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Issue Management Services
Designation of TMDLs may Increase Regulatory Requirements
Under pressure from environmentalists, many states are initiating
the designation of Total Maximum Daily Loads (TMDLs) for their most
polluted water bodies. Unlike most regulatory mechanisms which are
targeted at specific point sources of pollutants, TMDLs focus on
a specific water body, and that water body's surrounding watershed.
A TMDL is a measure of the amount of pollution a water body can
receive and still meet surface water quality standards for its designated
uses. The number of specific standards that must be developed is
truly vast. A separate TMDL must be established for each pollutant
in each impaired water body. In Texas, for example, there are over
140 water segments for which TMDLs must be developed.
The development of TMDLs is a critical issue for environmental compliance
because it has the potential to create increased standards for existing
facilities, and may lead to new regulatory requirements for non-point
sources that have not previously been regulated. Furthermore, because
of the focus on water bodies, impacted parties may not be determined
until after the standards are set in the implementation phase. This
fact, combined with the short time frames for TMDL development,
create the potential that states may not solicit significant input
from the regulated community.
The driving force behind the effort to develop TMDLs is civil litigation.
Citizen suits have already been filed concerning TMDL development
in at least 22 states. (Alabama, Alaska, Arizona, California, Colorado,
Delaware, Georgia, Kansas, Louisiana, Maryland, Mississippi, Montana,
New Mexico, New Jersey, New York, North Carolina, Oklahoma, Oregon,
Pennsylvania, Washington, West Virginia, and Wyoming.) 10 of these
suits have resulted in consent decrees. (Alaska, Arizona, California,
Delaware, Georgia, New Mexico, Oregon, Pennsylvania, Washington,
and West Virginia.) Notices of intent to sue have been filed in
Alabama, Florida, and the District of Columbia. However, even states
that are not being sued are beginning the process of 303(d) listing
in order to avoid the stringent deadlines established in consent
decrees.
TMDLs In The Clean Water Act
TMDLs are a part of the complex regulatory scheme required by the
Clean Water Act (CWA). The TMDL program has been on the books since
1972, but has not yet been implemented. The CWA establishes a national
goal of "fishable, swimmable" waters. This goal is achieved
by regulating pollutants entering surface waters (lakes, streams,
rivers). The Act addresses discharges from both point (discharge
pipes) and non-point (agricultural and industrial runoff) sources.
To date there has been little regulation of non-point sources. The
CWA has been implemented mainly through the National Pollutant Discharge
Elimination System (NPDES) permitting program. This program implements
a system for permitting discharges from point sources, such as an
industrial facilities endpipe. Under this system, an industrial
source is required to apply for a permit from either the state or
the USEPA for all discharges to surface waters. The permit will
specify the mass or concentration of permissible discharges of specified
pollutants; termed "effluent limitations". The permit
will also contain monitoring, reporting and treatment requirements
for discharges.
Under the CWA, the regulating authority sets permit limitations
by analyzing 1) technology-based treatment levels and 2) any water
quality based limitation imposed on the water body that the discharger
is contaminating. Until TMDLs are developed, permits in effect incorporate
only technology based limits. These technology based limitations
are based on USEPA's assessment of the capabilities of current treatment
technologies which are both technologically and economically achievable
in the dischargers particular industry.
Technology based treatment levels were intended to establish the
baseline for permit limitations. More stringent treatment requirements
will be incorporated into permit limitations where necessary to
achieve the water quality standards for the water body into which
a facility discharges.
Water quality standards are set by the states and consist of two
components 1) use classifications and 2) criteria to protect assigned
use classifications. The CWA requires all waters to be classified
according to intended use (e.g. drinking water, recreational purposes).
State standards must 1) aim at achieving fishable, swimmable waters
wherever possible and 2) maintain both intended and current uses.
Generally, a state water quality standard is the numeric level of
a pollutant which can not be exceeded in the ambient water in order
to protect the designated use. In some instances, water quality
standards may be expressed in narrative form. In the case of toxic
pollutants, states must establish numerical, rather than narrative,
water quality standards.
The TMDL Regulatory Process
Section 303(d) of the CWA requires states to identify waters for
which technology based limitations are not stringent enough to achieve
water quality standards. These water bodies must be assigned priority
rankings based on severity of pollution and intended uses of the
waters. TMDLs must be developed for these listed waters and be submitted
to USEPA for approval. USEPA must approve or disapprove state 303(d)
listed water bodies within 30 days. If states do not submit lists
or TMDLs, or if state submissions are inadequate, USEPA is required
to establish lists and TMDLs in lieu of the state. States are required
to submit 303(d) lists every two years and to target those waters
for which TMDLs will be developed during the following two years.
The listing process has been protracted and controversial. The development
of TMDLs is very resource intensive. Non-point source pollution,
which has traditionally been difficult to assess and regulate, will
need to be addressed in order to achieve water quality standards.
As a result, very few states have fully complied with the CWA 303(d)
requirements and USEPA has not developed TMDLs in lieu of the states.
Citizen suits are now forcing the states and USEPA to implement
this section of the CWA. The suits focus on 1) the quality of state
303(d) submissions, 2) the adequacy of USEPA oversight of the process,
and 3) the time frame for implementation.
A TMDL is an estimate of the total load of pollutants (from point,
non-point, and background sources) that a segment of water can receive
without exceeding applicable water quality criteria. Once a TMDL
is established, the permitting authority must allocate this total
amount among the various sources discharging into the water body.
To reduce the total inputs down to the TMDL level, states will have
three options, all of which will have severe impacts on the regulated
community. One possibility, recognized by USEPA's TMDL advisory
panel, would be to place prohibitions on new or additional point
source discharges, which could stall local economic growth. Another
possibility will be to be to ratchet down current technology based
permit limitations. This could be done without regard to the economic
feasibility which is considered in setting the technology based
standard. The third option would be to regulate pollution from non-point
sources, which have, as yet, been unregulated.
Fast Track Development
Given the pressure being placed on states to develop TMDLs in a
timely manner, and the technical difficulty inherent in setting
these levels, there is a real danger that regulatory authorities
will implement them in an arbitrary manner. USEPA's own TMDL program
implementation strategy admits that states "may have to choose
between speed and technical rigor."
In order to meet court ordered requirements, there will undoubtedly
have to be regulation of previously unregulated activities and industries.
Given the timetable to which this process must take place along
with the potential consequences across many industries, interested
parties should be proactive in examining what the regulatory agencies
are up to with regard to 303(d) listing and TMDL development.
Mark D. Anderson is Vice President of the Virginia state government
relations firm of Stateside Associates. Jack Welsch is Regulatory
Counsel in the firm's Regulatory Division.
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