Proposed Revisions to the Water Quality Planning and Management Regulation
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Federal Register › Vol. 64 › 64 FR 46012
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Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 130
Proposed Revisions to the Water Quality Planning and Management
Regulation; Proposed Rule
Proposed Rules
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 130
[FRL-6424-2]
RIN 2040-AD36
Proposed Revisions to the Water Quality Planning and Management
Regulation
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: Today's action revises, clarifies and strengthens the
Environmental Protection Agency's (EPA) current regulatory requirements
for establishing Total Maximum Daily Loads (TMDLs) under the Clean
Water Act (CWA). Today's proposed rule will provide States, Territories
and authorized Tribes with the necessary information to identify
impaired waters and to establish TMDLs to restore water quality.
Today's proposed rule clarifies and strengthens how TMDLs are
established so they can more effectively contribute to improving the
nation's water quality. Through this proposal, State, Territorial and
authorized Tribes can tailor their water quality programs to address
the characteristics, problems, risks, and implementation tools
available in individual watersheds, with meaningful involvement of
stakeholders in the local community. Also in today's Federal Register,
EPA is proposing a companion rule amending NPDES and water quality
standards regulations to better support establishment of TMDLs.
DATES: Comments on this proposal must be submitted on or before October
22, 1999. Comments provided electronically will be considered timely if
they are submitted by 11:59 P.M. (Eastern time) October 22, 1999.
the local community. Also in today's Federal Register,
EPA is proposing a companion rule amending NPDES and water quality
standards regulations to better support establishment of TMDLs.
DATES: Comments on this proposal must be submitted on or before October
22, 1999. Comments provided electronically will be considered timely if
they are submitted by 11:59 P.M. (Eastern time) October 22, 1999.
ADDRESSES: Send written comments on the proposed rule to the Comment
Clerk for the TMDL Program Rule, Water Docket (W-98-31), Environmental
Protection Agency, 401 M Street, S.W., Washington, DC 20460.
For information on Filing comments, see ``Additional Comment
Information'' in SUPPLEMENTARY INFORMATION.
A copy of the supporting documents cited in this proposal is
available for review at EPA's Water Docket; Room EB-57 (East Tower
Basement), 401 M Street, SW, Washington, DC 20460. For access to docket
materials, call (202) 260-3027 between 9 a.m. and 3:30 p.m. for an
appointment. An electronic version of this proposal will be available
via the Internet at: http://www.epa.gov/OWOW/tmdl/index.html>.
FOR FURTHER INFORMATION CONTACT: Hazel Groman, U.S. EPA, Office of
Wetlands, Oceans and Watersheds (4503F), 401 M St., S.W., Washington,
D.C. 20640, (202) 401-4078.
SUPPLEMENTARY INFORMATION:
Authority: Clean Water Act Sections 106, 205(g), 205(j), 208,
303, and 305.
Additional Comment Information
EPA requests that commenters submit any references cited in their
comments. EPA also requests that commenters submit an original and 3
copies of their written comments and enclosures. Commenters that want
receipt of their comments acknowledged should include a self-addressed,
stamped envelope. All comments must be postmarked or delivered by hand.
No facsimiles (faxes) will be accepted.
EPA will also accept comments electronically. Comments should be
addressed to the following Internet address: [email protected]
iginal and 3
copies of their written comments and enclosures. Commenters that want
receipt of their comments acknowledged should include a self-addressed,
stamped envelope. All comments must be postmarked or delivered by hand.
No facsimiles (faxes) will be accepted.
EPA will also accept comments electronically. Comments should be
addressed to the following Internet address: [email protected].
Electronic comments must be submitted as an ASCII or WordPerfect file
avoiding the use of special characters and any form on encryption.
Electronic comments must be identified by the docket number W-98-31,
and may be filed online at many Federal depository Libraries. No
confidential business information (CBI) should be sent via e-mail.
Entities Potentially Regulated by the Proposed Rule
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Examples of potentially
Category NAICS Codes SIC Codes regulated entities
----------------------------------------------------------------------------------------------------------------
State, Local, Tribal Government.... N/A.................... N/A................... States, Territories, and
authorized Tribes.
Federal Government................. N/A.................... N/A................... EPA.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in this table could also be regulated. To determine whether
your facility, company, business organization, etc., is regulated by
this action, you should carefully examine the applicability criteria in
Sec. 130.20 of the proposed rule
d by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in this table could also be regulated. To determine whether
your facility, company, business organization, etc., is regulated by
this action, you should carefully examine the applicability criteria in
Sec. 130.20 of the proposed rule. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the FOR FURTHER INFORMATION CONTACT section.
A. Background
1. What Are the Current Statutory and Regulatory Requirements for
Identifying Waterbodies That Require TMDLs and Establishing TMDLs?
The CWA includes a number of programs aimed at restoring and
maintaining water quality. These include national technology-based
effluent limitation guidelines; national water quality criteria
guidance; State, Territorial and authorized Tribal water quality
standards; State, Territorial and authorized Tribal nonpoint source
management programs; funding provisions for municipal wastewater
treatment facilities; State, Territorial and authorized Tribal water
quality monitoring programs; and the National Pollutant Discharge
Elimination System (NPDES) permit program for point sources. These
programs have produced significant and widespread improvements in water
quality over the last quarter-century, but many waterbodies remain
impaired by one or more pollutants. For example, the National Water
Quality Inventory Report to Congress for 1996 indicates that of the 19
percent of the Nation's rivers and streams that have been assessed, 35
percent of these do not fully support water quality standards or uses
and 8 percent of these are threatened. Of the 72 percent of estuary
waters assessed, 38 percent are not fully supporting water quality
standards or uses and 4 percent are threatened
Quality Inventory Report to Congress for 1996 indicates that of the 19
percent of the Nation's rivers and streams that have been assessed, 35
percent of these do not fully support water quality standards or uses
and 8 percent of these are threatened. Of the 72 percent of estuary
waters assessed, 38 percent are not fully supporting water quality
standards or uses and 4 percent are threatened. Of the 40 percent of
lakes, ponds, and reservoirs assessed (not including the Great Lakes),
39 percent are not fully supporting water quality standards or uses and
10 percent are threatened.
The goal of establishing TMDLs is to assure that water quality
standards are attained and maintained. Section 303(d) of the CWA
requires States, Territories and authorized Tribes to identify and
establish a priority ranking for waters
for which existing pollution controls are not stringent enough to
attain and maintain State, Territorial and authorized Tribal water
quality standards, establish TMDLs for those waters, and submit, from
time to time, the list of waters and TMDLs to EPA. Section 303(d)
requires EPA to review and approve or disapprove lists and TMDLs within
30 days of the time they are submitted. If EPA disapproves a list or a
TMDL, EPA must establish the list or TMDL for the State, Territory or
authorized Tribe.
EPA issued regulations governing identification of impaired waters
and establishment of TMDLs, at 40 CFR 130.7, in 1985 and revised them
in 1992. The current regulations provide that:
ew and approve or disapprove lists and TMDLs within
30 days of the time they are submitted. If EPA disapproves a list or a
TMDL, EPA must establish the list or TMDL for the State, Territory or
authorized Tribe.
EPA issued regulations governing identification of impaired waters
and establishment of TMDLs, at 40 CFR 130.7, in 1985 and revised them
in 1992. The current regulations provide that:
State, Territorial and authorized Tribal lists must
include those waters for which more stringent effluent limitations
or other pollution controls (e.g., best management practices)
required by local, State, or Federal authority are not stringent
enough to attain and maintain applicable water quality standards;
State, Territorial and authorized Tribal lists must be
submitted to EPA every two years, on April 1 of every even-numbered
year;
The priority ranking for listed waters must include an
identification of the pollutant or pollutants causing or expected to
cause the impairment and an identification of the waterbodies
targeted for TMDL development in the next two years;
States, Territories and authorized Tribes, in
developing lists, must assemble and evaluate all existing and
readily available water quality-related data and information;
States, Territories and authorized Tribes must submit,
with each list, the methodology used to develop the list and provide
EPA with a rationale for any decision not to use any existing and
readily available water quality-related data and information; and
TMDLs must be established at levels necessary to
implement applicable water quality standards with seasonal
variations and a margin of safety that takes into account any lack
of knowledge concerning the relationship between effluent
limitations and water quality.
e for identifying impaired waterbodies and
establishing TMDLs. EPA charged the FACA Committee, a subgroup of the
National Advisory Council for Environmental Policy and Technology, with
recommending ways to improve the effectiveness and efficiency of State,
Territorial, Tribal and EPA efforts to identify waterbodies for which
TMDLs must be established and the way in which TMDLs are established.
EPA asked the FACA Committee to provide advice on new policy and
regulatory directions for TMDLs, including their role in watershed
protection, the identification of impaired and threatened waterbodies,
the pace of TMDL establishment, the science and tools needed to support
the establishment of TMDLs and the roles and responsibilities of
States, Territories, Tribes and EPA in establishing TMDLs.
The 20 FACA Committee members were a geographically balanced and
highly motivated group of individuals with diverse interests in,
knowledge of, and broad perspectives on TMDLs. Members included State
and local officials, a Tribal consortium representative, farmers, a
forestry representative, environmental advocacy group representatives,
industry representatives, a law professor, the executive director of a
watershed management council, and an environmental consultant. Members
came from both the public and private sectors, and each brought to the
committee diverse professional expertise, including law, science,
public policy, management, public advocacy, and engineering.
Representatives of the United States Department of Agriculture's
Natural Resources Conservation Service and Forest Service, and EPA's
Office of Water served as ex officio members of the FACA Committee.
The FACA Committee completed its deliberations in May 1998 and
submitted its final report to EPA on July 28, 1998. The FACA
Committee's final report includes over one hundred and sixty
recommendations for improving government efforts to identify impaired
waters and establish TMDLs.
B. Summary of the Proposed Rule
and EPA's
Office of Water served as ex officio members of the FACA Committee.
The FACA Committee completed its deliberations in May 1998 and
submitted its final report to EPA on July 28, 1998. The FACA
Committee's final report includes over one hundred and sixty
recommendations for improving government efforts to identify impaired
waters and establish TMDLs.
B. Summary of the Proposed Rule
1. What Is the Purpose of Today's Proposed Rule?
The purpose of today's proposed rule is to clarify and strengthen
how TMDLs are established so they can more effectively contribute to
improving the nation's water quality. Through this proposal, EPA
intends to provide clear regulatory requirements that are consistent
with State, Territorial and authorized Tribal water quality programs,
in particular State, Territorial and authorized Tribal watershed
approaches to water quality management. Under these approaches, water
quality programs can be tailored to the characteristics, problems,
risks, and implementation tools available in individual watersheds,
with meaningful involvement stakeholders in the local community.
In developing the proposal, EPA has carefully examined the
recommendations of the FACA Committee, as well as recommendations
proposed to EPA by interested stakeholders, including State and local
governments, other Federal agencies, environmental advocacy
organizations, industry, agriculture, and citizens. This proposal also
reflects the lessons learned by EPA and the States since 1992, when
this regulation was last revised.
Pursuant to section 518(e) of the CWA, EPA is authorized to treat
an Indian Tribe in the same manner as a State for purposes of
establishing lists of impaired waters and TMDLs
ther Federal agencies, environmental advocacy
organizations, industry, agriculture, and citizens. This proposal also
reflects the lessons learned by EPA and the States since 1992, when
this regulation was last revised.
Pursuant to section 518(e) of the CWA, EPA is authorized to treat
an Indian Tribe in the same manner as a State for purposes of
establishing lists of impaired waters and TMDLs. Section 130.6(d) of
EPA's water quality planning and management regulations provides that a
federally-recognized Indian Tribe is eligible for treatment as a State
for purposes of that rule if (1) The Tribe has a governing body capable
of carrying out substantial governmental duties and powers; (2) the
functions to be exercised by the Tribe pertain to the management and
protection of water resources which are held by a Tribe, by the United
States in trust for Indians, by a member of a Tribe if such property is
subject to a trust restriction on alienation, or otherwise within the
borders of an Indian reservation; and (3) the Tribe is reasonably
expected to be capable of carrying out the functions to be exercised
consistent with the terms and purposes of the CWA and applicable
regulations.
Today, EPA is clarifying that it interprets Sec. 130.6(e) as
implementing section 518(e) for purposes of allowing Indian Tribes to
apply to EPA for authority to establish lists of impaired waters and
TMDLs pursuant to section 303(d) of the CWA. Accordingly, if a
federally-recognized Indian Tribe can demonstrate to EPA that it meets
the test contained in Sec. 130.6(d) for purposes on the TMDL program,
EPA will authorize it to establish lists of impaired waters and TMDLs
for reservation surface waters over which the Tribe has jurisdiction.
EPA interprets the term ``reservation'' in Sec. 130.6(d)(3) in
light of Supreme Court case law, including Oklahoma Tax Comm'n v.
Citizen Band Potawatomi Indian Tribe of Oklahoma, 111 S.Ct. 905, 910
ained in Sec. 130.6(d) for purposes on the TMDL program,
EPA will authorize it to establish lists of impaired waters and TMDLs
for reservation surface waters over which the Tribe has jurisdiction.
EPA interprets the term ``reservation'' in Sec. 130.6(d)(3) in
light of Supreme Court case law, including Oklahoma Tax Comm'n v.
Citizen Band Potawatomi Indian Tribe of Oklahoma, 111 S.Ct. 905, 910
(1991), in which the Supreme Court held that a ``reservation'' includes
trust lands that have been validly set apart for the use of a Tribe
even though the land has not been formally designated as a reservation.
See 56 FR 63881.
In applying to EPA for authority to establish lists of impaired
waters and TMDLs, Tribes are to follow the application requirements
contained in Sec. 131.8(b) of EPA's water quality standards
regulations. In reviewing such applications, EPA will follow the
procedures contained in Sec. 131.8(c). In the final rule, EPA is
considering revising language in Sec. 131.8(b) and (c) to clarify that
they apply to treating Tribes in the same manner as States for
Sec. 303(d) lists and TMDLs, as well as water quality standards. (See
revised Sec. 131.8(b) and (c) in docket.) EPA requests comments on this
approach.
Under today's proposed rule, in order to be treated in the same
manner as a State, an Indian Tribe would need adequate authority over
the waters for which it seeks to establish lists and TMDLs. The
jurisdiction of Indian Tribes generally extends ``over both their
members and their territory.'' United States v. Mazurie, 419 U.S. 544,
577 (1975). However, Indian reservations may include lands owned in fee
by nonmembers. ``Fee lands'' are privately owned by nonmembers and
title to the lands can be transferred without restrictions. The Supreme
Court, in Montana v. U.S., 450 U.S
TMDLs. The
jurisdiction of Indian Tribes generally extends ``over both their
members and their territory.'' United States v. Mazurie, 419 U.S. 544,
577 (1975). However, Indian reservations may include lands owned in fee
by nonmembers. ``Fee lands'' are privately owned by nonmembers and
title to the lands can be transferred without restrictions. The Supreme
Court, in Montana v. U.S., 450 U.S. 544, 565-66 (1981), noted that
tribes may have authority over nonmember activities on reservation fee
lands in certain circumstances, including when the nonmember conducts
``threatens or has some direct effect on the political integrity, the
economic security, or the health or welfare of the Indian tribes.''
EPA addressed the Montana test in the 1991 preamble to the Agency's
final rule regarding tribal water quality standards programs under the
CWA. In that 1991 preamble, in view of some judicial uncertainty at
that time regarding the degree of impacts necessary to satisfy the
Montana test, EPA established an ``operating rule'' that requires
tribes seeking eligibility to set water quality standards governing
activities of nonmembers on fee lands to show that the effects are
``serious and substantial.'' 56 FR 64878. EPA noted that ``[t]he choice
of an Agency operating rule containing this standard is taken solely as
a matter of prudence in light of judicial uncertainty and does not
reflect an Agency endorsement of this standard per sc.'' Since 1991,
however, the Supreme Court has reaffirmed Montana's impacts test
verbatim without addressing the need for ``serious'' or ``substantial''
impacts. E.g. Strate v. A-1 Contractors, 117 S.Ct 1404 (1997); South
Dakota v. Bourland, 508 U.S. 679 (1993). While not required to do so,
as a matter of policy EPA will continue to look to see whether serious
and substantial impacts exist when evaluating tribal authority under
the Montana test.
In Strate, 117 S.Ct
test
verbatim without addressing the need for ``serious'' or ``substantial''
impacts. E.g. Strate v. A-1 Contractors, 117 S.Ct 1404 (1997); South
Dakota v. Bourland, 508 U.S. 679 (1993). While not required to do so,
as a matter of policy EPA will continue to look to see whether serious
and substantial impacts exist when evaluating tribal authority under
the Montana test.
In Strate, 117 S.Ct. At 1414, the Supreme Court made clear that
Montana remains the controlling standard for evaluating tribal
authority over nonmember activities in fee lands. The Court emphasized
in Strate that the purpose of Montana's impacts test is to insure that
Tribes retain their powers of self-government. EPA believes that
protecting the public through environmental protection programs from
serious and substantial effects on health and welfare is a core
governmental function whose exercise is critical to self-government.
See 56 FR 64879.
Whether an Indian Tribe has jurisdiction over activities of
nonmembers on fee lands will be determined case-by-case, based on
factual findings. The determination as to whether the required effect
is present in a particular case depends on the circumstances. The
Agency believes, however, that the activities covered by the TMDL
program generally have the potential for direct impacts on human health
and welfare that are serious and substantial. See 56 FR 64878. EPA's
approach to evaluating tribal jurisdiction on fee lands was recently
upheld by the Ninth Circuit Court of Appeals in Montana v. EPA, 137 F
3d 1135 (9th Circuit), cert. Denied, 119 S.Ct. 275 (1998).
The process that the Agency will use for Indian Tribes seeking to
demonstrate their authority over nonmembers on the fee lands for the
TMDL program includes a submission of a statement under Sec. 131.8(b)
explaining the legal basis for the applicant Indian Tribe's authority
y the Ninth Circuit Court of Appeals in Montana v. EPA, 137 F
3d 1135 (9th Circuit), cert. Denied, 119 S.Ct. 275 (1998).
The process that the Agency will use for Indian Tribes seeking to
demonstrate their authority over nonmembers on the fee lands for the
TMDL program includes a submission of a statement under Sec. 131.8(b)
explaining the legal basis for the applicant Indian Tribe's authority.
The Indian Tribe must explicitly assert and demonstrate jurisdiction,
i.e., show that activities covered by the TMDL program conducted by
nonmembers on fee lands could lead to water quality impairments that
have impacts on the health, welfare, economic security or political
integrity of the Indian Tribe and its members that are serious and
substantial. However. EPA will also rely on its generalized findings
regarding the relationship of activities regulated under water quality
programs and impacts to Tribal health, welfare, economic security or
political integrity. See 56 FR at 64878 and 64879.
Under Sec. 131.8(c)(2)(ii), appropriate governmental entities
(i.e., States, Tribes and other Federal entities located contiguous to
the reservation of the Tribe that is applying for treatment in the same
manner as a State) will be provided notification of and an opportunity
to comment on the Indian Tribe's jurisdictional assertions prior to
EPA's action on the Indian Tribe's application. EPA will seek to make
its notification sufficiently prominent to inform local governmental
entities, industry and the general public, and will advise interested
parties to direct comments on tribal jurisdiction to appropriate
governmental entities.
The Agency recognizes that jurisdictional disputes between Indian
Tribes and States can be complex and difficult and that it may, in some
circumstances, be most effective to address such disputes by attempting
to work with the parties in a mediative fashion. However, EPA's
ultimate responsibility is protection of human health and the
environment
diction to appropriate
governmental entities.
The Agency recognizes that jurisdictional disputes between Indian
Tribes and States can be complex and difficult and that it may, in some
circumstances, be most effective to address such disputes by attempting
to work with the parties in a mediative fashion. However, EPA's
ultimate responsibility is protection of human health and the
environment. In view of the mobility of environmental problems, and the
interdependence of various jurisdictions, it is imperative that all
affected sovereigns work cooperatively for environmental protection.
2. What Are the Key Changes the Proposed Rule Makes to Existing
Regulatory Requirements?
Below is a summary of the key changes to the existing regulatory
requirements that are being proposed today:
Revised definitions of TMDL, wasteload allocation, and
load allocation;
Definitions of impaired waterbody, threatened
waterbody, pollution, pollutant, reasonable assurance and waterbody
that clarify EPA's existing interpretation of these terms;
A new requirement for a more comprehensive list and a
new format for the list;
A new requirement that States, Territories and
authorized Tribes establish and submit schedules for establishing
TMDLs for all waterbodies impaired or threatened by pollutants;
A new requirement that the listing methodologies
developed by States, Territories and authorized Tribes be more
specific, subject to public review, and submitted to EPA on January
31 of every [second], [fourth] or [fifth] year;
A possible change in the listing cycle so that States,
Territories and authorized Tribes submit lists to EPA on October 1
of every [second], [fourth] or [fifth] year beginning in the year
2000;
Clarification that TMDLs include 10 specific elements;
A new requirement for an implementation plan as a
required element of a TMDL; and
New public participation requirements.
urth] or [fifth] year;
A possible change in the listing cycle so that States,
Territories and authorized Tribes submit lists to EPA on October 1
of every [second], [fourth] or [fifth] year beginning in the year
2000;
Clarification that TMDLs include 10 specific elements;
A new requirement for an implementation plan as a
required element of a TMDL; and
New public participation requirements.
Today's proposed rule language encompasses all of 40 CFR part 130
even though EPA is not proposing to revise most of the existing
sections in this Part. EPA is, however, proposing to reformat the part
to include subparts and to extensively renumber the sections in part
130, in addition to the substantive revisions discussed in detail
below. EPA is also proposing to delete Sec. 130.3, which sets out the
same definition of ``water quality standard'' that is found in the
water quality standards regulations at 40 CFR part 131 and, as a
result, is duplicative and unnecessary. Today's proposal also would
delete Sec. 130.10(d), which is obsolete and no longer relevant since
it provided for a one-time deadline of February 4, 1989, for State
submission of certain water quality information. In light of the extent
of these formatting and numbering changes, EPA is publishing all of 40
CFR part 130 to show how the changes proposed today relate to the
existing sections of the current regulation. The following table of
contents for part 130 identifies each of the sections in the proposed
rule and highlights the proposed changes.
40 CFR Part 130 as Revised and Reorganized by Today's Proposal
Subpart A: Summary, Purpose, and Definitions
130.0 Program summary and purpose (unchanged)
130.1 Applicability (unchanged)
130.2 Definitions (amended in part)
130.3 Deleted
Subpart B: Water Quality Monitoring and Reporting
130.10 Water quality monitoring (formerly Sec. 130.4, unchanged)
130.11 Water quality report (formerly Sec. 130.8; unchanged)
as Revised and Reorganized by Today's Proposal
Subpart A: Summary, Purpose, and Definitions
130.0 Program summary and purpose (unchanged)
130.1 Applicability (unchanged)
130.2 Definitions (amended in part)
130.3 Deleted
Subpart B: Water Quality Monitoring and Reporting
130.10 Water quality monitoring (formerly Sec. 130.4, unchanged)
130.11 Water quality report (formerly Sec. 130.8; unchanged)
Subpart C: Identifying Impaired and Threatened Waterbodies and
Establishing Total Maximum Daily Loads (TMDLs) (formerly Sec. 130.7;
amended; see below)
130.20 Who must comply with subpart C of this rule?
130.21 What is the purpose of this subpart?
130.22 What data and information must you assemble to identify and
list impaired or threatened waterbodies?
130.23 How do you document your approach for considering and
evaluating all existing and readily available data and information
to develop your list and priority rankings?
130.24 When must your methodology be submitted to EPA?
130.25 What is the scope of your list of impaired or threatened
waterbodies?
130.26 How do you apply your water quality standards
antidegradation policy to the listing of impaired and threatened
waterbodies?
130.27 How must you format your list of impaired or threatened
waterbodies?
130.28 How do you prioritize the waterbodies on Part 1 of your
list?
130.29 When can you remove a waterbody from your list?
130.30 When must you submit your list of impaired or threatened
waterbodies and priority rankings to EPA and what will EPA do with
it?
130.31 What must your schedule for submitting TMDLs to EPA contain
and when must you submit it to EPA?
130.32 Must you establish TMDLs?
130.33 What are the minimum elements of a TMDL submitted to EPA?
130.34 How are TMDLs expressed?
130.35 What actions must EPA take on TMDLs that are submitted for
review?
130.36 Can EPA establish a TMDL if you fail to do so?
130.37 What public participation requirements apply to the list,
priority rankings, schedule, and TMDLs?
130.38 What is the effect of the propo
.32 Must you establish TMDLs?
130.33 What are the minimum elements of a TMDL submitted to EPA?
130.34 How are TMDLs expressed?
130.35 What actions must EPA take on TMDLs that are submitted for
review?
130.36 Can EPA establish a TMDL if you fail to do so?
130.37 What public participation requirements apply to the list,
priority rankings, schedule, and TMDLs?
130.38 What is the effect of the proposed rule on transitional
TMDLs?
Subpart D: Water Quality Planning and Implementation
130.50 Continuing planning process (formerly Sec. 130.5; amended,
see below)
130.51 Water quality management plans (formerly Sec. 130.6;
amended, see below)
Subpart E: Miscellaneous Provisions
130.60 Designation and De-Designations (formerly Sec. 130.9;
unchanged)
130.61 State submittal to EPA (formerly Sec. 130.10; removed
section, otherwise unchanged)
130.62 Program management (formerly Sec. 130.11; unchanged)
130.63 Coordination with other programs (formerly Sec. 130.12;
unchanged)
130.64 Processing application for Indian Tribes (formerly
Sec. 130.15; unchanged)
130.65 Petitions to EPA to establish TMDLs (new section)
3. What Definitions Are Being Added or Revised by this Proposal?
Existing requirements. The existing regulations contain definitions
of ``TMDL,'' ``wasteload allocation,'' and ``load allocation.''
Proposed rule. Today's action proposes revisions to the definitions
of ``TMDL'', ``wasteload allocation,'' and ``load allocation'' that
clarify and add to the required elements of TMDLs and the ways in which
TMDLs can be expressed. Today's action also proposes adding definitions
for the terms ``pollution,'' ``pollutant,'' ``impaired waterbody,''
``threatened waterbody,'' ``thermal discharge,'' ``reasonable
assurance'' and ``waterbody.''
Today's proposal significantly revises the text of the regulatory
definition of ``TMDL.'' The proposed revisions are intended primarily
to define what a TMDL is and the elements it must contain
action also proposes adding definitions
for the terms ``pollution,'' ``pollutant,'' ``impaired waterbody,''
``threatened waterbody,'' ``thermal discharge,'' ``reasonable
assurance'' and ``waterbody.''
Today's proposal significantly revises the text of the regulatory
definition of ``TMDL.'' The proposed revisions are intended primarily
to define what a TMDL is and the elements it must contain. Instead of
describing a TMDL as the sum of wasteload allocations and load
allocations, as in the current regulations, EPA proposes to define a
TMDL as a written analysis of an impaired waterbody established to
ensure that water quality standards will be attained and maintained
throughout the waterbody in the event of reasonably foreseeable
increases in pollutant loads. The proposed revision to the definition
of ``TMDL'' also includes a statement describing the 10 basic elements
of a TMDL required for approval by EPA, as contained in proposed 40 CFR
130.33(b) and discussed in section 5.a. of this preamble.
EPA is proposing to revise the definition of a TMDL for a number of
reasons. Current regulatory requirements have engendered different
interpretations. States, Territories and authorized Tribes need greater
certainty in establishing TMDLs and submitting them to EPA for
approval. EPA requires a more precise definition to promote consistency
in reviewing and approving TMDLs nationally. Other stakeholders need a
clear understanding of what the minimum regulatory requirements are for
TMDLs.
EPA is also proposing to revise the definition of a TMDL to clarify
that TMDLs are established for pollutant(s) and that a TMDL sets the
amount of pollutant(s) that may be present in a waterbody and still
assure that the water quality standards are attained or maintained
TMDLs nationally. Other stakeholders need a
clear understanding of what the minimum regulatory requirements are for
TMDLs.
EPA is also proposing to revise the definition of a TMDL to clarify
that TMDLs are established for pollutant(s) and that a TMDL sets the
amount of pollutant(s) that may be present in a waterbody and still
assure that the water quality standards are attained or maintained.
Although States, Territories and authorized Tribes have the flexibility
to develop a TMDL for a single pollutant in a listed waterbody and
develop TMDLs for other pollutants on that waterbody at a later date,
EPA encourages States, Territories and authorized Tribes to develop
TMDLs for all pollutants impairing a listed waterbody at the same time.
In addition, EPA is revising the definition to clarify the ways in
which TMDLs can be expressed to meet the requirements of the CWA.
In addition, EPA is proposing to include in the definition of
``TMDL'' a statement of the statutory requirement that a TMDL be
established with seasonal variations. EPA interprets this
statutory language as requiring that TMDLs be established to implement
water quality standards in any season. While there may be other ways a
TMDL can be established ``with'' seasonal variation, the proposed
interpretation is consistent with the statutory directive that TMDLs
``be established at a level necessary to implement the applicable water
quality standards with seasonal variation.'' The most straightforward
interpretation of this language is that Congress intended for TMDLs to
be established at levels that describe the maximum allowable loading in
different seasons of the year, to implement standards year-round. This
may require that, for some pollutants, different TMDLs are established
for different levels of instream flow, based on variations in flow over
the course of the year.
TMDLs may be established on a watershed basis
is that Congress intended for TMDLs to
be established at levels that describe the maximum allowable loading in
different seasons of the year, to implement standards year-round. This
may require that, for some pollutants, different TMDLs are established
for different levels of instream flow, based on variations in flow over
the course of the year.
TMDLs may be established on a watershed basis. TMDLs established on
a watershed basis must, like all TMDLs, be established for each
pollutant identified as causing or expected to cause an exceedance of
water quality standards and assure that water quality standards are
attained and maintained throughout the watershed. Certain pollutants,
e.g. nutrients, might be best addressed by allocating pollutant loads
on a watershed, rather than on a segment-specific, basis. In such
cases, TMDLs established for a watershed would be more likely to result
in effective control measures than segment-by-segment TMDLs.
Finally, EPA proposes to amend the definition of ``TMDL'' to
clarify that TMDLs must be established to ensure that water quality
standards will be attained and maintained in the event of reasonably
foreseeable increases in pollutant loads. This proposed revision is
intended to address waters that are currently impaired or threatened
and are expected to experience increased pollutant discharges. Since
the CWA requires TMDLs to be established at levels ``necessary to
implement'' standards, States, Territories and authorized Tribes need
to address anticipated increases in pollutant loadings that could
result in (or exacerbate) the current failure to attain and maintain
water quality standards. While there may be situations where load
increases cannot reasonably be anticipated, generally it should be
possible to establish TMDLs in such a manner as to anticipate increases
in pollutant loadings over time
authorized Tribes need
to address anticipated increases in pollutant loadings that could
result in (or exacerbate) the current failure to attain and maintain
water quality standards. While there may be situations where load
increases cannot reasonably be anticipated, generally it should be
possible to establish TMDLs in such a manner as to anticipate increases
in pollutant loadings over time. For this reason, EPA is proposing to
clarify the current definition of ``TMDL'' by explicitly stating that
TMDLs must assure attainment and maintenance of applicable standards in
the event of reasonably foreseeable load increases.
EPA is proposing clarifying revisions to the current definition of
``load allocation.'' These proposed revisions explicitly include
atmospheric deposition as a nonpoint source of pollutants, codifying
EPA's current interpretation. EPA's authority to require load
allocations for atmospheric deposition is discussed in greater detail
in section 4.b. of this preamble. Today's proposed Sec. 130.33(b)(6)
also clarifies that load allocations may, if possible, contain
allocations to categories, subcategories, or individual sources while
emphasizing EPA's intent to require establishment of TMDLs where
sufficient information is not available to allocate loads to individual
nonpoint sources.
EPA is proposing to allow some wasteload allocations to contain an
allocation to a single point source or to a group of point sources.
Current regulations require a wasteload allocation for each existing or
future point source. EPA is proposing at Sec. 130.33(b)(5) to allow
allocations to categories or subcategories of point sources that are
subject to a general permit (including storm water, combined sewer
overflows, abandoned mines, and combined animal feeding operations),
and to categories and subcategories of sources where the pollutant load
does not need to be reduced in order to meet water quality standards
e. EPA is proposing at Sec. 130.33(b)(5) to allow
allocations to categories or subcategories of point sources that are
subject to a general permit (including storm water, combined sewer
overflows, abandoned mines, and combined animal feeding operations),
and to categories and subcategories of sources where the pollutant load
does not need to be reduced in order to meet water quality standards.
Wasteload allocations for individual point sources would still be
required for each industrial and municipal point source permitted under
CWA section 402. It is appropriate to allocate to the aggregate of
sources covered by a general permit since the number and identity of
sources discharging under a general permit generally will not be known.
Since the CWA does not contain the terms ``load allocation'' and
``wasteload allocation,'' EPA has discretion to interpret these terms,
created in the regulations to implement the TMDLs, in a reasonable
manner.
EPA is proposing to amend the current regulations by adding
definitions of the terms ``impaired waterbody'' and ``threatened
waterbody.'' The proposed definitions of these terms are derived from
the definitions in EPA's guidance (Guidelines for Preparation of the
Comprehensive State Water Quality Assessments (305(b) Reports and
Electronic Updates, EPA-841-B-002A, September 1997) on section 305(b)
reports. The addition of these definitions clarifies States',
Territories' and authorized Tribes' listing and TMDL establishment
obligations by clarifying the kinds of waterbodies that must be
included on section 303(d) lists and the kinds of waterbodies for which
TMDLs must be established. EPA's rationale for the types of waterbodies
for which TMDLs must be established is discussed in greater detail in
section 4.b. of this preamble.
EPA is also proposing a definition of the term ``reasonable
assurance.'' EPA proposes to define ``reasonable assurance'' in
Sec
rbodies that must be
included on section 303(d) lists and the kinds of waterbodies for which
TMDLs must be established. EPA's rationale for the types of waterbodies
for which TMDLs must be established is discussed in greater detail in
section 4.b. of this preamble.
EPA is also proposing a definition of the term ``reasonable
assurance.'' EPA proposes to define ``reasonable assurance'' in
Sec. 130.2(p) as a demonstration that wasteload allocations and/or load
allocations in a TMDL will be implemented. EPA proposes that each TMDL
contain reasonable assurance that allocations contained in TMDLs will
in fact be implemented to attain and maintain water quality standards.
EPA's incorporation of this term in Sec. 130.33(b)(10)(iii) dealing
with TMDL implementation plans emphasizes EPA's view that
implementation of the allocations in TMDLs is critical to the ultimate
attainment of standards in waterbodies across the country. The proposed
regulations provide that reasonable assurance for point sources is
demonstrated by procedures that ensure that enforceable NPDES permits
will be issued to implement applicable wasteload allocations for point
sources. For nonpoint sources, reasonable assurance means that nonpoint
source controls will be implemented to achieve applicable load
allocations. For nonpoint sources reasonable assurance would need to be
specific to the pollutant of concern, expeditiously implemented and
supported by reliable delivery mechanisms and adequate funding.
EPA also proposes to add to the regulations the CWA's definitions
of ``pollutant'' and ``pollution.'' This decision is explained in
greater detail in section 4.b. of this preamble. This amendment is
intended to clarify that the statutory definitions apply to these terms
as used in the TMDL regulations. Similarly, EPA is proposing a
definition of ``thermal discharge'' to clarify the meaning of that term
for the purposes of TMDLs.
tions the CWA's definitions
of ``pollutant'' and ``pollution.'' This decision is explained in
greater detail in section 4.b. of this preamble. This amendment is
intended to clarify that the statutory definitions apply to these terms
as used in the TMDL regulations. Similarly, EPA is proposing a
definition of ``thermal discharge'' to clarify the meaning of that term
for the purposes of TMDLs..
EPA is proposing to clarify that the definition of pollutant
encompasses drinking water contaminants that are regulated under
section 1412 of the Safe Drinking Water Act (SDWA) and that may be
discharged to waters of the U.S. that are the source waters of one or
more public water systems. This clarification is consistent with both
the language and the intent of the CWA. First, drinking water
contaminants that meet the criteria of this clarification fall within
the meaning of one or more of the terms
used to define pollutant. Second, ``public water supplies'' is listed
under section 303(c)(2)(A) of the CWA as a potential beneficial use to
be protected by water quality standards.
To elaborate, all microbial contaminants that may be discharged to
waters of the US (e.g., bacteria, viruses and other organisms) fall
under the term ``biological materials''; chemical contaminants that may
be discharged to waters of the US (e.g., industrial solvents,
pesticides) fall under the term ``chemical wastes''; and all radio
nuclides that may be discharged to waters of the U.S. fall under the
term ``radioactive materials''. Drinking water contaminants regulated
in the future that meet this criteria will also fall under one or more
of these terms
erials''; chemical contaminants that may
be discharged to waters of the US (e.g., industrial solvents,
pesticides) fall under the term ``chemical wastes''; and all radio
nuclides that may be discharged to waters of the U.S. fall under the
term ``radioactive materials''. Drinking water contaminants regulated
in the future that meet this criteria will also fall under one or more
of these terms.
Under the SDWA, pollutants are referred to as ``contaminants'' and,
pursuant to section 1412, EPA is required to ``promulgate a national
primary drinking water regulation for a contaminant * * * if the
Administrator determines that: (i) The contaminant may have an adverse
effect on the health of persons; (ii) the contaminant is known to occur
or there is a substantial likelihood that the contaminant will occur in
public water systems with a frequency and at levels of public health
concern; and (iii) in the sole judgment of the Administrator,
regulation of such contaminant presents a meaningful opportunity for
health risk reduction for persons served by public water systems.''
Finally, EPA is proposing a definition of the term ``waterbody''
that codifies EPA's interpretation of the term for the purposes of
TMDLs. The proposed definition includes a broad range of waterbodies,
geographically defined so that members of the public can easily locate
waterbodies included on States', Territories' and authorized Tribes'
section 303(d) lists. Section 303(d) distinguishes between waterbodies
impaired by pollution and pollutants generally and waterbodies affected
by ``thermal discharges.'' For waterbodies impaired by pollution and
pollutants generally, listing and/or TMDL decisions are based on
whether the water is or is not attaining or maintaining water quality
standards.
Waterbodies affected by ``thermal discharges,'' are subject to
different listing criteria and requirements for establishing TMDLs
and pollutants generally and waterbodies affected
by ``thermal discharges.'' For waterbodies impaired by pollution and
pollutants generally, listing and/or TMDL decisions are based on
whether the water is or is not attaining or maintaining water quality
standards.
Waterbodies affected by ``thermal discharges,'' are subject to
different listing criteria and requirements for establishing TMDLs.
Under section 303(d)(1)(B), each State shall identify those waterbodies
for which controls on thermal discharges under section 301 are not
stringent enough to assure ``protection and propagation of a balanced,
indigenous population of shellfish, fish and wildlife.'' Similarly,
under section 303(d)(1)(D), States shall estimate for such waterbodies
``the total maximum daily thermal load required to assure protection
and propagation of a balanced, indigenous population of shellfish, fish
and wildlife.''
This distinction between ``pollution'' and ``pollutants'' generally
and ``thermal discharges'' has its origins in section 316 of the CWA.
Section 316 provides that the ``balanced, indigenous population''
standard (``BIP'') may be applied to determine the thermal component of
an effluent limit for any point source subject to the provisions of
sections 301 or 306 in lieu of more stringent effluent limitations. The
drafters of section 316 believed that thermal discharges from point
sources should be treated in a different manner than other pollutants.
[CWA Leg. His. at 227-28]. Congress believed that steam-electric
generating plants were the major sources of thermal discharges subject
to CWA regulation. [CWA Leg. His. at 263]. It believed that thermal
discharge limits for such facilities should be set on a case-by-case
basis, taking into account the nature, physical characteristics, and
dissipative capabilities of the receiving water. [Id.].
This distinction was carried over into section 303(d)
lectric
generating plants were the major sources of thermal discharges subject
to CWA regulation. [CWA Leg. His. at 263]. It believed that thermal
discharge limits for such facilities should be set on a case-by-case
basis, taking into account the nature, physical characteristics, and
dissipative capabilities of the receiving water. [Id.].
This distinction was carried over into section 303(d). It is
important to note, however, that the more flexible ``BIP'' standard
only applies to listing and TMDL actions related to thermal discharges
from point sources. It does not apply to listing and TMDL decisions
related to heat excesses in waterbodies resulting from other causes,
such as solar radiation, channel and habitat modification and lack of
stream flow. Where heat build up is a result of those (and other non-
point source discharge) causes, decisions to list and establish TMDLs
related to heat must be based on the applicable water quality standard
for heat. In other words, whereas listing and TMDL decisions for
``thermal discharges'' from point sources are regulated under CWA
sections 303(d)(1)(B) and 303(d)(1)(D), such decisions for water bodies
impaired by heat from other causes are regulated under CWA sections
303(d)(1)(A) and 303(d)(1)(C).
This is a reasonable interpretation of the statute. Given the
express language of sections 303(d)(1)(B) and (D), it is clear that
Congress wanted lists and total maximum daily thermal loads to address
the problems presented by discharges of heat from point sources, i.e.,
thermal discharges, albeit using a different standard (``BIP'') than
for other pollutants covered by sections 303(d)(1)(A) and (C). Because
Congress included ``heat'' in the definition of ``pollutant,'' EPA also
reads section 303(d) as covering all forms of heat-impaired waterbodies
and not just those affected by thermal discharges. Congress's express
reference to ``thermal discharges'' was not intended to limit the
section's applicability to impairments caused by point sources
ts covered by sections 303(d)(1)(A) and (C). Because
Congress included ``heat'' in the definition of ``pollutant,'' EPA also
reads section 303(d) as covering all forms of heat-impaired waterbodies
and not just those affected by thermal discharges. Congress's express
reference to ``thermal discharges'' was not intended to limit the
section's applicability to impairments caused by point sources.
Instead, Congress merely wanted to ensure that point source thermal
discharges were given the same treatment under section 303(d) as under
section 316. Where water quality standards for temperature are not
being attained due to other causes, e.g., sediment runoff, habitat
degradation, flow diversion, sections 303(d)(1)(A) and (C) would apply.
Comments sought. EPA solicits comment on any or all aspects of the
proposed revisions to the existing definitions and the addition of new
definitions.
4. What Are the Proposed Rule's Requirements for Identifying and
Listing Impaired or Threatened Waterbodies?
a. Assembling the Data and Documenting the Approach for Considering and
Evaluating Existing and Readily Available Data and Information
Existing requirements. Existing regulations require States,
Territories and authorized Tribes to assemble and evaluate ``all
existing and readily available water quality-related data and
information'' when developing their lists. Existing regulations specify
that ``all existing and readily available water quality-related data
and information'' includes, but is not limited to, data and information
about: waterbodies identified in: (1) The States', Territories' and
authorized Tribes' most recent approved section 303(d) list; (2)
States', Territories', and authorized Tribes' most recent CWA section
305(b) report as ``partially meeting'' or ``not meeting'' designated
uses or as ``threatened''; (3) section 319 nonpoint source assessments;
ludes, but is not limited to, data and information
about: waterbodies identified in: (1) The States', Territories' and
authorized Tribes' most recent approved section 303(d) list; (2)
States', Territories', and authorized Tribes' most recent CWA section
305(b) report as ``partially meeting'' or ``not meeting'' designated
uses or as ``threatened''; (3) section 319 nonpoint source assessments;
(4) drinking water source assessments under section 1453 of the Safe
Drinking Water Act; (5) dilution calculations or predictive models
which indicate nonattainment of water quality standards; and (6) data
and information reported by local, State, or Federal agencies, e.g.
National Water Quality Assessment, (NAWQA), National Stream Quality
Accounting Network (NASQAN), members of the public, or academic
institutions.
In addition, existing regulations require States, Territories and
authorized Tribes to submit to EPA a description of the methodology
used to develop the list, a description of the data and information
used to list
waterbodies, a rationale for any decision to not use any existing and
readily available data and information, and any other reasonable
information requested by the Regional Administrator, including ``good
cause'' for not including a waterbody or waterbodies on the list.
Proposed rule. EPA recognizes, as did the FACA Committee, that
well-designed monitoring programs are vital elements in States',
Territories', and authorized Tribes' efforts to characterize, identify,
and ensure the protection and restoration of impaired and threatened
waterbodies
by the Regional Administrator, including ``good
cause'' for not including a waterbody or waterbodies on the list.
Proposed rule. EPA recognizes, as did the FACA Committee, that
well-designed monitoring programs are vital elements in States',
Territories', and authorized Tribes' efforts to characterize, identify,
and ensure the protection and restoration of impaired and threatened
waterbodies. Because monitoring is expensive and time-consuming,
however, it is generally the case that only a small percentage of each
States', Territories', and authorized Tribes' waterbodies are actually
being monitored to identify impairments or threats, and States,
Territories, and authorized Tribes must strive continually to expand
the scope of their monitoring programs by carefully focusing resources
to achieve the greatest positive influence on water quality.
In today's proposal, at Sec. 130.22, EPA is retaining the
requirement that States, Territories, and authorized Tribes assemble
and consider all existing and readily available data and information to
identify impairments and threats to impairment and develop their lists.
The sources of existing and readily available data and information
specified in the proposed regulation constitute the basic sources and
types of information States, Territories and authorized Tribes need to
consider in order to determine which waterbodies are impaired and
threatened. In addition, these sources of data and information are
required to be developed and collected by both the CWA and the SDWA and
are generally available to States, Territories, authorized Tribes and
stakeholders.
In developing today's proposal, EPA considered the proper role of
``monitored data'' and ``evaluated data and information.'' Monitored
data refers to direct measurements of water quality, including
sediment, bioassessments and some fish tissue analyses
developed and collected by both the CWA and the SDWA and
are generally available to States, Territories, authorized Tribes and
stakeholders.
In developing today's proposal, EPA considered the proper role of
``monitored data'' and ``evaluated data and information.'' Monitored
data refers to direct measurements of water quality, including
sediment, bioassessments and some fish tissue analyses. Evaluated data
and/or information provides an indirect appraisal of water quality
through such sources as information on historical adjacent land uses,
aquatic and riparian health and habitat, location of sources, results
from predictive modeling using input variables and some surveys of fish
and wildlife. The FACA Committee recognized the differences in
available data and information. Although the committee preferred basing
listing decisions on monitored data, it also recognized the reality of
needing to use evaluated information. Today's proposal therefore
reflects the need for States, Territories, and authorized Tribes to
consider and evaluate both monitored and evaluated data and
information. EPA agrees with the FACA Committee's recommendation that
the best available data and information for each waterbody being
considered for listing should be used. It is appropriate to use both
monitored and evaluated data.
EPA is proposing at Sec. 130.22(b)(4) to include the results of
source water assessments conducted under section 1453 of the SDWA as
``existing and readily available data'' which States, Territories, and
authorized Tribes must consider in deciding whether to list a waterbody
as impaired or threatened. Under the Source Water Assessment Program
(section 1453, SDWA), States must ``delineate the boundaries of the
assessment areas from which one or more public water systems . .
ments conducted under section 1453 of the SDWA as
``existing and readily available data'' which States, Territories, and
authorized Tribes must consider in deciding whether to list a waterbody
as impaired or threatened. Under the Source Water Assessment Program
(section 1453, SDWA), States must ``delineate the boundaries of the
assessment areas from which one or more public water systems . . .
receive supplies of drinking water'' and, within each delineated area,
``identify the origins of contaminants'' for which safety standards
have been established to ``determine the susceptibility of the public
water systems to such contaminants.'' These delineated areas will
include one or more stream segments, or waterbodies, upstream of each
intake. The assessments will identify each pollutant (contaminant), and
the origins thereof, to which a public water system has some degree of
susceptibility.
A ``national primary drinking water regulation'' (NPDWR) is the
SDWA's term for a drinking water safety standard. Safety standards are
typically established as ``maximum contaminant levels'' (MCLs) and
expressed as concentrations e.g., milligrams per liter (mg/l). Safety
standards are sometimes established as ``action levels'', or a similar
term, but are also expressed as concentrations. Therefore, drinking
water safety standards provide reference points (a) Against which
States can compare water quality monitoring data, or (b) that States
can use to add or revise water quality criteria to support public water
supply use, in the absence of more stringent criteria that support more
sensitive ecological uses.
Source water assessments will need to incorporate data from
compliance monitoring and ambient water quality monitoring to support
use of the assessment results as a basis for listing a waterbody as
impaired or threatened
s
can use to add or revise water quality criteria to support public water
supply use, in the absence of more stringent criteria that support more
sensitive ecological uses.
Source water assessments will need to incorporate data from
compliance monitoring and ambient water quality monitoring to support
use of the assessment results as a basis for listing a waterbody as
impaired or threatened. In some cases, this is easily accomplished
e.g., where compliance monitoring for chemical contaminants is required
at the intake or where compliance monitoring data is unaffected by
intervening treatment that is not designed to address the contaminant
at issue. In other cases, where intervening treatment is affecting the
monitoring results, it may be possible to estimate (back calculate) the
ambient water values from the compliance monitoring results.
If the listing is based on a designated use but the State has not
adopted a water quality criterion for the pollutant(s) of concern,
either in support of public water supply use or in support of a more
stringent use (e.g., aquatic habitat), the State should use a reference
point sufficiently below the drinking water safety standard (maximum
contaminant level or MCL) to prevent excursions above the safety
standard at the source water intake as its starting point for
developing a TMDL
Today's proposal, at Sec. 130.23, also retains the requirement that
States, Territories, and authorized Tribes submit to EPA a methodology
documenting their approach for considering and evaluating the data and
information used to develop the list and priority rankings. Today's
proposal requires States, Territories, and authorized Tribes to explain
to EPA and to the public how they will consider and evaluate chemical,
physical, biological and radiological data and information and describe
the data thresholds they will use to define waterbodies that are
impaired or threatened and are required to be listed
mation used to develop the list and priority rankings. Today's
proposal requires States, Territories, and authorized Tribes to explain
to EPA and to the public how they will consider and evaluate chemical,
physical, biological and radiological data and information and describe
the data thresholds they will use to define waterbodies that are
impaired or threatened and are required to be listed.
EPA is also requiring that the methodology used to compile the
section 303(d) list must contain a description of the method and
factors used to assign a priority ranking to the waterbodies on a list,
i.e., how States, Territories and authorized Tribes consider the
severity of the impairment or threat of impairment and the uses to be
made of the waterbody and any other factors in assigning priority
rankings to listed waterbodies (see section 4.d, below). Moreover,
States, Territories and authorized Tribes must provide for public
notice and comment on a draft version of the methodology and submit the
final methodology, along with a summary of the public comments, to EPA
on January 31 of every listing year, which is eight months before the
October 1 list submission deadline. The proposed rule provides that EPA
will review the listing methodology and may provide comments to the
State, Territory or authorized Tribe. EPA recognizes that final
regulations may be promulgated after January 31, 2000. In this event,
EPA may decide in the final regulations to specify an alternative date,
most likely in year 2000, for States, Territories, and authorized
Tribes to
eadline. The proposed rule provides that EPA
will review the listing methodology and may provide comments to the
State, Territory or authorized Tribe. EPA recognizes that final
regulations may be promulgated after January 31, 2000. In this event,
EPA may decide in the final regulations to specify an alternative date,
most likely in year 2000, for States, Territories, and authorized
Tribes to
submit their methodology to EPA. EPA solicits comment on when to
require submittal of the listing methodology, in the event that the
regulations are promulgated after January 31, 2000.
These additional requirements are aimed at providing EPA and the
public with a comprehensive description of each State's, Territory's
and authorized Tribe's approach for listing waterbodies. It is critical
that the public have an opportunity to understand and participate in
the States', Territories' and authorized Tribes' listing process. These
requirements are also intended to help ensure that States, Territories
and authorized Tribes consistently use reliable and credible data and
information. While EPA does not expect every State, Territory and
authorized Tribe to use exactly the same information and have exactly
the same minimum data requirements for identifying and listing impaired
and threatened waterbodies, EPA does expect each State, Territory and
authorized Tribe to document and follow a deliberate, logical, and
consistent approach for making listing decisions.
EPA will consider the methodology when it reviews and approves or
disapproves the section 303(d) list. EPA's comments on the methodology
will address whether the methodology will result in the identification
of all impaired or threatened waterbodies. When EPA reviews the
State's, Territory's or authorized Tribe's list, EPA will review how
the State, Territory or authorized Tribe responded to comments raised
during EPA's review of the methodology
pproves or
disapproves the section 303(d) list. EPA's comments on the methodology
will address whether the methodology will result in the identification
of all impaired or threatened waterbodies. When EPA reviews the
State's, Territory's or authorized Tribe's list, EPA will review how
the State, Territory or authorized Tribe responded to comments raised
during EPA's review of the methodology. EPA may cite any unremedied
deficiencies it raised in comments to the State, Territory or
authorized Tribe as a factor in a decision to disapprove all or part of
the State's, Territory's or authorized Tribe's list.
Today's proposal therefore requires that States, Territories and
authorized Tribes document their methods for determining impairment and
develop appropriate decision rules based on whether they are
considering and evaluating physical/chemical, biological, radiological,
or aquatic and riparian habitat data and information. The methodology
may, for example, explain how many exceedances of a numeric chemical
criteria constitute an impairment or threat. Similarly, the methodology
may explain how information on riparian condition and streambank
stability might be used to determine whether a waterbody is impaired or
threatened.
Today's proposal recommends a closer relationship between the
section 303(d) and section 305(b) processes by requiring the section
303(d) listing methodology to describe how section 305(b) information
will be used to determine which waterbodies should be included on the
section 303(d) list. EPA recommends that States, Territories and
authorized Tribes use the section 305(b) guidelines for defining waters
that are impaired or threatened when developing this part of the
section 303(d) listing methodology
iring the section
303(d) listing methodology to describe how section 305(b) information
will be used to determine which waterbodies should be included on the
section 303(d) list. EPA recommends that States, Territories and
authorized Tribes use the section 305(b) guidelines for defining waters
that are impaired or threatened when developing this part of the
section 303(d) listing methodology. While these section 305(b) decision
rules represent a solid starting point for State, Territorial and
authorized Tribal section 303(d) listing methodologies, EPA encourages
State, Territorial and authorized Tribal listing methodologies for
section 303(d) to be more specific, if necessary, to determine which
waterbodies are impaired or threatened. EPA also encourages consistency
between water quality reported in the section 305(b) report and the
section 303(d) list of impaired and threatened waterbodies,
particularly in regard to waterbodies that are impaired for purposes of
section 303(d) and not supporting or partially supporting uses as
reported under section 305(b).
Today's proposal eliminates the existing regulatory provisions that
States, Territories and authorized Tribes provide EPA with a rationale
for any decision not to use any existing and readily available data and
information, and that, upon request by the EPA Regional Administrator,
States, Territories or authorized Tribes may demonstrate ``good cause''
for not including a waterbody or waterbodies on the list. These
provisions are redundant and unnecessary in light of the more specific
requirements in today's proposal for States, Territories and authorized
Tribes to provide EPA and the public with a more detailed methodology
for developing their lists.
EPA also agrees with the concern expressed by some States,
Territories, or authorized Tribes that listing decisions and TMDL
calculations be based on high-quality data that meets State procedures
for data quality and will, if necessary, stand up to legal challenge
tes, Territories and authorized
Tribes to provide EPA and the public with a more detailed methodology
for developing their lists.
EPA also agrees with the concern expressed by some States,
Territories, or authorized Tribes that listing decisions and TMDL
calculations be based on high-quality data that meets State procedures
for data quality and will, if necessary, stand up to legal challenge.
EPA intends for the methodology required by today's proposal to
support, not undermine, State procedures for assuring data quality and
use of appropriate analytic methods. Further, EPA intends that the
proposed requirement in Sec. 130.22 for States, Territories, and
authorized Tribes to consider all existing and readily available
information and document their approach for doing so be consistent with
the State, Territorial, or authorized Tribal data quality control
procedures and methodologies documented in accordance with proposed
Sec. 130.23. Accordingly, data which does not meet data requirements
established in the methodology required by today's proposal need not be
used for listing; likewise, data that does meet data requirements in
the methodology must be used. EPA requests comment on the requirements
in Sec. 130.22 and Sec. 130.23.
Today's proposal also recommends that, where the waterbody is
designated for drinking water use, the TMDL methodology should address
information developed for source water assessments under the SDWA. The
types of information developed for source water assessments that will
be important in determining impairment of waterbodies and needed
corrective actions are the information that States, Territories and
eligible Tribes use to delineate source water areas, identify the
origin of contaminants, and determine public water system
susceptibility.
Exceedance of a narrative criterion is a basis for placing a
waterbody on the section 303(d) list
assessments that will
be important in determining impairment of waterbodies and needed
corrective actions are the information that States, Territories and
eligible Tribes use to delineate source water areas, identify the
origin of contaminants, and determine public water system
susceptibility.
Exceedance of a narrative criterion is a basis for placing a
waterbody on the section 303(d) list. EPA recognizes that to establish
a TMDL where a narrative criterion has been exceeded, it is necessary
to quantify how the narrative criterion should be interpreted for
specific pollutant loads. EPA's Water Quality Standards Regulation
Advance Notice of Proposed Rulemaking (ANPRM) describes current
requirements for States and authorized Tribes to identify the
procedures they intend to use to interpret and implement narrative
criteria as they pertain to point source discharges of toxics (63 FR
36742 at 36765, July 7, 1998). The ANPRM emphasizes the need for clear
procedures for interpreting and implementing narrative criteria and
requests comment on whether the current identification requirements
should be expanded to include interpretation of narratives as they
pertain to nonpoint sources and pollutants in addition to toxics (see
ANPRM at 36765, questions 6 and 7). EPA's current thinking is that such
interpretation and implementation procedures are necessary and, if
required, should be required by amending the water quality standards
regulation as contemplated in the ANPRM discussion cited here.
The methodology proposed today requires, at Sec. 130.23(d)(2), a
process for resolving disagreements with other jurisdictions. States,
Territories and authorized Tribes often have different water quality
standards for boundary waterbodies. Establishing TMDLs for boundary
waterbodies requires agreement on how to determine when a
s
regulation as contemplated in the ANPRM discussion cited here.
The methodology proposed today requires, at Sec. 130.23(d)(2), a
process for resolving disagreements with other jurisdictions. States,
Territories and authorized Tribes often have different water quality
standards for boundary waterbodies. Establishing TMDLs for boundary
waterbodies requires agreement on how to determine when a
waterbody is impaired or threatened and for what pollutant load the
TMDL must be established. Having dispute resolution mechanisms in place
will eliminate many potential disagreements and conflicts.
Finally, the proposal requires, at Sec. 130.23(e), that the
methodology specify exactly what conditions must exist before the
waterbody is removed from the list of impaired and threatened
waterbodies.
Other options considered. In developing today's proposal, EPA
considered several other options. One option considered was to retain
all existing regulatory requirements. EPA also considered developing,
and requiring all States, Territories and authorized Tribes to follow,
a single national listing methodology and criteria to develop their
lists. EPA also considered two default listing approaches. First, EPA
considered streamlining the listing process by requiring that, absent
data and information indicating attainment of water quality standards,
waterbodies must be included on State, Territorial and Tribal lists.
Alternatively, EPA considered streamlining the listing process by
requiring that waterbodies not be included on State, Territorial and
authorized Tribal lists unless data and information demonstrated non-
attainment of water quality standards.
Comments sought. EPA seeks comments on whether the TMDL regulations
should retain the requirement that States, Territories and authorized
Tribal lists consider and evaluate existing and readily available data
and information in developing their lists of impaired and threatened
waterbodies
horized Tribal lists unless data and information demonstrated non-
attainment of water quality standards.
Comments sought. EPA seeks comments on whether the TMDL regulations
should retain the requirement that States, Territories and authorized
Tribal lists consider and evaluate existing and readily available data
and information in developing their lists of impaired and threatened
waterbodies. EPA would also like comments on whether the regulation
should more specifically define national minimum criteria or thresholds
that define waterbodies that are impaired or threatened (e.g., existing
criteria used for development of 305(b) reports). EPA is also seeking
comment on the proposal to require States to provide more details on
their listing methodologies and eliminate the current provision that,
upon request by the EPA Regional Administrator, States, Territories and
authorized Tribes may demonstrate ``good cause'' for not including a
waterbody or waterbodies on the list. EPA solicits comments on any
aspects of the proposal, including the options considered.
b. Scope of the list
Existing requirements. Existing regulations (40 CFR 130.7(b)(1))
require that State, Territorial and authorized Tribal lists include
waterbodies for which pollution control requirements required by local,
State, or Federal authority, including technology-based or more
stringent point source effluent limitations or nonpoint source best
management practices, are not stringent enough to implement water
quality standards. In addition, existing regulations require States,
Territories and authorized Tribes to identify the pollutants causing or
expected to cause violations of water quality standards. EPA guidance
on the scope of the list has been incomplete
more
stringent point source effluent limitations or nonpoint source best
management practices, are not stringent enough to implement water
quality standards. In addition, existing regulations require States,
Territories and authorized Tribes to identify the pollutants causing or
expected to cause violations of water quality standards. EPA guidance
on the scope of the list has been incomplete. Successive guidance
documents, starting with the guidance issued in April 1991 (Guidance
for Water Quality-based Decisions: The TMDL Process, EPA 440/4-91-001,
April 1991), did not specifically address whether the definition of
pollution contained in section 502(19) (``the man made or man-induced
alteration of the chemical, physical biological or radiological
integrity of water''), or the definition of pollutant in section 502(6)
(``the term pollutant means dredged spoil, solid waste, incinerator
residue, sewage, garbage, sewage sludge, munitions, chemical wastes,
biological materials, radioactive materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirt and industrial, municipal and
agricultural waste discharged into water * * *'') of the CWA, was the
proper basis of determining impairment and listing waterbodies on the
section 303(d) list. The result was that some States, Territories and
authorized Tribes used the broader definition of pollution while others
used the narrower definition of pollutant to identify and list impaired
waterbodies. EPA approved lists which identified impaired waterbodies
on the basis of both definitions. In August, 1997 EPA issued guidance
(New Policies for Establishing and Implementing Total Maximum Daily
Loads, Robert Perciasepe, Assistant Administrator for Water, August 8,
1997), to clarify the listing requirements for the lists due in April,
1998. The best reading of this guidance and the National Clarifying
Guidance for 1998 State and Territory Section 303(d) Listing Decisions,
Robert H
In August, 1997 EPA issued guidance
(New Policies for Establishing and Implementing Total Maximum Daily
Loads, Robert Perciasepe, Assistant Administrator for Water, August 8,
1997), to clarify the listing requirements for the lists due in April,
1998. The best reading of this guidance and the National Clarifying
Guidance for 1998 State and Territory Section 303(d) Listing Decisions,
Robert H. Wayland III, Director, Office of Wetlands, Oceans and
Watersheds, August 27, 1998) issued for the lists due in April, 1998,
is that waterbodies are required to be listed and scheduled for
establishment of TMDLs only if a pollutant was identified as the source
of the impairment and that TMDLs are required only where the impairment
or threat is directly attributable to a pollutant, such as nitrogen,
copper or excessive sediment. Proposed rule. Today's proposal at
Sec. 130.25 clarifies that States, Territories and authorized Tribes
must list waterbodies impaired or threatened by point sources only, a
combination of point and nonpoint sources, and nonpoint sources only,
including atmospheric deposition. The proposal also clarifies that
waterbodies must be listed regardless of whether the impairment or
threat is caused by individual pollutants, multiple pollutants or
pollution from any source, including atmospheric deposition.
Listing Requirement: Point/Nonpoint Sources. Although some have
argued to the contrary, section 303(d) provides ample authority to list
waterbodies impaired by nonpoint sources of pollution and establish
TMDLs for waterbodies impaired by nonpoint sources of pollutants.
Looking first at the words of section 303(d), there is no express
exclusion of nonpoint source impacted waterbodies from the statute's
requirements. Section 303(d)(1)(A) requires identification of ``those
waterbodies * * * for which effluent limitations required by section
[301(b)(1) (A) and (B)] * * * are not stringent enough to implement any
water quality standard
nt sources of pollutants.
Looking first at the words of section 303(d), there is no express
exclusion of nonpoint source impacted waterbodies from the statute's
requirements. Section 303(d)(1)(A) requires identification of ``those
waterbodies * * * for which effluent limitations required by section
[301(b)(1) (A) and (B)] * * * are not stringent enough to implement any
water quality standard. * * *'' Nowhere does the section say that
nonpoint source impacted waterbodies need not be listed. While it is
true that the effluent limitations required by section 301 apply only
to point sources, this fact does not necessarily restrict the scope of
section 303(d) to point source-only waterbodies.
In general, there are three categories of waterbodies that a State,
Territory or authorized Tribe needs to consider for inclusion on its
section 303(d) list. First, there are waterbodies impacted solely as a
result of point sources. Second, there are waterbodies impacted by both
point and nonpoint sources (``blended waterbodies''). Third, there are
waterbodies impacted only by nonpoint sources. It is reasonable to read
the language of section 303(d)(1)(A) to encompass all three categories
of waterbodies.
Waterbodies in the first two categories (point source-only impacts
and blended waterbodies) satisfy the section 303(d) listing criteria if
those waterbodies do not meet standards (or are threatened) despite the
existence of section 301 effluent limits on those waterbodies' point
sources. Because those waterbodies do not meet standards (or are
threatened), and because they have point source discharges feeding into
them, it necessarily follows that existing section 301 limitations on
those dischargers (if any) are not stringent enough to implement
applicable water quality standards.
ened) despite the
existence of section 301 effluent limits on those waterbodies' point
sources. Because those waterbodies do not meet standards (or are
threatened), and because they have point source discharges feeding into
them, it necessarily follows that existing section 301 limitations on
those dischargers (if any) are not stringent enough to implement
applicable water quality standards.
Waterbodies in the third category (i.e., those without point source
dischargers on them) can also meet section 303(d)(1)(A)'s listing
criteria. The first step would be a determination that such waterbodies
are not meeting standards. If such a determination is made, it follows
that such waterbodies must be listed. By definition such waterbodies
have no point source dischargers on them, and, therefore, section 301-
required effluent limits can never be stringent enough to implement
applicable water quality standards. Therefore, such waterbodies meet
the statutory criteria for listing found in section 303(d)(1)(A).
Accordingly, it is reasonable for EPA to read the listing requirement
language of section 303(d)(1)(A) as extending to nonpoint source-only
impacted waterbodies.
The same is true of section 303(d)(1)(C) dealing with TMDLs. That
section provides that each State shall establish for the waterbodies
identified on a State's list TMDLs ``for those pollutants which the
Administrator identifies under section [304] * * * as suitable for such
calculation.'' Section 304(a)(2)(D) required EPA to publish ``for the
purposes of section [303] * * * the identification of pollutants
suitable for maximum daily load measurement correlated with the
achievement of water quality objectives.'' (Emphasis added). EPA
identified such pollutants in December 1978. At that time it said
``[a]ll pollutants, under the proper technical conditions, are suitable
for the calculation of total maximum loads''. 43 FR 60665 (Dec. 28,
1978)
section [303] * * * the identification of pollutants
suitable for maximum daily load measurement correlated with the
achievement of water quality objectives.'' (Emphasis added). EPA
identified such pollutants in December 1978. At that time it said
``[a]ll pollutants, under the proper technical conditions, are suitable
for the calculation of total maximum loads''. 43 FR 60665 (Dec. 28,
1978).
As with section 303(d)(1)(A), there is no express exclusion of
nonpoint source waterbodies from the TMDL requirements of section
303(d)(1)(C). Assuming that section 303(d)(1)(A) lists cover nonpoint
source waterbodies, TMDLs must also be established for pollutants in
those waterbodies because--by its very terms--the reach of section
303(d)(1)(C) is coextensive with that of 303(d)(1)(A) (``shall
establish for the waterbodies identified in paragraph (1)(A)'').
EPA's belief that section 303(d) applies to nonpoint sources is
also consistent with the Clean Water Act's definition of pollutant. An
examination of the Act ``as a whole'' supports an interpretation that
Congress did not intend to limit the term ``pollutant'' to point
sources. The relevant provisions of section 502(6) define the term
``pollutant'' as follows:
The term pollutant means dredged spoil, solid waste, incinerator
residue, sewage, garbage, sewage sludge, munitions, chemical wastes,
biological materials, radioactive materials, heat, wrecked or
discarded equipment, rock, sand, cellar dirt and industrial,
municipal, and agricultural waste discharged into water.
relevant provisions of section 502(6) define the term
``pollutant'' as follows:
The term pollutant means dredged spoil, solid waste, incinerator
residue, sewage, garbage, sewage sludge, munitions, chemical wastes,
biological materials, radioactive materials, heat, wrecked or
discarded equipment, rock, sand, cellar dirt and industrial,
municipal, and agricultural waste discharged into water.
Section 319, a section that exclusively addresses nonpoint sources,
provides clear evidence that Congress did not intend to limit the use
of the term ``pollutant'' to point sources. The very first element of a
state's section 319 plan is an ``identification of the best management
practices and measures which will be undertaken to reduce pollutant
loadings resulting from each category, subcategory, or particular
nonpoint source. * * *'' section 319(b)(2)(A)(emphasis added). In
addition, every year each State must report to EPA any ``reductions in
nonpoint source pollutant loading and improvements in water quality. *
* *'' section 319(h)(11)(emphasis added). Finally, in its report to
Congress, EPA must also identify ``the progress made in reducing
pollutant loads and improving water quality * * *'' as a result of
nonpoint source focused activities carried out under section 319.
section 319(m)(2)(D) (emphasis added).
In drafting section 319, it is clear that Congress understood that
nonpoint sources could cause pollutant loadings to waterbodies. Indeed,
it asked the States to identify measures to reduce those nonpoint
pollutant loadings and required annual reports of any reductions. In
the face of these directives, it is not reasonable to think that
Congress somehow understood the section 502 definition of ``pollutant''
to apply narrowly to only point sources.
Other sections of the CWA also indicate that Congress felt quite
comfortable with the idea that ``pollutants'' can come from nonpoint
sources
oint
pollutant loadings and required annual reports of any reductions. In
the face of these directives, it is not reasonable to think that
Congress somehow understood the section 502 definition of ``pollutant''
to apply narrowly to only point sources.
Other sections of the CWA also indicate that Congress felt quite
comfortable with the idea that ``pollutants'' can come from nonpoint
sources. See Section 320(b)(3) (estuary management conference shall
``develop the relationship between the inplace loads and point and
nonpoint loadings of pollutants to the estuarine zone * * *'')
(emphasis added); section 105(d)(1)(EPA shall develop ``waste
management methods applicable to point and nonpoint sources of
pollutants to eliminate the discharge of pollutants, including, but not
limited to, elimination of runoff of pollutants and the effects of
pollutants from inplace and accumulated sources'') (emphasis added);
section 107(a) (in context of mine remediation projects, linking
``acid'' and ``sediment'' impacts to ``other pollutants'' without
specifying that they must originate from point sources) (emphasis
added); section 117(a)(4) (Chesapeake Bay Office shall determine
``impact of pollutant loadings of nutrients, chlorine, acid
precipitation, dissolved oxygen, and toxic pollutants'' on Bay without
specifying that such pollutants must originate from point sources)
(emphasis added); section 119(c)(2)(F) (Long Island Sound Office shall
study atmospheric deposition of acidic and other pollutants into Long
Island Sound'' without specifying that such pollutants must originate
from point sources) (emphasis added).
Pollutant/Pollution. Today's proposed rule requires States,
Territories and authorized Tribes to list all waterbodies impaired or
threatened by pollutants, as defined in 40 CFR 130.2(d), and pollution,
as defined in 40 CFR 130.2(c)
ic deposition of acidic and other pollutants into Long
Island Sound'' without specifying that such pollutants must originate
from point sources) (emphasis added).
Pollutant/Pollution. Today's proposed rule requires States,
Territories and authorized Tribes to list all waterbodies impaired or
threatened by pollutants, as defined in 40 CFR 130.2(d), and pollution,
as defined in 40 CFR 130.2(c). Section 303(d)(1)(A) requires that
States, Territories and authorized Tribes identify all waterbodies for
which certain specified effluent limits are not stringent enough to
implement water quality standards. The focus of the section is on
whether or not the water is meeting standards following application of
effluent limits. There is no indication that, to be listed, the water
must be impaired by a pollutant as opposed to some other form of
pollution. Indeed, the section expressly states that, when assigning a
priority ranking to listed waterbodies, the State, Territory or
authorized Tribe must account for the severity of the waterbody's
``pollution.'' EPA interprets this to mean that a waterbody can be
listed if it is impaired or threatened by either pollution or a
pollutant.
EPA's interpretation is consistent with the broad goal articulated
in section 101(a) of the CWA ``to restore and maintain the chemical,
physical, and biological integrity of the nation's waterbodies.'' This
consistency is evidenced by the fact that the above-stated goal is
mirrored in the Act's definition of ``pollution'' in section 502(19),
which is incorporated into the regulations at 40 CFR 130.2(c): ``the
man-made or man-induced alteration of the chemical, physical,
biological, and radiological integrity of water.'' Accordingly, EPA
interprets the statute to allow it to require that waterbodies be
listed when any such alteration of their chemical, physical,
biological, and radiological integrity causes them to be impaired or
threatened
corporated into the regulations at 40 CFR 130.2(c): ``the
man-made or man-induced alteration of the chemical, physical,
biological, and radiological integrity of water.'' Accordingly, EPA
interprets the statute to allow it to require that waterbodies be
listed when any such alteration of their chemical, physical,
biological, and radiological integrity causes them to be impaired or
threatened. Such alteration can be caused by ``pollutants,'' as that
term is defined in section 502(6) of the CWA, or any broader causes of
impairment from pollution, such as low flow or degraded aquatic or
riparian habitat.
Although the FACA Committee was not able to reach consensus on this
issue, the committee noted on page 5 of its report that the TMDLs
``establish the CWA's primary mechanism for addressing water quality
impairments'' and, of all CWA provisions, only the
TMDL provisions ``focus broadly on waterbodies that do not meet water
quality standards, including beneficial uses.'' The FACA Committee also
recognized that ``all stakeholders, including the general public, have
a right to know about the health of their waterbodies and, especially,
about waterbodies that are impaired and require corrective action.'' It
is appropriate to have the section 303(d) list serve as a comprehensive
accounting of waterbodies impaired or threatened by pollution and
pollutants.
While EPA interprets section 303(d) to require identification of
all waters not meeting water quality standards, whether caused by
pollutants or pollution, EPA interprets section 303(d) to require that
TMDLs only be established where a waterbody is impaired or threatened
by a ``pollutant''. (See 130.32(a)). The term pollutant is defined in
section 502(6) of the CWA and in the proposed 40 CFR 130.2(d) as
follows:
section 303(d) to require identification of
all waters not meeting water quality standards, whether caused by
pollutants or pollution, EPA interprets section 303(d) to require that
TMDLs only be established where a waterbody is impaired or threatened
by a ``pollutant''. (See 130.32(a)). The term pollutant is defined in
section 502(6) of the CWA and in the proposed 40 CFR 130.2(d) as
follows:
``The term pollutant means dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt and
industrial, municipal, and agricultural waste discharged into
water.'' [Omitted here are certain statutory exclusions.]
Section 303(d)(1)(C) expressly provides that, for listed
waterbodies, States shall establish TMDLs ``for those pollutants which
EPA has identified as suitable for such calculation''. Section
304(a)(2)(D) required EPA to publish ``for the purposes of section
[303] * * * the identification of pollutants suitable for maximum daily
load measurement correlated with the achievement of water quality
objectives.'' EPA identified such pollutants in December 1978. At that
time, EPA said that ``[a]ll pollutants, under the proper technical
conditions, are suitable for the calculation of total maximum loads''.
43 FR 60665 (Dec. 28, 1978). The clear reference to ``pollutants'' in
section 303(d)(1)(C), as well as in sections 303(d)(3) and
304(a)(2)(D), supports the conclusion that EPA is authorized to require
that TMDLs be established only for pollutants as defined in section
502(6), and not for pollution.
EPA acknowledges an argument could be made that, while Congress was
not as specific about its use of the word ``pollutant'' in section
303(d)(1)(A) dealing with listing as it was in section 303(d)(1)(C)
dealing with TMDLs, the scope of a State's list should be the same as
its obligation to do TMDLs
TMDLs be established only for pollutants as defined in section
502(6), and not for pollution.
EPA acknowledges an argument could be made that, while Congress was
not as specific about its use of the word ``pollutant'' in section
303(d)(1)(A) dealing with listing as it was in section 303(d)(1)(C)
dealing with TMDLs, the scope of a State's list should be the same as
its obligation to do TMDLs. By that logic, only waterbodies impaired or
threatened by pollutants would be included on a State's list. EPA
disagrees with this position, not only because it believes its own
interpretation of section 303(d) is more reasonable, but also because
it sees great value in listing waterbodies impaired or threatened by
both pollutants and pollution.
Threatened Waters. Today's proposal at Sec. 130.25 retains the
existing regulatory requirement that States, Territories and authorized
Tribes list impaired and threatened waterbodies. To further clarify the
scope of this requirement, EPA is also proposing at Sec. 130.2(n) to
define a threatened waterbody as one that currently meets water quality
standards, but for which adverse declining trends indicate that
standards will be exceeded by the next listing cycle.
The FACA Committee spent considerable time addressing this issue,
both in terms of whether threatened waterbodies should be listed and,
if so, how to define ``threatened waterbodies.'' They did not reach
consensus on whether the TMDL regulations should require States to list
threatened waterbodies. The FACA Committee recommended that
``threatened waterbodies be put on a discrete list for focused
attention, with the goal of keeping them from becoming impaired.'' The
Committee did not recommend that TMDLs be required for threatened
waterbodies
ine ``threatened waterbodies.'' They did not reach
consensus on whether the TMDL regulations should require States to list
threatened waterbodies. The FACA Committee recommended that
``threatened waterbodies be put on a discrete list for focused
attention, with the goal of keeping them from becoming impaired.'' The
Committee did not recommend that TMDLs be required for threatened
waterbodies. The Committee did recommend that a watershed-based
loadings analysis be performed for threatened waterbodies as soon as
possible, consistent with the State's priority list, but at a minimum,
before new or modified permits that allow increased discharges to a
threatened waterbody or other actions that would contribute to
increased pollution to a threatened waterbody over which the State has
approval authority, are issued. The loadings analysis would not
necessarily include all of the components of a TMDL for impaired
waterbodies, but would have to provide for restoration so that the
waterbody is no longer threatened.
EPA interprets section 303(d)(1)(A) to provide authority for EPA to
require that states list threatened, as well as impaired, waterbodies.
Pursuant to that section, each state must identify those waterbodies
for which effluent limitations required by section 301(b)(1)(A) and (B)
``are not stringent enough to implement any water quality standard
applicable to such waterbodies.'' In the case of ``threatened
waterbodies'', data showing a declining trend in water quality may
indicate that, although the waterbody currently attains water quality
standards, it is not likely to do so by the time of the next listing
cycle. That being the case, the State may determine that currently
applicable effluent limitations are not stringent enough to implement
water quality standards. If they were stringent enough, there would not
be a declining water quality trend foreshadowing nonattainment before
the next listing cycle
y attains water quality
standards, it is not likely to do so by the time of the next listing
cycle. That being the case, the State may determine that currently
applicable effluent limitations are not stringent enough to implement
water quality standards. If they were stringent enough, there would not
be a declining water quality trend foreshadowing nonattainment before
the next listing cycle. Rather than ignore such declining water quality
data, the CWA gives EPA the authority to require that threatened waters
be listed.
EPA's decision to propose that the list include threatened
waterbodies is consistent with one of the CWA's fundamental goals--to
protect water quality from deterioration. In addition, the inclusion of
threatened waterbodies on State, Territorial and authorized Tribal
lists reflects EPA's view that it is more desirable, both
environmentally and economically, to protect waterbodies from possible
impairment than to wait until they are impaired and then need to be
restored. Through today's proposed comprehensive listing process,
States, Territories and authorized Tribes can become aware of the
threatened status of a particular waterbody and then initiate actions
to prevent the waterbody from becoming impaired. EPA is specifying,
consistent with the FACA recommendations, a definition of threatened
waterbodies as likely to exceed water quality standards within the next
two years when the determination that a waterbody is threatened is
based on data that show a significant declining trend or knowledge of
specific changes that would adversely impact water quality. In
determining whether to list threatened waterbodies, states should
consider information on known sources that have either recently been
added or removed or are expected to be added or removed in order to
determine if an apparent declining trend is likely to continue, or if a
waterbody is likely to be impaired by the next listing cycle despite
the absence of a trend.
Atmospheric Deposition
In
determining whether to list threatened waterbodies, states should
consider information on known sources that have either recently been
added or removed or are expected to be added or removed in order to
determine if an apparent declining trend is likely to continue, or if a
waterbody is likely to be impaired by the next listing cycle despite
the absence of a trend.
Atmospheric Deposition. The FACA Committee was not able to reach
consensus on how the TMDLs should address waterbodies impaired or
threatened by atmospheric deposition. Consistent with EPA's view that
the section 303(d) listing requirement applies to all sources of
impairment and threat, today's proposal at Sec. 130.25(b)(2) codifies
existing EPA policy that States must list waterbodies impaired or
threatened by atmospheric deposition. EPA recognizes that data,
analytical approaches and models to establish TMDLs for pollutants
originating from air deposition may not be immediately available,
especially for pollutants subject to long range transport in the
atmosphere. EPA recommends that where additional time is needed to
develop data, analysis, or models for air deposition of pollutants
significantly contributing to a water quality impairment, States,
Territories and authorized Tribes assign these waterbodies a low
priority for establishment of TMDLs.
Relationship to Antidegradation Requirements in Water Quality
Standards. Today's proposal (Sec. 130.26) also clarifies how State,
Territorial and authorized Tribal antidegradation policies affect the
identification and listing of impaired and threatened waterbodies under
section 303(d). Antidegradation policies and associated implementation
procedures are an essential part of State, Territorial and authorized
Tribal water quality standards programs and are required under 40 CFR
131
ec. 130.26) also clarifies how State,
Territorial and authorized Tribal antidegradation policies affect the
identification and listing of impaired and threatened waterbodies under
section 303(d). Antidegradation policies and associated implementation
procedures are an essential part of State, Territorial and authorized
Tribal water quality standards programs and are required under 40 CFR
131. Antidegradation policies help ensure that water quality necessary
to support existing uses (Tier 1) and water quality which is better
than needed to support protection and propagation of fish, shellfish
and wildlife and recreation in and on the water (Tier 2) is maintained
unless through a public process, a decision has been made to allow some
decline in water quality. Antidegradation policies also identify and
protect waterbodies of exceptional recreational and ecological
significance. (Tier 3)
The purpose of section 303(d) is to identify impaired and
threatened waterbodies while the purpose of antidegradation policies is
to prevent deterioration of existing levels of good water quality.
There is a relationship, however, between section 303(d) listing
requirements and antidegradation policies.
Tier 3 waterbodies are waterbodies of exceptional recreational or
ecological significance. Generally, when a State, Territory or
authorized Tribe has identified waterbodies as Tier 3, no decline in
water quality is allowed. Today's proposal requires that decline in
water quality for Tier 3 waterbodies represents an impairment for the
purpose of section 303(d). These waterbodies must be identified and
listed.
Tier 2 waterbodies are waterbodies for which existing water quality
is better than necessary to support propagation of fish, shellfish,
wildlife and recreation. Since existing water quality is better than
required, these waterbodies do not need to be listed as impaired under
section 303(d)
ents an impairment for the
purpose of section 303(d). These waterbodies must be identified and
listed.
Tier 2 waterbodies are waterbodies for which existing water quality
is better than necessary to support propagation of fish, shellfish,
wildlife and recreation. Since existing water quality is better than
required, these waterbodies do not need to be listed as impaired under
section 303(d). Any decline in existing water quality is not authorized
unless an antidegradation analysis is completed as required in 40 CFR
131. Tier 2 waterbodies may, however, be threatened and must be listed
when adverse trend data and information indicate that a designated use
will not be maintained by the time of the next listing cycle.
All waterbodies are subject to Tier 1 protection. Generally, Tier 1
waterbodies do not exceed section 101(a)(2) goals or do not have
additional assimilative capacity to receive additional amounts of a
pollutant without exceeding the existing use. Tier 1 waterbodies are
impaired and must be listed if the designated use is not being
attained. In some cases, Tier 1 waterbodies may be listed if existing
uses have been identified pursuant to 40 CFR 131.3. An existing use is
a use that has actually occurred since November 28, 1975 (when the
water quality standards regulation was published) or where water
quality is suitable to allow such a use to occur. States, Territories
and authorized Tribes must incorporate existing uses into their
designated uses pursuant to 40 CFR 131.10(i). The water quality
standards regulation provides, however, that a demonstration of an
existing use different than a designated use may be made to the State,
Territory or authorized Tribe. In the case that such a demonstration is
made by a member of the public, a waterbody must be listed if the
existing use is more protective than the designated use. EPA expects
that most Tier 1 waterbodies identified as impaired and listed on the
section 303(d) list will be listed on the basis of designated uses
ent than a designated use may be made to the State,
Territory or authorized Tribe. In the case that such a demonstration is
made by a member of the public, a waterbody must be listed if the
existing use is more protective than the designated use. EPA expects
that most Tier 1 waterbodies identified as impaired and listed on the
section 303(d) list will be listed on the basis of designated uses.
Options considered. In developing today's proposal, EPA considered
other options for defining the scope of the list. EPA considered
whether to limit the list to impaired waterbodies and not require
States, Territories and authorized Tribes to also list threatened
waterbodies. EPA recognized that this option might allow States,
Territories and authorized Tribes to focus the limited resources for
TMDLs more effectively on addressing existing impairments. EPA did not
propose this option because EPA believes it is inconsistent with the
goals of the CWA and a list that serves as a comprehensive public
accounting of impaired and threatened waterbodies. EPA also considered
whether to allow States, Territories and authorized Tribes not to list
waterbodies impaired or threatened by nonpoint sources only, as well as
waterbodies impaired or threatened by atmospheric deposition. EPA did
not propose these options because they are inconsistent with EPA's
interpretation of section 303(d) and the goals of the CWA. Finally,
when deciding on the proper scope of the list, EPA considered whether
to require States, Territories and authorized Tribes to establish TMDLs
for all waterbodies impaired or threatened by either pollutants or
pollution. Based on EPA's interpretation that section 303(d) requires
TMDLs to be established only where a waterbody is impaired or
threatened by pollutants, today's action does not propose that TMDLs be
established for waterbodies impaired or threatened by pollution.
Comments sought. EPA solicits comments on any or all aspects of the
proposal, including options considered
ther pollutants or
pollution. Based on EPA's interpretation that section 303(d) requires
TMDLs to be established only where a waterbody is impaired or
threatened by pollutants, today's action does not propose that TMDLs be
established for waterbodies impaired or threatened by pollution.
Comments sought. EPA solicits comments on any or all aspects of the
proposal, including options considered. EPA solicits comments on the
proposed requirement that States, Territories and authorized Tribes
must list waterbodies impaired or threatened by pollution and by
pollutants. EPA also seeks comment on today's proposal to retain the
existing regulatory requirement to list threatened bodies. In addition,
EPA seeks comment on today's proposal to codify existing EPA guidance
to require States, Territories and authorized Tribes to list
waterbodies impaired or threatened by an unknown pollutant and by all
sources, including nonpoint sources only and atmospheric deposition.
EPA seeks comment on today's clarification that TMDLs must be
established only for waterbodies impaired or threatened by pollutants.
Finally, EPA seeks comments on the listing requirements for impaired
and threatened waterbodies stemming from State, Territorial, and
authorized Tribes' antidegradation policies.
c. Required Components of the List
Existing requirements. The existing regulations (at 40 CFR
130.7(b)) require that the list developed under section 303(d) of the
CWA consist of ``water quality-limited segments still requiring
TMDLs,'' but recognize that certain waterbodies, while impaired or
threatened, do not require TMDLs and therefore need not be included on
the list
gradation policies.
c. Required Components of the List
Existing requirements. The existing regulations (at 40 CFR
130.7(b)) require that the list developed under section 303(d) of the
CWA consist of ``water quality-limited segments still requiring
TMDLs,'' but recognize that certain waterbodies, while impaired or
threatened, do not require TMDLs and therefore need not be included on
the list. The existing regulations (at 40 CFR 130.7(b)(1)) identify
such waterbodies as those that are expected to attain or are already
attaining water quality standards following the application of best
practicable control technology for point sources and secondary
treatment for publicly owned treatment works, more stringent effluent
limitations required by either Federal, State or local authorities, or
other required pollution controls (such as best management practices).
Existing regulations do not address the question of when States,
Territories and authorized Tribes can remove previously listed
waterbodies from their lists. Current guidance (Guidance for 1994
Section 303(d) Lists, Geoffrey H. Grubbs, Director, Assessment and
Watershed Protection Division,
November 26, 1993 and National Clarifying Guidance for 1998 State and
Territory Section 303(d) Listing Decisions, Robert H. Wayland III,
Director, Office of Wetlands, Oceans and Watersheds, August 27, 1997)
addresses the issue by identifying two circumstances that would justify
removing previously listed waterbodies. These circumstances are: (1) if
water quality standards are being attained or are expected to be
attained within two years, or (2) if, upon re-examination, the original
basis for listing the waterbodies is determined to be inaccurate. In
addition, current guidance (Guidance for 1994 Section 303(d) Lists,
Geoffrey H
two circumstances that would justify
removing previously listed waterbodies. These circumstances are: (1) if
water quality standards are being attained or are expected to be
attained within two years, or (2) if, upon re-examination, the original
basis for listing the waterbodies is determined to be inaccurate. In
addition, current guidance (Guidance for 1994 Section 303(d) Lists,
Geoffrey H. Grubbs, Director, Assessment and Watershed Protection
Division, November 26, 1993) gives States, Territories and authorized
Tribes the option of removing previously listed waterbodies after EPA
approves a State-established TMDL.
Proposed rule. Today's proposal (at 40 CFR 130.27) eliminates the
term ``water quality-limited segments still requiring TMDLs'' from the
regulations and broadens the scope of the list. Today's proposal
requires States, Territories and authorized Tribes to list all impaired
or threatened waterbodies, regardless of whether the waterbody is
expected to attain water quality standards following the application of
technology-based controls required by section 301 and 306 of the CWA,
more stringent effluent limitations, or other required pollution
controls. As already discussed, this includes waterbodies impaired or
threatened by individual pollutants, multiple pollutants and pollution
from all sources, waterbodies impaired or threatened by unknown
pollutants or pollution and waterbodies impaired or threatened by
atmospheric deposition. The proposal also clarifies that States,
Territories and authorized Tribes must list waterbodies impaired or
threatened by point sources, a combination of point and nonpoint
sources only.
Today's proposal at Sec. 130.27 establishes a specific format for
States, Territories, and authorized Tribes follow which organizes the
types of waterbodies included on the list and clearly identifies which
waterbodies require the establishment of TMDLs. The proposed rule
requires that State, Territorial and authorized Tribal lists consist of
four parts:
of point and nonpoint
sources only.
Today's proposal at Sec. 130.27 establishes a specific format for
States, Territories, and authorized Tribes follow which organizes the
types of waterbodies included on the list and clearly identifies which
waterbodies require the establishment of TMDLs. The proposed rule
requires that State, Territorial and authorized Tribal lists consist of
four parts:
Part 1--Waterbodies impaired or threatened by one or
more pollutants or unknown cause as defined by 40 CFR 130.2(d). A
TMDL is required for waterbodies on this part of the list.
Part 2--Waterbodies impaired or threatened by pollution
as defined by 40 CFR 130.2(c) but not impaired by one or more
pollutants. A TMDL is not required for waterbodies on this part of
the list.
Part 3--Waterbodies for which EPA has approved or
established a TMDL and water quality standards have not yet been
attained.
Part 4--Waterbodies that are impaired, for which
implementation of best practicable control technology for point
sources and secondary treatment for publicly owned treatment works
or controls enforceable by State, Territorial, authorized Tribal or
Federal law or regulation are expected to result in attainment of
water quality standards by the next listing cycle. A TMDL is not
required for waterbodies on this part of the list. If a waterbody on
Part 4 does not attain water quality standards by the time the next
list is due to EPA, it must be included on Part 1 of the list.
controls enforceable by State, Territorial, authorized Tribal or
Federal law or regulation are expected to result in attainment of
water quality standards by the next listing cycle. A TMDL is not
required for waterbodies on this part of the list. If a waterbody on
Part 4 does not attain water quality standards by the time the next
list is due to EPA, it must be included on Part 1 of the list.
Today's proposal is meant to ensure that all impaired and
threatened waterbodies are identified and placed on the list. EPA does
not expect States, Territories, and authorized Tribes to list
waterbodies for which there is no existing and readily available data
and information that indicates the existence of an impairment or
threat. EPA does expect, however, the State, Territory, or authorized
Tribe to list impaired or threatened waterbodies if such data
demonstrates impairment or threat and believes a pollutant or pollution
is the cause of the impairment or threat. If the State, Territory, or
authorized Tribe believes a pollutant is the cause of the impairment or
threat, but does not know the specific identity of the pollutant, the
waterbody must be included on Part 1 of the list and scheduled for the
establishment of a TMDL. EPA expects that the pollutant causing the
impairment will be identified as part of establishing the TMDL. EPA
anticipates, in some cases, that new and additional data and
information may need to be generated to identify the cause of the
impairment. If the cause of the impairment or threat is identified as
pollution, no TMDL is required and the waterbody should be placed on
Part 2 of the list.
This requirement to list where the exact pollutant is unknown is
especially important with regard to waterbodies identified as impaired
or threatened on the basis of biological data or screening methods
ted to identify the cause of the
impairment. If the cause of the impairment or threat is identified as
pollution, no TMDL is required and the waterbody should be placed on
Part 2 of the list.
This requirement to list where the exact pollutant is unknown is
especially important with regard to waterbodies identified as impaired
or threatened on the basis of biological data or screening methods.
Unlike impairments or threats attributed to physical or chemical data
and information, in which the pollutant or pollution is intrinsically
known or evident, impairments or threats identified by the use of
biological data or screening methods may not be as easily traced back
to the underlying cause. A chemical pollutant, for example, that
exceeds in-stream criteria is generally identifiable. The pollutant or
pollution causing biological impairment, on the other hand, may not be
readily apparent. A bioassessment of a stream may indicate unhealthy
aquatic populations which fail to attain or maintain the designated
use. The bioassessment, however, generally does not indicate the
pollutant causing the impairment. EPA stresses that the first step in
establishing a TMDL for these kinds of impairments is identifying the
cause of the impairment and the pollutant for which the TMDL must be
established. Requiring waterbodies which are impaired or threatened but
for which the cause of the impairment or threat is unknown to be listed
on part 1 of the list will provide an incentive for States, Territories
and authorized Tribes to expeditiously identify the pollutant causing
the impairment or threat at the time when that waterbody is placed on
the list. If the cause of the impairment is determined to be pollution,
no TMDL is required and the waterbody should be placed on part 2 of the
list. This approach is consistent with EPA's evolving approach for the
use of biological assessments and criteria.
Today's proposal at Sec
editiously identify the pollutant causing
the impairment or threat at the time when that waterbody is placed on
the list. If the cause of the impairment is determined to be pollution,
no TMDL is required and the waterbody should be placed on part 2 of the
list. This approach is consistent with EPA's evolving approach for the
use of biological assessments and criteria.
Today's proposal at Sec. 130.29 adopts the FACA Committee's
recommendations that waterbodies remain listed until water quality
standards are attained, and that a previously listed impaired waterbody
may be removed from the list only when new data or information indicate
that the waterbody has attained water quality standards or that the
waterbody was incorrectly listed. Similarly, the proposed rule
specifies that a previously listed threatened waterbody may be removed
from the list when new data or information indicate that the waterbody
is no longer threatened or that the waterbody was incorrectly listed.
EPA adopted these FACA Committee recommendations because it believes
that the section 303(d) list of impaired and threatened waterbodies is
a comprehensive accounting of where the water quality problems in any
State, Territory or authorized Tribe are. Retaining waterbodies on the
list until water quality standards are attained provides a way to
measure progress for program managers and other stakeholders.
EPA proposes that additional waterbodies be included on Part 4 of
the list. These waterbodies are waterbodies for which implementation of
best practicable control technology for point sources, secondary
treatment for publicly owned treatment works, or controls enforceable
by State or Federal law or regulation are expected to result in
attainment of water quality standards by the next listing cycle. Some
examples of enforceable controls which may achieve water quality
standards are state
waterbodies for which implementation of
best practicable control technology for point sources, secondary
treatment for publicly owned treatment works, or controls enforceable
by State or Federal law or regulation are expected to result in
attainment of water quality standards by the next listing cycle. Some
examples of enforceable controls which may achieve water quality
standards are state
regulations or local ordinances requiring erosion control, state laws
requiring manure management practices, NPDES controls for point sources
based on best available technology, and Habitat Conservation Plans
adopted under the Endangered Species Act (ESA). EPA believes that it is
appropriate to provide time to allow controls such as these to attain
water quality standards, especially in light of the large numbers of
TMDLs that need to be established nationally.
Section 303(d)(1)(C) provides that each State, Territory or
authorized Tribe shall establish TMDLs for waterbodies identified on
the Sec. 303(d) list ``for pollutants which the Administrator
identifies * * * as suitable for such calculation.'' Section
304(a)(2)(D) required EPA to publish ``for purposes of section [303] *
* * the identification of pollutants suitable for maximum daily load
measurement correlated with the achievement of water quality
objectives.'' EPA identified such pollutants in December, 1978. At that
time it said, ``all pollutants, under proper technical conditions, are
suitable for calculation of total maximum daily loads.'' (43 FR, 60665,
Dec. 28, 1978)
The current proposal does not change the determination that all
pollutants, under proper technical conditions, are suitable for
calculation of TMDLs. The proper technical conditions for TMDL
calculations are that data, analyses, or models are available or can
reasonably be developed to establish a TMDL consistent with the
requirements proposed today
ly loads.'' (43 FR, 60665,
Dec. 28, 1978)
The current proposal does not change the determination that all
pollutants, under proper technical conditions, are suitable for
calculation of TMDLs. The proper technical conditions for TMDL
calculations are that data, analyses, or models are available or can
reasonably be developed to establish a TMDL consistent with the
requirements proposed today. Since EPA considers all pollutants
suitable for calculation in nearly all situations, today's proposed
rule does not enumerate or identify specific situations in which data,
analyses or models are not available to establish TMDLs. EPA could,
however, identify and describe situations, either in the final rule or
in guidance, for which the proper technical conditions are not
available to establish TMDLs. One example of a situation that EPA might
identify is waters impaired primarily by air deposition of pollutants.
If EPA were to identify specific situations where the proper technical
conditions for TMDLs are not available, EPA could also specify that
these waters could be included as a separate part of the list to be
reviewed at each review cycle by the State and approved by EPA. EPA
asks for comment on the advisability of identifying specific situations
where the proper technical conditions for establishment of a TMDL are
not met, and what those specific situations might be.
Other options considered. In developing today's proposal, EPA
considered other ways to format the list. The options EPA considered
focused on whether or not to divide the list into a number of different
parts or segments. EPA decided to create a segmented list as a way to
improve and better organize State and EPA management of the section
303(d) list and to provide important information to the general public
and other stakeholders about the status of the listed waterbodies and
the reasons for listing them. EPA also considered various options when
deciding the appropriate categories for segmenting the list
nts. EPA decided to create a segmented list as a way to
improve and better organize State and EPA management of the section
303(d) list and to provide important information to the general public
and other stakeholders about the status of the listed waterbodies and
the reasons for listing them. EPA also considered various options when
deciding the appropriate categories for segmenting the list. One option
EPA considered was whether to include a category for waterbodies for
which there is some evidence of threat or impairment, but which would
not be immediately scheduled for establishment of TMDLs. Waters could
have been placed in this category if the State, Territory or authorized
Tribe committed to collect additional data and information or conduct
additional monitoring necessary to support establishment of TMDLs. EPA
did not propose this option because it concluded that there was no need
to delay scheduling waterbodies for TMDL establishment based on less
than conclusive evidence of impairment or threat since any additional
needed data or information could be obtained during the period between
listing and State, Territorial and authorized Tribal establishment of
the TMDL.
EPA also considered whether to continue the current regulatory
requirement that gives States, Territories and authorized Tribes the
option not to list waterbodies that fail to meet water quality
standards, but for which other pollution control requirements or
actions are planned or are being implemented that are expected to
provide for standards attainment. The FACA Committee did not reach
consensus on this issue. EPA did not propose this option because it is
inconsistent with its view that the section 303(d) list should serve as
a comprehensive public accounting of all waterbodies impaired or
threatened by pollution and pollutants, irrespective of the tool or
mechanism being used to achieve standards
pected to
provide for standards attainment. The FACA Committee did not reach
consensus on this issue. EPA did not propose this option because it is
inconsistent with its view that the section 303(d) list should serve as
a comprehensive public accounting of all waterbodies impaired or
threatened by pollution and pollutants, irrespective of the tool or
mechanism being used to achieve standards.
EPA also concluded that allowing waterbodies to be removed from
State, Territorial or authorized Tribal lists once a TMDL has been
approved by EPA is inconsistent with our belief that State, Territorial
and authorized Tribal lists provide for a comprehensive public
accounting of all waterbodies that are not attaining or are not
expected to attain water quality standards. In addition, EPA agreed
with the FACA Committee that requiring waterbodies to remain listed
until they attain standards could serve as an incentive to establish
and implement the TMDL, resulting in the restoration of impaired
waterbodies.
Comments sought. EPA seeks comments on today's proposal to create a
new format for the list of impaired and threatened waterbodies and to
broaden the scope of the list to include waterbodies that are expected
to attain standards after the application of technology-based controls
required by sections 301 and 306 of the Act, more stringent effluent
limitations, or other required pollution controls. EPA also seeks
comment on our proposed criteria for removing waterbodies from the
list. EPA solicits comments on any or all aspects of the proposal,
including the options considered. EPA also asks for comment on the
advisability of identifying specific situations where the proper
technical conditions for establishment of a TMDL are not met, and what
those specific situations might be.
d. Assigning Priorities to Listed Waterbodies
Existing requirements
waterbodies from the
list. EPA solicits comments on any or all aspects of the proposal,
including the options considered. EPA also asks for comment on the
advisability of identifying specific situations where the proper
technical conditions for establishment of a TMDL are not met, and what
those specific situations might be.
d. Assigning Priorities to Listed Waterbodies
Existing requirements. Section 303(d) of the CWA and EPA's existing
regulations require that States, Territories and authorized Tribes
assign a priority ranking to each listed waterbody. Existing
regulations specify that the priority ranking must include an
identification of the pollutant(s) causing or expected to cause each
waterbody's impairment and an identification of the waterbodies
targeted for TMDL development in the next two years. Section 303(d)
requires States, Territories and authorized Tribes to determine
priority rankings by taking into account the severity of the pollution
and the uses to be made of the waterbody. The statute does not explain
how these factors should be taken into account and the current
regulation does not expand on the statutory language. EPA guidance
(Guidance for Water Quality-based Decisions: The TMDL Process, EPA 440/
4-91-001, April 1991) acknowledges discretion in developing and
assigning priority rankings and suggests a number of factors that
States, Territories and authorized Tribes may consider, based on our
belief that the statutory factors are not exclusive. These factors
include immediate programmatic needs, vulnerability of particular
waterbodies as aquatic habitats, recreational, economic and aesthetic
importance of particular waterbodies, degree of public interest and
support and State, Territorial
number of factors that
States, Territories and authorized Tribes may consider, based on our
belief that the statutory factors are not exclusive. These factors
include immediate programmatic needs, vulnerability of particular
waterbodies as aquatic habitats, recreational, economic and aesthetic
importance of particular waterbodies, degree of public interest and
support and State, Territorial
authorized Tribal, or national policies and priorities.
Proposed rule. Today's proposal at Sec. 130.28 affirms the existing
statutory and regulatory requirement that States, Territories and
authorized Tribes assign a priority ranking to each listed waterbody.
It also includes a new requirement that States, Territories and
authorized Tribes assign either a ``high,'' ``medium,'' or ``low''
priority to each listed waterbody and pollutant combination on Part 1
of the list. States, Territories and authorized Tribes must assign a
``high'' priority to impaired waterbodies with water quality standards
designated uses as public drinking water supplies where the impairment
is contributing to a violation of an MCL, and for waterbodies in which
species listed as endangered or threatened under section 4 of the ESA
unless the State, Territory, or authorized Tribe shows that the
impairment does not affect the listed species. Today's proposal
maintains the existing regulations' requirement that the pollutant,
pollutants, and/or pollution causing or expected to cause impairment be
identified for each listed waterbody. Identification of each pollutant
or type of pollution that causes or contributes to impairment of a
waterbody is a critical part of the listing process because it sets the
stage for TMDL development and helps the State, Territory and
authorized Tribe determine appropriate priorities and schedules.
Today's proposal, however, eliminates the current requirement that the
priority ranking include an identification of the waterbodies targeted
for TMDL development in the next two years
rment of a
waterbody is a critical part of the listing process because it sets the
stage for TMDL development and helps the State, Territory and
authorized Tribe determine appropriate priorities and schedules.
Today's proposal, however, eliminates the current requirement that the
priority ranking include an identification of the waterbodies targeted
for TMDL development in the next two years. This is because EPA is
proposing (at 40 CFR 130.31) a requirement that States, Territories and
authorized Tribes develop a comprehensive schedule for establishing
TMDLs for all waterbodies and pollutants on Part 1 of the list. A
separate requirement to identify the waterbodies for which TMDLs will
be developed over the next two years is unnecessary.
The priority ranking of impaired waterbodies and identification of
the pollutant(s) or pollution causing or expected to cause each
waterbody's impairment are important elements of each State list. The
CWA provides States, Territories and authorized Tribes broad discretion
in deciding how to rank their listed waterbodies. Adding a requirement
that States must assign waterbodies a priority ranking of either
``high,'' ``medium,'' or ``low'' will enhance national consistency and
help States and the public understand the relative significance of
establishing TMDLs on specific waterbodies. EPA is proposing that all
impaired and threatened waterbodies and pollutant combinations for
which the impairment contributes to a violation of an MCL in waters
where the designated use is public drinking water supply or in which a
threatened or endangered species is present, be assigned a high-
priority ranking by States, Territories and authorized Tribes. However,
if a State, Territory or authorized Tribe shows that the impairment
does not affect threatened or endangered species, it is not required to
assign a high priority to that waterbody.
As noted earlier in section 4.a
s public drinking water supply or in which a
threatened or endangered species is present, be assigned a high-
priority ranking by States, Territories and authorized Tribes. However,
if a State, Territory or authorized Tribe shows that the impairment
does not affect threatened or endangered species, it is not required to
assign a high priority to that waterbody.
As noted earlier in section 4.a. of this preamble, States,
Territories and authorized Tribes are required to provide EPA with a
methodology illustrating how they considered the severity of the
impairment and the use of the waterbody in identifying impaired and
threatened waterbodies. Today's proposal requires the same type of
illustration regarding the setting of priorities.
Finally, today's proposal provides, at Secs. 130.28(d) and (e),
that States, Territories and authorized Tribes may consider additional
factors such as efficiencies gained by establishing TMDLs for all
pollutants that cause or contribute to impairment of a listed
waterbody; establishing TMDLs for single or multiple pollutants in
multiple waterbodies on a watershed scale; the vulnerability of
particular waterbodies; the value of particular waterbodies; the
recreational, economic and aesthetic importance of particular
waterbodies; the cost and complexity of establishing and implementing
TMDLs; degree of public interest and support; and State, Territorial or
authorized Tribal policies in setting priorities. All of the above
factors are important and they should be considered when setting
priorities. Consideration of these factors will help States,
Territories, authorized Tribes and stakeholders set priorities
efficiently and in recognition of larger environmental and community
needs.
Section 130.32(b) provides that States, Territories and authorized
Tribes must establish TMDLs in accordance with the priority rankings
established in accordance with Sec. 130.28
d when setting
priorities. Consideration of these factors will help States,
Territories, authorized Tribes and stakeholders set priorities
efficiently and in recognition of larger environmental and community
needs.
Section 130.32(b) provides that States, Territories and authorized
Tribes must establish TMDLs in accordance with the priority rankings
established in accordance with Sec. 130.28. EPA does not, however,
intend to disapprove an otherwise approvable TMDL simply because it was
not developed in accordance with a State's, Territory's or authorized
Tribe's schedule or the priority ranking assigned to the waterbody on
the section 303(d) list. EPA does not believe disapproving such a TMDL
is required by section 303(d) or consistent with the goal of
implementing TMDLs which conform with applicable water quality
standards. EPA may, however, consider the extent to which a State,
Territory or authorized Tribe is developing TMDLs that are not in
accordance with its priority rankings and schedule when making a
decision under Sec. 130.36(a) to step in and establish TMDLs. For
example, if a State, Territory or authorized Tribe is ignoring its high
priority waters and submitting too many low or medium priority TMDLs,
EPA may decide to establish some high priority TMDLs itself.
Other options considered. In developing today's proposal, EPA
considered other options for addressing the statutory requirement for
priority ranking. EPA considered proposing a more prescriptive approach
than the existing regulations and specifying factors that States,
Territories or authorized Tribes would have to consider when
determining whether to rank a particular waterbody as high, medium or
low
ons considered. In developing today's proposal, EPA
considered other options for addressing the statutory requirement for
priority ranking. EPA considered proposing a more prescriptive approach
than the existing regulations and specifying factors that States,
Territories or authorized Tribes would have to consider when
determining whether to rank a particular waterbody as high, medium or
low. The factors considered include the type and individual
characteristics of the pollutant, e.g., toxic chemical, sediment; the
use of the waterbody, e.g., drinking water, cold water sport fishery;
the degree of impairment, e.g., numeric rankings; the difficulty and/or
time involved in establishing the TMDL, e.g., most difficult TMDLs
established first or in the alternative ranked lower to allow more time
for the technical work necessary to establish a TMDL; or the amount of
time expected to attain or maintain water quality standards. EPA also
considered deferring entirely to State discretion on deciding how to
rank waterbodies and not even requiring a basic high, medium or low
ranking. In selecting the approach proposed today, EPA also considered
the FACA Committee's recommendations to address this issue in guidance
and balanced the importance of national consistency with the need for
State latitude in setting priorities. EPA has determined that it is
appropriate to require States to assign rankings of high, medium or low
priority to each listed waterbody. EPA also considered not specifically
requiring that waterbodies with designated uses as public water
supplies in which there is a violation of an MCL or in which a
threatened and endangered species is present be designated ``high''
priority. EPA proposes to address these waters specifically because it
is important that these waterbodies be scheduled for TMDL establishment
as soon as possible and EPA wanted to make sure that human health and
endangered and threatened species concerns were
er
supplies in which there is a violation of an MCL or in which a
threatened and endangered species is present be designated ``high''
priority. EPA proposes to address these waters specifically because it
is important that these waterbodies be scheduled for TMDL establishment
as soon as possible and EPA wanted to make sure that human health and
endangered and threatened species concerns were
appropriately considered by all the States, Territories and authorized
Tribes. EPA also considered the option of making human health and
species concerns one (but not a determinative) factor in deciding
whether to rank a waterbody in the ``high'' category.
EPA also considered whether to retain the current regulatory
requirement that States, Territories and authorized Tribes identify the
waterbodies targeted for TMDL establishment over the next two years in
lieu of a new requirement that States, Territories and authorized
Tribes develop a comprehensive schedule for establishing TMDLs for all
waterbody and pollutant combinations on Part 1 of the list. However, as
explained in section 4.e, below, EPA agreed with the FACA Committee's
recommendation for a regulatory requirement that States, Territories
and authorized Tribes develop overall schedules for TMDL establishment
and today proposes to delete the targeting requirement.
EPA also considered providing different TMDL priority ranking
requirements for impairments or threats resulting from ``extremely
difficult to solve'' problems. An example impairment of this type is
contaminated sediments which often result from the legacy of past
introduction of pollutants. In many cases, the pollutant causing the
impairment or threat is no longer being discharged. Allocations and
cleanup may be difficult and require additional time to establish TMDLs
or attain or maintain water quality standards
mely
difficult to solve'' problems. An example impairment of this type is
contaminated sediments which often result from the legacy of past
introduction of pollutants. In many cases, the pollutant causing the
impairment or threat is no longer being discharged. Allocations and
cleanup may be difficult and require additional time to establish TMDLs
or attain or maintain water quality standards. EPA did not propose that
extremely difficult to solve problems be treated any differently
because waterbodies with these types of impairments may require action
sooner, rather than later, particularly when they meet the high
priority requirements established by the proposal.
Comments sought. EPA seeks comment on today's proposal to require
States, Territories and authorized Tribes to assign a high, medium, or
low priority to each listed waterbody and delete the current targeting
requirement. EPA seeks comments on requiring that impaired waterbodies
with designated uses as public drinking water supplies and for which
there is a violation of an MCL due to the impairment be ranked as high-
priority for establishment of TMDLs. EPA also seeks comments on
requiring that impaired waterbodies with endangered and threatened
species present be ranked as high-priority for establishment of TMDLs,
unless a State, Territory or authorized Tribe shows that the impairment
does not affect the species. EPA seeks comment on what types of
impairments, if any, should be considered difficult to solve and
whether these types of impairments should be treated differently as
priorities for establishing TMDLs are set. It also seeks comments on
the other options considered and any alternatives for ensuring that
human health and aquatic species concerns be given appropriate weight
in making listing decisions. EPA also seeks comment on whether to allow
the States, Territories and authorized Tribes to consider factors in
addition to the statutory factors in establishing priority rankings
lishing TMDLs are set. It also seeks comments on
the other options considered and any alternatives for ensuring that
human health and aquatic species concerns be given appropriate weight
in making listing decisions. EPA also seeks comment on whether to allow
the States, Territories and authorized Tribes to consider factors in
addition to the statutory factors in establishing priority rankings.
EPA solicits comments on any or all aspects of the proposal, including
the options considered. After considering all comments received and any
additional information that may become available, EPA may include any
of the options discussed here in the final rule.
e. Establishing a Schedule for TMDL Development
Existing requirements. Existing statutory and regulatory
requirements do not call for States to develop or submit to EPA a
schedule for developing TMDLs for all listed waterbodies. Current
regulations simply require that States identify, within their priority
rankings, those waterbodies for which TMDLs will be targeted for
development over the next two years.
The FACA Committee strongly endorsed a regulatory requirement that
States, Territories and authorized Tribes establish TMDLs according to
an expeditious schedule. One of the reasons for the committee's
recommendation is the historically low numbers of TMDLs established by
States, Territories and authorized Tribes. In reaching agreements with
some of the plaintiffs in recent litigation over TMDLs, EPA has
recognized the importance of timely TMDL establishment and has
committed to ensuring the establishment of TMDLs for all listed
waterbodies within time frames similar to that recommended by the FACA
Committee.
In August 1997, EPA's Assistant Administrator for Water issued a
policy memorandum specifically asking States, Territories and
authorized Tribes to develop 8-13 year schedules for establishing TMDLs
for all listed waterbodies, beginning with the lists submitted to EPA
in 1998
ablishment of TMDLs for all listed
waterbodies within time frames similar to that recommended by the FACA
Committee.
In August 1997, EPA's Assistant Administrator for Water issued a
policy memorandum specifically asking States, Territories and
authorized Tribes to develop 8-13 year schedules for establishing TMDLs
for all listed waterbodies, beginning with the lists submitted to EPA
in 1998. The August 1997 policy memorandum also described several
factors that States should consider in developing their schedules.
These factors, echoed in part by the FACA Committee's recommendations,
include: the number of waterbodies on a list, including the length of
river miles and number of lake acres impaired or threatened; the number
and complexity of TMDLs to be established; the availability of data or
models; and the relative significance of the environmental harm or
threat. The FACA Committee recommended that EPA regulations require
States, Territories and authorized Tribes to develop expeditious
schedules of not more than 8-15 years for establishing TMDLs for listed
waterbodies.
Proposed rule. Today's proposal, at Sec. 130.31, eliminates the
current regulatory requirement that States, Territories and authorized
Tribes, in their priority rankings, identify those waterbodies for
which TMDLs will be established over the next two years. EPA is today
affirming its August 1997 policy direction and the FACA Committee's
recommendation and is requiring that States develop comprehensive
schedules for establishing TMDLs for all waterbodies included on Part 1
of the list (as described in section 4.c, above). Today's proposal
requires that such schedules be as expeditious as practicable, provide
for a reasonable pace of establishing TMDLs over the life of the
schedule and not extend beyond 15 years
A Committee's
recommendation and is requiring that States develop comprehensive
schedules for establishing TMDLs for all waterbodies included on Part 1
of the list (as described in section 4.c, above). Today's proposal
requires that such schedules be as expeditious as practicable, provide
for a reasonable pace of establishing TMDLs over the life of the
schedule and not extend beyond 15 years. In addition, today's proposal
recommends that TMDLs for high priority waterbody and pollutant
combinations on Part 1 of the list should be scheduled for
establishment before medium and low priority waterbodies. Setting an
overall time requirement for TMDL establishment, as well as requiring a
reasonable pace of TMDL establishment over the duration of the
schedule, will encourage timely, concerted action by States,
Territories and authorized Tribes leading to increased numbers of
approved TMDLs.
The proposed requirement to establish a schedule for TMDL
development is consistent with the language of section 303(d), which
requires States to submit TMDLs for listed waterbodies beginning 180
days after the Administrator identifies the pollutants suitable for
TMDL calculation, and ``from time to time'' thereafter. The Act does
not define ``from time to time,'' and therefore EPA today proposes to
define that term to mean submission of TMDLs at a reasonable pace over
no more than the next fifteen years. In addition, EPA proposes that
State, Territorial and authorized Tribal schedules should provide for
establishment of high-priority TMDLs before TMDLs are established for
medium and low-priority waterbodies. It is reasonable to expect States,
Territories and authorized Tribes to establish TMDLs for high priority
waterbodies on Part 1 of their lists before establishing TMDLs for
lower priority waterbodies. While the number
State, Territorial and authorized Tribal schedules should provide for
establishment of high-priority TMDLs before TMDLs are established for
medium and low-priority waterbodies. It is reasonable to expect States,
Territories and authorized Tribes to establish TMDLs for high priority
waterbodies on Part 1 of their lists before establishing TMDLs for
lower priority waterbodies. While the number
of such waterbodies will differ from State to State, as will complexity
of TMDL development and resource availability, the proposed provision
should allow sufficient time for even those States with a relatively
large number of high-priority waterbodies on Part 1 of their lists to
establish TMDLs for waterbodies consistent with the requirements of
section 303(d) that priority rankings take into account the uses to be
made of waterbodies and the severity of the impairment when setting
priorities for establishing TMDLs.
Today's proposal recognizes the statutory requirement that States,
Territories and authorized Tribes assign a priority ranking to each
listed waterbody. EPA recognizes that there are a number of ways that
States, Territories and authorized Tribes may schedule TMDLs for
establishment and implementation. These include focusing on waterbodies
concurrently that are impaired by a particular pollutant or category or
subcategory of sources or that share common ecosystem characteristics.
EPA intends the prioritization and scheduling provisions in today's
proposal to be flexible enough to accommodate such considerations.
EPA also recognizes and supports the watershed approach, under
which States, Territories, and authorized Tribes may choose to
establish all TMDLs in the same watershed at the same time. EPA
strongly supports the watershed approach, but wants to ensure that
States, Territories, and authorized Tribes do not depart too far from
their priority rankings. EPA invites comment on the best way to
integrate the statutory requirement for priority rankings with the
watershed approach
tories, and authorized Tribes may choose to
establish all TMDLs in the same watershed at the same time. EPA
strongly supports the watershed approach, but wants to ensure that
States, Territories, and authorized Tribes do not depart too far from
their priority rankings. EPA invites comment on the best way to
integrate the statutory requirement for priority rankings with the
watershed approach.
EPA recommends that States, Territories and authorized Tribes adopt
a goal to establish TMDLs for all high-priority waterbodies within five
years. EPA considered the FACA Committee recommendation that all high-
priority TMDLs be required to be established within five years. Today's
proposal, however, reflects that many States, Territories and
authorized Tribes will have more high-priority waterbodies than can
reasonably be expected to be established within five years based on
available resources. EPA also understands that it may not make sense
for States, Territories and authorized Tribes to individually schedule
every TMDL, especially those with medium or low priority. States,
Territories and authorized Tribes may schedule groups of TMDLs, on a
watershed or some other appropriate basis, for TMDLs to be established
in later years of the schedule.
Other Options Considered. In developing today's proposal, EPA
considered several options. For example, EPA considered maintaining the
current regulatory requirement that States, Territories and authorized
Tribes identify only those waterbodies for which TMDLs will be
developed over the next two years, and not requiring States to develop
an overall schedule for TMDL establishment. EPA did not propose this
option, even though it is often difficult to estimate the amount of
time needed to develop TMDLs, especially when lists may include
hundreds of impaired or threatened waterbodies. It is desirable for
States, Territories and authorized Tribes to plan, on a long-term
basis, for the establishment of all needed TMDLs
to develop
an overall schedule for TMDL establishment. EPA did not propose this
option, even though it is often difficult to estimate the amount of
time needed to develop TMDLs, especially when lists may include
hundreds of impaired or threatened waterbodies. It is desirable for
States, Territories and authorized Tribes to plan, on a long-term
basis, for the establishment of all needed TMDLs. Moreover, many
States, Territories and authorized Tribes have adopted, or are moving
toward adopting, a rotating basin or watershed approach to water
quality management. Under such an approach, States, Territories and
authorized Tribes generally work sequentially through each of their
basins on a five year cycle. They may collect data in a basin in the
first year, analyze the data in the second year to assess the water
quality in the basin, establish TMDLs and other management strategies
in the third year, implement TMDLs and management strategies in the
fourth year, and monitor for progress in the fifth year. Developing an
overall schedule for TMDL establishment allows States, Territories and
authorized Tribes to ensure compatibility between their rotating basin
approaches and TMDL establishment.
Comments sought. EPA seeks comments on the proposed approach to
require States, Territories and authorized Tribes to develop schedules
for the establishment of TMDLs for all waterbodies on Part 1 of the
list. EPA also seeks comments on the proposed requirement that States,
Territories and authorized Tribes should schedule all high priority
TMDLs for establishment before establishing TMDLs for medium and low-
priority waterbodies. EPA solicits comments on any or all aspects of
the proposal, including the options considered and may adopt any of the
options discussed here in the final rule.
f. Submission of Lists, Priority Rankings, Listing Methodologies, and
Schedules to EPA
Existing requirements. The statute and existing regulations require
States to submit their lists to EPA for review and approval
iority waterbodies. EPA solicits comments on any or all aspects of
the proposal, including the options considered and may adopt any of the
options discussed here in the final rule.
f. Submission of Lists, Priority Rankings, Listing Methodologies, and
Schedules to EPA
Existing requirements. The statute and existing regulations require
States to submit their lists to EPA for review and approval. Section
303(d) provides EPA with 30 days from the date of a State's submittal
to either approve or disapprove the list. If EPA disapproves the list,
EPA has an additional 30 days to establish the list. Existing
regulations specify that the lists submitted by States to EPA for
review must include the identification of the pollutant or pollutants
causing or expected to cause the impairment or threat, the priority
ranking of listed waterbodies, and the waterbodies identified for TMDL
development over the next two years. Existing regulations also require
States, Territories and authorized Tribes to submit to EPA their
listing methodology; existing regulations do not, however, provide for
EPA review and approval or disapproval of the methodology. Under the
existing regulations, State, Territorial and authorized Tribal lists
are to be submitted to EPA every two years, on April 1 of every even-
numbered year.
Proposed rule. Today's proposal at 40 CFR 130.27(b) maintains the
existing regulatory requirement that State, Territorial and authorized
Tribal waterbody lists identify the pollutant(s) and/or pollution
causing or expected to cause the impairment or threat, and the priority
rankings of waterbody/pollutant combinations. Lists of impaired and
threatened waterbodies must be submitted to EPA for review and approval
or disapproval. As required by the statute, EPA will have 30 days to
review and approve or disapprove each list. Today's proposal, at
Sec
s identify the pollutant(s) and/or pollution
causing or expected to cause the impairment or threat, and the priority
rankings of waterbody/pollutant combinations. Lists of impaired and
threatened waterbodies must be submitted to EPA for review and approval
or disapproval. As required by the statute, EPA will have 30 days to
review and approve or disapprove each list. Today's proposal, at
Sec. 130.30(e), provides that EPA may establish a list of impaired and
threatened waterbodies, including pollutant/pollution combinations and
priority rankings,
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