# 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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A00-17831

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** July 13, 2000
- **Citation:** 65 FR 43586

## Text

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.

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 § 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? (§ 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? (§ 130.20)

C. What is the purpose of subpart C ? (§ 130.21)

D. What water-quality related data and information must be assembled to develop the list of impaired waterbodies ? (§ 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 ? (§ 130.23)

F. When must the methodology be provided to EPA ? (§ 130.24)

G. What is the scope of the list of impaired waterbodies? (§ 130.25)

H. How do you apply your water quality standards antidegradation policy to the listing of impaired waterbodies? (§ 130.26)

I. What is the format and content of the list? (§ 130.27)

J. What must the prioritized schedule for submitting TMDLs to EPA contain? (§ 130.28)

K. Can the list be modified? (§ 130.29)

L. When must the list of impaired waterbodies be submitted to EPA and what will EPA do with it? (§ 130.30)

M. Must TMDLs be established? (§ 130.31)

N. What is a TMDL? (§ 130.32(a))

O. What are the minimum elements of a TMDL? (§ 130.32(b))

P. What are the requirements of the implementation plan? (§ 130.32(c))

Q. What are the special requirements for Total Maximum Daily Thermal Loads? (§ 130.32(d))

R. How must TMDLs take into account endangered and threatened species? (§ 130.32(e))

S. How are TMDLs expressed? (§ 130.33)

T. What actions must EPA take on TMDLs that are submitted for review? (§ 130.34)

U. How will EPA assure that TMDLs are established? (§ 130.35)

V. What public participation requirements apply to the lists and TMDLs? (§ 130.36)

W. What is the effect of this rule on TMDLs established when the rule is first implemented? (§ 130.37)

X. Continuing planning process (§ 130.50)

Y. Water quality management plans (§ 130.51)

Z. Petitions to EPA to establish TMDLs (§ 130.65)

AA. Water quality monitoring and report (§§ 130.10 and 130.11)

AB. Other sections (§§ 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 § 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

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 § 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 § 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.

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.

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

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? (§ 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 (§ 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

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

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 § 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 (§ 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 § 130.34 and (2) between this definition and the proposed definition of a TMDL at § 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 § 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 § 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 § 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

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 (§ 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 § 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 § 130.32, it has shortened the definition of load allocation in the current rule. EPA believes this is appropriate because the new § 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 § 130.32.

d. Revised Definition of Wasteload Allocation (§ 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

determined into the description of a TMDL in proposed § 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 § 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 § 122.45(d)) and therefore are not the strict equivalent of a wasteload allocation.

e. Revised Definition of TMDL (§ 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 § 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 § 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

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 § 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 § 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 § 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 § 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 (§ 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 (§ 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

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 (§ 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 (§ 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 (§ 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

and maintain water quality standards in the waterbody. EPA incorporated the term in proposed § 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 § 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 (§ 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 (§ 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

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 § 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

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 §§ 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 § 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

creates for EPA, States, Territories or authorized Tribes a mandatory duty to do so.

k. New Definition of Waterbody (§ 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 (§ 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 § 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 § 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 § 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

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, § 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? (§ 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 §§ 130.22, 130.23, 130.25, 130.26,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A00-17831. Public record. Not legal advice.