Revisions to the Water Quality Planning and Management Regulation
and Revisions to the National Pollutant Discharge Elimination System
Program in Support of Revisions to the Water Quality Planning and
Management Regulation
[Federal Register: July 13, 2000 (Volume 65, Number 135)]
[Rules and Regulations]
[Page 43585-43670]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jy00-19]
[[Page 43585]]
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Part VI
Environmental Protection Agency
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40 CFR Part 9 et al.
Revisions to the Water Quality Planning and Management Regulation and
Revisions to the National Pollutant Discharge Elimination System
Program in Support of Revisions to the Water Quality Planning and
Management Regulation; Final Rules
[[Page 43586]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 122, 123, 124, and 130
[FRL-6733-2]
Revisions to the Water Quality Planning and Management Regulation
and Revisions to the National Pollutant Discharge Elimination System
Program in Support of Revisions to the Water Quality Planning and
Management Regulation
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: Today's final rule revises and clarifies the Environmental
Protection Agency's (EPA) current regulatory requirements for
establishing Total Maximum Daily Loads (TMDLs) under the Clean Water
Act (CWA) so that TMDLs can more effectively contribute to improving
the nation's water quality. Clean water has been a national goal for
many decades. While significant progress has been made, particularly in
stemming pollution from factories and city sewage systems, major
challenges remain. These challenges call for a focused effort to
identify polluted waters and enlist all those who enjoy, use, or depend
on them in the restoration effort. Today's action will establish an
effective and flexible framework to move the country toward the goal of
clean water for all Americans. It establishes a process for making
decisions in a common sense, cost effective way on how best to restore
polluted waterbodies. It is based on identifying and implementing
necessary reductions in both point and nonpoint sources of pollutants
as expeditiously as practicable. States, Territories, and authorized
Tribes will develop more comprehensive lists of all waterbodies that do
not attain and maintain water quality standards. States, Territories,
and authorized Tribes will schedule, based on priority factors, the
establishment of all necessary TMDLs over 10 years, with an allowance
for another five years where necessary. The rule also specifies
elements of approvable TMDLs, including implementation plans which
contain lists of actions and expeditious schedules to reduce pollutant
loadings. States, Territories, and authorized Tribes will provide the
public with opportunities to comment on methodologies, lists,
prioritized schedules, and TMDLs prior to submission to EPA. The rule
lays out specific timeframes under which EPA will assure that lists of
waters and TMDLs are completed as scheduled, and necessary National
Pollutant Discharge Elimination System (NPDES) permits are issued to
implement TMDLs. The final rule explains EPA's discretionary authority
to object to, and reissue if necessary, State-issued NPDES permits that
have been administratively continued after expiration where there is a
need for a change in the conditions of the permit to be consistent with
water quality standards and established and approved TMDLs.
EPA believes that these regulations are necessary because the TMDL
program which Congress mandated in 1972 has brought about insufficient
improvement in water quality. EPA had been concerned about this lack of
progress for some time when, in 1996, it established a Federal Advisory
Committee. The Committee was asked to advise EPA on possible
improvements to the program. After careful deliberations, the Committee
recommended that EPA amend several aspects of the regulations.
EPA believes that these regulations will benefit human health and
the environment by establishing clear goals for identification of
impaired waterbodies and establishment of TMDLs. The regulations will
also ensure that States, Territories and authorized Tribes give a
higher priority to restoring waterbodies which have a greater potential
to affect human health or threatened or endangered species thereby
focusing the benefits of these regulations on the most pressing
problems.
DATES: This regulation is not effective until 30 days after the date
that Congress allows EPA to implement this regulation. EPA will publish
notice of the effective date in the Federal Register. This action is
considered issued for purposes of judicial review, as of 1:00 p.m.
Eastern Daylight Time, on July 27, 2000 as provided in Sec. 23.2.
ADDRESSES: The complete administrative records for the final rule have
been established under docket numbers W-98-31 and W-99-04, and include
supporting documentation as well as printed, paper versions of
electronic comments. Copies of information in the record are available
upon request. A reasonable fee may be charged for copying. The records
are available for inspection and copying from 9 a.m. to 4 p.m., Monday
through Friday, excluding legal holidays, at the Water Docket, EPA,
East Tower Basement, 401 M Street, SW, Washington, DC. For access to
docket materials, please call (202) 260-3027 to schedule an
appointment.
FOR FURTHER INFORMATION CONTACT: Jim Pendergast, U.S. EPA, Office of
Wetlands, Oceans and Watersheds (4503F), 1200 Pennsylvania Ave., N.W.,
Washington, D.C. 20460, (202) 260-9549 for information pertaining to
Part 130 of today's rule, or Kim Kramer, U.S. EPA, Office of Wastewater
Management (4203), 1200 Pennsylvania Ave., N.W., Washington, D.C.
20460, (202) 401-4078, for information regarding Parts 122, 123, and
124.
SUPPLEMENTARY INFORMATION:
A. Authority
Clean Water Act sections 106, 205(g), 205(j), 208, 301, 302,
303, 305, 308, 319, 402, 501, 502, and 603; 33 U.S.C. 1256, 1285(g),
1285(j), 1288, 1311, 1312, 1313, 1315, 1318, 1329, 1342, 1361, 1362,
and 1373.
B. Table of Contents of This Preamble
I. Introduction
A. Background
1. What are the water quality concerns addressed by this rule?
2. What are the current statutory authorities to support this
final rule?
3. What is the regulatory background of today's action?
a. What are the current requirements?
b. What changes did EPA propose in August 1999?
c. What has EPA done to gather information and input as it
developed this final rule?
B. What are the significant issues in today's rule?
1. What are EPA's objectives for today's rule?
2. What are the key differences between the proposal and today's
final rule?
II. Changes to Part 130
A. What definitions are included in this final rule?
(Sec. 130.2)
1. What definitions are added or revised?
2. Response to requests for new definitions.
B. Who must comply with the requirements of subpart C?
(Sec. 130.20)
C. What is the purpose of subpart C ? (Sec. 130.21)
D. What water-quality related data and information must be
assembled to develop the list of impaired waterbodies ?
(Sec. 130.22)
E. How must the methodology for considering and evaluating
existing and available water-quality related data and information to
develop the list be documented ? (Sec. 130.23)
F. When must the methodology be provided to EPA ? (Sec. 130.24)
G. What is the scope of the list of impaired waterbodies?
(Sec. 130.25)
H. How do you apply your water quality standards antidegradation
policy to the listing of impaired waterbodies? (Sec. 130.26)
I. What is the format and content of the list? (Sec. 130.27)
J. What must the prioritized schedule for submitting TMDLs to
EPA contain? (Sec. 130.28)
K. Can the list be modified? (Sec. 130.29)
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L. When must the list of impaired waterbodies be submitted to
EPA and what will EPA do with it? (Sec. 130.30)
M. Must TMDLs be established? (Sec. 130.31)
N. What is a TMDL? (Sec. 130.32(a))
O. What are the minimum elements of a TMDL? (Sec. 130.32(b))
P. What are the requirements of the implementation plan?
(Sec. 130.32(c))
Q. What are the special requirements for Total Maximum Daily
Thermal Loads? (Sec. 130.32(d))
R. How must TMDLs take into account endangered and threatened
species? (Sec. 130.32(e))
S. How are TMDLs expressed? (Sec. 130.33)
T. What actions must EPA take on TMDLs that are submitted for
review? (Sec. 130.34)
U. How will EPA assure that TMDLs are established? (Sec. 130.35)
V. What public participation requirements apply to the lists and
TMDLs? (Sec. 130.36)
W. What is the effect of this rule on TMDLs established when the
rule is first implemented? (Sec. 130.37)
X. Continuing planning process (Sec. 130.50)
Y. Water quality management plans (Sec. 130.51)
Z. Petitions to EPA to establish TMDLs (Sec. 130.65)
AA. Water quality monitoring and report (Secs. 130.10 and
130.11)
AB. Other sections (Secs. 130.0, 130.1, 130.3, 130.7, 130.61,
130.62, 130.63, and 130.64)
III. Changes to Parts 122,123, and 124
A. Reasonable further progress toward attaining water quality
standards in impaired waterbodies in the absence of a TMDL
1. Background
2. Requirements for new and significantly expanding dischargers
3. EPA authority to reissue state-issued expired and
administratively-continued NPDES Permits
B. New tools to ensure implementation of established TMDLs
1. Background
2. Designation of concentrated animal feeding operations
3. Designation of concentrated aquatic animal production
facilities
4. Designation of point source storm water discharges associated
with silvicultural operations
5. EPA authority to reissue state-issued expired and
administratively-continued NPDES Permits
IV. Costs and benefits of the rule
V. Regulatory requirements
A. Regulatory Flexibility Act (RFA) as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5
U.S.C. 601 et seq.
B. Regulatory Planning and Review, Executive Order 12866
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act
E. Federalism, Executive Order 13132
F. Consultation and Coordination with Indian Tribal Governments,
Executive Order 13084
G. Protection of Children from Environmental Health Risks and
Safety Risks, Executive Order 13045
H. National Technology Transfer and Advancement Act
I. Congressional Review Act
Entities Potentially Regulated by the Final Rule
State, Territorial or authorized Tribal Governments.
States, Territories and authorized Tribes.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to 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
you are regulated by this action, you should carefully examine the
applicability criteria in Sec. 130.20. If you have questions regarding
the applicability of this action to a particular entity, consult one of
the persons listed in the FOR FURTHER INFORMATION CONTACT section.
Response to Comments
This preamble explains in detail the elements of the final TMDL
regulations and the amendments which EPA is making to the NPDES program
in order to support implementation of the TMDL program. EPA has made
changes to its proposal in response to comments received on the
proposed rules. EPA has evaluated all the significant comments it
received including comments submitted after the close of the comment
period and prepared a Response to Comment Document containing EPA's
response to those comments. This document complements discussions in
this preamble and is available for review in the Water Docket.
Before Reading This Preamble, You Should Read the Final Rule
I. Introduction
A. Background
1. What are the Water Quality Concerns Addressed by this Rule?
The CWA includes a number of programs aimed at restoring and
maintaining water quality. These include national technology-based
effluent limitation guidelines; national water quality criteria
guidance; State, Territorial and authorized Tribal water quality
standards; State, Territorial and authorized Tribal nonpoint source
(NPS) management programs; funding provisions for municipal wastewater
treatment facilities; State, Territorial and authorized Tribal water
quality monitoring programs; and the NPDES permit program for point
sources. These programs have produced significant and widespread
improvements in water quality over the last quarter-century, but many
waterbodies still fail to attain or maintain water quality standards
due to one or more pollutants.
The National Water Quality Inventory Report to Congress for 1998
indicates that of the 23 percent of the Nation's rivers and streams
that have been assessed, 35 percent do not fully support water quality
standards or uses and an additional 10 percent are threatened. Of the
32 percent of estuary waterbodies assessed, 44 percent are not fully
supporting water quality standards or uses and an additional 9 percent
are threatened. Of the 42 percent of lakes, ponds, and reservoirs
assessed (not including the Great Lakes), 45 percent are not fully
supporting water quality standards or uses and an additional 9 percent
are threatened. The report also indicates that 90 percent of the Great
Lakes shoreline miles have been assessed, and that 96 percent of these
are not fully supporting water quality standards and an additional 2
percent are threatened. The report indicates that pollutants in
rainwater runoff from urban and agricultural land are a leading source
of impairment. Agriculture is the leading source of pollutants in
assessed rivers and streams, contributing to 59 percent of the reported
water quality problems and affecting about 170,000 river miles.
Hydromodification is the second leading source of impairment, and urban
runoff/storm sewers is the third major source, contributing
respectively 20 percent and 12 percent of reported water quality
problems. EPA recognizes that a large percentage of streams has not
been assessed but believes that there is sufficient information in hand
to warrant concern over those unassessed waters and the slow pace at
which many waters are attaining water quality standards.
The 1998 section 303(d) lists of impaired waterbodies submitted by
States and Territories provided additional information. The section
303(d) lists relied, in part, on information in the section 305(b)
reports. The States and Territories identified over 20,000 individual
waterbodies including river and stream segments, lakes, and estuaries
that do not attain State water quality standards despite 28 years of
pollution control efforts. These impaired waterbodies include
approximately 300,000 miles of river and shoreline and approximately 5
million acres of lakes. Approximately 210 million people live within 10
miles of these waterbodies. State and local governments also reported
that they
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issued 2,506 fish advisories and closed 353 beaches in 1998.
EPA believes that a significant part of the response to these
problems must be a more rigorous implementation of the TMDL program.
EPA believes that today's rule will provide the tools for States,
Territories and authorized Tribes to bring the assessment and
restoration authorities provided by section 303(d) into greater use and
result in significant improvements in the quality of the Nation's
waterbodies.
2. What are the Current Statutory Authorities That Support This Final
Rule?
The goal of establishing TMDLs is to assure that water quality
standards are attained and maintained. Section 303(d) of the CWA which
Congress enacted in 1972 requires States, Territories and authorized
Tribes to identify and establish a priority ranking for waterbodies for
which technology-based effluent limitations required by section 301 are
not stringent enough to attain and maintain applicable water quality
standards, establish TMDLs for the pollutants causing impairment in
those waterbodies, and submit, from time to time, the list of impaired
waterbodies and TMDLs to EPA. EPA must review and approve or disapprove
lists and TMDLs within 30 days of the time they are submitted. If EPA
disapproves a list or a TMDL, EPA must establish the list or TMDL. In
addition, EPA and the courts have interpreted the statute as requiring
EPA to establish lists and TMDLs when a State fails to do so.
Furthermore, the requirement to identify and establish TMDLs for
waterbodies exists regardless of whether the waterbody is impaired by
point sources, nonpoint sources or a combination of both. Pronsolino v.
Marcus, 2000 WL 356305 (N.D. Cal. March 30, 2000.)
Listing impaired waterbodies and establishing TMDLs for waterbodies
impaired by pollutants from nonpoint sources does not mean any new or
additional implementation authorities are created. Once a TMDL is
established, existing State, Territorial and authorized Tribal
programs, other Federal agencies' policies and procedures, as well as
voluntary and incentive-based programs, are the basis for implementing
the controls and reductions identified in TMDLs.
CWA Section 402 establishes a program, the NPDES Program, to
regulate the ``discharge of a pollutant,'' other than dredged or fill
materials, from a ``point source'' into ``waters of the United
States.'' The CWA and NPDES regulations define a ``discharge of a
pollutant,'' ``point source,'' and ``waters of the United States.'' The
NPDES Program is administered at the federal level by EPA unless a
State, Tribe or U.S. Territory assumes the program after receiving
approval by the federal government. Under section 402, discharges of
pollutants to waters of the United States are authorized by obtaining
and complying with the terms of an NPDES permit. NPDES permits commonly
contain numerical limits on the amounts of specified pollutants that
may be discharged and specified best management practices (BMPs)
designed to minimize water quality impacts. These numerical effluent
limitations and BMPs or other non-numerical effluent limitations
implement both technology-based and water quality-based requirements of
the Act. Technology-based limitations represent the degree of control
that can be achieved by point sources using various levels of pollution
control technology. If necessary to achieve compliance with applicable
water quality standards, NPDES permits must contain water quality-based
limitations more stringent than the applicable technology-based
standards.
3. What is the Regulatory Background of Today's Action?
a. What are the Current Requirements?
EPA issued regulations governing identification of impaired
waterbodies and establishment of TMDLs, at Sec. 130.7, in 1985 and
revised them in 1992. These regulations provide that:
State, Territorial and authorized Tribal lists must
include those waters still requiring TMDLs because technology based
effluent limitations required by the CWA or more stringent effluent
limitations and other pollution controls (e.g., management measures)
required by local, State, or Federal authority are not stringent
enough to attain and maintain applicable water quality standards;
State, Territorial and authorized Tribal lists must be
submitted to EPA every two years, beginning in 1992, on April 1 of
every even-numbered year;
The priority ranking for listed waters must include an
identification of the pollutant or pollutants causing or expected to
cause the impairment and an identification of the waterbodies
targeted for TMDL development in the next two years;
States, Territories and authorized Tribes, in
developing lists, must assemble and evaluate all existing and
readily available water quality-related data and information;
States, Territories and authorized Tribes must submit,
with each list, the methodology used to develop the list and provide
EPA with a rationale for any decision not to use any existing and
readily available water quality-related data and information; and
TMDLs must be established at levels necessary to
implement applicable water quality standards with seasonal
variations and a margin of safety that takes into account any lack
of knowledge concerning the relationship between effluent
limitations and water quality.
The regulations define a TMDL as a quantitative assessment of
pollutants that cause water quality impairments. A TMDL specifies the
amount of a particular pollutant that may be present in a waterbody,
allocates allowable pollutant loads among sources, and provides the
basis for attaining or maintaining water quality standards. TMDLs are
established for waterbody and pollutant combinations for waterbodies
impaired by point sources, nonpoint sources, or a combination of both
point and nonpoint sources. Indian Tribes may be authorized to
establish TMDLs for waterbodies within their jurisdiction. To date,
however, no Tribe has sought or received CWA authority to establish
TMDLs.
The NPDES regulations, in several provisions and under certain
circumstances, allow the permitting authority and/or EPA to subject
certain previously non-designated sources to NPDES program
requirements. EPA established these jurisdictional regulations in 1973
when the Agency and the States focused permitting resources primarily
on continuous discharges, for example, industrial and municipal
sources. Also, in the early stages of CWA implementation, the Agency
and the States focused on implementation of technology-based standards.
At that time, EPA attempted to limit the scope of the NPDES permitting
program to certain types of point sources. The D.C. Circuit rejected
that attempt, however, and explained that EPA could not exempt point
sources from the NPDES program. NRDC v. Costle, 568 F.2d 1369, 1377
(D.C. Cir. 1977). Although the Court rejected this attempt, it did
recognize the Agency's discretion to define ``point source'' and
``nonpoint source.'' The existing NPDES regulations identifying animal
production and silvicultural sources represents an early attempt to do
so.
Also, under the NPDES program regulations, a Regional Administrator
may review and object to State-issued NPDES permits. The procedures by
which a Regional Administrator may review and object to these permits
are found in Sec. 123.44. The existing objection authority, under
section 402(d) of the Act, grants EPA 90 days within which to object to
a proposed State permit that fails to meet the guidelines and
requirements of the Act.
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If a State fails to respond to an EPA objection within 90 days of
objection, exclusive authority to issue the NPDES permit to that
discharger passes to EPA.
b. What Changes Did EPA Propose in August 1999?
In 1996, the Office of Water determined that there was a need for a
comprehensive evaluation of EPA's and State, Territorial and authorized
Tribal implementation of section 303(d) requirements. EPA convened a
committee under the Federal Advisory Committee Act (TMDL FACA
committee) to undertake such an evaluation and make recommendations for
improving implementation of the TMDL program, including recommendation
for revised regulations and guidance. The TMDL FACA committee included
20 individuals with diverse backgrounds, including agriculture,
forestry, environmental advocacy, industry, and State, local, and
Tribal governments. On July 28, 1998, the committee submitted its final
report to EPA which contained more than 100 consensus recommendations,
a subset of which recommended regulatory changes. The TMDL FACA
committee recommendations helped guide the development of the revisions
which EPA proposed in August 1999.
In proposing revisions to the regulations governing TMDLs, EPA also
relied upon the past experience of States and Territories. EPA's
proposal recognized and responded to some of the issues raised by
stakeholders regarding the effectiveness and consistency of the TMDL
program. EPA also proposed changes intended to resolve some of the
issues and concerns raised by litigation concerning the identification
of impaired waterbodies and the establishment of TMDLs. Finally, EPA
proposed changes to the NPDES permitting regulations to assist in the
establishment and implementation of TMDLs and to better address point
source discharges to waters not meeting water quality standards prior
to establishment of a TMDL.
Key elements of the changes proposed in August, 1999 include:
State, Territorial, and authorized Tribal section 303(d)
listing methodologies would become more specific, subject to public
review, and provided to EPA for review prior to submission of the list.
States, Territories and authorized Tribes would develop a
more comprehensive list of waterbodies impaired and threatened by
pollution, organize it into four parts, and submit it to EPA.
States, Territories and authorized Tribes would establish
TMDLs only for waterbodies on the first part of the list.
States, Territories and authorized Tribes would keep
waterbodies on the lists until water quality standards were achieved.
States, Territories and authorized Tribes would establish
and submit to EPA schedules to establish all TMDLS within 15 years of
listing.
States, Territories, and authorized Tribes would rank
TMDLs into high, medium or low priority.
TMDLs would include 10 specific elements, one of which is
an implementation plan.
States, Territories, and authorized Tribes would notify
the public and give them the opportunity to comment on the methodology,
lists, priority rankings, schedules, and TMDLs prior to submission to
EPA.
New and significantly expanded discharges subject to NPDES
permits would need to obtain an offset for the increased discharge
before being allowed to discharge the increase.
Certain point source storm water discharges from
silviculture would be required to seek a permit if necessary to
implement a TMDL.
EPA could designate certain animal feeding operations and
aquatic animal production facilities as sources subject to NPDES
permits in authorized States.
EPA could object to expired and administratively continued
State-issued NPDES permits.
Regulatory language would codify requirements pertaining
to citizens' rights to petition EPA.
c. What has EPA Done to Gather Information and Input as it Developed
This Final Rule?
EPA published the proposed rule on August 23, 1999, and provided
for an initial 60 day comment period, which was later extended to a
total of 150 days. EPA received about 34,000 comments on the proposal
comprised of about 30,500 postcards, 2,700 letters making one or two
points, and 780 detailed comments addressing many issues. EPA has
reviewed all these comments as part of the development of today's final
rule.
EPA also engaged in an extensive outreach and information-sharing
effort following the publication of the proposed rule. The Agency
sponsored and participated in six public meetings nationwide, to better
inform the public on the contents of the proposed rules, and to get
informal feedback from the public. These meetings took place in Denver,
Los Angeles, Atlanta, Kansas City, Seattle, and Manchester, New
Hampshire. In addition, EPA participated in numerous other meetings,
conferences and information-sharing sessions to discuss the proposed
rule and listen to alternative approaches to achieving the nation's
clean water goals.
The Agency has had an ongoing dialogue with State and local
officials and their national/regional organizations throughout the
development of this rule. EPA has met with organizations representing
State and local-elected officials including: the National Governors'
Association, the Western Governors' Association, the National
Conference of State Legislatures, the National Association of Counties,
the National League of Cities and EPA's State and Local Advisory Group.
Many discussion sessions were held with officials who administer State
and local programs related to water quality, agriculture, forestry, and
harbors. Discussions were held with such organizations as the
Environmental Council of the States, the Association of State and
Interstate Water Pollution Control Administrators, the Association of
Municipal Sewerage Agencies, the Association of Municipal Water
Agencies, the National Association of State Agricultural Departments,
the National Association of State Foresters, the Western States Water
Council, the Association of State Drinking Water Administrators, the
National Association of Flood and Storm Water Management Agencies, the
Interstate Conference on Water Policy, and the Western States Land
Commissioners
EPA met with groups representing business, industry, agriculture,
and forestry interests, including the Electric Power Research
Institute, the Utility Water Action Group, American Water Works
Association, the American Forest and Paper Association, the Family Farm
Alliance, the National Association of Conservation Districts, a number
of State Farm Bureaus, corn and soybean grower organizations and
forestry associations. EPA also met with environmental and citizen
groups including the Natural Resources Defense Council, Sierra Club,
Friends of the Earth and Earth Justice. EPA participated in numerous
Congressional briefings and hearings held in Washington and in several
field locations. The results of these meetings and discussions are
reflected in today's rule.
[[Page 43590]]
B. What are the Significant Issues in Today's Rule?
1. What are EPA's Objectives for Today's Rule?
States, Territories, and authorized Tribes are essential in
carrying out a successful program and EPA looks forward to working with
them in developing this program. Further, we believe that, ultimately,
any successful effort depends on a cooperative approach that pulls
together the variety of entities and stakeholders involved in the
watershed. EPA through this rulemaking seeks to provide a framework
that facilitates this approach.
EPA received many comments regarding the overall purpose of the
proposed rule. Many commenters expressed concerns that EPA was putting
too much emphasis on TMDLs and ignoring other programs and initiatives
under the CWA which are also aimed at restoring or maintaining water
quality. A common theme through many comments was that the Agency
should not attempt to force-fit clean up of every impairment through
the TMDL process. EPA agrees with the commenters that for some
waterbodies and watersheds, existing plans and agreements may
accomplish much of what this rule intends. However, EPA believes that
identifying waterbodies that are impaired and establishing TMDLs is
both statutorily required and will help focus ongoing activities for
more efficient attainment of water quality standards.
The CWA requires TMDLs for pollutants in impaired waterbodies if
implementation of technology-based effluent limitations is not
sufficient to attain water quality standards. Today's rule clarifies
this concept to require that TMDLs be established for all pollutants in
impaired waterbodies unless enforceable Federal, State, Territorial or
authorized Tribal controls will result in attainment of water quality
standards by the time the next list in the listing cycle is required.
EPA recognizes that watershed or other plans developed under other
State, Territorial or authorized Tribal programs or by other Federal
agencies, such as wet weather flow plans, Coastal Zone Management
plans, or conservation plans administered by the Natural Resources
Conservation Service, have the same goal as a TMDL. EPA believes that
these other activities are crucial to the attainment of water quality
standards either because they will result in attainment of water
quality standards before a TMDL is established or because they are the
basis for implementation of the controls required by TMDLs. Thus,
today's rule provides a role for the various programs aimed at
improving water quality--both as an alternative to developing a TMDL in
certain circumstances, and a means for implementing TMDLs.
Many commenters also perceived EPA's proposal as an attempt to
supplant State, Territorial or authorized Tribal primacy. Today's rule
preserves the primary responsibilities of States, Territories and
authorized Tribes and clarifies EPA's responsibilities under the CWA.
EPA believes that today's rule provides greater clarity regarding the
requirements for States, Territories and authorized Tribes and EPA's
own responsibilities for the TMDL program. EPA believes that today's
rule establishes a framework for effective, cooperative efforts between
State, Territorial, authorized Tribal governments, individuals, local
governments and other Federal agencies.
EPA is also conscious of the need for adequate resources. EPA has
sought to increase funding for development and implementation of TMDLs
in both the FY 2001 Federal budget and prior budgets. In the FY 2001
Federal budget the Agency has requested an additional $45 million in
CWA Section 106 grants specifically for the TMDL program. In FY 2001,
EPA requested $250 million for section 319 nonpoint source grants, an
increase of $50 million (25%) over FY 2000. In addition, the FY 1999
and FY 2000 budgets of $200 million per year for section 319 grants
represented a doubling (100% increase) of the prior section 319
funding. To further support State nonpoint source implementation, EPA
has proposed an FY2002 budget that gives States and Territories the
option to reserve up to 19% of their Clean Water State Revolving Fund
capitalization grants to provide grants for implementing nonpoint
source and estuary management projects.
2. What Are the Key Differences Between the Proposal and Today's Final
Rule?
This section summarizes the significant changes EPA has made in the
rule adopted today compared to the proposed rule. A more detailed
discussion of all the changes is included in the specific sections for
these changes in this preamble.
a. Threatened waterbodies. EPA proposed that threatened waterbodies
be listed on Part 1 of the list, meaning that TMDLs would have to be
established for them as for impaired waters. After carefully
considering comments, particularly the concerns raised by commenters
regarding the technical difficulties inherent in determining when water
quality trends are declining and the difficulty in making listing
decisions, EPA is not requiring that States, Territories or authorized
Tribes list threatened waterbodies on the section 303(d) list or that
TMDLs be prepared for these waterbodies. States, Territories and
authorized Tribes retain, at their discretion, the option to list
threatened waterbodies on their section 303(d) list and establish TMDLs
for these waterbodies.
b. The four-part 303(d) list. EPA proposed that the section 303(d)
list include all impaired waterbodies, sorted into four parts, and a
priority ranking for those waterbodies with respect to establishing
TMDLs. Part 1 of the list would include impaired waterbodies for which
TMDLs would be required to be established within 15 years. Part 2 of
the list would include waterbodies impaired by pollution that is not
caused by a pollutant. TMDLs would not be required for these
waterbodies. Part 3 of the list would include waterbodies for which
TMDLs had been established but water quality standards not yet
attained. Part 4 would include waterbodies for which technology-based
controls or other enforceable controls would attain water quality
standards by the next listing cycle. Today's final rule adds a
clarification that if during the development of each list, a waterbody
previously listed on Part 3 of the list has not made substantial
progress towards attainment of water quality standards, it must be
moved to Part 1 and a new TMDL must be established. Today's rule also
allows States, Territories and authorized Tribes to submit their list
in different formats. EPA will still approve all four parts of the
list, but States, Territories and authorized Tribes may submit lists in
any of three formats. Lists may be submitted to EPA as described in the
proposal--that is, as one four-part list published by itself, as part
of the section 305(b) water quality report, or with Part 1 submitted
separately to EPA as a section 303(d) submission and Parts 2, 3 and 4
submitted to EPA as a section 303(d) component of the section 305(b)
water quality report.
c. Inclusion of schedules in the section 303(d) list. EPA proposed
that States, Territories and authorized Tribes should submit the list
and priority rankings to EPA for approval, and should separately submit
a schedule for establishing TMDLs which would not be subject to EPA
approval. Today's rule requires States, Territories, and authorized
Tribes to submit a prioritized schedule for establishing TMDLs for
waterbodies listed on Part 1. Further, as
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suggested by some commenters, the final regulations require that TMDL
establishment be scheduled as expeditiously as practicable and within
10 years of July 10, 2000, or 10 years from the due date for the first
list on which the waterbody appeared, whichever is later, rather than
the 15 year period EPA proposed. However, the schedule can be extended
for up to 5 years when a State, Territory, or authorized Tribe explains
that despite expeditious action establishment of TMDLs within 10 years
is not practicable.
d. Implementation plan. EPA proposed that TMDLs must contain an
implementation plan as a required element for approval. Today's rule,
like the proposal, requires an implementation plan as a mandatory
element of an approvable TMDL, and includes substantial changes to the
reasonable assurance and implementation plan requirements in response
to the comments received. The implementation plan requirements differ
depending on whether waterbodies are impaired only by point sources
subject to an NPDES permit, only by other sources (including nonpoint
sources), or by both. EPA is also adding specificity regarding when the
NPDES permits implementing wasteload allocations must be issued.
Finally EPA is establishing a goal of 5 years for implementing
management measures or control actions to achieve load allocations, and
a goal of 10 years for attaining water quality standards.
e. Reasonable assurance. EPA proposed that States, Territories and
authorized Tribes provide reasonable assurance that the wasteload and
load allocations reflected in TMDLs would be implemented. Today's final
rule clarifies how reasonable assurance can be demonstrated for
waterbodies impaired by all pollutant sources, and provides additional
detail on how reasonable assurance can be demonstrated for nonpoint
sources. These changes reflect and seek to address the uncertainties
inherent in dealing with nonpoint pollutant sources and recognize the
importance of voluntary and incentive-based programs. Finally, today's
rule specifies how EPA will provide reasonable assurance when it
establishes TMDLs.
f. The petition process. EPA proposed to codify requirements
applicable to petitions which can be filed with the Administrator by
citizens who believe that EPA has failed to comply with its TMDL
responsibilities under the CWA. Today's rule does not include
requirements codifying the petition process. EPA notes, however, that
eliminating the proposed petition process from the rule does not change
the fact that any person is entitled, under the Administrative
Procedure Act (APA), to petition EPA to take specific actions regarding
identification of impaired waterbodies and establishment of TMDLs.
g. Offsets. EPA proposed to require new and significantly expanded
discharges subject to the NPDES permit program to obtain an offset for
their increased load before being allowed to discharge the increase.
Today's rule does not include any requirement for an offset.
h. Silviculture, Animal Feeding Operations, and Aquatic Animal
Production Facilities. EPA proposed to allow EPA and States to
designate certain point source storm water discharges from silviculture
as subject to the NPDES permitting program. EPA also proposed to allow
EPA to designate certain animal feeding operations and aquatic animal
production facilities as point sources in NPDES authorized states. EPA
has decided to withdraw this proposal.
II. Changes to Part 130
This section explains in detail the elements of the final Part 130
TMDL regulations and how these regulations differ from the proposal.
EPA has made several significant changes to the proposal, clarified
other requirements, and rewritten and reorganized the regulatory
language. Most of these changes have been made in response to comments
received on the proposed rule.
A. What Definitions are Included in This Final Rule? (Sec. 130.2)
Today's final action revises the definitions of load (or loading),
load allocation, wasteload allocation, and TMDL, and adds definitions
for the terms pollutant, total maximum daily thermal load, impaired
waterbody, thermal discharge, reasonable assurance, management
measures, waterbody, and list. In addition, for reasons explained in
detail later in this section EPA has decided not to promulgate
definitions which were not proposed but were suggested by the
commenters.
1. What Definitions are Added or Revised?
a. New Definition of Pollutant (Sec. 130.2(d))
What did EPA propose? On August 23, 1999, EPA proposed to add a
definition for ``pollutant'' that was the same as the definition in the
CWA at section 502(6). EPA also proposed to clarify that, in EPA's
view, the definition of pollutant would encompass drinking water
contaminants that are regulated under section 1412 of the Safe Drinking
Water Act and that may be discharged to waters of the U.S. that are the
source water of one or more public water systems. EPA was proposing to
clarify that drinking water contaminants that meet these criteria are
pollutants as defined in the CWA.
What comments did EPA receive? EPA received many comments on this
proposed definition which are addressed fully in the Response to
Comment Document included in the Docket. Most commenters offered
suggestions as to which particular substances (particularly naturally
occurring pollutants, FIFRA registered pesticides, and flow) may or may
not be pollutants, and requested specific recognition of these
substances in the definition. Others objected to inclusion of drinking
water contaminants in the definition, believing that they were better
addressed by the Safe Drinking Water Act requirements. In addition, EPA
received several requests for more examples to help clarify the
distinction between pollutants and pollution. Some commenters
understood EPA to propose that ``pollutant'' includes non-point source
pollution while others did not. Others gave examples of situations
where they believed it would be impossible to decide whether a
waterbody was impaired by pollution or a pollutant. Examples given
included: biological impairment due to displacement of bedload sediment
during high intermittent streamflow caused by increased impervious
surface, and impairment due to low dissolved oxygen levels in
hydropower releases.
What is EPA promulgating today? EPA is promulgating a definition of
pollutant that is identical to the definition in EPA's current NPDES
regulations. That definition is identical to the CWA definition except
that it excludes certain radioactive materials from the definition.
Train v. Colorado Public Int. Research Group, 426 U.S. 1, 25 (1976)
(Congress did not intend for materials governed by the Atomic Energy
Act to be included in the category of pollutants subject to regulation
by EPA under the CWA). In recognition that the CWA definition does not
expressly discuss drinking water contaminants, EPA is not including a
reference to drinking water contaminants in the final language.
However, EPA interprets the CWA definition of pollutant to include, in
most cases, drinking water contaminants that are regulated under
[[Page 43592]]
section 1412 of the Safe Drinking Water Act (SDWA). This interpretation
is consistent with both the language and the intent of the CWA. First,
drinking water contaminants fall within the meaning of one or more of
the terms used by Congress to define pollutant. Second, the term
``public water supplies'' is listed under CWA section 303(c)(2)(A) as a
potential beneficial use to be protected by water quality standards.
EPA expects that virtually all drinking water contaminants that are
regulated in the future will be encompassed by one of or more of the
terms used to define pollutants.
EPA wishes to clarify the relationship between pollutants and
pollution for purposes of section 303(d). Pollution, as defined by the
CWA, and the current regulations is ``the man-made or man-induced
alteration of the chemical, physical, biological, and radiological
integrity of a waterbody.'' This is a broad term that encompasses many
types of changes to a waterbody, including alterations to the character
of a waterbody that do not result from the introduction of a specific
pollutant or the presence of pollutants in a waterbody at a level that
causes an impairment. In other words, all waterbodies which are
impaired by human intervention suffer from some form of pollution. In
some cases, the pollution is caused by the presence of a pollutant, and
a TMDL is required. In other cases it is caused by activities other
than the introduction of a pollutant.
The following are two examples of pollution caused by pollutants.
The discharge of copper from an NPDES regulated facility is the
introduction of a pollutant into a waterbody. To the extent that this
pollutant alters the chemical or biological integrity of the waterbody,
it is also an example of pollution. (Copper is not likely to cause an
alteration to the water's physical integrity.) Similarly, landscape
actions that result in the introduction of sediment into a waterbody
constitute pollution when that sediment (which is a pollutant) results
in an alteration of the chemical, physical, or biological integrity of
the waterbody. TMDLs would have to be established for each of these
waterbodies.
Degraded aquatic habitat is evidence of impairment which may be
caused solely by channelization of a stream's bottom. In this case the
waterbody would be considered impaired by pollution that is not a
result of the introduction or presence of a pollutant. However, if the
channelization also caused the bottom to become smothered by excessive
sediment deposition, then the waterbody impairment is caused by a
pollutant (sediment) and a TMDL would be required.
Based on data contained in the 1998 section 303(d) lists, EPA
believes that many waterbodies that fail to attain water quality
standards, fail to do so because a specific substance or material, a
pollutant, has been or is being introduced into the waterbody. EPA
believes the vast majority of impairments are caused by the
introduction of pollutants and does not anticipate large numbers of
waterbodies to be identified as impaired only by pollution. Of the top
15 categories of impairment identified on the 1998 section 303(d)
lists, 11 categories are directly or indirectly associated with
pollutants: sediments, pathogens, nutrients, metals, low dissolved
oxygen, temperature, pH, pesticides, mercury, organics, and ammonia.
Together, these categories account for 77% of the total impairments
listed. In comparison, three of the top 15 categories either are not
associated with pollutants or the link to pollutants is generally
unknown: habitat alterations, impaired biologic communities and flow
alterations. These categories account for only 12% of the total number
of listed impairments.
While TMDLs are not required to be established for waterbodies
impaired by pollution but not a pollutant, they nonetheless remain
waterbodies which fail to attain or maintain water quality standards.
EPA believes that States, Territories and authorized Tribes should use
approaches and institute actions other than TMDLs to begin the task of
returning these waterbodies to full attainment of water quality
standards. As explained later in the preamble, one of the reasons for
including these waterbodies on Part 2 of the list is to ensure that
they remain in the public's eye and are not simply ignored.
Another frequently asked question concerns pollutants that are
``natural.'' Water quality standards often fail to distinguish between
pollutants that are introduced into a waterbody as the result of some
human activity and those that are present in a waterbody due to natural
processes such as weathering of metals from geologic strata. Where a
natural pollutant occurs along with an anthropogenic pollutant, they
both must be accounted for within the TMDL so that the TMDL is
established at a level that will implement the water quality standards.
For example, cadmium originating from the natural weathering of a
geologic outcrop, as well as cadmium from a mine tailings pond, must be
accounted for in the wasteload allocation of a TMDL to ensure that the
wasteload allocation is properly set to achieve water quality
standards. EPA recognizes that there may be instances where the
introduction of natural substances alone may cause the waterbody to
exceed the water quality standards unless the standard contains an
exception for addressing such situations. In those circumstances, EPA
encourages States, Territories, and authorized Tribes to revise their
water quality standards to reflect and recognize the presence and
effect of substances that occur naturally.
EPA does not believe that flow, or lack of flow, is a pollutant as
defined by CWA Section 502(6). Some commenters have urged EPA to revise
the proposed regulations to require TMDLs for all forms of pollution,
including hydromodification, which reduce the amount of water flowing
through a river or stream. They argue that since low flow can lead to
non-attainment of water quality standards, e.g., use as a fishery,
waterbodies impacted by low flow should be listed on Part 1 and have
TMDLs established for them. While EPA believes that waterbodies which
do not attain and maintain water quality standards solely because of
low flow must be identified on Part 2 of a State's section 303(d) list,
it does not believe section 303(d)(1)(C) requires that States must
establish TMDLs for such waters. This is because EPA interprets section
303(d)(1)(C) to require that TMDLs be established for ``pollutants''
and does not believe ``low flow'' is a pollutant. Section 303(d)(1)(C)
provides that States shall establish TMDLs ``for those pollutants''
which the Administrator identifies as suitable for such calculation. In
1978, EPA said that all pollutants under proper technical permit
conditions were suitable for TMDL calculations. However, low flow is
not a pollutant. It is not one of the items specifically mentioned in
the list of pollutants Congress included at section 502(6) of the CWA.
Nor does it fit within the meaning of any of those terms.
Instead, low flow is a condition of a waterbody (i.e., a reduced
volume of water) that when man-made or man-induced would be categorized
under the CWA as pollution, provided it altered the physical,
biological and radiological integrity of the water. Many forms of human
activity, including the introduction of pollutants, can cause water
pollution. Not all pollution-causing activities, however, must be
analyzed and allocated in a TMDL. Section 303(d) is a mechanism that
requires an accounting and allocation of pollutants introduced into
impaired waters (whether from point or nonpoint
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sources). If low flow in a river, even if man-induced, exacerbates or
amplifies the impairing effect of a pollutant in that river by
increasing its concentration, that factor is to be accounted for and
dealt with in the TMDL by calculating and allocating the total
pollutant load in light of, among other things, seasonal variations in
flow. However, where no pollutant is identified as causing an
exceedance of water quality standards, EPA does not believe the CWA
requires a TMDL to be established.
The Supreme Court's decision in PUD. No 1 of Jefferson County et
al. v. Washington Dept. of Ecology et al., 511 U.S. 700 (1994), does
not compel a different result. In that case a city and local utility
district wanted to build a dam on the Dosewallips river in Washington
State. The project would divert water from the river to run the dam's
turbines and then return the water to the river below the dam. To
protect salmon populations in the river, the state imposed a minimum
flow requirement as part of its CWA section 401 certification of the
project. The Court determined that compliance with section 303(c) water
quality standards is a proper function of a section 401 certificate.
Accordingly, the Court concluded that pursuant to section 401, the
state may require the dam project to maintain minimum stream flow
necessary to protect the river's designed use as salmon habitat.
The Supreme Court in Jefferson County did not interpret section
303(d) and did not hold that TMDLs had to be established for flow-
impacted waters. The Court did reject petitioner's claim that the CWA
is only concerned with water ``quality'' and does not allow the
regulation of water ``quantity.'' Like EPA, it recognized that water
quantity may be closely related to water quality and that reduced
stream flow may constitute ``pollution'' under the Act. However, in
holding that section 401 certification applied to dam projects as a
whole--including pollution-causing water withdrawals--and not just
discharges of pollutants, the Court did not decide that a section
303(d) TMDL must be established for low flow-impaired waterbody. This
is because Jefferson County did not decide that low flow was a
pollutant. Under section 303(d) it is pollutants, not pollution, for
which TMDLs must be established.
However, EPA recognizes that there will be cases where flow or lack
thereof will enhance the ability of a pollutant to impair a waterbody.
EPA has provided for this eventuality by requiring that States,
Territories and authorized Tribes consider seasonal variations,
including flow, when establishing TMDLs. (See discussion at
Sec. 130.32(b)(9).)
Also, EPA declines at this time to define ``chemical wastes'' as
that term appears in the definition of ``pollutant'' to exclude
pesticides designated for aquatic uses. EPA recognizes that the
requirements of section 303(d) and this rule may lead to waterbodies
being listed due to the presence of pesticides registered under the
Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) because
water quality standards for that chemical are exceeded. EPA will
continue to evaluate the interface between its regulatory
responsibilities under FIFRA and the CWA.
Note: EPA erroneously listed ``pollution'' as a proposed new
definition in the preamble to the proposal. In fact, the definition
of pollution is included in the current rules and has been revised
by simply adding a citation of the CWA section defining that term.
b. Revised Definition of Loading (Sec. 130.2(e))
What did EPA propose? EPA proposed to make a grammatical revision
to the definition of ``load or loading'' by using the words ``loading
of pollutant'' to clarify that loading is the introduction of a
pollutant whether man-made or naturally-occurring rather than as a
parenthetical explanation of what is man-caused loading. EPA did not
consider this change substantive and did not discuss it in the preamble
to the proposed rule.
What comments did EPA receive? Some commenters expressed concern
about perceived inconsistencies between (1) the proposed definition of
loading and the expression of a TMDL at proposed Sec. 130.34 and (2)
between this definition and the proposed definition of a TMDL at
Sec. 130.2(h)(2). Other commenters requested revisions to clarify that
the load describes when the water quality standard is attained, that
the definition does not apply to nonpoint sources, or that ambient
temperature increases are not a load. Another commenter suggested that
EPA include the definition of load capacity included in the current
requirements which EPA did not include in the proposal.
What is EPA promulgating today? EPA has carefully considered these
comments but is promulgating this definition as proposed. EPA does not
believe that there are inconsistencies between the definition and the
manner in which TMDLs may be expressed pursuant to Sec. 130.33. EPA
does not interpret the final rule to require that TMDLs be always
expressed as the load or load reduction of the pollutant causing the
impairment. The final rule at Sec. 130.33(b)(4) preserves the
flexibility to express the TMDL as a quantitative expression of a
modification to a characteristic of the waterbody that results in a
certain load or load reduction. Similarly, EPA does not believe there
are inconsistencies between the proposed definition of load as a
substance or matter introduced in a waterbody and the proposed
definition of a TMDL at Sec. 130.2(h)(2) which would have required
identification and quantification of the load ``that may be present''
in the waterbody. TMDLs are generally established using the principle
of mass balance, which is the core principle of water quality modeling.
The mass of a pollutant in a waterbody is a function of the mass
introduced into the waterbody and the mass that flows out of the
waterbody. The same principle applies for thermal energy.
EPA sees no inconsistency between describing loading as an
introduction of a substance or matter into a waterbody and requiring
identification of the pollutant load present within the waterbody for
the purpose of establishing TMDLs. The characterization of a mass of
material as a load into, or a load within, a waterbody will depend in
some instances on how the State, Territory, or authorized Tribe decides
to frame the TMDL.
EPA is not revising the definition of load to suggest that the load
describes when the water quality standard is attained. The definition
of ``load or loading'' merely refers to the quantity of matter or
thermal energy introduced into a waterbody; it is not intended to
include an interpretation of the environmental consequence of that
load. It is the calculation of the TMDL and the resulting allocations
which establish the loading targets necessary to achieve water quality
standards.
EPA is not revising the definition of load or loading to exclude
nonpoint sources. As noted above, EPA believes that section 303(d)
applies to all sources including nonpoint sources, and that all sources
are considered when allocations needed to attain or maintain water
quality standards are established. EPA has consistently required the
inclusion of pollutants from nonpoint sources in estimates of loading.
By defining ``load allocations'' which pertain to nonpoint sources as
``best estimate of loadings,'' the language of the current regulations
clearly demonstrates that EPA intended for pollutants from nonpoint
sources to be included in the definition of load and loading.
Therefore, EPA believes it is simply a continuation of its policy to
[[Page 43594]]
consider the definition of loads to apply to nonpoint sources.
Similarly, EPA is not revising the definition of load or loading to
exclude increases in temperature due to solar input. EPA does not
believe that the source of a load should disqualify it from being a
load. What needs to be done to mitigate heat load from solar input will
be addressed by a State, Territory, or authorized Tribe when it
establishes the TMDL.
Finally, EPA is not including the definition of load capacity
contained in the existing regulations. EPA proposed to delete the
definition of `` load capacity'' because retaining a separate
definition of load capacity would only add confusion as to whether a
TMDL consisted merely of the load capacity or the ten elements of the
TMDL. The loading capacity is found as element three in the eleven
elements of the TMDL. EPA continues to believe that retaining a
separate definition of load capacity would only add confusion as to
whether a TMDL consisted merely of the load capacity or the ten
elements of the TMDL promulgated in today's regulation.
c. Revised Definition of Load Allocation (Sec. 130.2(f))
What did EPA propose? EPA proposed to simplify the existing
definition of ``load allocation'' by defining it as simply the part of
the total load in a TMDL that is allocated to nonpoint sources,
including atmospheric deposition, or natural background sources, as
opposed to wasteload allocation to point sources. In proposing this
change, EPA moved the substantive requirement of how a load allocation
is determined from the definition of load allocation to the description
of a TMDL in proposed Sec. 130.33(b).
What comments did EPA receive? EPA received a large number of
comments with regard to its definition of load allocations, covering a
range of issues. Again, many commenters asserted that EPA did not have
the statutory authority to address pollutant loadings from nonpoint
sources because Congress intended the TMDL provisions of the CWA to
apply only to waterbodies impaired by point sources or waterbodies
where control of point sources alone would result in attainment of
water quality standards.
In contrast, many commenters supported the inclusion of pollutant
loadings from nonpoint sources in the TMDL program. A frequently-cited
reason for the need for such an approach was the commenters' belief
that existing nonpoint source programs had so far failed to adequately
address nonpoint source pollution. Numerous commenters urged EPA to
require quantitative estimates of pollutant loadings from nonpoint
sources, while acknowledging that doing so would be more difficult than
for point sources.
Some commenters suggested that EPA retain the existing definition
of load allocation, along with the definitions of wasteload allocation,
loading capacity, and TMDL. These commenters believed that the current
definitions provide more clarity as to how loadings are defined and
allocated than did the proposed definitions.
Other commenters suggested that the definition of load allocation
should not include specific reference to atmospheric deposition or
natural background. These commenters contended that the technical
uncertainties in linking atmospheric deposition sources to water
quality and the lack of Clean Air Act authority to control atmospheric
loadings would make it difficult to calculate and implement load
allocations. Furthermore, the commenters contended that natural
background cannot be reduced and therefore should not be part of the
load allocation.
Several comments called for including point sources not covered by
the NPDES permit program (such as certain types of storm water sources)
under the load allocation portion of the TMDL, rather than the
wasteload allocation portion.
What is EPA promulgating today? In response to comments, EPA is
clarifying that pollutants from storm water runoff not regulated under
NPDES must be accounted for in the load allocation. EPA is also
clarifying that pollutants from other sources, such as groundwater, air
deposition or background pollutants from upstream sources must be
accounted for in the load allocation.
For the reasons discussed earlier in today's preamble, EPA
continues to believe that the CWA requires TMDLs to consider loadings
from nonpoint sources. For these reasons, EPA rejects the suggestions
that EPA delete the definition of load allocation, and consider the
TMDL to consist only of wasteload allocations for point sources
regulated by NPDES permits. EPA also continues to believe that load
allocations must reflect contributions from atmospheric deposition.
Where these loads exist, they contribute to the overall load of a
pollutant within a waterbody and must be accounted for in the TMDL.
Otherwise, the sum of load and wasteload allocations will exceed the
amount necessary for the waterbody to attain water quality standards.
For these reason and the reasons expressed in the Response to Comment
Document, EPA believes that load allocations must include pollutant
loads from all sources not already reflected in the wasteload
allocations.
EPA believes that, at a minimum, it is possible to determine the
total of aggregated loadings from air deposition to a particular
waterbody. As a result, EPA expects that States, Territories and
authorized Tribes will initially develop load allocations based on
nationwide reductions expected as a result of programs developed under
the Clean Air Act, and any State-required reductions in emission from
local sources. As techniques improve to quantify the relative
contributions of different sources, EPA expects that States,
Territories and authorized Tribes will more specifically identify air
sources and the expected reduction from these sources.
EPA does not consider a loading to surface water from groundwater
to necessarily be part of the background loading. The background
loading in a TMDL is generally either the loading from upstream of the
waterbody for which the TMDL is being established, or else is a loading
to the waterbody that originates from natural, not anthropogenic,
sources. Pollutants entering a waterbody from groundwater can originate
from either natural or anthropogenic sources. For example, the
chlorides in groundwater that seep into a waterbody can originate from
the geological rock formations or from brine seeping from oil
production wells. In either case, the load allocation will address
these loadings as part of the load allocation.
EPA recognizes that by moving some of the details from the current
definition of load allocation into the TMDL regulatory requirements of
Sec. 130.32, it has shortened the definition of load allocation in the
current rule. EPA believes this is appropriate because the new
Sec. 130.32 provides sufficient additional information about the nature
of a load allocation (and a wasteload allocation). EPA believes it is
better to include this information in one place, and has selected to do
so in Sec. 130.32.
d. Revised Definition of Wasteload Allocation (Sec. 130.2(g))
What did EPA propose? EPA proposed to simplify the existing
definition of ``wasteload allocation'' by defining it as simply the
part of the total load in a TMDL that is allocated to a point source.
In proposing this change, EPA moved the substantive requirement of how
a wasteload allocation is
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determined into the description of a TMDL in proposed Sec. 130.33(b).
What comments did EPA receive? Some commenters said that wasteload
allocations should include only loads from point sources covered by the
NPDES permit program, but not include loads from point sources not
covered by NPDES, such as some types of storm water. Other commenters
indicated that all point sources should be included in the wasteload
allocation, regardless of their status with regard to NPDES.
A significant number of commenters said EPA should retain language
in the existing definition which states that wasteload allocations are
a form of effluent limits. One commenter noted that wasteload
allocations should be defined as allocated to individual, classes or
groups of sources.
What is EPA promulgating today? Today's rule clarifies that only
point sources subject to an NPDES permit need to be included in the
wasteload allocation. All other sources of a pollutant, be they point
source or nonpoint sources, are included in the load allocation. In
1985, when EPA published the definition contained in the existing
regulations, all point source discharges were subject to an NPDES
permit. The Water Quality Act of 1987, however, provided that not all
storm water discharges from point sources were subject to NPDES
permits. As a result, today some storm water discharges through point
sources are not subject to NPDES requirements. Generally, these are
storm water discharges that do not fall into the eleven categories of
storm water associated with industrial activities or that are below the
threshold of the storm water phase II regulations. To continue this
approach, EPA is clarifying that wasteload allocations apply only to
point source discharges which are or can be subject to an NPDES permit.
Also, EPA is clarifying that for waterbodies impaired by both point
and nonpoint sources, anticipated load reductions from nonpoint sources
may be taken into account in calculating the wasteload allocation. EPA
received a number of comments stating that in such cases implementation
of the TMDL may proceed on different schedules for point and nonpoint
sources and supporting the recognition in the final rule of a such a
phased approach to implementation of TMDLs (i.e. ``phased TMDLs''). EPA
interprets the term ``phased TMDLs'' to describe TMDLs where the
wasteload allocations are based on expected reductions from sources
other than those regulated by NPDES permits. A phased TMDL includes
wasteload allocations that are based on those expected load allocations
and includes a monitoring plan to verify the load reductions. See
Guidance for Water Quality-Based Decisions: The TMDL process, EPA 440/
4-91/001. EPA considers that the combination of requirements for
reasonable assurance and the implementation plan in today's rule
provide the structure for phased TMDLs. The definition of reasonable
assurance provides the basis by which a State, Territory, or authorized
Tribe can demonstrate that the load allocations in the TMDL are likely
to occur. The implementation plan also requires that the TMDL establish
a schedule or timetable which includes a monitoring or modeling plan to
measure the effectiveness of point and nonpoint source control
measures. Such a plan would include data collection, the assessment for
water quality standards attainment, and, if needed, additional
predictive modeling.
EPA recognizes it is difficult to ensure with precision that
implementing nonpoint source controls will achieve expected load
reductions. For example, management measures for nonpoint sources may
not perform according to expectations to achieve expected pollutant
load reductions despite best efforts. EPA believes that an important
part of the phased approach, as discussed above, is the recognition
that ultimate success in achieving water quality standards for nonpoint
sources may depend upon an iterative approach. States, Territories and
authorized Tribes may determine to what extent nonpoint source
management measures are meeting the performance expectations on which
they are based and implement improved management measures, designs or
operations and maintenance procedures. Today's rule at
Sec. 130.32(c)(2)(v) provides for interim, measurable milestones for
determining whether management measures or other action controls are
being implemented, and a process for implementing stronger and more
effective management measures if necessary. EPA recognizes that this
type of approach might involve very long time-frames before water
quality standards are eventually realized. EPA also expects that
information on actual performance of management measures may lead to
questions concerning the appropriateness of the water quality standards
and that, in some cases, States, Territories and authorized Tribes may
initiate use attainability analyses to determine the appropriate use
and, possibly, revise the use on the basis of the information gathered
during implementation phase of the TMDL.
EPA is deleting the sentence in the current definition that defines
a wasteload allocation as a type of water quality based effluent
limitation. EPA acknowledges that water quality-based effluent
limitations that derive from a TMDL are based on the TMDL wasteload
allocation, but does not believe that wasteload allocations serve as
water quality based effluent limits. EPA explained this in its 1991
``Technical Support Guidance for Water Quality-based Toxics Control.''
Wasteload allocations reflect the mass load of a pollutant that allows
a waterbody to attain water quality standards based on the averaging
period of the water quality standard. For example, a wasteload
allocation based on attaining the 4-day average water quality criterion
for copper reflects a 4-day mass load. Effluent limitations reflect
periods established by NPDES regulations: generally weekly and monthly
limits for publicly owned treatment works and daily and monthly limits
for other facilities (see Sec. 122.45(d)) and therefore are not the
strict equivalent of a wasteload allocation.
e. Revised Definition of TMDL (Sec. 130.2(h))
What did EPA propose? EPA proposed to define a ``TMDL'' as a
written plan and analysis established to ensure that an impaired
waterbody attains and maintains water quality standards in the event of
reasonably foreseeable increases in pollutant loads. Under the proposed
revisions, a TMDL would also have had to include ten basic elements,
which were described in Sec. 130.33(b) and are listed in section
I.A.3.b. of this preamble. EPA's proposal was meant to amplify the
existing regulatory definition that a TMDL is the sum of load and
wasteload allocations and a margin of safety, taking into consideration
seasonal variations.
What comments did EPA receive? EPA received numerous comments
regarding its proposed changes to the definition of TMDLs. Specific
comments regarding the ten proposed elements of a TMDL are addressed
later in the discussion of Sec. 130.32(b) of today's rule. Some
commenters expressed concerns that the proposed definition expanded the
concept of a TMDL beyond that mandated by section 303(d). Additional
commenters suggested that section 303(d) requires TMDLs only for point
sources, and suggested that the TMDL definition reflect this. Others
interpreted the proposed definition as going beyond the statutory
concept of a
[[Page 43596]]
TMDL as simply a calculation of the total load necessary to attain and
maintain water quality standards. Further comments suggested that the
proposed definition was too vague. All these commenters recommended
that the existing definition be retained.
Some commenters supported the proposed definition and agreed that
it was consistent with section 303(d). These commenters suggested that
EPA clarify how the ten elements of the TMDL achieve the statutory
concept, i.e., quantify the sum of load and wasteload allocations with
a margin of safety and take into consideration seasonal variations.
Further comments expressed concern that the proposed definition
required a separate TMDL analysis for each pollutant causing an
impairment and for each waterbody. Several commenters believed EPA has
no authority to require TMDLs to address growth and recommended that
references to growth be stricken from the definition.
What is EPA promulgating today? Today's rule modifies the proposal
in a number of ways. EPA is adding the word ``quantitative'' to the
final definition at Sec. 130.2(f) to clarify that the TMDL must contain
a quantified plan for allocating pollutant loads to attain and maintain
water quality standards. EPA is also clarifying that a TMDL must assure
that water quality standards are attained and maintained throughout the
waterbody and in all seasons of the year. EPA believes this revision
clarifies that the TMDL quantifies how water quality standards will be
attained and maintained. As proposed and promulgated, the total effect
of all the elements of the TMDL require a quantification of the sum of
load and wasteload allocations, along with a margin of safety and
consideration of seasonal variations, and EPA believes that the
definition in the final rule is consistent with section 303(d). Also,
EPA has reorganized the provisions of two of the elements and split
one, such that there are now eleven elements of a TMDL; this change is
discussed in the preamble discussion of Sec. 130.32(b).
EPA declines to use the existing regulatory definition of TMDL as
suggested by many comments for several reasons. Based on its experience
in reviewing and approving TMDLs, EPA continues to believe that the
TMDL elements in the final rule definition specify in appropriate
detail the information EPA considers necessary to quantify loadings and
determine whether the loadings, once implemented, would result in
attainment of water quality standards in the waterbody. They will also
provide EPA with an element missing from the current regulations, i.e.,
assurance that the TMDL will in fact be implemented. EPA believes that
this information will allow the Agency to make timely and appropriate
decisions on TMDLs submitted for review. It will also provide certainty
to States, Territories and authorized Tribes on what an approvable TMDL
is. Furthermore, as previously discussed in today's preamble, section
303(d) applies to both point sources and nonpoint sources.
EPA is deleting the reference to reasonable foreseeable increases
in pollutant loads from the proposed introductory paragraph in the
definition, because these increases are addressed in the element of the
TMDL that pertains to increases in pollutant loading. EPA addresses
other comments and concerns about how TMDLs consider increases in
pollutant loads in the Response to Comments document and in today's
preamble discussion about Sec. 130.32(b).
Finally, in the promulgated definition, EPA is clarifying that it
considers a TMDL to apply to one pollutant in a waterbody. However,
this does not mean that EPA requires a separate data collection, data
analysis, or report for each TMDL. Instead, EPA encourages States,
Territories, and authorized Tribes to establish TMDLs on a coordinated
basis for a group of waterbodies within a watershed, and that a single
analysis can be conducted for several pollutants, instead of for only a
single pollutant. EPA does not construe the new definition of waterbody
at Sec. 130.2(q) to limit the ability of States, Territories and
authorized Tribes to establish TMDLs on a watershed basis. In fact, EPA
encourages coordinating the establishment of TMDLs on a watershed
basis. Also, EPA did not intend to require that States, Territories,
and authorized Tribes conduct a separate TMDL analysis for each
pollutant in a waterbody or watershed. EPA wants to provide States,
Territories and authorized Tribes the flexibility to develop and focus
their TMDLs as appropriate, i.e., to address single or multiple
impairments in a waterbody, in part of a waterbody, or in multiple
waterbodies.
f. New Definition of TMDTL (Sec. 130.2(i))
EPA is promulgating a definition of the term ``total maximum daily
thermal load'' or TMDTL to help promote clarity with respect to the
requirements which apply to TMDTLs. A TMDTL is a TMDL for a waterbody
impaired by thermal discharge(s). In general, the same requirements for
an approvable TMDL also apply to TMDTLs, since they are a subset of
TMDLs. However, waterbodies with a thermal discharge will be evaluated
for listing based on whether the waterbody is supporting a balanced,
indigenous population of shellfish, fish, and wildlife. If such waters
are listed, they will receive a TMDTL which must be calculated to
assure protection and propagation of such a population.
g. New Definition of Impaired Waterbody (Sec. 130.2(j))
What did EPA propose? EPA proposed a definition of ``impaired
waterbody'' to define precisely waterbodies which should be considered
as not attaining water quality standards and proposed to include within
that definition waterbodies impaired by unknown causes.
What comments did EPA receive? Many commenters objected to that
part of the definition which required them to account for waterbodies
impaired by unknown causes. They believed that the concept was too
vague and too broad. They were concerned that some would argue that
certain waterbodies should be deemed impaired when there was no
evidence of impairment.
What is EPA promulgating today? In response to the comments, EPA is
making a change to the proposed definition to clarify its intent
regarding waterbodies impaired by unknown causes. EPA does not intend
for States, Territories, and authorized Tribes to list waterbodies in
the absence of any information demonstrating an impairment. Rather, by
proposing to require listing of impaired waters even if the pollutant
causing the impairment is unknown, EPA wanted to ensure that lack of
information regarding the specific pollutant would not be a reason for
not listing an impaired water. After consideration of the comments
received, EPA has decided to modify the proposed provision. In
situations where the specific pollutant is unknown, but there is
information showing impairment, such information tends to consist of
biological information (e.g., information showing a water is not
supporting a designated or existing aquatic life habitat use).
Therefore, EPA is replacing the reference to unknown causes of
impairments in the proposal with a provision requiring that waterbodies
be considered impaired (and thus listed) when biological information
indicates that they do not attain and maintain water quality standards.
Prior to developing a TMDL for such waters, the State, Territory, or
authorized Tribe would need to identify the particular pollutant
causing the
[[Page 43597]]
impairment. EPA is aware that in past lists, some States, Territories,
and authorized Tribes have identified broad categories of pollutants,
such as metals or nutrients, as the cause of impairments. Under today's
regulation, the only situation in which the State may identify the
pollutant as unknown until such time that the TMDL is developed is for
waters where the only information demonstrating impairment is
biological information. EPA is developing guidance to assist States,
Territories, and authorized Tribes to identify the causes of a
biological impairment. See draft ``Stressor Identification Guidance'',
April 28, 2000. Otherwise, EPA expects that States will be able to
identify the particular metal, nutrient, or other pollutant causing the
impairment.
EPA is also modifying the definition of impaired waterbody to
include waters that fail to attain and maintain water quality
standards. EPA is using the phrase ``attain and maintain'' to mean that
the waterbody must consistently continue to meet water quality
standards throughout the waterbody in order to be considered not
impaired. Any failure to meet an applicable standard would mean that
the waterbody should be listed and a TMDL should be developed if it is
listed on Part 1. The use of the phrase ``attain and maintain'' can be
distinguished from the proposed requirement to list threatened waters,
which is not included in today's action. Threatened waters are those
that are meeting standards, but exhibit a declining trend in water
quality such that they would likely exceed standards in the future.
Such waters are not required to be included on the section 303(d) list
though States can do so. By waters that do not attain and maintain
standards, EPA intends to ensure that States, Territories, and
authorized Tribes list waters that may occasionally meet an applicable
standard, but fail to consistently do so. As in the proposal, the
Agency is including in the promulgated definition language from section
303(d)(1)(B) which establishes the standard for considering a waterbody
impaired by thermal discharges, i.e., the waterbody does not have or
maintain a balanced indigenous population of shellfish, fish and
wildlife. As discussed in the preamble to the proposed rule (64 FR
46021-46022, August 23, 1999) and later in today's preamble, EPA
interprets section 303(d) to require TMDLs only for waterbodies
impaired by pollutants.
Finally, EPA believes that the term impaired waterbodies is a plain
language definition of the pre-existing regulatory term water quality
limited segment which derived from the CWA. EPA interprets section
303(d) as pertaining to parts of or complete waterbodies that do not
attain and maintain water quality standards. For these waterbodies
technology-based controls are insufficient to attain water quality
standards and water quality-based controls are required, i.e., they are
water-quality limited. Also in today's rule, EPA defines waterbody to
include one or multiple segments of rivers, lakes, estuaries, etc.
Thus, EPA believes that the term ``impaired waterbodies'' is analogous
to the term water-quality limited segment and more understandable to
the general public.
h. New Definition of Management Measures (Sec. 130.2 (m))
What did EPA propose? EPA did not propose a definition for
``management measures.'' Instead, the proposed regulations used the
term Best Management Practices (BMPs), a definition of which was
carried over in the proposal from the current requirements.
What comments did EPA receive? Commenters pointed out that the
definition of BMPs in the current regulations refers only to nonpoint
sources, and they suggested that it should be revised to refer to all
sources to which BMPs could be applied. These would include some point
sources such as certain storm water discharges. Commenters also were
concerned that the reference to BMPs as being selected by an agency
would limit the applicability of certain BMPs in the context of
establishing TMDLs.
What is EPA promulgating today? EPA agrees with the commenters that
it intended the term BMPs in the proposal to include the management of
sources other than nonpoint sources. However, rather than modify the
pre-existing definition of BMP to accomplish that result, which could
have unforeseen impacts on other Agency programs which use this term,
EPA is including a definition of ``management measures'' in today's
regulation. This term and definition retain those concepts in the
current definition of BMPs which are applicable to TMDLs but eliminate
the references to nonpoint sources and selection by an agency.
EPAbelieves the definition of ``management measure'' is a logical
outgrowth of the proposed definition of ``BMP'' and a reasonable
response to the above-referenced comments.
i. New Definition of Thermal Discharge (Sec. 130.2(o))
What did EPA propose? EPA proposed adding the definition of
``thermal discharge'' to clarify the meaning of the term for the
purpose of identifying impaired waterbodies and establishing Total
Maximum Daily Thermal Loads (TMDTLs) pursuant to section 303(d). EPA
proposed to define the term as ``the discharge of heat from a point
source.'' EPA believed that the definition was important since
waterbodies impaired by thermal discharge are subject to section 303(d)
listing and TMDTL requirements, and furthermore, the test for measuring
successful implementation is different than for other pollutants.
What comments did EPA receive? EPA received several comments on
this definition. Some comments requested clarification of whether EPA
meant discharge of heat from all point sources. Other comments
suggested that the definition be revised to include nonpoint sources of
heat.
What is EPA promulgating today? EPA is promulgating the proposed
definition with a minor change to clarify that it applies to only those
point sources ``that are required to have NPDES permits.'' EPA provided
detailed explanations in the preamble to the proposal regarding its
interpretation of the statute as it pertains to inclusion of thermal
discharges in the TMDL program. (64 FR 46017 August 23, 1999). As
discussed in the preamble to the proposed rule, EPA believes the CWA
reference to ``balanced, indigenous population of shellfish, fish and
wildlife'' refers only to those discharges subject to sections 301 and
306, which relate to point sources subject to NPDES permits. Therefore
EPA is not expanding the definition of thermal discharge to include
nonpoint sources. EPA acknowledges that nonpoint sources and other
sources not subject to NPDES permits can introduce heat into a
waterbody. However, for reasons discussed in the preamble to the
proposed rule, EPA believes that the CWA requires that TMDLs rather
than TMDTLs be established for these waterbodies if they are impaired
solely by these sources and that they must attain water quality
standards, and not just a balanced, indigenous population of shellfish,
fish and wildlife.
j. New Definition of Reasonable Assurance (Sec. 130.2(p))
What did EPA propose? EPA proposed to define ``reasonable
assurance'' as a demonstration that wasteload allocations and load
allocations in a TMDL would be implemented. EPA proposed that each TMDL
provide reasonable assurance that allocations contained in a TMDL
would, in fact, be implemented to attain
[[Page 43598]]
and maintain water quality standards in the waterbody. EPA incorporated
the term in proposed Sec. 130.33(b)(10)(iii) dealing with TMDL
implementation plans to emphasize that implementation of the
allocations in TMDLs is critical to the ultimate attainment of
standards in impaired waterbodies across the country.
What comments did EPA receive? EPA received a number of comments
generally opposing the concept of reasonable assurance. Some commenters
believe that EPA does not have the authority to require States,
Territories or authorized Tribes to demonstrate reasonable assurance,
and that the definition of reasonable assurance was too prescriptive.
EPA also received comments generally in support of the reasonable
assurance provision, noting that it is important to have assurance that
implementation will occur and that water quality standards will be met.
EPA received many comments on specific aspects of the proposed
definition of reasonable assurance. A major theme was that the proposed
definition did not recognize that State, Territorial and authorized
Tribal nonpoint source programs are largely voluntary. Furthermore,
many commenters noted that States may have limited regulatory authority
to address nonpoint sources, and perceived the definition of reasonable
assurance as forcing States to adopt regulatory controls on nonpoint
sources. Many commenters urged that voluntary, incentive-based programs
should be acceptable as reasonable assurance. Conversely, a number of
commenters believed that regulatory controls for nonpoint sources were
necessary to provide reasonable assurance, or that, in order to provide
reasonable assurance, implementation plans needed to be enforceable. A
few commenters suggested that States, Territories and authorized Tribes
need to have regulatory authority to control pollutants from nonpoint
sources in the event that voluntary programs do not succeed.
Numerous commenters expressed concern about the funding component
of reasonable assurance. A frequently-cited concern was that States
would not be able to guarantee full funding to implement the TMDL at
the time a TMDL was established. Some commenters also believed that the
funding provision was not well-defined, and that, when reviewing TMDLs,
EPA would not be able to evaluate whether the State had demonstrated
``adequate funding.'' Others noted that States, Territories and
authorized Tribes lack adequate funding and staff to establish and
implement TMDLs and that EPA needs to ensure adequate funding through
the section and other programs.
EPA received some comments regarding the ability of existing State
and Federal authorities and programs to satisfy the reasonable
assurance provision. Some commenters suggested that approval of a
State, Territorial or authorized Tribal nonpoint source program or
nonpoint source management plan should by itself, constitute reasonable
assurance. Other commenters disagreed and said that reference to
existing programs by itself is not adequate, and that control actions
assuring TMDL implementation must be specific to the source and the
waterbody. Some commenters urged flexibility in allowing for a variety
of implementation mechanisms to satisfy reasonable assurance such as
other Federal and State forest and land management programs. Several
comments pointed out that it would be difficult to provide reasonable
assurance, given the challenge of aligning multiple State and Federal
agencies, and multiple watershed groups.
Some commenters suggested that EPA needs to better define what it
means that procedures and mechanisms relating to nonpoint sources of a
pollutant must be implemented expeditiously, or specify a particular
timeframe for their implementation. A few commenters believed that EPA
was not in a position to evaluate what constitutes expeditious, and
that the term should be eliminated.
A few commenters questioned EPA's authority to provide reasonable
assurance when it establishes a TMDL for nonpoint sources. Some also
questioned EPA's authority to condition section 319 grant funds as a
way of providing reasonable assurance. Conversely, a few commenters
supported EPA's full use of its authorities to implement TMDLs, or to
condition section 319 funds, as necessary.
What is EPA promulgating today? Today's rule contains a revised
definition of reasonable assurance. Reasonable assurance continues to
mean a demonstration that TMDLs will be implemented through regulatory
or voluntary actions, by Federal, State or local governments,
authorized Tribes or individuals.
Reasonable assurance is a demonstration that a TMDL's
implementation plan will indeed be implemented. (See Sec. 130.32(c).)
EPA believes that it has the authority to require the demonstration of
reasonable assurance as part of the implementation plan. Section 303(d)
requires that a TMDL be established at a level necessary to implement
water quality standards and requires EPA to review and either approve
or disapprove the TMDL. CWA section 501(a) also authorizes EPA to adopt
regulations as necessary to implement the Act. To approve a TMDL, EPA
believes it is necessary to determine whether a TMDL is in fact
established at a level necessary to attain water quality standards. For
EPA to determine that the TMDL will implement water quality standards,
there must be a demonstration in the TMDL of reasonable assurance that
the TMDL's load and wasteload allocations will be implemented.
Otherwise, the allocations presented in a TMDL lack a necessary link to
anticipated attainment of water quality standards.
Reasonable Assurance for Point Sources for Which an NPDES Permit is
Required
Reasonable assurance for point sources for which an NPDES permit is
required means that States, Territories and authorized Tribes must
identify procedures that will ensure that permits will be modified,
issued or reissued as expeditiously as practicable to incorporate
effluent limits consistent with the wasteload allocations. For these
demonstrations of reasonable assurance, the phrase ``as expeditiously
as practicable'' means in general that the permitting authority, either
an authorized State, Territory, or Tribe, or EPA, will issue the permit
as follows. For facilities receiving a permit for the first time, ``as
expeditiously as practicable'' means that the permitting authority must
issue the permit that implements the wasteload allocation before the
facility begins to discharge. Under EPA's current NPDES rules, a
facility may only discharge pollutants from point sources into waters
of the United States as authorized by an NPDES permit (Sec. 122.1). New
facilities must receive their permit before they can lawfully discharge
pollutants. Also, current NPDES regulations require that NPDES effluent
limitations be consistent with the applicable wasteload allocation in
an approved TMDL (Sec. 122.44(d)(1)(vii)(B)). Therefore, EPA believes
that its interpretation of ``as expeditiously as practicable'' for
facilities receiving their first permit is consistent with the current
practice of the NPDES permit program. For facilities currently
permitted, ``as expeditiously as practicable'' means that the
permitting authority will reissue the permit as soon as it can after
the permit expires, taking into account factors such as available
permitting resources, staff and budget constraints, other competing
[[Page 43599]]
priorities, and watershed efficiencies. Alternatively, the permitting
authority, may choose to modify the permit prior to expiration in
accordance with the permitting authority's modification requirements.
The phrase ``as expeditiously as practicable'' adds a time element
to the word ``expeditiously'', which was used in the proposal. The
dictionary definition of ``expeditiously'' is fast or rapidly. EPA
received comments about ``how fast is fast,'' and whether any factor
governed how quickly EPA expected a permitting authority to issue or
reissue NPDES permits. EPA intended that permitting authorities would
not delay their normal issuance or reissuance of permits and would
modify the permits when they contained a reopener provision allowing
modification of the permit conditions on the basis of new information.
EPA is using the phrase ``as expeditiously as practicable'' in the
final rule to clarify further what EPA means by the word
``expeditiously'' used in the proposal. This clarification should allow
permit authorities to schedule permit issuance and reissuance actions
consistent with the relevant factors discussed above.
Reasonable Assurance for Sources for Which an NPDES Permit is Not
Required
For all other sources, including nonpoint sources, storm water
sources for which an NPDES permit is not required, atmospheric
deposition, groundwater and background sources, reasonable assurance
means that actions implementing the load allocations meet a four-part
test. The control actions or management measures must be (1) specific
to the pollutant and waterbody for which the TMDL is being established,
(2) implemented as expeditiously as practicable, (3) accomplished
through reliable delivery mechanisms, and (4) supported by adequate
funding. For these sources, each TMDL must meet each one of these tests
prior to EPA approval.
(1) Specific to the pollutant and waterbody. The first part of the
four part test for reasonable assurance is that the management measure
or control be specific to the pollutant and waterbody. By this, EPA
means that the State, Territory, or authorized Tribe knows of, and can
point to, information showing that the management measure relied upon
to achieve the reduction in the loading can reduce that pollutant. By
``specific,'' EPA does not intend that States, Territories or
authorized Tribes collect new or additional site-specific information,
but rather that they provide EPA existing data that relates to the
specific waterbody and pollutant. For example, a State may rely on a
program that installs buffer strips to demonstrate reasonable
assurance. In this example, the State would point to National Resource
Conservation Service information showing that buffer strips are
effective in mitigating erosion and thus can reduce loadings of the
specific pollutant, i.e., sediment. Also, the State would need to show
which waterbodies within the watershed would receive buffer strips and
explain the characteristic of these buffer strips. In this way, the
State may fulfill the requirements of this part of the four part test.
For atmospheric deposition, where the controls will result from Clean
Air Act regulations, reference to current or anticipated Clean Air Act
regulations should explain how those regulations relate to the specific
pollutant of concern.
(2) As expeditiously as practicable. EPA intended that States,
Territories, and authorized Tribes would implement management measures
as quickly as they reasonably could in light of other water quality
needs. For the reasons discussed above, EPA is using the phrase ``as
expeditiously as practicable'' in the final rule to clarify the word
``expeditiously'' as used in the proposal. EPA expects that States,
Territories, and authorized Tribes will make nonpoint source controls
implementing a TMDL for which there are no point sources subject to
NPDES permits a high priority for nonpoint source program funding.
Scheduling of nonpoint source controls is also discussed in section
II.P. of this preamble. For atmospheric deposition, adoption of Clean
Air Act regulations and implementation of those regulations pursuant to
the provisions of the Clean Air Act would satisfy the reasonable
assurance requirement that implementation will occur as expeditiously
as practicable.
(3) Reliable delivery mechanisms. EPA did not include the concept
of ``reliable delivery mechanism'' in the proposed definition of
reasonable assurance. EPA did discuss this concept in the preamble
discussion of the definition. ( 64 FR 46033, August 23, 1999). Reliable
delivery mechanism means the programmatic and administrative means by
which the management measures and control actions will be implemented
and monitored. Several comments expressed concern that the preamble
discussion was not reflected in the rule language, and suggested that
this preamble phrase should be included in the definition. EPA was
persuaded by the comments that it should do this.
EPA is also adding the word ``effective'' to modify ``reliable
delivery mechanism.'' EPA believes that this concept is a logical
outgrowth of the preamble to the proposed rule. There, EPA discussed
that voluntary and incentive-based programs may be used to demonstrate
reasonable assurance. It goes without saying that these programs must
be ``effective'' in order to provide reasonable assurance.
Nevertheless, to avoid confusion, EPA decided to be clear and add the
word ``effective'' to the final rule.
Some existing nonpoint source related programs may also be reliable
and effective delivery mechanisms specific to the waterbody and
pollutant for purposes of providing reasonable assurance. Programs,
procedures or authorities including State, Territorial or authorized
Tribal programs approved under section 319 of the CWA or existing
conservation or water quality protection programs administered by the
United States Department of Agriculture which have demonstrated success
in delivering water quality improvements in the past may be reliable
delivery mechanisms for the purpose of Sec. 130.2(p). State,
Territories and authorized Tribes will need to explain how these
programs will be implemented in the specific impaired waterbody and how
they address the pollutant causing the impairment. For atmospheric
deposition, implementation of the Clean Air Act regulatory program
could provide the necessary reliable delivery mechanism.
(4) Adequate funding. Finally, today's rule clarifies what EPA
considers to be ``adequate funding'' for the purpose of demonstrating
reasonable assurance. In response to comments, EPA is including in the
final rule the funding language from the proposed rule preamble, and
providing a more detailed discussion of this term below. (64 FR 46033
to 46034, August 23, 1999). EPA believes that adequate funding means
that existing water quality funds have been allocated to implement load
allocations to the fullest extent practicable and in a manner
consistent with the effective operation of the clean water program in
the State, Territory, or authorized Tribe. EPA believes that
implementing TMDLs is a central part of water quality management. At
the same time EPA recognizes that effective water quality programs are
comprised of many different activities which must be carried out
concurrently. It would make no sense to fund only TMDL activities and
eliminate other important activities. For atmospheric deposition, where
controls will be required by Clean Air Act regulations, the process for
adoption
[[Page 43600]]
and implementation of those regulations should satisfy the requirement
for adequate funding.
Today's rule requires that States, Territories and authorized
Tribes identify adequate clean water program funding to implement load
allocations. Clean water program funding includes Federal funding
through the CWA and some related Federal, State, Territorial or
authorized Tribal funding. In the event that funding is not currently
adequate to implement the TMDL, EPA may approve the TMDL if the State,
Territory, or authorized Tribe provides an explanation of when adequate
funds will be available and a schedule by which these funds will be
obtained and used to implement the TMDL. EPA believes that such a
schedule identifying when load allocations will be implemented as
funding becomes available is necessary to provide reasonable assurance
that load allocations will be achieved where adequate funding is not
currently available. As indicated in implementation plans provisions,
such a schedule must assure that implementation will be as expeditious
as practicable (i.e., within 5 years when practicable) for waterbodies
impaired only by sources which are not subject to NPDES permits,
including nonpoint sources.
Use of Existing Programs
EPA believes that existing nonpoint source programs can provide the
suite of control actions and management measures for States to rely on
when meeting the reasonable assurance test. Examples of voluntary and
incentive-based actions or existing programs include State, Territorial
or authorized Tribal programs to audit implementation of agricultural
management measures and memoranda of understanding between State,
Territorial and authorized Tribal governments and organizations that
represent categories, subcategories or individual sources which assure
implementation and effectiveness of management measures.
A State, Territory, or authorized Tribe may need to consider other
programs to address pollutants introduced in a waterbody by atmospheric
deposition or groundwater. For example, the State, Territory, or
authorized Tribe could rely on scheduled reductions in atmospheric
sources under the Clean Air Act or similar State authority. Likewise,
it could rely on reduced groundwater loadings as a result of remedial
actions under the Resource Conservation and Recovery Act (RCRA) or
similar State authority. If these programs cannot provide reasonable
assurance that the pollutant loads will be reduced, the load reduction
will have to be assigned to other sources.
Generally, a State, Territory, or authorized Tribe will demonstrate
reasonable assurance for the part of the load allocation that addresses
the loading of pollutants contributed by background sources by
quantifying the loading so that it can be included in the calculation
of the total loading in a waterbody. In these situations, this
background loading would be presumed to be constant and load reductions
will be assigned to other sources. However, if a State, Territory, or
authorized Tribe expects that the background loadings will decrease as
a result of some action and is relying on this decrease in the
calculation of wasteload and load allocations, then the State,
Territory, or authorized Tribe will need to apply the four-part test to
demonstrate the reasonable assurance for this expected reduction.
The test of reasonable assurance in today's rule is not met simply
by having programs, authorities or voluntary measures described in the
definition of reasonable assurance in place. In order for such
programs, authorities or measures to provide reasonable assurance each
one of the four parts of the test must be satisfied. For example, if a
State offers a particular voluntary program approved under section 319
as proof of reasonable assurance, EPA will review the program
information to see whether it specifically addresses the waterbody/
pollutant of concern, includes actions that will be implemented as
expeditiously as practicable, will be accomplished through a reliable
delivery mechanism with a good track record of success and meet the
adequate funding test.
Reasonable Assurance When EPA Establishes TMDLs
In some cases, EPA will have to disapprove a State's TMDL and
establish the TMDL. When establishing a TMDL, EPA will also have to
provide reasonable assurance as required by Secs. 130.32(c) and
130.2(p). In providing reasonable assurance, EPA may rely on various
statutory or regulatory authorities to meet the four-part test which
applies to load allocations for sources not subject to an NPDES permit.
EPA cannot, of course, require States, Territories or authorized Tribes
to use their own statutory or regulatory authorities to provide
reasonable assurance for EPA. EPA may, however, condition some or all
CWA grants to the fullest extent practicable and in a manner consistent
with the effective operation of other CWA programs in order to meet the
adequate funding part of the four-part reasonable assurance test. Such
action would by itself serve to satisfy that part of the reasonable
assurance test when EPA establishes a TMDL. For example, EPA may
condition section 319 grants such that States can only use some or all
of these funds to implement management measures in watersheds where EPA
has established a TMDL that includes load reductions for nonpoint
sources. Similarly, EPA may condition section 106 grants to States such
that some of the funds for monitoring can only be used to support the
monitoring specified in TMDL implementation plans. EPA may also use its
voluntary, incentive-based programs, such as section 104(b)(3)
demonstration grants for watershed restoration, to ensure that
management measures are funded and implemented. EPA may provide
reasonable assurance for wasteload allocations by issuing NPDES permits
within the time frames prescribed by Sec. 130.32(c)(1)(ii) where EPA is
the permitting authority, or by objecting to expired State-issued
permits so that new permits will be issued to implement wasteload
allocations from approved TMDLs.
By requiring such a demonstration of reasonable assurance before it
may approve or establish a TMDL, EPA does not intend to create a
mandatory duty or legal obligation that either the State, Territory,
authorized Tribe or EPA implement those actions identified as providing
reasonable assurance. The reasonable assurance demonstration is a
``snapshot-in-time'' identification of those voluntary and regulatory
actions that the State, Territory, authorized Tribe or EPA intends to
take to ensure that the nonpoint source load allocations assigned in
the TMDL will be realized. If such demonstration is deemed satisfactory
at the time the TMDL is being reviewed or developed by EPA, the TMDL
may be approved or established. If in the future, the State, Territory,
authorized Tribe or EPA determines that the TMDL is not being
implemented, or that the implementation plan needs to be revised, the
State, Territory, authorized Tribe or EPA may take action, as
appropriate under existing State, Territorial, Tribal or Federal legal
authority, to effect implementation or revise the TMDL. Nothing in this
rule, however, creates in EPA or the States new legal authority beyond
that provided by existing State, Territorial, Tribal or Federal law to
implement load allocations for nonpoint sources or
[[Page 43601]]
creates for EPA, States, Territories or authorized Tribes a mandatory
duty to do so.
k. New Definition of Waterbody (Sec. 130.2(q))
What did EPA propose? EPA proposed a definition of the new term
``waterbody'' to codify EPA's interpretation of the term for the
purposes of TMDLs. The proposed definition would have provided States,
Territories, and authorized Tribes more flexibility than the current
regulation which refers to segments and would have allowed States,
Territories, and authorized Tribes to tailor the geographical size of
the watershed for which the TMDL was being established to match the
pollutants and nature of impairment.
What comments did EPA receive? EPA received a number of comments on
this definition. Most commenters suggested that the definition exclude
ephemeral streams and wetlands. These commenters expressed concern over
the application of water quality standards to these waterbodies, and
thus suggested that TMDLs should not be established for them. Other
comments expressed concern that the definition would prevent
establishment of a TMDL for one segment of a river.
What is EPA promulgating today? After review of comments, EPA is
promulgating the proposed definition with two minor changes. First, EPA
is revising the proposed language to recognize that waterbodies can be
made up of one or more segments of rivers, streams, lakes, wetlands,
coastal waters or ocean waters. EPA did not intend to require that a
TMDL consider the full geographic extent of a waterbody. Rather EPA
intended to give States, Territories and authorized Tribes the
flexibility to establish TMDLs for one or more segments. Second, EPA is
adding a recommendation to the rule that the use of segments should be
consistent with the use of segments in a State's water quality
standards. EPA is making this recommendation to help promote
consistency between how TMDLs are developed and how water quality
standards are expressed.
EPA does not believe that the nature of a waterbody, such as an
ephemeral stream or a wetland, and the challenge that nature may pose
to establishing a TMDL, should preclude it from being defined as a
waterbody. EPA believes that this is a water quality standard issue and
that the appropriate forum for resolving questions about water quality
standards is in the development of the standards themselves, and not in
the application of the standards in a TMDL context.
1. New Definition of List (Sec. 130.2(v))
What did EPA propose? EPA proposed to include a new definition to
refer to the four elements of the list and the prioritized schedule.
EPA proposed this revision to expedite reference to the four elements
and schedule within the rule.
What comments did EPA receive? EPA received no substantial comments
unique to this definition. Some commenters did offer suggestions on
what are acceptable elements of a list; these comments are addressed in
parts of today's preamble that address these elements.
What is EPA promulgating today? EPA is revising the proposed
definition of ``list of impaired waterbodies'' to make it consistent
with other provisions of the final rule. First, EPA is clarifying that
the list consists of all four parts of the required submission. This is
to ensure that there is no confusion over whether certain parts of the
list that may be submitted along with the State's section 305(b) report
are in fact part of the section 303(d) list. In addition, the
definition states that Part 1 of the list includes both waterbodies
identified for TMDL development and the prioritized schedule for those
waterbodies. This revision makes the definition consistent with the
requirement to submit the prioritized schedule as part of the list
itself, subject to EPA approval or disapproval, rather than as a
separate document with the list submission that EPA will review but not
take action on.
2. Response to Requests for New Definitions
What did EPA propose? EPA's proposal of August 23, 1999, requested
comments on all aspects of adding new definitions.
What comments did EPA receive? EPA received comments suggesting
that EPA add several definitions for terms used in the proposed rule or
discussed in comments which requested additions to the requirements of
the final rule.
What is EPA promulgating today? EPA has decided not to add other
definitions to Sec. 130.2. EPA is not adding a definition of ``balanced
indigenous population of fish, shellfish, and wildlife.'' There is an
existing regulatory definition of the term ``balanced indigenous
population'' in Sec. 125.70 that, although it explicitly applies only
to the regulations implementing section 316(a), provides the Agency's
interpretation of this term for purposes of identifying impaired
waterbodies and establishing TMDLs pursuant to section 303(d).
EPA is not adding a definition of ``watershed.'' The term is not
used within the final rule to trigger a regulatory provision, and thus
does not require definition. EPA prefers to allow States, Territories,
and authorized Tribes the flexibility to define a watershed within the
context of their own programs. However, EPA encourages the use of the
hydrologic unit codes for watersheds defined by the U.S. Geologic
Survey since they are a uniform system of watershed identification that
will clearly identify to other States, Territories, Tribes, EPA and the
public the boundaries of watersheds defined by the States in the
context of their water quality programs.
EPA is not including a specific definition in the final rule for ``
trading'' and thus declines to add trading-related definitions for
``real,'' ``quantifiable'' or ``surplus'' as suggested by some comments
as being necessary if EPA included regulatory provisions for trading.
EPA is not adding a definition of ``existing and readily
available,'' ``man-made or man-induced,'' ``point source,'' ``nonpoint
source,'' and ``waters of the contiguous zone.'' This final rule at
Sec. 130.22(b) already provides a definition of existing and readily
available water-quality related data and information by enumerating
particular categories of water-quality related data and information
that must be considered. The regulations clearly state that this list
is not exhaustive, but rather is intended to identify specific kinds of
water quality-related data and information that will be considered
existing and readily available, in addition to water-quality related
data and information in other relevant categories that are not
explicitly listed in the regulations. EPA does not believe it can
accurately identify each and every type of water-quality related data
and information that should be considered in every state's listing
process, in light of the broad variety of relevant water-quality
related data and information that is and will be available. Therefore,
it is appropriate to list specific categories that are likely to exist
for every state, and leave it to the States, Territories, and
authorized Tribes to collect and evaluate other relevant information.
The CWA itself uses the term ``man-made or man-induced'' within the
statutory definition of pollution; EPA believes this term is very clear
and needs no further clarification. The CWA already defines ``point
source'' and EPA does not believe that today's rule needs to reiterate
this definition. EPA
[[Page 43602]]
interprets ``nonpoint source'' to apply to all sources that do not meet
the statutory definition of a point source. Finally, the CWA at section
502(a) already defines the term ``contiguous zone'' and EPA does not
believe that it needs to reiterate this definition in today's final
rule.
EPA disagrees that it should add a definition of ``sensitive
aquatic species.'' This term was used in the proposal merely to
indicate a factor that States, Territories and authorized Tribes should
consider when establishing priorities for TMDLs. Since this is a
discretionary practice in the final rule, EPA believes that it need not
define the term.
EPA also disagrees that it should add a definition of ``seasonal
variations.'' This term originates in CWA section 303(d)(1)(C). EPA
believes it means seasonal variation in environmental conditions which
affect a waterbody's character, e.g., variations in a waterbody's
temperature, flow rate, or dissolved oxygen level. EPA does not believe
the term needs a separate regulatory definition. Further,
Sec. 130.32(b)(9) provides sufficient explanation of what is to be
included in the assessment of seasonal variation.
EPA disagrees that it should add a definition of ``comprehensive
watershed management plan.'' This term is not used in the final rule,
and thus does not require definition.
EPA disagrees that it should add a definition of ``natural sources/
causes'' or ``ephemeral stream.'' EPA believes these terms are best
defined in State, Territorial and authorized Tribe's water quality
standards. The term ``natural sources/causes'' was suggested to clarify
how a TMDL would address impairments caused by natural sources or
causes. EPA believes this question is best addressed when a State,
Territory, or authorized Tribe decides the appropriate water quality
criteria for that waterbody. The term ``ephemeral stream'' was
suggested to identify a type of waterbody for which special water
quality standards would be necessary. Again, EPA believes this question
is best addressed when a State, Territory, or authorized Tribe decides
the appropriate water quality criteria for that waterbody.
B. Who Must Comply With the Requirements of Subpart C? (Sec. 130.20)
What did EPA propose? EPA's proposal included a list of entities
which would be subject to the subpart C regulations. The proposal
defined the term ``you'' to pertain to States, Territories, and
authorized Tribes. The proposal also stated that portions of subpart C
apply to EPA.
What comments did EPA receive? EPA received only a few of comments
on this section. These comments expressed concern that EPA was only
subject to unspecified portions of subpart C, and recommended that EPA
should be subject to the same requirements as are States, Territories,
and authorized Tribes.
What is EPA promulgating today? EPA declines to further clarify
this section. Its purpose is to explain that the term ``you'' as used
in a rule written in plain English applies to States, Territories and
authorized Tribes. As to the parts of the rule that apply to EPA, EPA
considers that Secs. 130.22, 130.23, 130.25, 130.26, 130.27, 130.28,
130.29,130.31, 130.32, 130.33, 130.36, and 130.37 apply to EPA when EPA
establishes lists or TMDLs. These are the same substantive requirements
that apply to States, Territories, and authorized Tribes.
Other sections of subpart C pertain to EPA's review and approval or
disapproval of lists and TMDLs. These sections are specifically
identified in the titles for the sections.
C. What is the Purpose of Subpart C? (Sec. 130.21)
EPA proposed to include this section in the regulations to give the
reader an overall summary of the requirements included in Secs. 130.22
through 130.37 of Subpart C. EPA received many comments regarding the
purpose of its proposal. These comments are all addressed in other
parts of this preamble or in the Response to Comments Document. For the
sake of clarity, this section has been slightly expanded in today's
rule to reflect decisions made on the various requirements which are
explained in detail following sections of the preamble. In addition,
the section clearly lays out the actions which EPA will undertake in
the absence of approvable actions by a State, Territory, or authorized
Tribe. Finally, this section is reorganized to group together
requirements for States, Territories, and authorized Tribes, and those
for EPA.
D. What Water-Quality Related Data and Information Must be Assembled To
Develop the List of Impaired Waterbodies? (Sec. 130.22)
What did EPA propose? In Sec. 130.22 of the proposal, EPA included
a listing of the sources of water-quality related data and information
which a State should consider in order to develop its list of impaired
waterbodies. Generally, EPA proposed to retain the requirements of
current Sec. 130.7(b)(5) with one significant addition. EPA proposed at
Sec. 130.22(b)(4) that States, Territories and authorized Tribes should
consider the information included in the Drinking Water Source
assessments mandated by the Safe Drinking Water Act. EPA intended that
the data obtained from these sources would then be analyzed using the
State's methodology developed under proposed Sec. 130.23.
What comments did EPA receive? EPA received a significant number of
comments concerning both this section and proposed Sec. 130.23. Some
commenters specifically addressed the list of data sources proposed in
Sec. 130.22. Their comments are addressed in this section. EPA also
received many comments dealing with the issues of data quality, types
of data which should be considered as existing and readily available,
and the use of monitored vs. modeled or evaluated data. Some commenters
raised these issues in the context of Sec. 130.22, others in the
context of Sec. 130.23 For the sake of clarity EPA is addressing these
issues in the discussion of Sec. 130.23.
As far as the list of sources, a significant number of commenters
took exception to inclusion of the source water assessments while
others supported it. Some commenters suggested that source water
assessments were not appropriate sources of data because they are
likely to be desk-top short-term qualitative documents containing no
actual data, and suggested that sanitary surveys would be better
sources of data. Others believed that EPA should clarify that ground
water assessments should not be used for listing decisions. Other
commenters suggested either additions or deletions from the list.
What is EPA promulgating today? After careful consideration of
these comments, EPA is promulgating this section as proposed. The
Agency appreciates that there are other sources of data available and
does not intend the list to be exclusive. States must consider other
types of water quality-related data and information that are existing
and readily available. On the other hand, EPA does not expect the
States, Territories and authorized Tribes to use data contained in the
listed documents, including source water or groundwater assessments, in
an indiscriminate fashion. The expressed purpose of Sec. 130.23 is to
document the decision process the States, Territories and authorized
Tribes will use to consider how data from these and any other existing
and readily available sources will be used in making listing decisions.
Thus, States, Territories, and authorized Tribes must consider all
existing and readily available water quality-related
[[Page 43603]]
data and information in the listing process, but may decide not to use
certain such data or information as a basis for listing waters. These
decisions will be explained in the state's methodology, discussed
below, so that the public and EPA will have an opportunity to provide
input on the decision process.
E. How Must the Methodology for Considering and Evaluating Existing and
Available Water-Quality Related Data and Information to Develop the
List be Documented? (Sec. 130.23)
What did EPA propose? Under the current regulations, States,
Territories and authorized Tribes must submit to EPA documentation
justifying their decisions to list or not list waterbodies at the same
time they submit the list. EPA proposed to decouple the two
requirements to provide for early input from stakeholders and EPA on
this decision-making process. EPA's rationale was that resolving
methodology issues early in the process would lead to better, more
readily approvable lists. EPA proposed to require that States,
Territories, and authorized Tribes develop a methodology covering all
aspects of how existing and readily available data and information
would be used to identify waterbodies as impaired, assign priorities
and develop a schedule for establishing TMDLs.
What comments did EPA receive? EPA received a significant number of
comments concerning the use of all existing and readily available data
as a basis for listing and delisting impaired waters. Many commenters
strongly advocated the use of data from all sources, with or without
QA/QC documentation. These commenters were concerned that setting data
quality requirements too high would result in a less than comprehensive
assessment of all waters, and therefore dramatically limit or
underestimate the identification and listing of impaired waters. They
pointed out that listing and TMDL establishment is an iterative
process, and that if necessary, States, Territories and authorized
Tribes could collect supplemental data to confirm or make adjustments
to their initial listing decisions. Numerous commenters suggested that
data should not be used for the basis of listing and delisting unless
it met rigorous QA/QC requirements, and was collected and processed
with documented and scientifically valid protocols. Several commenters
supported the establishment of prescribed QA/QC data quality guidelines
in order to assure that all data met a minimum level of technical
credibility.
Numerous commenters suggested that EPA specify in detail the
contents of an adequate assessment methodology. In this approach, EPA
would establish requirements for sampling design, data collection, and
data analysis and interpretation. Other commenters objected to such a
``one size fits all'' approach, and believed that the format and
contents of the methodology should be left to States, Territories and
authorized Tribes.
Several commenters expressed concerns over the proposed requirement
that there be a separate public participation process in the
development of the methodology, while others asked for more specific
public participation requirements which would mandate involvement of
certain stakeholders. Several commenters also suggested that the
methodology be adopted through rulemaking. Some commenters asked that
the final methodology be made available to the public.
A number of commenters expressed concern over the adequacy of
current monitoring programs to characterize and evaluate their waters
in a comprehensive manner, regardless of how restrictive the States,
Territories and authorized Tribes are in the use of existing and
readily available data and information. They pointed out that State,
Territorial and authorized Tribal monitoring programs needed to expand
their spatial and temporal coverage, monitor for additional parameters,
and rapidly incorporate biological and habitat quality indicators.
Finally, some commenters suggested that the methodology needed to
consider how to resolve disagreements involving waterbodies that
crossed Territorial and all Tribal boundaries.
What is EPA promulgating today? EPA is making several changes to
the proposed language to conform with decisions explained elsewhere in
this preamble. These changes reflect the decision that the section
303(d) list include four Parts, and for Part 1, the prioritized
schedule for establishing TMDLs. Also, in recognition of the fact that
EPA will be reviewing and commenting on, but not approving or
disapproving, the methodology, EPA has revised the regulatory text to
say that States, Territories, and authorized Tribes ``should'', rather
than must, include certain elements in the methodology.
EPA is retaining the proposed requirement that there be a separate
public participation process in the development of the methodology. EPA
recognizes the cost savings of combining the public participation of
the methodology with that of the list. However, EPA believes there is a
significant benefit to the public to have reviewed the methodology
before the public reviews the list of impaired waters. EPA is also
adding language to encourage States, Territories and authorized Tribes
to provide direct notification of the availability of the draft
methodology to persons who submit a written request. This change
conforms with changes made to Sec. 130.36 and makes all public notice
requirements contained in the final rule consistent. EPA believes it is
reasonable to expect States to provide direct notification to such
parties, and that it will not be burdensome. Public participation is
essential to ensuring accurate, comprehensive lists, and providing
persons with sufficient interest in the process to request notification
in writing is a fairly simple way to further ensure that all interested
parties receive notice of the availability of the draft methodology.
EPA notes that States need not respond to such requests by providing
copies of the methodology itself, but rather may simply notify the
requesting parties that the methodology is available for public review
and comment. EPA also agrees with the comment that the public should
have access to the final methodology and is adding language to this
effect. Today's final rule does not specify how States, Territories,
and authorized Tribes are to make the methodology available. EPA
expects that they will use their existing practices for doing so. EPA
is requiring that the final methodology be made available to the
public.
EPA also agrees with the commenter's concerns regarding State,
Territorial and authorized Tribal monitoring protocols. The final
regulations specify that the methodology should describe procedures
that States, Territories and authorized Tribes will use to collect
ambient water quality information. EPA believes this is reasonable and
appropriate to provide as part of the methodology since this
information will likely be critical in listing waterbodies as well as
determining whether waterbodies are meeting standards and may be
removed from the list. It is important for the public to be informed of
the data collection methods the State, Territory, or authorized Tribe
intends to use, and to have an opportunity to comment on such methods.
EPA believes this process will serve to minimize concerns that would
otherwise be raised later, when the State, Territory, or authorized
Tribe lists
[[Page 43604]]
or removes waters based on data it has collected through its ambient
water quality data collection programs.
EPA supports the collection and use of high quality data in
decision making. EPA's grant regulations require that when grantee
projects, such as State and Territorial water quality work using CWA
section 106 funds, involve environmentally-related measurement or data
generation, the grantee shall implement quality assurance practices
that produce data of quality adequate to meet the project objectives.
40 CFR 31.45. Because regulations already require quality assurance
practices, EPA declines to duplicate these requirements in today's
rule. EPA has published guidance which governs EPA's own data
collection activities and references quality assurance/quality control
guidances for others. See ``Policy and Program Requirements to
Implement the Mandatory Quality Assurance Program'', EPA Order 5360.1,
April 3, 1984, as revised July 16, 1998.
Similarly, EPA recognizes the concern that quality assurance
practices could be set at so high a level as to preclude consideration
of most environmental water-quality related data. For this reason, EPA
is committing in the final rule to comment about a State's, Territory's
or authorized Tribe's assessment methodology. This will allow EPA to
express concerns about the assessment methodology, including whether
the State, Territory, or authorized Tribe inappropriately included or
excluded water-quality related data. In addition, EPA will consider
this when EPA reviews the list of impaired waters.
The final rule at Sec. 130.23(e)(2) now provides that the State,
Territory, or authorized Tribe should develop a process for resolving
disagreements with other jurisdictions involving waterbodies crossed by
Territorial and Tribal boundaries, in addition to the State and
authorized Tribal boundaries discussed in the proposal. EPA is adding
Territories to this provision because, under section 303(d),
Territories are considered in the same way as States. EPA is adding
Tribes that are not authorized to administer section 303(d) to this
provision because, in part, Tribes without section 303(d) authorization
may have authorization under section 303(d) for water quality
standards, and a resolution of disputes over how to interpret and use
water quality standards becomes relevant.
EPA also declines to specify in the final rule the detailed
contents of an adequate assessment methodology. EPA believes that
States, Territories, and authorized Tribes need the flexibility to
tailor their assessment methodology to their monitoring programs and
the waterbodies within their jurisdiction and that methods change over
time. To assist States, Territories and authorized Tribes, EPA is,
however, developing guidance on this subject which will include key
elements of monitoring programs, monitoring design for achieving
comprehensive coverage of assessments, and decision criteria for
determining impairments. This guidance will be available to the States,
Territories, and authorized Tribes in 2000, unless delayed by the TMDL
rider.
EPA recognizes the concerns expressed by commenters over the
adequacy of current monitoring programs to characterize and evaluate
their waters in a comprehensive manner. EPA continues to work with
States, Territories, and other stakeholders to increase the quality and
comprehensiveness of water quality monitoring and assessment programs.
This is achieved through data sharing and development of consistent
monitoring designs and assessment criteria. EPA provides technical
assistance, guidance and resources for monitoring design and
implementation. EPA and its partners in States, Territories, Tribes and
other Federal agencies are developing a consolidated assessment
methodology that will provide a consistent approach for characterizing
water quality.
F. When Must the Methodology be Provided to EPA? (Sec. 130.24)
What did EPA propose? EPA envisioned the methodology as an evolving
document which States, Territories and authorized Tribes would revise
as appropriate at some time during the listing cycle. EPA proposed that
States, Territories and authorized Tribes would submit their first
final methodology to EPA no later than January 31, 2000, and no later
than January 31 of every year preceding the year when a list would be
due, but noted in the preamble that the first date was subject to
change based on the date when these regulations would be promulgated.
EPA also proposed that it would review the listing methodology and
provide comments to the State, Territory, or authorized Tribe. EPA
proposed to consider the methodology in its approval or disapproval of
the section 303(d) list and explained in the preamble to the proposal
that it was considering using the way in which EPA's comments on the
draft methodology were addressed as a factor in approving or
disapproving the list.
What comments did EPA receive? Commenters expressed differing
opinions on how frequently the methodology should be submitted. Some
advocated a one time submission, with updates as needed. Others
suggested that the methodology be submitted with each list. There was a
diverse set of comments concerning the role of EPA in formally
approving the methodology. Some commenters strongly endorsed a formal
approval/disapproval of the methodology as part of EPA's action on the
submitted list. Some commenters believed that EPA had no role in
reviewing or approving the methodology. They believed that it was
strictly a State, Territorial and authorized Tribal responsibility to
establish and implement data collection and assessment protocols.
Numerous commenters strongly advocated that EPA only provide advice,
comment and technical guidance to States, Territories and authorized
Tribes.
What is EPA promulgating today? EPA continues to believe that the
methodology will be an evolving document; therefore, the final rule
requires that it be provided to EPA during every listing cycle.
However, EPA recognizes that not all aspects of the methodology may
change during any given cycle, and the final rule provides that only
revised portions of the methodology need be provided. EPA will already
have the previous list's methodology, and will have provided comments
on the unchanged portions during prior list cycles. Therefore, EPA's
comments will likely focus on any changed portions of the methodology.
However, the State, Territory, or authorized Tribe must make available
to the public for comment the entire methodology, including portions
unchanged from prior listing cycles. EPA expects the State, Territory,
or authorized Tribe to address in its final methodology comments from
the public on all aspects of the methodology, including those that were
not changed.
As was proposed, the final rule requires that the methodology and
updates to the methodology be provided to EPA at least once per four-
year listing cycle. EPA's rationale for choosing a four year list
submittal cycle is explained later in this preamble. Except for the
first listing cycle pursuant to these regulations, States, Territories
and authorized Tribes must provide the methodology no later than two
years prior to the due date of the list. This time provides sufficient
time for States, Territories and authorized Tribes to collect water-
quality related data for the next section 303(d) list consistent with
[[Page 43605]]
their most recent assessment methodology. This schedule is compressed
for the first list because EPA agrees with the commenters who expressed
an urgency in seeing these regulations implemented. The methodology for
the first list required to be submitted under today's regulations is
due no later than November 1, 2001, five months before the list is due,
unless the rider is in effect through that date. EPA believes this date
strikes a balance between the competing concerns of allowing States,
Territories and authorized Tribes sufficient time to develop a
methodology (including providing an opportunity for the public to
comment) consistent with today's regulations, and having state lists
submitted under today's regulations without undue delay. States,
Territories and authorized Tribes will have nine months to develop the
methodology and submit it to EPA. EPA will review the methodology and
provide comments within 60 days (by July 1, 2001). Thus, the State,
Territory, or authorized Tribe will have nine months from the time it
receives EPA's comments on its methodology to develop and submit its
section 303(d) list.
EPA will not formally approve or disapprove the methodology but
provide comments to help the State, Territory, or authorized Tribe
develop appropriate methodologies for listing decisions so that the
ultimate goal of Sec. 130.23--approvable lists--is achieved. Thus,
EPA's review of and comments on State, Territory, or authorized Tribe
methodologies will focus on whether the methodology will result in an
adequate review of all existing and readily available water quality-
related information, whether the factors that will be used to make
listing and removal decisions are reasonable, whether the process for
evaluating different kinds of water-quality related data and
information is sufficient, whether the process for resolving
jurisdictional disagreements is sufficient, whether the process for
developing a prioritized schedule is reasonable and consistent with the
requirements of the CWA and EPA's regulations, and whether the State,
Territory, or authorized Tribe has adequately responded to comments
from the public on its draft methodology.
In its review of the State's, Territory's or authorized Tribe's
list submission, EPA will consider whether the State, Territory, or
authorized Tribe adequately addressed EPA's comments on its final
methodology. In some cases, the failure to address such comments may
result in a disapproval or partial disapproval of the state's list
submission. For example, if EPA concludes that the state's methodology
fails to adequately consider certain kinds of relevant water-quality
related data and information, but this deficiency is not corrected in
the final list submission, EPA may disapprove the list if it determines
that this deficiency resulted in the state's failure to include certain
waterbodies required to be listed. Therefore, EPA is in the final
regulation committing to provide comments to States, Territories and
authorized Tribes within 60 days of receiving the methodology. This
should give States, Territories and authorized Tribes sufficient time
to make necessary adjustments in their methodology to submit an
approvable list to EPA.
EPA is also revising the proposed language to require in the final
rule that States, Territories and authorized Tribes provide to EPA a
summary of public comments they received on their final methodology and
of their response to significant comments. EPA believes that it can
better provide informed comments on State, Territory, and authorized
Tribe methodologies if it knows what comments they received. Also, EPA
believes it needs this information to assist in its review and approval
or disapproval of the lists of impaired waterbodies in order to
understand issues raised by members of the public and how they were
addressed in the listing process.
In the event that the effective date of today's rule is later than
May 1, 2001, States, Territories, and authorized Tribes are not
required to develop the methodology for the year 2002 list under the
requirements of this regulation. Instead, States, Territories, and
authorized Tribes will need to provide a methodology under the previous
regulation. See Section V.5 of the preamble.
G. What is the Scope of the List of Impaired Waterbodies? (Sec. 130.25)
What did EPA propose? EPA proposed to eliminate the term ``water
quality-limited segments still requiring TMDLs'' from the regulations
and to broaden the scope of the list. EPA proposed requiring States,
Territories and authorized Tribes to list all impaired or threatened
waterbodies, regardless of whether the waterbody was expected to attain
water quality standards following the application of technology-based
controls required by section 301 and 306 of the CWA, more stringent
effluent limitations, or other required pollution controls.
EPA proposed that States, Territories and authorized Tribes would
list all waterbodies impaired or threatened by pollutants, by
pollution, by atmospheric deposition, and by unknown pollutants. EPA
proposed that these waterbodies be listed regardless of the source of
the impairment: point source, nonpoint source or a combination of both.
EPA's rationale for this proposed section was to provide a list that
served as a comprehensive public accounting of impaired and threatened
waterbodies and provided all stakeholders with an ongoing record of
success in attaining water quality standards as TMDLs were completed
and implemented.
What comments did EPA receive? EPA received a significant number of
comments suggesting that threatened waterbodies not be included on the
section 303(d) lists. These commenters stated that the section 303(d)
list was expressly for waterbodies not meeting water quality
standards--not waterbodies currently meeting water quality standards
even if they exhibited a declining trend in water quality. Several
commenters supported the inclusion of threatened waters on the section
303(d) list. They asserted that protective pollution control efforts
would prevent further deterioration of these waters, and prevent them
from becoming ``formally'' impaired. Many commenters suggested that
threatened waters not be listed, but be tracked and reported elsewhere.
Some commenters expressed concern that EPA had not yet provided
sufficient guidance on how to define a declining trend, and that
radically different approaches would be employed by the States. In
general the States were very concerned with the workload that
requirement might entail, in light of what they believed to be a more
expansive definition of a TMDL.
A significant number of commenters suggested that only waters
impaired by an identified pollutant should be required to be listed,
and that waters impaired by pollution, where no pollutant could be
identified, should not be listed. It was their view that the section
303(d) list was intended to identify waterbodies for which TMDLs for a
pollutant or pollutants were to be established. Numerous commenters
supported the required listing of waterbodies impaired by pollution. It
was their position that the inclusion of pollution impairments was a
more comprehensive reporting of the status of the nation's waterbodies,
and allowed States, Territories and authorized Tribes to target
pollution control actions more effectively.
Several commenters objected to the use of drinking water standards
as a basis for listing impaired waterbodies because they believed that
MCLs are developed for protecting drinking water
[[Page 43606]]
at the tap and are wholly inappropriate for use as a standard to define
ambient water quality impairments.
EPA received numerous comments suggesting that the requirement to
list waterbodies impaired or threatened by an unknown pollutant be
eliminated. Some commenters believe that this language was so wide-open
as to lead members of the public to request that waterbodies be listed
in the absence of any information even indicating an impairment. Many
commenters were concerned that listing for an impairment without
identifying a pollutant could have significant adverse regulatory
implications. Several commenters were concerned that in many cases of
biological impairment, the pollutant could never be identified. Other
commenters supported listing waterbodies where the pollutant was
unidentified. They endorsed the strategy to first list the waterbody,
and then attempt to identify the pollutant as a first step in
establishing the TMDL.
Several commenters strongly challenged EPA's authority to require
the listing of waterbodies impaired by nonpoint source pollution. It
was their interpretation of section 303(d) that the text ``waterbodies
for which effluent limitations required by section 301(b)(1)(A) and
(B), and are not stringent enough to implement any water quality
standard,'' applies expressly only to point sources, and, therefore,
exempts waters impaired by nonpoint sources alone. Many commenters were
concerned that the inclusion of nonpoint source only waters would
greatly expand the number of waters listed, and because of excessive
resource demands, reduce the effectiveness of dealing with point source
impairments. Other commenters supported the requirement to list waters
impaired only by nonpoint sources. In general, these commenters
suggested that waters be listed regardless of the cause of the
impairment--point source, nonpoint source or both.
A significant number of commenters suggested that EPA should not
require the listing of waterbodies threatened by atmospheric
deposition. Several of these commenters challenged EPA's statutory
authority under the CWA to require that waters impaired by atmospheric
deposition be listed. A number of these commenters suggested that the
Clean Air Act was a more appropriate vehicle for addressing the effects
and controls of air sources of pollutants. Many commenters stated that
it was technically infeasible to link and estimate the significance of
the atmospheric contribution of a pollutant, and that adequate
technical tools to establish TMDLs for pollutants contributed by air
deposition did not yet exist. Several commenters supported the listing
of waterbodies impaired or threatened by atmospheric sources of
pollutants. These commenters stated that the source of the impairment
was irrelevant as to whether a waterbody should or should not be
listed.
What is EPA promulgating today? EPA is making two significant
changes to the proposed language. First, EPA is not requiring that
States Territories or authorized Tribes, include threatened waters.
However, EPA is encouraging States, Territories and authorized Tribes
to include on the list those waterbodies which they anticipate will
become impaired before the next listing cycle.
Waterbodies which exhibit a declining trend in water quality at the
time a list is being developed such that water quality standards will
likely be exceeded by the time of the next list submission are not
required to be listed under the final rule. However, EPA expects that
such waters will either exceed standards at the next listing cycle if
the declining trend continues as expected and must then be listed or
will attain standards by that time if the declining trend is reversed.
Thus, a State, Territory, or authorized Tribe still has an incentive to
adopt controls that address threatened waterbodies so that listing and
TMDL development can ultimately be avoided. Moreover, if declining
trends are not reversed, it is likely that the waterbody will be
required to be included in the next list and scheduled for TMDL
development if included on Part 1. For this reason, TMDL development
will not be delayed more than four years compared to the proposed
approach for requiring listing of threatened waters.
Alternatively, a State, Territory, or authorized Tribe could decide
to list a threatened waterbody on the section 303(d) list, schedule a
TMDL if the impairment was caused by a pollutant, and proceed with
establishing the TMDL. If a State, Territory, or authorized Tribe
chooses to do so, this TMDL will be subject to the requirements of
subpart C, that is, the TMDL must be submitted to EPA for review, and
EPA's approval or disapproval and establishment of a TMDL will be based
on the requirements of subpart C. In addition, as required by
Sec. 130.35(a), EPA must establish a TMDL for any waterbody that a
State, Territory, or authorized Tribe lists and does not make
substantial progress in establishing the TMDL as compared to its
approved schedule. The decision to include threatened waters or not is
left entirely to the discretion of States, Territories, and authorized
Tribes. EPA will not use grant conditions or other mechanisms to
influence this decision.
Second, EPA is clarifying that in order for a waterbody to be
listed in the absence of information regarding the presence of a
pollutant, there has to be some biological information, (e.g. not
supporting a designated or existing habitat use) supporting the
impairment finding.
EPA is declining to make any of the changes suggested by the
commenters pertaining to the scope of the list of impaired waterbodies
as described by Sec. 130.25. Most of the comments suggesting that the
scope of the list should be narrowed based their rationale on their
interpretation of the CWA and EPA's authority under section 303(d). As
stated in section I.A.2. of this preamble, EPA believes that the CWA
does require that States, Territories, or authorized Tribes list waters
impaired regardless of the source, except for the statutory exception
for those waters where the installation of technology-based treatment
will attain and maintain water quality standards. Accordingly, today's
rule provides more examples of the types of sources, including
atmospheric deposition and ground water, that may cause impairments
requiring placement of the waterbody on the section 303(d) list.
EPA continues to believe that there are merits in ensuring that the
States, Territories and authorized Tribes have a complete accounting of
impaired waterbodies and that the public should be able to have access
to the list. As EPA explained in the preamble to the proposed
regulations, there should be a close relationship between the
information that States, Territories, or authorized Tribes used to
develop the section 305(b) list and the information used to establish
the section 303(d) list. Indeed, one requirement of Sec. 130.22 is that
States, Territories, or authorized Tribes evaluate and consider their
most recent section 305(b) report in developing their section 303(d)
lists of impaired waterbodies. Therefore EPA does not believe that
requiring the more complete section 303(d) list imposes an undue burden
on the States, Territories, or authorized Tribes because they are using
water-quality related data and information that they have in hand and
may have already evaluated for their section 305(b) report. In
addition, as discussed later in this preamble, EPA is providing States,
Territories and authorized Tribes with significant flexibility in the
way they can provide the list to EPA which will further alleviate this
burden.
[[Page 43607]]
Today's rule at Sec. 130.25(a) also recognizes that the existing
and readily available water-quality related data and information used
by States, Territories and authorized Tribes for environmentally-
related measurement or data generation must include appropriate quality
assurance and quality control. EPA's grant regulations require that
when grantee projects, such as State and Territorial water quality work
using CWA section 106 funds, involve environmentally-related
measurement or data generation, the grantee shall implement quality
assurance practices that produce data of quality adequate to meet the
project objectives. 40 CFR 31.45. Similarly, any monitoring or analysis
activities undertaken by a Tribe with EPA funds must be performed in
accordance with quality assurance/quality control
practices.(Sec. 130.10). Therefore, EPA believes that it is consistent
with the current requirements for how States, Territories and
authorized Tribes consider data to recognize that the existing and
ready available data and information must include appropriate quality
assurance and quality control.
H. How do you Apply Your Water Quality Standards Antidegradation Policy
to the Listing of Impaired Waterbodies? (Sec. 130.26)
What did EPA propose? EPA proposed to clarify how State,
Territorial and authorized Tribal antidegradation policies should be
used in identifying and listing impaired and threatened waterbodies
under section 303(d). As described in the preamble to the proposed
rule, antidegradation policies and associated implementation procedures
are an essential part of State, Territorial and authorized Tribal water
quality standards and are required under Part 131. The preamble further
described the relationship between the section 303(d) listing
requirements and antidegradation policies. EPA proposed requiring that
any decline in water quality for Outstanding National Resource Waters
(ONWRs) waterbodies would represent an impairment, and that such
waterbodies should be identified and listed. EPA also proposed
requiring identification and listing of unimpaired waterbodies as
threatened when trend data and information indicated that a designated
use would not be maintained and protected by the time of the next
listing cycle. For all waterbodies, EPA proposed requiring
identification and listing of waterbodies as impaired where the
designated use, or a more protective existing use, was not maintained.
An existing use is a use actually attained in the waterbody on or after
November 28, 1975 (when the Water Quality Standards regulations were
published), whether or not the use is included in the Water Quality
Standard. See Sec. 131.3(e). EPA also proposed listing such waterbodies
as threatened when trend data indicated the designated use, or a more
protective existing use, would no longer be attained at the end of the
next listing cycle.
What comments did EPA receive? EPA received a number of comments
specific to the use of antidegradation policies in identifying and
listing threatened and impaired waterbodies. Many commenters disagreed
that the definition of water quality standards in the CWA and Part 131
includes an antidegradation policy, thereby asserting that EPA does not
have the authority to impose such policy on States and that
antidegradation policies cannot serve as a basis for listings under
section 303(d). Other commenters asserted that antidegradation
policies, while part of water quality standards, are intended to apply
only to waters that already attain water quality standards and thus
antidegradation policies should not be considered when identifying and
listing impaired waterbodies. Several commenters believed that ONRW
waterbodies should not be listed as impaired based on a measurable
change in water quality since there was no exceedance of a water
quality standard; others asserted it was illogical since a decline in
water quality could be temporary. Several commenters believed that EPA
should remove the protection of existing uses from the water quality
standards regulation. Several commenters believed that EPA should not
require listing of threatened waters on the basis of a decline in water
quality in unimpaired waterbodies, since EPA explicitly allows for a
lowering of these waters' quality to accommodate important social and
economic development. Finally, many commenters asserted that EPA lacks
the statutory authority to require listing of threatened waters.
What is EPA promulgating today? After carefully considering the
comments received on the use of State, Territorial and authorized
Tribal antidegradation policies in identifying and listing impaired and
threatened waterbodies, EPA is promulgating the following requirements.
First, ONRW waterbodies are impaired and must be listed when the water
quality of such waterbodies has declined. Second, any waterbody not
maintaining a designated use or more protective existing use is
impaired and must be listed. Consistent with the decision not to
require listing of threatened waterbodies, EPA is not including in the
final rule the proposed provision requiring listing of unimpaired
waterbodies that are determined to be threatened based on adverse trend
data and information.
EPA rejects the assertion made by many commenters that
antidegradation policies are not part of water quality standards and
that EPA lacks the authority to promulgate such policies for States,
Territories or authorized Tribes. As described in the preamble to the
proposed rule, antidegradation policies are a required element of
State, Territorial and authorized Tribal water quality standards. The
preamble to the Advance Notice of Proposed Rulemaking to the Water
Quality Standards Regulation discusses at length both the statutory and
regulatory basis for these longstanding requirements. ( 63 FR 36779-
36787. July 7, 1998). Further, EPA has in the past, and may in the
future, promulgate replacement Federal water quality standards when
State, Territorial or authorized Tribal water quality standards do not
include an antidegradation policy which provides protection of water
quality consistent with the Federal antidegradation policy at
Sec. 131.12. ( Sec. 131.32, 61 FR 64816 December 9, 1996). Quite
simply, antidegradation policies are part of water quality standards.
EPA also rejects commenters' assertions that antidegradation
policies should not be considered when identifying and listing impaired
waterbodies because they apply only to waters that already attain water
quality standards. As discussed in the preamble to the proposed rule,
Sec. 131.12(a)(1) requires that existing uses and the water quality
necessary to protect them be maintained and protected. This is the
fundamental level of water quality protection, applicable to all waters
of the U.S., established by the Federal antidegradation policy. While
existing uses and designated uses may be equivalent, this is not always
the case. (63 FR 36751, July 7,1998). For example, a waterbody may be
designated as a warm water fishery, but in reality be supporting a
cold-water fishery, a more protective existing use. While the cold-
water fishery has not yet been adopted as the designated use, as the
existing use it must be maintained and protected. The intent of
Sec. 131.12(a)(1) is to ensure that the more protective existing use is
maintained and protected. In this example if the cold-water fishery is
an existing use and is impaired prior to its adoption as the designated
use in the water quality standards, such impairment is a failure to
meet an
[[Page 43608]]
existing use and the water must be listed. Therefore, EPA believes that
waterbodies which are not maintaining designated uses or more
protective existing uses are impaired and must be listed under section
303(d).
EPA rejects the suggestion to remove protection of existing uses.
To the extent this comment is related to the water quality standards
regulations, it is outside the scope of today's action. EPA recognizes
the inherent challenges associated with identifying and protecting
existing uses. However, EPA has long-standing requirements for the
protection of existing uses--prohibiting the removal of existing uses
and requiring the adoption of designated uses consistent with existing
uses. The existing requirement that water quality necessary to protect
existing uses be maintained and protected will ensure that past or
present water quality, at a minimum, will be maintained and protected.
Requiring listing of waterbodies that are not maintaining designated
uses or more protective existing uses as impaired is not only
consistent with these longstanding requirements, but further clarifies
and strengthens the protection of existing uses.
EPA disagrees that degradation of the ONRW waterbody does not
constitute an exceedance of a water quality standard. Section
131.12(a)(3) establishes the highest level of protection for
waterbodies by prohibiting the lowering of water quality. Thus, the
level of water quality present at the time a waterbody is classified as
a ONRW water, even that which exceeds the threshold for designated use
attainment, must be maintained and protected. The only exception to
this prohibition, as discussed in the preamble to the water quality
standards regulation (54 FR 54100, November 8, 1983), is for activities
that result in short-term and temporary changes. EPA guidance has not
defined short-term or temporary, but views these terms as limiting
water quality degradation for weeks or months, not years, with the
intent of limiting degradation to the shortest possible time. For an
ONRW waterbody the applicable standard is the prohibition on lowering
of water quality. Therefore, EPA believes that when degradation to a
waterbody classified as an ONRW occurs (beyond that which is short-term
and temporary), such waterbody is impaired and must be listed under
section 303(d). EPA acknowledges that an ONRW waterbody may have very
high water quality which far exceeds the threshold required for
attainment of its designated use. However, the level of protection
established by Tier 3 is intended to maintain that level of water
quality into the future. EPA notes that classification of any
individual waterbody as an ONRW is solely at the discretion of the
State, Territory, or authorized Tribe.
I. What is the Format and Content of the List? (Sec. 130.27)
What did EPA propose? EPA's proposal at Sec. 130.27 would have
established a specific format and content for States, Territories, and
authorized Tribes to follow, which organized the types of waterbodies
included on the list and clearly identified which waterbodies would
require the establishment of TMDLs. The proposed rule would have
required that a list consist of four parts:
Part 1--Waterbodies impaired or threatened by one or more
pollutants or unknown causes for which TMDLs would be required .
Part 2--Waterbodies impaired or threatened by pollution for which
TMDLs would not be required.
Part 3--Waterbodies for which EPA has approved or established a
TMDL and water quality standards have not yet been attained.
Part 4--Waterbodies that are impaired, but for which implementation
of technology-based or other enforceable controls are expected to
result in attainment of water quality standards by the next listing
cycle. A TMDL would not be required for waterbodies on this part of the
list.
EPA explained its belief that these four parts were necessary
because the list no longer would include only waterbodies for which
TMDLs were required. EPA wanted to ensure that the public and
stakeholders would be aware of the different regulatory treatment
afforded waterbodies depending on the basis of their inclusion on the
various parts of the list.
EPA also specifically requested comments on the advisability of
identifying specific situations where the proposed technical conditions
for establishment of TMDLs are not met, what those situations might be
and whether EPA should include waters impaired by pollutants in such
circumstances on a separate part of the list. These comments are
addressed fully in the Response to Comments Document and in section
II.M. of this preamble.
What comments did EPA receive? EPA received many comments on the
proposed format and content. In general, the same commenters who
opposed the broader scope of the list also opposed the four parts
proposed in Sec. 130.27 for the same reasons--lack of statutory
authority and burden for the States. These commenters suggested that
EPA maintain the current regulation requiring a one part list of
waterbodies impaired by a pollutant or pollutants, and for which a TMDL
is required.
Some commenters who supported the proposed broader scope of the
list also supported the four part list of impaired waterbodies.
However, many commenters opposed the establishment of the Part 4
component of the four-part list. Some opposed it because they believed
that all waterbodies impaired by a pollutant, for which a TMDL has not
been established, should be listed on Part 1. Others opposed it,
because they believed that the States should not have to list impaired
waterbodies where a pollution control mechanism was being implemented.
Several commenters supported the establishment of the Part 4
component, but did not agree that only enforceable controls should be
determinative for inclusion of waterbodies on Part 4. Many of these
commenters stated that voluntary measures, including community-based
initiatives and incentive-based measures should also qualify a
waterbody for inclusion on Part 4.
EPA received numerous comments concerning the proposed requirement
that a waterbody on Part 4 must attain water quality standards by the
next listing cycle, or be moved to Part 1. They expressed the view that
one listing cycle might not be a sufficient amount of time to achieve
water quality standards, and that as long as reasonable progress
towards attainment was being made, the waterbody should remain on Part
4. In contrast, several commenters supported the proposed requirements,
based on their belief that one listing cycle should be sufficient to
determine whether other controls were adequate to attain water quality
standards.
A number of commenters were concerned about the implications of
EPA's proposal to require the listing of waterbodies where impairment
was caused by an unknown pollutant on Part 1. They were concerned that
States would list waterbodies for broad and unspecified reasons, which
would hinder the establishment of a TMDL.
Some commenters advocated tracking impaired waterbodies that met
the
[[Page 43609]]
definition of EPA's proposed Parts 2, 3, and 4 by way of other existing
reporting mechanisms (e.g., the section 305(b) report). These
commenters expressed support for identifying impaired waterbodies for
any reason, but expressed a preference that section 303(d) be used only
to address those waterbodies for which a TMDL is required.
What is EPA promulgating today? After analyzing all the comments
received, EPA is making a number of significant changes to the proposed
language but is retaining the concept that the list must be divided
into four parts. EPA believes that the distinctions provided by the
four parts are important to address some of the concerns expressed by
commenters that the list would be confusing to the public and could
lead some to believe that TMDLs were required for every waterbody on
the section 303(d) list. EPA also believes that each part is important
for different reasons. Parts 1, 3 and 4 will provide valuable
information regarding the progress made by waterbodies impaired by
pollutants. Progress in establishing TMDLs can be tracked by following
the movement of waterbodies from Part 1 to Part 3 of the list.
Effectiveness of control measures should result in waterbodies removed
from Part 3 or Part 4 and from the list altogether. If control measures
are effective, very few waterbodies should move from Part 4 to Part 1
or from Part 3 back to Part 1; the final regulations clarify
circumstances which would warrant such changes. Part 2 helps ensure
that stakeholders are aware of the extent to which waterbodies in a
State, Territory, or authorized Tribe are impaired by pollution. In
addition, if States, Territories or authorized Tribes decide to list
the waterbodies which they anticipate will become impaired before the
next listing cycle, and such waterbodies are included on Part 1, they
must also include them in the prioritized schedule for TMDL
establishment.
Today's final rule also requires that Part 3 waterbodies be moved
to Part 1 of the list if a State, Territory, or authorized Tribe, or
EPA determines that the waterbodies are not showing substantial
progress towards attainment of standards. This review could be part of
the analysis conducted by a State, Territory, or authorized Tribe for
its section 303(d) list submittal. If a State, Territory, or authorized
Tribe, or EPA determines that such progress is not occurring, then the
State, Territory, or authorized Tribe must include the waterbody on
Part 1 on the next section 303(d) list and revise the schedule to
identify when the new TMDL will be established. This provision is
consistent with EPA's proposal that TMDL implementation plans contain a
description of when TMDLs must be revised, and is intended to ensure
that such revisions will occur as envisioned by the implementation
plan, and when otherwise appropriate. Thus, as part of their
consideration of existing and readily available water quality-related
data and information, States, Territories, and authorized Tribes must
also consider any such data and information regarding Part 3
waterbodies and their progress towards attainment of standards. If, in
that review, there is data or information that shows substantial
progress is not being made, the waterbody must be moved to Part 1.
This provision is particularly important for waterbodies with TMDLs
established prior to the effective date of today's rule or under the
pre-existing regulations within 18 months of publication of today's
rule because these TMDLs are not required to include implementation
plans. Therefore, if there is data or information available to the
State, Territory, or authorized Tribe that shows such waterbodies are
not making substantial progress towards attainment of standards, the
State, Territory, or authorized Tribe must include the waterbody on
Part 1 and schedule a new TMDL. The new TMDL should be better able to
achieve water quality standards, since it will be required to contain
an implementation plan that meets the requirements of Sec. 130.32(c).
EPA will use the TMDL implementation plan to assess whether the
waterbodies on Part 3 of the list exhibit substantial progress towards
attainment of water quality standards. As required by Sec. 130.32(c),
each TMDL established in accordance with today's rule will include a
monitoring and/or modeling plan and criteria to determine whether
substantial progress toward attaining water quality standards is not
occurring and the TMDL needs to be revised. EPA will use the modeling
and monitoring information and criteria to assess progress. For TMDLs
established prior to the effective date of today's rule or prior to the
end of the transition period described in Sec. 130.37, EPA and the
State may consider information from section 305(b) reports and other
available water quality information along with information on
implementation of wasteload and load allocations to determine whether
the waterbody is making substantial progress. In this review, EPA will
also consider the pollutant controlled by the TMDL and the size and
expected response of the waterbody to changed loads.
The final rule requires that waterbodies that are expected to
attain and maintain water quality standards by the next listing cycle
through implementation of technology-based effluent limits or other
enforceable controls (best practicable control technology and secondary
treatment) be listed on Part 4 of the list. EPA believes that there is
a benefit to the public of knowing that these waterbodies, though
currently impaired, are expected to attain and maintain water quality
standards once the technology-based requirements are implemented.
EPA continues to believe that impaired waterbodies can only be
placed on Part 4 of the list (1) if they are subject to technology-
based requirements of the CWA or other enforceable controls, and (2)
for one listing cycle. Part 4 of the list can be construed as an
exception to the requirement that TMDLs must be established for all
waterbodies impaired by a pollutant or pollutants. Therefore EPA
believes that it is appropriate to limit the scope and duration of this
exception. Although EPA strongly supports the use of voluntary programs
to resolve many impairment situations, EPA believes that enforceable
controls will simplify the States, Territories and authorized Tribes'
task of demonstrating that water quality standards will be attained
within the relatively short period between listing cycles. Similarly
EPA believes that a clear cut endpoint to this exception is necessary
to ensure that the enforceable controls are sufficient to attain water
quality standards.
EPA disagrees with commenters who stated that EPA lacks authority
to require listing of impaired waters under the Clean Water Act. EPA's
analysis is described in the preamble to the proposed rule. 64 FR
46020-23, August 23, 1999. In particular, EPA disagrees with the
reading of section 303(d)(1)(A) as limited to waters that may need
water quality-based effluent limitations, i.e., only waters that are
not meeting standards due to point source discharges. First, EPA
disagrees that the use of the word ``effluent limitations'' in section
303(d) requires a reading of this section as limited to waters with
sources that have effluent limitations. Rather, the term ``effluent
limitation'' must be read in the context of the rest of section 303(d).
Read in that context, EPA believes that Congress intended to exclude
from listing only those waters where such limits are sufficient to
implement standards, but did not mandate excluding any other categories
[[Page 43610]]
of waters. In the absence of plain language mandating such an
exclusion, EPA believes that a reasonable interpretation of section
303(d), consistent with the broader goals of the Act, is that all other
waters can be required to be listed, since all are waters where
effluent limits are insufficient to implement standards.
In addition, there is no other indication in the statutory language
that section 303(d)(1)(A) only requires listing of waters that require
water quality-based effluent limitations. In fact, such limitations are
to be established under a different section of the Act (section
302(a)), which is not mentioned in section 303(d). Moreover, EPA
disagrees that the legislative history referenced by one commenter
supports a different interpretation. The commenter notes that the
legislative history of section 303(d) reveals a clear Congressional
intent to provide a mechanism for establishing water quality effluent
limitations. However, the commenter points to a statement in the
legislative history that describes the section 302 process for
establishment of water quality-related effluent limitations for a
single point source or a group of point sources, not listing of waters
under section 303(d). The legislative history simply describes the
basis on which more stringent effluent limitations will be set (i.e.,
the reduction needed to make the total load of the discharges from
municipal and industrial sources consistent with water quality
standards) under section 302(a), and does not support the proposition
that only waters that need water quality-based effluent limitations
should be listed under section 303(d). See H.R. 92-911 at 105-106,
March 11, 1972.
EPA also believes its interpretation of section 303(d) is a
different situation than the interpretation of section 211(k)(6) of the
Clean Air Act addressed in American Petroleum Institute v. EPA, 198
F.3d. 275 (D.C. Cir. 2000). In that case, the court struck down EPA's
interpretation of the phrase ``marginal, moderate, serious, or severe''
ozone nonattainment areas in the Clean Air Act to include other areas
not classified as marginal, moderate, serious, or severe. In today's
action, EPA is not interpreting a statutory phrase intended to
circumscribe the limits of the availability of a regulatory option, as
it was in the regulation at issue in the API case (in that case, the
ability to opt-into the federal reformulated gasoline program). Rather,
EPA is interpreting the language of section 303(d) to identify the
universe of waterbodies that Congress clearly intended not be listed,
and believes that universe consists of only one category of waters--
those for which effluent limitations required by sections 301(b)(1)(A)
and (B) are sufficient to implement standards. This is not a situation
where Congress ``makes an explicit provision for apples, oranges, and
bananas,'' and therefore was ``unlikely to have meant grapefruit.'' Id.
at 278, citations omitted. Rather, it is a situation where Congress
identified only a particular category to be excluded, and remained
silent on what should be included. In light of the Act's silence on the
waters that must be listed, EPA believes a reasonable interpretation is
to require all waters not meeting standards to be listed. This ensures
that such waters will have TMDLs developed if appropriate, and will
otherwise have their water quality problems identified, tracked, and
addressed.
Under this interpretation, each part of the list is authorized to
be required by the Act, since none of the categories include waters
expressly excluded by Congress. First, Part 1 includes those waters
that are not meeting standards in spite of required effluent
limitations, due to pollutants. Second, Part 2 also includes waters
that are not meeting standards in spite of required effluent
limitations, due to pollution where there is no pollutant causing or
contributing to the impairment. Third, Part 3 includes waters that are
not meeting standards in spite of required effluent limitations, where
a TMDL has been completed. Fourth, Part 4 includes waters that are not
meeting standards in spite of required effluent limitations, due to
pollutants, where TMDL development need not be immediately scheduled
because required controls on point and/or nonpoint sources are expected
to result in achievement of standards by the next listing cycle. Thus,
none of these categories include waters expressly excluded by Congress
in Section 303(d), and all include waters not meeting standards. In
light of the overall goals of the Act, EPA believes it is appropriate
to require these waters to be listed to help ensure that they will
ultimately meet standards.
EPA also disagrees that it lacks statutory authority in particular
for requiring listing of Part 2 waters. Some commenters who opposed
this provision argue that the reference to ``pollution'' in the second
sentence of section 303(d)(1)(A) refers to the consequence of
introducing pollutants rather than requiring the listing of waterbodies
impaired by pollution. EPA disagrees, and believes that its
interpretation of the statutory language is a reasonable one. EPA also
notes that it is not relying solely on the presence of the word
``pollution'' in the second sentence of section 303(d)(1)(A) to support
its authority to require listing of Part 2 waters. EPA's analysis of
section 303(d) to authorize listing of waters beyond those requiring
water quality-based effluent limitations is described above. The
presence of the word ``pollution'' is simply additional indication that
Congress did not intend to exclude Part 2 waters from the listing
requirement, and provides further support for EPA's authority to
require them to be listed. EPA believes that its interpretation of the
presence of the word ``pollution'' is reasonable and more consistent
with the goals of the Act than commenters' interpretation.
Finally, some commenters misconstrue statements EPA made in the
proposal. The commenters state that the proposal recognizes that the
reach of the section 303(d) list is co-extensive with the waters
requiring TMDLs, based on a statement in the proposal regarding
development of TMDLs for waters with nonpoint sources of pollutants.
However, this statement was made to explain that there is no express
exclusion of nonpoint source waters from section 303(d)(1)(A), and
therefore such waters are not automatically excluded from the
requirement to develop TMDLs. EPA's statement in the proposal was made
to explain why TMDLs are required for nonpoint source pollutants, and
was not an assertion that only waters that need TMDLs may be listed. In
fact, EPA also states clearly in the proposal that its interpretation
of the listing obligation is not limited to only those waters needing
TMDLs. See 64 FR 46022 (``While EPA interprets section 303(d) to
require identification of all waters not meeting water quality
standards * * * EPA interprets section 303(d) to require that TMDLs
only be established where a waterbody is impaired or threatened by a
pollutant.'')
The final regulations also clarify that when biological information
indicates that waterbodies are impaired but the pollutant is unknown,
these waterbodies should be placed on Part 1 of the list unless data
and information clearly indicate that pollution, not a pollutant, is
the cause of the impairment.
Waterbodies may be removed from Part 1 in several ways. If a TMDL
is established and approved by EPA, the waterbody may be moved to Part
3 of the list for the pollutant the TMDL addresses. In the absence of a
TMDL, if new data or information shows that the waterbody is meeting
the applicable water quality standard for a particular pollutant, the
waterbody may be
[[Page 43611]]
removed from the section 303(d) list for that pollutant.
EPA agrees with the commenters who suggested that information on
Parts 2, 3 and 4 could be submitted as part of the section 305(b)
report. The final regulations provide States, Territories and
authorized Tribes with the flexibility to submit their list in any of
three ways: as a stand alone list, as a clearly identified component of
the section 305(b) report or in two sections: Part 1 as a stand alone
list with Parts 2, 3 and 4 clearly identified in the section 305(b)
report. Regardless of which format the States choose, the information
must be consistent with the requirements of Secs. 130.22, 130.25,
130.26, 130.27, 130.28, and 130.29. EPA will review and approve or
disapprove all four parts of the list. When States, Territories or
authorized Tribes elect to submit all or part of their list as a
component of the section 305(b) report, it is only the information
required by Secs. 130.27 and 130.28 that is considered to be part of
the section 303(d) submittal. EPA recognizes that the section 305(b)
report includes information other than that required by Secs. 130.27
and 130.28; this additional information is not considered as part of
the section 303(d) list.
No matter which reporting format a State, Territory, or authorized
Tribe chooses, EPA will take action on the entire list (i.e., all four
parts). These two options are included for the sole purpose of
providing flexibility to those States that wish to coordinate their
section 305(b) reports with their section 303(d) lists. While joint
reporting of the section 305(b) report and the section 303(d) list is
not required, coordination of the two reports provides benefits for
States, Territories, and authorized Tribes willing to use this option.
These benefits include eliminating possible redundancy in monitoring,
assessing, and reporting on the condition of water quality for two
related CWA requirements. They also include using limited monitoring
resources more efficiently which may free resources to increase the
numbers of waterbodies assessed and improve the quality of the data
collected. Under the regulations, the most recent section 305(b) report
is considered to be existing and readily available information that a
State, Territory, or authorized Tribe must consider in assembling the
section 303(d) lists and the methodology must describe how the section
305(b) report will be considered in the listing process. EPA notes
that, even under the two options for the list format that allow for
full or partial consolidation with the section 305(b) report
submission, the regulations do not require that all waters identified
as not meeting standards on the section 305(b) report be included on
the section 303(d) list.
Finally, EPA is making a minor change to the proposed language of
Sec. 130.27(c) which would have required EPA and States to agree on the
georeferencing system used to identify the geographic location of the
impaired waterbodies. The final regulations require that States use
either the National Hydrography Database or subsequent revisions, which
is the system used by EPA and the U.S. Geological Survey or a
compatible system.
J. What Must the Prioritized Schedule for Submitting TMDLs to EPA
Contain? (Sec. 130.28)
What did EPA propose? In the proposal, EPA included proposed
Sec. 130.28 dealing with how States should prioritize the impaired
waterbodies on Part 1 of their list and proposed Sec. 130.31 which
would have required States to provide to EPA a schedule depicting when
TMDLs would be developed. Both the priority rankings and the schedule
would have had to be submitted to EPA at the same time as the list but
EPA proposed to only approve the list and priority ranking, not the
schedule.
In Sec. 130.28 EPA proposed that States, Territories, and
authorized Tribes would assign either a high, medium or low priority to
each waterbody and pollutant combination on Part 1 of the list. The
proposal would have required States, Territories and authorized Tribes
to consider in their priority ranking the two factors listed in section
303(d)(1) of the CWA, and the severity of the impairment and the
designated use of the waterbody, and also listed a number of proposed
optional factors. EPA further proposed that a high priority would have
to be assigned to impaired waterbodies designated for use as public
drinking water supplies, where the impairment was contributing to a
violation of an Maximum Contaminant Level (MCL), and for waterbodies
supporting a species listed as endangered or threatened under section 4
of the Endangered Species Act, unless the State, Territory, or
authorized Tribe could demonstrate that the impairment did not affect
the listed species. The proposal would have required States,
Territories, and authorized Tribes to provide EPA with an explanation
of how they had used the ranking factors in determining their
priorities.
Section 130.31 of the proposal would have eliminated the current
requirement that the listing submission include a list of the
waterbody/pollutant combinations scheduled for TMDL development in the
next two years. Instead, EPA proposed that States, Territories, and
authorized Tribes be required to submit with Part 1 of their list
comprehensive schedules for establishing TMDLs for all waterbody/
pollutant combinations on Part 1 of their list as expeditiously as
practicable and no later than 15 years after the initial listing with a
reasonably paced workload and generally in accordance with their
priority rankings. EPA also proposed to recommend, but not require,
that TMDLs for high priority waterbody/pollutant combinations be
established first.
What comments did EPA receive? EPA received a significant number of
comments specific to the proposed priority ranking requirements.
Several comments supported EPA's proposal, others, however, objected to
this provision, for one of two reasons. Some comments said EPA should
give States the flexibility to prioritize their waterbody/pollutant
combinations anyway they choose. Others objected to this provision
because of their opinion that a high, medium and low priority ranking
was insufficiently precise.
There were a wide variety of comments with regard to the factors
that should be employed in priority rankings of waterbody/pollutant
combinations. Some comments said that only the two factors cited in
section 303(d)(1) of the CWA--severity of impairment and uses of the
waterbody--should be considered. Other comments said these two factors
alone were too narrow to provide an adequate basis for ranking, and
called for a variety of other factors to be considered. Some said that
certain factors listed in EPA's proposed regulation--aesthetic,
cultural, historic--should not be considered at all in priority ranking
because they were not related to the goals and objectives of the CWA.
EPA received comments offering a variety of views on the issue of
whether or not to specify certain factors that would automatically put
a waterbody/pollutant combination in the high priority category. Some
supported this concept in general, while other comments opposed it.
Numerous comments objected to one or both of the two factors listed in
EPA's proposal--presence of threatened or endangered species or
contribution to a violation of an MCL in a waterbody designated for
public water supply use. The most frequently expressed concern about
the endangered species factor was the need to prove a negative (i.e. a
pollutant is not harming the listed species). The most common criticism
of the public
[[Page 43612]]
water supply ranking factor was that the EPA proposal seemed to be
applying the Safe Drinking Water Act MCL in the raw water supply,
rather than at the tap. Some comments, however, indicated that it was
imperative to consider such situations as high priority, regardless of
other, possibly mitigating, factors. Further comments suggested
additional factors that should merit automatic high priority ranking
for a waterbody/pollutant combination--waterbodies for which fish
consumption advisories had been issued were mentioned several times in
this regard.
EPA received numerous comments on the issue of schedules for TMDL
establishment. Some comments supported retaining the existing
regulatory requirement. Some comments said States should not have to
provide any schedule for TMDL establishment while others supported the
proposal. Several comments said that schedules laid out under a State's
rotating basin/watershed approach, rather than priorities put forth in
the proposal, should be the primary determinant of the schedule for
TMDL development. Commenters were split on the issue of EPA review and
approval of the schedule. A substantial number of comments said States
should not get locked into the comprehensive 15 year schedules they
would initially submit, and should be able to modify the schedules over
time, to adjust to new information and changing circumstances. Some
comments said that after the initial listing of a waterbody and
pollutant combination, 15 years was a reasonable maximum time for TMDL
establishment. On the other hand, quite a few comments said 15 years
was far too long a period and recommended considerably shorter
timelines for TMDL establishment. Still others said that 15 years might
not be enough time for establishing certain types of TMDLs,
particularly ones involving high degrees of complexity or difficult-to-
address issues such as air deposition or legacy pollutants.
What is EPA promulgating today? Having considered the comments
received on the proposal's provisions on priority ranking (Sec. 130.28)
and scheduling (Sec. 130.31), EPA is promulgating a rule that requires
States, Territories and authorized Tribes to develop and submit a
prioritized schedule. This approach combines the two proposed
provisions into one, Sec. 130.28 of today's rule, entitled ``What must
your prioritized schedule for submitting TMDLs to EPA contain?'' EPA is
not promulgating the proposed requirement that waterbody/pollutant
combinations be categorized into high, medium, and low priorities.
Rather, today's rule requires that Part 1 of the list include a
prioritized schedule for establishing TMDLs on Part 1 of the list. This
change recognizes the close connection between prioritizing and
scheduling waterbodies for TMDL development. Schedules are considered
part of the list and subject to EPA review and approval.
Section 303(d) requires States to ``establish a priority ranking''
for the waters it identifies on the list, taking into account the
severity of the pollution and the uses to be made of such waters, and
to develop TMDLs ``in accordance with the priority ranking.'' To
implement this provision, EPA is requiring States, Territories and
authorized Tribes to develop a schedule for TMDL establishment that
identifies when each TMDL will be completed. In developing the
schedule, States, Territories and authorized Tribes will need to decide
which TMDLs are higher priority than others, taking into account the
statutory factors identified above, as well as other relevant factors
described in the regulations. EPA is not requiring States, Territories
or authorized Tribes to specifically identify each TMDL as high, medium
or low priority, since the scheduling process will require that each
TMDL be ranked in priority order by date of development rather than by
categorization as high, medium or low priority. The statute does not
prescribe a particular method of establishing a priority ranking, and
EPA believes that prioritizing by developing a schedule is a
reasonable, efficient way to do this.
In particular, the schedule is preferable to simply requiring that
waterbodies be categorized as high, medium or low priority, since it
identifies a specific time frame within which the public can expect
each TMDL to be developed, and thus better enables public participation
in TMDL development because citizens can anticipate when work will
happen on a particular TMDL that is of interest to them. Categorization
would not necessarily inform the public when specific TMDLs are to be
developed, but rather simply identifies which TMDLs the State,
Territory, or authorized Tribe believes should be done first. In
addition, requiring a prioritized schedule rather than categorization
plus a schedule eliminates a step in the process that EPA believes is
unnecessary and adds little value to the list. Once a schedule is
developed, whether a State, Territory, or authorized Tribe believes a
particular TMDL is of high, medium or low priority is unimportant and
the relative priority of each TMDL will be apparent based on whether it
is to be developed early or late in the schedule. The public will be
able to comment on the time frame in which the State, Territory, or
authorized Tribe intends to develop each TMDL. In this way the schedule
provides the public better information on the State's, Territory's, or
authorized Tribe's priority ranking for TMDL development than simply
identifying waterbodies as high, medium, or low priority. Requiring a
prioritized schedule eliminates the need for such categorization.
In today's rule, EPA is modifying the proposed regulations to
require that the prioritized schedule for TMDL development be submitted
as part of the section 303(d) list for EPA approval or disapproval.
This approach is consistent with section 303(d) of the Act, which
requires States, Territories, and authorized Tribes to both identify
waters and establish a priority ranking for the identified waters as
the first step in the process that is ultimately intended to result in
the attainment of water quality standards. While the Act does not
explicitly require EPA to approve or disapprove the priority ranking as
part of the list submission, EPA believes that doing so is a reasonable
exercise of its discretion to ensure that the goals of section 303(d)
are achieved, consistent with EPA's authority under section 501(a) to
adopt regulations necessary to carry out its functions under the Act.
The priority ranking, embodied in the prioritized schedule required by
today's regulations, is an essential step between the identification of
waters and the development of TMDLs for waters that need them. The
prioritized schedule ensures that TMDLs are developed at a reasonable,
even pace and that the statutory factors (severity of pollution and
uses to be made of the waters) are considered in deciding when
particular TMDLs will be developed. Thus, because of the critical
importance of the prioritized schedule in the overall section 303(d)
process, EPA believes it needs to ensure that a State's, Territory's,
or authorized Tribe's schedules are reasonable and consistent with the
Act by reviewing and approving or disapproving the schedules as part of
the list submissions, and establishing schedules in the event of a
disapproval or a failure by the State, Territory, or authorized Tribe
to do so.
For the sake of clarity the following discussion follows the
structure of 130.28.
[[Page 43613]]
Expeditious Schedules (Sec. 130.28(b))
EPA is revising the proposal to require that establishment of TMDLs
be evenly paced and as expeditious as practicable. In addition, States
should schedule TMDLs no later than 10 years from July 11, 2000 or the
initial listing date, which ever is later. The rule also provides that
the schedule for specific TMDLs can be extended for an additional 5
years if a State, Territory, or authorized Tribe explains to EPA that
the shorter schedule is not practicable.
EPA is shortening the proposed 15-year schedule to a requirement
that the schedule be as expeditious as practicable and evenly paced,
and that it should generally not extend beyond 10 years. As pointed out
by many commenters, a ten year schedule is consistent with current EPA
policy. See ``New Policies for Establishing and Implementing Total
Maximum Daily Loads,'' August 8, 1997. As stated in the 1997 policy
memorandum, EPA was to work with States to help schedule TMDL
establishment within 13 years, i.e., by 2010. EPA believes that some
States, Territories, or authorized Tribes can complete the TMDL
development within 10 years, as evidenced by some current State
schedules and by increased resources devoted to TMDL programs in many
States as well as available through increased Federal funding.
Currently, 46 States are developing TMDLs based on schedules of 13
years or less, 20 of which are developing TMDLs based on a 10-year
schedule. Further, EPA believes that making this change is reasonable
since the regulations also provide that the schedule can be extended up
to an additional 5 years for a total of 15 years if the State,
Territory, or authorized Tribe explains that it needs the additional
time to complete the task.
A State, Territory, or authorized Tribe would need to explain why a
10-year schedule is not practicable. For example, a State, Territory,
or authorized Tribe could show that, despite working expeditiously,
given the number of TMDLs that are required, they will require more
than 10 years to complete all TMDLs. The State, Territory, or
authorized Tribe could also show that the complexity of one or more
TMDLs might require more time to collect information to quantify
loadings from sources or to secure commitments for loading reductions
for sources outside the State, Territory, or authorized Tribe. In these
cases, the State, Territory, or authorized Tribe may schedule some
TMDLs within an additional five years.
By changing ``reasonably paced'' to ``evenly paced'', EPA intends
that States, Territories, and authorized Tribes must schedule TMDL
development in a way that reflects a generally even pace in
establishing TMDLs over the length of the schedule. EPA recognizes that
States, Territories and authorized Tribes will have valid reasons for
establishing more TMDLs in some years and fewer TMDLs is other years.
This may occur due to the varying degree of complexity and efficiencies
which pertain to TMDL development in different watersheds in a State,
Territory, or authorized Tribe. However, the general trend and pace of
TMDL establishment across the schedule, after allowing for
understandable year-to-year variation, should, with some exceptions, be
generally even. While current schedules appropriately account for the
ramp-up period needed for monitoring and other preliminary activities,
EPA believes by April 2002 (when new schedules are required) that
States, Territories, and authorized Tribes should be in a position to
schedule TMDL development on a more even pace. Of course, application
of this general requirement must account for additional time that may
be needed to develop particularly complex or data-intensive TMDLs. In
those cases, establishment of a smaller number of TMDLs may be
justified. Similarly, the number of TMDLs may be larger in a year in
which a State, Territory, or authorized Tribe concentrates on
waterbodies for which a substantial amount of information has already
been gathered.
The proposed approach, which would have required TMDLs to be
established as expeditiously as practicable but no later than 15 years
from the time the waterbodies were listed on Part 1, could have led to
the unintended result that TMDLs for waterbodies included on Part 4
would be delayed if the waterbody was later moved to Part 1. EPA
believes that TMDLs for waters included on Part 4, where enforceable
controls ultimately fail to result in attainment of standard by the
next listing cycle, should not be unnecessarily delayed. The addition
of a Part 4 of the list was not intended to encourage or allow for such
delay. In addition, it is reasonable to expect TMDLs for such
waterbodies to be developed within 10 years (or up to 15 years, for
certain TMDLs, as described above) of initial listing on any part of
the list, since States, Territories, or authorized Tribes will be
keeping track of progress on Part 4 waters to determine how well the
enforceable controls are working and should be able to use this
information to develop TMDLs for such waters well within the timeframe
required by today's regulations.
The final rule also clarifies that the provision that States,
Territories, and authorized Tribes should generally schedule all TMDLs
no later than 10 years (with a possible 5 year extension) from the
later of July 11, 2000 or the date of initial listing of the waterbody/
pollutant combination on a section 303(d) list applies to waterbodies
on a section 303(d) list prior to today's action. Thus, TMDLs for
waterbodies that appeared on a section 303(d) list prior to today's
action would need to be established no later than July 11, 2010, unless
the schedule is extended as described above. This avoids unreasonably
short deadlines for TMDL establishment for States, Territories, and
authorized Tribes which happened to have listed a substantial portion
of their impaired waters well before the promulgation of this rule. EPA
believes it is appropriate to use the July 11, 2000 (i.e., the date of
signature of today's action) as the baseline date for the 10-year
schedule provision since States, Territories, or authorized Tribes have
not been, until now, required by regulation to identify schedules for
TMDL development other than specifying TMDLs that will be developed in
the next 2 years. While States, Territories, or authorized Tribes
should have schedules at this time in response to a request from EPA
(``New Policies for Establishing and Implementing Total Maximum Daily
Loads,'' August 8, 1997), in light of the new requirements in today's
rule, States, Territories, or authorized Tribes should have an
opportunity to reassess their TMDL development obligations and develop
an appropriate schedule. Requiring TMDLs to be scheduled 10 years from
the original listing could penalize States who had established
comprehensive lists by 1992 by allowing them less time to complete
TMDLs than those States, Territories, or authorized Tribes that more
recently developed more comprehensive lists.
Identification of TMDLs to be Established (Sec. 130.28(c))
Today's rule provides more specificity regarding the minimum level
of detail required in schedules for establishment of TMDLs than did the
proposal. Today's rule requires States, Territories, and authorized
Tribes to indicate in their schedule which specific TMDLs will be
completed in each year of the schedule. EPA has chosen to require
scheduling of TMDLs in year blocks to
[[Page 43614]]
provide sufficient detail to allow all those involved in TMDL
development to plan for the workload involved at various points in
time. States, Territories, and authorized Tribes can change the order
of TMDL establishment within any year period without consulting with
EPA or seeking EPA approval. EPA will approve schedules if they reflect
the priority factors and timeframes outlined in the rule. The schedules
must also demonstrate that establishment of TMDLs is as expeditious as
practicable and evenly paced over the duration of the schedule.
EPA realizes that it is possible that States, Territories, and
authorized Tribes will not be able to meet even this less precise
schedule for each and every TMDL they must establish, and expects that
States, Territories, and authorized Tribes will need to avail
themselves of the opportunity to adjust schedules for TMDL
establishment to reflect new information and other changing
circumstances, and that such adjustments will be reflected in each
subsequent list submitted on April 1 every fourth year. As long as
States, Territories, and authorized Tribes establish each TMDL on Part
1 of their list as expeditiously as practicable and the revised list
reflects even pacing of the overall TMDL establishment task, within the
timeframes specified in the regulations, taking the required factors
into account, EPA will approve such schedule modifications without
requiring that the entire schedule be revised.
When a State, Territory, or authorized Tribe must develop multiple
TMDLs within a watershed, EPA encourages the State, Territory, or
authorized Tribe to schedule the TMDLs to be established at roughly the
same time. This coordinated approach makes use of any efficiencies in
coordinating monitoring, water quality analyses, implementation and
public participation. It also helps integrate the establishment of
TMDLs with the use of rotating basin or watershed approaches for
restoring water quality. EPA is encouraging States, Territories and
authorized Tribes to use a coordinated approach by making it one of the
factors that may be considered and by including in the final rule
language that explicitly recommends that States, Territories and
authorized Tribes use this approach.
Priority Factors (Sec. 130.28(d), (e) (f))
The final rule incorporates the prioritizing scheme of the proposal
into the final requirements for a prioritized list. The final rule
retains the concept that the statutory factors of severity of
impairment and designated use of the waterbody should form the basis
for prioritizing waterbodies. In addition, the final rule requires
States, Territories, and authorized Tribes to consider drinking water
uses and presence of a threatened or endangered species as higher
priorities. However, the final rule does not require that an impairment
at a public drinking water supply or the presence of threatened or
endangered species be an automatic high priority for TMDL
establishment. Rather, the State, Territory, or authorized Tribe may
give waterbodies with these two factors present a lower priority (i.e.,
a later date for TMDL development) if the State, Territory, or
authorized Tribe explains why this is appropriate. As another example,
biological information might be available to allow a State, Territory,
or authorized Tribe to show that other factors are the stressors to the
threatened or endangered species.
Also, EPA is not including in today's rule the proposed language
that strongly encouraged States, Territories, and authorized Tribes to
establish all TMDLs for high priority waterbody/pollutant combinations
before completing TMDLs for medium or low priority combinations. These
provisions have become moot because today's final rule does not include
a requirement for ranking each waterbody/pollutant combination as
either high, medium or low priority. Rather, a date must be specified
for TMDL development for each waterbody/pollutant combination on Part
1. Thus, rather than grouping each TMDL into one of 3 categories of
priority States will rank each TMDL according to the most appropriate
time frame for its establishment taking into account the factors
described in this section. EPA believes that the prioritized schedules
submitted by States, Territories and authorized Tribes, along with the
explanations of how various factors were utilized in the development of
such schedules, will serve the same purpose as the provisions it
eliminated.
K. Can the List be Modified? (Sec. 130.29)
What did EPA propose? EPA proposed at Sec. 130.29 to adopt the FACA
Committee's recommendations that waterbodies should remain listed until
water quality standards were attained, and that a previously listed
impaired or threatened waterbody could be removed from the list at the
time of the next list only when new data or information indicated that
the waterbody has attained water quality standards.
What comments did EPA receive? Many commenters supported the
regulations as proposed. Several commenters strongly encouraged EPA to
allow for immediate removal of waterbodies that met the de-listing
requirement (i.e. in the interim period between listing cycles)
especially if the Agency decided to promulgate a four or five year
cycle for the listing requirement. This reflected a concern that
waterbodies that were not impaired would remain on the lists for
several years, leaving the public with an incorrect impression about
the condition of the waterbody. There was also a fear that States,
Territories, and authorized Tribes would elect to, or be forced to,
move ahead with development of TMDLs for such waters, even though they
were no longer needed. A number of commenters suggested that the
information requirements for removing a waterbody from the section
303(d) list should be no more rigorous than the requirements for
listing a waterbody. Other commenters suggested that States,
Territories, and authorized Tribes should be able to add some
waterbodies between the times when the full lists are required.
Commenters also asked that the regulations specify that the methodology
and public participation requirements should apply to delisting.
Finally, several commenters reiterated that waterbodies should not be
removed from the section 303(d) list just because a point or nonpoint
source control measure was implemented but had to remain listed until
water quality standards were met.
What is EPA promulgating today? EPA generally agrees with the
comments it received on this section. EPA agrees that States should be
able to remove waterbodies from a list at times other than those when
full lists must be submitted to EPA. This is consistent with section
303(d) which requires States, Territories, and authorized Tribes to
submit lists of waters ``from time to time.'' EPA has previously
interpreted section 303(d) to allow removal of waterbodies that attain
water quality standards at times other than when they make their
biennial list submissions. See ``Guidance for 1994 Section 303(d)
Lists,'' November 26, 1993. By extension, EPA believes that the same
flexibility should be provided for adding waterbodies to the list.
Therefore EPA has reshaped this section in the final regulation to
cover modifications of the list (i.e. listings, delistings and changes
to the prioritized schedules). These provisions regarding modifications
to the list at times other than required list submissions do not alter
what is permitted under the pre-existing regulations. EPA is simply
[[Page 43615]]
adding regulatory language to clarify that States may modify their
lists at times other than required submissions and to clarify the
procedure for doing so. EPA is maintaining the proposed requirements
that waterbodies must remain on the list until water quality standards
are attained.
EPA is also adding a Sec. 130.29(e) which specifies that changes to
the schedule for TMDLs which the State, Territory, or authorized Tribe
make must be considered a modification of the list if they involve
rescheduling establishment of a TMDL from one year to another. Changes
to the list are subject to EPA review and approval/disapproval. EPA
notes that these modifications to the list may be time consuming and
expects that States, Territories, and authorized Tribes will use these
provisions no more than once a year, mostly to remove waterbodies which
have attained water quality standards from the list.
EPA is adopting regulatory language to clarify the specific
requirements that apply when a State, Territory, or authorized Tribe
modifies its list in between required list submissions. First, the
regulations provide that the scope of public notice and opportunity for
comment on the modification shall be limited to the waterbodies and
issues raised by the modification. For example, if the State,
Territory, or authorized Tribe develops a draft list modification that
removes certain waterbodies based on new information collected since
the prior list submission, the public notice and the opportunity for
comments would be limited to those particular waters and the water-
quality related data the State, Territory, or authorized Tribe believes
warrants removal from the list. Neither the State, Territory, or
authorized Tribe nor EPA would be obligated to address comments on the
remainder of the list or other unrelated waters. As another example, if
the State, Territory, or authorized Tribe proposes to add or remove
certain waterbodies based on a change to the methodology used in the
prior list, the public notice and opportunity for comments would be
limited to such change and to any waterbodies affected by it. Neither
the State, Territory, or authorized Tribe nor EPA would be obligated to
address comments on other aspects of the methodology or other
unaffected waters.
When submitting list modifications, the same provisions apply to
removal of waterbodies as for required list submissions. A State,
Territory, or authorized Tribe may remove a listed waterbody only if
new water-quality related data or information indicates it is attaining
and maintaining applicable water quality standards. A State, Territory,
or authorized Tribe may add a waterbody to the list if there is data or
information showing it is impaired. When developing a list
modification, the State, Territory, or authorized Tribe must satisfy
the same public process requirements that apply to required list
submissions--the State, Territory, or authorized Tribe must provide
adequate notice to the public of the draft list modification, must
provide at least 60 days for public comments on the modification, and
must address relevant comments in its submission of the modification to
EPA.
However, EPA is not requiring prior submission of a methodology for
each list modification. Because the methodology is generally required
to be submitted at least two years before required list submissions
(after allowing the public an opportunity to comment), EPA believes it
would be overly burdensome to require submission of the methodology for
each list modification, and would undercut the purpose of the
modification provision, i.e., to allow States, Territories and
authorized Tribes to more easily make appropriate changes in their
lists in between required submissions. Thus, States, Territories and
authorized Tribes are not required to submit a methodology for the
modification prior to the submission of the modification. EPA expects
that in most cases the State, Territory, or authorized Tribe will use
the same methodology used in the most recent required list submission
for modifications. However, where the modification includes a change to
the methodology, EPA expects that the modification provided to EPA will
identify and explain such change so that EPA can consider it in its
review of and action on the modification. In addition, when providing
public notice of a modification that includes a change to the pre-
existing methodology, the State, Territory, or authorized Tribe would
need to identify and explain such change to the public since it would
be the basis for resulting additions to or removals from the list.
EPA is including a provision in the regulations clarifying that a
State's, Territory's, or authorized Tribe's revisions to their
prioritized schedules must be considered modifications to the list and
submitted to EPA as such. This is consistent with the definition of the
list to include both the identification of waters and pollutants and
the prioritized schedule for TMDL development. Revisions to the
schedule would include moving any TMDL from any one-year period to
another, and must be based on new information in accordance with the
priority ranking. Thus, for example, a State, Territory, or authorized
Tribe may receive new information regarding newly found sources of
pollutants in a particular year and may decide on that basis to move
certain TMDLs earlier or later in the schedule. Similarly, the State,
Territory, or authorized Tribe may become aware that water-quality
related data relevant to development of a particular TMDL will be
available earlier than expected, and may therefore decide to move that
TMDL earlier in the schedule. In either case, the State, Territory, or
authorized Tribe must constrain the modification such that it
establishes at least the same number of TMDLs in the first four year
period. This requirement serves to ensure that the State, Territory, or
authorized Tribe establish TMDLs at an even pace. EPA will review
revisions to the schedule to determine if they are consistent with the
regulatory provisions governing development of the prioritized
schedule, and will approve or disapprove them as appropriate.
Some waterbodies are listed by States, Territories, and authorized
Tribes for multiple impairments. When a State, Territory, or authorized
Tribe has new water-quality related data or information showing that a
waterbody attains water quality standards, it may be for only some of
the pollutants causing the impairment. In this instance, the States,
Territories, and authorized Tribes may remove only those pollutants
from the list that no longer cause impairment, but cannot remove the
waterbody itself until it has new water-quality related data or
information showing that the waterbody attains water quality standards
for all the impairments that caused the listing.
EPA interprets ``new water-quality related data or information'' to
include new water quality data or water quality modeling information
that supplements water quality data. EPA also interprets ``new data or
information'' to include such instances as when the State, Territory,
and authorized Tribe has revised the applicable water quality standard
consistent with Part 131, EPA has approved that standard, and existing
water quality data shows that the waterbody attains the new water
quality standard. EPA also interprets ``new data or information'' to
include where the State, Territory, and authorized Tribe can show that
the existing data actually showed that the water quality standards were
attained and that the waterbody was listed in error due to a
transcription, typographical, or some other clerical error. Therefore,
``new'' is not limited to data or information
[[Page 43616]]
collected after listing. The intent of the new requirement is to ensure
that listed waterbodies (or pollutants) are not removed in the absence
of data or information indicating attainment of water quality
standards.
EPA does not interpret ``new data or information'' to allow removal
of a waterbody (or pollutant) in instances where a State, Territory,
and authorized Tribe disputes the quality of the information or
reinterprets the same information that it previously used to list a
water on the section 303(d) list and concludes the data or information
did not support a finding of impairment. EPA is not suggesting that
States, Territories, and authorized Tribes use poor quality data to
support listing waterbodies on the section 303(d) list. Rather, in the
absence of data or information supporting a determination that a
waterbody is attaining water quality standards, a waterbody should not
be removed from the list. The one exception that would allow removal
would be a waterbody that was listed incorrectly. EPA recognized this
possible situation in the August 23, 1999, proposal. (64 FR 46024,
August 23, 1999). EPA intended this to cover situations where a water
was listed due to an error such as a transcription or typographical
error, not a re-evaluation of data on which the waterbody was
originally listed. EPA will consider State, Territories and authorized
Tribes methodologies in approving or disapproving lists but it is not
obliged to approve decisions simply because they are consistent with
the methodologies.
Finally, EPA is adding Sec. 130.29(g) to allow EPA to modify a list
consistent with the provisions of paragraph (c), (d), and (e) of this
section. As described in today's preamble, EPA at times may be required
to establish a TMDL. In the course of developing the TMDL, EPA may find
new information that shows that the waterbody should not be listed on
Part 1 of the list and a TMDL is not necessary. For example, EPA could
find that, based on new data or information, the waterbody is attaining
and maintaining the applicable water quality standards. This is the
criterion that allows a State, Territory, or authorized Tribe to remove
the waterbody/pollutant combination from the list. In this situation,
the waterbody is not required to be listed and no TMDL is required. EPA
could also find that, for waterbodies listed on the basis of biological
information, the cause of the impairment is not a pollutant or
pollutants, but rather some attribute of pollution. In this situation,
the waterbody belongs on Part 2 of the list and no TMDL is required.
In examples such as these, there is no merit in developing a TMDL;
yet in the absence of this new provision, the requirements of today's
rule would have EPA establish the TMDL. For this reason, EPA believes
it should have the same authority to modify a section 303(d) list to
remove a waterbody/pollutant combination, in accordance with the same
requirements that pertain to States, Territories, and authorized
Tribes.
L. When Must the List of Impaired Waterbodies be Submitted to EPA and
What Will EPA do With it? (Sec. 130.30)
What did EPA propose? EPA proposed that States, Territories, and
approved Tribes would be required to submit their list of threatened
and impaired waterbodies and the priority rankings of waterbody and
pollutant combinations to EPA by October 1 at regular intervals. EPA
noted that it was considering ranges of two, four or five years, for
these intervals beginning with the year 2000. EPA proposed to maintain
the current requirement that EPA review and either approve or
disapprove a submitted list within 30 days of receipt. EPA also
proposed to require States, Territories, and authorized Tribes to
incorporate approved lists of impaired waterbodies in Water Quality
Management Plans. Finally, EPA proposed to codify in the regulations
its authority to establish lists for States, Territories, or authorized
Tribes which do not.
What comments did EPA receive? The issue of how frequently States,
Territories, and authorized Tribes should submit lists of impaired
waters, priority rankings and schedules, was the subject of numerous
comments. Regarding the frequency of submission of lists, priority
rankings and schedules for TMDL establishment, five years was the most
commonly supported period, with four years getting a large number of
supporters. Retaining the current two year cycle also received a
substantial amount of support.
Those supporting a longer listing cycle (more than two years)
provided a variety of reasons for their position. A large number of
commenters believed that a two year cycle forced States, Territories,
and authorized Tribes to spend too much time preparing listing reports,
thereby diverting limited resources away from developing and
implementing TMDLs. Nearly as many commenters indicated that a longer
cycle would enable States, Territories, and authorized Tribes to do a
better job of assembling and interpreting data regarding the condition
of waterbodies. Others observed that it is unusual for the condition of
a waterbody to change measurably in just two years, and having to
prepare a report saying ``no change'' was not a wise use of resources.
Some commenters thought that longer cycles would encourage efforts to
implement pollution controls and thereby prevent waters from going on
the list (or at least Part 1) in the first place.
Those supporting a five-year cycle noted the correlation with the
five year term of NPDES permits and the five-year cycle employed by
most States that have adopted the watershed/rotating basin approach.
Those supporting a four-year schedule noted that this would correspond
to every second section 305(b) report submitted by States, Territories,
and authorized Tribes. On the other hand, some supporters of longer
cycles called for establishment of interim milestones such as water
quality monitoring or source identification, during the cycle, to
ensure adequate funding and budgeting by States, Territories, and
authorized Tribes.
Those supporting retention of the current two-year cycle offered a
number of reasons in support of their position. Numerous commenters
feared that longer listing cycles would serve to delay the date by
which TMDLs were established for some waterbodies, which in turn would
delay the date on which water quality standards were attained. For
example, commenters were worried that lengthening the listing cycle
would result in more waterbodies being placed on Part 4 of the list,
and such waterbodies staying on Part 4 longer, yet ultimately failing
to meet water quality standards by the next listing cycle, and still
needing TMDLs. Quite a few comments said the public needed more
frequent, not less frequent, reports on which waters were impaired.
Comments were split with regard to whether April 1 or October 1 of
the ``listing year'' should be the deadline for submission of the
section 303(d) lists. Those favoring April 1 believed that having
concurrent deadlines for the section 305(b) reports and the section
303(d) lists would reduce duplication of effort on the part of States,
Territories, and authorized Tribes. Those favoring October 1 believed
that it would be beneficial to have several months after the due date
for the section 305(b) report to perform additional analysis needed for
completing the section 303(d) report. EPA also received comments
recommending against incorporation of approved lists of impaired waters
in Water Quality Management Plans. These comments
[[Page 43617]]
expressed concern about the volume of information included in these
plans.
What is EPA promulgating today? EPA is today promulgating the
requirement that States, Territories, and authorized Tribes submit
their lists of impaired waters including prioritized schedules by April
1 of every fourth year, starting in 2002.
EPA decided upon a longer listing cycle because of the reduction in
reporting burdens, opportunity for more complete data gathering and
analysis, and greater likelihood of observing changes in the condition
of waters between listings. Concerns about improperly-listed waters
later found to be meeting standards remaining on lists for nearly four
years have been addressed by clarifying that there is an opportunity
for States, Territories, and authorized Tribes to make modifications to
their list as provided by Sec. 130.29 discussed above.
EPA believes that the public will receive adequate updates
regarding the condition of the nation's waters through the biennial
section 305(b) reports that States, Territories, and authorized Tribes
must submit according to the CWA. Though EPA recognizes that in the
future, some TMDLs may be established a couple years later than would
have been the case with a two-year listing cycle because they will be
listed every four years rather than every two years, this decision has
no impact on TMDLs already listed which must be established on the
schedule required by today's rule.
EPA has selected a four-year listing cycle, as opposed to a five-
year cycle because it believes that coordination between section 303(d)
lists and section 305(b) reports provides significant efficiencies.
States, Territories, and authorized Tribes will continue to be able to
make use of their section 305(b) reports when they develop their
section 303(d) lists. There should still be ample opportunity to
coordinate between the section 303(d) listing process and the
monitoring and implementation activities performed as part of a five-
year watershed/rotating basin strategy. In a five-year watershed or
rotating basin strategy, a State, Territory, or authorized Tribe
identifies a process of collecting information, assessing the
information, determining the watershed-wide loading requirements, and
implementing those requirements. At any time during this five-year
cycle, a State, Territory, or authorized Tribe can develop a list of
impaired waterbodies for its jurisdiction based on the existing and
readily available information it has collected. The State, Territory,
or authorized Tribe can then develop a schedule for TMDLs that is in
synchronization with the anticipated development of watershed-wide
requirements in its five-year rotating basin plan. In this way, a
State, Territory, or authorized Tribe can continue to address pollution
problems in a five-year rotating basin cycle while fulfilling its
obligations to develop lists of impaired waterbodies every four years.
After careful consideration of the comments and other relevant
factors, EPA has decided that April 1 would be the best deadline for
submission of the section 303(d) list. Since today's promulgation
provides the opportunity for combining the section 303(d) list and the
section 305(b) report, it seems logical to make the deadline for both
of these reports fall on the same day of the year. By requiring section
303(d) lists to be submitted every four years, rather than every two
years as previously required, EPA intends to provide States,
Territories, and authorized Tribes with ample time to analyze data
specifically relevant to section 303(d) listing, and therefore, does
not believe that having the section 303(d) list due on the same day of
the year as the section 305(b) report will pose additional burdens. In
addition, this date is the same date as under the pre-existing rules
(Sec. 130.7).
EPA has decided to retain the proposed requirement that States,
Territories, and authorized Tribes incorporate the approved lists of
impaired waterbodies in the Water Quality Management Plans. EPA
recognizes the volume of information that the lists will include.
Nevertheless, EPA believes the public needs to be able to find the
lists of impaired waterbodies, and the Water Quality Management Plans
is a logical place to find this information. A State, Territory, or
authorized Tribe can satisfy this requirement by either incorporating
the actual list on waters with the other parts of the Water Quality
Management Plan, or by incorporating the list by reference.
Furthermore, as stated in Sec. 130.51(b), the Water Quality Management
Plans are used to direct implementation. By requiring that the approved
lists of impaired waterbodies are incorporated into the Water Quality
Management Plans, EPA believes this is an efficient connection between
the targets for implementation (impaired waters) and the implementation
procedures. This is particularly useful for the Part 2 waterbodies
where States, Territories, and authorized Tribes will need to
incorporate in the Water Quality Management Plan implementation
procedures to address pollution not associated with pollutants.
Finally, EPA interprets section 303(d) as requiring that States,
Territories, and authorized Tribes include the lists into their Water
Quality Management Plans.
When a State, Territory, or authorized Tribe submits a list or
modification to a list to EPA, EPA will approve it if it meets the
applicable requirements. EPA will consider public comment on the list
and may modify the list to assure that it complies with the regulations
of Part 130. If a State, Territory, or authorized Tribe does not submit
a list on time EPA will use its authority to establish the list for the
State, Territory, or authorized Tribe. In response to comments, EPA has
clarified which sections of subpart C it will use in reviewing the
lists, and what actions EPA is obligated to take in its decisions.
Therefore, the final rule uses the word ``must'' to represent EPA's
statutory obligations to either approve or disapprove and establish a
section 303(d) list of impaired waterbodies, and to establish a list
for any State, Territory, or authorized Tribe that does not do so by
April 1 of every fourth year.
Finally, EPA includes a statement in today's rule that EPA may
establish a list of waterbodies that do not attain and maintain Federal
water quality standards. EPA recognizes that there are some impaired
waterbodies outside the jurisdiction of States, Territories, and
authorized Tribes. Where EPA has established Federal water quality
standards for these waters, EPA believes it clearly has the authority
to list impaired waterbodies. These waterbodies are generally inside
Indian Country where the Tribe is not authorized to implement section
303(d) or in Federal ocean waters.
M. Must TMDLs be Established? (Sec. 130.31)
What did EPA propose? EPA proposed that TMDLs be established for
all waterbody and pollutant combinations listed on Part 1 of the list,
but did not propose to require TMDLs for waterbody and pollutant
combinations listed on Parts 2, 3, or 4 of the list. In addition, EPA
proposed that States, Territories, and authorized Tribes establish
TMDLs in accordance with the priority rankings required by proposed
Sec. 130.28. Finally, EPA proposed allowing States, Territories and
authorized Tribes to establish TMDLs in a different order than provided
by the most recently submitted schedule as long as the TMDLs were
established in a manner consistent with the overall requirements of
proposed Sec. 130.31(a)(1) through (a)(3). EPA explained that it was
planning to
[[Page 43618]]
consider the extent to which a State, Territory, or authorized Tribe
had not or was not likely to meet its schedule for establishing TMDLs
when making a decision to step in and establish TMDLs for the State,
Territory, or authorized Tribe. (64 FR 46037, August 23, 1999).
What comments did EPA receive? EPA received many comments specific
to this section. Some commenters reiterated their concerns about the
four-part list. Other commenters pointed to inconsistencies between
proposed Secs. 130.32(b), 130.32(c), and 130.31(a)(3) and the need for
more flexibility to establish TMDLs out of the planned sequence. Some
commenters expressed the view that EPA should allow States to use
existing programs that achieve the same results as a TMDL instead of
requiring a TMDL for all Part 1 waterbodies. Other commenters inquired
as to the requirements for ``informational TMDLs'' under section
303(d)(3).
EPA also received many comments regarding the issues of pollutants
which might not be suitable for TMDL calculations. A number of
commenters put forth the position that TMDLs were appropriate for all
situations, and that EPA should not allow exemptions for technically
complex impairments under any circumstances. EPA received a number of
comments suggesting that the establishment of TMDLs for certain
impairments resulting from atmospheric deposition (e.g. mercury and
nitrogen) was not feasible because of a lack of appropriate technical
tools (e.g. data, models), and therefore, EPA should exempt these
waterbodies from the list. Similarly, several commenters stated that
TMDLs for extremely difficult to solve problems (e.g. contaminated
sediments) should also be exempt from TMDL establishment, or at least
deferred until such time that the tools and data were available. Other
commenters expressed a position that EPA had failed to meet its
statutory duty under 304(a)(2)(D) to provide guidance on how to
determine for which pollutants technical conditions exist to establish
a TMDL. Therefore, these commenters felt that the States, Territories
and authorized Tribes should be given maximum deference to make this
determination for themselves, especially for toxics. A number of
commenters suggested that a new part 5 of the list be established to
accommodate impairments where the technical conditions were such that
TMDLs could not be established until advances in data and models were
made. A number of comments suggested that EPA should include the
statutory language that recognizes that some pollutants may not be
suitable for TMDL calculations. Some comments made specific
recommendations that EPA should now determine that flow, biological
criteria, temperature, sediment, any interpretation of narrative
criteria, whole effluent toxicity, sediment toxicity, legacy
pollutants, any pollutant originating from nonpoint sources or
atmospheric deposition, mercury, and any pollutant found in an
ephemeral stream are not suitable for TMDL calculation. A few comments
suggested that TMDLs should be required for stream flow for legal and
policy reasons.
What is EPA promulgating today? Based on its analysis of the many
comments received on this section, EPA has made four changes to the
proposed rule language. First, EPA is requiring in final Sec. 130.31(a)
that States, Territories, and authorized Tribes submit the TMDLs they
establish to EPA. EPA made this change because although Sec. 130.35 of
the proposed rule addressed EPA's review of TMDLs submitted by States,
Territories, and authorized Tribes, the proposed rule did not include a
specific requirement that States, Territories, and authorized Tribes
submit their established TMDLs to EPA.
Second, the final rule separates the requirement that States,
Territories, and authorized Tribes establish TMDLs for waterbodies on
Part 1 of the list from the statement that TMDLs are not required for
waterbodies on Parts 2, 3, or 4. EPA believes this provides additional
clarity as to which waterbodies require TMDLs.
Third, EPA is not promulgating the proposed requirement that
States, Territories, and authorized Tribes establish TMDLs in
accordance with their priority rankings. Instead EPA is requiring that
States establish TMDLs in accordance with their approved schedule. EPA
has changed the focus in the final rule from the priority ranking to
the approved schedule because it has decided to equate a State's
prioritization scheme with its schedule for establishing TMDLs for all
waterbodies on Part 1 of the list. This is a reasonable interpretation
and integration of sections 303(d)(1)(A) and 303(d)(1)(C). EPA believes
it would be unreasonable for a State's TMDL schedule to differ
significantly from its prioritization of waterbodies under section
303(d)(1)(A) and therefore believes its modification of the proposal in
the final rule to require that TMDLs be established in accordance with
a State's approved schedule is a logical outgrowth of the proposal.
Fourth, EPA is not promulgating the proposed allowance for States,
Territories, and authorized Tribes to establish TMDLs in a different
sequence than in their schedule. However, EPA recognizes that States,
Territories, and authorized Tribes need the flexibility to adjust the
order in which they establish TMDLs if newer information causes a lower
priority TMDL to become of higher priority before the time of the next
section 303(d) list submittal. The structure of Sec. 130.28(c) provides
States, Territories, and authorized Tribes with the flexibility to
shift work within each twelve-month block of the schedule without
seeking EPA approval. EPA believes that the public should have the
opportunity to participate in decisions regarding more significant
changes in the sequence by which TMDLs are established. Therefore, EPA
expects that States, Territories, and authorized Tribes will use the
provisions of Sec. 130.29, which includes public participation, to make
modifications to their schedules for TMDL establishment beyond those
described above.
EPA does not agree as suggested by comments that it should allow
States, Territories, and authorized Tribes to use other existing
programs in lieu of establishing a TMDL for impaired waterbodies. The
requirements of the CWA are very clear that TMDLs are required for all
waterbodies impaired by a pollutant(s) where the technology-based
requirements of the Act cannot ensure attainment of water quality
standards. EPA recognizes that there are many Federal and State
programs and mechanisms available to address impaired waterbodies, and
EPA encourages States, Territories, authorized Tribes, and citizens to
use them. However, EPA does not believe it can ignore the clear
requirement of section 303(d) of the CWA that States, Territories, and
authorized Tribes identify impaired waters on a section 303(d) list and
develop TMDLs for these waters. To the extent that States, Territories,
and authorized Tribes use other programs and mechanisms to achieve
water quality standards prior to the establishment of a TMDL, those
mechanisms can provide a basis for the State, Territory, or authorized
Tribe to remove a waterbody from the section 303(d) list. Also, EPA
anticipates that States, Territories, and authorized Tribes will rely
on their various existing water quality-related programs and
authorities as a means to implement TMDLs.
EPA acknowledges the comments on specific situations for which EPA
should determine in this rulemaking that certain pollutants are not
suitable
[[Page 43619]]
for TMDL calculation. EPA acknowledges that the CWA only requires TMDLs
for those pollutants that EPA has determined are suitable for
calculation of TMDLs. EPA made the determination on December 28, 1978
(43 FR 60662) that all pollutants were suitable for TMDL calculation
under the proper technical conditions. This 1978 finding is not part of
today's rulemaking and although neither the determination nor this
rulemaking foreclose any reconsideration at a later date for a specific
pollutant, EPA is not making any changes to the determination in these
regulations. EPA notes that this determination applies only to
pollutants and not to all parameters used by EPA, States, Territories,
or authorized Tribes to measure environmental health.
EPA rejects a suggestion that TMDLs are unsuitable for calculation
when either (1) suitable data cannot be collected to accurately
quantify levels of the pollutant of concern, or (2) the water quality
assessment methodology for that pollutant has not developed
sufficiently to enable defensible determinations of wasteload
allocations and load allocations that are likely to eliminate the
impairment. EPA believes that the first condition is more a matter of
resources than a technical limitation for developing TMDLs. Indeed,
under this suggestion, all TMDLs would be unsuitable for calculation in
the absence of data, and thus there would be no motivation to collect
the necessary data. EPA believes the second condition is too subjective
a test, and that the best forum for making this decision is during the
public review of a TMDL.
For whole effluent toxicity (WET), EPA recognizes that its own
guidance states that chronic whole effluent toxicity measurements are
not additive while one primary principle for calculating TMDLs is that
mass is additive. EPA also previously declined to apply whole effluent
toxicity to the TMDL provisions of Part 132. However, EPA does not
believe that these previous guidances and statements mean that whole
effluent toxicity is unsuitable for TMDL calculations in all instances.
Rather, EPA believes that TMDL calculations for chronic whole effluent
toxicity in situations of multiple discharges should be performed on
the pollutant(s) causing the toxicity. In these situations, EPA
believes the first logical step of analysis is to conduct an ambient
toxicity identification evaluation to identify the pollutants causing
the toxicity, as suggested by comments. EPA has developed guidance to
assist States, Territories, authorized Tribes, and other interested
parties in determining the pollutant(s) causing WET. See ``Toxicity
Identification Evaluations: Characterization of Chronically Toxic
Effluents, Phase I,'' EPA/600/6-91-005F, 1992; ``Methods for Aquatic
Toxicity Identification Evaluations: Phase II Toxicity Identification
Procedures for Samples Exhibiting Acute and Chronic Toxicity,'' EPA/
600/R-92-080, 1993; ``Methods for Aquatic Toxicity Identification
Evaluations: Phase III Toxicity Confirmation Procedures for Samples
Exhibiting Acute and Chronic Toxicity,'' EPA/600/R-92-081, 1993;
``Marine Toxicity Identification Evaluation (TIR) Guidance Document,
Phase I,'' EPA/600/R-96/054, 1996.
Where a TMDL is being established for only one source of the
chronic whole effluent toxicity endpoint, there is no addition of
different loadings involved and the TMDL calculations are identical to
NPDES calculations. Where there are multiple sources of the acute whole
effluent toxicity endpoint, EPA's guidance considers acute toxicity to
be additive. See the ``Technical Support Document for Water Quality-
Based Toxics Control,'' EPA/505/2-90-001, 1991, at page 24. In these
instances, EPA considers TMDL calculations are suitable because acute
whole effluent toxicity exhibits additive characteristics.
EPA considers sediment toxicity to be a property of sediments
resulting from the discharge of pollutants from multiple sources that
were once in the water column and later settled into the sediments.
Like chronic WET from multiple discharges, EPA believes that the TMDL
calculations of sediment toxicity should be performed on the pollutants
causing the toxicity. In these situations, EPA believes the first
logical step of analysis is to conduct an ambient toxicity
identification evaluation to identify the pollutants causing the
toxicity, as suggested by comments. EPA has developed guidance to
assist States, Territories, authorized Tribes, and other interested
parties in determining the pollutant(s) causing sediment toxicity. See
``Sediment Toxicity Identification Evaluation: Phase I
(Characterization), Phase II (Identification), and Phase III
(Confirmation) Modifications of Effluent Procedures'', EPA/600/6-91/
007, EPA, 1991.
In addition, EPA was asked in comments to clarify that TMDLs are
suitable for addressing impairments caused by urban wet weather
sources. EPA recognizes the additional complexity in collecting data
and conducting the analyses for pollutant problems related to these
sources, but believes that these issues can be addressed by States,
Territories and authorized Tribes by providing more time to establish
the TMDL in the schedule.
EPA does not consider flow to be a pollutant, and therefore the
final rule does not require TMDLs for flow. However, EPA recognizes
that there will be cases where flow or lack thereof will contribute to
impairment by a pollutant. In some cases the requirement that States,
Territories and authorized Tribes consider seasonal variations
including flow when establishing TMDLs will result in States,
Territories and authorized Tribes having to consider the effect of low
and high flow on water quality. In addition anthropogenic changes may
contribute to the presence of a pollutant. For example, flow
withdrawals or diversions may remove water that once diluted pollutants
in the stream or cause the in-stream temperature to rise. Another
example is high flow which degrades the aquatic habitat through
excessive sedimentation. In these instances, the final rule requires
the State, Territory, or authorized Tribe to develop a TMDL for the
pollutant (including heat) which is causing the water to exceed the
water quality standards. The State, Territory, or authorized Tribe will
have to identify in the implementation plan the approach it intends to
use to bring the waterbody into compliance with water quality
standards. When implementing a TMDL, the State, Territory, or
authorized Tribe may find it necessary to address the non-discharge
causes of elevated pollutants, including low flow. In these instances,
the TMDL allocations will directly address the excessive loading of the
pollutant and the implementation plan will indirectly address the
pollution problems.
EPA recognizes that the proposal did not include the current
regulatory requirements at Sec. 130.7(e) which codify the statutory
provisions of section 303(d)(3), which addresses ``informational
TMDLs.'' This section of the Act provides that States can at their
discretion, establish TMDLs for waterbodies which are not impaired.
These ``informational TMDLs'' which contain the load necessary to
attain water quality standards with seasonal variations and a margin of
safety are not subject to EPA review and approval and EPA does not
believe regulatory language is needed to address them.
N. What is a TMDL? (Sec. 130.32(a))
What did EPA propose? EPA proposed new Sec. 130.33(a), renumbered
Sec. 130.32(a) in today's final rule, to mirror the proposed definition
of a TMDL, and to recognize that TMDLs provide the opportunity for
comparing
[[Page 43620]]
relative contributions of pollutants from all sources and considering
economic and technical trade-offs between point and nonpoint sources.
What comments did EPA receive? EPA received numerous comments on
this subsection. Many echoed comments submitted on the definition of a
TMDL. Some recommended that this section restate in the same words the
definition of a TMDL. EPA received a number of comments concerning the
ability of TMDLs to accommodate trade-offs between point and nonpoint
sources. Many of these comments addressed the general topic of
watershed-based effluent trading (as distinguished from comments
specific to the offset provision set forth in the proposed NPDES
companion rule). The majority of these comments supported the concept
of ``trading'' in general, though most did not specify which of the
numerous models of water pollutant trading they specifically endorsed.
Reasons given for supporting the concept of trading included: (1)
Ability to achieve water quality goals in the most cost-effective
manner; (2) potential for achieving water quality goals sooner than
otherwise would be the case; and (3) ability to go beyond (do better
than) stated water quality goals/standards. Several comments called
upon EPA to include language in the rule itself making it clear that
``trading'' was allowed as a component of a TMDL implementation plan.
On the other hand, some comments, though expressing support for the
broad concept of ``trading,'' urged EPA to proceed carefully with
approval of individual trading programs, citing concerns about loss of
accountability for point sources and reductions in opportunities for
public participation in decisions regarding pollutant discharges from
individual point sources.
EPA received many other comments regarding how loads are allocated
between sources. Some comments suggested that EPA require that States,
Territories, and authorized Tribes conduct specified analyses related
to allocations. Other comments suggested that EPA require that
allocations credit sources with pollutant reductions already achieved
or require reductions in proportion to the existing loadings. Further
comments suggested that all sources of loads must fairly share in load
reductions, regardless of their size or relative contribution. In
contrast, some comments stated that EPA has no authority to specify any
allocation methodology or conditions, and that the allocation process
is solely the authority of the State, Territory, or authorized Tribe.
EPA received suggestions that EPA provide more examples of allocation
methods in guidance.
Finally, a number of commenters have said that EPA should not have
said that TMDLs should be set at levels that will ``attain and
maintain'' water quality standards, and that in the final rule, EPA
should not couple the two words.
What is EPA promulgating today? EPA is promulgating this subsection
with revisions to make the first and second sentence match the first
and second sentences in the definition of a TMDL. These revisions are
described in today's preamble in the discussion of the TMDL definition.
Though EPA continues to support efforts by States, Territories, and
authorized Tribes, as well as various stakeholders, to identify the
most cost-effective means of achieving water quality standards through
development and implementation of TMDLs, EPA does not believe it is
necessary to provide specific regulatory language specifying how
trading should occur. EPA has articulated its support for the trading
concept in an ``Effluent Trading in Watersheds Policy Statement,''
January 1996, and a ``Draft Framework for Watershed-Based Trading,''
May 1996, and provided funding and technical support for a number of
individual watershed trading projects, and continues to interact with
those developing and implementing such projects.
EPA's position has been, and continues to be, that States,
Territories, and authorized Tribes may employ in TMDLs any kind of
system or policy for allocating pollutant loadings among sources, as
long as the resulting allocations will lead to attainment and
maintenance of water quality standards. Among the permissible
allocation options are ones by which a source of pollutants would
provide compensation to another source, in exchange for which the
second source would accept a lower allocation, thereby offsetting a
higher allocation for the first source. EPA encourages States,
Territories and authorized Tribes to bring together stakeholders
potentially affected by and interested in a planned TMDL to work
together to explore ways in which a variety of allocation arrangements
can be considered in selecting a scheme for a TMDL and reflected in the
TMDL implementation plan.
EPA also declines to require that States, Territories or authorized
Tribes conduct any specific prescribed analyses as part of their
decision to allocate loads to point and nonpoint sources. Similarly,
EPA declines to require that allocations credit sources with pollutant
reductions already achieved, require reductions in proportion to the
existing loadings, consider the ability to pay or treatment capacity or
where reductions are the easiest to achieve, or require that all
sources of loads must fairly share in load reductions, regardless of
their size or relative contribution. EPA believes that the decision on
how to identify the most cost-effective or equitable means of
allocating loadings is best handled by the State, Territory, or
authorized Tribe, when the State, Territory, or authorized Tribe
establishes the TMDL. Therefore, EPA is not prescribing certain
allocation methodologies for States, Territories, or authorized Tribes
in this rule. Today's final rule requires that the wasteload and load
allocations, when implemented together, will result in the attainment
and maintenance of the water quality standard(s) applicable to the
pollutant for which the TMDL is being established. EPA's review of the
allocations will focus on whether they attain and maintain the water
quality standards.
EPA believes the allocation methodology should create a technically
feasible and reasonably fair division of the allowable load among
sources. Understanding the relationship between pollutant loads and the
condition of the waterbody is the basis for evaluating alternative
allocation strategies. If there is a range of allocation strategies
that could be implemented, EPA encourages the State, Territory, or
authorized Tribe to consider various allocation options. This allows
for a more rigorous evaluation and decision making process by the
stakeholders and regulators. Ideally, States, Territories and
authorized Tribes could bring together stakeholders potentially
affected by and interested in a TMDL to work together to reach
consensus on allocations that are believed by the stakeholders to be
effective and equitable.
Pollutant reductions can be allocated among sources in numerous
ways (see ``Technical Support Document for Water Quality-based Toxics
Control,'' EPA/505/2-90-001, 1991, Chapter 4.) States, Territories, and
authorized Tribes may consider several factors, including technical and
programmatic feasibility to reduce specific loads, cost-effectiveness,
relative or proportional source contributions, ability of small
entities to pay for pollutant load reductions, equity based on previous
commitments to load reductions, and the likelihood of implementation,
to develop the most effective allocation strategy. EPA encourages
States, Territories, and authorized Tribes to consider these factors
when they allocate loads.
[[Page 43621]]
When EPA establishes a TMDL, EPA will seek advice from the
applicable State, Territory, or authorized Tribe as to which allocation
methodology it prefers that EPA use. As a general approach, EPA intends
to use the same allocation methodology that the State, Territory, or
authorized Tribe uses for TMDLs it establishes. However, if EPA is not
able to establish reasonable assurance of implementation of needed
pollution control measures, EPA will revise the pollutant reduction
allocation as needed. EPA recognizes the benefit of guidance on the
merits of various allocation methodologies, and intends to publish this
guidance within a year following promulgation of today's rule for use
by States, Territories, and authorized Tribes.
EPA believes the phrase ``attain and maintain'' is consistent with
the language in CWA section 303(d)(1)(C) that requires that TMDLs be
established at a level necessary to implement water quality standards.
EPA interprets the term ``implement'' to include not just choosing a
load necessary to attain the appropriate water quality standard at a
given moment in time, i.e., the date the TMDL is established, but also
choosing a load that will ensure that the appropriate water quality
standard is implemented over time. For that reason, EPA believes it has
the authority to use the phrase ``attain and maintain'' and has
modified the proposed rule in a number of places consistent with this
belief.
O. What are the Minimum Elements of a TMDL? (Sec. 130.32(b))
EPA proposed in Sec. 130.33(b), renumbered as Sec. 130.32(b) in
today's rule, that a TMDL include ten minimum elements. The final rule,
for reasons explained later, includes eleven elements. Ten of these are
discussed in this section. The issues raised by commenters regarding
the eleventh element, i.e., the implementation plan, and changes
resulting from these comments are discussed in Section II.P. of this
preamble. EPA is promulgating its proposal that TMDLs include all the
elements. EPA recognizes that TMDLs for waterbodies with only NPDES-
regulated point sources contributing the pollutant impairing the
waterbody would not require a load allocation. In this situation, the
TMDL could include a load allocation of zero. Similarly, TMDLs for
waterbodies with only sources which are not subject to NPDES permits
contributing the pollutant impairing the waterbody would not require a
wasteload allocation. In this situation, the TMDL could include a
wasteload allocation of zero.
1. Waterbody Name and Geographic Location
What did EPA propose? EPA proposed in Sec. 130.33(b)(1) that the
TMDL include the information provided on the section 303(d) list
regarding the name and geographic location of the waterbody for which
the TMDL was established, as well as the name and geographic location
of upstream waterbodies which contributed a significant amount of the
pollutant for which the TMDL was established.
What comments did EPA receive? EPA received very few comments
regarding this proposed requirement. Some commenters were concerned
that the requirement to identify upstream sources of pollutants meant
that controls would have to be established for these sources.
What is EPA promulgating today? EPA is promulgating this section as
proposed but now renumbered as Sec. 130.32(b)(1). The Agency believes
that it is important to identify upstream contributors of a pollutant
for which a TMDL is being established because, as clarified in today's
regulations at Sec. 130.32(b)(4), this pollutant load must be accounted
for in the TMDL as background loading. EPA recognizes that, due to
limited information, a State Territory, or authorized Tribe may not be
able to identify a specific upstream waterbody as being the source of
pollutants that flow into the segment of the waterbody for which the
TMDL is being established. EPA expects that the State, Territory, or
authorized Tribe will only identify specific sources of that pollutant
upstream of the segment for which the TMDL is being established to the
extent those sources are known.
2. Identification and Quantification of the Pollutant Load, and
Deviation From Loads
What did EPA propose? In proposed Sec. 130.33(b)(2), and (3), EPA
proposed that States, Territories and authorized Tribes identify the
pollutant for which a TMDL was established, quantify the load of the
pollutant which may be present in the waterbody and not cause an
exceedance of a water quality standard, and identify the difference
between that amount and the current loading.
What comments did EPA receive? EPA received few comments on these
proposed sections. Commenters mostly requested technical clarifications
on how to calculate pollutant loads. Other comments requested that the
rule require disclosure of which water quality standards apply to a
TMDL, and assurance that background loadings are accounted for in the
TMDL.
What is EPA promulgating today? EPA is slightly reorganizing these
sections to separate the requirements for identification of the
pollutant, now contained in Sec. 130.32(b)(2), from the quantification
of the pollutant load necessary to attain water quality standards in
Sec. 130.32(b)(3) and the quantification of the deviation between
current loading and that necessary to attain and maintain water quality
standards in Sec. 130.32(b)(4). EPA believes that this separation
better clarifies the elements of the TMDL. This also results in there
being 11 elements of the TMDL, because two requirements are reorganized
into three requirements.
In addition, as suggested by comments, EPA is adding the
requirement to consider pollutant loads from upstream sources as part
of the background. EPA recognizes that the TMDL serves as a mechanism
for accounting for the total load of a pollutant in a waterbody. In the
TMDL, all pollutant loads need to be accounted for to ensure that when
the total load is allocated, the sum of the allocations does not exceed
the water quality standard. Without identifying loads from upstream
sources as background loads, the allocation process is likely to over-
allocate loadings to point and nonpoint sources, thus leading to an
exceedance of the water quality standard.
EPA does not interpret quantification of loads as always requiring
the direct monitoring of sources of pollutant loads or the pollutant
load within a waterbody. States, Territories, and authorized Tribes
have the flexibility to use any methodology that develops a number that
expresses the pollutant load. Direct monitoring is one way, but there
are others. For example, States, Territories, and authorized Tribes may
use water quality modeling techniques, either empirical or
deterministic, to quantify the load. They may use correlation
methodologies to relate non-pollutant metrics to pollutant loads. In
general, the State, Territory, or authorized Tribe needs to use a
procedure by which it can develop a number that characterizes the load.
Also, as suggested by comments, EPA is clarifying that the
applicable water quality standard must be identified along with the
pollutant for which a TMDL is being established. EPA agrees that the
public should have access to this information when they review and
comment on a proposed TMDL because the water quality standard is the
basis for the TMDL.
[[Page 43622]]
3. Source Categories
What did EPA propose? EPA proposed in Sec. 130.33(b)(4) that a TMDL
should include an identification of the source of the pollutant with as
much precision as feasible, i.e., individual or categorical, in
accordance with the definitions of load allocation and wasteload
allocations.
What comments did EPA receive? Many commenters repeated either
their support or opposition to including nonpoint sources in the TMDL
process. Several comments expressed support for identification of all
sources, and suggested EPA encourage States, Territories, and
authorized Tribes to identify all sources of a pollutant. Others
repeated their concerns regarding designation of certain animal feeding
operations and silviculture activities as point sources. These comments
are addressed elsewhere in today's preamble.
What is EPA promulgating today? EPA is promulgating the proposed
language with minor editorial modifications at Sec. 130.32(b)(5) of
today's rule. For reasons discussed previously in today's preamble, EPA
believes that the requirement to identify and establish TMDLs for
waterbodies exists regardless of whether the waterbody is impaired by
point sources, nonpoint sources or a combination of both. Pronsolino v.
Marcus, 2000 WL 356305 (N.D. Cal. March 30, 2000.) Therefore, EPA
declines to revise the proposed requirement to exclude identification
of nonpoint sources that contribute the pollutant causing an
impairment.
4. Wasteload Allocation
What did EPA propose? EPA proposed that an individual wasteload
allocation be assigned to each point source covered by the NPDES permit
program, with two exceptions. First, EPA proposed that one waste load
could be allocated to a category or subcategory of sources within a
waterbody subject to a general permit under the NPDES program.
Similarly, EPA proposed that pollutant loads from permitted facilities
that did not need to be reduced in order to achieve water quality
standards could be grouped into one category or subcategory, or
considered as part of background loads.
EPA also proposed to require States, Territories, and authorized
Tribes to provide technical analysis demonstrating that wasteload
allocations, when implemented, would result in attainment and
maintenance of water quality standards in the waterbody.
What comments did EPA receive? EPA received a wide variety of
comments on the provisions in proposed Sec. 130.33 dealing with
wasteload allocations. (Other comments regarding the definition of
``wasteload allocations'' are addressed elsewhere in this preamble.)
The proposal that one wasteload allocation could be developed for
all point sources subject to a general NPDES permit drew substantial
and widely varied response. Some commenters endorsed this notion,
saying it would reduce administrative burdens on States, Territories
and authorized Tribes. On the other hand, there were a number of
comments objecting to this provision. These commenters questioned the
feasibility of estimating the total loading from all point sources
covered by a general permit, particularly permits which do not require
the sources wishing to be covered to send a Notice of Intent to the
NPDES authority.
Commenters also opposed grouping all sources for which no load
reduction was required. They questioned how EPA could ensure that
dischargers included under a wasteload allocation, or bundled under the
allocation to background, did not increase their loadings of the
pollutant above levels discharged at the time of TMDL establishment.
A number of comments called upon EPA to require that States,
Territories, and authorized Tribes directly notify any pollutant source
potentially affected by the allocations in a proposed TMDL that had
been published for public review and comment.
What is EPA promulgating today? After consideration of all comments
received, EPA is promulgating a provision that is very similar to the
one proposed. The one key change is aimed at clarifying that, for
waterbodies affected by both nonpoint and point sources of the
pollutant of concern, implementation of the wasteload allocation alone
is not always expected to result in attainment of water quality
standards. Rather, today's rule specifies that States, Territories, and
authorized Tribes should submit, along with the wasteload allocation,
supporting technical analyses demonstrating that wasteload allocations,
when implemented in conjunction with necessary load allocations, will
result in the attainment and maintenance of water quality standards in
the waterbody.
As with the proposed rule, today's promulgation states that point
sources subject to individual NPDES permits must be given individual
wasteload allocations, except those that would not need to reduce their
loadings. Point sources subject to individual NPDES permits that,
according to the terms of the wasteload allocation for the waterbody
into which they discharge, would not need to decrease their pollutant
loadings, may be included within a single wasteload allocation for a
category or subcategory of sources. Individual NPDES permits for point
sources included in such categories or subcategories should have
effluent limits (or other permit provisions) for the pollutant being
addressed in the TMDL, ensuring that the permittee would not increase
its discharge of that pollutant beyond the level it was assessed as
discharging in calculating the TMDL's wasteload allocation for that
category or subcategory of sources. In these instances, the current
NPDES permit provides the regulatory control to prevent these sources
of pollutants from increasing their pollutant loads.
Today's rule allows for wasteload allocations to be allotted to a
category of sources seeking coverage under a general permit, i.e., all
sources seeking coverage under a general permit that are located on the
waterbody for which the TMDL is established could be covered under one
wasteload allocation (Sec. 130.32(b)(6)). General permits, like
individual permits, must include effluent limits or conditions that are
consistent with the assumptions and requirements of the wasteload
allocation. Today's rule requires that the implementation plan identify
the category of point sources subject to the TMDL which are regulated
by a general permit and specify the general permit that applies or will
apply to the sources (Sec. 130.32(c)(1)(i)). Today's rule also requires
that the implementation plan identify the wasteload allocation that
will be the basis for the effluent limitations (which may be in the
form of Best Management Practices defined for NPDES at Sec. 122.2) in
the NPDES permit ``that will be issued, reissued, or revised.'' Id.
Existing NPDES regulations require the permitting authority to
develop water quality-based effluent limits that derive from and comply
with all applicable water quality standards. These regulations also
require that water quality-based effluent limits be consistent with the
assumptions and requirements of any available wasteload allocation
prepared by the State and approved by EPA pursuant to Sec. 130.7 (see
Sec. 122.44(d)(1)(vii)(B)). Therefore, when an existing permit expires,
upon reissuance of that permit, the permitting authority will evaluate
whether the effluent limitations or conditions within the permit are
consistent with the wasteload allocation in an applicable
[[Page 43623]]
TMDL. If not, the permitting authority must ensure the reissued permit
includes effluent limitations that are consistent with the wasteload
allocation. In the case of storm water permits, the effluent
limitations may include best management practices that evidence shows
are consistent with the wasteload allocation.
Where a State is establishing a TMDL and that State is authorized
to administer general permits under the NPDES program, the State has
the discretion and flexibility to determine whether to issue separate
general or individual permits to implement the wasteload allocation or
whether to revise or reissue a general permit to implement the
wasteload allocation. A separate general permit would be specific to
the waterbody for which the TMDL is established and may include a
different set of conditions and requirements that would be designed or
tailored to implement the applicable wasteload allocation under the
TMDL. A State may also choose to revise the existing general permit to
include additional conditions or effluent limitations applicable to
those sources or categories of sources, consistent with the wasteload
allocation. EPA believes that a new general permit (e.g. a storm water
general permit) that includes best management practices, rather than
numerical limitations on the mass or concentration of pollutants in the
discharge, is adequate for the purposes of ensuring implementation of a
wasteload allocation.
When a State is establishing a TMDL but that State is not
authorized to administer general permits under the NPDES program, the
State and EPA would work together to address how the applicable
national general permit would be ``issued, reissued or revised'' to
implement the wasteload allocations applicable to the category of
sources subject to a TMDL covered by the general permit. EPA would also
have the discretion and flexibility to determine whether to issue a
separate general permit to implement the wasteload allocation, whether
to issue an individual permit, or whether to revise or reissue the
general permit to implement the wasteload allocation. This discretion
and flexibility would also be available to EPA where the Agency is
establishing a TMDL for a State that is not authorized to administer
general permits under the NPDES program. In addition, where EPA is
establishing a TMDL for a State and that State is authorized to
administer general permits under the NPDES program, EPA, in developing
the implementation plan, would need to work with the State to determine
how the State-issued general permits would be ``issued, reissued or
revised'' to implement the applicable wasteload allocation under the
TMDL.
As would have been the case with the proposed rule, when EPA
approves a TMDL, it will also be approving the component wasteload
allocations and load allocations. EPA's review of wasteload allocations
and corresponding load allocations will be aided by the supporting
technical analyses demonstrating that implementation of wasteload
allocations and load allocations (where applicable) is feasible and
will result in attainment of water quality standards. EPA's review will
also include a review of the sources of information that the State,
Territory, or authorized Tribe cites in support of its technical
analysis.
5. Load Allocation
What did EPA propose? The proposed rule required States,
Territories, and authorized Tribes to assign individual load
allocations to specific nonpoint sources (including air deposition and
natural background) unless doing so would be impossible. In cases where
it was not possible to assign individual load allocations, specific
nonpoint sources could be grouped together into categories or
subcategories. Each category or subcategory would be given a load
allocation. In addition, where load reductions are not needed from
certain sources, the load allocation for those sources could be grouped
into one aggregate load allocation.
The proposal also required States, Territories, and authorized
Tribes to provide technical analysis demonstrating that load
allocations, when implemented, would result in attainment and
maintenance of water quality standards.
What comments did EPA receive? EPA received a large number of
comments with regard to load allocations, covering a range of issues. A
number of these comments are also relevant to the proposed definition
of ``load allocation'' at Sec. 130.2(f), and are summarized in the
discussion of that provision.
The proposal to allow States, Territories, and authorized Tribes to
aggregate a number of individual nonpoint sources into a category or
subcategory for which just one wasteload allocation would be required,
received both favorable and unfavorable comments. Several commenters
specifically objected to the language requiring States, Territories,
and authorized Tribes to calculate individual load allocations for
specific nonpoint sources if doing so were ``possible'' and encouraged
EPA to use the word ``feasible'' or ``practical'' instead.
The issue of possible inequities in the allocation of allowable
loads among sources of the pollutant for which a TMDL was being
developed was the subject of a significant number of comments. A number
of commenters expressed the fear that because of a lack of Federal
regulatory authority (and often, State authority as well), States,
Territories, and authorized Tribes would likely give relatively
generous allocations to nonpoint sources, thereby requiring
disproportionately large reductions by point sources. Some of those
expressing this concern urged EPA to require that allocations of
loadings be done ``proportional to current loadings'' from various
sources. On the other hand, some called upon EPA and States,
Territories, and authorized Tribes to take ``achievability and
assurance'' of loadings reductions into account when doing allocations
of loadings and indicated this meant that greater responsibility for
loadings reductions would be assigned to sources either subject to
enforcement or very likely to actually achieve reductions for other
reasons.
What is EPA promulgating today? The provision of Sec. 130.32
addressing load allocations that is being promulgated today is very
similar to the proposed rule. A few changes have been made in response
to comments. First, the provision was revised to be consistent with
revisions to the definition of ``load allocation'' that were previously
discussed in today's preamble. Second, based on comments, the condition
to trigger developing separate load allocations was changed from
``possible'' to ``feasible.'' EPA believes that a feasibility standard
is better for making this decision. Developing a separate load
allocation for a source may be possible but not feasible. In some
instances, the loadings from nonpoint sources can only be feasiblely
quantified on an aggregate basis. EPA does not intend States,
Territories, or authorized Tribes to expend additional effort to
develop separate load allocations if not feasible, and thus has made
this change to the final rule.
6. Margin of Safety
What did EPA propose? EPA proposed in Sec. 130.33(b)(7) to specify
how States, Territories and authorized Tribes could satisfy the
statutory requirement that TMDLs include a margin of safety. EPA
proposed that the requirement could be satisfied either by expressing
the margin of safety as
[[Page 43624]]
unallocated assimilative capacity, i.e., demonstrating that the
pollutant loading would be less than the assimilative capacity of the
waterbody, or demonstrating that conservative assumptions had been
built into the calculations of the wasteload and load allocations.
What comments did EPA receive? EPA received many comments asking
for specific criteria to calculate the margin of safety while others
suggested that EPA should keep this requirement as flexible as
possible. Some commenters pointed out that water quality standards
already account for scientific uncertainties. Some commenters suggested
that the margin of safety should increase as uncertainties in the
quality of the data used to establish the load and wasteload
allocations increase.
What is EPA promulgating today? EPA believes that the margin of
safety required by the section 303(d)(1)(C) for establishment of TMDLs
allows for consideration of more factors than the scientific
uncertainty included in the development of water quality standards and
must also account for analytical uncertainties associated with all the
calculations required to establish a TMDL. Nothing in the statute
indicates that these factors are exclusive to all others in
interpreting what margin of safety means. EPA has clarified this
requirement at Sec. 130.32(b)(8) in the final rule by explicitly
stating that the margin of safety must appropriately account for
uncertainty, including those associated with pollutant loads, water
quality modeling, and monitoring. EPA has also clarified how the margin
of safety could be expressed. EPA agrees with the commenters that the
calculation of margin of safety is complex and that guidance addressing
a variety of situations, including reliability of the data need to be
developed. EPA is planning to issue such guidance soon after this rule
is promulgated.
EPA does not believe that the margin of safety is addressed by how
the water quality standards account for scientific uncertainties. CWA
section 303(d) requires that TMDLs implement the applicable water
quality standard. EPA interprets the margin of safety requirement of
the CWA to address the relationship of the TMDL to the water quality
standard, and not how the standard itself addresses uncertainties.
7. Consideration of Seasonal Variations
What did EPA propose? EPA proposed in Sec. 130.33(b)(8) to codify
the statutory requirement that TMDLs must account for seasonal
variations and to require States, Territories and authorized Tribes to
also consider other environmental factors which could affect the water
quality impact of the pollutant for which a TMDL was established.
What comments did EPA receive? EPA received considerable support
for this requirement. Many commenters pointed out that the amount of
flow in a waterbody could have significant impact on the level of a
pollutant and that EPA should require TMDLs to account for low flow as
well as wet weather flow and storm water events. Other commenters
however, construed this proposed requirement as an interference with
States' water rights and allocation processes. Finally, many commenters
did not agree that water quality standards must be attained in all
seasons or during unusual events such as major storms.
What is EPA promulgating today? EPA is promulgating this
requirement at Sec. 130.32(b)(9) with a few changes. EPA agrees with
the commenters that the level of flow in a waterbody can affect whether
or not a waterbody attains and maintains water quality standards;
therefore, EPA is specifically requiring that flow levels be taken into
consideration as part of seasonal variations. By including this
language, EPA is not intending that States, Territories or authorized
Tribes make changes to established water allocations or water rights.
Instead, EPA intends for the pollutant load allocation to take into
account the impact of flows on the water quality of the impaired
waterbody. EPA also believes that TMDLs must be established so that
water quality standards are attained and maintained in all seasons and
all flows. This includes consideration of storm conditions where storms
or storm water runoff contribute the pollutants causing the impairment
to the waterbody. EPA believes that this is the very reason
consideration of seasonal variations is included in the statutory
language, and EPA is adding language in the final rule to clarify this
point. EPA's intent is that TMDLs must account for normal variations in
seasonal conditions for environmental factors such as flow,
precipitation or temperature, and not necessarily account for extreme
unusual conditions such as 100-year storms or hurricanes.
States, Territories, and authorized Tribes can address seasonal
variations in many different ways. One way is to use water quality
modeling techniques, such as continuous or dynamic modeling, that
directly consider variations in environmental conditions. Another way
is to conservatively identify a suite of environmental conditions that
represent the worse conditions experienced in the waterbody, and thus
lead to identifying a load that is protective of all conditions. Yet
another way is to establish TMDLs for each season or month that are
representative of the environmental conditions in those seasons or
months. Because there are different ways of addressing seasonal
variations in environmental conditions such that water quality
standards are met as required, EPA believes that it is more appropriate
to address the details of this analysis in guidance rather than in
today's rule.
8. Allowance for Increases in Pollutant Loads
What did EPA propose? EPA proposed at Sec. 130.33(b)(9) that TMDLs
include an allowance for future growth to account for reasonably
foreseeable increases in pollutant loads. EPA included this provision
to meet the statutory mandate that water quality standards must be
attained and maintained. EPA believed that, absent such an allowance,
it would be difficult to demonstrate maintenance of the standards. EPA
explained in the preamble that it intended for the allowance to be
based on existing and readily available data at the time the TMDL was
established.
What comments did EPA receive? Many commenters pointed out that
decisions about future growth were the province of local governments.
They opposed the proposed language because they construed it as a
requirement to control growth. Others were concerned that allowance for
future growth would render TMDLs more stringent than necessary and
unfairly place a burden on current dischargers.
What is EPA promulgating today? EPA is promulgating this
requirement at Sec. 130.32(b)(10) but is modifying the proposed
language to clarify that the intent of this provision is not to control
growth but to ensure that TMDLs take into account potential increases
in loadings regardless of their cause. EPA believes accounting for any
such potential increases is a necessary step in setting loads at a
level necessary to implement standards and accordingly is authorized by
Sec. 303(d)(1)(c). If a State, Territory, or authorized Tribe does not
anticipate increased loadings in a TMDL, it may satisfy this element by
indicating it does not expect there to be such increases and providing
a brief explanation why. Moreover, if the State, Territory, or
authorized Tribe does not anticipate future increased loadings, it may
find itself needing quickly to revise the TMDL to accommodate new
[[Page 43625]]
discharges. On the other hand, if a State, Territory, or authorized
Tribe includes an allocation for increases in pollutant loads, then any
new loading or increase in pollutant loading that occurs will be
addressed by that allocation without requiring that the TMDL be
revised. EPA does not intend that, if a State, Territory, or authorized
Tribe decides to specifically provide an allocation for increased
pollutant loadings in a TMDL, it needs to identify the types of
facilities or activities that would receive that allocation. Instead,
EPA expects that the allowance for increased pollutant loadings would
be an aggregate amount that could be applied to any future increase in
loads. The specific decisions as to how to allocate that aggregate
allowance for increased loads to new facilities or activities are best
made by the State, Territory, and authorized Tribe along with local
governments.
P. What Are the Requirements of the Implementation Plan
(Sec. 130.32(c))?
What did EPA propose? EPA proposed that each TMDL include, as a
minimum element required for approval, an implementation plan. The
implementation plan as proposed contained eight minimum elements: (1)
Intended control actions; (2) a time line; (3) reasonable assurance
that wasteload and load allocations will be achieved; (4) legal
authority; (5) time required to attain water quality standards; (6)
monitoring plan; (7) milestones for attaining water quality standards;
and (8) TMDL revision procedures. The proposal would have required
States, Territories and authorized Tribes to submit implementation
plans to show how each TMDL was to be implemented. The proposal
recognized that it would be more effective and supportive of watershed
approaches to have implementation plans that show how all TMDLs for a
particular pollutant or a number of pollutants in particular basins,
would be implemented. EPA specified that it would not approve a TMDL
without an adequate implementation plan. The proposal linked the
adequacy of the implementation plan to a determination by EPA that
there was reasonable assurance that implementation would occur. If EPA
could not approve the TMDL, EPA would have to establish the TMDL which
would include an implementation plan and provide reasonable assurance.
What comments did EPA receive? EPA received numerous comments on
the proposed implementation plan requirement. A few commenters
supported the requirement as proposed. Many commenters opposed the
requirement altogether. Among commenters who supported the requirement
many questioned EPA's authority to require implementation plans as
mandatory parts of TMDLs under the authority of section 303(d). These
commenters suggested that EPA should continue to require implementation
plans as part of a State's water quality management plan even if it
meant promulgating amendments to the regulations at Sec. 130.51 to make
the plans enforceable. Some commenters opposed implementation plans
because they believe they would considerably slow establishment of
TMDLs. Others expressed concerns that the proposal was too inflexible
and would lead to federal regulations of non point sources. Some
commenters argued that separating the implementation plan from TMDL
establishment would lead to more scientifically defensible TMDLs and
that approved TMDLs would provide a clear goal and the impetus for
better interaction between stakeholders in designing implementation
plans. Some commenters supported the requirement for implementation
plans but raised questions concerning the specific proposed elements of
the implementation plan requirement, especially in regard to nonpoint
sources.
What is EPA promulgating today? Today's rule at Sec. 130.32(c)
retains the requirement for implementation plans as required elements
of TMDLs. As discussed in the August 23, 1999 preamble (64 FR 46032-
46035), EPA believes that it has the authority to require
implementation plans because section 303(d) requires that TMDLs be
established at a level necessary to implement water quality standards.
Today's rule establishes that one way EPA can determine whether a TMDL
is approved at a level necessary to implement applicable water quality
standards is to require an implementation plan. In addition, EPA
believes that implementation plans provide the basis for demonstrating
that water quality standards will be attained and maintained through
pollution controls other than controls over point source discharges
subject to an NPDES permit.
EPA believes that implementation of TMDLs is the most important
aspect of today's rule. Without implementation, TMDLs are merely paper
plans to attain water quality standards. The implementation plan
requirement assures that the Nations' remaining water quality problems
will actually be addressed by appropriate actions identified in the
implementation plans submitted as part of the TMDLs.
Today's rule acknowledges that implementation plans will differ
depending upon the type of sources causing the impairments in a
particular waterbody. Therefore the final rule makes it clear that the
purpose of the implementation plan is to describe, at a level of detail
appropriate to the circumstances, actions necessary to implement the
TMDL. Implementation plans are not meant to be lengthy or complex. They
must however contain sufficient detail so that EPA and the public can
determine whether the actions proposed in the plan can actually
eliminate the impairment and whether there is reasonable assurance that
they will occur and when.
The requirements of the implementation plan are now identified
separately for waterbodies impaired (1) only by point sources required
to have an NPDES permit, (2) only by sources other than those required
to have an NPDES permit including nonpoint sources, or (3) by a
combination of both point sources required to have an NPDES permit and
other sources including nonpoint sources. Although the requirements are
identified separately, they provide common information on what sources
will be expected to reduce loadings, how these reductions will be
accomplished, when these reductions will occur, and how the results
will be measured.
Some elements of implementation plans are common to all sources: A
schedule for implementation actions, the date by which the
implementation plan will attain water quality standards, a modeling
and/or monitoring plan and a description of interim, measurable
milestones and criteria to be used to determine progress towards
attaining water quality standards and when the TMDL needs to be
revised. These provisions were included in the proposed rule, and
except for one change discussed below, are unchanged in the final rule
except for formatting changes.
In the final rule, EPA is making a small revision to the proposed
language regarding the time to attain water quality standards. The
proposal would have required ``an estimate'' of the time necessary to
attain water quality standards. The final rule requires that the
implementation plan must include ``the date'' by which the waterbody
will attain water quality standards. EPA believes the phrasing of the
final rule is a logical outgrowth of the proposal and a clearer
description of what is intended--the ``date'' when the State,
Territory, or authorized Tribe believes water quality standards will be
attained.
[[Page 43626]]
Implementation Plans for Point Sources for Which an NPDES Permit is
Required
For waterbodies impaired by only point sources subject to an NPDES
permit, the implementation plan is expected to rely primarily on the
NPDES permit(s) that will be issued, reissued or revised so their
effluent limit(s) will be consistent with the wasteload allocations in
the TMDL. The plan will identify which facilities are required to have
permit limits that are consistent with the wasteload allocation,
identify the limits to be incorporated into the permits, and identify
the schedule by which the permits will be issued, reissued, or
modified. EPA's expectation of when these permits will be issued, and
EPA's commitment to ensure the proper and timely issuance of these
permits, is described in the preamble discussion about EPA's objection
to State-issued expired and administratively continued permits.
Implementation Plans for Sources for Which an NPDES Permit is Not
Required
For waterbodies impaired only by sources other than those subject
to an NPDES permit, including nonpoint sources, the implementation
plans are required to contain several different elements. The plans for
these waterbodies must identify the source categories, subcategories or
individual sources that are expected to implement load allocations.
These implementation plans must also include a description of specific
regulatory or voluntary actions, including management measures or
controls that State, Territorial, authorized Tribal or local
governments and individuals will implement that provide reasonable
assurance that load reductions will be achieved, and the schedule by
which these measures are expected to be implemented.
EPA recognizes that nonpoint source problems are different from
point source problems and that implementation plans for nonpoint
sources must reflect the higher natural variability and relative
imprecision of nonpoint sources in relation to point sources. EPA
expects that implementation of load allocations will depend primarily
upon recognized nonpoint source control activities. These actions are
often those already undertaken in States, Territories and authorized
Tribes to carry out programs and activities approved under CWA section
319, as well as those under the requirements of the Coastal Zone Act
Reauthorization Amendments and the cooperative conservation and water
quality programs carried out by the United States Department of
Agriculture (USDA). These ongoing activities are expected to provide
the foundation for nonpoint source implementation plans. EPA expects
that nonpoint source implementation activities will rely upon
management measures and that implementation plans will reflect
performance expectations of these measures over time. In the case of
nonpoint source impaired waterbodies, the detail and level of certainty
that water quality standards will be attained through these management
measures may be different from that for waterbodies impaired only by
point sources.
EPA is also clarifying in Sec. 130.32(c)(2)(iii) that
implementation plans for other than point sources (primarily nonpoint
sources) must include a schedule for implementing management measures
or other controls in a TMDL within five years when implementation
within that period is practicable. In response to comments, EPA has
added a target date of five years for implementation of management
measures and other controls where it is practicable to do so. The
proposal required that implementation plans include a timeline,
including interim milestones, for implementing control actions and/or
management measures. The final rule requires this timeline be in the
form of a schedule for implementing the control actions and/or
management measures as well as a description of the interim milestones
for determining whether the management measures and/or control actions
are being implemented.
EPA added the five-year target in response to comments that there
needed to be some target or goal for implementing the control actions
and/or management measures. EPA never intended that implementation of
the control actions and/or management measures would be open ended. The
proposal included the requirement for milestones for implementation.
The five-year target for implementation represents the Agency's
expectation that, where practicable, the management measures and/or
control actions should be implemented within five years. This is a
logical outgrowth of the proposal that the implementation plan include
an estimate of the time required to attain and maintain water quality
standards and reasonable response to comments received. EPA expects
that the public believes that the TMDL will be quickly implemented
following its establishment. If implementation requires more than five
years, EPA believes that the public is entitled to an explanation as to
why five years is not practicable.
The final rule recognizes that the schedule may provide for more
than five years. Where a State, Territory, or authorized Tribe
determines that five years is not practicable, it must explain the
basis for its determination. In determining whether it can implement
management measures within five years, the State, Territory, or
authorized Tribe may consider, but is not limited to, such factors as
technical feasibility of installing controls and measures or changing
practices within five years, competing program priorities in providing
necessary funding and/or necessary technical assistance, and time to
work with members of the affected community. The analysis of
practicability in this provision is not intended to add a new
requirement beyond the requirement to establish reasonable assurance
that management measures and/or control actions will be implemented as
expeditiously as practicable. It recognizes that if it is practicable
to implement controls and measures within five years, they should be
implemented within five years. EPA recognizes that even if controls and
measures are implemented within five years, it reasonably would be
expected to take additional time for the actions and measures to
achieve their intended results and for load allocations to be met.
In general, EPA believes that, barring resource constraints or
other impediments that make expeditious implementation impracticable,
TMDLs can be implemented within five years of completion of the
implementation plan. In the typical situation, the types of management
measures that will be used to implementation the TMDL will consist of a
set of well-established practices that are commonly practiced within
the affected industries and can be implemented within a five-year time
frame.
For example, to address soil erosion, well-established practices
such as those that were used by USDA to implement the conservation
compliance program on highly erodible cropland within the statutorily
required five-year implementation period of 1985-1990 would typically
be used. To address the impact of grazing upon water quality, typical
approaches would include a USDA ``conservation management system'' or
other similar range management plan to reduce cattle's access to the
stream (e.g., by providing alternative supplies of water, shade, and
salt away from the stream; hardening the limited access points to the
stream; and using fencing where necessary), and
[[Page 43627]]
to employ effective grazing rotation strategies that will ensure both
that upland areas remain both productive and that soil erosion is
reduced.
Similarly, the primary practices to be used to implement measures
to address silvicultural nonpoint sources include road maintenance
practices to reduce runoff and streamside management practices that
will assure that sufficient protection is provided to provide adequate
shade and erosion control in streamside management zones. For urban
runoff, typical measures will include prevention techniques such as
erosion and sediment control in new developments (which are required by
new NPDES regulations for all developments larger than one acre);
continued treatment of post-development runoff through a variety of
urban best management practices, protection and restoration of riparian
areas; and techniques to treat runoff in developed areas.
These and other nonpoint source measures can generally be
implemented within five years from the time that it has been determined
through a TMDL implementation plan that they will be needed to achieve
water quality standards. EPA recognizes that in some situations, a
five-year implementation period may prove to be impracticable. This
situation is most likely to arise in some heavily developed areas where
existing infrastructure limits the availability of effective technical
approaches to very sophisticated and expensive treatment options. For
this reason, the rule states that TMDLs should generally be implemented
within a five-year period but allows for the State to make appropriate
exceptions to the general five-year implementation period to address
situations where the implementation plan cannot practicably be
implemented within five years.
Implementation Plans for Blended Sources
For waterbodies impaired by both point sources required to have an
NPDES permit and other sources, including nonpoint sources,
implementation plans are required to include all of the elements
applicable to these sources. In addition, implementation plans for
waterbodies impaired by both types of sources must include a
description of the extent to which wasteload allocations reflect the
expected achievement of load allocations. EPA encourages implementation
plans that reflect tradeoffs between wasteload and load allocations. A
particular wasteload allocation may be set which anticipates that a
load allocation will achieve a certain reduction in nonpoint source
loadings. As long as the wasteload and load allocations together will
achieve the TMDL, the TMDL is approvable. EPA does not expect that load
allocations will actually be achieved before a corresponding wasteload
allocation is established but the implementation plan must demonstrate
the reasonable assurance that the practices will achieve the load
reductions.
In the final rule at Sec. 130.32(c)(4), EPA has clarified that
implementation plans for all impaired waterbodies must be based on a
``goal'' of attaining and maintaining the applicable water quality
standards ``as expeditiously as practicable.'' EPA believes this new
section is a logical outgrowth of its proposal that implementation
plans include ``an estimate of the time required to attain and maintain
water quality standards and discussion of the basis for that
estimate.''
In response to comments, EPA is providing greater clarity in the
final rule by identifying the goal that States, Territories and
authorized Tribes should be striving to achieve in their implementation
plans, i.e., attaining and maintaining water quality standards as
expeditiously as practicable. EPA has not expressed its sense of an
appropriate time within which to attain water quality standards in the
form of a rigid regulatory requirement. Instead, the goal of attaining
water quality standards as expeditiously as practicable mirrors the
provision in the reasonable assurance definition that TMDLs be
implemented as expeditiously as practicable. The definition of
reasonable assurance provides the criteria for determining if the TMDL
is being implemented within 10 years whenever practicable. The
provision in Sec. 130.32(c)(4) is not intended to establish a test for
TMDL approval that is different from the requirement to establish
reasonable assurance. Attaining standards as expeditiously as
practicable is stated in the rule as a goal whose achievement States
should strive for as they develop their implementation plans.
The ``practicability'' of meeting standards within 10 years may be
influenced by a wide variety of factors, such as the degree of water
quality impairment, the time required to install controls or change
practices, the time for such actions to have in-stream effects on water
quality, the costs to implement such actions, and time to work with
members of the affected community. EPA recognizes that there is a
significant amount of uncertainty regarding how quickly implementation
measures, once installed, will be effective in achieving water quality
standards. In some cases, particularly water impaired by point sources
where implementation will be accomplished through NPDES modifications,
water quality standards may be achieved within months or a few years.
For waterbodies impaired by nonpoint sources, where implementation
involves significant habitat restoration or reforestation, water
quality standards may not be met for decades. Accordingly, EPA has
selected 10 years as a reasonable point between these extremes. If a
State, Territory, or authorized Tribe expects that it will take longer
than 10 years to achieve water quality standards it must explain why
attainment within 10 years is not practicable.
In reviewing State, Territory, and authorized Tribe implementation
plans, and particularly those components whose flexibility is
conditioned upon a finding of ``reasonableness'' or ``practicability'',
EPA is not required to, and does not intend to, engage in a detailed
effort at second-guessing the judgment of a State, Territory, or
authorized Tribe as to whether these conditions are met. Instead, EPA
will review the State's, Territory's, or authorized Tribe's submission
to determine whether the State, Territory, and authorized Tribe has
provided a demonstration of ``reasonableness'' or ``practicability'',
where such is required. If so, that will be the end of the inquiry. A
State's, Territory's, or authorized Tribe's demonstration need not be
extremely detailed to pass scrutiny. For example, it would be
sufficient to demonstrate that the five-year implementation schedule
requirement of Sec. 130.32(c)(2)(iii) is not practicable by stating
that section 319 grant money and other sources of funds to implement
the relevant management measures will not be available until year six
because the next five years worth of funds are already earmarked for
other TMDL implementation.
Q. Total Maximum Daily Thermal Load (Sec. 130.32(d))
What did EPA propose? EPA proposed Sec. 130.33(c) to restate the
existing requirements at Sec. 130.7(c)(2) in plain English format. This
subsection requires that States, Territories, and authorized Tribes
develop total maximum daily thermal loads (TMDTLs) for thermal
discharges from point sources into thermally impaired waterbodies.
What comments did EPA receive? EPA received numerous comments on
this subsection. Several comments
[[Page 43628]]
suggested that the balanced indigenous population (BIP) of shellfish,
fish and wildlife standard should be used for both point and nonpoint
sources, instead of just point sources. These commenters expressed the
belief that Congress intended section 303(d)(1)(D) to apply to all
discharges of heat and not just point sources. Other commenters
suggested that this subsection was unnecessary, as these discharges are
already regulated through NPDES permits. These commenters expressed a
belief that most NPDES facilities discharging heat are already
regulated based on a BIP standard, and that a thermal TMDL would not
result in any greater reductions in heat discharged into the waterbody.
One comment suggested that the subsection should recognize that
calculations to determine the total maximum daily heat input should be
focused on the waterbodies identified on the section 303(d) list as
being impaired by point source thermal discharges.
What is EPA promulgating today? EPA is promulgating Sec. 130.32(d)
with three revisions. First, EPA is deleting the phrase ``from point
sources'' because this phrase is redundant. Earlier in today's
preamble, EPA explained that its definition of ``thermal discharge'' is
limited to a point source discharge of heat. Thus, the phrase ``from
point sources'' that modifies the phrase ``thermal discharges'' in
Sec. 130.32(d) is redundant. Second, EPA made the revision suggested by
comments to clarify that the TMDTL calculations apply to waterbodies
that are listed as impaired by thermal discharges. Third, EPA is
clarifying that TMDTLs must meet the requirements of Sec. 130.32(b) and
(c). EPA recognizes that the proposal was unclear regarding whether the
elements of a TMDL also apply to TMDTLs. EPA intended that they do.
Moreover, the purpose of Sec. 130.32(d) is to explain that TMDTLs are
designed to achieve a balanced indigenous population of shellfish,
fish, and wildlife instead of attaining the water quality criterion for
temperature.
EPA declines to apply the BIP standard to TMDLs established for
waterbodies impaired only by nonpoint sources of thermal loading. As
discussed in the preamble to the proposed rule, EPA believes that
section 303(d)(1)(B) and (D) applies the BIP standard only to thermal
discharges from point sources. (64 FR 46017, August 23, 1999).
EPA also rejects the suggestions that Sec. 130.32(d) be deleted
because thermal discharges are already regulated through NPDES permits.
Not all NPDES regulated discharges have permits that contain effluent
limits for heat. For some discharges on thermally impaired waterbodies
there may, therefore, be a need to develop thermal TMDLs to address for
the first time impairments by thermal discharges. EPA recognizes that,
where an NPDES regulated facility has obtained a section 316(a)
variance from thermal water quality standards, the facility already is
required to discharge at a level based on a BIP standard. However, this
is no different than the situation where a point source discharging
nitrogen is also regulated by an NPDES permit with effluent limitations
based on the applicable water quality standard. Section 303(d) requires
TMDLs and TMDTLs in both situations.
R. How Must TMDLs Take Into Account Endangered and Threatened Species
(Sec. 130.32(e))
What did EPA propose? EPA proposed to include language at
Sec. 130.33(e) to explain that TMDLs must not be likely to jeopardize
the continued existence of an endangered or threatened species listed
under section 4 of the Endangered Species Act or result in the
destruction or adverse modification of its designated critical habitat.
In practice, EPA believes it would be highly unlikely TMDL activities
could jeopardize listed species, since the TMDL program will result in
substantial improvements in water quality, to the benefit of all water-
dependent species.
What comments did EPA receive? A number of commenters opposed EPA's
proposal. Grounds for these objections include allegations that EPA
lacks authority to impose such a requirement, and that EPA is
attempting to shift the burden of compliance with the Endangered
Species Act away from EPA and to the States.
What is EPA promulgating today? EPA is promulgating this section as
proposed. Today's rule provides a framework for the public, States,
Territories and authorized Tribes and other Federal agencies to
recognize and account for the effects of lists and TMDLs on endangered
species.
The CWA provides ample authority for EPA to include this
requirement. This requirement is consistent with the goals of restoring
and maintaining the biological integrity of the nation's waters and
protection of fish, shellfish and wildlife. See CWA section 101(a).
Furthermore, the CWA requires that TMDLs be established at a level
necessary to implement applicable water quality standards, and that
standards consider propagation of fish and wildlife. See CWA sections
303(d)(1)(C) and 303(c)(2)(A). This is adequate authority to include a
regulatory requirement designed to protect endangered or threatened
species. See American Iron & Steel Institute v. EPA, 115 F.3d 979, 1003
(D.C. Cir. 1997). Although EPA does intend to require State, Territory,
or authorized Tribe TMDL submissions to adhere to this provision, it is
not EPA's intent to divest itself of any duty to comply with the ESA.
Where the ESA imposes duties upon EPA, the Agency intends to comply
with those requirements.
S. How are TMDLs Expressed? (Sec. 130.33)
What did EPA propose? EPA proposed at Sec. 130.34 specific
requirements regarding how TMDLs may be expressed. First, EPA clarified
that all TMDLs must contain an expression of the pollutant load or load
reduction necessary to assure that the waterbody will attain and
maintain water quality standards. This includes aquatic and riparian
habitats, and biological, channel, geomorphological, or other
appropriate conditions that represent attainment or maintenance of the
water quality standard. In these instances, the TMDL will contain the
wasteload and load allocations necessary to maintain these conditions.
EPA also proposed that States, Territories, and authorized Tribes
may use one of four approaches when expressing a TMDL. First, the TMDL
could be expressed as the pollutant load that ensures that the
waterbody does not exceed water quality standards. Second, the TMDL
could be expressed as the pollutant load reduction that attains or
maintains water quality standards. Third, the TMDL could be expressed
as the pollutant load or load reduction that attains or maintains
aquatic, riparian, biological, channel, or geomorphological measures so
that water quality standards are attained and maintained. Fourth, the
TMDL could be expressed as the pollutant load or load reduction that
results from modifying a characteristic of the waterbody such that
water quality standards are attained or maintained. EPA made this
proposal to allow States, Territories, and authorized Tribes to express
TMDLs in terms that are appropriate to the characteristics of the
waterbody and pollutant combination. Finally, EPA proposed that TMDLs
may, where appropriate, be expressed in other than daily terms, e.g.,
weekly, monthly, seasonal, or annual, as needed, to ensure that the
TMDL attains and maintains water quality standards. EPA made this
proposal because EPA has found through the practice of
[[Page 43629]]
establishing TMDLs that for some pollutants and their applicable
standards the concept of a ``daily'' load is simply not a technically
appropriate way of expressing a TMDL in a manner necessary to implement
water quality standards. In the preamble, EPA provided examples of
three situations where a seasonal or average loading was more
appropriate than a daily loading. (64 FR 46031, August 23, 1999). EPA
believes that allowing flexibility in expressing the TMDL to reflect
the environmental realities of the pollutant and waterbody better
allows TMDLs to achieve the Congressional goal of establishing TMDLs at
a ``level necessary to implement the applicable water quality
standards.''
What comments did EPA receive? EPA received many comments specific
to this section. Most comments focused on the legal and technical
issues pertaining to expressing TMDLs as other than a daily load. Some
comments expressed support for the flexibility to express TMDLs as
daily, monthly, seasonal, or annual loads where appropriate, and
believed this would allow TMDLs to better address nonpoint sources.
Many comments expressed concerns that use of other than daily loads
would allow for excessive loadings over short time periods. When
averaged with periods of no loading, these short-term loads could cause
the water quality standard to be exceeded. A number of comments stated
that only daily loads are permissible under the CWA, including for
nonpoint source loads. Other comments expressed the view that the need
to use any expression other than a daily value is an indication that
the pollutant is not suitable for TMDL calculations.
Some comments expressed concern that proposed Sec. 130.34 implied
that a TMDL was no longer a quantitative expression of the load
necessary to attain water quality standards. Other comments expressed
confusion whether the language of Sec. 130.34(b) allowed TMDLs to be
expressed as load reductions or not. A number of comments expressed
concern that, because TMDLs are now required to be quantitative
expressions of loads or load reductions, this removes the current
flexibility to express TMDLs as measures of water quality improvement
that do not directly express the load reductions. These comments
supported retaining the current rule language.
Some comments expressed support for TMDLs addressing riparian and
aquatic habitat, and biological, channel, geomorphological, or other
appropriate conditions. Other comments expressed doubt that TMDLs could
quantify the relationships between pollutant loads and these
expressions of water quality standards. Further comments expressed the
belief that TMDLs should only address numeric (and not narrative)
criteria in water quality standards.
What is EPA promulgating today? Based on its analysis of the many
comments received on this section, EPA is making the following changes
to the proposed rule language. First, EPA is revising proposed
Sec. 130.34(a) to add the word ``quantitative'' to modify the phrase
``expression of the pollutant load.'' EPA is making this change to
respond to the concerns that the TMDL was no longer a quantification of
the load necessary to attain water quality standards. As explained in
the preambles to both the proposed and final rules, the purpose of the
TMDL is to attain and maintain water quality standards, and the purpose
of the wasteload and load allocations is to identify the loadings
needed to attain and maintain these standards. EPA agrees there should
be no confusion as to this requirement, and thus is making this change
to the final rule.
Second, EPA is changing the word ``represent'' to ``result in'' in
proposed Sec. 130.34(a). EPA made this change based on concerns
expressed in comments that loadings or loading reductions do not
represent water quality standards but rather result in the attaining
and maintaining of water quality standards. EPA agrees with the
commenters that the words ``represent'' is imprecise.
Third, EPA is not promulgating the language of proposed
Sec. 130.34(b) that recognized that both the pollutant load and load
reductions may be expressed as other than a daily value as appropriate
to the characteristics of the waterbody and pollutant. This language
allowed TMDLs to be expressed as monthly, seasonal, and annual averages
as appropriate to the characteristics of the waterbody. EPA has decided
not to include this provision in the final rule because EPA is
concerned that it could be used to justify some TMDLs that do not in
fact attain and maintain water quality standards in all seasons and for
all flows. Instead, EPA is retaining a sentence it promulgated in the
1985 rule in the definition of a TMDL that speaks to how a TMDL can be
expressed. That sentence says that TMDLs may be expressed ``* * * in
terms of either mass per time, toxicity, or other appropriate
measure.'' EPA continues to believe that in some situations, it is
reasonable to authorize TMDLs that are expressed in other than daily
terms. As discussed in the August 1999 preamble, to conclude otherwise
could frustrate the Congressional goal of establishing TMDLs at a level
necessary to implement the applicable water quality standards. EPA
disagrees with the comments asserting that only daily loads are
permissible under the CWA. (64 FR 46031, August 23, 1999). The CWA does
not define a TMDL. Nor does the Act specify how a TMDL may or should be
expressed. Consequently, the Act does not mandate that a TMDL be
expressed as a daily load, and does not require EPA to disapprove TMDLs
expressed as daily loads. Rather, this matter is left to EPA's
discretion because where a statute is silent on a specific issue, EPA's
interpretive regulations are entitled to controlling weight. EPA's
previous regulations at Sec. 130.2(i) and current regulations at
Sec. 130.33(b)(5) expressly provide that a TMDL may be expressed in
terms of either mass per time, toxicity, or other appropriate measure.
Furthermore, EPA interprets its regulations to permit TMDLs to be
expressed in terms other than daily loads as long as compliance with
the applicable water quality standard is assured.
EPA acknowledges the concern that use of other than daily loads
could allow for excessive loadings over short time periods that, when
averaged with periods of no loading, might satisfy the wasteload and
load allocations, but would cause the water quality standard to be
exceeded. However, EPA continues to believe that there are situations
where other than a daily load is appropriate to ensure that water
quality standards are attained and maintained. Where other than a daily
load is necessary to address relevant factors, such as the variability
of nonpoint sources, the averaging period of the water quality standard
or the physical size and hydraulic nature of the waterbody, EPA expects
that the State, Territory, or authorized Tribe will use the most
appropriate expression of the load amenable to those characteristics.
To help ensure that this flexibility is appropriately used, EPA, in its
review of the TMDL, will look for an explanation by the State,
Territory, or authorized Tribe as to the reasons why it is appropriate
to express the TMDL in terms other than a daily load. The TMDL
documentation will need to show that the resulting allocations are
sufficient to eliminate the impairment, addressing all aspects of the
water quality standard and the adverse effects of the pollutant in
question. For example, the documentation would discuss, where
appropriate, the difference between acute short-term impacts during
storm flows and long-term effects of the pollutants in the
[[Page 43630]]
system over time, or the difference between short-term changes in water
column concentrations and the long-term impacts of pollutant
concentrations in sediments and biota. If a TMDL for a particular
pollutant contained an expression other than a daily load, and the
situation indicated that expressing the TMDL as a daily load is a
necessity to attain and maintain water quality standards, EPA would
disapprove the TMDL as insufficient to attain and maintain water
quality standards.
EPA does not interpret the final rule to require that TMDLs always
be expressed as the load or load reduction of the pollutant causing the
impairment. The final rule at Sec. 130.32(b)(5) preserves the
flexibility to express the TMDL as a quantitative expression of a
modification to a characteristic of the waterbody that results in a
certain load or load reduction. In these situations, the TMDL is
required to identify the pollutant load present in the waterbody
(Sec. 130.32(b)(3)) and the deviation from that load necessary to
attain and maintain water quality standards (Sec. 130.32(b)(4)).
However, the allocations and implementation plan monitoring measures
could be expressed in terms of a surrogate measure of the necessary
load reduction. In these situations, the relationship between a
surrogate measure and the pollutant load should be clearly described in
the TMDL documentation. For example, a TMDL that addresses exceedances
of temperature criteria because of a denuded riparian corridor is
ultimately expressed in terms of heat units, e.g., BTU or calories per
day, over time. However, the environmental measure that might be most
appropriate for implementation plan monitoring purposes is temperature
(degrees); for implementation plan management measures it might be
miles or acres of riparian zone restored. These surrogate measures must
correlate to their ability to reflect a reduction of heat load and
decrease in water temperature. In this example, the TMDL documentation
would calculate the total heat load that achieves either the
temperature water quality standard, or a balanced, indigenous
population of fish, shellfish and wildlife, whichever standard is
applicable for the waterbody. The TMDL would then show how that heat
load would be achieved by a quantified increase in forestation (the
appropriate surrogate measure) designed to increase shading of the
waterbody. In this way, the environmental measures of ambient
temperature and riparian characteristics are quantitatively related to
the thermal load expressed in the TMDL.
Other comments expressed doubt that TMDLs could quantify the
relationships between pollutant loads and expressions of aquatic or
riparian habitat health, and biological, channel, geomorphological, or
other appropriate conditions in water quality standards. EPA recognizes
there are many causes of elevated pollutants in surface waterbodies.
Some situations do not involve a discharge of pollutants, but
nevertheless affect the amount of a pollutant load in the waterbody. In
these instances, the final rule language requires the State, Territory,
or authorized Tribe to develop a TMDL for whatever pollutant (including
heat) that causes the waterbody to exceed the water quality standard.
For example, where the impairment of an aquatic habitat is caused by
excessive sediment as a result of landslides or bank erosion, EPA
expects that the TMDL would be established for the pollutant sediment.
Another example is where an aquatic habitat is stressed by excessive
temperature as a result of a denuded riparian habitat. In this
instance, EPA expects the TMDL would be established for the pollutant
heat. EPA has developed guidance on how to address impairments due to
sediment, which was the most frequent cause of impairment mentioned in
the States' 1998 section 303(d) lists. See ``Protocol for Developing
Sediment TMDLs,'' EPA 841-B-99-004, October 1999.
EPA declines changing the proposal to provide in the final rule
that TMDLs need address only impairments of numeric criteria in water
quality standards. EPA's long standing policy has been that narrative
criteria apply to all designated uses at all flows and are a necessary
component of State water quality standards. See section 303(c)(2)(A) of
the CWA; and the Water Quality Standards Handbook, EPA-823-B-94-005a,
August 1994, page 3-24. Narrative criteria descriptively accomplish
what numeric criteria account for quantitatively. Narrative criteria
are descriptions of the conditions of the waterbody necessary to attain
and maintain its designated use, while numeric criteria are values
expressed as levels, concentrations, toxicity units or other measures
which quantitatively define the permissible level of protection. Thus,
narrative water quality criteria establish the basic foundation for
attainment of designated uses while numeric water quality criteria
provide a specific quantitative translation of the necessary level of
protection. In short, numeric criteria are specific, quantified
expressions of the narrative criteria. States, Territories and
authorized Tribes adopt translator procedures by which to derive a
quantified numeric interpretation of the narrative criterion. Such
procedures must be scientifically defensible, and are also subject to
EPA review and approval. EPA recognizes that narrative water quality
criteria are not expressed as numbers and thus are not directly
amenable to TMDL calculations. However, as expressed in EPA guidance, a
State, Territory, authorized Tribe, or EPA can quantify narrative
criteria for use on regulatory actions. See ``Technical Support
Document for Water Quality-based Toxics Control,'' EPA/505/2-90/001,
March 1991; Sec. 122.44(d)(1); ``Guidance for Water-Quality-based
Decisions: The TMDL Process,'' EPA 440-4-91-001, 1991; Sec. 132
Appendix F Procedure 3 [which speaks to ``values'' which are that
rule's equivalent to quantifications of narrative criteria]. Therefore,
EPA continues to believe that TMDLs can be calculated based on
narrative criteria where those criteria can be quantified.
CWA section 303 directs States, with oversight by EPA, to adopt
water quality standards to protect the public health and welfare,
enhance the quality of water and serve the purposes of the CWA. Under
section 303, States, Territories, and authorized Tribes are required to
develop water quality standards for waters of the United States within
the State. Section 303(c) provides that water quality standards shall
include the designated use or uses to be made of the water. EPA
regulations implementing section 303(c) are published at Part 131.
Under these rules, the minimum elements that must be included in a
State's water quality standards include use designations for all water
bodies in the State, water quality criteria sufficient to protect those
use designations, and an antidegradation policy. Section 131.10
requires States and authorized Tribes to adopt appropriate uses to be
achieved and protected. In no case can they adopt waste transport or
assimilation as a use for any waters. EPA has in the past, and may in
the future, promulgate designated uses for State waters where such
action is necessary to meet the requirements of the CWA and the
implementing federal regulations.
EPA's policy is that, because designated or existing uses of a
waterbody are part of the water quality standards, they are also an
appropriate basis for determining an impairment of that waterbody. All
of the water quality protections established by the CWA follow from the
waterbody's use--established, protected and maintained
[[Page 43631]]
under the authorities of section 303(c) of the CWA. Thus, designated
uses establish the fundamental basis for determining whether the water
quality standards of a waterbody are attained.
In certain circumstances it is possible that water quality criteria
can be met, and the designated uses still not achieved. For example,
factors such as food web structure, the concentration of dissolved
organic carbon in the ambient water, and accumulations in the sediment
may effect uptake of mercury into fish flesh on a site specific basis.
In these circumstances, EPA recommends States, Territories, and
authorized Tribes translate the applicable narrative criteria on a site
specific basis, or adopt site specific numeric criteria, to protect
designated uses. However, ultimately, the final determination of
whether the water quality standard is attained is made by determining
the attainment of the designated use.
T. What Actions Must EPA Take on TMDLs That are Submitted for Review?
(Sec. 130.34)
What did EPA propose? In proposed Sec. 130.35, EPA included several
minor changes to its current regulatory submission and approval
requirements for TMDLs to clarify how the approval process would work.
The proposal provided that EPA would only approve a TMDL submission
that included all required minimum elements. The proposal would have
continued the requirements of the current regulations that when EPA
establishes a TMDL, it would send it to the State, Territory, or
authorized Tribe for incorporation into the water quality management
plan. EPA also proposed to continue the requirements of the current
regulations that, when EPA establishes a TMDL, it requests public
comment on the TMDL for at least 30 days following its establishment.
The proposal also would have added new requirements regarding how EPA
would provide public notice and revise TMDLs it establishes based on
the public comment it receives.
What comments did EPA receive? EPA received comments regarding the
criteria it will use to review TMDLs. Some comments suggested that
EPA's review should focus only on whether the TMDL included all
required elements, and that EPA must approve any TMDL received if it
contained all elements. In contrast, other comments suggested that EPA
should review the elements for their consistency with the substantive
requirements of this subpart, including whether the TMDL is set at a
level sufficient to attain and maintain water quality standards.
Further comments again expressed belief that the CWA only allows EPA to
review the total load calculated for a waterbody and nothing else.
(Today's preamble discusses this issue in section II.A.1.e.)
EPA also received comments about the timing of its actions. Many
comments requested an automatic approval of TMDLs if EPA does not act
to approve or disapprove the TMDLs within 30 days, or fails to send the
State, Territory, or authorized Tribe comments on the TMDL. These
comments expressed concern that EPA will not be able to take timely
action on all TMDLs and that the new rules will make EPA's review take
even longer.
EPA also received comments about its process for disapproving and
establishing TMDLs. Several comments expressed concern that the
proposal did not commit EPA to take action as required by the CWA.
These comments suggested that EPA use the word ``must'' or ``shall''
where ever the section spoke to statutory obligations. Many comments
requested that EPA provide an appeal process, public hearing, or
consultation with States, Territories and authorized Tribes on
disapproved TMDLs. Other comments requested that EPA explain to States,
Territories and authorized Tribes and the public why it disapproved any
TMDL. These comments generally expressed concern that EPA might make
arbitrary decisions to disapprove TMDLs. Some comments expressed the
view that EPA must follow the same public notice process as States,
Territories and authorized Tribes when EPA establishes a TMDL.
EPA also received comments about the adoption of TMDLs into water
quality management plans. Some comments requested that EPA establish a
deadline by which States, Territories, and authorized Tribes must adopt
TMDLs into their plans. Other comments expressed a belief that a TMDL
is not effective until after a State, Territory, or authorized Tribe
adopts it into its water quality management plan.
What is EPA promulgating today? Based on its analysis of the many
comments received, EPA has revised this section, now numbered as
Sec. 130.34. First, EPA is deleting proposed paragraph Sec. 130.35(a)
because it was duplicative of the requirements of proposed paragraph
Sec. 130.35(b). Section Sec. 130.35(a) would have required that EPA
approve TMDLs that included the elements identified in proposed
Sec. 130.33(b), whereas proposed Sec. 130.35(b) would have required
that EPA approve TMDLs that met the requirements of proposed
Secs. 130.32, 130.33, and 130.34, i.e., established in accordance with
the schedule, including the elements required by Sec. 130.33(b) and
appropriately expressed. EPA agrees with commenters that the review
criterion in proposed Sec. 130.35(a) was included within proposed
Sec. 130.35(b). Therefore, EPA is not including the language for
proposed Sec. 130.35(a) in the final rule.
The final regulations at Sec. 130.34(a) provide that EPA will
approve TMDLs if they are established for the appropriate waterbody/
pollutant combination as required by Sec. 130.31, include all elements
prescribed by Sec. 130.32, and are expressed in accordance with
Sec. 130.33. EPA will disapprove any TMDL submitted by a State,
Territory, or authorized Tribe that does not include all elements of
Sec. 130.32(b) or fulfill the substantive requirements of Secs. 130.31,
130.32, and 130.33. EPA will work with States, Territories, and
authorized Tribes, including providing comments on TMDLs submitted to
it in draft form, to help ensure that the TMDLs that EPA receives are
approvable. EPA considers all elements of Sec. 130.32(b) and the
substantive requirements of Secs. 130.31, 130.32, and 130.33 as
necessary for determining whether a TMDL, when implemented, will attain
and maintain water quality standards.
EPA declines to provide that TMDLs shall be deemed automatically
fully or conditionally approved at the end of the 30-day review period
if EPA has not acted. EPA acknowledges commenters' concerns regarding
the timeliness of EPA's TMDL approval actions. However, an automatic
full or conditional approval of a State's, Territory's or authorized
Tribe's TMDL submission upon expiration of the 30-day review period is
not consistent with section 303 of the CWA. Section 303(d) requires EPA
to approve or disapprove a submitted TMDL. EPA has the responsibility
to determine that submitted TMDLs fulfill the requirements of the CWA
and these implementing regulations. EPA declines to adopt an approach
which would result in automatic approval actions when EPA has not
evaluated the sufficiency of the TMDL with respect to the requirements
of section 303(d). As previously discussed, EPA expects to share
comments and information with States, Territories and authorized Tribes
on draft TMDLs submitted to EPA for informal review. EPA believes that
such information sharing will help assure approvable TMDLs and will
enable EPA to complete its review within the 30-day statutory time
frame.
As requested by comments, EPA is clarifying what actions EPA is
obligated to take in its decisions. Therefore, the
[[Page 43632]]
final rule uses the word ``must'' to represent EPA's statutory
obligations to either approve or disapprove and establish a TMDL. The
final rule also uses the word ``must'' with regards to EPA's public
notice requirements when EPA disapproves and establishes a TMDL.
EPA declines to establish in the final rule an appeal or
consultation process for States, Territories, and authorized Tribes
when EPA disapproves their TMDLs. Because section 303(d) only allows
EPA 30 days to establish a replacement TMDL after EPA disapproves one,
EPA does not have sufficient time to allow for an appeal or
consultation process. Also, the 30-day period for EPA to issue an order
establishing a TMDL and the minimum 30-day public comment period on the
TMDL allows time during which the State and EPA can consult on the new
TMDL. If during that time, the State decided to adopt and EPA approved
a TMDL meeting EPA's objectives, EPA would withdraw its TMDL. As
previously discussed, EPA expects that sharing information with States,
Territories, and authorized Tribes on TMDLs being drafted will help EPA
and States, Territories, and authorized Tribes resolve differences over
TMDLs before they are submitted.
EPA agrees that it needs to describe in the administrative record
of its TMDL disapproval decisions the reasons for the disapproval and
make that information available to States, Territories, authorized
Tribes, and interested parties. EPA's public notice requirements at
Part 25 describe the process by which EPA generally makes information
available and receives public comment. As described later in the
preamble, EPA patterned the TMDL public notice requirements on its own
Part 25 requirements. EPA also declines to establish a deadline by
which States, Territories, and authorized Tribes must adopt TMDLs into
their water quality management plans. The CWA does not provide for or
require such a deadline. EPA does not believe it is necessary to
require adoption of TMDLs in the State's, Territory's or authorized
Tribe's plan on a specified schedule once EPA approves or establishes
it. A TMDL may be used as a basis for NPDES permits and other
implementation actions once EPA approves or establishes it and before
it is incorporated into the Water Quality Management Plan. States,
Territories and authorized Tribes have different legal requirements for
revising their Plans to incorporate TMDLs. EPA believes there is no
compelling reason to require States, Territories, and authorized Tribes
to revise their individual requirements solely to assure incorporation
of all TMDLs into Water Quality Management Plans by a certain
federally-prescribed date.
EPA is also adding Sec. 130.34(b) and (c) to clarify how EPA will
provide reasonable assurance when EPA establishes a TMDL. EPA will use
its authority to condition CWA grants to the fullest extent practicable
and in a manner consistent with the effective operation of clean water
programs. For example, EPA may condition section 319 grants such that
the funds can only be used to implement management measures in
watersheds where EPA has established a TMDL that includes load
reductions for nonpoint sources. Similarly, EPA may condition section
106 grants such that the funds for monitoring can only be used to
support the monitoring specified in TMDL implementation plans. EPA may
also use its voluntary, incentive-based programs to ensure that
management measures are funded and implemented. EPA believes this
authority to condition grants will generally be the sole or primary
basis by which it will demonstrate reasonable assurance for the
implementation of load allocations. EPA will also encourage States,
Territories, and authorized Tribes to use their own statutory and
regulatory authorities. EPA cannot, however, require States,
Territories or authorized Tribes to use their statutory and regulatory
authorities.
Where necessary, EPA will make use of its other statutory and
regulatory authorities to provide reasonable assurance. EPA recognizes
that its CWA regulatory authority is primarily limited to the NPDES
permit program for point sources. In some cases, EPA may use
authorities under section 504 of the CWA to address an ``imminent and
substantial endangerment to human health or welfare.''
U. How Will EPA Assure That TMDLs Are Established? (Sec. 130.35)
What did EPA propose? EPA proposed in Sec. 130.36 to codify its
authority to establish TMDLs if the State, Territory, or authorized
Tribe so requests, or if EPA determines that a State, Territory, or
authorized Tribe has not or is not likely to establish TMDLs in
accordance with their schedules, or if EPA determines it should
establish TMDLs for interstate or boundary waterbodies. EPA made this
proposal for a number of reasons. EPA explained that it may be
necessary for EPA to establish TMDLs if interstate or international
issues and coordination needs require EPA to assume a leadership role.
64 FR 46037, August 23, 1999.
EPA explained in the preamble that it anticipates that a decision
to step in and establish TMDLs would be ``rare and based on case
specific decisions.'' Finally, EPA explained that it may have to
exercise its authority to establish TMDLs where the State, Territory,
or authorized Tribe requests this support from EPA. As discussed in the
preamble, EPA recognizes that this authority to establish TMDLs absent
a prior disapproval is not expressly stated in section 303(d). However,
EPA explained that such authority is clearly implied in the CWA, is a
reasonable interpretation of the Act, has been required of EPA by the
courts, and is necessary to accomplish the purposes of the Act. 64 FR
46037, August 23, 1999.
What comments did EPA receive? EPA received comments about the
conditions under which EPA proposed to establish TMDLs. Some comments
expressed a belief that EPA must step in when a State, Territory, or
authorized Tribe is likely not to or does not establish TMDLs according
to its schedule. Others were concerned about the phrase ``likely not
to'' and suggested that EPA establish TMDLs only after a State,
Territory, or authorized Tribe fails to do so. Further comments
expressed the belief that EPA has no authority to establish TMDLs
outside of a disapproval except when a State requests EPA to do so.
EPA received comments about the conditions under which EPA would
establish a TMDL for interstate waterbodies. Some comments supported
the proposal. Others believed that EPA must establish interstate TMDLs
on behalf of the States. Further comments expressed the view that this
authority is limited to situations where EPA determines that States,
Territories and authorized Tribes are not making progress in
establishing TMDLs. More comments expressed the view that this
authority is limited to situations where States, Territories and
authorized Tribes or interstate commissions ask EPA to establish TMDLs.
A few comments rejected EPA's suggested option to require States,
Territories and authorized Tribes jointly to develop interstate TMDLs.
Others suggested that EPA's role is to coordinate with States,
Territories and authorized Tribes on interstate TMDLs and not establish
them for States, Territories and authorized Tribes.
What is EPA promulgating today? In Sec. 130.36 of the proposal, EPA
proposed to codify its authority to establish TMDLs for waterbodies on
Part 1 of a list under certain circumstances,
[[Page 43633]]
including if EPA determined that a State, Territory, or authorized
Tribe had not or was not likely to establish TMDLs consistent with its
schedule. In response to comments and to better ensure that TMDLs will
be established, EPA has added a new Sec. 130.35 to the final rule which
codifies steps EPA will take to implement its authority under section
303(d) to assure that TMDLs are established for listed waters. In
addition to ``working with'' States, Territories, and authorized Tribes
to assure establishment in accordance with approved schedules, EPA will
ensure that TMDLs are established for States, Territories, and
authorized Tribes if they have not made ``substantial progress'' in
establishing TMDLs in accordance with their ``approved schedule.'' A
discussion of what EPA means by ``substantial progress'' and a more
detailed discussion of EPA's schedule for acting if States,
Territories, and authorized Tribes fail to demonstrate ``substantial
progress'' appears below.
As requested by comments, EPA is clarifying that it is obligated to
ensure that States, Territories, and authorized Tribes establish TMDLs
in accordance with their approved schedules. EPA believes the
requirements it is placing on itself to act in Sec. 130.35 are both
consistent with CWA section 303(d) as it has been interpreted by a
number of courts and a logical outgrowth of the proposal. They are a
logical outgrowth in that, in the proposal, EPA clearly noticed its
intent to exercise its authority under section 303(d) to step in and
establish TMDLs when it determines a State was not likely to do so. In
the final rule, EPA is simply clarifying and expanding upon that
concept and stating under what specific conditions and upon what
schedule EPA will do that. EPA's decision to codify the circumstances
under which it will ensure that TMDLs are established is also
consistent with the decisions of a number of courts which have
interpreted CWA section 303(d) as placing upon EPA a duty to establish
TMDLs where a State, Territory, or authorized Tribe has failed to do
so, or in the words of the courts, where a State has made a
``constructive submission'' of no TMDLs.
EPA is also identifying two ways by which it will assure that all
TMDLs are established as planned for in the schedule for TMDLs. First,
EPA must work with the State, Territory, or authorized Tribe in
establishing TMDLs. EPA may do this by providing technical or financial
assistance consistent with EPA's abilities and resources, or by
establishing certain TMDLs upon the request of the State, Territory, or
authorized Tribe. Where a State, Territory, or authorized Tribe has not
made substantial progress on establishing a TMDL in accordance with its
approved schedule, EPA must ensure that the TMDL is established. EPA
does not expect to invoke this authority frequently. Based on its
experience to date under court-ordered schedules, EPA believes that the
States, Territories, and authorized Tribes will be able to establish
most of their TMDLs according to the dates in their schedules.
Today's final rule also explains how EPA will determine if a State,
Territory, or authorized Tribe has made substantial progress in
establishing a TMDL. Under Sec. 130.28(c), States, Territories, and
authorized Tribes will specify which TMDLs they intend to establish in
each one year period. If a State, Territory, or authorized Tribe has
not established the TMDL by the end of the one year period within which
the TMDL was scheduled to be established, it has not made ``substantial
progress'' as described in today's rule. At this point, EPA must ensure
that the TMDL is established within two years. In a case where EPA
develops a TMDL, the Agency expects to publish the TMDL within 2 years.
In rare instances, where there is a compelling need for additional
time, the Administrator may extend the 2 year period by up to an
additional 2 years. The Administrator must publish a description of a
decision to provide an extension in the Federal Register. If the State,
Territory, or authorized Tribe establishes the ``missed'' TMDL before
EPA establishes it pursuant to this section, EPA must review and either
approve or disapprove that TMDL pursuant to section 303(d), and if
approved at that time its obligation to establish the TMDL expires. EPA
will also look at the stage of development of a TMDL in comparison to
the schedule in determining if a State, Territory, or authorized Tribe
is making substantial progress. Where the State, Territory, or
authorized Tribe is close to completing the TMDL at the time called for
by the schedule, EPA will interpret this as substantial progress.
As discussed in the August 1999 preamble, EPA has the authority to
establish TMDLs even when it has not disapproved a State, Territorial,
or authorized Tribal submission. 64 FR 46037-46038, August 23, 1999.
EPA recognizes the merit, in some instances, for it to take the lead in
establishing TMDLs for interstate and boundary waterbodies and expects
to exercise this authority primarily for interstate waterbodies. For
this reason, EPA is including in the final rule a provision allowing
EPA the discretion to establish TMDLs for interstate or boundary
waters. Boundary waters are those rivers, streams and lakes which form
part of the boundary between States, Territories and Indian Country.
These waters present special problems because, in many instances, the
waterbody is governed by two or more potentially differing sets of
water quality standards. Similar problems may be present for interstate
water which--rather than forming a jurisdictional boundary--flow out of
one jurisdiction and into another. In exercising this authority, EPA
will encourage States, Territories and authorized Tribes to take the
lead in developing TMDLs for such waterbodies because EPA interprets
the CWA as giving States, Territories and authorized Tribes the lead
responsibility for doing so. EPA also strongly encourages States,
Territories and authorized Tribes to work with interstate river basin
and other commissions, where appropriate, when establishing TMDLs for
interstate or boundary waters. These commissions are uniquely
positioned, by virtue of their multi-state membership and technical
expertise, to assist EPA and the States in establishing TMDLs for such
waters.
EPA anticipates at least two instances in which it might need to
exercise its authority to establish interstate and boundary water
TMDLs. The first is when the States, Territories and authorized Tribes
have not made substantial progress in establishing interstate and
boundary water TMDLs according to their schedules. The second is where
individual adjacent State schedules are so different with respect to
interstate or boundary waters that they may defeat the ability of the
States, Territories and authorized Tribes to work together to establish
an interstate or boundary water TMDL. EPA believes the final rule
language should allow EPA the flexibility to establish TMDLs for
interstate and boundary waters under such circumstances. Finally, EPA
is not including in the final rule a requirement that States,
Territories and authorized Tribes work together jointly to establish
TMDLs on interstate waters. Instead, EPA will continue to serve as a
facilitator to help States, Territories and authorized Tribes establish
interstate TMDLs, and EPA will use its authority when necessary to
ensure that interstate TMDLs are established.
EPA is also adding a statement at Sec. 130.35(b)(2) that EPA may
establish TMDLs for waterbodies to implement Federal water quality
standards. As previously discussed in today's
[[Page 43634]]
preamble, EPA recognizes that there are some impaired waterbodies
outside the jurisdiction of States, Territories, and authorized Tribes.
Where EPA has established Federal water quality standards for these
waterbodies, such as waterbodies located on tribal lands where the
Tribe has yet to be authorized under section 303, EPA believes it has
the authority to also establish TMDLs for the reasons given above.
V. What Public Participation Requirements Apply to the Lists and TMDLs?
(Sec. 130.36)
What did EPA propose? EPA proposed a number of specific
requirements for public participation. EPA proposed to require that
States, Territories and authorized Tribes provide the public with at
least 30 days to review and comment on all aspects of the list, the
priority ranking, the schedule for developing TMDLs, and the TMDLs
themselves prior to their submission to EPA. EPA also proposed that, at
the time States, Territories, and authorized Tribes submit their list,
schedule or TMDLs to EPA, they provide EPA with a written summary of
any public comments received during the public comment period and their
response to such comments. In addition, EPA proposed to require States,
Territories, and authorized Tribes to send, at the time of public
notice, copies of lists, priority rankings, TMDL schedules and TMDLs to
the U.S. Fish and Wildlife Service and the National Marine Fisheries
Service (the Services), where appropriate (e.g., coastal areas). The
proposal also provided that, if requested, EPA would send this
information to the Services on behalf of the State, Territory, or
authorized Tribe.
As proposed, the rule also encouraged States, Territories, and
authorized Tribes to establish processes with both Services to provide
for the early identification and resolution of threatened and
endangered species issues as they may relate to lists of impaired
waterbodies, priority rankings, schedules, and TMDLs. The proposal also
would have required States, Territories, and authorized Tribes to
consider any comments received from the Services prior to the
submission of their lists of impaired or threatened waterbodies,
priority rankings, schedules, and TMDLs to EPA. EPA proposed these
provisions to help ensure timely input from the wildlife agencies as
lists and TMDLs are being developed.
What comments did EPA receive? EPA received a number of comments
specific to the public participation process. Most comments supported
the inclusion of public participation requirements. Many comments,
however, stated that a 30-day period was too short. A number of
comments suggested that the public comment period should be 60 days or
longer to facilitate better understanding of the complex issues related
to lists and TMDLs. Some commenters recommended specific requirements
for the purpose of ensuring notice to interested parties and
incorporation of their comments on listing and TMDL decisions. Most
comments which addressed this issue recommended that EPA pattern the
public notice requirement after those for NPDES permits. Specifically,
commenters asked that States, Territories and authorized Tribes be
required to establish and maintain mailing lists. Other commenters
recommended that EPA be subject to the same public participation
requirements as proposed for States, Territories, and authorized
Tribes. Further comments suggested that any action to remove a
waterbody from a section 303(d) list be subject to the same public
participation process as the listing of a waterbody. Many comments
objected to the detailed requirements governing how States, Territories
and authorized Tribes should address comments they receive and the
amount of information about those comments, including responses, they
should supply to EPA. Commenters also expressed concern that the
proposal gave special notice consideration to the Services, and thus
seemed to transfer EPA's obligations under the Endangered Species Act
to States, Territories, and authorized Tribes.
What is EPA promulgating today? After carefully considering the
comments received on the public participation requirements, EPA is
today promulgating the requirements as proposed with a few changes. EPA
is making conforming changes throughout the section to reflect the
fact, as discussed earlier, that the list of impaired waterbodies
includes a prioritized schedule for establishing TMDLs.
The final rule maintains the requirement for a minimum 30-day
comment period on lists and TMDLs. EPA recognizes that decisions on
lists and TMDLs can sometimes benefit from a significant amount of
technical information and analysis related to decisions on lists,
rankings, schedules, and TMDLs. States, Territories and authorized
Tribes may in such circumstances find a need to allow for longer than
30-day comment periods on lists and TMDLs. However, the rule as
proposed and promulgated today specifies 30 days as the minimum comment
period. In some instances, particularly where the issues and analyses
related to a TMDL are not complex, States, Territories, and authorized
Tribes should find that a 30-day comment period is adequate. The final
rule, however, gives States, Territories, and authorized Tribes the
flexibility to increase their comment periods as appropriate.
EPA is also adding language in the final rule also to encourage
States, Territories, and authorized Tribes to notify directly those
parties who submit a written request for notification. EPA received a
number of comments suggesting that direct notification be a requirement
in the same way that authorized State NPDES programs are required to
directly notify parties that request such notice. EPA does not believe
that establishment of TMDLs is entirely comparable to issuance of an
NPDES permit for notice purposes (e.g. the number of potentially
affected parties may be much larger for a TMDL). EPA however, is
including in the final regulation a recommendation that States,
Territories and authorized Tribes provide direct notification to
parties that request it.
EPA is not including in this section of the final rule public
participation requirements for EPA. Today's final rule at Sec. 130.34
includes public participation requirements for EPA regarding
disapproval and establishment of TMDLs. In addition, EPA's rules at
Part 25 already provide general public participation guidance and
requirements for EPA, which include notice to parties that request
notice, publication of notice in a newspaper of general circulation,
and response to significant comments.
EPA recognizes the importance of public participation on all
aspects of section 303(d) decisions, including decisions to remove a
waterbody/pollutant combination from the section 303(d) list. EPA has
added provisions in the final rule at Sec. 130.29(a) to require that
all actions to add or remove waterbodies from the list follow the
public participation requirements. In this way, the public is kept
informed as to the nature and reasons for any changes to the section
303(d) list.
EPA agrees with the comments which suggested that the proposal was
too detailed regarding how States, Territories and authorized Tribes
should respond to comments. As suggested by some comments, EPA has
reviewed the rules pertaining to NPDES permitting and EPA's rules at
Part 25 and has simplified the response to comments requirements for
the final rule. The final
[[Page 43635]]
rule now requires a response to ``all significant comments'' instead of
``all comments,'' as proposed. The final rule no longer includes
specific requirements as to what is to be included in the response to
comments document. EPA believes this change will allow States,
Territories, and authorized Tribes the flexibility they need when
addressing public comments. EPA's public participation rules for
rulemaking and permitting at Part 25 require EPA to respond to
significant comments and to include at a minimum, a summary of public
views, significant comments, criticisms and suggestions, and set forth
the Agency's specific responses in terms of modification of the
proposed action or an explanation for rejection of proposals made by
the public (Sec. 25.8). EPA is persuaded by the comments that States,
Territories and authorized Tribes should not be held to a higher
standard than EPA. Pursuant to the final rule, States, Territories and
authorized Tribes need only consider significant comments and indicate
how they were addressed in the final action or why they were not
addressed.
The rule recognizes that the Fish and Wildlife Service and the
National Marine Fisheries Service have an interest in a State's,
Territory's or authorized Tribe's list and TMDLs. By including the
provisions of Sec. 130.36(c), EPA is not giving the Services greater
opportunity to receive information or to comment than is afforded
anyone else. Nor is EPA attempting to transfer its obligations under
the Endangered Species Act to States, Territories or authorized Tribes.
The provisions of Sec. 130.36(c)(1) require States, Territories, and
authorized Tribes to provide the Services with copies of lists,
including prioritized schedules and TMDLs. However, under the public
participation requirements of Sec. 130.36(a), any interested party may
also request similar access to this information by making a written
request to the State for direct notification. EPA is promulgating
Sec. 130.36(c)(1) because the Services have expressed to EPA an
interest in reviewing section 303(d) lists and TMDLs. In recognition of
the potential burdens on the States which such information sharing
might impose, EPA agreed it would undertake this information sharing
responsibility with the Services if requested by a State, Territory, or
authorized Tribe.
The provisions of Sec. 130.36(c)(2) encourage, but do not require,
States, Territories, and authorized Tribes to engage the Services in a
dialogue related to Endangered Species Act concerns. EPA believes that
it can reduce the number of times it may need to disapprove a list or
TMDL based on endangered species concerns if the States, Territories,
and authorized Tribes communicate with the Services early in the
process of developing lists and TMDLs. For this reason, EPA is
including in the final rule a recommendation that States, Territories
and authorized Tribes establish processes with the Services that will
provide for the early identification and resolution of their concerns
as they relate to lists and TMDLs. States, Territories and authorized
Tribes are not required to establish such a process, but may find it
advantageous to do so.
Section 130.36(c)(3) requires States, Territories, and authorized
Tribes to consider comments from the Services and EPA in the same way
that Sec. 130.36(b) requires States, Territories, and authorized Tribes
to provide a response to significant comments and an explanation of how
those comments were addressed in the final action or why they were not
addressed. Section 130.36(c)(3) does not require States, Territories,
and authorized Tribes to agree with or adopt comments or
recommendations from EPA and the Services; however, it does require an
explanation of how these comments were considered in the final
decision. This is the standard set by Sec. 130.36(b) for all comments
received by a State, Territory, or authorized Tribe.
The provisions of Sec. 130.36(d) recognize that EPA will consider
the comments of the Services when EPA reviews lists and TMDLs. EPA does
not believe that this provision provides the Services with any greater
access to the decision maker than other commenters. Rather, this
provision alerts States, Territories, and authorized Tribes that EPA
will consider the comments of the Services and how those comments were
addressed.
W. What is the Effect of This Rule on TMDLs Established When the Rule
is First Implemented? (Sec. 130.37)
What did EPA propose? EPA proposed a transitional period for
implementing the TMDL requirements of the new rule. Specifically, EPA
proposed that it would approve any TMDL submitted to it for review
within 12 months of the final rule's effective date if it met either
the pre-promulgation requirements in Sec. 130.7 or the post-
promulgation requirements in Secs. 130.31, 130.32 and 130.33. EPA also
proposed that when EPA establishes TMDLs within 12 months of the rule's
effective date, EPA would use either the Sec. 130.7 requirements or the
new requirements in proposed Secs. 130.31, 130.32 and 130.33. EPA
proposed this transitional period to give States, Territories,
authorized Tribes and EPA the security of knowing they could develop
TMDLs prior to promulgation of the new rules without them later being
determined inadequate as a result of the adoption of the new rule. In
this way, States, Territories, authorized Tribes and EPA would not
delay work towards establishing TMDLs until after the final rule was
published. Also, EPA requested comment on whether the new TMDL
requirements would affect the ability of States, Territories, or
authorized Tribes to establish TMDLs on a schedule consistent with
consent decree or settlement agreement schedules, and if so, how to
address the issue.
What comments did EPA receive? EPA received a number of comments
specific to the transitional period and actions EPA should take to
facilitate establishing TMDLs in accordance with schedules in consent
decrees and settlement agreements. Most comments supported the
transitional period and many supported a period longer than 12 months.
Some comments requested that some TMDLs be developed under the current
requirements for ``good cause.'' Two comments suggested no transitional
period, with one suggesting that States, Territories, and authorized
Tribes be allowed to submit implementation plans no more than six
months after submitting the other parts of the TMDL. EPA also received
comments suggesting that EPA must establish TMDLs using either the
current or new rules during the transitional period, and that EPA
should work to establish TMDLs quickly using the new rules. Finally,
EPA received some comments suggesting that all schedules should be
revised because of these new regulations.
What is EPA promulgating today? After carefully considering the
comments received on the transitional period, EPA is today promulgating
a transition period for the new elements of TMDLs lasting 18 months
from the date of publication of this rule in the Federal Register or
nine months from the effective date of this rule, whichever is later.
EPA recognizes the concerns voiced in many comments about the challenge
of now drafting an implementation plan for a TMDL already nearing
completion, and the benefit of including stakeholders in implementation
decisions at the beginning of the TMDL development process in order to
better integrate the implementation strategies with the allocation of
loads. Most States, Territories and authorized Tribes, as
[[Page 43636]]
well as State associations, supported a transitional period of up to 18
months. Of the comments suggesting more than 18 months, only one
provided a reason, i.e., the average TMDL requires 24 months to
complete. EPA does not believe States need to begin implementation
plans at the onset of TMDL development. One comment describes the first
18 months of TMDL development to consist of collecting data, developing
models, and conducting the analysis. EPA believes that at least the
first six months of this work, especially data collection and modeling,
can be conducted before approaching stakeholders to start developing
the implementation plan. For this reason, EPA is including a
transitional period of 18 months in the final rule unless the rule's
effective data is delayed, in which case the transition period will be
9 months from the rule's effective date.
EPA rejects the suggestion not to allow a transitional period based
on the commenter's belief that implementation plans could be quickly
developed, or that States, Territories, and authorized Tribes have had
sufficient notice to begin developing these plans in anticipation of
the new regulatory requirements. EPA does not believe that the mere
fact that implementation plans were part of the proposal would by
itself have caused States, Territories, or authorized Tribes reasonably
to believe that the final rule would necessarily require submission of
an implementation plan with the rest of the TMDL. EPA received many
comments, some from States, Territories and authorized Tribes,
contesting the legal authority to require States, Territories, and
authorized Tribes to submit implementation plans as part of the TMDL.
(This issue was discussed previously in today's preamble.) EPA believes
these comments illustrate that many States, Territories, and authorized
Tribes have waited to see the final rule before beginning to develop
these plans.
EPA also rejects the suggestion not to provide a transitional
period but rather to defer submittal of implementation plans up to six
months following submittal of the rest of the TMDL. As discussed in
today's preamble, EPA considers the implementation plan to be an
integral part of the TMDL that is reviewed by EPA under section 303(d).
Under today's rule EPA cannot approve the TMDL if it does not contain
all the required elements, including an implementation plan. Therefore,
the suggestion to defer submission of such plans to a later date would
only further delay TMDL approvals, which is what EPA is attempting to
prevent.
Today's rule also revises the proposed language regarding EPA's
establishment of a TMDL during the transition. EPA proposed at
Sec. 130.38(b) that it may establish TMDLs using either approach, i.e.,
the pre-promulgation or post-promulgation requirements. Some commenters
misconstrued this language as a statement by EPA that it may choose not
to establish TMDLs even if required to do so by court order or the
statute. To eliminate confusion on this issue, EPA is using the word
``will'' instead or ``may'' in the final regulations. It is EPA's
intention to use the new regulations as soon as possible. However, EPA
recognizes that it may need to establish a TMDL where a State,
Territory, or authorized Tribe has not, and to do so, EPA may need as
much time as a State, Territory, or authorized Tribe to develop an
implementation plan.
In particular instances, before the end of the transition period,
where a schedule in a consent decree or settlement agreement would make
it impossible to establish TMDLs with an implementation plan under the
schedule, EPA would consider approaching the Plaintiffs to request an
extension of the schedule so that TMDLs could be established using the
new requirements. EPA expects that by the end of the transition period,
States, Territories, and authorized Tribes will have established
procedures for integrating implementation plan into TMDLs. EPA's
expectation is that the transition period should greatly reduce the
need for EPA to establish TMDLs pursuant to the existing consent
decrees and settlement agreements.
X. Continuing Planning Process (Sec. 130.50)
What did EPA propose? EPA proposed to make only minor changes to
the continuing planning process (CPP) requirements currently found at
Sec. 130.5. The proposal renumbered the section as Sec. 130.50 and
revised the current regulatory requirements to clarify that States,
Territories and authorized Tribes have discretion to go beyond the
mandatory plan elements set out in the regulation and also include
other processes, such as watershed-based planning and implementation.
The proposal also makes clear that a CPP need not be a single document
but may be a compendium of many different State, Territorial and
authorized Tribal planning documents. Finally, the proposal made
conforming changes to citations to sections that are renumbered by the
proposal.
What comments did EPA receive? EPA received a number of comments
specific to this section. Three comments supported the proposal. One
comment expressed concern that the proposed change required that the
CPP be a document. A number of other comments suggested additional
revisions to the existing CPP requirements.
What is EPA promulgating today? Based on its analysis of the
comments received on this section, EPA is making one change to
Sec. 130.50(b) of the proposed rule. EPA is changing the final rule to
recognize that the CPP need not be a single document. EPA acknowledges
that the CPP is a process often described in numerous documents, rather
than being a single document. EPA believes the revision in the final
rule removes the confusion expressed over this. EPA declines to make
the other requested changes for the reasons expressed in the Response
to Comments Document.
Y. Water Quality Management Plans (Sec. 130.51)
What did EPA propose? EPA proposed to make only minor changes to
the water quality management plan requirements currently found at
Sec. 130.6. EPA proposed to renumber the section as Sec. 130.51 and to
revise the current regulatory requirements to clarify that updates to
water quality management plans should incorporate approved TMDLs and
generally have a watershed focus. In addition, EPA rewrote proposed
Sec. 130.51(a) in plain English format.
What comments did EPA receive? EPA received a number of comments
specific to this section. In most instances, only one commenter
suggested a specific revision or addition. In four instances, multiple
commenters made the same or similar comment. Two comments supported the
proposal. Two comments suggested that Sec. 130.51(a) retain the
references to sections 208, 303, and 305 of the CWA that were in the
existing rule. Two comments requested a change to or clarification of
the part of the rule dealing with nonpoint source regulatory programs.
Three commenters requested revisions to the existing rule language to
clarify what a nonpoint source is. Another comment suggested that EPA
recognize the link between the State Revolving Fund (SRF) and
Sec. 130.51(f).
What is EPA promulgating today? Based on its analysis of the
comments received on this section, EPA is making three changes to
Sec. 130.51(a) of the proposed rule. First, EPA is reinstating the
reference to CWA section 208 and 303(e) in the sentence describing the
initial water quality management plan. Second, EPA is reinstating the
reference
[[Page 43637]]
to CWA section 305(b) reports in the sentence describing what the
annual planning should include. These references were in the existing
regulation. EPA agrees that these references describe the authority and
context for the water quality management plan, and wishes to maintain
continuity between the requirements for water quality management plans
prior to and after today's final rule. Third, EPA is adding a sentence
to Sec. 130.51(f) to recognize the link between the SRF and Water
Quality Management Plans. This is a requirement of CWA section 603(f)
that had not yet been incorporated into Part 130.
EPA does not interpret the revision of Sec. 130.51(a) to require
all States, Territories, and authorized Tribes to rewrite their initial
water quality management plan. Again, the purpose of the revision is to
clarify that updates to water quality management plans should
incorporate approved TMDLs and generally have a watershed focus. Also,
EPA does not interpret this revision to be a change in focus of the
water quality management plan or CPP. EPA interprets the phrase ``focus
on priority issues and geographical areas'' to mean essentially the
same as the phrase ``shall be based upon water quality problems
identified in the latest section 305(b) reports.'' The section 305(b)
reports generally identify priority water quality issues in
geographical areas.
EPA declines to make other requested changes to the water quality
management plan for the reasons stated below and in the Response to
Comments document. EPA declines to require that States, Territories,
and authorized Tribes adopt regulatory programs for nonpoint sources.
The final rule continues the existing rule requirements that States,
Territories, and authorized Tribes develop regulatory programs if they
find it necessary. EPA also declines to revise Sec. 130.51(c)(4)(iii)
to further clarify what a nonpoint source is. EPA acknowledges that
some residual waste, agriculture and silviculture, mines, construction,
and urban storm water activities are considered point sources and are
subject to NPDES permits. At the same time, some are not. EPA
interprets Sec. 130.51(c)(4) to apply only to activities that are not
required to have an NPDES permit. Because EPA has referenced these
sources in the context of ``nonpoint source management and control,''
EPA believes that it is reasonable for others to make the same
interpretation.
Z. Petitions to EPA to Establish TMDLs (Sec. 130.65)
What did EPA propose? EPA proposed to codify specific requirements
to formalize a petition process for the public to request that EPA step
in and perform duties imposed on States, Territories and authorized
Tribes by section 303(d) when they fail to perform these duties. This
petition process has been available to the public under the authority
of the Administrative Procedure Act, but has seldom been used in the
context of section 303(d). EPA made this proposal to increase public
awareness of this procedure for requesting EPA action.
What comments did EPA receive? EPA received a number of comments
specific to the petition process. Very few comments were fully
supportive. Most comments argued that EPA should drop the provision
entirely. Many comments expressed a concern that EPA was trying to
impose this procedure as a mandatory first step before a party could
bring a judicial action against EPA, and saw the petition process as an
administrative barrier which would delay the party's right of redress.
Other comments expressed concern that the petition process provided EPA
a way to by-pass or undermine State authority and suggested that the
final rule require petitioners to exhaust all State administrative
remedies prior to petitioning EPA. Finally, other comments saw the
petition provision as a way to exclude stakeholders from dialogue on
TMDLs.
What is EPA promulgating today? Based on its analysis of the many
comments received on this section, EPA is not including the petition
provision in the final regulations. EPA continues to believe that a
petition process would present the advantages outlined in the proposal
at 64 FR 46040-46041, August 23, 1999. However, this opportunity is
already available to the public as a matter of law. See 5 U.S.C.
section 555(b). EPA does not believe it needs to provide specific
regulatory requirements relating to a petition process.
EPA recognizes the concerns expressed in comments, and believes it
has responded to these comments by not promulgating any specific
provision for a TMDL petition. Many commenters misconstrued EPA's
intent as creating an administrative process that either delays a
party's right of judicial redress or excludes most stakeholders,
including States, Territories and authorized Tribes, from a dialogue on
TMDLs. These were not EPA's intentions. On the contrary, EPA believed
the petition process provided a more expeditious way of resolving a
party's concerns than the judicial process. Given the misunderstanding
on the purpose and use of the petition process, EPA is not providing a
specific petition process for TMDLs in the regulations. However,
section 555(b) of the Administrative Procedure Act does allow any party
to petition EPA to take action regarding lists and TMDLs, despite the
absence of a specific TMDL petition process in Part 130.
AA. Water Quality Monitoring and Report (Sec. 130.10 and 130.11)
What did EPA propose? EPA proposed three minor changes to these
sections. First, EPA proposed to identify the current EPA quality
assurance guidance referred to in Sec. 130.10(a). Second, EPA added
source water assessments to the list of uses for data collected by
State, Territorial, or authorized Tribal water quality monitoring in
Sec. 130.10(b). Finally, EPA proposed to revise Sec. 130.11(a) to
recommend that water quality problems identified in a section 305(b)
report should be used in source water assessments.
What comments did EPA receive? EPA received many comments on these
sections. Most of the comments suggested EPA adopt regulatory
requirements to improve monitoring. These comments called for EPA to
define the elements of an adequate monitoring program and provide both
incentives and penalties to ensure that States monitor all waters of
the State. Commenters also suggested EPA improve coordination among the
many entities that monitor water quality. Comments on the water quality
inventory report point out that this report is a state's comprehensive
accounting of water quality, including healthy, threatened and impaired
waters. Some commenters cited the need to improve these reports by
requiring States monitor all waters of the State. Other suggested
improvements include better analysis of the costs and benefits of
achieving the goals of the CWA. A number of commenters expressed
concern that EPA's proposed regulation makes the section 303(d) list a
comprehensive accounting of State water quality which is redundant with
the section 305(b) report. Some commenters suggested the water quality
inventory report and the section 303(d) list should be consolidated,
while others recommended they be kept distinct.
What is EPA promulgating today? EPA is promulgating these section
as proposed with one change. EPA is moving the reference to the current
[[Page 43638]]
quality assurance guidance to a note. EPA made this change to
facilitate including references to any future updates to this guidance.
EPA declines to make other changes to these sections as suggested
by comments. EPA did not propose any regulatory requirements for
monitoring or reporting, and believes that it would need to propose any
such requirements before promulgating requirements.
AB. Other Sections (Secs. 130.0, 130.1, 130.3, 130.7, 130.61, 130.62,
130.63, and 130.64)
What did EPA propose? EPA's August 23, 1999 recodification included
sections of existing regulations for which EPA did not propose changes
or request comment. These were included in the proposal to show how
they would be reformatted in Part 130. 64 FR 46015, August 23, 1999.
EPA explicitly identified the following sections as unchanged in the
proposal: Secs. 130.0, 130.1, 130.60, 130.61, 130.62, 130.63, and
130.64. EPA did propose a conforming change to Sec. 130.64 to reflect
that the citation for a TMDL had moved from Sec. 130.7. EPA also
proposed to delete Sec. 130.3 and 130.61(d), and replace Sec. 130.7
with the new requirements of subpart C. EPA believed Sec. 130.3
duplicates the definition of ``water quality standard'' found in Part
131. EPA also believes that Sec. 130.61(d) is obsolete because it
pertains to a one-time data submittal under section 304(l) that was
completed almost a decade ago.
What comments did EPA receive? EPA received no substantive comments
on the sections that were proposed to be deleted. EPA received many
comments on other sections, especially Sec. 130.62, and Sec. 130.63.
Most comments did not suggest revisions to the final rule, but rather
offered suggestions on how EPA could improve implementation of the TMDL
program. The comments that suggested revisions were diverse and covered
many themes. Other comments suggested specifically recognizing coastal
nonpoint source programs, Federal land management, and the Great Lakes
Water Quality Guidance in the regulations. Other comments offered
suggestions on regulatory language related to improving the
participation of indigenous people in all aspects of water quality
planning and implementation. Finally, EPA received a comment that the
language of Sec. 130.61(b)(2) was inconsistent with the provisions
proposed for lists of waterbodies, priority rankings, and schedules of
TMDLs.
What is EPA promulgating today? With the exception of Secs. 130.7
and 130.61, EPA is promulgating these sections as proposed. EPA did not
propose revisions to Secs. 130.0, 130.1, 130.60, 130.61, 130.62,
130.63, and 130.64 except for a conforming citation in Sec. 130.64, nor
did EPA request comment on these sections. Instead, EPA included these
sections solely to illustrate the reformatting of Part 130 that results
from writing the TMDL regulations in plain English format. Thus, EPA
believes any comment on these sections is beyond the scope of the
proposed rulemaking and declines to make changes as a result of
comments. EPA will try to be mindful of any comments received on these
sections when and if it does any further rulemaking on Part 130
EPA's proposed Secs. 130.20 through 130.37 replace the requirements
of Sec. 130.7. However, for the period of 18 months from publication or
nine months from the effective date of today's rule, whichever occurs
later, Sec. 130.37 allows States, Territories, authorized Tribes, and
EPA to establish TMDLs consistent with either the requirements of
Secs. 130.31 through 130.33 of today's rule or Sec. 130.7 from the
previous rule. States, Territories, and authorized Tribes will need to
be able to find the requirements of Sec. 130.7(c), which contains the
TMDL requirements, until they are no longer needed. For this reason,
today's rule removes Sec. 130.7 except for paragraph (c), and revises
paragraph (c) to refer to the listing requirements of today's rule.
With respect to Sec. 130.61, EPA found during the development of
the final rule that Sec. 130.61(b)(2), which requires identification of
water-quality limited waters requiring TMDLs, and of waters targeted
for TMDL development within the next two years, is inconsistent with
both the proposed and final requirements for listing waterbodies.
Therefore, EPA is deleting the requirements of Sec. 130.61(b)(2) and
reserving this paragraph. EPA believes that without this change, the
Part 130 regulations would include two conflicting requirements causing
confusion over what the regulations require. EPA believes this change
is technical in nature and a logical outgrowth of EPA's proposal. EPA
recognizes that it is making this change without soliciting public
comment on this specific change. However, EPA did solicit comment on
Secs. 130.25 through 130.30, which are the technical and procedural
requirements for section 303(d) lists of impaired waterbodies. Based on
those comments, EPA promulgated the final rule for those sections. EPA
expects that, had it solicited comments on whether it should revise
Sec. 130.61(b)(2) to conform with the information in Secs. 130.25
through 130.30, the comments would have been supportive. Therefore, EPA
believes that there is good cause under Administrative Procedure Act
section 555(b)(3)(B) not to provide notice on this change because it is
unnecessary to do so. Furthermore, EPA believes it is contrary to the
public interest to expend the resources to solicit comment on
eliminating an inconsistency in its rules when to do so is unnecessary.
Therefore, consistent with the ``good cause'' provision of
Administrative Procedure Act section 553(b)(3)(B), EPA believes it has
good cause to delete and reserve Sec. 130.61(b)(2) without proposing
that change.
III. Changes to Parts 122, 123, and 124
A. Reasonable Further Progress Toward Attaining Water Quality Standards
in Impaired Waterbodies in the Absence of a TMDL
1. Background
On August 23, 1999, EPA proposed revisions to the National
Pollutant Discharge Elimination System (NPDES) Program and the Federal
Antidegradation Policy in support of the revisions to the Water Quality
Planning and Management regulations. These proposed revisions included
new requirements and explicit authority to achieve reasonable further
progress toward the attainment of water quality standards in impaired
waterbodies in the absence of an EPA approved or established TMDL. EPA
proposed a new requirement under the Federal antidegradation policy and
proposed to revise the NPDES permitting regulations to implement that
requirement. The proposed antidegradation requirement applied to all
large new dischargers and existing dischargers undergoing a significant
expansion proposing to discharge, to an impaired waterbody, the
pollutant(s) for which the waterbody was impaired. The proposal stated
that these dischargers would be required to achieve reasonable further
progress toward the attainment of water quality standards in the
waterbody to which they proposed to discharge. To achieve reasonable
further progress, the proposal required these dischargers to obtain an
offset of their new or increased loading of the pollutant(s) for which
the waterbody was impaired. To obtain an offset, these dischargers
would need to secure reductions from another existing source(s)
discharging the pollutant(s) of concern into the same waterbody. The
net effect of this offset would be a reduction in the loading of the
pollutant of concern in the waterbody. Thus, reasonable further
[[Page 43639]]
progress toward the attainment of water quality standards in the
waterbody would be achieved.
Also to achieve reasonable further progress in the absence of an
EPA approved or established TMDL, EPA proposed explicit language
describing the Regional Administrator's discretionary authority to
review, object to, and reissue, if necessary, State-issued permits that
are ``administratively continued'' after expiration. The proposal
stated that this authority would be available when an expired permit
authorizes a discharge into an impaired waterbody and the existing
permit limits need to be revised. These permits were referred to as
``environmentally-significant permits.'' The two situations in which
EPA proposed to invoke this authority were when an expired permit
contains effluent limitations or conditions inconsistent with water
quality standards or inconsistent with an established TMDL. In the
absence of a TMDL, invoking this authority would allow the Regional
Administrator to review, object to, and reissue, if necessary, expired
permits inconsistent with water quality standards to ensure that those
permits contain adequate water quality-based effluent limitations.
Permits that contain adequate water quality-based effluent limitations
would, in turn, be consistent with water quality standards and, thus,
reasonable further progress toward the attainment of water quality
standards would be achieved. See section III.B.5. below for a
discussion of where this authority could be invoked to ensure that an
expired permit is consistent with an established TMDL.
2. Requirements for New and Significantly Expanding Dischargers
What did EPA propose? EPA proposed a new requirement under the
Federal antidegradation policy and proposed revisions to the NPDES
permitting regulations to implement that requirement, to achieve
reasonable further progress toward the attainment of water quality
standards in impaired waters in the absence of an EPA approved or
established TMDL. EPA proposed these new requirements in response to
the TMDL FACA recommendation that EPA actively encourage and support
stakeholders stabilizing and enhancing water quality in impaired
waterbodies before a TMDL is in place. Both EPA and the FACA recognized
the significant time lag that could exist between the initial listing
of a waterbody under CWA section 303(d) and the actual completion and
approval of a TMDL. (See ``Report of the Federal Advisory Committee on
the Total Maximum Daily Load (TMDL) Program'', EPA 100-R-98-006, July
1998.) As discussed in the preamble to the proposed rule, EPA believes
that progress toward the section 101(a) goals of the CWA should occur
even in the interim period between the initial listing of a waterbody
under CWA Section 303(d) and the actual completion, approval and
implementation of a TMDL. EPA therefore proposed to require that
certain dischargers, located on an impaired waterbody discharging the
pollutant for which the waterbody is impaired, achieve ``reasonable
further progress'' toward the attainment of water quality standards.
The NPDES dischargers required to achieve reasonable further
progress included a subset of dischargers proposing to discharge new
loadings of a pollutant of concern to an impaired waterbody. This
subset of dischargers included all large new dischargers and existing
dischargers undergoing a significant expansion. EPA proposed revisions
to the definition of a ``new discharger'' at Sec. 122.2 as well as
proposed a new definition of an ``existing discharger'' and what
constitutes a ``significant expansion'' of an existing discharger.
These proposed definitions were revised or added with the intent of
defining the subset of dischargers subject to the proposed offset
requirement.
EPA believed that the best way for these dischargers to achieve
reasonable further progress was through an offset mechanism. The
proposed offset mechanism would have required these dischargers to
offset any new or increased loading of the pollutant of concern to an
impaired waterbody by obtaining or securing reductions in the loading
of the same pollutant from an existing source(s) located on the same
waterbody. EPA stated that an offset of at least one and one half to
one would generally be appropriate as a means of ensuring reasonable
further progress. The proposal also specified several additional
requirements for implementing offsets through NPDES permits. These
revisions to the NPDES permitting regulations were designed to ensure
that the offset and resulting reductions would be realized and,
therefore, reasonable further progress would be achieved. The Agency
believed that reasonable further progress toward meeting the applicable
water quality standard would be achieved through this mechanism because
the total load of the pollutant(s) to the impaired waterbody would be
reduced.
The proposal also would have required the permitting authority to
include, in the fact sheet for the permit (required under Sec. 124.8),
an explanation of how and why any limitations and/or requirements were
derived to satisfy an offset requirement. Where fact sheets are not
required, EPA proposed that similar information be included in the
statement of basis for the permit (required under Sec. 124.7).
To emphasize the importance of State antidegradation policies,
including the proposed offset requirement, EPA proposed to include the
phrase ``State antidegradation provisions'' in its water quality-based
permitting regulations at Sec. 122.44(d)(1). Section 122.44 contains
the requirements for establishing limitations, standards and other
permit conditions in NPDES permits necessary to ensure that NPDES
permits are protective of water quality standards. The purpose of
including this phrase was clarifying only and was not intended to
create a substantive change. Including this phrase in these provisions
was intended to give added notice and clarification to the longstanding
requirement at Sec. 131.12 that States, at a minimum, include in their
water quality standards an antidegradation policy consistent with the
Federal antidegradation policy, and identify their methods and
procedures for implementing that policy.
What comments did EPA receive? The following summarizes certain
major comments the Agency received on the proposal requiring large new
and significantly expanding existing dischargers located on impaired
waterbodies to obtain offsets of their new pollutant loads. There was
widespread concern that the proposal to require offsets was virtually
impossible to implement and environmental efficacy on a national scale
would have therefore been unlikely. Many commenters noted that a one-
size-fits-all approach was infeasible due to the differences between
the types of sources subject to the offset requirement, the differences
in the nature of the discharges from the sources subject to the offset
requirement, and the differences in the types of NPDES permitting used
for sources subject to the offset requirement. A significant number of
commenters also expressed concern regarding the requirement that the
offset be achieved on or before a source could begin discharging as
well as the distinct likelihood that there might be no source in the
waterbody from which an offset could be obtained. They pointed out that
this would cause significant delay in the operation or construction of
their business and
[[Page 43640]]
possibly even prevent them from operating at all.
Several commenters stated that the offset provision, as proposed,
would be particularly difficult to implement with respect to wet
weather sources. With respect to storm water, commenters expressed that
it would be difficult to predict the contents and/or flow of storm
water runoff because wet weather events vary in terms of frequency and
duration of rainfall as well as other uncontrollable factors (e.g., the
use of copper brake pads, leaking oil pans on cars) that contribute to
the contents and/or flow of storm water runoff. Similar concerns were
raised with respect to obtaining offsets from nonpoint sources.
Commenters stated that pollution reductions would be difficult to
measure or quantify due to the variability in flow, pollutants and
loading. They also noted the difficulty in demonstrating the impact or
level of reductions achieved by nonpoint source control measures or
BMPs. The Agency also received many comments that claimed that the
offset provisions, as proposed, would have an adverse effect on
trading. For point source to nonpoint source trades, commenters
asserted that the offset provision would provide a disincentive for
point sources to trade because they would be held liable for a nonpoint
source's failure to achieve the requisite reductions.
Commenters expressed concern over the implications the offset
requirement would have on the use of general permits. Many stated that
offsets could not be implemented through general permits. Although the
Agency did not propose an approach to implement offsets for dischargers
that seek coverage under general permits, many commenters were
concerned that the offset requirement, as proposed, would have caused a
large number of dischargers to seek coverage under individual permits
instead of general permits. Commenters also noted that they would
experience considerable delays in their operations and increased costs
if they had to seek coverage under an individual permit.
A significant number of commenters stated that the proposal to
require offsets established an inequitable allocation of responsibility
between large and small dischargers and was, thus, inconsistent with
the goals of the CWA. Many asserted that the proposal to require
offsets conflicted with and impeded the TMDL program thereby delaying
the attainment of water quality standards. Some commenters also
asserted that the proposal to allow new discharges and require offsets
would have undercut the ability to interpret Sec. 122.4(i) as requiring
an absolute prohibition on new discharges to impaired waters. Finally,
while many commenters agreed that there should be reasonable further
progress toward improving water quality in the period before a TMDL is
approved or established, they asserted that the proposed offset
requirements would undercut State primacy in determining what actions
are necessary to attain water quality standards.
The Agency also received several comments on the proposed
definitions for existing, new and significantly expanding dischargers.
The Agency proposed these definitions for the sole purpose of
implementing the offset provision. Many commenters suggested that these
definitions were ``confusing and unworkable.'' Most commenters were
concerned that the definitions were not consistent with existing
definitions for related and separate programs. Some commenters also
stated that the definition describing significant expansion was not
scientifically based. For example, the definition did not specify
whether the 20% increase in loadings was related to concentration or
mass.
What is EPA promulgating today? After considering comments received
and upon further analysis of what the Agency proposed, EPA is not
promulgating the revisions to the Federal antidegradation policy and
NPDES regulations that would require certain dischargers to achieve
reasonable further progress toward the attainment of water quality
standards by obtaining an offset of their new or increased pollutant
loads (hereafter ``the offset requirement''). EPA continues to believe,
however, that further degradation of already impaired waterbodies
should be prevented and that progress toward the attainment of water
quality standards should be made in the interim period between the
identification of an impaired waterbody and the establishment of a
TMDL. EPA does not believe it is necessary to amend the antidegradation
regulations to explicitly include such a requirement because EPA has
concluded that the offset requirement, as proposed, is not the best
mechanism to achieve progress in impaired waters in the absence of a
TMDL. The Agency based this conclusion on several considerations.
Subsequent to the proposal, EPA gained additional insight into
current practices for deriving water quality-based effluent limits for
sources located on impaired waters and discharging the pollutant(s) for
which the waterbody is impaired. EPA found a wide range of practices
for deriving such limits with respect to both new dischargers and
existing dischargers. The Agency believes that there is considerable
room for improvement in establishing water quality-based effluent
limits for all dischargers (new dischargers being permitted for the
first time and expanding and existing dischargers undergoing permit
reissuance) discharging pollutant(s) of concern to an impaired
waterbody (emphasis added). EPA therefore concluded that its existing
regulations, implemented consistently at the time of permit issuance,
would provide greater progress toward the attainment of water quality
standards in impaired waters than through the proposed offset
requirement.
As proposed, the offset requirement (in addition to existing
regulatory requirements) would be very difficult to apply and only
affect a small subset of dischargers. Thus, the likelihood of achieving
additional progress toward attaining water quality standards for a
significant number of impaired waterbodies through the offset
provision, in the aggregate, would be quite small. EPA further believes
that expanding the application of the requirement to additional
dischargers, as some commenters suggested, would still not have
significant environmental benefit for the reasons discussed below.
Many commenters pointed out, and upon further analysis EPA agrees,
that the proposed offset requirement, a one-size fits all method for
specifying reasonable further progress, is simply unworkable. As
proposed, it would have been extremely difficult for a majority of the
sources within the very small subset of sources to which it would have
applied, to implement an offset requirement (e.g., those sources with
intermittent discharges or discharges only as a result of storm events
and those regulated through general permits by best management
practices (BMPs)). Calculating what constitutes a one and one half to
one offset for sources with intermittent discharges would have often
been extremely subjective. Likewise, as proposed, it would have been
difficult or infeasible to implement the offset requirement with
respect to dischargers that seek NPDES permit coverage under a general
permit. Typically, general permits do not contain numeric water
quality-based effluent limitations (WQBELs); they contain BMPs designed
to ensure protection of water quality standards. It would have been
difficult or infeasible to quantify, and thereafter implement, a one
and one half to one offset from a source whose water quality impacts
are controlled solely by BMPs.
[[Page 43641]]
EPA also concluded that the additional environmental benefits from
the offset requirement, in many cases, would have been minimal at best,
even if expanded to cover additional dischargers as some commenters
suggested. The offset requirement would have been a requirement over
and above the requirements under current NPDES permitting regulations
at Secs. 122.44(d)(1)(vii) and 122.4(i). Section 122.44(d)(1)(vii)
requires permits to include, where necessary, effluent limits that
derive from and comply with water quality standards. Section 122.4(i)
prohibits the issuance of permits to a new source or a new discharger
if the discharge will cause or contribute to a violation of water
quality standards. For those dischargers who would have been subject to
the offset requirement, consistent implementation of
Secs. 122.44(d)(1)(vii) and 122.4(i) following existing EPA guidance
would result in permits, if issued, containing limits and conditions
for the pollutant(s) of concern that derive from and comply with
applicable water quality standards. These limits and conditions are
water quality-based effluent limits and, if derived in compliance with
existing regulations, ensure that the discharge will not cause or
contribute to a violation of water quality standards. These limits
would define the amount of the pollutant(s) in the discharger's
effluent that could not be exceeded. In most cases, where a discharge
is to an impaired water, this amount (the water quality-based effluent
limit) would be quite small. Using either a numeric criterion or a
quantitative translation of a narrative criterion, the limits would be
calculated to ensure that the discharger did not cause or contribute to
an excursion of that criterion in the receiving water. Also, a
permitting authority may determine that this limit must reflect an
overall reduction in pollutant loading to the waterbody in order to
ensure that the discharge does not cause or contribute to a violation
of water quality standards. Thus, where existing regulations for water
quality-based permitting are appropriately implemented, the additional
offset that EPA proposed to require of such dischargers (150% of the
water quality-based effluent limit), in most cases, would not have had
a significant effect on ambient water quality. Given this and the fact
that applying the offset to many types of discharges would be extremely
difficult or even infeasible, as discussed above, EPA concluded that
the net environmental benefits from the offset requirement would be
insignificant.
Although EPA is not promulgating regulations containing the offset
requirement, EPA expects to achieve progress toward the attainment of
water quality standards in impaired waters in the absence of a TMDL.
EPA believes that progress toward the attainment of water quality
standards prior to a TMDL would be achieved through consistent
implementation of EPA's existing regulatory authorities.
EPA's current water quality-based permitting regulations and
accompanying guidance apply not only to new and expanding dischargers,
but to all dischargers. These regulations require that NPDES permits
have conditions as necessary to achieve water quality standards
established under section 303(c) of the CWA. Sec. 122.44(d)(1). The
permitting authority must therefore determine whether a discharge
causes, has reasonable potential to cause, or contributes to an in-
stream excursion above the applicable water quality standard. In making
this determination, the permitting authority must ``account for
existing controls on point and nonpoint sources of pollution, the
variability of the pollutant or pollutant parameter in the effluent,
the sensitivity of the species to toxicity testing (when evaluating
whole effluent toxicity), and, where appropriate, the dilution of the
effluent in the receiving water.'' Sec. 122.44(d)(1)(ii). Where water
quality-based effluent limits are needed, the regulations are designed
to ensure that those limits derive from and comply with water quality
standards and, therefore, ensure that dischargers subject to such
limits will not cause or contribute to the violation of water quality
standards. Secs. 122.44(d)(1)(vii) and 122.4(i).
EPA has developed guidance for applying the water quality-based
permitting regulations. The ``Technical Support Document for Water
Quality-Based Toxics Control'' (TSD) U.S. EPA, EPA/505/2-90-001, March
1991 and the Water Quality Guidance for the Great Lakes System (60 FR
15366, March 23, 1995) (hereafter ``Great Lakes Guidance'') include
procedures for making the determination of whether a discharge causes,
has reasonable potential to cause, or contributes to an instream
excursion above the applicable water quality criteria (the ``reasonable
potential analysis''). These procedures also present options for
developing wasteload allocations (the basis for effluent limits) which
ensure that a discharge does not cause or contribute to the
nonattainment of applicable water quality standards. Thus, while both
are primarily focused on toxics, and the Great Lakes Guidance applies
to the Great Lakes, both serve as practical guides for developing
effluent limits to ensure compliance with both Secs. 122.44(d) and
122.4(i).
As mentioned above, the Agency found various interpretations and
implementation methods for applying the water quality-based permitting
regulations and the Agency's accompanying guidance. For example, EPA
found varied consideration of other source contributions and background
concentrations in the receiving water when determining the need for
water quality-based effluent limits and setting water quality-based
effluent limits for pollutants of concern in compliance with
Sec. 122.44(d). EPA notes it has a longstanding interpretation of
Sec. 122.44(d) regarding consideration of source contributions and
background concentrations, as presented in the TSD since 1991.
EPA notes that the TSD references using background concentration
when calculating wasteload allocations. For example, on p. 97, the TSD
states, ``Traditional single-value or two-value steady-state wasteload
allocation models calculate wasteload allocations at critical
conditions, which are usually combinations of worst-case assumptions of
flow, effluent, and environmental effects. For example, a steady-state
model for ammonia considers the maximum effluent discharge to occur on
the day of lowest river flow, highest upstream concentration, highest
pH, and highest temperature'' (emphasis added). Also, it is
particularly noteworthy that every case example in the TSD uses an
ambient background concentration value of the pollutant of concern when
determining reasonable potential and calculating wasteload allocations
and effluent limits.
An assessment of the ambient background concentration in the
receiving water is the element of the reasonable potential analysis
presented in the TSD that represents the nonattained condition of
waters not meeting water quality standards because they are exceeding
water quality criteria. This element of the reasonable potential
analysis is necessary to account for existing controls on point and
nonpoint sources of pollution and available dilution as required by
Sec. 122.44(d)(1)(ii). Failure to use a background value would result
in evaluating the discharge to the nonattained water as if the water
were actually attaining its water quality standards. Simply put, use of
valid, verifiable ambient background values is imperative to
technically sound effluent characterization and analysis of the
[[Page 43642]]
need for water quality-based effluent limits.
Furthermore, where there is valid, verifiable background data
indicating existing impairment of a waterbody, such data must be taken
into consideration when developing water quality-based effluent limits
for a discharge to an impaired water. EPA is aware that some permitting
authorities, when calculating wasteload allocations that are the basis
for water quality-based effluent limits, have, on occasion, made the
assumption that background concentrations of the pollutant(s) of
concern are zero, even in view of valid and verifiable background data,
and have proceeded to allocate all of a waterbody's assimilative
capacity to one or more point sources. Such an assumption is
inconsistent with NPDES regulations requiring that water quality-based
effluent limits derive from and comply with water quality standards
(Sec. 122.44(d)(1)(vii)), and longstanding Agency guidance and policy
on complying with the regulations.
Once again, EPA notes that the TSD indicates the need to consider
background concentrations of the pollutant(s) of concern when
developing wasteload allocations and water quality-based effluent
limits. Where valid, verifiable data and information that are
representative of ambient conditions indicate that the waterbody is not
attaining water quality standards, there is no basis for permitting a
discharge to an impaired water as if the waterbody were not impaired.
Where such data are available, the permitting authority has no
alternative but to use those data when calculating wasteload
allocations and effluent limits. For discharges to an impaired water
where ambient pollutant concentration is the cause of impairment,
including background pollutant concentrations in all permit limit
calculations will result in water quality-based effluent limits based
on a wasteload allocation that attains the applicable criteria or a
lower pollutant concentration in the effluent (i.e., ``criteria end of
pipe'' or better). Of course, a permitting authority may have new or
additional data about the ambient water quality, presented by the
discharger or collected by the permitting authority itself. Those
additional data would allow for a more site-specific evaluation of the
need for water quality-based effluent limits and of the calculation of
wasteload allocations and effluent limits than was perhaps possible
when a decision was made to list the waterbody on the section 303(d)
list.
EPA recognizes the need for further clarification to authorities
implementing the NPDES program of existing NPDES regulations and
guidance on water quality-based permitting. In addition, further
guidance is needed to ensure that permitting authorities adequately
protect designated uses through complete consideration of both
applicable narrative and numeric criteria when developing effluent
limits that derive from and comply with all applicable water quality
standards (Sec. 122.44(d)(1)(vii)). Narrative water quality criteria
establish the basic foundation for attainment of designated uses, while
numeric water quality criteria provide a specific quantitative
translation of the necessary level of protection.
In some situations, there are no numeric criteria for a pollutant
of concern or the permitting authority may determine that the existing
numeric criteria are not designed to address an important endpoint of
concern. When numeric criteria are developed, it is not possible to
anticipate all pollutants or endpoints or derive some types of criteria
that will apply generally across the Nation's waters or all of the
waters of a State or Tribe. Often there are not sufficient data to
develop site-specific numeric water quality criteria at the time of
water quality standards adoption. Recognizing these situations,
standards setting authorities adopt narrative criteria to ensure full
protection of designated uses. Narrative criteria can descriptively
accomplish what numeric criteria, in many cases, cannot account for
quantitatively at the time water quality standards are adopted. For
example, fish contamination as a result of site-specific
bioaccumulation or algal blooms from nutrient over enrichment may
impair a designated use, but may not be sufficiently addressed by
adopted numeric water quality criteria. Applicable narrative criteria,
however, can often be translated into a quantitative measurement that
will protect a specific endpoint from a specific pollutant not
accounted for by the applicable numeric criteria.
The NPDES regulations at Sec. 122.44(d)(1)(v) and (vi) are
particularly instructive to permitting authorities developing water
quality-based effluent limits from narrative water quality criteria in
order to meet the requirement that such limits derive from and comply
with all applicable water quality standards. The NPDES regulations
require that if a discharge causes, has the reasonable potential to
cause, or contributes to an in-stream excursion of an applicable
narrative criterion, the permit must contain effluent limits for whole
effluent toxicity. Whole effluent toxicity limits are not necessary,
however, if the permitting authority demonstrates that chemical-
specific effluent limits for the effluent are sufficient to attain and
maintain applicable numeric and narrative water quality standards
(emphasis added). The regulations describe how to develop water
quality-based effluent limits for a specific pollutant in this
situation. The permitting authority must develop effluent limits based
on one of the following options: (1) use a calculated numeric water
quality criterion that the permitting authority demonstrates will
attain and maintain applicable narrative water quality criteria and
will fully protect the designated use [This criterion may be derived
using a criterion proposed by the standards setting authority or an
explicit policy or regulation interpreting the authority's narrative
criterion, supplemented with other relevant information]; (2) on a
case-by-case basis, use EPA's water quality criteria, published under
Section 304(a) of the Clean Water Act, supplemented where necessary by
other relevant information; or (3) under certain conditions, use an
indicator parameter for the pollutant of concern.
EPA understands that permitting authorities will take a variety of
approaches to interpreting designated uses and the criteria necessary
to protect those uses, characterizing effluent quality, and deriving
wasteload allocations and permit limits. EPA believes, however, that
permitting authorities do not always quantitatively translate
applicable narrative criteria, nor do they always apply the most
stringent permit limit when both numeric criteria and numeric
interpretations of narrative criteria are available and applicable. The
NPDES regulations require permitting authorities to evaluate the
reasonable potential for an effluent to cause or contribute to an
excursion of both numeric and narrative criteria in order to evaluate
whether the underlying designated use will be maintained and protected
and, where necessary, derive water quality-based effluent limitations
from those criteria. Where there is uncertainty about what numeric
value should be used that represents either the numeric or narrative
water quality criterion (the water quality value on which the effluent
characterization must be based), EPA believes this uncertainty must be
resolved before a permit is issued. EPA believes that, instead of
resolving this uncertainty, some permitting authorities may be issuing
permits with inadequate permit limits
[[Page 43643]]
that do not conform to the water quality-based permitting regulations.
EPA believes that further clarification and additional guidance on
interpreting and implementing the water quality-based permitting
regulations are needed. Rather than promulgating a new regulatory
requirement that is difficult to apply and offers potentially little
environmental benefit over adequate implementation of current NPDES
regulations, the Agency believes that improved implementation of the
current regulatory program will yield better and more significant
progress in attaining and maintaining water quality standards
nationwide. The Agency, therefore, is intending to achieve more
consistent implementation of existing NPDES regulations and guidance.
EPA intends to provide further guidance to clarify the Agency's
recommendations for methods and procedures for developing water
quality-based effluent limits for sources discharging a pollutant of
concern to an impaired waterbody in the absence of a TMDL. EPA expects
that this guidance will address approaches to deriving permit limits
both in situations where there are applicable numeric criteria that
address the cause of impairment and situations where there are no
applicable numeric criteria that address the cause of impairment.
In summary, EPA believes that ensuring adequate and consistent
implementation of existing water quality-based permitting regulations
for all dischargers located on impaired waterbodies will lead to
substantial improvement in the quality of the Nations's waters. EPA
notes that the TMDL, once established, may include waste load
allocations that may result in the need for permit limits to change.
Definitions
EPA is not promulgating the proposed revisions to the definition of
a ``new discharger'' (Sec. 122.2) as well as the proposed new
definition for an ``existing discharger'' and what constitutes a
``significant expansion'' of an existing discharger. EPA is not
promulgating these proposed definitions because it is not promulgating
the proposed offset requirement. These proposed definitions were
revised or added with the intent of defining the subset of dischargers
subject to the proposed offset requirement.
Fact Sheet and Statement of Basis
EPA is not promulgating revisions to the regulatory provisions on
fact sheets (Sec. 124.56) or revisions to the regulatory provisions on
statement of basis (Sec. 124.7) as proposed. EPA proposed changes to
these provisions to clarify that the permit writer must provide all
information necessary to explain the derivation of permit conditions.
In particular, these proposed changes were designed to capture, in the
record of the permit, the rationale for and derivation of the proposed
offset requirement. Because EPA is not promulgating the offset
requirement, the proposed changes regarding fact sheets and statements
of basis are unnecessary. EPA continues to believe, however, that it is
important to clarify the type of information that a permit writer must
provide to explain the basis for and derivation of permit limits and
conditions. In light of the scope of today's rule, the Agency believes
that providing an adequate explanation is particularly important for
permits that authorize discharges to impaired waters both prior to and
after the establishment of a TMDL. EPA is therefore establishing such
clarifications to the fact sheet regulations at Sec. 124.8 and to the
statement of basis regulations at Sec. 124.7.
Section 124.8 requires that a fact sheet be prepared for certain
permits identified under that section. Section 124.7 requires EPA to
prepare a statement of basis for every draft permit for which a fact
sheet is not prepared. The purpose of including a fact sheet or a
statement of basis with the permit is to provide a mechanism that helps
the permittee and any other interested party understand how and why
limits, conditions, and/or requirements in the accompanying NPDES
permit were derived. This information also helps the permittee and
other interested parties participate in the decision-making on what
will be included in the final permit; an explanation of how and why
these measures were derived enables the public to participate in the
final decision.
Today's rule clarifies what data and information must be placed in
the fact sheet and statement of basis for permits authorizing
discharges to impaired waters. Specifically, the clarifications to the
fact sheet and statement of basis regulations concern information which
must be provided when a permit is developed for the discharge of a
pollutant into a water which is impaired for that pollutant. Where a
fact sheet or statement of basis is required, the Agency believes the
records for such permits must contain a full explanation of the basis
for water quality-based limits including those for a pollutant(s) for
which a waterbody is impaired. Specifically, the fact sheet or
statement of basis must contain: (1) In cases where a TMDL has not been
established for an impaired waterbody, an explanation of how permit
limits and/or conditions were derived for all pollutants in the
discharger's effluent for which the waterbody is impaired; and (2) in
cases where a TMDL has been established for an impaired waterbody, any
TMDL that has been established for a pollutant contained in the
discharger's effluent; the applicable wasteload allocation derived for
the pollutant under the TMDL for that discharger; and an explanation of
how permit limits for the pollutant of concern were derived as well as
how those limits are consistent with the applicable wasteload
allocation.
EPA interprets its existing regulations to require this information
already. Specifically, Sec. 124.8(b)(4) requires the fact sheet to
include ``a brief summary of the basis for the draft permit conditions
* * *. '' Section 124.7 requires the statement of basis to ``briefly
describe the derivation of the conditions of the draft permit and the
reasons for them* * * ;'' Also, Sec. 122.44(d)(1)(vii)(B) requires the
permitting authority to ensure that ``effluent limits developed to
protect a narrative water quality criterion, a numeric water quality
criterion, or both, are consistent with the assumptions and
requirements of any available wasteload allocation for the discharge
prepared by the State and approved by EPA pursuant to Sec. 130.7.''
Evidence of this longstanding interpretation is found in EPA's
``Technical Support Document for Water Quality-based Toxics Control''
where the Agency refers to the fact sheet regulations at Sec. 124.56
and states that ``the wasteload allocations along with the required
long-term average and coefficient of variation used and the
calculations deriving them must be included or referenced in the fact
sheet. The permit limit derivation method used must also be explained
in the permit documentation.'' (EPA/505/2-90-001, March 1991, p.110).
By revising these regulations to include today's clarifications, the
Agency is merely emphasizing the importance of providing data and
information for permit limits and conditions contained in permits
authorizing discharges to impaired waters both prior to and after the
establishment of a TMDL. Making this concept completely explicit in the
regulations will help to clarify EPA's previous intent behind these
provisions and ensure consistency in fact sheets and statements of
basis accompanying permits for discharges into impaired waters. In
addition, these clarifications to the existing regulations are
consistent with the provisions in the proposal requiring fact sheets
and statements of
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basis to include an explanation for the basis of any offset obtained in
an impaired water.
Adding these clarifications also improves the ability to track
whether permits requiring a fact sheet or statement of basis contain
limits that derive from and comply with applicable water quality
standards as well as whether the limits are consistent with an
applicable TMDL. EPA intends to track information in order to monitor
and report progress nationally on permitting in impaired waters. The
Agency believes tracking this information supports the purposes and
goals of the CWA, to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters. The Administrator also
bears a statutory responsibility under CWA section 303(d) to ensure
timely establishment of TMDLs and an obligation under CWA section
301(b)(1)(C) to ensure that permits include water quality-based
effluent limits as necessary to meet water quality standards. Tracking
these data will help to ensure that needed water quality-based effluent
limits are placed in all permits requiring them prior to a TMDL. It
will also help to ensure that TMDLs, once established, are in fact,
implemented.
Revisions to the Water Quality-based Permitting Regulations
Although EPA is not promulgating the offset requirement, the Agency
still believes emphasis should be placed on State antidegradation
policies as part of a State's water quality standards. EPA, therefore,
is promulgating the clarifying change to the water quality-based
permitting regulations by adding the phrase ``State antidegradation
provisions'' to section Sec. 122.44(d)(1).
3. EPA Authority to Reissue Expired and Administratively-Continued
NPDES Permits Issued by Authorized States
What did EPA propose? Under the NPDES program regulations, a
Regional Administrator may review and object to an NPDES permit that an
authorized State proposes to issue. The procedures by which a Regional
Administrator may review and object to these permits are found in
Sec. 123.44. EPA proposed a new mechanism by which a Regional
Administrator could trigger these procedures for two purposes. EPA
proposed to grant the Regional Administrator the discretion to trigger
these procedures to (1) achieve reasonable further progress toward the
attainment of water quality standards in impaired waters in the absence
of a TMDL; and (2) ensure that established TMDLs are, in fact,
implemented. This proposed discretionary authority would be available
to the Regional Administrator to achieve these goals by using the
procedures in Sec. 123.44 to address a subset of existing expired
State-issued NPDES permits. This authority could be exercised when an
NPDES permit that has been administratively-continued after expiration
authorizes a discharge to a waterbody that does not attain and maintain
water quality standards where there is a need for a change in the
existing permit limits to be protective of water quality standards. In
the preamble to the proposal, these permits were referred to as
``environmentally-significant permits.''
To achieve reasonable further progress toward the attainment of
water quality standards in impaired waters in the absence of a TMDL,
proposed Sec. 123.44(k) would give EPA the discretion to treat a subset
of environmentally-significant State-issued permits that are
administratively-continued after expiration as the State's submission
of a permit for EPA review under Sec. 123.44. This subset of permits
includes those permits that authorize discharges of a pollutant(s) of
concern (i.e., a pollutant(s) for which the waterbody is impaired) to a
waterbody that does not attain and maintain water quality standards for
those pollutants and for which EPA has not established or approved a
TMDL. EPA proposed that this authority be available to the Agency where
there is a need for a change in the existing permit limits.
Specifically, this authority could be invoked where there is a need to
include more adequate and protective water quality-based effluent
limits in order to ensure that such limits derive from and comply with
applicable water quality standards. See Sec. 122.44(d)(1)(vii).
EPA proposed to assert the Agency's discretion to exercise the
authority to use these procedures for a State-issued permit that meets
the conditions above, where that permit has been expired and
administratively-continued for more than 90 days, and where the State
has failed to reissue that permit. The Agency's NPDES regulations
require that an existing permittee submit a new permit application at
least 180 days before an existing permit expires (Sec. 122.21(d)(2)).
When a permittee has submitted a timely and complete application for
renewal, but the State Director fails to act on the permittee's
application before the existing permit expires, States' laws often
provide that the existing permit continues in effect by operation of
law. The permit remains in effect by operation of law until the State
takes final action on the permittee's application (until the State
makes a final decision to grant or deny a new permit). This is often
referred to as ``administrative continuance.'' These State laws, like
the corresponding provisions in Sec. 122.6 and the Federal
Administrative Procedure Act at 5 U.S.C. 558(c), aim to protect a
permittee who has submitted a timely and complete application for
renewal. Such State laws protect a permittee from losing its
authorization to discharge simply because the permit-issuing authority
has not issued a new permit before the existing permit expires.
In some cases, administrative continuance of expired permits
provides States with flexibility to prioritize their action without
significant adverse impacts on receiving waters. However,
administrative continuance also may lead to inappropriate delays in
reissuing permits that need revision to comply with current
requirements. State administrative-continuance laws typically allow an
expired permit to remain administratively-continued indefinitely.
Therefore, a lengthy administrative continuance of a permit for a
discharge into an impaired waterbody can significantly delay the
implementation of needed water quality-based effluent limitations.
Under EPA's existing regulations, no mechanism currently exists by
which to invoke the Agency's permit review and objection authority to
address this situation. The proposed authority and the procedures to
invoke this authority would provide that procedural mechanism.
The proposal provided that if, after notice, the State failed to
submit to EPA a draft or proposed permit for a discharge into an
impaired waterbody within 90 days following the permit expiration date,
the Regional Administrator could treat the expired and
administratively-continued permit as the State's submission of a draft
or proposed permit for EPA review under Sec. 123.44. For EPA to
exercise this discretionary review authority, EPA would give the State
and the discharger 90-days notice of its intent to treat the
administrative-continuance as the reissuance of a permit containing the
same terms as the permit that had expired. EPA could provide this
notice at any time following the 90-day period after permit expiration.
EPA's use of this new mechanism would be discretionary.
Once the environmentally-significant, administratively-continued
permit was subject to review under Sec. 123.44 procedures, EPA would be
able to comment on, object to, or recommend
[[Page 43645]]
changes to the permit. If the State, under Sec. 123.44(a), submitted a
draft or proposed permit for EPA review at any time before authority to
issue the permit passed to EPA under Sec. 123.44(h), EPA would withdraw
its notice of intent to assume permitting authority. At that point,
existing rules on EPA objection to State-issued permits would govern.
Therefore, EPA could take any appropriate action, including
transmission of comments on or possible objection to the new draft or
proposed permit submitted by the State. Furthermore, EPA's ability to
invoke this authority would continue until the State issues the final
permit. In other words, if a State submits a draft or proposed permit
that EPA believes resolves all of the concerns under the objection but
fails to issue the final permit, EPA could invoke this authority again
and object to the original (expired and administratively-continued)
permit.
In the proposal, the Agency stressed that the new review mechanism
would be used only in those circumstances where other means of working
with the State to reissue the permit failed. At any time during this
process, the State is encouraged to explain to EPA the reasons for not
reissuing the expired permit. The Agency will carefully consider any
such explanation before proceeding with these objection procedures.
Similarly, the Agency would not expect to depend heavily upon the
proposed mechanism in States whose administrative continuance laws
operate for limited periods of time.
As noted in the preamble to the proposed rule, Sec. 123.44(k) would
apply only to those expired, State-issued permits for which a timely
and complete application for renewal has been submitted to the State,
and for which State law has provided for continuation of the expired
permit. The new provision would not apply to unpermitted discharges.
Existing authority allows the Agency to institute judicial or
administrative actions against unpermitted dischargers for discharging
without a permit, even if they have submitted an application to the
State and the State has not issued the permit.
EPA recognized in the preamble to the proposed rule that many
administratively-continued permits for discharges into impaired waters
have not been reissued and that the Agency expects to exercise its
discretion to use this authority only in very rare instances and only
with respect to environmentally-significant permits. The Agency intends
to use its discretion under this provision as one way to help ensure
that these permits will be issued in a timely manner to support the
fulfillment of the CWA goals to ensure that water quality standards are
maintained and protected.
EPA's authority to make these changes to its regulations was
discussed at length in the proposal. EPA restates the most important
elements of that discussion here. Section 301(b)(1)(C) of the Act
directs EPA and the States to include water quality-based effluent
limitations in NPDES permits that will enable the waterbody to meet the
applicable water quality standards. Also, CWA section 501(a) allows the
Agency to promulgate a regulation to implement CWA section 402(b)(1)(B)
and EPA's authority in CWA section 402(d) to prevent a State from
avoiding (or postponing by lengthy administrative continuance), what
otherwise would be required by reissuance. The Agency bears an
obligation under CWA section 402(c)(2) to ensure that State programs
and State-issued permits comply with the requirements of the Act
including section 402(b)(1)(B). NPDES permits may not be issued for
periods exceeding five years (CWA section 402(b)(1)) and should be
reviewed and revised in a timely fashion to ensure compliance with the
CWA and applicable regulations.
What comments did EPA receive? The following summarizes the major
comments received on the proposed authority for EPA to review, object
to, and reissue, if necessary, a State-issued NPDES permit that has
been administratively-continued after expiration. The majority of
comments received on this proposed provision asserted that EPA does not
have the statutory authority under the CWA to amend the NPDES
regulations to permit the Agency to review, object to, and reissue
State-issued NPDES permits that have been administratively-continued.
Many of these commenters stated that Congress intended authorized
States to have complete authority to administer the NPDES program and
that EPA should not undermine any portion of that authority. Some
commenters asserted that the only statutorily-authorized mechanism EPA
has to address State-issued, administratively-continued permits is to
withdraw the approval of a State's NPDES program.
Several commenters expressed their concern that EPA does not have
the resources to effectively take on this additional regulatory
responsibility. To support this argument, these commenters cited EPA's
current permit backlog. Many also asserted that EPA does not have the
expertise to do a better job than the State. These commenters argued
that State agencies have a much closer relationship with their NPDES
permittees and would, therefore, have a better understanding of all
aspects of the permits and necessary requirements.
A number of commenters strongly supported this proposed change to
the NPDES regulations. Some commenters expressed their belief that EPA
already has the authority to review any and all NPDES permits. These
commenters argued that EPA has an obligation under the CWA to ensure
that all State programs and State-issued permits comply with the
requirements of the Act. Some expressed their belief that the proposed
regulatory language limits EPA's review of expired permits by allowing
this authority to be invoked only for those expired permits authorizing
discharges to waters that do not attain and maintain water quality
standards. These commenters suggested that the authority be broadened
to allow for review of all State-issued permits that have been
administratively-continued after expiration. Several commenters also
expressed their belief that this authority should be mandatory rather
than discretionary, i.e., EPA should be required to review, and
reissue, if necessary, all administratively-continued permits. These
commenters asserted that delaying review results in unlawful continued
approval of permits authorizing discharges in violation of water
quality standards and established TMDLs.
Some commenters expressed procedural concerns regarding the
proposed provision. Many asserted that this proposed authority
constituted a ``second veto'' authority because the Agency already had
the chance to object to the permit after the State's notification of
its intent to issue the original NPDES permit. Others suggested
extending the period for States to Act after EPA notice from 90 days to
two years. These commenters argued that this time is necessary to
resolve all permitting issues, including the very complex process of
incorporating the applicable wasteload allocations that are derived
under a TMDL. Some recommended that EPA only allow this authority in
waters that do not attain and maintain water quality standards where a
TMDL has been established.
What is EPA promulgating today?
After considering all of the comments EPA received on the proposed
mechanism and considering further the purpose of the underlying
authority, EPA is today promulgating the
[[Page 43646]]
regulations proposed at Sec. 123.44(k) except as explained later in
today's preamble. The Regional Administrator will generally have the
discretionary authority to review, object to, and reissue, if
necessary, environmentally-significant State-issued NPDES permits that
have been administratively-continued after expiration. An
environmentally-significant permit authorizes a discharge to a
waterbody that does not attain and maintain water quality standards
where there is a need for a change in the existing permit limits to be
protective of water quality standards.
The availability of this authority is important for permits that
authorize discharges of pollutant(s) of concern to waterbodies in the
absence of an EPA approved or established TMDL. In particular, the
availability of this authority, under these circumstances, is important
for permits that do not contain limits and/or conditions that derive
from and comply with water quality standards. Again, the Agency expects
to use this authority only in rare instances as States will continue to
have the primary role in administering the NPDES program. The Agency
believes that this mechanism advances the goals of the CWA, to attain
and maintain water quality standards. The Agency further believes that
this authority is necessary to facilitate the fulfillment of EPA's
statutory responsibility to include water quality-based effluent
limitations in NPDES permits that meet the applicable water quality
standards. (CWA section 301(b)(1)(C)).
In response to comments opposing this provision, EPA does not
believe that Congress intended authorized States to have unfettered
discretion with regard to NPDES permitting after authorization.
Congress expressed its clear intent regarding State-issued NPDES
permits in the specific text of CWA sections 402(b)(1)(B) and (c)(2)
and today's rule improves implementation of those provisions. EPA
action on this provision of today's rule does not undermine State
authority, but rather enhances the authority and responsibility of
authorized States to the extent that a discharger with an expired
permit may affirmatively seek action from the State (compared to the
status quo where the discharger with an expired permit has no incentive
to seek action from the State).
B. New Tools To Ensure Implementation of TMDLs
1. Background
In addition to ensuring reasonable further progress toward the
attainment of water quality standards prior to an EPA approved or
established TMDL (described above), EPA proposed revisions that
included new tools to ensure implementation of EPA approved or
established TMDLs. EPA proposed explicit language describing the
authority of EPA and States with approved NPDES programs to designate
certain currently unregulated sources as discharges requiring NPDES
permits. These sources would have included certain animal feeding
operations, aquatic animal production facilities and silvicultural
operations. The proposal stated that EPA could invoke this authority
when necessary to provide reasonable assurance that an EPA approved or
established TMDL would be implemented with respect to the particular
source to be designated. Moreover, EPA proposed that it could invoke
this authority when necessary to provide reasonable assurance that the
designated source would achieve its allocated load reductions under the
TMDL.
EPA also proposed explicit language describing the Agency's
discretionary authority to review, object to, and reissue, if
necessary, State-issued permits that are ``administratively-continued''
after expiration, authorizing discharges into waters that do not attain
and maintain water quality standards with an EPA approved or
established TMDL. EPA proposed that it could exercise this authority
when necessary to ensure that those permits are consistent with
applicable wasteload allocations under a TMDL.
What comments did EPA receive? The following summarizes the major
comments received on the proposed new tools to ensure that established
TMDLs are implemented. Several comments expressed support for EPA's
authority to designate certain animal feeding operations (AFOs),
aquatic animal production facilities (AAPFs), and silvicultural
activities as subject to the NPDES program. Conversely, several
commenters expressed their concern that additional prescriptive,
command and control requirements would be counterproductive, impede
economic sustainability, and stall progress already made at the local
level. Some commenters added that the proposed rule would alienate the
partners and cooperators with whom working relationships should be
fostered. These commenters asserted that water quality improvements
could instead be achieved by good locally lead, incentive-based
programs, and voluntary best management practices. Some commenters
noted that voluntary programs, including the CWA section 319 program,
were inadequately funded and that additional resources directed to
these programs would be more effective in achieving water quality goals
than through additional regulatory mechanisms.
Many comments stated that nonpoint source pollution derived from
agricultural and silvicultural activities should not be regulated.
Several comments stated that Congress did not intend to regulate AFOs
or silviculture activities under the Clean Water Act or subsequent
amendments. EPA also received many comments regarding whether EPA has
the authority to designate sources in NPDES-authorized States. These
commenters expressed their belief that the proposal was designed to
extract from States more rigorous (i.e. enforceable) ``reasonable
assurances'' that nonpoint source load allocations will be met.
Some comments noted that the determination regarding whether or not
to permit an AFO, AAPF, or silviculture activity should be based upon
whether or not the operation or activity met the statutory definition
of a point source rather than on case-by-case determinations. Several
comments specifically addressed the definition of ``point source'' and
emphasized that any discernible, confined and discrete conveyance falls
within that definition and, therefore, all operations with such
conveyances should be regulated as point sources. Other comments that
addressed this same issue asserted that only those operations with a
discrete, confined and discernible conveyance fall within the
definition of point source and only those can thus be permitted.
The Agency received comments asserting that requiring permits on a
case-by-case basis violates the due process rights of the permittee
since there are no clear standards to apply and no hearing rights
provided to challenge abusive decision-making regarding NPDES
permitting. The comments further noted that permit decisions should be
based upon fixed rules rather than on-the-spot decisions by Federal
employees.
2. Designation of concentrated animal feeding operations (CAFOs)
What Did EPA Propose? EPA proposed changes to the NPDES regulations
regarding the designation of concentrated animal feeding operations
(CAFOs). EPA proposed explicit language describing the Agency's
authority, in States with approved NPDES programs, to designate animal
feeding operations (AFOs) as CAFOs. Once designated, these sources
would be subject to NPDES program requirements. This designation
authority, like the authority of NPDES-
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authorized States and EPA in unauthorized States, would be
discretionary. The proposed authority was limited to instances when EPA
establishes a TMDL and determines designation is necessary to provide
reasonable assurance that the TMDL will be implemented. If the Agency
chose to invoke this authority, it would do so on a case-by-case basis
and only in those instances where other means of working with the State
were not successful.
The NPDES regulations for CAFOs first define the term ``animal
feeding operation'' (AFO) and then the term ``concentrated animal
feeding operation'' (CAFO). An operation must first be an AFO before it
can be defined or designated as a CAFO. The term ``animal feeding
operation'' is defined in EPA regulations as a ``lot or facility''
where animals ``have been, are, or will be stabled or confined and fed
or maintained for a total of 45 days or more in any 12 month period and
crops, vegetation forage growth, or post-harvest residues are not
sustained in the normal growing season over any portion of the lot or
facility'' See Sec. 122.23.
Once a facility meets the AFO definition, its size, determined by
the total numbers of animals confined, is a fundamental factor in
determining whether it is a CAFO. The animal livestock industry is
diverse and includes a number of different types of animals that are
kept and raised in confined situations. To define these various
livestock sectors, EPA regulations established the concept of an
``animal unit'' (AU) (Part 122 Appendix B). An AU varies according to
animal type. One animal is not necessarily equal to one AU. The
regulations assign a multiplication factor for each livestock type,
except poultry.
An AFO is a CAFO either if it meets the regulatory definition of a
CAFO or it is designated as a CAFO on a case-by-case basis. An AFO is
defined as a CAFO where more than 1,000 AUs (as defined by the existing
regulation) are confined at a facility. These CAFOs are considered
``large CAFOs.'' In general, a medium-sized AFO where more than 300 AUs
are confined at a facility is also defined as a CAFO where pollutants
are discharged either into navigable waters through a manmade ditch, or
directly into waters that originate outside of and pass over, across,
or through the facility, or come into direct contact with the confined
animals. Today's regulation does not address AFOs that are defined as
CAFOs under these criteria.
As mentioned, an AFO can become a CAFO subject to NPDES permitting
through case-by-case designation. See Sec. 122.23(c). Case-by-case
designations are based on a Director's determination that the operation
or facility is a significant contributor of pollutants to waters of the
United States. In designating an operation or facility as a significant
contributor of pollutants, the Director essentially finds that the
facility's discharges are more like point sources already subject to
NPDES regulation than those agricultural nonpoint sources that are not.
EPA regulations define the term ``Director'' as the EPA Regional
Administrator or the State Director (in States authorized to administer
the NPDES program), as the context requires, or an authorized
representative. See Sec. 122.2. This definition explains that when
there is an approved State program, ``Director'' normally means the
State Director but that in some circumstances, EPA retains the
authority to take certain actions even when there is an approved State
program. In the proposed rule, EPA identified designation of CAFOs and
concentrated aquatic animal production facilities (CAAPFs) as
instances, where the context requires, that EPA retain authority in
authorized States.
In making the determination that a source is a significant
contributor of pollutants to waters of the United States, the Director
conducts an on-site inspection of the facility and considers the
following factors: (1) The size of the animal feeding operation and the
amount of wastes reaching waters of the United States; (2) the location
of the animal feeding operation relative to waters of the United
States; (3) the means of conveyance of animal wastes and process waste
waters into waters of the United States; (4) the slope, vegetation,
rainfall, and other factors affecting the likelihood or frequency of
discharge of animal wastes and process waste waters into waters of the
United States; and (5) other relevant factors. See Sec. 122.23(c). One
such relevant factor could be the water quality of the receiving water,
including the degree of nonattainment of water quality standards.
EPA has designated AFOs as CAFOs in States where it is the NPDES
permitting authority although it has done so only on rare occasions.
EPA believes it should be able to designate facilities in NPDES-
authorized States as well, for example, to assure implementation of an
EPA-established TMDL. EPA, therefore, proposed to revise Sec. 122.23 to
include explicit language describing the Agency's authority (under
certain circumstances discussed below) to make such designations in
instances when the State has not already done so.
The proposed regulatory change limited the exercise of this
discretion to the situation where EPA establishes a TMDL for a
waterbody in an authorized State and determines that designation is
necessary to provide reasonable assurance that the wasteload
allocations and load allocations under the TMDL will be achieved. EPA
may establish a TMDL for a State where a State fails to establish a
TMDL for a waterbody in accordance with its approved schedule or where
EPA disapproves a State-established TMDL. States must submit each TMDL
they establish to EPA for approval. EPA is today promulgating
regulations to require States to submit a plan to implement the load
allocations and wasteload allocations of a TMDL. EPA will evaluate the
adequacy of the implementation plan (a required element of a TMDL) in
determining whether to approve a TMDL. If EPA disapproves a TMDL based
on a determination that the implementation plan is inadequate EPA would
then need to establish the TMDL itself, including an implementation
plan.
The implementation plan must provide reasonable assurance that the
control actions and/or management measures required to implement the
load allocations and wasteload allocations of the TMDL will be put in
place and the load allocations and wasteload allocations will be met.
Thus, EPA may disapprove the TMDL if the Agency determines that the
wasteload allocation or load allocation is not appropriate, or the
implementation plan does not provide such reasonable assurance. For
example, EPA may determine that the implementation plan lacks
reasonable assurance that certain AFOs will achieve and maintain their
respective pollutant load allocations. Under these circumstances, EPA
proposed that it would work with the State to provide the necessary
reasonable assurance. EPA might suggest to the State, for example, that
certain additional management measures be put in place to control the
water quality impacts from AFOs contributing to the water quality
impairment necessitating the TMDL. EPA also might recommend that
certain improvements be made to existing State programs, whether
voluntary or regulatory, to control water quality impacts from such
sources.
If working with the State to achieve reasonable assurance has
failed, however, EPA proposed that it would disapprove the TMDL and
thereafter establish the TMDL, including an implementation plan. Under
these
[[Page 43648]]
circumstances, EPA proposed that the Agency may then determine that an
AFO is a significant contributor of pollutants to waters of the United
States. EPA may also determine that the best way for EPA to provide
reasonable assurance that such feedlot pollutant sources achieve and
maintain assigned pollutant load allocations is through the issuance
(and enforcement) of an NPDES permit. Under the proposal, EPA could
then invoke its designation authority and require the AFO to seek an
NPDES permit as a CAFO.
What comments did EPA receive? In addition to the comments noted
above under the section titled ``What Comments Did the Agency Receive
on These Proposed New Tools,'' the Agency received several comments
specific to the proposed designation of animal feeding operations. The
following discussion summarizes some of the major comments received on
this provision. EPA received several comments supporting the proposed
authority to designate certain AFOs. Many commenters also recommended
that using its designation authority, the Agency correct NPDES-
authorized States that fail to properly permit all large AFOs as CAFOs.
Many commenters, on the other hand, opposed EPA designation in
NPDES-authorized States. These commenters asserted that States should
have the lead in regulating AFOs and expressed concern that the
proposed rule would result in increased coordination costs for Federal
and State governments. Others expressed concern that EPA designation of
AFOs in NPDES-authorized States would not be consistent with a State's
designation authority. These commenters asserted that EPA is not
required to conduct the same analysis as a State when deciding whether
to require a permit.
Several comments stated that EPA could not intervene in NPDES-
authorized States unless it decides to withdraw the NPDES program.
Commenters stated that EPA designation in authorized States would
conflict with State decisions regarding its NPDES program, for example,
by overriding a State's decision not to regulate certain AFOs. One
commenter expressed concern that the rule could result in inconsistent
permitting decisions for similar sources located in different EPA
Regions.
EPA also received comments recommending that a limit or threshold
level be established for the number of small AFOs that would be
designated on a case-by-case basis under this rule. These commenters
suggested that such a limitation would place a cap on the potential
strain to State resources caused by the inclusion of a large number of
additional facilities that would be added to the NPDES program. Some
comments stated that only AFOs that discharge pollutants from a point
source--a discrete, confined, discernable conveyance--can be permitted
whereas nonpoint source dischargers could not. Others commented that
Congress only intended to regulate large AFOs.
What is EPA promulgating today? In response to comments received on
the proposed rule, EPA is not taking final action on the proposed
changes to the NPDES regulations applicable to AFOs and CAFOs at
Sec. 122.23.
3. Designation of Concentrated Aquatic Animal Production Facilities
(CAAPFs)
What did EPA propose? EPA proposed changes to the NPDES regulations
regarding the designation of concentrated aquatic animal production
facilities (CAAPFs). EPA proposed explicit language describing its
authority, in States with approved NPDES programs, to designate aquatic
animal production facilities (AAPFs) as CAAPFs. Once designated, these
sources would become subject to NPDES program requirements. This
designation authority would be discretionary and if invoked, would be
used on a case-by-case basis. The proposed authority was limited to
instances where EPA is establishing a TMDL and the Agency determines
that designation is necessary to provide reasonable assurance that the
TMDL will be implemented. The Agency's purpose and basis for this
action is nearly identical to the purpose and basis explained for EPA
designation of CAFOs in NPDES-authorized States.
Under existing regulations, concentrated aquatic animal production
facilities are subject to the NPDES program. As with AFOs, one
situation in which an AAPF is considered ``concentrated'' and thus
subject to NPDES permitting, is when the Director so designates the
operation or facility on a case-by-case basis. See Sec. 122.24(c). As
with case-by-case designations of CAFOs, case-by-case designations of
CAAPFs are based on a determination that the operation or facility is a
significant contributor of pollutants to waters of the United States.
In designating an operation or facility as a significant contributor of
pollutants, the Director essentially finds that the facility's
discharges are more like point sources already subject to NPDES
regulation than agricultural nonpoint sources that are not.
In making the determination that an AAPF is a significant
contributor of pollutants to waters of the United States, the Director
conducts an on-site inspection of the facility and considers the
following factors: (1) The location and quality of the receiving waters
of the United States; (2) the holding, feeding and production
capacities of the facility; (3) the quantity and nature of the
pollutants reaching waters of the United States; and (4) other relevant
factors. See Sec. 122.24(c). The proposed regulatory change would
restrict EPA's authority to exercise the discretion to designate CAAPFs
to the same limiting situations for designating CAFOs, specifically,
when EPA establishes a TMDL for a waterbody in an authorized State and
determines that designation is necessary to provide reasonable
assurance that the wasteload allocations and load allocations under the
TMDL will be achieved.
In addition, the preamble to the proposed rule offered an
interpretation of the distinction between ``aquaculture'' and
``concentrated aquatic animal production facilities.'' Based on
additional consultation, today's preamble offers a clarification to
that interpretation as explained below.
What comments did EPA receive? In addition to the comments noted
above under the section titled ``What Comments Did EPA Receive on These
Proposed New Tools,'' the Agency received several comments specific to
the designation of CAAPFs. EPA received very few comments addressing
issues relevant solely to the designation of CAAPFs. The following is a
summary of those comments. One comment expressed support for the
proposal but suggested that the scope of designation authority should
be broadened. This commenter expressed concern that there were too many
exemptions under which a facility would not be covered under the NPDES
program and that the proposal should be revised to allow for
designation of all CAAPFs in every instance.
Most of the comments received opposed EPA's proposal to designate
certain AAPFs in those instances where other means of working with a
State have failed. One commenter expressed concern that the proposal
was a questionable expansion of EPA's authority to supercede current
State actions that efficiently and economically regulate CAAPFs. This
commenter stated that States with large aquatic production industries
already have a comprehensive regulatory framework, enforcement
authority and compliance assistance, as well as voluntary incentives,
including operator
[[Page 43649]]
training and certification, complaint systems, and coordination with
various State agencies.
What is EPA promulgating today? In response to comments received on
the proposed rule, EPA is withdrawing the proposed changes to the NPDES
regulations applicable to AAPFs and CAAPFs at Sec. 122.24.
By today's preamble, however, EPA offers a clarification of its
interpretation of the distinction between ``aquaculture'' and
``concentrated aquatic animal production facilities.'' The preamble to
the proposed rule differentiated between ``aquaculture'' and ``aquatic
animal production facilities'' based on the location of aquatic stock
confinement relative to jurisdictional waters of the United States. The
proposal indicated that with respect to ``aquaculture,'' aquatic stock
is confined within jurisdictional waters whereas aquatic stock in
``aquatic animal production facilities'' is not confined within
jurisdictional waters but the facilities discharge to jurisdictional
waters. Upon closer review of the original CWA legislative history, the
regulations for aquaculture and aquatic animal production facilities,
and past Agency statements on the matter, EPA today clarifies the
statements in the preamble to the proposed rule. As an initial matter,
the Agency notes that it did not intend to amend or revise existing EPA
interpretations regarding the scope of the two regulations, but merely
to provide clarification for the reader. EPA regrets any confusion
fostered by the proposal.
Section 318 of the CWA specifically addresses ``aquaculture.'' The
CWA does not specifically address ``concentrated aquatic animal
production facilities.'' The latter are a type of ``concentrated animal
feeding operation,'' which the CWA explicitly identifies as a ``point
source.'' The legislative history is clear that ``aquaculture,'' as the
term is used in Section 318 of the Act, is intended to refer to
controlled conditions at an approved aquaculture project, i.e.,
innovative reuse of effluent discharged from municipal and/or
industrial sources. In 1977, EPA explained that aquaculture projects
were viewed as one way to put existing pollution to productive use. (42
FR 25478, May 17, 1977.) (``aquaculture projects using pollutants
within navigable waters will be unique since discharges in excess of
those permitted pursuant to effluent limitations are to be allowed
within the project area.''). When EPA proposed the aquaculture
regulations in August 1978, the proposed regulatory text provided:
The regulations are intended to authorize, on a selective basis,
controlled discharges which could otherwise be unlawful under the
Act in order to determine, in a carefully supervised manner, the
existing and potential feasibility of using pollutants to grow
aquatic organisms which can be harvested and used beneficially and
to encourage such projects, while at the same time protecting the
other beneficial uses of the waters.
Section 125.15(b) (as proposed at 43 FR 37132 on August 21, 1978).
The Agency further proposed that:
These regulations do not apply to those aquaculture facilities
such as fish hatcheries, fish farms, and similar projects which do
not use discharges of wastes from a separate industrial or municipal
point source for the maintenance, propagation and/or production of
harvestable freshwater, marine, or estuarine organisms. Such
projects are regulated directly as aquatic animal production
facilities under section 402 of the Act.
Section 125.15(c) (as proposed on August 21, 1978). The 1978
proposal was nearly identical to the aquaculture regulations then in
existence under Part 115. Its purpose was to incorporate the Part 115
regulations into the NPDES permit regulations, reflecting the Agency's
intent to merge aquaculture permitting into the NPDES program following
changes to Section 318 in the 1977 CWA amendments. While the current
regulations addressing aquaculture have changed slightly and been
renumbered, the proposed regulatory text quoted above most clearly
illustrates the distinction between ``aquaculture'' within the meaning
of CWA section 318 and regulated under Sec. 122.25, and ``concentrated
aquatic animal production facilities'' regulated under Sec. 122.24.
Therefore, by today's final rule, EPA is clarifying that the
distinction between ``aquaculture'' and ``concentrated aquatic animal
production facilities'' is not based on the location of aquatic stock
confinement relative to jurisdictional waters of the United States.
Most commercial fish husbandry that the layperson refers to as
``aquaculture,'' including fish farms located in waters of the U.S., is
subject to NPDES regulation under the rubric ``concentrated aquatic
animal production facility.'' As with feedlots, an ``aquatic animal
production facility'' is subject to regulation under the NPDES
permitting program only if the facility is ``concentrated'' according
to the NPDES regulations.
4. Designation of Point Source Storm Water Discharges Associated With
Silvicultural Operations
What did EPA propose? The proposed regulations would have provided
States authorized to administer the NPDES program and EPA with the
opportunity to use the NPDES program to manage pollution from forestry
operations under certain circumstances. As proposed, a State could
designate a forestry operation not already subject to NPDES permit
requirements, as requiring an NPDES permit only (1) where the operation
includes a physical ``discharge'' of storm water from a discrete,
confined, discernible conveyance (a physical point source); and (2)
upon a determination that the operation was a ``significant contributor
of pollutants'' or was contributing to the violation of a water quality
standard. The proposal would have also provided EPA with this
designation authority. The Agency's use of this authority, however,
would have been limited to instances where the Agency establishes a
TMDL and designation is deemed necessary to provide ``reasonable
assurance'' that a source would meet its allocated load reductions
under the TMDL.
Under the proposed regulations, pollutants from forestry operations
that do not cause significant water quality problems would not be
subject to the NPDES program. Even where forestry activities were
causing significant water quality problems, State permitting
authorities would have retained the option of determining that
approaches other than the NPDES program, such as State voluntary or
alternate regulatory programs, would be more effective and sufficient
to restore the health of the polluted waterbody.
As proposed, where a State identifies a polluted waterbody, the
State would be required to develop a TMDL to restore the water and
provide ``reasonable assurance'' that the necessary pollution controls
would actually be implemented. States authorized to administer the
NPDES program would have, among others, the option to issue an NPDES
permit for a point source discharge of storm water associated with a
forestry operation to provide ``reasonable assurance'' that the
pollution control measures would be implemented. EPA noted in the
proposal that the Agency expected that States would use this permit
option only to address ``bad actors'' who had not responded to various
non-regulatory approaches and were not adequately implementing best
management
[[Page 43650]]
practices to control water quality impacts.
The Clean Water Act requires that EPA review and approve TMDLs as
adequate to restore the health of polluted waters. Where a State TMDL
is not adequate and EPA disapproves the TMDL, EPA is required to
establish the TMDL. In cases where EPA establishes a TMDL that
identifies silvicultural activities as a significant source of
pollutant loadings, the Agency proposed that it would work with the
States and rely on voluntary, incentive-based approaches, where such
approaches are proven to be effective, to provide reasonable assurance
that the loads and wasteloads allocated in the TMDL would be achieved.
Where working with the State did not prove successful, the proposed
regulations would have allowed EPA to designate, as a point source
discharge, the addition of pollutants from forestry activities that
discharge storm water through a discrete, confined, discernible
conveyance. As discussed in the preamble to the proposed regulations,
EPA expected that the Agency would use this authority only as a last
resort. To accomplish this objective and achieve the intended result in
the least burdensome fashion, EPA proposed changes to the silviculture
and storm water permit provisions at Secs. 122.27 and 122.26.
Forests have a significant role in protecting the quality of our
Nation's waters. Covering about one-third of the Nation's land area,
forests are the source of about two-thirds of the Nation's runoff,
excluding Alaska. Vegetated forested lands help to dissipate rain,
reduce flooding and slow storm water runoff. In addition, forested
lands help to refill underground aquifers, cool and cleanse water, and
provide critical habitat for fish and wildlife. Forests also improve
our quality of life by providing abundant recreational opportunities.
EPA recognized that implementing properly designed forest
management plans can result in silvicultural activities that are both
profitable and protective of water quality. These plans can be designed
to include mechanisms that would accommodate the full range of forestry
activities that might otherwise pollute waters (e.g., by designating
special areas for protection; planning the proper timing of forestry
activities; describing best management measures for road layout,
design, construction, and maintenance; and identifying the most
appropriate methods for harvesting and forest regeneration). EPA also
recognized that in many parts of the country, Federal agencies, States,
and professional forest managers are implementing effective forest
management plans combining a range of tools including education,
financial assistance, and regulatory requirements.
Despite these public and private forest management efforts,
silvicultural activities may yet contribute to water quality
impairments and aquatic habitat loss (e.g., when operators resist such
forest management efforts or when forest management efforts become
outdated or unresponsive to current conditions). Impairments and
habitat loss may occur due to sediment and nutrient pollutant loadings,
adverse impacts to runoff and infiltration patterns, and water
temperature increases. Discharges due to improper road design,
location, maintenance and use also can impair aquatic ecosystems and
result in physical alterations in stream channel morphology and
substrate composition, stream bank destablization, changes in flow
regime, habitat fragmentation, etc. (``Environmental Assessment to the
Interim Rule: Administration of the Forest Development Transportation
System: Temporary Suspension of Road Construction and Reconstruction in
Unroaded Areas,'' February 1999, USDA Forest Service). Sedimentation
due to uncontrolled discharges from silviculture activities, for
example, discharges from forest road building, threatens water quality
and important aquatic habitat.
In 1998, 32 States identified forestry as a source of water quality
problems that affect more than 20,000 miles of rivers and streams,
220,000 acres of lakes, and 15 square miles of coastal waters. This
data was derived from an unpublished analysis using data from the 1998
section 303(d) lists and the CWA section 305(b) reports. The Agency
believes that these numbers underestimate the number of waters impaired
by forestry operations due to a number of data limitations.
EPA proposed changes to the NPDES regulations for silviculture and
for storm water discharges in order to address this potential source of
significant impairment. Most discharges of storm water associated with
road building and other land disturbing activity that disturbs more
than five acres of land are currently regulated under the NPDES
permitting program pursuant to the NPDES permit regulations for storm
water discharges at Sec. 122.26. EPA published the storm water
discharge application regulations in 1990. After promulgation of those
regulations, and in discussions with stakeholders, it became clear to
EPA that, at a minimum, there was a perception of a ``gap'' in
regulatory treatment of silviculture roads compared to all other types
of roads. This regulatory gap arose based on the NPDES regulation
addressing silvicultural sources which identified, among other things,
silvicultural ``road construction and maintenance from which there is
natural runoff'' as a nonpoint source silvicultural activity.
The Agency believes that it acted within its delegated authority
when it proposed to remove this sentence from the regulation. EPA
proposed that, under limited circumstances, when a silvicultural
activity results in a ``physical'' point source discharge that can and
should be regulated under NPDES permits, like those for other storm
water discharges, States and EPA should have the option of using the
NPDES program as a means to address the water quality impacts from a
significant remaining, unregulated source of pollutants causing adverse
impacts to water quality. Specifically, the Agency believed that this
option should be available to address those sources that are doing a
poor job of implementing measures designed to prevent water quality
problems.
The proposal would have provided all NPDES permitting authorities
with sufficient authority to regulate ``physical'' point source
discharges from silvicultural sources not already subject to NPDES
permit requirements. Again, the Agency hastens to note that the
existing limitation on regulation of discharges from silvicultural
sources was not compelled by the CWA. EPA promulgated the existing
regulation on silviculture based on the interpretive authority for
rulemaking under CWA section 501(a), which authorizes the Administrator
to prescribe regulations that are necessary to carry out her functions
under the Act. The CWA preserves the rights of States to experiment
with alternative regulatory (and non-regulatory) approaches to control
nonpoint sources of pollution. The CWA does not provide specific legal
authority for EPA to regulate nonpoint sources in a way that would
assure the attainment of water quality standards. Such authority is
reserved for the States.
Under the proposed rule, EPA would have deleted a sentence from the
existing NPDES regulations that identifies a series of nonpoint source
silvicultural activities (Sec. 122.27(b)(1)). While most such
activities, in fact, can result in diffuse runoff (i.e., a nonpoint
source of pollutants), some discharges from some silvicultural
activities may physically resemble point source discharges. As early as
1976, the Agency
[[Page 43651]]
struggled to articulate a general definition for the term nonpoint
source. (41 FR 24709, 24710 col.2, June 18, 1976). There was, and
perhaps remains, however, no precise and absolute definition. Id. In
the 1976 preamble, EPA relied on three criteria to characterize
nonpoint sources: Pollutants discharged are induced by natural
processes; pollutants discharged are not traceable to any discrete or
identifiable facility; and pollutants discharged are better controlled
through the utilization of BMPs, including process and planning
techniques. As evidenced by implementation of the NPDES permitting
program for storm water discharges associated with construction, the
first and third of these criteria are probably less meaningful in the
current context of silvicultural road building and maintenance.
As explained in the preamble to the proposed rule, EPA premised the
existing silviculture regulation (at Sec. 122.27) on a judicial
decision that held that EPA could not exempt any point sources from the
NPDES permitting program. See Natural Resources Defense Council, Inc.
v. Costle, 568 F.2d 1369 (D.C. Cir. 1977). EPA interprets the 1987
storm water amendments in CWA section 402(p)(1) to essentially
supercede this judicial finding and create a new category of
``unregulated point sources.'' In place of this regulatory gap from
permitting for silvicultural discharges, the proposed rule would allow
for case-by-case regulation of a new category of ``unregulated point
sources'' associated with the silvicultural activities that are
currently unregulated under the NPDES program. Note that ``return flows
from irrigated agriculture'' and ``agricultural storm water'' are
``statutory'' nonpoint sources (based on CWA section 502(14)). As such,
EPA can not and would not attempt to regulate those statutory nonpoint
sources under the NPDES permitting program. The Agency emphasizes that
the proposal would have affected only those currently unregulated
silvicultural activities that cause ``physical'' point source
discharges. As discussed previously, except for some CAFOs, a term
specifically included in the definition of ``point source,'' the NPDES
permit requirement only applies when a particular source has the
``physical characteristics'' of a point source discharge. As a
threshold matter, regulation as a point source requires a ``discrete,
confined, and discernible conveyance.'' CWA section 502(14), 33 U.S.C.
section 1362(14).
In the 1987 amendments to the CWA, Congress established a general
moratorium against permitting discharges composed entirely of storm
water in CWA section 402(p)(1). As such, the section created the
category of ``unregulated'' point sources of storm water described
above. Unregulated point sources of storm water are point sources to
which the NPDES permitting program does not apply. CWA section
402(p)(2) identified discharges that are not subject to the moratorium,
including discharges from municipal separate storm sewer systems
serving populations over a certain size, as well as storm water
discharges associated with industrial activity.
Of particular interest, CWA section 402(p)(2)(E) specifically
identifies a category of discharges--other than municipal or industrial
storm water discharges--that can be regulated on a case-by-case at some
future time. EPA regulations that implement section 402(p)(2)(E) are
found at Sec. 122.26(a)(1)(v). Section 402(p)(2)(E) is the basis and
the only basis, upon which physical point source discharges from the
currently unregulated silvicultural activities would be required to
obtain an NPDES permit. Designation under section 402(p)(2)(E) is only
available for point sources. The sentence in EPA's current silviculture
regulation that identified nonpoint source discharges from
silvicultural activities enabled inconsistent interpretations regarding
whether discharges from such activities, which otherwise would appear
to add pollutants from a discrete, confined, discernible conveyance,
could be designated under section 402(p)(2)(E). EPA proposed deletion
of this sentence to clarify the circumstances when such sources can and
should be regulated under the NPDES permitting program for storm water
discharges.
As noted above, the reason EPA proposed to remove the sentence
describing silvicultural nonpoint sources was to provide States with an
additional tool to manage water quality impacts from these sources as
well as to ensure that EPA could implement a TMDL that the Agency might
be required to establish in the event of State default. Accordingly,
the proposed rule would have imposed a restriction on EPA that would
not exist for States. Specifically, the Agency could not have
designated discharges from currently unregulated silvicultural
activities except in instances where EPA must establish a TMDL. This
additional tool would be provided to NPDES-authorized States and to EPA
under the combination of the existing storm water regulations which
allow for case-by-case designation of certain storm water discharges at
Sec. 122.26(a)(1)(v) and by amending the silviculture regulations at
Sec. 122.27.
EPA notes that it did not provide an accurate cite for one of the
documents cited in the proposal that described the impacts of
silviculture on water quality. The Agency did not intend to
misrepresent the views of the authors of the cited publication. EPA
erroneously cited the wrong document authored by one of the same
authors of a document in the same year (1989). The paper that the
Agency intended to cite is titled, ``An Overview of Nonpoint Source
Pollution in the Southern United States'' authored by Neary, D.G.,
Swank, W.T., Riekerk, H., which was published in ``Proceedings of the
Symposium: Forested Wetlands of the Southern U.S.,'' July 12-14, 1988,
Orlando Fl., U.S. Forest Service. General Technical Report SE-50,
published January 1989.
The proposed rule contained the statement, ``silviculture
contributes approximately three to nine percent of nonpoint source
pollution to the Nation's waters.'' EPA meant to state that, based on
State assessments reported in the 1988 section 305(b) Report to
Congress (EPA Document #440-4-90-003), three to nine% of assessed
rivers are impaired by silviculture. The Neary et al. document that the
Agency intended to cite supports this statement. This document contains
the statement that, ``except for two [of the reported] states,
(Arkansas and Louisiana), silviculture was responsible for 8% of the
impacts on surface waters.'' This number falls within the range
reported by the States in the 1988 section 305(b) report.
What comments did EPA receive? In addition to the comments noted
above under the section titled ``What Comments Did EPA Receive on These
Proposed New Tools,'' the Agency received many comments specific to the
designation of silvicultural activities. The following discussion
summarizes these comments. An overwhelming number of commenters had a
basic misunderstanding of what the Agency proposed. These commenters
misinterpreted the proposal to mean that, upon promulgation of the
rule, each and every existing and future silvicultural operation would
be required to obtain an NPDES permit. Based on this misunderstanding,
these commenters also misunderstood the proposal as a mechanism that
would unfairly and unnecessarily regulate even those operators that are
adequately implementing appropriate measures to protect water quality.
As discussed above, the scope of the proposed authority was much
narrower, it only
[[Page 43652]]
applied in very limited circumstances, and would have been a mechanism
to address bad actors only.
Several commenters claimed that obtaining and issuing NPDES permits
would be an economic burden to the forestry industry as well as the
government and that the money to obtain and issue these permits would
not be well spent because it would not produce a meaningful change in
water quality. Claiming that forestry has been reported as only a minor
source of water quality pollution, commenters further claimed that EPA
lacks the data to support this regulatory change. Commenters also
asserted that the economic analysis to the proposal underestimated the
costs to landowners of obtaining an NPDES permit. Many commenters
expressed their belief that existing regulatory and voluntary State
Forest Management programs are adequate to manage the environmental
impacts from silviculture and that the proposal, if finalized, would
undercut these programs.
A significant number of commenters asserted that EPA lacks the
authority to make the proposed regulatory changes. These commenters
disagreed with the Agency's position that the CWA provides adequate
statutory authority to make these revisions. Several commenters stated
that EPA did not have the authority to redefine general silvicultural
practices as point sources unless there was an associated conveyance.
Other commenters argued that EPA cannot and should not shield sources
with discharges from discrete, discernible, confined conveyances from
NPDES permit requirements. These commenters asserted that all sources
with discharges from discrete, discernible, confined conveyances are
and should be required to obtain NPDES permits. EPA also received a
significant number of comments that asserted that EPA does have the
statutory authority to make these regulatory changes. These commenters
pointed out that in the absence of clear statutory language excluding
silvicultural activities from the definition of a point source, EPA has
the authority to regulate them as point sources. These commenters also
highlighted the court decision in NRDC v. Costle, where the U.S. Court
of Appeals for the D.C. Circuit explicitly held that ``the power to
define point and nonpoint sources is vested in EPA.'' 568 F.2d at 1382.
The Agency received numerous comments in support of the proposed
authority to designate certain silvicultural operations as requiring
NPDES permits. Several commenters provided data and case examples
describing the need to permit silvicultural activities including data
describing the adverse impacts to water quality from increased sediment
loadings, road construction and the use of herbicides. Many commenters
stated that the proposed authority was too restrictive to provide
meaningful environmental results. These commenters encouraged EPA to
expand designation authority to allow EPA to designate a source outside
of the context of a TMDL and to expand the authority to apply
universally to sources discharging into any water of the United States.
Many commenters encouraged EPA to require NPDES permits for all
silvicultural operations that discharge pollutants from a point source
to waters of the United States as opposed to the proposed case-by-case
approach. Several commenters expressed their concern that the proposed
case-by-case designation authority was retroactive in effect because
designation was limited to instances where the State or EPA had already
determined that the operator is a significant contributor of pollutants
or contributes to a violation of water quality standards. These
commenters supported a more proactive approach that would place less of
a burden on the State or EPA. To preserve unspoiled waters, many also
suggested that the authority be available to the State or EPA to
designate sources currently located on these waters and those sources
that wish to locate on these waters in the future.
Commenters expressed their concern regarding the potential for
citizens to petition the State or EPA to issue an NPDES permit to
silviculture operators. They were concerned that citizen suits would be
costly and cause significant delays in operation. Conversely, some
commenters supported the ability for citizens to use the petition
process so that citizens can help to identify silvicultural operations
that are causing significant water quality problems. Others expressed
concern that sources undergoing land clearing activities incidental to
activities such as farming or construction and development would claim
that they are conducting silvicultural activities and therefore would
be exempt from NPDES permit requirements (unless and until designated).
Some commenters asserted that the proposed requirement would
override State control over land use decisions. These commenters
asserted that requiring an NPDES permit constituted a Federal
``taking'' of a private landowner's use of property. Commenters also
suggested that States (and the sources within States) that have
effective and adequately protective forestry programs should be exempt
from the effects of the proposed provisions. These commenters suggested
that EPA develop reporting criteria that allow for a reasoned
determination of whether a State is demonstrating the level of effort
sufficient to warrant a determination that its forestry program
provides ``reasonable assurance'' that water quality will be protected.
What is EPA promulgating today? In response to comments received on
the proposed rule, EPA is not taking final action in today's rule on
the proposed changes to the NPDES regulations applicable to
silviculture at Secs. 122.26 and 122.27. EPA has no plans at present to
repropose changes to the silviculture exemption or to finalize the
August 1999 proposal, but will continue to evaluate how to best address
the water quality impacts from forestry.
5. EPA Authority To Reissue Expired and Administratively-Continued
NPDES Permits Issued by Authorized States
What did EPA propose? As discussed in Section III.A.3, Reasonable
Further Progress Toward Attaining Water Quality Standards in Impaired
Waterbodies in the Absence of a TMDL, of this preamble, EPA proposed to
grant the Regional Administrator the discretion to trigger the
objection procedures of Sec. 123.44 to ensure that established TMDLs
are, in fact, implemented.
What comments did EPA receive? The comments received on this
proposal are discussed in III.A.3, Reasonable Further Progress Toward
Attaining Water Quality Standards in Impaired Waterbodies in the
Absence of a TMDL above.
What is EPA promulgating today? After carefully considering all of
the comments EPA received on the proposed mechanism and considering
further the purpose underlying the authority, EPA is today promulgating
proposed Sec. 123.44(k) as reflected in today's Federal Register. A
discussion of EPA's authority to review, object to, and reissue State-
issued NPDES permits that have been administratively-continued
authorizing discharges to impaired waters is contained in Section
III.A.3. of this preamble and below. The scope of this provision is
consistent with what the Agency proposed on August 23, 1999 except as
discussed below. The Regional Administrator will generally have the
discretionary authority to review, object to, and reissue, if
necessary, environmentally-significant State-issued NPDES permits
[[Page 43653]]
that have been administratively-continued after expiration. An
environmentally-significant permit authorizes a discharge to a
waterbody that does not attain and maintain water quality standards
where there is a need for a change in the existing permit limits to be
protective of water quality standards.
The availability of this authority is important for permits that
authorize discharges of pollutant(s) of concern to waterbodies where a
TMDL has been established but not implemented through permits. Under
these circumstances, the availability of this authority for these
permits is important because they do not contain limits and/or
conditions that are consistent with applicable wasteload allocations
established in a TMDL. In response to comments supporting the proposal
and suggesting that EPA commit to action more strongly, EPA has
modified the proposed rule as it relates to the operation of the
provision after the establishment of a TMDL. In Sec. 130.32(c)(1)(ii)
of today's rule, EPA commits to exercise its authority to act on
expired State-issued permits (when State law ``administratively
continues'' the expired permit) to ensure the incorporation of effluent
limitations (based on the wasteload allocation(s) in a TMDL) into the
NPDES permit. EPA commits to exercise this authority to ensure that
such limits are incorporated into the permits within two years from the
expiration of the permit term, or, when the permit term expired prior
to the establishment of the TMDL, within two years from the
establishment of the TMDL. In order to ensure that these limits are
incorporated into the permits, EPA intends to monitor the State's
progress in incorporating the appropriate limits into the permits
within one year after the permit expires or, when the permit expired
prior to establishment of the TMDL, within one year of establishment of
the TMDL. In accordance with the new provisions of
Sec. 130.32(c)(1)(ii), if EPA concludes that the State will not issue
the permit within the applicable timeframe, with the appropriate
limits, EPA will trigger these review and objection procedures. These
provisions apply only to TMDLs approved after the effective date of
today's rule.
Implementation plans for TMDLs (described in the revisions to Part
130 elsewhere in today's Federal Register) need to contain a schedule
for reissuing or revising relevant NPDES permits as expeditiously as
practicable in order to incorporate effluent limits consistent with the
wasteload allocation(s) in the TMDL. Where EPA is the NPDES permitting
authority, EPA must reissue or revise the permits within two years
after the establishment of the TMDL. EPA will rely on existing
regulations at Sec. 122.62(a)(2) as a basis to modify permits during
their term to revise existing WQBELs or incorporate new WQBELs to
implement the wasteload allocation(s) in the TMDL (which, in turn,
implement existing water quality standards). EPA explained the
operation of Sec. 122.62(a)(2) in an earlier rulemaking preamble. (45
FR 33290, 33315 col. 1, May 19, 1980). A TMDL that implements a water
quality standard where that water quality standard was in existence at
the time of permit issuance represents ``new information'' that did not
exist at the time of permit issuance. This justifies new permit
requirements to implement those standards. [Note: Where a TMDL
implements a water quality standard and that water quality standard is
revised or issued after the issuance of a permit, the applicable
regulation would be Sec. 122.62(a)(3) rather than (a)(2). Thus,
modification of the permit prior to expiration would not be authorized
unless (A) the permit condition to be modified was based on EPA
approved or promulgated water quality standards, (B) EPA has approved a
State action with regard to the water quality standard on which the
permit condition was based and (C) the permittee requests modification
in accordance with Sec. 124.5 within 90 days of the Federal Register
notice of the action on which the request is based.]
The Agency believes that this mechanism is necessary to support the
goals of the CWA to attain and maintain water quality standards. The
Agency further believes that this authority is necessary to facilitate
the fulfillment of EPA's statutory responsibility to ensure timely
establishment and implementation of TMDLs and to ensure that permits
include water quality-based effluent limitations that will enable the
waterbody to meet the applicable water quality standards. CWA sections
303(d) and 301(b)(1)(C). The wasteload allocations derived from the
TMDL provide the basis for the water quality-based effluent limitations
that permits must contain. EPA has concluded that the time frames
discussed above are necessary to ensure timely TMDL implementation.
IV. Costs of the Rule
The incremental costs associated with today's rule are contained in
``Analysis of the Incremental Cost of Final Revisions to the Water
Quality Planning and Management Regulation and the National Pollutant
Discharge Elimination System Program''. You should read that document
for a complete description of the cost estimates and the basis for
those estimates. The following is a summary from that report.
------------------------------------------------------------------------
Annualized
cost (2000
Revision to the current program $ in
millions/
yr)
------------------------------------------------------------------------
Revisions to the listing requirements...................... $0.066
Revisions affecting the content and development of TMDLs... 13.708
Revisions requiring TMDLs to be developed within 10 years.. 9.030
EPA reissuance of state-issued expired and administratively 0.078
continued permits.........................................
------------
Total annualized cost.................................. $22.882
------------------------------------------------------------------------
For the Water Quality Planning and Management Rule (changes to part
130), EPA estimated the incremental costs that will accrue from today's
regulation over the period from 2000 through 2008. This period of
analysis was chosen because it spans a 10 year period, the full time
during which most TMDLs will be developed for waterbodies included on
the 1998 section 303(d) lists of impaired waters. Today's final rule
allows States, Territories, and authorized Tribes up to 2010 to
establish all the TMDLs for waterbodies included on the 1998 section
303(d) list; therefore, the actual costs may be lower than estimated.
The incremental costs that are analyzed are the additional requirements
of today's rule above the current requirements associated with
developing all the section 303(d) lists and all the TMDLs that will be
completed during this period. In accordance with today's rule, section
303(d) lists will be developed in 2002, in 2006, and in 2010. During
this period, all TMDLs will be developed for waterbodies on the 1998
lists, most of the TMDLs will be developed for wat ![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}