FICTION: The TMDL program requires non-point sources of pollution to be permitted.
FACT: Non-point sources of pollution are NOT required to obtain federal permits. The TMDL program does not allow EPA to require NPDES permits, or any other kind of permits, for non-point sources of pollution such as runoff from agricultural fields. Instead, the power of the TMDL program lies in the fact that it requires states to draw together all the programs of the Act and coordinate them to clean up waters. States develop TMDLs for impaired waters, using watershed specific data to determine sources of pollution and a fair way to divide up responsibility among polluters for lowering water pollution levels.
The program requires that if a state decides to allocate pollutant reductions to a non-point source, there must be a plan put in place to assure the reductions will be made. The plans can be made up of voluntary programs, state regulatory programs or many other means allowed by law. A state could decide to target grant money and staff expertise of the Act's 319 program, state Best Management Practices (BMPS) programs, and other approaches to reduce pollution, but the TMDL program neither authorizes nor requires NPDES permits of non-point sources of pollution. Of course, nothing in the Clean Water Act prevents states from regulating nonpoint sources activities if they choose to do so under state law.
FICTION: EPA does not have the authority to include non-point sources in the TMDL process.
FACT: The TMDL program has always included pollution from non-point sources. Excluding nonpoint sources from the TMDL program would guarantee its failure. Surely this is not what Congress intended in 1972. A TMDL program that doesn't address non-point source pollution would be close to meaningless – EPA estimates that of the waters in need of TMDLs 47% are point source and non-point source combined problems, 43% are non-point only, and only 10% are point source only. over ÜA recent court decision emphatically supported the fact that the Clean Water Act requires the TMDL program to address non-point source pollution. In Pronsolino vs. Marcus, the United States District Court found "…as to whether TMDLs were authorized in the first place for all substandard rivers and waters, there is no doubt. They plainly were and remain so today – without regard to the sources of pollution."
The language of the Clean Water Act supports including nonpoint sources of pollution in the TMDL program. Section 303(d) of the Clean Water Act requires the identification of waters that would not meet water quality standards after the adoption of technology-based NPDES permits for point source discharges and requires the development of TMDLs for those waters. Clearly, waters polluted or impaired by nonpoint sources could not be restored through point source permits and thus should be listed and subject to TMDL development and implementation. A water either meets water quality standards or it doesn't – period. The source of that pollution should be irrelevant under section 303(d). In addition, existing TMDL regulations, developed in 1985, specifically provide for inclusion of non-point source pollution in TMDLs.
FICTION: The program is a top-down, federal approach to water quality controls.
FACT: This could not be farther from the truth. The TMDL program is the ultimate locally-driven watershed clean up process. First, states develop their own water quality standards under the Clean Water Act. States then develop lists of waters in need of clean up because they are not meeting state water quality standards. States prioritize their lists to decide which waters must be cleaned up first. States and localities then collect and analyze water quality data, models, and other information to decide what is the most efficient way to reduce pollution. The EPA only writes TMDLs (or the TMDL lists) if a state fails to develop a TMDL or does an inadequate job. This is a legal duty under section 303(d) for EPA – Congress held EPA responsible for the development of TMDLs where states failed and the courts have held EPA to that responsibility.
FICTION: The program places a huge new burden on the states.
FACT: The statutory TMDL provisions were included in the original Clean Water Act back in 1972. Congress included the TMDL section, largely at the request of the states, to serve as a backstop when the Act's technology-based programs proved unable to achieve the Act's goals of fishable and swimmable waters. The EPA's proposed program changes are simply building on the existing regulations – regulations that were written during the Reagan Administration.
While it is true that the TMDL program has largely not been adequately implemented in the past, that's no reason why it shouldn't be implemented now. In fact, the unfortunate truth is that over 25 years of inaction has brought us to this point – a time when 20,000 waterbody segments are in dire need of a TMDL pollution budget. On the other hand, the proposed changes do add some specificity to the TMDL program – specificity that will lead to some additional resource needs. Hence, EPA has requested budget increases for both the TMDL and non-point source programs in order to increase grants to the states. Some states have already stepped forward and committed additional resources to the restoration of water quality through the TMDL program.
FICTION: The TMDL program revisions create a rush to list and prepare TMDLs in the face of inadequate data on water quality.
FACT: While there is a need for better data on water quality, we have enough data to take action now. The first step in developing a TMDL is to collect additional data within a watershed. This sound science strategy allows local officials to refine the definition of the water quality problem and to begin the process of identifying pollutant loads and sources.
In addition, recent GAO report found that, while data gaps are a problem, the data do serve to identify the country's biggest problems and that additional monitoring would likely turn up more problems, not less. Specifically, the report found that "Even though the state officials we interviewed are confident that they have identified their most serious pollution problems, they nonetheless acknowledge that more thorough monitoring would likely reveal additional waters that do not meet standards" (GAO, March 2000).
FICTION: Existing Best Management Practices are adequate for reducing non-point source pollution, therefore silviculture, agriculture, and other types of non-point source activities that contribute to pollution in an impaired waterway shouldn't be subject to TMDL regulations.
FACT: Where BMPs are demonstrated as successful in restoring and maintaining water quality, nothing more would be required for non-point sources of pollution under the TMDL program. But let's face it: polluted runoff is the largest remaining source of pollution today. Forty percent of recently surveyed waters are unfit for fishing, swimming, aquatic habitat or other uses and 60 percent of that pollution is from non-point sources of pollution. For 28 years, point sources of pollution, particularly from sewage treatment plants and factories, have been required under the Clean Water Act to reduce their pollution through enforceable permits. Federal matching dollars and grants helped municipalities reduce their pollution, and private industry has been required to reduce pollution before it comes out of their pipes.
Only voluntary BMPs and the backstop of the TMDL process are mentioned in the Clean Water Act for reducing non-point source pollution. We provide millions of dollars in grants a year through federal clean water and agricultural programs to help implement BMPs. While these programs should be better funded, a TMDL process is the fairest and most efficient way to allocate responsibility for reducing pollution among all sources of pollution. A TMDL outlines what voluntary BMPs need to be in place for non-point sources along with other enforceable requirements for point sources, in order for the waterbody to meet water quality standards.
For more information on the TMDL program, contact the Clean Water Network at 202-289-2392 or visit the web site at www.cwn.org.
April, 2000.
Alan Levine Coast Action Group P.O. Box 215 Point Arena, CA 95468
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