EPA's Total Maximum Daily Load (TMDL) Program: Highlights of the Final Revised Rule

Order Code RL30611

CRS Report for Congress

Received through the CRS Web

EPA’s Total Maximum Daily Load (TMDL)

Program: Highlights of the Final Revised Rule

July 18, 2000

(name redacted)

Specialist in Resources and Environmental Policy

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

EPA’s Total Maximum Daily Load (TMDL) Program:

Highlights of the Final Revised Rule

Summary

On July 11, the Administrator of the Environmental Protection Agency (EPA)

signed a final rule making revisions to existing EPA regulations that implement a

program in the Clean Water Act intended to improve the quality of waterways that

have not yet attained applicable standards. The rule requires states to implement

plans to clean up these polluted waters. From the August 1999 proposal of this rule

through the Administrator’s signature, EPA’s actions have been controversial. Most

recently in Congress, at the end of June, the House and Senate approved a provision

in an appropriations bill (H.R. 4425) to prevent EPA from spending any funds in

FY2000 or FY2001 to finalize or implement new TMDL rules. The President signed

the bill on July 13, in spite of the TMDL provision, which the Administration opposes

(P.L. 106-246). By signing the final rule before enactment of H.R. 4425, EPA

intended to ensure that the regulation would move forward, despite Congress’s

action. In order to avoid the FY2001 restriction, the final rule delays the effective date

of its regulatory changes until FY2002.

The rule at issue was proposed by EPA in August 1999 regarding the Total

Maximum Daily Load (TMDL) program under Section 303(d) of the Clean Water Act

(CWA) to revise existing regulations. Section 303(d) requires states to identify

waters that have not yet attained water quality standards, develop a “budget” of

pollutant reductions needed to achieve standards, and allocate reductions among

sources. EPA is required to take these actions if a state fails to do so. According to

EPA, a strengthened TMDL program is needed because significant water quality

problems persist, more than 25 years after enactment of the Clean Water Act.

This report discusses the final rule and the key modifications of the August 1999

proposal. The final rule builds on the current TMDL regulatory program and adds

details, specific requirements, and deadlines. It retains the basic elements of the 1999

proposal for more comprehensive identification of impaired waters, schedules and

minimum elements for TMDLs, and new public participation requirements. At the

same time, dropped from the final rule are several provisions that were most

controversial in the proposal, including some potentially affecting agriculture and

forestry, one that would have required pollutant discharge offsets in some

circumstances, and one that would have required states to identify waters threatened

but not yet impaired by pollution.

While the final resolution of a revised TMDL program may yet occur through

political events and/or litigation challenging EPA’s actions, several initial points can

be made. For example, even while the effective date of the rule is delayed until

October 2001, existing TMDL obligations on states remain in effect. These existing

requirements could result in the imposition of new pollution control strategies,

regardless of actions that could affect the July rule. Costs of the TMDL program,

both existing and revised, will continue to be an important issue, especially for states

which are directly affected by its requirements. Finally, while EPA attempted to

provide specificity in the final rule to resolve questions about how the revised

program will be implemented, questions about EPA’s role are likely to persist.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Effect of the TMDL Rider in H.R. 4425 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

The Final Rule is Designated a Major Rule . . . . . . . . . . . . . . . . . . . . . . . . . 4

Provisions in the Proposed Rule Not Included in the Final Revised Rule . . . 5

Agriculture and Forestry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Pollutant Discharge Offsets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Citizen Petitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Required High Priority for Impaired Drinking Water Supplies or

Endangered Species Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Identification of Threatened Waters . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Major Elements of the Final Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Definition of a TMDL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Listing Process–Data for Listing of Impaired Waterbodies . . . . . . . . . 9

Listing Process–Scope of Impaired Waters List . . . . . . . . . . . . . . . . . 9

Listing Process–Components of a List . . . . . . . . . . . . . . . . . . . . . . . 10

Listing Process–4-year Listing Cycle . . . . . . . . . . . . . . . . . . . . . . . . 10

Listing Process–Flexibility to Modify Lists within the 4-year Cycle . . 10

TMDL–Minimum Elements of a TMDL . . . . . . . . . . . . . . . . . . . . . . 11

TMDL–Up to 15 Years to Develop TMDLs . . . . . . . . . . . . . . . . . . 11

TMDL–Implementation Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

TMDL–EPA Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

EPA Authority to Reissue State-Issued Expired and AdministrativelyContinued Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

TMDL–Transition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

General–Public Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Current Program Regulations Remain in Effect . . . . . . . . . . . . . . . . . 15

Resources and Funding Remain an Issue . . . . . . . . . . . . . . . . . . . . . . 15

Implementation Questions Will Continue . . . . . . . . . . . . . . . . . . . . . 16

EPA’s Total Maximum Daily Load (TMDL)

Program: Highlights of the Final Revised Rule

Introduction

On July 11, the Administrator of the Environmental Protection Agency (EPA)

signed a final rule making revisions to existing EPA regulations that implement a

program in the Clean Water Act intended to improve the quality of waterways that

have not yet attained applicable standards. From the August 1999 proposal of this

rule through the Administrator’s signature, EPA’s actions have stimulated

controversy among some Members of Congress and the general public. Most recently

in Congress, at the end of June, the House and Senate approved a FY2001 Military

Construction and emergency supplemental appropriations bill (H.R. 4425, H.Rept.

106-710) that includes a provision to prevent EPA from spending any funds in

FY2000 or FY2001 to finalize or implement new TMDL rules. The President signed

the bill on July 13, in spite of the TMDL provision, which the Administration opposes

(P.L. 106-246). By signing the final rule before enactment of H.R. 4425, EPA

intended to ensure that the regulation would move forward, despite Congress’s

action. However, in order to avoid the FY2001 restriction, the final rule delays the

effective date of its regulatory changes until FY2002.

The rule at issue was proposed by EPA in August 1999 regarding the Total

Maximum Daily Load (TMDL) program under Section 303(d) of the Clean Water Act

(CWA) to revise existing regulations that EPA issued in 1985 and amended in 1992.

Section 303(d) requires states to identify surface waters for which wastewater

discharge limits on industrial plants and municipal sewage treatment plants are not

stringent enough to achieve state-established water quality standards, even after

application of required pollution controls. For each of these waterbodies, states are

required to set a total maximum daily load of pollutants at a level that ensures that

applicable water quality standards can be attained and maintained and to allocate

further required pollutant reductions among sources. EPA is required to take these

actions if a state fails to do so. Congress enacted Section 303(d) in 1972 (P.L. 92500), but it had languished for many years until lawsuits were brought in more than

30 states challenging the lack of implementation. EPA’s August 1999 proposal was

intended to strengthen and clarify the current regulatory program which remains in

effect until the revised rules become effective.1

According to EPA, a strengthened TMDL program is needed because significant

water quality problems persist in the nation’s waters, more than 25 years after

1

For background information, see CRS Report 97-831, Clean Water Act and Total Maximum

Daily Loads (TMDLs) of Pollutants. Also see CRS Report RL30422, EPA’s Total

Maximum Daily Load (TMDL) Program: Highlights of Proposed Changes and Impacts on

Agriculture.

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enactment of the Clean Water Act. The most recent assessments of impaired waters,

done by states under the current TMDL program in 1998, identified over 20,000

waterbodies that did not meet water quality standards. State data also report that, in

1998, about 40% of surveyed U.S. streams, lakes, and estuaries that were assessed

to determine national water quality conditions were not clean enough to support uses

such as fishing and swimming. Runoff from agricultural lands and urban areas are the

primary sources of pollutants causing these impairments. EPA and many others

believe that implementation of the TMDL program is critical in efforts to address

runoff from nonpoint sources such as farms, forests, and city streets. Historically,

clean water programs have focused on controlling pollutant discharges from industrial

and municipal point sources, while less attention has focused on managing sources of

polluted runoff.

EPA’s TMDL proposal has had few strong supporters, for varying reasons.

States, Territories, and Indian Tribes authorized to administer CWA programs would

be directly affected by the proposal and have criticized the burdens that new

requirements would place on them. Industry and others potentially affected object to

its impacts, as well. Farm groups and others associated with nonpoint discharges

question EPA’s authority to include nonpoint source pollution in the TMDL program.

Environmentalists, who support the need for a stronger and more comprehensive

TMDL program, have expressed mixed views. Some support the final rule, but others

object to the lengthy time periods that the rule allows before water quality

improvements are likely to occur. A number of groups and individuals urged EPA to

withdraw the proposal and start over. Conversely, at least a few stakeholders (groups

representing municipal wastewater and water treatment agencies) have supported

TMDL program revisions to make clear that all sources of water quality impairments,

including nonpoint sources, should contribute to solutions, so that the burdens of

more stringent pollution controls do not fall inequitably on municipal and industrial

sources alone.

Congressional interest in the proposal has been high, and opposition has been

bipartisan: by the time the final rule was signed, 12 congressional hearings had been

held, and six legislative proposals to modify or delay the proposal (in addition to the

language included in H.R. 4425) had been introduced.2 Since August 1999, EPA has

responded to criticism of the proposal, and in the weeks leading up to finalizing the

rule, the Agency attempted to signal flexibility on some of the most contentious

points,3 making changes even after the final rule was submitted to the Office of

Management and Budget for review on June 19. Even if all interested groups and

individuals were now satisfied with the substance of the final rule–which is

2

Since October 1999, hearings have been held by the full committee or subcommittees of the

House Agriculture Committee, House Transportation and Infrastructure Committee, Senate

Agriculture, Nutrition and Forestry Committee, and Senate Environment and Public Works

Committee. Legislative proposals include H.R. 3609, H.R. 3625, H.R. 4502, S. 2041, S.

2139, and S. 2417. In addition, on June 21, the House passed EPA’s FY2001 funding bill

(H.R. 4635) and approved bill and report language barring EPA from developing or

implementing final rules to revise the TMDL regulatory program in FY2001.

3

For information, see CRS Report RL30573, Changes Recently Announced by EPA to Its

Total Maximum Daily Load (TMDL) Proposal.

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unlikely–EPA’s action of promulgating the rule before the TMDL rider became law

has generated another round of criticism.

This report discusses the final rule and the key modifications of the August 1999

proposal. The final rule builds on the current TMDL regulatory program and adds

details, specific requirements, and deadlines. It retains the basic elements of the 1999

proposal for more comprehensive identification of impaired waters, schedules and

minimum elements for TMDLs, and new public participation requirements. For some

interested parties, what is most of interest is what was not included in the final rule.

EPA dropped several provisions that were most controversial in the proposal,

including some potentially affecting agriculture and forestry, one that would have

required pollutant discharge offsets in some circumstances, and one that would have

required states to identify waters threatened but not yet impaired by pollution.

Effect of the TMDL Rider in H.R. 4425

While the revised TMDL rule was undergoing final Administration review,

Congress adopted a provision in H.R. 4425, the FY2001 Military

Constructions/FY2000 Urgent Supplemental Appropriations Bill, stating that no funds

may be used in FY2000 or FY2001 to “make a final determination on or implement

any new rule relative to” the August 1999 TMDL proposal. Because the President

intended to sign H.R. 4425 into law but opposed the TMDL provision, the

Administration accelerated its review, allowing the EPA Administrator to sign it on

July 11, before the appropriations bill was signed on July 13 (P.L. 106-246). The text

of the final rule was published in the Federal Register on July 13.4

In the final rule, EPA acknowledged Congress’ action in H.R. 4425 and delayed

the effective date of the rule’s program changes until 30 days after Oct. 1, 2001, or

the expiration of the rider, whichever comes first. In the interim, current program

requirements under existing regulations and court-sanctioned TMDL schedules

remain in place. It is unclear what related activities EPA is allowed to do while the

rider is in effect. For example, can Agency officials meet with interest groups to

explain the final rule or work on policy guidance to accompany the regulation? The

rider does not restrict EPA’s ability to implement and enforce the existing TMDL

program or to make clean water grants to states to implement the existing program.

Although the final rule details requirements that states are expected to implement

over a long period of time (up to 15 years), only one specific element in the final rule

is affected by the delayed effective date. That requirement concerns submission to

EPA of the methodology that a state uses to identify impaired waters. The many

other specific dates and time-related elements of the final rule are not altered by the

delayed effective date.

4

U.S. Environmental Protection Agency. “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.” 65 Federal Register No. 135, July 13, 2000, pp. 43586-43670.

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The Final Rule is Designated a Major Rule

The Preamble accompanying publication of the final rule includes a section

discussing the Administration’s determination that the final rule is a “major rule” for

purposes of the Congressional Review Act.5 That Act provides a mechanism by

which Congress can review and disapprove federal agency actions. Under the

Congressional Review Act, Congress has the opportunity to review an agency’s rule

and can disapprove the rule by passing a joint resolution, which the President could

approve or disapprove, like any other bill presented for his signature. Joint

resolutions of disapproval of the TMDL rule were introduced in the Senate (S.J.Res.

50) and in the House (H.J.Res. 104, H.J.Res. 105, and H.J.Res. 106).

Under the Congressional Review Act, Congress has 60 session or legislative days

to pass a joint resolution of disapproval. It is apparent that the remaining session or

legislative days before adjournment of the 106th Congress will be less than 60 days.

In such a case, a joint resolution of disapproval could be re-filed in the 107th

Congress, and under the Act, the new Congress would then have 45 days to conduct

a review of the rule.

A “major rule” is one that is likely to have an annual effect on the economy of

$100 million or more; increase costs or prices for consumers, industries, federal, state

or local governments; or have a significant adverse effect on the economy. The

TMDL rule was determined to be a “major rule” on the basis of its likely costs to state

and local governments. EPA estimates that those costs will be about $22.88 million

annually. The designation of a rule as major affects its effective date during Congress’

review by delaying the effective date for 60 days following publication in the Federal

Register. However, in the case of the TMDL rule, EPA’s own action to delay it until

October 2001 delays it beyond the 60-day period specified under the Congressional

Review Act.

Under the procedures in that Act (which are not limited to major rules), if a joint

disapproval resolution passed both Houses of Congress and was signed by the

President, the rejected rule is deemed not to have had any effect at any time, and

current TMDL regulations would remain in effect. The law prevents an agency from

promulgating a revised rule in substantially the same form as a rule so disapproved by

Congress and requires that Congress specifically authorize such a rule through

subsequent legislation.

Also under the Act, if a disapproval resolution is rejected by either House,

thereby halting Congress’ review, the rule may go into effect immediately (i.e., before

the 60-day period ends). Further, if a joint disapproval resolution was passed by both

Houses but was vetoed by the President, the rule may go into effect on the earlier of

either the date one House fails to override the veto or 30 days after Congress receives

the President’s veto message. However, neither of these would occur with the final

5

The Small Business Regulatory Enforcement Fairness Act (P.L. 104-121), Subtitle E. For

background information, see CRS Report RL30116, Congressional Review of Agency

Rulemaking: A Brief Overview and Assessment After Three Years.

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revised TMDL rule, since EPA itself has delayed the effective date until October

2001.

Provisions in the Proposed Rule Not Included in the Final Revised

Rule

The final rule dropped a number of elements from EPA’s August 1999 proposal,

including several that had been at the center of controversies about it.

Agriculture and Forestry. The final rule entirely drops provisions that could

have affected some agricultural and forestry activities and could have required some

of them to obtain CWA discharge permits if they are contributing to water quality

impairments. Much of the criticism of the TMDL proposal had focused on possible

impacts on these sources, most of which currently are exempt from the Act’s permit

and enforcement requirements that apply to discharges from industries and

municipalities. These parts of the proposal, especially those potentially affecting

forestry, generated vigorous criticism (and, according to EPA, more than one-half of

the 34,000 public comments submitted on the TMDL proposal), and much of EPA’s

response since August 1999 was focused on explaining and clarifying provisions that

were, in fact, a small part of the full TMDL proposal.

In 1999, EPA had proposed that some forestry operations, animal feeding

operations (AFOs), and aquatic animal production facilities not currently subject to

CWA permits could be required by states to do so. EPA justified the proposal on the

basis that state water quality data indicate that pollutants from agriculture and forestry

are causing water quality problems that prevent waters from meeting standards. The

proposal detailed a narrow set of circumstances when this might occur – for example,

only where there is an identifiable source of discharge, only where the discharge is

causing a water quality impairment, only where the source is determined to be a

significant contributor of pollutants to the impaired waterbody, and only where EPA

is developing the TMDL in lieu of a state. However, agriculture and forestry groups

strongly criticized the possibility that even some part of their activities could be

subjected to CWA regulations.

Concerns of the forestry industry included challenging whether forestry’s water

quality impacts are significant enough to warrant EPA’s proposed changes, suspicion

that the reach of EPA’s program would be broader than the Agency indicated, and a

general fear of becoming subject to CWA regulation and enforcement. Before

finalizing the revised rules, EPA first indicated that the provisions affecting forestry

would be withdrawn for reproposal at a later date. But in the final rule, the Agency

indicated that the forestry, AFO, and aquatic animal facilities provisions were dropped

and that EPA does not intend to repropose any of them.

However, as discussed later in this report, agriculture and forestry sources are

not sheltered from the substance of the TMDL program. As states continue to

implement both the current program under existing rules and when they implement

the revised program in the future, if agricultural and forestry nonpoint sources are

identified as contributing to water quality impairments, states may seek controls or

management practices by those sources in order to attain water quality standards.

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Moreover, concerning animal feeding operations, other federal activities

independent of the TMDL program are underway which could lead to more stringent

regulation of some. In March 1999, EPA and the U.S. Department of Agriculture

(USDA) announced a Unified Animal Feeding Operation Strategy to achieve

improved animal waste management nationwide. One element of the strategy is

revision of separate existing CWA regulations that govern discharges from large

animal feeding operations, called confined animal feeding operations, or CAFOs.

These revisions are expected to expand the regulatory coverage of AFOs which are

defined as CAFOs and thus are subject to CWA permitting and enforcement.

Pollutant Discharge Offsets. EPA proposed in 1999 to require all large new

discharges and existing discharges undergoing significant expansion that are

proposing to discharge pollutant(s) of concern to an impaired waterbody to offset the

new or increased discharge by reducing loads of the same pollutant from existing

sources discharging into the same waterbody. Neither the CWA nor its regulations

currently provide for such pollutant offsets. The new offset requirement would apply

to discharges to impaired waters for which there is not yet a TMDL either established

or approved by EPA. According to EPA, the proposed requirement for offsets was

necessary to ensure that, in the interim before a TMDL is established, steps would be

taken to ensure some progress towards water quality improvements and, at a

minimum, ensure that additional impairments would not be permitted.

The final rule dropped this element of the 1999 proposal. In doing so, EPA

acknowledged concerns expressed by many commenters, including states which had

objected to the likely complexity of implementing the proposal. Municipalities also

had objected, saying it would have negative impacts on growth and economic

development in cities. The requirement would create incentives for industrial

dischargers to move to smaller jurisdictions less likely to have impaired waters, in

order to avoid compliance with an offset requirement, they said.

Citizen Petitions. EPA had proposed to codify a specific petition process,

available under section 555(b) of the Administrative Procedure Act (APA), for

citizens to petition EPA directly to perform Section 303(d) duties imposed on states.

Under the APA, this petition process has been available but has not been used by

citizens who, instead, have brought legal actions in court. EPA believed that having

a petition process would streamline one aspect of this current program, since without

such a process, citizen groups have pursued lawsuits that are both time-consuming

and costly for all parties. The August proposal would allow citizens to present

grievances about implementation directly to EPA, rather than the courts. EPA also

said the change was intended to increase public awareness of the APA procedure and

recognize the importance of the public’s role in helping EPA and states implement the

TMDL program.

States, however, said that EPA should not encourage or establish a petition

process that implicitly encourages citizens to bypass state processes and go directly

to EPA. The provision was not included in the final rule since, as EPA noted

previously, the petition process remains available under the APA.

Required High Priority for Impaired Drinking Water Supplies or

Endangered Species Issues. Current law and regulations require that states assign

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a priority ranking to each listed waterbody, based on the severity of pollution and uses

of the waterbody, including identification of pollutants and identification of

waterbodies targeted for TMDL development before the next listing cycle. EPA’s

1999 proposal affirmed the requirement for priority ranking. It required states to

assign “high,” “medium,” or “low” priority for all waters for which TMDLs are to be

developed. EPA proposed to require that high priority be assigned to waters used for

public drinking water supply where the impairment causes a violation of a drinking

water standard or waters in which a threatened or endangered species is present.

Some states and others criticized this portion of the proposal, saying that it would

mandate that states clean up impaired waters to levels set in drinking water standards.

EPA said that this was not the intention. EPA should not mandate priorities for

states, critics also said.

In the final rule, EPA modified the proposal in several ways. It dropped the

requirement that states rank waters for TMDL development according to high,

medium, and low priority but substituted a scheduling process that will require each

TMDL to be ranked in priority order by date of development in year blocks. Further,

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. However, the rule provides what EPA characterizes as a

rebuttable presumption that states will give priority attention to such waters, unless

the state can explain why a lower priority is appropriate.

Identification of Threatened Waters. The Clean Water Act requires

identification of waterbodies for which effluent limitations (technology-based

pollution controls for point sources) are not stringent enough to attain water quality

standards. Current EPA regulations require identification of waterbodies in need of

TMDLs, wasteload allocation reductions (from point sources), and load allocation

reductions (from nonpoint sources) in order to attain standards. In 1999, EPA

proposed to require that states list waterbodies impaired or threatened by point

sources only, nonpoint sources only, or a combination of point and nonpoint sources.

States would be required to list waterbodies whether the cause of impairment or

threat is individual pollutants, multiple pollutants, or pollution from any source.

Under the proposed rule, “threatened” meant a waterbody that currently meets water

quality standards, but adverse declining trends indicate that standards will not be met

by the next listing cycle.

This was a key part of EPA’s proposal, because the Agency believes that it is

more desirable, both environmentally and economically, to protect waterbodies from

possible impairment than to wait until they are impaired and then need to be restored.

States argued that the difficulty and resource burden of identifying impaired waters

under the current program are already significant and that an additional requirement

to identify threatened but not-yet-impaired waters would be more so. EPA did not

include this provision in the final rule, acknowledging concerns expressed in

comments about the technical difficulties inherent in determining when water quality

trends are declining.

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Major Elements of the Final Rule

The current TMDL process consists of two elements: (1) identifying waterbodies

where water quality standards are not being attained and (2) establishing TMDLs,

which EPA describes as a budget of pollutant reductions needed in order for the

waterbody to achieve and maintain standards. EPA’s 1999 proposal to revise existing

regulations addressed both elements of this process to clarify and strengthen the

TMDL program. The final revised rule builds on the current TMDL regulatory

program, adding details, many specific required elements, and deadlines. It retains the

basic elements of the 1999 proposal: requiring states to develop a more

comprehensive 4-part list of impaired waterbodies; requiring states to develop a more

detailed listing methodology; requiring schedules for establishing TMDLs; specifying

minimum elements in a TMDL, including an implementation plan; and specifying new

public participation requirements. At the same time, the final rule and the Preamble

in particular provide greater clarity and explanation about EPA’s intent concerning

a number of provisions (including those not included in the final rule) that were

controversial or unclear in the proposal.

The final rule directly affects states, Territories, and Indian Tribes authorized to

administer the CWA (although no Tribes are yet authorized to implement TMDL

provisions). Impacts of the rule itself on industrial dischargers, cities, private

landowners, sources of nonpoint pollution (including agriculture), or others are

indirect and would result from implementation of TMDL requirements by states,

Territories, and Tribes, not directly from EPA’s rules. Determinations of impairments

and required actions to remedy impairments will be site-specific and variable.

Current law and the existing TMDL program require states to identify

waterbodies where water quality standards are not being attained and to establish a

total maximum daily load of pollutants at a level that will attain water quality

standards by allocating further required pollutant reductions among sources. The final

revised program rule establishes new requirements for the listing program and

requires schedules for completing TMDLs (the current program has no TMDL time

schedules). The final rule also establishes 11 minimum requirements for the content

and development of TMDLs, including an implementation plan as a required element

of a TMDL. Under the CWA, if a state fails to develop the list of impaired waters or

develop a TMDL, EPA is required to do so. For states, the revised TMDL rules

increase their responsibilities to identify impaired waters in four ways: revising the

identification/listing methodology, establishing schedules for TMDL development,

increasing public participation, and providing the identification/listing methodology

in a new format. In terms of establishing TMDLs, the revised rules increase states’

responsibilities in two ways: developing implementation plans, and writing responses

to public comments.

Definition of a TMDL. Under current regulations, a TMDL is defined as the

sum of wasteload allocations (for point sources) and load allocations (for nonpoint

sources) which do not violate the loading capacity of a waterbody, i.e., do not violate

water quality standards.

In the final rule, a TMDL is defined as a written quantitative analysis of an

impaired waterbody established to ensure that water quality standards will be attained

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and maintained in all seasons for a specific waterbody and pollutant. The definition

states the 11 minimum elements of a TMDL necessary for EPA approval (see below).

Listing Process–Data for Listing of Impaired Waterbodies. Current law and

regulations require states to assemble and evaluate all existing and readily available

data and information. Regulations also require a description of the methodology used

to develop the 303(d) list,6 plus the data and information used.

The final revised rule retains these general requirements but identifies sources of

data and information specifically (e.g., CWA sec. 305(b) water quality assessment

reports, CWA sec. 319 nonpoint source assessments, Safe Drinking Water Act source

water assessments). EPA also requires states to detail the methodology or factors

used to develop the list and to submit the listing methodology to EPA two years prior

to submission of the 303(d) list. EPA will review and comment on the listing

methodology but is not authorized to formally approve or disapprove it. However,

a state’s failure to act on EPA comments on its methodology could subsequently

affect whether EPA will find the state’s 303(d) list approvable.

Listing Process–Scope of Impaired Waters List. The law requires

identification of waterbodies for which effluent limitations (technology-based

pollution controls or more stringent for point sources) are not stringent enough to

attain water quality standards. Current EPA regulations require identification of

waterbodies in need of TMDLs, wasteload allocation reductions (from point sources),

and load allocation reductions (from nonpoint sources) in order to attain standards.

Existing rules also require identification of pollutants causing or expected to cause

water quality standards violations. The statute uses both the broad term “pollution”

and narrower term “pollutant” in section 303(d).7 EPA guidance has been unclear,

hence state implementation has been inconsistent, on whether lists should cover

impairments due to pollution, pollutants, or both.

EPA’s final rule clarifies that states must list waterbodies impaired by point

sources only, nonpoint sources only, or a combination of point and nonpoint sources.

States must list waterbodies whether the cause of impairment is individual pollutants,

multiple pollutants, or pollution from any source. When a state identifies an

impairment but lacks information regarding the presence of a specific pollutant, the

state must present some biological information to support the impairment finding,

such as non-support of an existing habitat use. As noted above, the final rule dropped

portions of the proposal that also would have required states to identify “threatened”

waters but says that states may voluntarily list such waters.

6

The term “list” is used here to refer to the list of impaired waterbodies that states are

required to submit to EPA pursuant to CWA sec. 303(d).

7

Under the Act, “pollution” is defined as “the man made or man-induced alteration of the

chemical, physical, biological, or radiological integrity of water.” The statutory definition of

“pollutant” is narrower and means “dredged spoil, solid waste, incinerator residue, sewage,

garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive

materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial,

municipal and agricultural waste discharged into water.” (CWA sec. 502)

CRS-10

Listing Process–Components of a List. Existing regulations require that the

303(d) list consist of water quality-limited segments still requiring TMDLs, but the

rules recognize that certain impaired or threatened waterbodies do not require

TMDLs and therefore those waterbodies need not be listed (e.g., those already

attaining or expected to attain water quality standards with application of required

pollution controls). No specific format for the list is currently required.

In the final rule, EPA requires states to list all impaired waterbodies, whether or

not required pollution controls will attain water quality standards. The list is required

to have a specific format, identifying waterbodies in four categories. A TMDL would

be required only for waterbodies on Part 1 of a state’s list.

Part 1. Waterbodies impaired by one or more pollutants or unknown

cause.

! Part 2. Waterbodies impaired by pollution but not impaired by one

or more pollutants.

! Part 3. Waterbodies for which EPA has approved or established a

TMDL and water quality standards have not yet been attained.

! Part 4.

Waterbodies that are impaired, for which the state

demonstrates that standards will be attained by the next listing cycle.

If a Part 4 waterbody does not attain standards by the next listing

cycle, it should be included in Part 1.

!

Listing Process–4-year Listing Cycle. Existing regulations require states to

submit 303(d) lists on April 1 of even-numbered years. Under current regulations, the

most recent state submissions occurred in April 1998, and the next submissions would

have been due April 1, 2000.

The final rule increases the cycle for states to submit new 303(d) lists from two

years to four years, with the next list due April 1, 2004. The change responds to

criticisms from states which had said that a longer time would be more consistent with

other state planning activities and would allow states more time to implement

TMDLs, rather than develop lists.

Listing Process–Flexibility to Modify Lists within the 4-year Cycle. Existing

regulatory requirements do not address when states can remove listed waters, but

EPA guidance does, saying waterbodies can be removed if they are expected to attain

water quality standards in the next two years, or if the original basis for listing was

wrong. In 1999 EPA proposed that waters remain listed until water quality standards

are attained, arguing that this approach provides a way to measure progress. A

waterbody could be removed only upon attainment or based on information that the

original listing was wrong.

States have sought flexibility that would allow them to modify an impaired

waters list anytime sufficient new information is available, along with appropriate

administrative procedures for prompt EPA decisions on modified lists. They argued

that they should not have to meet more burdensome tests for delisting than for initial

listing of impaired waters. In the final rule, EPA provides states some flexibility to add

or remove listed waters or change the prioritized schedule between formal listing

cycles. However, full EPA review and approval, as well as public comment

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procedures, would apply to such changes. The basis for modifying a list remains

essentially as EPA proposed: a waterbody could be removed only with new

information indicating that the waterbody is attaining and maintaining applicable water

quality standards.

TMDL–Minimum Elements of a TMDL. Current law and regulations require

that TMDLs be established at levels necessary to meet water quality standards with

seasonal variation and a margin of safety. In the final rule, as in the 1999 proposal,

EPA requires that certain minimum elements be included in a TMDL.

Waterbody name and geographic location.

Identification of the pollutant and applicable water quality standard

for which the TMDL is being developed.

! Quantification of the pollutant load that may be present in the

waterbody and still ensure attainment of standards.

! Quantification of the amount of degree by which the current polutant

load deviates from the polutant load needed to attain standards.

! Identification of the source categories, subcategories, or individual

sources for which the wasteload allocations and load allocations are

being established.

! Waste load allocations for pollutants from point sources.

! Load allocations for pollutants from nonpoint sources, including

atmospheric deposition, groundwater, or natural background.

! Margin of safety.

! Seasonal variations.

! Allowance for reasonably foreseeable future loadings.

! Implementation plan.

!

!

TMDL–Up to 15 Years to Develop TMDLs. Current law and regulations

contain no requirement for submitting a schedule for developing TMDLs for all listed

waterbodies, but 1997 EPA policy guidance directed states to establish TMDLs 8-13

years after listing. In the August 1999 proposal, EPA proposed to require that states

submit a comprehensive schedule for establishing TMDLs for all Part 1 listed waters

“at a reasonable pace” but not later than 15 years.

EPA modified this part of the proposal in the final rule, requiring that in their

303(d) lists states must include a prioritized schedule to develop TMDLs for all Part

1 listed waters. The schedule must provide for establishing TMDLs as expeditiously

as practicable, evenly paced over the duration of the schedule, and must identify by

year when the state will develop each of the required TMDLs. The schedule is to

provide for establishments of TMDLs within 10 years, but a 5-year extension is

possible, if the state explains why 10 years is not practicable.

TMDL–Implementation Plan. Currently there is no requirement that states

develop a TMDL implementation plan. In the Preamble to the final rule, EPA stated:

Without implementation, TMDLs are merely paper plans to attain water

quality standards. The implementation plan requirement assures that the

Nation’s remaining water quality problems will actually be addressed by

CRS-12

appropriate actions identified in the implementation plans submitted as part

of the TMDLs.8

The final rule, like the proposal, requires states to develop a plan as part of the

TMDL. Thus, an implementation plan, like other elements of a TMDL, would be

subject to EPA approval and disapproval.

States commented that EPA’s proposed implementation plan requirements were

overly prescriptive and that the required minimum elements would be rigidly imposed,

regardless of the specific nature of a waterbody’s impairments. They urged EPA to

allow states the flexibility to consider various environmental, economic, social, and

legal factors of a waterbody and its impairment. In response, EPA modified the final

rule to specify separate implementation plan requirements depending on whether

waterbodies are impaired only by point sources subject to CWA permits, by other

sources (including nonpoint sources), or both. The clarification will permit states to

not include elements unneeded or inappropriate to a particular waterbody or

impairment.

Some elements are common to all impaired waterbodies: a schedule for

implementation actions; the date by which the implementation plan will attain water

quality standards; a modeling and/or monitoring plan; description of interim,

measurable criteria to be used to determine progress; and when the TMDL needs to

be revised. These were included in the 1999 proposal, and the final rule adds that the

implementation plan should include a goal (not a regulatory requirement) of attaining

and maintaining water quality standards within 10 years of establishing the TMDL,

where practicable. The Clean Water Act has no specific deadlines or goals for

attaining water quality standards, making this a new element in water quality

programs.

For waterbodies impaired only by point sources subject to CWA permit

requirements, the implementation plan will rely primarily on permits to be issued,

reissued, or revised, consistent with effluent limits necessary to wasteload allocations

in the TMDL. The final rule provides detail on when permits should be issued,

reissued, or modified and states that, in the case of expired, administratively continued

permits (see discussion below), EPA will ensure that such permits are reissued within

two years of the establishment of a TMDL.

For waterbodies impaired only by nonpoint sources, the plan must include a

schedule for implementing management measures or other control actions within five

years to achieve necessary load reductions. This schedule is to be within five years,

if practicable (i.e., it is a goal, not regulatory requirement). Thus, for example, if a

TMDL is established in 2003, management measures should be implemented by 2008,

if practicable. EPA states that it added the 5-year target in response to comments that

there needed to be some target or goal for implementing control actions and/or

management measures, since the Agency never intended that achievement of

implementation by nonpoint sources would be open ended.

8

65 Federal Register 43625.

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For waters impaired by a combination of point and nonpoint sources,

implementation plans must include all of the elements applicable to these sources. In

addition, plans must include a description of the extent to which wasteload allocations

(from point sources) reflect the expected achievement of load allocations (from

nonpoint sources), that is, tradeoffs between wasteload and load allocations.

The final rule is more detailed than the proposal regarding a requirement that all

implementation plans include “reasonable assurance” that the TMDL will be

implemented. Reasonable assurance for point sources for which a CWA permit is

required means that states must identify procedures to ensure that permits will be

issued, reissued, or revised consistent with allocations in the TMDL.

For nonpoint sources, reasonable assurance means the state must demonstrate

that management measures or other control actions (regulatory or voluntary) in the

plan meet a 4-part test: (1) they specifically apply to the pollutant(s) and waterbody

for which the TMDL is established; (2) they will be implemented as expeditiously as

practicable; (3) they will be accomplished through reliable and effective delivery

mechanisms, and (4) they will be supported by adequate water quality funding. The

latter part means that the state has allocated existing water quality funds from any

source to implement the TMDL or, if funds are not adequate, an explanation is

provided of when funds will be available and will be used. The final rule specifically

states that voluntary and incentive-based actions are acceptable to demonstrate

“reasonable assurance,” if they meet the 4-part test. This 4-part test was not included

in the proposed rule, but EPA added this and other specifics about implementation

plans in an effort to be clearer about what the revised rule will require of states and

what elements must be included in an implementation plan in order for the TMDL to

be approvable by EPA.

TMDL–EPA Authority. The law and current regulations require submission

of TMDLs for EPA review and approval; if EPA disapproves, EPA is required to

establish the TMDL. In the final rule, EPA retains the existing basic review and

approval process but adds a provision allowing EPA to establish a TMDL if asked to

do so by a state, if the Agency determines that the state will not do so consistent with

its schedule, if EPA determines it should do so for interstate or boundary waterbodies,

or to implement federal water quality standards.

The final rule provides somewhat more clarification than the 1999 proposal on

circumstances when EPA would step in due to a state’s failure to make substantial

progress in establishing TMDLs. The final rule directs states to specify which

TMDLs they intend to establish in each one-year period. If a state has not established

the TMDL by the end of the one-year period or is not close to doing so, under the

rule, it has not made “substantial progress.” At that point, EPA must ensure that the

TMDL is established within two years. EPA will publish the TMDL within two years

of the date on which the date failed to make substantial progress, unless the state

establishes the “missed” TMDL before EPA does so.

EPA Authority to Reissue State-Issued Expired and AdministrativelyContinued Permits. Under CWA section 402, EPA may review, and has 90 days to

object to, state-issued discharge permits that fail to meet guidelines and requirements

of the Act. State law often provides that, if a source makes timely reapplication

CRS-14

before the 5-year time when its permit expires, but the state is unable to act, the

existing permit terms remain in effect until the state makes a final decision. Called

administrative continuance, this protects permittees who have acted on a timely basis.

Often because of resource constraints, states (and EPA, which is the permitting

authority in 12 states) are unable to reissue permits on a timely basis: an estimated

35% of the 350,000 NPDES permits nationwide are currently backlogged for

reissuance. Currently there is no express authority in law or regulations for EPA to

object to and veto a permit that is expired or administratively continued.

EPA believes that administrative continuance of expired permits may allow for

inappropriate delay in implementing pollutant controls, including those in TMDLs for

impaired waterbodies. Thus, EPA proposed in 1999 and has included in the final rule

a provision to treat expired permits as equivalent to a state submission of a permit that

the state proposes to re-issue, thus allowing the Agency to comment on, object to, or

recommend changes. If the state fails to respond, EPA can veto the permit and issue

a permit in lieu. EPA states that it would use this discretionary authority only in

limited circumstances: (1) if the discharge is subject to a TMDL established or

approved by EPA and the expired permit does not reflect the TMDL, or (2) if the

permit authorizes discharge of pollutant(s) of concern to an impaired waterbody for

which there is no TMDL and other means of working with the state have failed.

TMDL–Transition. EPA’s proposal included provisions to address the

transition period between the existing and new regulatory program. For TMDLs

under development now (by states or EPA) and for 12 months after issuance of final

regulations, EPA proposed use of either the old or new TMDL rules, and if the

TMDL is approvable according to the applicable rules, EPA would approve it.

The final rule retained the concept of allowing use of either the old or new rules

but modified the transition period to last either 18 months from publication of the rule

in the Federal Register (i.e., Jan. 13, 2002) or nine months from the effective date of

the rule (July 30, 2002, under the rider in P.L. 106-246), whichever is later. During

the transition, in situations where there is a schedule in a consent decree or settlement

agreement, EPA will consider seeking an extension of that schedule in order to

integrate the new requirement for implementation plans into the TMDL.

General–Public Participation. Currently there are no specific requirements for

public participation, except that regulations do require that calculations to establish

TMDLs shall be subject to public review, as defined by a state, and EPA must seek

public comment when it disapproves and establishes a list or TMDL.

In the final rule, like the proposal, EPA requires states to provide the public with

at least 30 days to review and comment on all aspects of 303(d) lists, listing

methodology, schedule of TMDLs, and TMDLs, and to provide EPA with a written

summary of public comments.

Discussion

While the final resolution of a revised TMDL program may yet occur through

political events and/or litigation challenging EPA’s actions, several initial points can

be made.

CRS-15

Current Program Regulations Remain in Effect. The final rule signed by the

EPA Administrator revises regulations that implement an existing CWA program.

Under that existing program, states currently have responsibilities to identify impaired

waters and develop TMDLs. Even while the effective date of the revised rule is

delayed until October 2001, and even if the revised rule were withdrawn by EPA or

possibly through enactment of a congressional joint resolution of disapproval under

the Congressional Review Act, existing obligations on states remain in effect. So,

too, do court-ordered or court-sanctioned schedules in at least 17 states where

lawsuits have compelled states and EPA to implement the TMDL program. In several

of those instances, states or EPA have been ordered to develop TMDLs on schedules

with shorter timeframes than under the current program or under the up-to-15 years

provided in the revised program.9

Further, while the final rule eliminated a number of EPA’s proposals that

generated controversy and criticism from agriculture and forestry groups, the

activities of these groups are not sheltered from the TMDL program. As states

implement the existing program, nonpoint sources and point sources alike may be

directed to utilize additional pollutant controls and/or management measures. Under

both the existing and the revised TMDL program, states are responsible for

identifying impaired waters and allocating pollutant reductions needed to attain and

maintain water quality standards. The revised program adds details, specificity, and

deadlines to the existing program, but in either case, where nonpoint sources are

associated with water quality impairments, states may assist or direct them to adopt

practices or measures that will achieve necessary pollutant load reductions.

Resources and Funding Remain an Issue. Costs of the TMDL program, both

existing and revised, are an important issue, especially for states which are directly

affected by its requirements. The Administration has recognized the resource problem

facing states, and the President’s FY2001 budget requested $221 million in additional

EPA and USDA grant funds to help meet those and related water quality needs. In

comments on the August 1999 proposal, state groups estimated that funding for

CWA grant programs would have to triple (from $315 million total in FY2000 to

$945 million) to meet increased needs for monitoring, assessment, and TMDL

development and implementation. Congress has not taken final action on

appropriations bills that could provide the additional funds requested by the President.

Controversy has surrounded EPA’s estimate of the cost impact of the TMDL

program. EPA estimates that the revisions in the program established in the final rule

will impose annual incremental costs on states, Territories, and Indian Tribes totaling

$22.88 million, above baseline requirements of the existing program. By that

estimate, the rule did not require a detailed analysis of costs, benefits, and alternatives,

as is required by the Unfunded Mandates Reform Act of 1995, if a regulation includes

9

EPA issued policy guidance in 1997 which directed states to establish TMDLs within 8 to

13 years. Policy guidance is not binding in the manner that regulations are, and since current

regulations have no such deadlines, EPA included deadlines in the revised rule, directing states

to develop TMDLs in up to 15 years. This is a longer timeframe than is being mandated in

many of the TMDL lawsuits. The schedules for TMDLs concluded by consent decrees and

settlement agreements range from 4-1/2 years to 12 years.

CRS-16

a federal mandate that would result in expenditure by state and local governments or

the private sector of more than $100 million in any one year. A similar directive is

imposed on agencies by Executive Order 12866. A previous economic analysis

prepared for EPA (but not formally presented in the August 1999 proposal) estimated

annualized costs would range from $10.3 million to $24.4 million. States believe that

EPA has greatly underestimated costs of the program. Many are critical that in

evaluating its proposal to revise the existing program, EPA focused solely on the

incremental costs of program revisions. In the Preamble to the final rule, EPA says

that the largest part of the incremental costs ($13.7 million annually) will be

associated with new requirements affecting content and development of TMDLs.

Those incremental costs represent a 9% increase in the baseline costs for developing

TMDLs under the current program.10 Accordingly, the baseline costs for that portion

of the existing program are $152.2 million per year. EPA stated in the final rule that

it is preparing a supplemental cost and benefit analysis of the current program to be

published in the near future.11

EPA also was faulted by many for not estimating possible impacts on small

governments, small businesses such as farmers and landowners, or larger businesses.

Recently, the General Accounting Office criticized EPA for estimating only the costs

resulting from new requirements and also for its assessment of costs and benefits of

the proposal.12 EPA explained in the 1999 proposal and in the final rule that, because

the rule does not directly apply to any discharger, including small entities, and since

impacts on non-government entities are indirect, the Agency did not have to prepare

a regulatory flexibility analysis, as would be required by the Regulatory Flexibility Act

if the rule imposes substantial economic impact on small entities. Impacts on the

private sector and local governments would flow from requirements already

established by Section 303(d) and the states’ water quality standards, not from the

revised TMDL rule.

Implementation Questions Will Continue. In the revised TMDL rule, EPA

has attempted to balance a need to provide specificity and clarity about what will be

required of states with a need to recognize flexibility of state decisionmaking

regarding the thousands of impaired waters for which TMDLs must be developed.

During the public comment period on the proposal, some said the rule should be

clearer regarding what actions by a state would and would not be approvable by EPA.

Responding to that type of comment, for example, EPA included in the final rule the

requirement for a 4-part test to determine if a TMDL implementation plan for

nonpoint sources provides reasonable assurance that the TMDL will be implemented.

On the other hand, other commenters favored much less specificity in the final rule

and more of an approach directing states to achieve general performance objectives.

According to that view, the more specific EPA’s requirements, the more opportunity

there is for EPA to intervene in state decisionmaking.

10

65 Federal Register 43653-43654.

11

Ibid., p. 43656.

12

U.S. General Accounting Office. “Clean Water Act: Proposed Revisions to EPA

Regulations to Clean Up Polluted Waters.” GAO/RCED-00-206R. June 21, 2000.

CRS-17

How one evaluates the final rule depends in part on the prism of that person’s

approach to federal regulatory authority–EPA, particularly–and it is likely that all

interested parties are displeased with some or many parts of the rule. Some, such as

environmental groups, favor clearly defined objectives and milestones, in order to be

able to assess compliance by the states and EPA. Others with diverse perspectives,

ranging from state agencies to agriculture and industry groups, would prefer a TMDL

program that is much less directed by EPA. Questions about EPA’s role in the

TMDL program and its relationship with states are likely to continue up to and well

beyond the time when the revised rule becomes effective.

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