species is also consistent with
the goals of the TMDL program as well. For example, Sec. 130.28 of the
proposed rule provides that waterbodies where federally listed species
are present must be designated as ``high'' priority for the development
of TMDLs, unless the State, Territory, or authorized Tribe shows
information that the impairment does not affect the threatened or
endangered species. Similarly, EPA believes that the prohibition
against ``jeopardy'' contained in the proposed section recognizes that
endangered and threatened species are an important component of the
aquatic ecosystem. EPA believes it is very unlikely that any TMDL would
have such a deleterious effect on any listed species, since TMDLs
identify the reductions needed to meet water quality standards, and
these reductions will obviously benefit listed species. Moreover, one
important objective of the draft MOA recently published in the Federal
Register is to ensure that water quality standards are protective of
endangered and threatened species. However, the proposal makes clear
that TMDLs must not be likely to jeopardize the continued existence of
such species. This requirement is consistent with CWA authorities,
which are fundamentally designed to achieve the goal of ``restoring and
maintaining the biological integrity'' of the nation's waters. See CWA
Sec. 101(a).
Other options considered. In developing today's proposal, EPA
considered several options. For example, EPA considered maintaining the
current regulatory language, which does not require certain minimum
elements for TMDLs. EPA rejected this option, agreeing with the FACA
Committee that the regulation should more clearly state the required
elements of TMDLs. This provides the States, Territories and authorized
Tribes and EPA with increased certainty for TMDL development and
approval.
EPA considered a number of options relating to implementation
requirements. EPA considered maintaining the current regulatory
language which does not specifically require an implementation plan to
be submitted as an approvable element of a TMDL. EPA did not propose
this option because it determined that it will be better able to
evaluate a TMDL's consistency with the statutory requirements if an
implementation plan is an element of a TMDL. In addition, EPA realizes
that in order for TMDLs to result in water quality improvement they
must be implemented. The requirement that an implementation plan be
developed as part of a TMDL will ensure the establishment of successful
TMDLs, that States, Territories and authorized Tribes will plan for
implementing TMDLs, and will provide all stakeholders with information
to help them assist in the establishment of TMDLs that help attain and
maintain water quality standards.
EPA also considered requiring the submission of an implementation
plan pursuant to section 303(d) concurrent with a TMDL, but not as an
element of the TMDL. Requiring submission of an implementation plan
separate from the TMDL is also a reasonable means for EPA to ensure
that TMDLs are ``established at a level necessary to implement the
applicable water quality standards'' (section 303(d)(1)(C)). Under this
option, EPA would not approve or disapprove the implementation plan,
but would consider the plan when reviewing the allocations established
in the TMDL. A State's, Territory's or authorized Tribe's failure to
submit an implementation plan could create uncertainty as to whether
the TMDL was established at the statutorily required level, and that
could result in EPA disapproval of the TMDL. Under this option, when
EPA disapproves a State, Territory or authorized Tribal-submitted TMDL
and establishes a TMDL in its place, EPA would not be required to
develop an implementation plan because the plan would not be one of the
required minimum elements of a TMDL. However, EPA could develop an
implementation plan if it chose, and could also utilize any or all of
its existing authorities to ensure that both the wasteload and load
allocations established by the TMDL are implemented. EPA did not
propose this option because it believes that States, Territories and
authorized Tribes will develop more successful implementation plans if
the failure to submit a plan or an adequate plan means that the TMDL
will be disapproved and EPA will establish a TMDL, including an
implementation plan, it its place.
EPA also considered requiring the submission of implementation
plans as updates to water quality management plans developed pursuant
to sections 208 and 303(e) of the CWA. Under section 303(e), the
Administrator shall approve any continuing planning process ``which
will result in plans for navigable waters within such State, which
include, but are not limited to the following'' including TMDLs and
implementation plans for new water quality standards. EPA reads this
language to authorize EPA to require submission of implementation plans
for TMDLs. Under this option, the
[[Page 46036]]
implementation plan would not be submitted as an element of the TMDL,
but as an element of the water quality management plan under the
existing regulatory requirement at 40 CFR 130.6, subject to State
certification and EPA approval. Water quality management plans are used
to direct implementation and TMDLs themselves are required to be
incorporated into current plans. This option would revise 40 CFR 130.6
to require an implementation plan for each TMDL as an element of the
water quality management plan. Like all other updates to water quality
management plans, an implementation plan would be submitted to EPA for
approval after the Governor certifies that the plan update is
consistent with all other parts of the plan. Under this option, EPA
could conditionally or partially approve the implementation plan, but
would not disapprove the plan or establish a substitute plan. As part
of this option, EPA considered whether to require submission of
implementation plans with the TMDL or at some later date, e.g., one
year after the submittal of the TMDL. If EPA selected this option, it
would also consider whether to require that implementation plans be
submitted at the same time as the TMDL is submitted. Simultaneous
submission would enable EPA to use the plan to assess the TMDL. EPA did
not, however, propose this option because it concluded that requiring
an implementation plan as an element of the TMDL under section 303(d)
would most effectively link the assessment of water quality with
necessary control actions and/or management measures. EPA also
considered whether to revise the regulations consistent with the
recommendations of the FACA Committee, to clarify that TMDLs may be
expressed in a variety of ways, e.g., as other than daily loads, or
using surrogate measures. In choosing to make these revisions, EPA
relied upon the experiences of States, Territories and authorized
Tribes and EPA in establishing TMDLs for pollutants often generated by
nonpoint sources, such as clean sediments and nutrients. It is not
always technically appropriate for such TMDLs to be expressed in terms
of daily loads.
Comments sought. EPA solicits comments on the required minimum
elements of TMDLs and whether any of the proposed required elements
should be deleted or whether there are other elements that should be
included. EPA also solicits comments on the proposal's requirement that
States, Territories and authorized Tribes be required to submit
implementation plans and whether implementation plans should be
required as an element of a TMDL, as a required submission accompanying
the TMDL, or as an update to a water quality management plan submitted
at the same time as the TMDL. EPA may choose to adopt any of these
options for the final rule.
b. Submission to EPA and EPA Actions
Existing requirements. Section 303(d) of the CWA requires that
States, Territories and authorized Tribes submit TMDLs, ``from time to
time,'' to EPA for review and approval. Under the statute, EPA has 30
days to approve or disapprove a TMDL. If EPA approves a TMDL, the
submitting State, Territory or authorized Tribe must incorporate it
into its water quality management plan required under section 303(e) of
the CWA. If EPA disapproves a TMDL, it then has an additional 30 days
to establish the TMDL. Existing regulations echo these statutory
requirements.
Proposed rule. Today's proposal, at Sec. 130.35, reflects the
current regulatory submission and approval requirements for TMDLs. EPA
is proposing several fairly minor changes to clarify how the TMDL
approval process will work. Today's proposal provides that a complete
TMDL submission is a TMDL that includes all of the minimum elements.
EPA intends to begin its 30-day review only after EPA has received a
submission with all minimum elements. The proposal also requires that
when EPA establishes a TMDL, it must send it to the State, Territory,
or authorized Tribe for incorporation into the water quality management
plan. Finally, the proposed rule provides that when EPA establishes a
TMDL, it will consider public comment on the TMDL for at least 30 days
following the TMDL's establishment.
Other options considered. In developing today's proposal, EPA
considered whether to revise the regulations to address how States,
Territories and authorized Tribes and EPA must deal with TMDL
establishment and approval decisions in the face of uncertainty. As
explained below, EPA ultimately determined that this issue is best
addressed in programmatic guidance and not in regulations.
The best science, coupled with rigorous and accurate data, is the
best foundation upon which to establish TMDLs. TMDL development,
however, can be inhibited by many factors, including inadequate data
collection, incompatible data from different sources, improper
analytical techniques, and inadequate or inappropriate models. As a
result, many TMDLs will be developed where the data and predictive
tools available do less than a perfect job of characterizing the
problem and calculating allocations with a high level of certainty.
One option EPA considered was whether it would be appropriate to
revise the regulations to require that TMDLs be established only on
data and analyses which met very strict quality and analytical
standards. EPA concluded that this approach is impractical and would
significantly decrease the numbers of TMDLs that could be established.
In addition, TMDL establishment is generally an iterative process;
therefore, even if a TMDL is developed with less than the highest
quality data and analyses, there will be opportunities in the future to
re-examine the TMDL and progress made toward attaining water quality
standards.
EPA also considered whether to revise the regulations to
incorporate the FACA Committee's recommendation that States,
Territories and authorized Tribes and EPA use a ``hierarchy approach''
to address TMDL establishment and approval in the face of uncertainty.
This approach dictates that the highest level of quantitative rigor
currently available always be used when establishing TMDLs. Where the
desired level of quantitative rigor is not possible for certain TMDL
elements, the FACA Committee recommended that the ``principle of
inverse proportionality'' be applied. Relatively less quantitative
rigor and certainty in certain TMDL elements is compensated for by a
relatively greater degree of quantitative rigor and certainty in other
TMDL elements.
EPA recognizes the benefits of applying the FACA Committee's
hierarchy approach and principle of inverse proportionality to deal
with the uncertainties associated with TMDL establishment and approval.
However, EPA determined that the question of how to address uncertainty
when establishing and reviewing TMDLs is best addressed in guidance and
is therefore incorporating the hierarchy approach and the principle of
inverse proportionality in the draft TMDL guidance available with
today's proposal. The hierarchy approach, as explained in guidance, is
one of the ways to establish TMDLs when information for certain TMDL
elements is not of the highest possible quantitative rigor. In
addition, other approaches to establishing TMDLs when the highest
possible quantitative rigor is not available may be used by States,
Territories and authorized Tribes and, therefore, EPA does not propose
use of
[[Page 46037]]
the hierarchy approach as a regulatory requirement.
Comments sought. EPA solicits comment on any or all aspects of the
proposal, including the options discussed.
c. EPA Establishment of TMDLs
Section 501(a) provides that ``[t]he Administrator [of EPA] is
authorized to prescribe such regulations as are necessary to carry out
his functions under this chapter.'' Accordingly, EPA is proposing in
Sec. 130.36 expressly to codify its ability to establish TMDLs if the
State so requests or if EPA determines that a State, Territory or
authorized Tribe is not likely to establish TMDLs consistent with their
schedules, or, if EPA determines it should establish TMDLs for
interstate or boundary waterbodies.
It may be necessary for EPA to establish TMDLs in a number of
situations. These include when interstate or international issues and
coordination needs require EPA to assume a leadership role. Such
interstate issues might involve TMDLs for large rivers, large
watersheds or where complex technical questions require EPA to act as a
catalyst in the establishment of a TMDL. For example, in complex water
systems like the Chesapeake Bay where the impaired portions of the Bay
are the responsibility of two states but also involve pollutant
loadings from another state and the District of Columbia, where there
is a cooperative agreement for protection of the Bay, plus three other
states in the watershed, who are not part of an established agreement,
EPA may provide an important role in bringing all jurisdictions into
the planning process and ensuring that adequate authority and public
process is covered for all states where wasteload allocations and load
allocations are necessary. In situations like this EPA may work with
both the Chesapeake Bay consortium that involves many diverse
stakeholders and officials from the other states to ensure that all
interested parties are represented in determining the loading
allocations. Jurisdictional issues such as those faced on boundary
waterbodies, may also cause EPA to initiate establishment of a TMDL.
EPA is also considering imposing a requirement that States,
Territories and authorized Tribes consult with each other before
listing as impaired a waterbody which forms part of the boundary
between them and before they begin developing a TMDL for such
waterbody. Such a consultation requirement would insure that, before
interstate and boundary waterbodies are listed or given TMDLs, the
neighboring governmental entities with jurisdiction over those
waterbodies will have had an opportunity to share information about the
waterbody's condition and the appropriateness of any planned action
under section 303(d) for that waterbody.
EPA is also considering imposing a requirement that neighboring
States, Territories and authorized Tribes with jurisdiction over a
listed waterbody must jointly develop any TMDL for that waterbody. This
cooperative exercise would be in lieu of EPA exercising its
discretionary authority to develop the TMDL itself. Such a requirement
would insure that neighboring States, Territories and authorized Tribes
work with each other and all affected stakeholders in developing the
TMDL.
EPA requests comment on these and any other ideas for listing or
doing TMDLs for interstate waterbodies, including how best to develop
TMDLs that account for equitable upstream/downstream State, Territory
and authorized Tribe allocations and that account for loadings to
downstream waterbodies like the Chesapeake Bay from far away upstream
sources.
International waters pose especial difficulties. When establishing
TMDLs for waterbodies that share an international border or flow from
another country, the load reductions needed to meet water quality
standards may not be achievable if those reductions are allocated only
to U.S. sources. Should TMDLs for such waters allocate reductions to
sources both within and outside the United States or in the
alternative, should such TMDLs assume the status quo in terms of loads
from outside the United States and allocate reductions only within the
United States? EPA requests comments on either or any other approach.
EPA may also decide to exercise its authority if it determines that
a State, Territory, or authorized Tribe has not or is not likely to
meet its schedule for establishing TMDLs. EPA may decide, after first
working with the State, Territory or authorized Tribe, that it should
step in to establish TMDLs so that the overall pace of establishing
TMDLs in the State, Territory or authorized Tribe remains expeditious.
EPA anticipates that the decision to step in and establish TMDLs will
be rare and based on case specific decisions. Finally, EPA may exercise
its authority upon the request of the State, Territory or authorized
Tribe.
EPA recognizes that its authority to establish TMDLs is not
expressly stated in section 303(d). However, such authority is clearly
implied in the CWA, is a reasonable interpretation of the Act, and is
necessary to accomplish the purposes of the Act.
Section 303(d)(1)(C) places a clear mandate on the states to
establish TMDLs for listed waterbodies. Section 303(d)(2) says that, if
a state submits a TMDL and if EPA disapproves it, EPA shall establish a
replacement TMDL within 30 days of the disapproval. Section 303(d) does
not expressly say what must or may happen if states do not submit TMDLs
to EPA for approval.
Courts, in finding that EPA has a mandatory duty to do TMDLs where
a state has failed to do them, believed such a duty was necessary so
that the Congressional scheme contemplated by Congress in section
303(d) is not frustrated by state failures to act. See Scott v. City of
Hammond, 741 F.2d 992 (7th Cir. 1984)). As the Scott court said: `` We
think it unlikely that an important aspect of the federal scheme of
water pollution control could be frustrated by the states refusal to
act.'' 741 F.2d at 997.
Consistent with this case law EPA clearly has authority to
promulgate regulations specifying when it will establish TMDLs. In the
face of Congress' obvious desire that states do TMDLs in the first
instance and that EPA does them if it disapproves a submission,
Congress would not have left EPA powerless to establish TMDLs in the
face of state inaction. Such a result would frustrate the purposes of
the statute. See E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112,
132 (1977) (the Supreme Court stating that it `` `[could not] * * *
conclude that Congress ha[d] given authority inadequate to achieve with
reasonable effectiveness the purposes for which it has acted' '' in the
Clean Water Act)(quoting Permian Basin Area Rate Cases, 390 U.S. 747,
777 (1968)).
In Dioxin/Organochlorine Center v. Clarke, the Ninth Circuit
affirmed a TMDL which EPA had established for dioxin in the Columbia
River 57 F.3d 1517 (9th Cir. 1995). After consultation and involvement
in the development of the draft TMDL, the States of Oregon, Washington
and Idaho asked EPA to issue the proposed and final TMDLs as a federal
action under the authority of section 303(d)(2). EPA proposed and
established the dioxin TMDL, which the court upheld. Although the
question of EPA's authority to do the TMDL absent a prior state
submission and disapproval was not squarely before the court, the Ninth
Circuit had no trouble concluding that EPA had sufficient authority
pursuant to section 303(d) to establish the TMDL. 57 F.3d at 1527, 1528
n.14. For all these reasons, section 303(d)
[[Page 46038]]
gives EPA authority to establish TMDLs when States fail to do so.
6. What are the Proposed Rule's Requirements for Public Participation
and Coordination with Federal Agencies?
Existing requirements. EPA's existing regulations do not include
any States, Territories and authorized Tribes public participation
requirements, except that 40 CFR 130.7 (c)(1)(ii) requires ``that
calculations to establish TMDLs shall be subject to public review as
defined in the State CPP.'' EPA's existing regulations, however, do
include a requirement that when EPA disapproves and establishes either
a list or a TMDL, EPA must seek public comment on the list or TMDL.
Historically, EPA's policy has been that there should be full and
meaningful public participation at the States, Territories and
authorized Tribes level in both the listing and TMDL development
processes. As such, EPA has encouraged States, Territories and
authorized Tribes to carry out public participation consistent with
their own public participation requirements.
Proposed rule. Communicating with the public and promoting public
input into the listing and TMDL development processes is key to
establishment of successful, robust TMDLs. For progress to be made in
improving the water quality of our Nation's waterbodies, the public
must be aware of water quality impairments and support actions to
eliminate impairments. Today's proposal, at Sec. 130.37, therefore
requires that States, Territories and authorized Tribes provide the
public with at least 30 days to review and comment on all aspects of
the list (including the priority ranking and identification of the
pollutant(s) and/or pollution causing or expected to cause each
waterbody's impairment), the schedule of TMDLs, and TMDLs themselves
prior to their submission to EPA. Today's proposal also requires that,
at the time States, Territories, and authorized Tribes submit their
list, schedule or TMDLs to EPA, they provide EPA with a written summary
of any public comments received during the public comment period on the
list, schedule and TMDLs, and their response to such comments.
Today's proposal, at Sec. 130.23(a), also includes a requirement
that States, Territories and authorized Tribes provide public notice
and comment on their listing methodologies, and provide EPA with a
summary of comments received and their response thereto when the final
methodology is provided to EPA.
Today's proposal includes a requirement that at the time States
provide the public the opportunity to review and comment on their lists
of impaired or threatened waterbodies, priority rankings, schedules,
and TMDLs, they must provide a copy of each of these documents to EPA.
The proposed rule also would require that States consider any comments
provided by EPA on these documents; EPA will consider how the States
address its comments in its final decision approving or disapproving
lists, rankings and TMDLs. By giving EPA an opportunity to review and
provide the State with comments at an early stage in the process, this
proposed provision will facilitate development of lists, rankings,
schedules and TMDLs that reflect EPA's input. It is desirable, whenever
possible, for EPA to provide its technical and other expertise at the
time in the process where it can be reflected in final decisions made
by States. The process will improve the likelihood that lists,
rankings, and TMDLs ultimately submitted to EPA will be approved.
The proposed rule also included several provisions designed to
facilitate consideration of endangered and threatened species when
developing lists, rankings, schedules and TMDLs. These proposed
provisions reflect EPA's desire for expressly integrating the water
quality objectives of the CWA with the species conservation objectives
of the Endangered Species Act (ESA). Consideration of the needs of
endangered and threatened species is also consistent with the
requirements and the objectives of the TMDL program. The proposed rule
encourages States to establish processes with both the U.S. Fish and
Wildlife Service and the National Marine Fisheries Service that will
provide for the early identification and resolution of threatened and
endangered species as they relate to lists of impaired or threatened
waterbodies, priority rankings, schedules, and TMDLs. In addition,
under the proposed rule, at the time of public notice the States will
send the U.S. Fish and Wildlife Services and the National Marine
Fisheries Service, where appropriate (e.g., coastal areas) copies of
lists and priority ranking, unless the States request EPA to do so; EPA
will request the wildlife agencies to provide comments to the States
and provide EPA copies of these comments. Under today's proposal States
would be required to consider any comments received from the wildlife
agencies prior to the submission of their lists of impaired or
threatened waterbodies, priority rankings, schedules, and TMDLs. EPA
will consider the comments of the wildlife agencies, and the manner in
which they were addressed by the State, when taking action on lists,
rankings and TMDLs submitted by States.
These proposed provisions will ensure timely input from the
wildlife agencies early in the process rather than later. EPA would
like to facilitate the development of working relationships between
States and the Services so that the States will have the benefits of
the Services' expertise, and the early involvement of the Services will
help to integrate the species protection objectives of the ESA and the
CWA into the TMDL program.
Other options considered. In developing today's proposal, EPA
considered maintaining the status quo, i.e., not including in the
regulations any specific public participation requirements. EPA
rejected this option, however, because EPA believes that public
participation in the listing and TMDL development processes is critical
to the development of sound lists and TMDLs. In addition, providing the
States, Territories and authorized Tribes with clear-cut public
participation requirements eliminates any current confusion that may
exist regarding EPA's expectations for States, Territories and
authorized Tribes public participation on lists and TMDLs.
In developing today's proposal, EPA considered maintaining the
current regulatory language that does not require copies of list,
priority rankings, schedules, and TMDLs to be sent to EPA, Fish and
Wildlife Service, and National Marine Fisheries at the time of public
notice. EPA rejected this option because it does not provide an
opportunity for meaningful input by EPA or other Federal agencies prior
to the States', Territories' and authorized Tribes' submissions to EPA.
EPA also considered a requirement that the States, Territories and
authorized Tribes send advance copies only to EPA, not to Fish and
Wildlife Service and National Marine Fisheries Service. EPA rejected
this approach because the wildlife agencies would not receive these
documents as early in the process if EPA, rather than the States,
Territories and authorized Tribes, were to transmit these to the
Service. However, if States, Territories and authorized Tribes wish,
they can provide these documents only to EPA and EPA will forward them
to the Services.
Comments sought. EPA solicits comment on any or all aspects of the
public participation requirements in the proposal, including the
options discussed.
[[Page 46039]]
7. What is the Effect of the Proposed Rule on Transitional TMDLs and
Schedules?
Between the date of this proposal and the publication of a final
rule in the Federal Register amending the current requirements for
TMDLs, States, Territories and authorized Tribes (and in some instances
EPA) will be establishing TMDLs pursuant to schedules submitted along
with their 1998 section 303(d) lists or schedules incorporated into
consent decrees or settlement agreements concluding TMDL lawsuits.
Until these proposed amendments become final (and some aspects of this
proposal may change as a result of public comments received over the
next few months), the current regulations at Sec. 130.7 establish the
minimum requirements for approvable TMDLs. Given the likelihood that
the current TMDL requirements will change significantly when the
proposed amendments become final, there is a need to consider how these
new regulations will apply and whether their effective date should be
extended.
EPA is anxious that any new requirements be effective and
implemented as soon as possible. Accordingly, EPA currently intends to
have these revisions be effective 30 days after publication of the
final rules in the Federal Register, as generally contemplated by the
Administrative Procedure Act. However, recognizing the need for orderly
administration of this program, EPA is proposing at Sec. 130.38(a) that
it will approve any TMDL submitted to it for review within 12 months of
the final rule's effective date if it meets either the requirements in
current Sec. 130.7 or the new requirements proposed in Secs. 130.32,
130.33 and 130.34. In recognition of the fact that EPA may establish
TMDLs during this transition period, EPA is also proposing at
Sec. 130.38(b) that it may establish TMDLs within 12 months of the
rule's effective date either according to the pre-amendment
requirements in Sec. 130.7 or the post amendment requirements in
Secs. 130.32, 130.33 and 130.34. EPA believes that this approach will
afford States, Territories, authorized Tribes and EPA the certainty of
knowing that, should they begin to establish TMDLs in the next year or
so modeled on the requirements in the current rules, those TMDLs will
not be determined to be inadequate as a result of the final adoption of
these proposed amendments.
In addition to the issue of which criteria apply to TMDLs
established during the period of transition between the new and old
regulations, EPA is concerned about the impact of the proposed new TMDL
requirements on commitments it has made to guarantee establishment of
TMDLs under consent decrees and settlement agreements. During the past
three years, EPA has entered into consent decrees and settlement
agreements concluding 15 lawsuits alleging, among other things, that
EPA should have established TMDLs in 13 different States. Those States
are: Alabama, Arizona, California, Delaware, Florida, Georgia, Kansas,
Mississippi, New Mexico, Pennsylvania, Virginia, Washington and West
Virginia. Typically, these consent decrees or settlement agreements
contains schedules according to which the States expect to establish
TMDLs for all waterbodies identified on their section 303(d) lists and
commitments by EPA to establish those TMDLs by certain dates if the
State fails to meet its schedule. The schedules for establishing TMDLs
in these consent decrees range from approximately four and one-half
years to 12 years in length. The number of waterbodies and potential
TMDLs covered under each consent decree also varies. Some consent
decrees, like California (Newport Bay), address only a small number of
impaired waterbodies. Others, like the Kansas consent decree, require
the establishment of TMDLs for over 1000 waterbodies statewide.
Each of the settlements and accompanying TMDL schedules was
negotiated by EPA in the context of what current regulations at 40 CFR
130.7 require an approvable TMDL to look like. Accordingly, when
deciding on appropriate schedules to incorporate into these
settlements, EPA considered how long it might reasonably take a State
(or EPA) to establish the necessary TMDLs based on current
requirements. The schedules that were negotiated with the plaintiffs
and incorporated into the various settlements were aggressive even by
these standards.
Today's proposal includes a number of changes to the current TMDL
requirements which, while making for more effective TMDLs, may increase
the time it takes to establish a TMDL. Most significantly, today's
proposal at Sec. 130.33(b)(10) would require that each TMDL include an
implementation plan containing eight specific elements. While EPA
always expected reasonable assurances that the TMDL's wasteload and
load allocations would be implemented, the proposed regulations are
more specific. Implementation plans must also include a description of
the control actions and/or management measures which will be
implemented and a monitoring/modeling plan designed to determine the
effectiveness of these actions and measures. The proposal at
Sec. 130.37(a) also adds an express requirement that States,
Territories and authorized Tribes provide the public with no less than
30 days to review and comment on any TMDLs before they are submitted to
EPA. When submitted to EPA for review, TMDLs must also be accompanied
by a summary of all the comments received and responses to those
comments.
EPA recognizes that the new regulations may add time to the
process, especially for near-term deadlines where States may not have
enough time to adjust their processes. Accordingly, EPA requests
comment on whether any new TMDL requirements contained in today's
proposal may affect the ability of States to perform their obligations
as contemplated under the various TMDL consent decrees and settlement
agreements. To the extent these new provisions are promulgated and will
require more time for establishment of TMDLs, EPA has at least two
options it might consider. First, it might further phase in some of the
requirements (for example, the requirement that all TMDLs have an
implementation plan) so that States' near-term consent decree schedules
can be met. Second, EPA might on a case-by case basis seek to modify
court ordered TMDL schedules as appropriate to accommodate whatever
additional workload is required by these new requirements. EPA invites
comment on the extent to which any new TMDL requirements are likely to
render any of the existing court-ordered TMDL schedules unrealistic, as
well as the wisdom and necessity of pursuing either of the above-
mentioned options. EPA also invites comment on whether it is
appropriate to allow EPA to approve TMDLs submitted for review within
12 months of the final rule's effective date if those TMDLs meet either
the pre-amendment requirements in Sec. 130.7 or the post-amendment
requirements being proposed today, and if not, what an appropriate
timeframe would be. Similarly, EPA invites comment on whether it is
appropriate to allow EPA to establish TMDLs within 12 months of the
final rule's effective date either according to the pre-amendment
requirements in Sec. 130.7 or the post-amendment requirements being
proposed today, and if not, what an appropriate timeframe would be. EPA
is also considering whether it should establish a longer or shorter
transitional period of time and specifically requests
[[Page 46040]]
comment on this issue and suggestions of alternative transition
periods.
8. What Changes Does the Proposed Rule Make to the Continuing Planning
Process and Water Quality Management Plan Requirements?
Existing requirements. EPA's existing TMDL regulations do not
require States, Territories and authorized Tribes to develop
implementation plans for TMDLs and do not include any requirements for
States, Territories and authorized Tribes submission of implementation
plans for TMDLs. EPA's regulations at 40 CFR 130.6, however, require
States, Territories and authorized Tribes to update their water quality
management plans, which are used to direct implementation of States',
Territories' and authorized Tribes' water quality programs and which
must include certain elements, including TMDLs and implementation
measures.
Proposed rule. Today's proposal, at Sec. 130.50 and Sec. 130.51,
makes several minor changes to the continuing planning process and
water quality management plan requirements currently found at 40 CFR
130.5 and 130.6, respectively. It revises the existing continuing
planning process regulations to clarify that States, Territories and
authorized Tribes have discretion to go beyond the mandatory plan
elements set out in the regulation and also include other processes,
such as watershed-based planning and implementation. The proposal also
makes clear that a CPP need not be a single document. This reflects the
current practice that the CPP may be a compendium of many different
State, Territorial and authorized Tribal planning documents. Today's
proposal also revises the current regulatory requirements for water
quality management plans at 40 CFR 130.6 to clarify that updates to
water quality management plans should incorporate approved TMDLs and
generally have a watershed basis. Under 40 CFR 130.6, States,
Territories and authorized Tribes should update their water quality
management plans as needed to reflect, among other things, changing
water quality conditions and the results of implementation actions. If
a State's, Territory's, or authorized Tribe's water quality management
plan needs to be updated, EPA can, under 40 CFR 130.6, require the
State, Territory or authorized Tribe to update their plan.
Other options considered. EPA considered not proposing any changes
to the existing regulatory requirements for water quality management
plans and CPPs.
Comments sought. EPA seeks comments on its proposed changes to the
continuing planning process and water quality management regulatory
requirements. EPA also seeks comments on whether other changes are
needed to these requirements.
9. How Can the Public Petition EPA to Establish TMDLs?
This regulation is proposed under authority granted to EPA under
CWA sections 501(a) and 303(d), 33 U.S.C. Secs. 1361(a), 1313(d).
The purpose of Sec. 130.65 is to formalize a petition process for
the public to request that EPA step in and perform duties imposed on
States, Territories and authorized Tribes by section 303(d). Although
this petition process has been available to the public since section
303(d) was enacted, it has seldom been utilized in the context of
section 303(d). This new section should increase public awareness of
this procedure for requesting Agency action. See, APA Sec. 555(b), 5
U.S.C. Sec. 555(b).
EPA is proposing to codify a specific petition process for section
303(d) for several reasons. First, EPA recognizes that numerous citizen
groups and individuals are very interested in promoting the expeditious
development of meaningful TMDLs throughout the Nation. EPA is also
aware that many of these groups and individuals have been dissatisfied
both with the pace at which States have been establishing TMDLs and, to
some extent, with the nature and degree of EPA oversight of State
progress in establishing TMDLs. Although these citizens at all times
have possessed the right to petition EPA to intervene more actively in
a State's TMDL development process, EPA interprets the lawsuits that
citizens have filed against EPA within the last five years to be an
indication either that the public is unaware that it can take its
grievances directly to EPA for consideration, or that it has concluded
that taking such grievances directly to EPA would be futile. By
proposing this petition process, EPA hopes to make it very clear to the
public that EPA recognizes the important role that the public serves in
helping the States and EPA to implement section 303(d). Second,
presenting grievances in the first instance to EPA rather than to the
courts will allow EPA, by applying its expertise to the facts the
citizens present, to respond more directly to citizens' concerns in the
context of its national policy objectives. EPA's discretionary
authority to oversee the State, Territorial and authorized Tribal
implementation of section 303(d) is not unfettered; the petition
process thus would provide a mechanism whereby citizens can assure that
EPA exercises that discretion wisely. Third, the petition process--and
the resulting administrative record--will promote more efficient
judicial review of EPA's decision whether and, possibly, how to
intervene in any particular State.
When Congress directed EPA to approve or disapprove State,
Territories or authorized Tribes section 303(d) lists and TMDL
submissions and to establish its own lists or TMDLs in the event EPA
disapproves the submission, Congress imposed very specific duties on
EPA under section 303(d). However, EPA does not believe that its role
under section 303(d) is limited to those narrow, although important,
duties. Section 303(d) reasonably can also be interpreted to vest in
EPA more general oversight authority to ensure the States' timely and
meaningful implementation of section 303(d).
EPA, on its own initiative, can and does exercise that oversight
authority. For example, over the past decade, EPA has modified its
regulations and issued numerous guidance documents to emphasize the
importance of the section 303(d) listing process. As a consequence,
States'', Territories' and authorized Tribes' section 303(d) lists have
become more comprehensive and, accordingly, more useful in water
quality decision making. EPA has also provided considerable technical
and financial assistance to invigorate TMDL development, e.g., by
providing technical support in establishing TMDLs, completing and
supporting analyses necessary to establish TMDLs and developing
computer models for use in establishing TMDLs. EPA has also worked with
States, Territories and authorized Tribes to develop long-term
schedules providing for the establishment of TMDLs on all listed
waters.
EPA recognizes, however, that members of the public would like to
influence how EPA exercises its discretionary authority to oversee the
TMDLs, specifically with respect to particular States, Territories and
authorized Tribes. The proposed petition process is the best way to
accomplish this. (Indeed, although the petition regulation is merely
proposed, not codified, EPA notes that citizens are free to exercise
their petition rights at any time.) First, the petition process allows
EPA to apply the statutory scheme to particular factual situations
raised by the petitioners. It allows EPA to consider the facts
presented by the petitioners, to make its own findings of facts, to
apply its expertise, and, finally, to exercise the discretion granted
it by
[[Page 46041]]
Congress to determine if, when, and how to intervene to reinforce a
State's, Territory's or authorized Tribe's implementation of section
303(d). In response to a petition, EPA will also need to explain the
bases for its decisions, which in turn can stimulate further policy
debate. Second, the petition process allows EPA to consider the
petitioner's request in light of its overall national policy goals,
statutory obligations, and resource constraints. Because EPA is charged
with implementing numerous other environmental statutes in addition to
the CWA, the petition process allows EPA to balance all of its
responsibilities and objectives in a way that ensures that it is
carrying out its overall mission in the most timely and effective
manner possible. Third, the petition process does not prevent citizens
from seeking redress in federal court. To the contrary, the petition
process will facilitate judicial review of EPA's oversight of the
State, Territorial or authorized Tribal TMDLs. In response to citizens'
petitions, EPA will assemble and analyze relevant facts, reach a
decision, and explain the basis for that decision. If a citizen is
dissatisfied with the resulting decision and files suit, a reviewing
court would have an administrative record against which to evaluate the
reasonableness of EPA's decision. In EPA's view, the petition process
allows the administrative process to proceed, with the results of the
process subject to judicial review only at the conclusion of the
process. This not only honors the separate roles and responsibilities
of the administrative and judicial processes, but it also assures that
EPA, in the first instance, has an adequate opportunity to exercise the
discretionary authority Congress conferred upon it.
Section 130.65(b) clarifies that this petition procedure is not
intended to be used to prompt EPA to establish a TMDL for a particular
waterbody, or for moving a particular waterbody to a different part of
a the schedule. Efforts to alter State, Territorial or authorized
Tribal priorities are more suitably directed to that State, Territory
or authorized Tribe. The best time to convey comments on State,
Territory or authorized Tribal priorities is likely to be when the
section 303(d) list of waters needing TMDLs and the schedule for
establishing TMDLs is published for public comment. EPA hopes to
reserve what limited resources it has for intervening with support in
those instances where the shortcomings, or perceived shortcomings, of
State, Territorial or authorized Tribal efforts are substantial.
It is EPA's goal to answer petitions filed under 40 CFR 130.65(c)
within four months of receipt. See 40 CFR 130.65(e). In accordance with
APA section 555(b), ``within a reasonable time, each agency shall
proceed to conclude a matter presented to it.'' Although EPA cannot
guarantee that each petition will be answered within four months, it
commits to making reasonable efforts to meet that deadline.
Section 130.65(d) is not intended to delineate an exhaustive list
of elements a petition must contain. Nor is 40 CFR 130.65(f) intended
to contain a comprehensive list of factors EPA will consider in
evaluating whether to step in and take primary responsibility for
conducting activities that States, Territories or authorized Tribes are
directed to perform under section 303(d). EPA will consider any and all
relevant information submitted with a petition under 40 CFR 130.65.
10. What Changes Does the Proposed Rule Make to the Water Quality
Standards and State Submission Requirements?
Existing requirements. EPA's regulations at Sec. 130.3 provide a
definition of ``water quality standard'' that replicates the definition
found in the water quality standards regulations at 40 CFR Part 131.
EPA's regulations at Sec. 130.10(d) describe requirements that EPA
promulgated in 1989 to implement CWA section 304(l). Section 304(l)
required States, Territories, and authorized Tribes to submit certain
water quality information about waters by February 4, 1989.
Proposed rule. EPA is proposing to delete both Sec. 130.3 and
Sec. 130.10(d). Section 130.3 merely duplicates the same definition of
``water quality standard'' found in the water quality standards
regulations at 40 CFR Part 131. As a result, the existing language at
Sec. 130.3 is duplicative and unnecessary. Section Sec. 130.10(d)
required a one-time information submittal by States, Territories, and
authorized Tribes. This requirement has not been used since all the
States and Territories submitted this information, and CWA section
304(l) requires only one submittal. Therefore, that the requirement to
submit this information is now obsolete.
Comments sought. EPA seeks comments on its proposed deletions to
the existing water quality standards definition and the CWA section
304(l) parts of the state submittal requirements.
Regulatory Requirements
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), as
amended by the Small Business Regulatory Enforcement Fairness Act,
generally requires Federal agencies to conduct an initial regulatory
flexibility analysis (IRFA) describing the impact of the regulatory
action on small entities for any rule for which a notice of proposed
rulemaking is required under the Administrative Procedure Act (5 U.S.C.
section 551 et seq.) or any other statute. However, under section
605(b) of the RFA, if the Administrator for EPA certifies that the
proposed rule will not have a significant economic impact on a
substantial number of small entities, EPA is not required to prepare an
IRFA. The Administrator is today certifying, pursuant to section 605(b)
of the RFA, that this proposed rule will not have a significant
economic impact on a substantial number of small entities. Therefore,
EPA did not prepare an initial regulatory flexibility analysis.
The RFA requires analysis of the impacts of a rule on the small
entities subject to the rule's requirements. See United States
Distribution Companies v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996);
Mid-Tex Electric Co-op., Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985);
Motor & Equipment Manufacturers Ass'n v. Nichols, 142 F.3d 449 (D.C.
Cir. 1998). Today's rule establishes no requirements applicable to
small entities, and so is not susceptible to regulatory flexibility
analysis as prescribed by the RFA. (``[N]o [regulatory flexibility]
analysis is necessary when an agency determines that the rule will not
have a significant economic impact on a substantial number of small
entities that are subject to the requirements of the rule.'' United
Distribution at 1170, quoting Mid-Tex Elec. Co-op v. FERC, 773 F.2d
327, 342 (D.C. Cir. 1985) (emphasis added by United Distribution
court). EPA is therefore certifying that today's rule will not have a
significant economic impact on a substantial number of small entities,
within the meaning of the RFA, for the following reasons.
First, section 303(d) of the CWA directs States, Territories and
authorized Tribes (and EPA, if it disapproves the State's, Territory's
or authorized Tribe's efforts) to establish lists of impaired
waterbodies and TMDLs for those waterbodies. Tribes may apply for
authority to establish lists and TMDLs in Indian Country. The proposed
regulations establish requirements for EPA, States, Territories and
authorized Tribes to follow when establishing TMDLs and lists of
[[Page 46042]]
impaired waterbodies under section 303(d) of the CWA. The regulations
apply only to those three categories of entities and do not impose TMDL
or listing requirements upon any small entities.
Second, the impact (if any) on small entities of any TMDLs or lists
that might be established or approved by EPA, States, Territories and
authorized Tribes pursuant to these proposed regulations is indirect
and highly speculative. First, no impact flows directly from these
proposed regulations. Only the listing or TMDL action itself taken by
EPA, States, Territories and authorized Tribes pursuant to these
regulations would have any possible impact. Second, any economic impact
on small entities will result, if at all, only as a consequence of
future State, territorial, tribal or EPA actions. The CWA and these
proposed regulations afford the States, Territories, authorized Tribes
and EPA considerable discretion in deciding which waterbodies to list,
how to prioritize such waterbodies, how to schedule the waterbodies for
TMDL development, and how to calculate and apportion TMDLs and their
component load and wasteload allocations. The extent to which future
listing or TMDL approval decisions may have any impact on small
entities is impossible to predict given the uncertainties inherent in a
process involving the exercise of discretion over so many variables.
While a State's, Territory's or authorized Tribe's implementation of
today's rule may ultimately result in the listing of a water or
development of a TMDL that may have an impact on point or nonpoint
source dischargers, EPA's action today does not apply to any
discharger, including small entities.
Third, the uncertainty regarding what (if any) impact these
proposed regulations may have on small entities is increased by the
fact that TMDLs are not self-implementing. Assuming a TMDL is
established by a State, Territory, authorized Tribe, or EPA for a
listed water, the TMDL's wasteload allocations (for point sources) and
the load allocations (for nonpoint sources) are not directly
enforceable under the CWA. Under EPA's NPDES permitting rules, effluent
limits in point source permits must be ``consistent with'' (but not
necessarily identical to) wasteload allocations in approved TMDLs.
However, the TMDLs themselves (and their wasteload allocations) are not
independently enforceable. With respect to nonpoint sources, the load
allocations in a TMDL are only ``enforceable'' to the extent they are
made so by State, Territorial, or authorized Tribal laws and
regulations. There are no Federal requirements that such load
allocations actually be met by small (or any other) entities. Given the
compounding uncertainties regarding (1) Whether any particular
waterbody will be listed, (2) if it is, when a TMDL will be
established, (3) what the TMDL's allocations will be, (4) which
entities will be assigned those allocations, and (5) whether, and in
what form, those allocations will be implemented, it is impossible to
say whether or to what extent these proposed regulations (and any
resulting TMDL or listing actions) will impact small entities.
Finally, even assuming that future listing or TMDL actions may
ultimately have some discernable effect on small entities, such impacts
would actually flow from requirements already established by section
303(d) of the CWA and the States, Territories' and authorized Tribes'
water quality standards and not these proposed regulatory amendments.
Section 303(d) requires that States, Territories and authorized Tribes
(or, under certain circumstances, EPA) list waterbodies and establish
TMDLs with reference to criteria contained in State, Territorial or
authorized Tribal water quality standards. Independent of today's
proposed amendments, States, Territories and authorized Tribes (and,
under certain circumstances, EPA) already have an obligation to list
waterbodies and establish TMDLs necessary to implement the State,
Territorial, and authorized Tribal water quality standards. Today's
proposals merely amend EPA's existing regulations implementing those
statutory requirements. Any impacts should be seen as resulting from
the independent statutory obligation to establish TMDLs that implement
the State, Territorial and authorized Tribal water quality standards,
and not from these proposed regulatory requirements.
B. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA
must determine whether the regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action.'' As
such, this action was submitted to OMB for review. Changes made in
response to OMB suggestion or recommendations will be documented in the
public record.
Under the regulatory review provisions of Executive Order 12866 EPA
evaluates the benefits and costs of proposed new rules. In the case of
an existing program, like the TMDL program, this assessment focuses on
the benefits and costs associated with the change in regulatory
requirements. Accordingly, EPA has prepared an analysis of the direct
costs that the new requirements of this proposed rule will impose on
States, Territories and authorized Tribes that must list, and develop
TMDLs for, impaired waters. This analysis, entitled ``Analysis of the
Incremental Costs of Proposed Revisions to the TMDL Program
Regulations'' is available in the docket for the rulemaking.
However, EPA recognizes that the TMDL program is of interest to a
wide range of stakeholders, and expects that stakeholders will have an
interest in understanding the costs and benefits resulting from
implementation of the TMDL program as well as the direct costs of
developing TMDLs to States, Territories, and authorized Tribes under
this proposed rule. In anticipation of the interest of diverse
stakeholders, EPA has begun work to gather information about the costs
and benefits that can be expected to result from implementation of the
TMDL program. A key part of this assessment is to better understand the
costs and benefits of the existing TMDL program, as well as the
incremental costs and benefits that will result from the changes to the
TMDL program.
As part of this effort, EPA is gathering information concerning the
costs that pollution sources may incur in implementing the pollution
controls called for in TMDLs developed under the new rule. These costs,
however, are difficult to estimate. A TMDL is developed on a specific
water body and is the product of a locally-based decision-making
process. The allocation decisions made at the local level may
[[Page 46043]]
produce water quality benefits at a lower cost than projected by EPA
cost models. Also, many of the actions identified in TMDLs as needed to
meet water quality goals may to be required under other provisions of
the Clean Water Act or other Federal or State laws. It may be difficult
in some cases to distinguish actions undertaken to comply with other
statutory provisions from those undertaken to implement TMDLs. In such
cases, it is appropriate to consider alternative assumptions about the
costs and benefits that would occur anyway and those that would result
from implementing TMDLs.
EPA is also gathering information on the water quality,
environmental, public health and economic benefits of the TMDL program
and the restoration of the health of the Nation's polluted waters.
While the estimation of benefits is traditionally difficult, EPA is
working to develop improved models for describing benefits in both
qualitative and quantitative terms. As noted above, because the TMDL
program is related to other provisions of the Clean Water Act, and
other Federal and State laws, attributing benefits to the TMDL program
requires a certain amount of judgment and may require consideration of
alternative assumptions or ``baselines''.
EPA is working to develop this information and analysis
expeditiously. As this work evolves and its quality is sufficient to
meaningfully inform the public, EPA will make it available for public
review and comment. EPA hopes to be able to provide results from this
work prior to the final promulgation of the TMDL rule.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, Territory, authorized
Tribal or local governments and the private sector. Under section 202
of the UMRA, EPA generally must prepare a written statement, including
a cost-benefit analysis, for proposed and final rules with ``Federal
Mandates'' that may result in expenditures to State, local, and Tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. Before promulgating an EPA rule for
which a written statement is needed, section 205 of the UMRA generally
requires EPA to identify and consider a reasonable number of regulatory
alternatives and adopt the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. The
provisions of section 205 do not apply when they are inconsistent with
applicable law. Moreover, section 205 allows EPA to adopt an
alternative other than the least costly, most cost-effective or least
burdensome alternative if the Administrator publishes with the rule an
explanation why that alternative was not adopted. Before EPA
establishes any regulatory requirements that may significantly or
uniquely affect small governments, including Tribal governments, it
must have developed under section 203 of the UMRA a small government
EPA plan. The plan must provide for notifying potentially affected
small governments, enabling officials of the affected small governments
to have meaningful and timely input in the development of EPA
regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements.
EPA has determined that today's proposed rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any one year. The costs for States, Territories and
authorized Tribes to implement the requirements in today's proposal are
not expected to exceed $25 million in any one year. In addition, since
today's proposal does not impose any requirements on the private
sector, the private sector will incur no costs. Thus, today's proposal
is not subject to the requirements of section 202 and 205 of UMRA.
As explained in the Regulatory Flexibility Act section of the
preamble, this proposed rule establishes no requirements applicable to
small entities and, thus, this proposed rule will not significantly
affect small entities. EPA has determined that this proposed rule
contains no regulatory requirements that might significantly or
uniquely affect small governments including Tribal governments. As
explained earlier in this preamble, the Clean Water Act authorizes EPA
to treat an Indian Tribe in the same manner as a State for purposes of
establishing lists of waters and TMDLs, and EPA today is clarifying the
test an Indian Tribe must meet to be authorized to establish lists of
impaired waters and TMDLs in Indian country. Currently, there are no
Tribes authorized to establish TMDLs under section 303(d) and, as a
result, today's proposal will not significantly or uniquely affect
Tribal governments. However, as Tribes continue to build their Clean
Water Act capacity and obtain water quality standards program approval,
some Tribes are likely to seek approval to establish TMDLs. Moreover,
whether or not Tribes choose to do so, they have a strong interest in
protecting water quality on Tribal lands. Thus, even though today's
proposal will not significantly or uniquely affect Tribal governments,
Tribes may in the future be subject to the requirements in today's
proposal. Recognizing the need to consider the views and concerns of
Tribal governments in any comprehensive evaluation of how TMDLs are
established, EPA determined it was appropriate to include a Tribal
representative on the TMDL FACA Committee. The committee's final report
addresses Tribal issues, recommending that EPA increase efforts to
educate Tribes about water quality programs, including TMDLs, and
ensure that EPA and State water quality staff respect the government-
to-government relationship with Tribes in all TMDL activities.
D. Paperwork Reduction Act
Today's action adds new information requirements in 40 CFR part
130. The information collection request for these new provisions are
currently under development. EPA expects to publish a proposed
Information Collection Request (ICR) for these requirements in the
Federal Register for comment at the time the ICR is submitted for
approval to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. after public comment.
EPA expects to publish this notice within 30 days of the publication of
this proposal. An agency may not conduct or sponsor, and a person is
not required to respond to a collection of information unless it
displays a currently valid OMB control number. The OMB control numbers
for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter
15.
E. Executive Orders on Federalism
Under Executive Order 12875, ``Enhancing the Intergovernmental
Partnership,'' EPA may not issue a regulation that is not required by
statute and that creates a mandate upon a State, local, or tribal
government, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by those governments, or
EPA consults with those governments. If EPA complies by consulting,
Executive Order 12875 requires EPA to provide to OMB a description of
the extent of EPA's prior consultation with representatives of affected
State, local, and tribal governments, the nature of their concerns, any
written communications from the governments,
[[Page 46044]]
and a statement supporting the need to issue the regulation. In
addition, Executive Order 12875 requires EPA to develop an effective
process permitting elected officials and other representatives of
State, local and tribal governments ``to provide meaningful and timely
input in the development of regulatory proposals containing significant
unfunded mandates.''
EPA has concluded that this proposed rule will create a mandate on
State governments and authorized Tribes and that the Federal government
will not provide all of the funding necessary to pay the direct costs
incurred by the State governments and authorized Tribes in complying
with the mandate. However, EPA has substantially increased funding for
States, Territories, and authorized Tribes through the State-matched
CWA section 106 and 319 grant programs. In developing this proposed
rule, EPA consulted with State, local, and tribal governments to enable
them to provide meaningful and timely input in the development of this
rule.
Before beginning to develop today's proposal, EPA convened a
Federal Advisory Committee to make recommendations for improving the
efficiency and effectiveness of TMDLs. The TMDL FACA Committee was
comprised of 20 members, including four senior level state officials,
an elected local official, and a Tribal consortium representative. Over
a period of one and one-half years, the TMDL FACA Committee held six
meetings at locations throughout the country. These meetings were open
to the general public, as well as representatives of State, local, and
Tribal governments, and all included public comment sessions. The TMDL
FACA Committee focused its deliberations on four broad issue areas:
identification and listing of waterbodies; development and approval of
TMDLs; EPA management and oversight; and science and tools. On July 28,
1998, the TMDL FACA Committee submitted its final report to EPA
containing more than 100 consensus recommendations for changes and
improvements to TMDLs. As explained throughout this preamble, EPA
carefully reviewed the TMDL FACA Committee's consensus recommendations
and incorporated, in whole or in part, most of those recommendations in
this proposal.
Following completion of the FACA Committee process, EPA continued
to meet with State and local government officials to seek their views
on needed changes to the Water Quality Planning and Management (TMDL)
regulations. While expressing support for many of the proposed changes
being considered by EPA, State officials and their representatives also
expressed some general concerns about the capacity of State governments
to carry out the new requirements proposed today. In particular, States
were concerned about the capacity of the state governments to carry out
any new requirements beyond those in the current regulations. Local
government officials expressed concerns in particular about any TMDL
allocation approaches that could in their view, result in municipal
point sources having to bear an inequitable share of the pollutant load
reductions need to attain water quality standards. In developing
today's proposal, EPA considered the concerns of State, local and
tribal governments and determined the need to revise the TMDL
regulations to provide States, Territories and Tribes with clear,
consistent, and balanced direction for listing waters and developing
TMDLs and thereby improve the effectiveness, efficiency and pace of
TMDL establishment and water quality improvement.
Finally, while there is a new executive order on federalism
(Executive Order 13132), it will not go into effect for ninety days. In
the interim, under the current Executive Order 12612 on federalism,
this rule does not have a substantial direct effect upon States, upon
the relationship between the national government and the States, or
upon the distribution of power and responsibilities among the various
levels of government. The proposed regulations will not have a
substantial direct effect on the relationship between the national
government and the States or upon the distribution of power and
responsibilities among the various levels of government because the
proposed regulations reflect the statutory scheme that places primary
responsibility with the States while EPA retains oversight authority.
States continue to have primary responsibility for identifying impaired
waters, setting priorities, and developing TMDLs. EPA's role continues
to be one of reviewing state actions and exercising its authority to
identify waters and develop TMDLs only in the face of inadequate state
action.
The proposed regulations also should not have a substantial direct
effect upon States because the provisions in the proposed regulations
include many requirements and recommendations currently contained in
EPA's existing regulations and guidance. While the proposed regulations
provide additional detail that EPA believes is necessary to ensure
consistency and effective implementation of the program, the statutory
and current regulatory framework is not altered. Even the new provision
for States to include implementation plans as a component of TMDLs
reflects EPA's existing guidance and expectation that States would
develop implementation plans as part of the TMDL process although not
as a required component of the TMDL. Accordingly, these provisions
should not have a substantial direct effect on States or on
intergovernmental relationships or responsibilities.
F. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to OMB, in a separately identified section of
the preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected and
other representatives of Indian tribal governments ``to provide
meaningful and timely input in the development of regulatory policies
on matters that significantly or uniquely affect their communities.''
As explained above in the discussion of UMRA requirements, today's
rule proposal does not significantly or uniquely affect the communities
of Indian tribal governments nor does it impose substantial direct
compliance costs on them since currently there are no Tribes authorized
to establish TMDLs. Accordingly, the requirements of section 3(b) of
Executive Order 13084 do not apply to today's proposal.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that
[[Page 46045]]
EPA has reason to believe may have a disproportionate effect on
children. If the regulatory action meets both criteria, the EPA must
evaluate the environmental health or safety effects of the planned rule
on children, and explain why the planned regulation is preferable to
other potentially effective and reasonably feasible alternatives
considered by EPA.
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This proposed rule is not
subject to Executive Order 13045 because it is not ``economically
significant'' and it does not establish an environmental standard
intended to mitigate health or safety risks. Today's proposal is a
procedural rule.
H. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub L. 104-113, Sec. 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
EPA welcomes comments on this aspect of the proposed rulemaking
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.
List of Subjects in 40 CFR Part 130
Environmental protection, Intergovernmental relations, Reporting
and recordkeeping requirements, Water pollution control.
Dated: August 12, 1999.
Carol Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended by revising part
130 as follows:
PART 130--WATER QUALITY PLANNING AND MANAGEMENT
Subpart A--Summary, Purpose and Definitions
Sec.
130.0 Program summary and purpose.
130.1 Applicability.
130.2 Definitions.
Subpart B--Water Quality Monitoring and Reporting
130.10 Water quality monitoring.
130.11 Water quality report.
Subpart C--Identifying Impaired and Threatened Waterbodies and
Establishing Total Maximum Daily Loads (TMDLs)
What This Subpart Covers
130.20 Who must comply with subpart C of this rule?
130.21 What is the purpose of this subpart?
Identifying and Listing Impaired or Threatened Waterbodies, Documenting
Your Approach for Making Listing Decisions, and Establishing a Schedule
for TMDL Development
130.22 What data and information must you assemble to identify and
list impaired or threatened waterbodies?
130.23 How do you document your approach for considering and
evaluating all existing and readily available data and information
to develop your list and priority rankings?
130.24 When must your methodology be submitted to EPA?
130.25 What is the scope of your list of impaired or threatened
waterbodies?
130.26 How do you apply your water quality standards
antidegradation policy to the listing of impaired and threatened
waterbodies?
130.27 How must you format your list of impaired or threatened
waterbodies?
130.28 How do you prioritize the waterbodies on Part 1 of your
list?
130.29 When can you remove a waterbody from your list?
130.30 When must you submit your list of impaired or threatened
waterbodies and priority rankings to EPA and what will EPA do with
it?
130.31 What must your schedule for submitting TMDLs to EPA contain
and when must you submit it to EPA?
Establishment and Review of TMDLs
130.32 Must you establish TMDLs?
130.33 What are the minimum elements of a TMDL submitted to EPA?
130.34 How are TMDLs expressed?
130.35 What actions must EPA take on TMDLs that are submitted for
review?
130.36 Can EPA establish a TMDL if you fail to do so?
Public Participation
130.37 What public participation requirements apply to the list,
priority rankings, schedule, and TMDLs?
Transitional TMDLs
130.38 What is the effect of the proposed rule on transitional
TMDLs?
Subpart D--Water Quality Planning and Implementation
130.50 Continuing planning process.
130.51 Water quality management plans.
Subpart E--Miscellaneous Provisions
130.60 Designation and de-designation.
130.61 State submittal to EPA.
130.62 Program management.
130.63 Coordination with other programs.
130.64 Processing application for Indian Tribes.
130.65 Petitions to EPA to undertake actions under section 303(d).
Authority: 33 U.S.C. 1251 et seq.
Subpart A--Summary, Purpose and Definitions
Sec. 130.0 Program summary and purpose.
(a) This subpart establishes policies and program requirements for
water quality planning, management and implementation under sections
106, 205(j), non-construction management 205(g), 208, 303 and 305 of
the Clean Water Act. The Water Quality Management (WQM) process
described in the Act and in this regulation provides the authority for
a consistent national approach for maintaining, improving and
protecting water quality while allowing States to implement the most
effective individual programs. The process is implemented jointly by
EPA, the States, interstate agencies, and areawide, local and regional
planning organizations. This regulation explains the requirements of
the Act, describes the relationships between the several components of
the WQM process and outlines the roles of the major participants in the
process. The components of the WQM process are discussed below.
(b) Water quality standards (WQS) are the State's goals for
individual waterbodies and provide the legal basis for control
decisions under the Act. Water quality monitoring activities provide
the chemical, physical and biological data needed to determine the
present quality of a State's waters and to identify the sources of
pollutants in those waters. The primary assessment of the quality of a
State's water is contained in its biennial Report to Congress required
by section 305(b) of the Act.
(c) This report and other assessments of water quality are used in
the State's WQM plans to identify priority water
[[Page 46046]]
quality problems. These plans also contain the results of the State's
analyses and management decisions which are necessary to control
specific sources of pollution. The plans recommend control measures and
designated management agencies (DMAs) to attain the goals established
in the State's water quality standards.
(d) These control measures are implemented by issuing permits,
building publicly-owned treatment works (POTWs), instituting best
management practices for nonpoint sources of pollution and other means.
After control measures are in place, the State evaluates the extent of
the resulting improvements in water quality, conducts additional data
gathering and planning to determine needed modifications in control
measures and again institutes control measures.
(e) This process is a dynamic one, in which requirements and
emphases vary over time. At present, States have completed WQM plans
which are generally comprehensive in geographic and programmatic scope.
Technology based controls are being implemented for most point sources
of pollution. However, WQS have not been attained in many water bodies
and are threatened in others.
(f) Present continuing planning requirements serve to identify
these critical water bodies, develop plans for achieving higher levels
of abatement and specify additional control measures. Consequently,
this regulation reflects a programmatic emphasis on concentrating
planning and abatement activities on priority water quality issues and
geographic areas. EPA will focus its grant funds on activities designed
to address these priorities. Annual work programs negotiated between
EPA and State and interstate agencies will reflect this emphasis.
Sec. 130.1 Applicability.
(a) This subpart and Sec. 130.51(a) of subpart D applies to all
State, eligible Indian Tribe, interstate, areawide and regional and
local CWA water quality planning and management activities undertaken
on or after February 11, 1985 including all updates and continuing
certifications for approved Water Quality Management (WQM) plans
developed under sections 208 and 303 of the Act.
(b) Planning and management activities undertaken prior to February
11, 1985 are governed by the requirements of the regulations in effect
at the time of the last grant award.
Sec. 130.2 Definitions.
(a) The Act. The Clean Water Act, as amended, 33 U.S.C. 1251 et
seq.
(b) Indian Tribe. Any Indian Tribe, band, group, or community
recognized by the Secretary of the Interior and exercising governmental
authority over a Federal Indian reservation.
(c) Pollution. The man-made or man-induced alteration of the
chemical, physical, biological, and radiological integrity of water.
(See Clean Water Act section 502(19).)
(d) Pollutant. Dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or discarded equipment,
rock, sand, cellar dirt, and industrial, municipal, and agricultural
waste discharged into water. This term does not mean : ``sewage from
vessels'' within the meaning of section 312 of the Clean Water Act; or
water, gas, or other material that is injected into a well to
facilitate production of oil or gas, or water derived in association
with oil or gas production and disposed of in a well, if the well used
either to facilitate production or for disposal purposes is approved by
authority of the State in which the well is located, and if the State
determines that such injection or disposal will not result in the
degradation of ground or surface water resources. (See Clean Water Act
section 502(6).) This definition encompasses drinking water
contaminants that are regulated under section 1412 of the Safe Drinking
Water Act and may be discharged to waters of the U. S. that are source
waters of one or more public water systems. For public water systems
served by surface water, source water is any water reaching the intake.
(e) Load or loading. An amount of matter or thermal energy that is
introduced into a receiving water; to introduce matter or thermal
energy into a receiving water. Loading of pollutants may be either man-
caused or natural (natural background loading).
(f) Load allocation. The portions of a TMDL's pollutant load
allocated to nonpoint sources of a pollutant, including atmospheric
deposition or natural background sources.
(g) Wasteload allocation. The portions of a TMDL's pollutant load
allocated to a point source of a pollutant.
(h) Total maximum daily load (TMDL). TMDLs are written plans and
analyses established to ensure that the waterbody will attain and
maintain water quality standards (as defined in 40 CFR 131) including
consideration of reasonably foreseeable increases in pollutant loads.
TMDLs must be established for waterbodies on Part 1 of your list of
impaired and threatened waterbodies and must contain the following ten
elements:
(1) The name and geographic location of the impaired or threatened
waterbody for which the TMDL is being established;
(2) Identification of the pollutant and quantification of the
pollutant load that may be present in the waterbody and still allow
attainment and maintenance of water quality standards;
(3) Identification of the amount or degree by which the pollutant
load in the waterbody deviates from the load representing attainment or
maintenance of water quality standards;
(4) Identification of source categories, source subcategories or
individual sources of the pollutant for which wasteload and load
allocations are being established;
(5) Wasteload allocations for pollutants from point sources;
(6) Load allocations for pollutants from nonpoint sources;
(7) A margin of safety;
(8) Consideration of seasonal variation;
(9) An allowance for future growth which accounts for reasonably
foreseeable increases in pollutant loads; and
(10) An implementation plan.
(i) Water quality management (WQM) plan. A State or areawide waste
treatment management plan developed and updated in accordance with the
provisions of sections 205(j), 208 and 303 of the Act and this
regulation.
(j) Areawide agency. An agency designated under section 208 of the
Act, which has responsibilities for WQM planning within a specified
area of a State.
(k) Best Management Practice (BMP). Methods, measures or practices
selected by an agency to meet its nonpoint source control needs. BMPs
include but are not limited to structural and nonstructural controls
and operation and maintenance procedures. BMPs can be applied before,
during and after pollutant- or pollution-producing activities to reduce
or eliminate the introduction of pollutants into or pollution of
receiving waters.
(l) Designated management agency (DMA). An agency identified by a
WQM plan and designated by the Governor to implement specific control
recommendations.
(m) Impaired waterbody. Any waterbody of the United States that
does not attain water quality standards (as defined in 40 CFR part 131)
due to an individual pollutant, multiple pollutants, pollution, or an
unknown
[[Page 46047]]
cause of impairment. Where a waterbody receives a thermal discharge
from one or more point sources, impaired means that the waterbody does
not have or maintain a balanced indigenous population of shellfish,
fish, and wildlife.
(n) Threatened waterbody. Any waterbody of the United States that
currently attains water quality standards, but for which existing and
readily available data and information on adverse declining trends
indicate that water quality standards will likely be exceeded by the
time the next list of impaired or threatened waterbodies is required to
be submitted to EPA. Where a waterbody is threatened by a thermal
discharge, threatened means that the waterbody has a balanced
indigenous population of shellfish, fish, and wildlife, but adverse
declining trends indicate that a balanced indigenous population of
shellfish, fish, and wildlife will not be maintained by the time the
next list of impaired or threatened waterbodies is required to be
submitted to EPA.
(o) Thermal discharge. The discharge of the pollutant heat from a
point source.
(p) Reasonable assurance. Reasonable assurance means that you
demonstrate that each wasteload allocation and load allocation in a
TMDL will be implemented. For point sources regulated under section 402
of the Clean Water Act you must demonstrate reasonable assurance by
procedures that ensure that enforceable NPDES permits (including
coverage to individual sources under a general NPDES permit) will be
issued expeditiously to implement applicable wasteload allocations for
point sources. For nonpoint sources you must demonstrate reasonable
assurance by specific procedures and mechanisms that ensure load
allocations for nonpoint sources will be implemented for that
waterbody. Specific procedures and mechanisms for nonpoint sources must
apply to the pollutant for which the TMDL is being established, must be
implemented expeditiously and must be supported by adequate funding.
Examples of specific procedures and mechanisms which may provide
reasonable assurance for nonpoint sources include State, Territorial,
and authorized Tribal regulations, local ordinances, performance bonds,
contracts, cost-share agreements, memorandums of understanding, site-
specific or watershed-specific voluntary actions, and compliance audits
of best management practices.
(q) Waterbody. A geographically defined portion of navigable
waters, waters of the contiguous zone, and ocean waters under the
jurisdiction of the United States, including segments of rivers,
streams, lakes, wetlands, coastal waters and ocean waters.
(r) List of Impaired or Threatened Waterbodies or ``List''. The
list of impaired or threatened waterbodies that States, Territories and
authorized Tribes are required to submit to EPA pursuant to section
303(d) of the CWA and this part 130.
Subpart B--Water Quality Monitoring and Reporting
Sec. 130.10 Water quality monitoring.
(a) In accordance with section 106(e)(1), States must establish
appropriate monitoring methods and procedures (including biological
monitoring) necessary to compile and analyze data on the quality of
waters of the United States and, to the extent practicable, ground-
waters. This requirement need not be met by Indian Tribes. However, any
monitoring and/or analysis activities undertaken by a Tribe must be
performed in accordance with EPA's quality assurance/quality control
guidance (Policy and Program Requirements to Implement the Mandatory
Quality Assurance Program, EPA Order 5360.1, April 3, 1984 as updated
on July 16, 1998; available from: http//ES.epa.gov/ncerqa/qa/
qa__docs.html).
(b) The State's water monitoring program shall include collection
and analysis of physical, chemical and biological data and quality
assurance and control programs to assure scientifically valid data. The
uses of these data include determining abatement and control
priorities; developing and reviewing water quality standards, total
maximum daily loads, wasteload allocations and load allocations;
assessing compliance with National Pollutant Discharge Elimination
System (NPDES) permits by dischargers; reporting information to the
public through the section 305(b) report and reviewing site-specific
monitoring efforts and source water assessments conducted under the
Safe Drinking Water Act.
Sec. 130.11 Water quality report.
(a) Each State shall prepare and submit biennially to the Regional
Administrator a water quality report in accordance with section 305(b)
of the Act. The water quality report serves as the primary assessment
of State water quality. Based upon the water quality data and problems
identified in the 305(b) report, States develop water quality
management (WQM) plan elements to help direct all subsequent control
activities. Water quality problems identified in the 305(b) report
should be analyzed through water quality management planning leading to
the development of alternative controls and procedures for problems
identified in the latest 305(b) report. States may also use the 305(b)
report to describe ground-water quality and to guide development of
ground-water plans and programs. Water quality problems identified in
the 305(b) report should be emphasized and reflected in the State's WQM
plan and annual work program under sections 106 and 205(j) of the Clean
Water Act and where the designated use includes public water supply, in
the source water assessment conducted under the SDWA.
(b) Each such report shall include but is not limited to the
following:
(1) A description of the water quality of all waters of the United
States and the extent to which the quality of waters provides for the
protection and propagation of a balanced population of shellfish, fish,
and wildlife and allows recreational activities in and on the water.
(2) An estimate of the extent to which CWA control programs have
improved water quality or will improve water quality for the purposes
of paragraph (b)(1) of this section, and recommendations for future
actions necessary and identifications of waters needing action.
(3) An estimate of the environmental, economic and social costs and
benefits needed to achieve the objectives of the CWA and an estimate of
the date of such achievement.
(4) A description of the nature and extent of nonpoint source
pollution and recommendations of programs needed to control each
category of nonpoint sources, including an estimate of implementation
costs.
(5) An assessment of the water quality of all publicly owned lakes,
including the status and trends of such water quality as specified in
section 314(a)(1) of the Clean Water Act.
(c) States may include a description of the nature and extent of
ground-water pollution and recommendations of State plans or programs
needed to maintain or improve ground-water quality.
(d) In the years in which it is prepared the biennial section
305(b) report satisfies the requirement for the annual water quality
report under section 205(j). In years when the 305(b) report is not
required, the State may satisfy the annual section 205(j) report
requirement by certifying that the most recently submitted section
305(b) report is current or by supplying an update of the
[[Page 46048]]
sections of the most recently submitted section 305(b) report which
require updating.
Subpart C: Identifying Impaired and Threatened Waterbodies and
Establishing Total Maximum Daily Loads (TMDLs)
What This Subpart Covers
Sec. 130.20 Who must comply with subpart C of this rule?
(a) Subpart C applies to States, Territories, and authorized
Tribes. The term ``you'' in this rule refers to these three
governmental entities.
(b) Portions of this subpart apply to the United States
Environmental Protection Agency (EPA). When this is the case, the rule
specifies EPA's responsibilities and obligations.
Sec. 130.21 What is the purpose of this subpart?
This rule explains how you must identify and list impaired or
threatened waterbodies and establish TMDLs in accordance with section
303(d) of the Clean Water Act. The rule also explains how EPA reviews
and approves or disapproves your lists and TMDLs. Specifically, the
rule explains how:
(a) You must assemble all existing and readily available data and
information;
(b) You must document your methodology for considering and
evaluating all existing and readily available data and information to
make listing decisions, including priority ranking, and provide the
methodology to EPA and the public;
(c) You must identify the impaired and threatened waterbodies to be
included on the list and decide which of those waterbodies will have
TMDLs established for them;
(d) You must identify the pollutant or pollutants causing the
impairment or threat of impairment for all waterbodies on your list
that will have TMDLs established for them;
(e) You must assign a priority ranking to all waterbodies on your
list that will have TMDLs established for them;
(f) You must establish a schedule for establishing all TMDLs;
(g) EPA must review and approve or disapprove your list of impaired
and threatened waterbodies, identification of pollutants, and priority
ranking;
(h) You must establish TMDLs and submit them to EPA for review;
(i) EPA must review and approve or disapprove your TMDLs;
(j) You must provide for public notice and comment on your list,
priority ranking, schedule, and TMDLs prior to final submission to EPA.
Identifying and Listing Impaired or Threatened Waterbodies,
Documenting Your Approach for Making Listing Decisions, and
Establishing a Schedule for TMDL Development
Sec. 130.22 What data and information must you assemble to identify
and list impaired or threatened waterbodies?
(a) You must assemble and consider all existing and readily
available data and information when you develop your list of impaired
or threatened waterbodies.
(b) Existing and readily available data and information, includes
but is not limited to, the data and information in the following:
(1) Your most recent EPA approved section 303(d) list;
(2) Your most recent Clean Water Act section 305(b) report;
(3) Clean Water Act section 319 nonpoint source assessments;
(4) Drinking water source water assessments under section 1453 of
the Safe Drinking Water Act;
(5) Dilution calculations, trend analyses, or predictive models for
determining the physical, chemical or biological integrity of streams,
rivers, lakes, and estuaries; and
(6) Data, information, and water quality problems reported from
local, State, Territorial, or Federal agencies (especially the U.S.
Geologic Survey National Water Quality Assessment (NAWQA) and National
Stream Quality Accounting Network (NASQAN)), Tribal governments,
members of the public, and academic institutions.
Sec. 130.23 How do you document your approach for considering and
evaluating all existing and readily available data and information to
develop your list and priority rankings?
(a) You must develop a methodology that explains how you will
consider and evaluate all existing and readily available data and
information to determine which waterbodies you will include on your
list, and to determine priority rankings for those waterbodies. You
must develop a draft methodology, notify the public of the availability
of the draft methodology, take comments on the draft methodology for no
less than 60 days, and provide a summary of all comments received and
your responses when you submit the final methodology to EPA, as
required by Sec. 130.24 of this subpart.
(b) The methodology must include the factors you use to consider
and evaluate the following types of data and information when you make
listing decisions:
(1) Physical/chemical data and information;
(2) Biological data and information;
(3) Aquatic and riparian habitat data and information; and
(4) Waterbody impairment and drinking water susceptibility analyses
required under Sec. 130.22(b).
(c) Your methodology must, at a minimum, identify those types of
data and information that you will treat as ``existing and readily
available'' and explain how you consider the following factors in
making listing and priority ranking decisions:
(1) Data quality and age;
(2) Degree of confidence you have in the information you use to
determine whether waterbodies are impaired or threatened; and
(3) Number and degree of exceedances of numeric or narrative
criteria and designated uses used to determine whether waterbodies are
impaired or threatened.
(d) Your methodology must, at a minimum, also include the
following:
(1) A description of the selection factors you will use to include
waterbodies on your list;
(2) A process for resolving disagreements with other jurisdictions
involving waterbodies crossed by State or authorized Tribal or
international boundaries; and
(3) A description of the method and factors you use to assign a
priority ranking to the waterbodies on your list.
(e) Your methodology must describe how and for what reasons you
will remove previously listed waterbodies from your list.
Sec. 130.24 When must your methodology be submitted to EPA?
(a) You must submit the final methodology described in Sec. 130.23
to EPA by January 31 of every [second], [fourth], [fifth] year,
beginning in the year 2000.
(b) Following submittal, EPA will review your methodology and may,
as appropriate, provide you with comments in advance of your list
submission.
(c) EPA will not approve or disapprove your methodology, but will
consider your methodology in its review and approval or disapproval of
your list and priority rankings.
Sec. 130.25 What is the scope of your list of impaired or threatened
waterbodies?
(a) Your list must include all waterbodies that, based on all
existing and readily available data and information, are impaired or
threatened by individual pollutants, multiple pollutants, or pollution
from any source.
(b) Your list must include impaired or threatened waterbodies
regardless of whether:
[[Page 46049]]
(1) The waterbodies are impaired or threatened by a pollutant which
is unknown at the time of the listing;
(2) The waterbodies are impaired or threatened by atmospheric
deposition;
(3) The waterbodies are impaired or threatened only by point
sources, only by nonpoint sources, or by a combination of point and
nonpoint sources.
Sec. 130.26 How do you apply your water quality standards
antidegradation policy to the listing of impaired and threatened
waterbodies?
(a) Water quality standards as defined at 40 CFR part 131 include
several requirements, including one for a State antidegradation policy.
Your list must include waterbodies consistent with your antidegradation
policy as follows:
(1) Any Tier 3 waterbody is impaired and must be listed when the
level of water quality that existed at the time the waterbody was
designated as Tier 3 has declined.
(2) Any Tier 2 waterbody is threatened and must be listed when
adverse trend data and information indicates that a designated use will
no longer be attained by the time of the next listing cycle.
(3) Any Tier 1 waterbody is impaired and must be listed if it is
not maintaining a designated or more protective existing use. Any Tier
1 waterbody is threatened and must be listed when an adverse trend
indicates that a designated use or a more protective existing use will
no longer be attained at the time of the next listing cycle.
Sec. 130.27 How must you format your list of impaired or threatened
waterbodies?
(a) Your list of impaired and threatened waterbodies must include
the following parts:
(1) Part 1--Waterbodies impaired or threatened by one or more
pollutant(s) as defined by 40 CFR 130.2(d) or by an unknown cause
unless listed in Part 3 or 4 of the list. Where the cause of the
impairment or threat is unknown, identification of the pollutant(s)
causing the impairment or threat is required as the first step in
establishing the TMDL. A TMDL is required for waterbodies on Part 1 of
the list impaired by pollutants.
(2) Part 2--Waterbodies impaired or threatened by pollution as
defined by 40 CFR 130.2(c) but not impaired or threatened by one or
more pollutants. A TMDL is not required for waterbodies on Part 2 of
the list.
(3) Part 3--Waterbodies for which EPA has approved or established a
TMDL and water quality standards have not yet been attained.
(4) Part 4--Waterbodies that are impaired, for which implementation
of best practicable control technology for point sources and secondary
treatment for publicly owned treatment works or controls enforceable by
State, Territorial or authorized Tribal or Federal law or regulation
are expected to result in attainment of water quality standards by the
next listing cycle. A TMDL is not required for waterbodies on part 4 of
the list. If a waterbody listed on part 4 does not attain water quality
standards by the time the next list is required to be submitted to EPA,
such waterbody must be included on part 1 of the list unless you can
document that the failure to attain water quality standards is due to
failure to comply with applicable technology-based requirements.
(b) You must identify the pollutant or pollutants causing the
impairment or threat of impairment for each waterbody on Parts 1, 3 and
4 of the list. If the specific pollutant is unknown at the time of
listing, you must, to the extent possible, identify the class of
pollutants, e.g., metals, pesticides, industrial chemicals, or
nutrients. You must identify the type of pollution causing the
impairment or threat of impairment for each waterbody on Part 2 of the
list. If you do not know whether the cause of impairment is a pollutant
or some type of pollution, the waterbody must be included on Part 1 of
the list.
(c) You must identify the geographical location of each waterbody
on the list, using a nationally recognized georeferencing system as
agreed to by you and EPA.
Sec. 130.28 How do you prioritize the waterbodies on Part 1 of your
list?
(a) You must assign a high, medium, or low priority ranking to each
waterbody and pollutant combination on Part 1 of the list, taking into
account the severity of the impairment or threatened impairment and the
designated uses of the waterbody.
(b) You must assign a high priority to waterbody and pollutant
combinations on Part 1 of the List if:
(1) The waterbody is designated in water quality standards as a
public drinking water supply, used as a source of drinking water and
the pollutant for which the waterbody is listed as impaired is
contributing to a violation of an MCL; or
(2) species listed as threatened or endangered under section 4 of
the Endangered Species Act are present in the waterbody unless the
State, Territory or authorized Tribe shows that the impairment does not
affect the listed threatened or endangered species.
(3) When identifying your high priority waterbodies, you may also
consider the presence of sensitive aquatic species and secondary
factors such as the historical, cultural, economic and aesthetic uses
of the waterbody.
(c) You must explain how you considered the severity of the
impairment or threat of impairment and the designated use to be made of
the waterbody in assigning each priority ranking.
(d) You may consider other factors in assigning each priority
ranking, including efficiencies gained by developing TMDLs for
waterbodies located in the same watershed; the value and vulnerability
of particular waterbodies; the recreational, economic, and aesthetic
importance of particular waterbodies; TMDL complexity; the degree of
public interest and support; State, Territorial and authorized Tribal
policies and priorities; or national policies and priorities.
(e) If you consider other factors, you must identify each factor
and explain how you used each factor in assigning each priority
ranking.
Sec. 130.29 When can you remove a waterbody from your list?
(a) Once listed, you must keep each impaired waterbody on the list
until water quality standards are attained for that waterbody.
(b) You may remove a previously listed impaired waterbody when you
develop your next list if new data or information indicates that the
waterbody has attained water quality standards.
(c) You must keep each threatened waterbody on the list until the
waterbody is no longer threatened.
(d) You may remove a previously listed threatened waterbody from
the list if new data or information indicates that the waterbody is no
longer threatened.
Sec. 130.30 When must you submit your list of impaired or threatened
waterbodies and priority rankings to EPA and what will EPA do with it?
(a) You must submit your list of impaired and threatened
waterbodies as required by Secs. 130.25, 130.26, and 130.27, and the
priority rankings required by Sec. 130.28, to EPA by October 1 of every
[second] [fourth] [fifth] year, beginning in the year 2000.
(b) Within 30 days of receipt, EPA will issue an order approving or
disapproving all or a portion of your list and priority ranking.
(c) You must incorporate into your water quality management plan,
as
[[Page 46050]]
required by Sec. 130.51, those portions of your list and priority
ranking that EPA approves.
(d) If EPA disapproves a portion of your list, including your
identification of particular waterbodies and pollutant/pollution
combinations, or your priority rankings, EPA will, within 30 days,
issue an order identifying all waterbodies and pollutant/pollution
combinations or priority rankings needed to make the list consistent
with this subpart. EPA will publish this order in the Federal Register
and a general circulation newspaper and request public comment for at
least 30 days. If appropriate, EPA will write an order revising the
list after the close of the public comment period. EPA will send you a
copy of its order identifying additional waterbodies and priority
ranking. You must incorporate those waterbodies into your water quality
management plan.
(e) EPA may establish a list of impaired and threatened
waterbodies, including pollutant/pollution combinations and priority
rankings, if you ask EPA to do so, or if EPA determines that you have
not or are not likely to establish such list consistent with the
schedule specified in paragraph (a) of this section.
Sec. 130.31 What must your schedule for submitting TMDLs to EPA
contain and when must you submit it to EPA?
(a) You must submit a schedule to EPA for establishing TMDLs for
all waterbody and pollutant combinations on Part 1 of your list, as
described in Sec. 130.27, including waterbodies for which the cause of
the impairment or threat was not known at the time of listing.
(1) You must schedule establishment of TMDLs as expeditiously as
practicable, but no later than 15 years from the date of the initial
listing on Part 1 of your list.
(2) Your schedule for establishment of TMDLs must reasonably pace
the workload for TMDL establishment over the entire duration of the
schedule.
(3) You should schedule establishment of TMDLs in accordance with
the priority rankings required in Sec. 130.28. For example, TMDLs for
high-priority waterbodies and pollutant combinations should be
established before medium and low-priority waterbody and pollutant
combinations. Your schedule may consider other factors including those
identified in Sec. 130.28(d).
(b) You must submit your schedule for establishing TMDLs to EPA by
October 1 of every [second] [fourth] [fifth] year, beginning in the
year 2000, along with your list of impaired and threatened waterbodies
and priority rankings.
(c) EPA will not approve or disapprove your schedule, but will
consider your schedule in its review of your list and priority ranking.
Establishment and EPA Review of TMDLs
Sec. 130.32 Must you establish TMDLs?
(a) You must establish a TMDL for all waterbodies and pollutant
combinations on Part 1 of your list. You do not need to establish TMDLs
for waterbodies on Parts 2, 3, and 4 of your list.
(b) You must establish TMDLs in accordance with the priority
rankings established in accordance with Sec. 130.28.
(c) You may establish TMDLs in a different order than the sequence
in your most recently submitted schedule as long as you establish TMDLs
consistent with the scheduling requirements of Sec. 130.31(a)(1)
through (a)(3).
Sec. 130.33 What are the minimum elements of a TMDL submitted to EPA?
(a) TMDLs are written plans and analyses for achieving water
quality standards for waterbodies on Part 1 of your list of impaired
and threatened waterbodies. TMDLs provide the opportunity to compare
relative contributions from all sources and consider technical and
economic trade-offs between point and nonpoint sources.
(b) You must include the following minimum elements in any TMDL
submitted to EPA. EPA will not approve a TMDL which does not contain
each of these elements.
(1) The name and geographic location, as required by
Sec. 130.27(c), of the impaired or threatened waterbody for which the
TMDL is being established and the names and geographic locations of the
waterbodies upstream of the impaired waterbody that contribute
significant amounts of the pollutant for which the TMDL is being
established;
(2) Identification of the pollutant for which the TMDL is being
established and quantification of the pollutant load that may be
present in the waterbody and still ensure attainment and maintenance of
water quality standards;
(3) Identification of the amount or degree by which the current
pollutant load in the waterbody deviates from the pollutant load needed
to attain or maintain water quality standards;
(4) Identification of the source categories, source subcategories,
or individual sources of the pollutant for which the wasteload
allocations and load allocations are being established consistent with
Sec. 130.2(f) and (g);
(5) Wasteload allocations to each industrial and municipal point
source permitted under section 402 of the Clean Water Act discharging
the pollutant for which the TMDL is being established; wasteload
allocations for discharges subject to a general permit, such as storm
water, combined sewer overflows, abandoned mines, or combined animal
feeding operations, may be allocated to categories of sources,
subcategories of sources or individual sources; pollutant loads that do
not need to be reduced to attain or maintain water quality standards
may be included within a category of sources, subcategory of sources or
considered as part of background loads; and supporting technical
analyses demonstrating that wasteload allocations when implemented,
will attain and maintain water quality standards;
(6) Load allocations, ranging from reasonably accurate estimates to
gross allotments, to nonpoint sources of a pollutant, including
atmospheric deposition or natural background sources; if possible, a
separate load allocation must be allocated to each source of a
pollutant, natural background or atmospheric deposition; where this is
not possible, load allocations may be allocated to categories of
sources or subcategories of sources; pollutant loads that do not need
to be reduced for the waterbody to meet water quality standards may be
included within a category of sources, subcategory of sources or
considered as part of background loads; and supporting technical
analyses demonstrating that load allocations, when implemented, will
attain and maintain water quality standards;
(7) A margin of safety expressed as unallocated assimilative
capacity or conservative analytical assumptions used in establishing
the TMDL; e.g., derivation of numeric loads, modeling assumptions, or
effectiveness of proposed management actions which ensures attainment
and maintenance of water quality standards for the allocated pollutant;
(8) Consideration of seasonal variations and environmental factors
that affect the relationship between pollutant loadings and water
quality impacts;
(9) An allowance for future growth, if any, which accounts for
reasonably foreseeable increases in pollutant loads; and
(10) An implementation plan, which may be developed for one or a
group of
[[Page 46051]]
TMDLs. Each implementation plan must, at a minimum, include the
following:
(i) A description of the control actions and/or management measures
which will be implemented to achieve the wasteload allocations and load
allocations, and a demonstration that the control actions and/or
management measures are expected to achieve the required pollutant
loads;
(ii) A timeline, including interim milestones, for implementing the
control actions and/or management measures, including when source-
specific activities will be undertaken for categories and subcategories
of individual sources and a schedule for revising NPDES permits;
(iii) A discussion of your reasonable assurances, as defined at
Sec. 130.2(p), that wasteload allocations and load allocations will be
implemented;
(iv) A description of the legal authority under which the control
actions will be carried out;
(v) An estimate of the time required to attain and maintain water
quality standards and discussion of the basis for that estimate;
(vi) A monitoring and/or modeling plan designed to determine the
effectiveness of the control actions and/or management measures and
whether allocations are being met;
(vii) A description of measurable, incremental milestones for the
pollutant for which the TMDL is being established for determining
whether the control actions and/or management measures are being
implemented and whether water quality standards are being attained; and
(viii) A description of your process for revising TMDLs if the
milestones are not being met and projected progress toward attaining
water quality standards is not demonstrated.
(c) For waterbodies impaired by thermal discharges from point
sources you must estimate the total maximum daily thermal load required
to ensure protection and propagation of a balanced indigenous
population of shellfish, fish, and wildlife, taking into account the
normal water temperatures, flow rates, seasonal variations, existing
sources of heat input, and dissipative capacity of the waterbody for
which the TMDL is being established. Estimates must include a
calculation of the maximum heat input and a margin of safety that takes
into account any lack of knowledge concerning the development of
thermal water quality criteria.
(d) A TMDL must not be likely to jeopardize the continued existence
of an endangered or threatened species listed under section 4 of the
Endangered Species Act or result in the destruction or adverse
modification of its designated critical habitat.
Sec. 130.34 How are TMDLs expressed?
(a) A TMDL must contain an expression of the pollutant load or load
reduction necessary to ensure that the waterbody will attain and
maintain water quality standards, or, as appropriate, the pollutant
load or load reduction required to attain and maintain aquatic or
riparian habitat, biological, channel or geomorphological or other
conditions that represent attainment and maintenance of water quality
standards.
(b) As appropriate to the characteristics of the waterbody and
pollutant, the pollutant load may be expressed as daily, monthly,
seasonal or annual averages in one or more of the following ways:
(1) The pollutant load that can be present in the waterbody and
ensure that it attains and maintains water quality standards;
(2) The reduction from current pollutant loads required to attain
and maintain water quality standards;
(3) The pollutant load or reduction of pollutant load required to
attain and maintain riparian, biological, channel or geomorphological
measures so that water quality standards are attained and maintained;
or
(4) The pollutant load or reduction of pollutant load that results
from modifying a characteristic of the waterbody, e.g., riparian,
biological, channel, geomorphological, or chemical characteristics, so
that water quality standards are attained and maintained.
Sec. 130.35 What actions must EPA take on TMDLs that are submitted for
review?
(a) EPA will review each TMDL you submit to determine if it
includes all the minimum elements specified in Sec. 130.33(b). A TMDL
which does not include all minimum elements will be disapproved.
(b) EPA will review each TMDL you submit to determine if those
elements meet the requirements of Secs. 130.32, 130.33 and 130.34. EPA
will approve the TMDL if it meets those requirements. EPA will issue an
order approving or disapproving each TMDL you submit within 30 days
after you submit it.
(c) If EPA approves a TMDL you submit, you must incorporate the
TMDL into your water quality management plan.
(d) If EPA disapproves a TMDL you submit, EPA will issue an order
establishing a new TMDL for that waterbody and pollutant within 30 days
of its disapproval.
(1) EPA will publish this order in the Federal Register and a
general circulation newspaper and request public comment for at least
30 days. If appropriate, EPA will issue an order revising the TMDL
after the close of the public comment period.
(2) EPA will send you the final TMDL it establishes. You must
incorporate the EPA-established TMDL into your water quality management
plan.
Sec. 130.36 Can EPA establish a TMDL if you fail to do so?
EPA may establish TMDLs for waterbodies and pollutants identified
on Part 1 of your list if you ask EPA to do so, or if EPA determines
that you have not or are not likely to establish TMDLs consistent with
your schedule, or if EPA determines that it should establish TMDLs for
interstate or boundary waterbodies.
Public Participation
Sec. 130.37 What public participation requirements apply to your
lists, priority rankings, schedule, and TMDLs?
(a) You must provide the public with no less than 30 days to review
and comment on your list of impaired or threatened waterbodies,
priority rankings, schedule, and TMDLs prior to submission to EPA.
(b) At the time you make your submission to EPA, you must provide
EPA with a summary of all public comments received on your list of
impaired or threatened waterbodies, priority rankings, schedule, and
TMDLs and your response to all comments, indicating how the comments
were considered in your final decision. Your response to each comment
must indicate whether you agreed or disagreed with the comment. If you
disagreed with the comment, your response must explain why you
disagreed and why you believe it was reasonable to act despite the
comment.
(c) You must provide for public participation in developing your
listing methodology according to the requirements in Sec. 130.23(a).
(d)(1) Prior to your submission to EPA and at the time that you
provide the public the opportunity to review and comment on your list
of impaired or threatened waterbodies, priority rankings, schedules,
and TMDLs, you must provide a copy of each of these documents to EPA,
US Fish and Wildlife Services, and to National Marine Fisheries Service
where appropriate (e.g., coastal areas), unless you request EPA to
provide these documents to the Services, in which case EPA will do so.
[[Page 46052]]
(2) You are encouraged to establish processes with both the US Fish
and Wildlife and Wildlife Service and the National Marine Fisheries
that will provide for the early identification and resolution of
threatened and endangered species concerns as they relate to your list
of impaired or threatened waterbodies, priority rankings, schedule, and
TMDLs. To facilitate consideration of endangered and threatened species
in the listing and TMDL process, EPA will ask U.S. Fish and Wildlife
and National Fisheries Services, where appropriate, to provide you and
EPA with any comments that they may have on your lists, priority
rankings, schedule and TMDLs
(3) You must consider any comments from EPA, US Fish and Wildlife
Service, or National Marine Fisheries Service and document your
consideration in accordance with paragraph (b) of the section.
(4) EPA will review any comments submitted by US Fish Service or
National Marine Fisheries and consider how you addressed EPA, US Fish
and Wildlife Service, and National Marine Fisheries Service comments
prior to EPA's approval or disapproval of your submission.
Transitional TMDLs
Sec. 130.38 What is the effect of the proposed rule on transitional
TMDLs?
(a) EPA will approve any TMDL submitted to it for review within 12
months of the effective date of the final rule if the TMDL meets either
the pre-amendment requirements in Sec. 130.7 or the post-amendment
requirements in Secs. 130.32, 130.33 and 130.34.
(b) EPA may establish TMDLs within 12 months of the effective date
of the final rule either according to the pre-amendment requirements in
Sec. 130.7 or the post-amendment requirements in Secs. 130.32, 130.33
and 130.34.
Subpart D--Water Quality Planning and Implementation
Sec. 130.50 Continuing planning process
(a) General. Each State shall establish and maintain a continuing
planning process (CPP) as described under section 303(e)(3)(A)-(H) of
the Act. Each State is responsible for managing its water quality
program to implement the processes specified in the continuing planning
process. EPA is responsible for periodically reviewing the adequacy of
the State's CPP.
(b) Content. The State may determine the format of its CPP as long
as the minimum requirements of the CWA and this regulation are met. A
State CPP need not be a single document, provided the State identifies
in one document, i.e., an index, the other documents, statutes, rules,
policies and guidance that comprise its CPP. The following processes
must be described in each State CPP and the State may include other
processes, including watershed-based planning and implementation, at
its discretion.
(1) The process for developing effluent limitations and schedules
of compliance at least as stringent as those required by sections
301(b) (1) and (2), 306 and 307, and at least stringent as any
requirements contained in applicable water quality standards in effect
under authority of section 303 of the Act.
(2) The process for incorporating elements of any applicable
areawide waste treatment plans under section 208, and applicable basin
plans under section 209 of the Act.
(3) The process for developing total maximum daily loads (TMDLs)
and individual water quality based effluent limitations for pollutants
in accordance with section 303(d) of the Act and Secs. 130.32-36 of
this regulation.
(4) The process for updating and maintaining Water Quality
Management (WQM) plans, including schedules for revision.
(5) The process for assuring adequate authority for
intergovernmental cooperation in the implementation of the State WQM
program.
(6) The process for establishing and assuring adequate
implementation of new or revised water quality standards, including
schedules of compliance, under section 303(c) of the Act.
(7) The process for assuring adequate controls over the disposition
of all residual waste from any water treatment processing.
(8) The process for developing an inventory and ranking, in order
of priority of needs for construction of waste treatment works required
to meet the applicable requirements of sections 301 and 302 of the Act.
(9) The process for determining the priority of permit issuance.
(c) Regional Administrator review. The Regional Administrator shall
review approved State CPPs from time to time to ensure that the
planning processes are consistent with the Act and this regulation. The
Regional Administrator shall not approve any permit program under Title
IV of the Act for any State which does not have an approved continuing
planning process.
Sec. 130.51 Water quality management plans
(a) Water quality management plans. You must base continuing water
quality planning on initial water quality management plans. Your annual
water quality planning should focus on priority issues and geographic
areas and have a watershed focus. Water quality planning should be
directed at the removal of conditions placed on previously certified
and approved water quality management plans and updates to support the
implementation of wasteload allocations and load allocations contained
in TMDLs.
(b) Use of WQM plans. WQM plans are used to direct implementation.
WQM plans draw upon the water quality assessments to identify priority
point and nonpoint water quality problems, consider alternative
solutions and recommend control measures, including the financial and
institutional measures necessary for implementing recommended
solutions. State annual work programs shall be based upon the priority
issues identified in the State WQM plan.
(c) WQM plan elements. Sections 205(j), 208 and 303 of the Act
specify water quality planning requirements. The following plan
elements shall be included in the WQM plan or referenced as part of the
WQM plan if contained in separate documents when they are needed to
address water quality problems.
(1) Total Maximum Daily Loads. TMDLs in accordance with Sec. 303(d)
and (e)(3)(C) of the Act and Secs. 130.2 and 130.32-36.
(2) Effluent limitations. Effluent limitations including water
quality based effluent limitations and schedules of compliance in
accordance with section 303(e)(3)(A) of the Act and Sec. 130.50 of this
part.
(3) Municipal and industrial waste treatment. Identification of
anticipated municipal and industrial waste treatment works, including
facilities for treatment of stormwater-induced combined sewer
overflows; programs to provide necessary financial arrangements for
such works; establishment of construction priorities and schedules for
initiation and completion of such treatment works including an
identification of open space and recreation opportunities from improved
water quality in accordance with section 208(b)(2) (A) and (B) of the
Act.
(4) Nonpoint source management and control. (i) The plan shall
describe the regulatory and non-regulatory programs, activities and
Best Management Practices (BMPs) which the agency has selected as the
means to control nonpoint source pollution where necessary to protect
or achieve approved water uses. Economic,
[[Page 46053]]
institutional, and technical factors shall be considered in a
continuing process of identifying control needs and evaluating and
modifying the BMPs as necessary to achieve water quality goals.
(ii) Regulatory programs shall be identified where they are
determined to be necessary by the State to attain or maintain an
approved water use or where non-regulatory approaches are inappropriate
in accomplishing that objective.
(iii) BMPs shall be identified for the nonpoint sources identified
in section 208(b)(2)(F)-(K) of the Act and other nonpoint sources as
follows:
(A) Residual waste. Identification of a process to control the
disposition of all residual waste in the area which could affect water
quality in accordance with section 208(b)(2)(J) of the Act.
(B) Land disposal. Identification of a process to control the
disposal of pollutants on land or in subsurface excavations to protect
ground and surface water quality in accordance with section
208(b)(2)(K) of the Act.
(C) Agricultural and silvicultural. Identification of procedures to
control agricultural and silvicultural sources of pollution in
accordance with section 208(b)(2)(F) of the Act.
(D) Mines. Identification of procedures to control mine-related
sources of pollution in accordance with section 208(b)(2)(G) of the
Act.
(E) Construction. Identification of procedures to control
construction related sources of pollution in accordance with section
208(b)(2)(H) of the Act.
(F) Saltwater intrusion. Identification of procedures to control
saltwater intrusion in accordance with section 208(b)(2)(i) of the Act.
(G) Urban stormwater. Identification of BMPs for urban stormwater
control to achieve water quality goals and fiscal analysis of the
necessary capital and operations and maintenance expenditures in
accordance with section 208(b)(2)(A) of the Act.
(iv) The nonpoint source plan elements outlined in
Sec. 130.51(c)(4)(iii)(A)-(G) of this regulation shall be the basis of
water quality activities implemented through agreements or memoranda of
understanding between EPA and other departments, agencies or
instrumentalities of the United States in accordance with section
304(k) of the Act.
(5) Management agencies. Identification of agencies necessary to
carry out the plan and provision for adequate authority for
intergovernmental cooperation in accordance with sections 208(b)(2)(D)
and 303(e)(3)(E) of the Act. Management agencies must demonstrate the
legal, institutional, managerial and financial capability and specific
activities necessary to carry out their responsibilities in accordance
with section 208(c)(2)(A) through (I) of the Act.
(6) Implementation measures. Identification of implementation
measures necessary to carry out the plan, including financing, the time
needed to carry out the plan, and the economic, social and
environmental impact of carrying out the plan in accordance with
section 208(b)(2)(E).
(7) Dredge or fill program. Identification and development of
programs for the control of dredge or fill material in accordance with
section 208(b)(4)(B) of the Act.
(8) Basin plans. Identification of any relationship to applicable
basin plans developed under section 209 of the Act.
(9) Ground water. Identification and development of programs for
control of ground-water pollution including the provisions of section
208(b)(2)(K) of the Act. States are not required to develop ground-
water WQM plan elements beyond the requirements of section 208(b)(2)(K)
of the Act, but may develop a ground-water plan element if they
determine it is necessary to address a ground-water quality problem. If
a State chooses to develop a ground-water plan element, it should
describe the essentials of a State program and should include, but is
not limited to:
(i) Overall goals, policies and legislative authorities for
protection of ground-water.
(ii) Monitoring and resource assessment programs in accordance with
section 106(e)(1) of the Act.
(iii) Programs to control sources of contamination of ground-water
including Federal programs delegated to the State and additional
programs authorized in State statutes.
(iv) Procedures for coordination of ground-water protection
programs among State agencies and with local and Federal agencies.
(v) Procedures for program management and administration including
provision of program financing, training and technical assistance,
public participation, and emergency management.
(d) Indian Tribes. An Indian Tribe is eligible for the purposes of
this rule and the Clean Water Act assistance programs under 40 CFR part
35, subparts A and H if:
(1) The Indian Tribe has a governing body carrying out substantial
governmental duties and powers;
(2) The functions to be exercised by the Indian Tribe pertain to
the management and protection of water resources which are held by an
Indian Tribe, held by the United States in trust for Indians, held by a
member of an Indian Tribe if such property interest is subject to a
trust restriction on alienation, or otherwise within the borders of an
Indian reservation; and
(3) The Indian Tribe is reasonably expected to be capable, in the
Regional Administrator's judgment, of carrying out the functions to be
exercised in a manner consistent with the terms and purposes of the
Clean Water Act and applicable regulations.
(e) Update and certification. State and/or areawide agency WQM
plans shall be updated as needed to reflect changing water quality
conditions, results of implementation actions, new requirements or to
remove conditions in prior conditional or partial plan approvals.
Regional Administrators may require that State WQM plans be updated as
needed. State Continuing Planning Processes (CPPs) shall specify the
process and schedule used to revise WQM plans. The State shall ensure
that State and areawide WQM plans together include all necessary plan
elements and that such plans are consistent with one another. The
Governor or the Governor's designee shall certify by letter to the
Regional Administrator for EPA approval that WQM plan updates are
consistent with all other parts of the plan. The certification may be
contained in the annual State work program.
(f) Consistency. Construction grant and permit decisions must be
made in accordance with certified and approved WQM plans as described
in Secs. 130.63(a) and 130.63(b).
Subpart E--Miscellaneous Provisions
Sec. 130.60 Designation and de-designation.
(a) Designation. Areawide planning agencies may be designated by
the Governor in accordance with section 208(a) (2) and (3) of the Act
or may self-designate in accordance with section 208(a)(4) of the Act.
Such designations shall subject to EPA approval in accordance with
section 208(a)(7) of the Act.
(b) De-designation. The Governor may modify or withdraw the
planning designation of a designated planning agency other than an
Indian tribal organization self-designated Sec. 130.51(c)(2) if:
(1) The areawide agency requests such cancellation; or
(2) The areawide agency fails to meet its planning requirements as
specified
[[Page 46054]]
in grant agreements, contracts or memoranda of understanding; or
(3) The areawide agency no longer has the resources or the
commitment to continue water quality planning activities within the
designated boundaries.
(c) Impact of de-designation. Once an areawide planning agency's
designation has been withdrawn the State agency shall assume direct
responsibility for continued water quality planning and oversight of
implementation within the area.
(d) Designated management agencies (DMA). In accordance with
section 208(c)(1) of the Act, management agencies shall be designated
by the Governor in consultation with the designated planning agency.
EPA shall approve such designations unless the DMA lacks the legal,
financial and managerial authority required under section 208(c)(2) of
the Act. Designated management agencies shall carry out
responsibilities specified in Water Quality Management (WQM) plans.
Areawide planning agencies shall monitor DMA activities in their area
and recommend necessary plan changes during the WQM plan update. Where
there is no designated areawide planning agency, States shall monitor
DMA activities and make any necessary changes during the WQM plan
update.
Sec. 130.61 State submittal to EPA.
(a) The following must be submitted regularly by the States to EPA:
(1) The section 305(b) report, in FY 84 and every two years
thereafter, and the annual section 205(j) certification or update of
the 305(b) water quality report.
(2) The annual State work program(s) under sections 106 and 205(j)
of the Act.
(3) Revisions or additions to water quality standards (WQS)
(303(c)).
(b) The Act also requires that each State initially submit to EPA
and revise as necessary the following:
(1) Continuing planning process (CPP) (303(e));
(2) Identification of water quality-limited waters still requiring
TMDLs (section 303(d)), pollutants, and the priority ranking including
waters targeted for TMDL development within the next two years as
required under Sec. 130.7(b) in accordance with the schedule set for in
Sec. 130.7(d)(1).
(3) Total maximum daily loads (TMDLs) (303(d)); and
(4) Water quality management (WQM) plan and certified and approved
WQM plan updates (208, 303(e)).
(c) The form and content of required State submittals to EPA may be
tailored to reflect the organization and needs of the State, as long as
the requirements and purposes of the Act, this part and, where
applicable, 40 CFR parts 29, 30, 33 and 35, subparts A and J are met.
The need for revision and schedule of submittals shall be agreed to
annually with EPA as the States annual work program is developed.
Sec. 130.62 Program management.
(a) State agencies may apply for grants under sections 106, 205(j)
and 205(g) to carry out water quality planning and management
activities. Interstate agencies may apply for grants under section 106
to carry out water quality planning and management activities. Local or
regional planning organizations may request 106 and 205(j) funds from a
State for planning and management activities. Grant administrative
requirements for these funds appear in 40 CFR parts 25, 29, 30, 33 and
35, subparts A and J.
(b) Grants under section 106 may be used to fund a wide range of
activities, including but not limited to assessments of water quality,
revision of water quality standards (WQS), development of alternative
approaches to control pollution, implementation and enforcement of
control measures and development or implementation of ground water
programs. Grants under section 205(j) may be used to fund water quality
management (WQM) planning activities but may not be used to fund
implementation of control measures (see part 35, subpart A). Section
205(g) funds are used primarily to manage the wastewater treatment
works construction grants program pursuant to the provisions of 40 CFR
part 35, subpart J. A State may also use part of the 205(g) funds to
administer approved permit programs under sections 402 and 404, to
administer a statewide waste treatment management program under section
208(b)(4) and to manage waste treatment construction grants for small
communities.
(c) Grant work programs for water quality planning and management
shall describe geographic and functional priorities for use of grant
funds in a manner which will facilitate EPA review of the grant
application and subsequent evaluation of work accomplished with the
grant funds. A State's 305(b) Report, WQM plan and other water quality
assessments shall identify the State's priority water quality problems
and areas. The WQM plan shall contain an analysis of alternative
control measures and recommendations to control specific problems. Work
programs shall specify the activities to be carried out during the
period of the grant; the cost of specific activities; the outputs, for
example, permits issued, intensive surveys, wasteload allocations, to
be produced by each activity; and where applicable, schedules
indicating when activities are to be completed.
(d) State work programs under sections 106, 205(j) and 205(g) shall
be coordinated in a manner which indicates the funding from these
grants dedicated to major functions, such as permitting, enforcement,
monitoring, planning and standards, nonpoint source implementation,
management of construction grants, operation and maintenance of
treatment works, ground-water, emergency response and program
management. States shall also describe how the activities funded by
these grants are used in a coordinated manner to address the priority
water quality problems identified in the State's water quality
assessment under section 305(b).
(e) EPA, States, areawide agencies, interstate agencies, local and
Regional governments, and designated management agencies (DMAs) are
joint participants in the water pollution control program. States may
enter into contractual arrangements or intergovernmental agreements
with other agencies concerning the performance of water quality
planning and management tasks. Such arrangements shall reflect the
capabilities of the respective agencies and shall efficiently utilize
available funds and funding eligibilities to meet Federal requirements
commensurate with State and local priorities. State work programs under
section 205(j) shall be developed jointly with local, Regional and
other comprehensive planning organizations.
Sec. 130.63 Coordination with other programs.
(a) Relationship to the National Pollutant Discharge Elimination
System (NPDES) program. In accordance with section 208(e) of the Act,
no NPDES permit may be issued which is in conflict with an approved
Water Quality Management (WQM) plan. Where a State has assumed
responsibility for the administration of the permit program under
section 402, it shall assure consistency with the WQM plan.
(b) Relationship to the municipal construction grants program. In
accordance with sections 205(j), 216 and 303(e)(3)(H) of the Act, each
State shall develop a system for setting priorities for funding
construction of municipal wastewater treatment facilities under section
201 of the Act. The State, or the agency to which the State has
delegated WQM planning functions, shall review
[[Page 46055]]
each facility plan in its area for consistency with the approved WQM
plan. Under section 208(d) of the Act, after a waste treatment
management agency has been designated and a WQM plan approved, section
201 construction grant funds may be awarded only to those agencies for
construction of treatment works in conformity with the approved WQM
plan.
(c) Relationship to Federal activities--Each department, agency or
instrumentality of the executive, legislative and judicial branches of
the Federal Government having jurisdiction over any property or
facility or engaged in any activity resulting, or which may result, in
the discharge or runoff of pollutants shall comply with all Federal,
State, interstate and local requirements, administrative authority, and
process and sanctions respecting the control and abatement of water
pollution in the same manner and extent as any non-governmental entity
in accordance with section 313 of the CWA.
Sec. 130.64 Processing application for Indian Tribes.
The Regional Administrator shall process an application of an
Indian Tribe submitted under Sec. 130.51(d) in a timely manner. He
shall promptly notify the Indian Tribe of receipt of the application.
Sec. 130.65 Petitions to EPA to undertake actions under section 303(d)
(a) To whom does this section apply? As used in this section,
``you'' refers to any person or organization who wants to ask EPA to
carry out the actions that States are directed to perform under CWA
section 303(d).
(b) What is the purpose of this section? (1) This section describes
a procedure you should use if you want EPA to carry out the actions
that States are directed to perform under CWA section 303(d).
Petitioning EPA to undertake activities that States are directed to
perform under CWA section 303(d) serves several useful functions.
Petitioning EPA to establish TMDLs in the place of a state affords the
Agency an opportunity to assemble and analyze the relevant facts, to
apply its expertise, exercise the discretion granted to EPA by
Congress, and explain the basis for its decision in writing. Petitions
will be particularly helpful in instances where the petitioner brings
to EPA's attention important facts or analysis the Agency was not aware
of or had not conducted on its own.
(2) This petition procedure is intended to be used for requests
that EPA intervene to support a State's implementation of CWA section
303(d) based on a substantial failure by the State to establish TMDLs
in accordance with the State's schedule. This procedure is not intended
to be used to prompt EPA to establish TMDLs for particular waters in
cases where you are dissatisfied with the schedule the State has
developed for those waters. Rather, if you want a TMDL for a particular
waterbody to be established sooner than the State schedule, you should
explain to the State why that waterbody warrants earlier attention when
the state publishes its section 303(d) list and schedule for public
comment.
(c) What procedures should I follow? If you want EPA to carry out
the actions that States are directed to perform under CWA section
303(d), you should send a petition by certified mail to the EPA
Regional Administrator of the Region in which the State is located.
See, 40 CFR 1.7.
(d) What should my petition include? Your petition should be in
writing and it should identify:
(1) The action(s) you want EPA to undertake;
(2) The reasons EPA should perform the action(s);
(3) Any schedule you recommend to EPA for carrying out the desired
action(s); and
(4) All information you believe is relevant to your request.
(e) When will EPA answer my petition? EPA will answer your petition
as quickly as practicable. EPA will notify you and the affected State
of its decision in writing.
(f) How will EPA evaluate my petition? EPA will consider the
information you present in your petition and any other information the
Agency obtains from the relevant State regarding its TMDL program. EPA
may consider:
(1) The State's schedule for establishing TMDLs;
(2) Progress the State has made in identifying waters needing
TMDLs;
(3) Progress the State has made in establishing TMDLs; and
(4) Resources the State has committed for administering its TMDL
program.
(g) What will EPA's decision look like? EPA may decide to perform
any of a variety of actions in response to your petition. For example,
EPA could decide to:
(1) Establish TMDLs for a State;
(2) Provide technical or financial assistance;
(3) Work with the State to change its schedule for establishing
TMDLs; or
(4) Take other action it determines to be appropriate.
EPA could also decide to deny your petition on the ground that the
State is properly implementing section 303(d).
[FR Doc. 99-21416 Filed 8-20-99; 8:45 am]
BILLING CODE 6560-50-P
