The State Water Resources Control Board held a Workshop/Public Hearing on the Garcia River Water Quality Attainment Strategy for Sediment (TMDL Implementation Plan for Pollution Reduction.
The Board heard (again) testimony on the impaired nature of the Garcia River and other northcoast rivers. Forest Practices were noted as the primary land use problem in the Garcia, with agricultural practices a lessor contributor, but still a factor.
The agricultural community stated that they protest being included in a non-point source program under 303 (d), stating that the Clean Water Act does not include them. However, they agreed to support the TMDL implementation plan and voluntarily meet planning and pollution control requirements.
The timber community (in the form of Mr. Mark Rentz) stated the SWRCB was usurping the responsibility of the Board of Forestry and CDF to implement forest practices under the Forest Practice Act and in conflict with the Act. He stated that they have to obey 1,000 rules in the Forest Practice Rule book and should not be subject to additional regulatory oversight with changes to Basin Plan (Water Quality Control Plan). The SWRCB and their Counsel disagreed. The matter was put on the Consent Calendar for approval.
Thank you to all who have supported the Garcia River TMDL and other TMDLs.
TMDLs can be very effective in protecting and rehabilitating your watershed. On rivers with approved federal TMDLs - but no State adopted implementation plan, fight to get the agencies to respect the Federal TMDLs (South Fork Trinity, South Fork Eel, Noyo, Yager Ck, Redwood Ck.). I will gladly pursue this agenda with you.
REMIND THEM:
1) The Forest Practice Act and the Forest Practice Rules stated objective is consistency with the Porter Cologne Water Quality Control Act.
2) Porter Cologne Water Quality Control Act, Water Code Section 13160, objective of consistency with the Federal Clean Water Act mandates must be met.
3) Under Porter Cologne, the MAA, the Forest Practice Rules, THP administration must meet Basin Plan anti-degradation requirements:
State Anti-degradation Policy (Basin Plan, Chapter 3, Water Quality Objectives):
"Controllable water quality factors shall conform to the water quality objectives contained herein. When other factors result in the degradation of water quality beyond the levels or limits established herein as water quality objectives, then controllable factors shall not cause further degradation of water quality. Controllable water quality factors are those actions, conditions, or circumstances resulting from man's activities that may influence the quality of waters of the State and that may reasonably be controlled."
4) Forest Practice Rules Section 916.9 (a) (1) states:
(a) ".......Every timber operation shall be planned and conducted to meet the following objectives where they affect a primary limiting factor: (1) Comply with the terms of a Total Maximum Daily Load (TMDL) that has been adopted to address factors that may be affected by timber operations if a TMDL has been adopted, or not result in any measurable sediment load increase to a watercourse system or lake."
Note: this rule [916.9 (a) (1)] merely states CDF responsibility to enforce Basin Plan Guidelines as well as TMDL mandates.
PLEASE NOTE CHANGES IN THE FEDERAL RULES BELOW.
Summary of New Federal TMDL Rules
EPA's New Rule for the TMDL Water Pollution Clean-Up Program
Outlined below is a description of the new Total Maximum Daily Load (TMDL) rule. Several Clean Water Network groups have closely analyzed the new rules and worked together to create what we consider to be a balanced summary of the new TMDL rule and how it compares to the existing rule and proposed rule, as well as the statute, guidance, and results from litigation. (These terms are defined in a glossary at the end of this document.) This is not meant to be a comprehensive treatise on the new rule, but a general summary to inform Network members about how the TMDL program would be different under the new rule.
Nobody believes the new rule is without significant flaws. Some Network members believe that, primarily because of the implementation plan, the new rule is a significant step toward a long-term clean-up of our most polluted waters. Others believe that the new rule is a significant step backward, primarily because the timelines are too long, especially in light of the lack of certainty that TMDLs under the new rule will succeed. Even if these rules survive Congressional pressure and legal challenges, the answer may not be clear for years to come.
The new rule will take effect 30 days after Congress allows the rule to be implemented. Currently, a Congressional "rider" has blocked the implementation of the new rule until October 1, 2001. If Congress does not extend the implementation prohibition on the new rule, it can take effect 30 days from that date. In the time period before Congress allows EPA to implement the new rule, the existing TMDL regulations will remain in place and EPA and the States must continue to implement the TMDL program under the existing rules.
Summary of Major Provisions
Listing. The new rule requires States to adopt clear listing methodologies (procedures and criteria for listing impaired waters) after public notice and comment. The list is required to be in 4-parts: 1) waterbodies impaired by "pollutants" as defined in the Clean Water Act, regardless of source (TMDL required), 2) waterbodies impaired by reduced flow and other "conditions of pollution" (TMDL not required), 3) waterbodies that have an approved TMDL but that have not yet met water quality standards, and 4) impaired waterbodies where a State or Tribe has demonstrated that water quality standards will be met through the implementation of technology-based effluent limits by the next listing cycle in 4 years (TMDL not required at this time).
The lists must be comprehensive and contain no exemptions based on the source of the pollution. Waters are maintained on the list until water quality standards are attained. States may submit the entire list or parts 2, 3, and 4 of their list in their 305(b) report instead of the 303(d)(1) list as long as these waterbodies are clearly identified as part of the 4-part 303(d) list. The new rule explains how antidegradation should be factored into listing decisions. Consistent with the statute, the new rule requires States to list waters that are "expected to meet" standards by the next list (Part 4 of the list), although States do not have to schedule TMDLs for such waters. This temporary exemption from TMDL scheduling only applies to waters where controls are enforceable by law or regulation and can only be done once before waterbodies are moved to Part 1 of the list (unless the failure to attain standards is due to NPDES violations). The new rule does not require TMDLs for "pollution" (e.g., flow, dams) where there are no pollutants, as under the existing rules and consistent with the language of the statute.
Threatened Waters. Existing rules require listing and developing TMDLs for "threatened waters" -- those that currently meet water quality standards but which reliable data show will not meet standards by the date of the next listing cycle. The proposed revisions to the rule would have maintained that requirement, but it was dropped in the final version of the new rule, which allows but does not require listing threatened waters.
Listing Cycle and Interim Listing and Delisting. The rule changes the 2-year listing cycle for listing impaired waters to 4 years. In addition, States can modify lists of impaired waters on an interim basis, adding or removing waters based on new data or information.
Schedules. The new rule requires States to prepare and submit for EPA review and approval detailed schedules with an emphasis on completing currently listed TMDLs within 10 years, a requirement that the work be evenly paced over that period and that TMDLs be set "as expeditiously as practicable." However, a State can obtain up to a 5-year extension if 10 years "is not practicable," for a total of 15 years to establish TMDLs. The 15-year timeframe starts on July 10, 2000 or the first time the waterbody is listed on Part 1 of the list, whichever is later. Existing rules contain no time limit, though it is clear from deadlines and goals in the Clean Water Act that Congress intended States and EPA to identify all impaired waters and begin setting TMDLS for those waters decades ago.
A 1997 EPA policy guidance suggested 8 to 13-year schedules from the April 1998 list. This 8 to 13-year schedule in guidance was based roughly on results of litigation (judicial orders and settlements), although some cases had resulted in both shorter and longer schedules (from 5 years to 20 years). The additional 2 years (i.e. up to 15 total) are intended to account for the additional effort required to prepare implementation plans as part of each TMDL. It is difficult to compare the 10 to 15-year timeframe in the new regulations with the schedules in consent decrees and orders. Decrees and orders are judicially enforceable deadlines with which EPA must comply or be held in contempt of court. If EPA misses a regulatory deadline, it can takes years to enforce in court and, if successful, a consent decree or order in a schedule case will give the EPA additional years to comply. On the other hand, in States where EPA has prevailed in TMDL litigation, or in States where there has been no litigation, there is no enforceable deadline or schedule contained in the existing rule.
Under the new rule, States can modify their schedules at any time, either on or between listing cycles, with EPA approval. The rule requires that revisions not reduce the number of waters a State has scheduled within the first 4 years of each listing cycle, but revisions could include proposals to move certain waters scheduled within the first 4 years to be delayed until later in the schedule if another water was added to the list or moved up in the schedule. Revisions can also allow States to propose to push back waters scheduled for later than 4 years as long as the overall schedule remains "evenly paced." The existing rules do not require full schedules, although guidance had instructed States to submit them. Neither the existing nor the proposed rules called for EPA review and approval of schedules submitted by States.
EPA Backstop of State Lists of Polluted Waters and Schedules. The new rule requires EPA to establish lists of polluted waters and schedules for TMDL development within 30 days of disapproving a State's list and schedule. Under the new rule, EPA is also required to establish lists of polluted waters and schedules for TMDL development where a State does not submit any list and schedule by April 1 of 2002 (and every 4 years thereafter), however, the new rule contains no deadline for when EPA must establish lists in this circumstance. The existing rules require only that EPA establish lists when it had disapproved state lists, not when States had failed to submit a list, and do not require EPA to prepare schedules for States that did not do so.
Priorities. Under the statute and existing rule, States are required to prioritize establishment of TMDLs taking into account the severity of the pollution and the uses to be made of the waters. Guidance documents explained numerous additional factors that could be taken into account in prioritizing waters for TMDL development. Under the final version of the new rule, States must emphasize drinking water and endangered species in prioritization, unless they explain why that is not appropriate. Thus, the new rule does not require this prioritization as the August 23, 1999 did. In addition, the new rule continues to allow States to set priorities using factors other than those in the statute as long as they explain how other factors were used. The rule does not establish a time frame in which high priority TMDLs must be done nor address the urgency of addressing toxic contaminants that are affecting people, fish, and wildlife.
Definition of TMDL. The new rule emphasizes that TMDLs remain quantitative while also being action-forcing plans that lead to attainment of water quality standards. It expands the definition of TMDLs to include, among other specific items: 1) the deviation from existing loading (needed to assess the degree of controls required to reduce nonpoint source contributions to their allocations), 2) identification of sources, 3) identification of reasonably foreseeable increases in pollution from growth, 4) seasonal variations and a margin of safety (see discussion below) and 5) an implementation plan. More specificity concerning load allocations for nonpoint sources is required, if feasible, and must include a technical analysis to demonstrate the nonpoint source load allocations will lead to attainment (reasonable assurance). The existing rules defined a TMDL to be the sum of the wasteload allocations, the load allocations, and background, taking into account seasonal variations and a margin of safety. The proposed rule would have explicitly allowed TMDLs to be established as annual, seasonal, or monthly instead of daily. This language was dropped from the final version of the new rule.
As with the statute and existing rules, the new rules require that TMDLs both attain and maintain compliance with all water quality standards, including narrative criteria and designated uses. As with the existing rules, the new rules allow TMDLs to be expressed as "mass per time, toxicity, or other appropriate measure." The new rules identify the need for TMDLs to address aquatic and riparian habitats and biological, channel, geomorphological and other conditions that represent compliance with standards. Existing rules are silent on the goal of TMDLs, but the statute makes clear that TMDLs are to meet water quality standards.
Seasonal Variations. The new rule defines for the first time this important statutory term. The rule states that TMDLs must take into consideration seasonal variations so that water quality standards will be attained "in all seasons of the year and during all flow conditions." This change addresses, among other things, nonpoint pollution created during high flow or wet weather periods.
Margin of Safety. The new rule clarifies the statutory requirement that each TMDL must include a margin of safety by stating that the margin of safety "appropriately accounts for uncertainty related to the TMDL, including uncertainties associated with pollutant loads, modeling water quality, and monitoring water quality." This provision is intended to ensure that TMDLs account for the often large margins of error in the data and modeling used to calculate these pollution limits. Like the existing rules, the new rule allows the margin of safety to be expressed as conservative assumptions.
Federal Discharge Permits. The rule requires that EPA revise NPDES discharge permits within 2 years of the TMDL where it is the issuing agency and creates a 1-year time limit on administratively extended permits following the development of a TMDL. The rule acknowledges that TMDLs may affect sources operating under general discharge permits but does not specify how they will be dealt with. The existing rules were silent on the issue of NPDES permit revisions following development of a TMDL. Previous guidance suggested regions could review and object to NDPES permits in States that refused to engage in constructive discussions about nonpoint source controls. This guidance did not address the problem of extended administrative continuances for permits.
Implementation Plans. TMDLs will have to include implementation plans that are reviewed and approved or disapproved by EPA. The requirements for the content of the plans vary depending upon whether the water is impaired by point sources, nonpoint sources, or a combination. The plans include, among other components, estimated dates for attainment of standards, follow-up monitoring or modeling, TMDL revisions, descriptions of controls and how they will be used to further reduce pollution if they do not work initially, a schedule for using controls, and interim measurable milestones. In addition, implementation plans must include criteria for determining when a TMDL will not result in the attainment of standards; any waterbodies not meeting standards must be re-listed under Part 1 of the § 303(d) list. The existing rules did not require implementation plans but anticipated implementation through incorporation of TMDLs in state water quality management plans developed under Section 303(e).
Assuring Implementation. "Reasonable assurances" must be provided that all projected load reductions will be achieved. Existing TMDL regulations do not address this issue. Existing NPDES regulations required findings of reasonable assurance for nonpoint source controls where the loadings for point sources depended on load reductions from nonpoint sources. Existing TMDL guidance requires "reasonable assurance" for TMDLs that relieve point sources from reductions based on anticipated nonpoint source reductions and suggests that state implementation plans developed as revisions to state water quality management plans (WQMPs) were to demonstrate reasonable assurances for all nonpoint sources. Under this scheme, however, EPA did not review the implementation plan as part of its decision to approve or disapprove TMDLs. Under the new rule, "reasonable assurance" for nonpoint sources will be based upon a showing of voluntary, incentive-based, or state regulatory strategies ("management measures or control actions") specifically applicable to the pollutant and waterbody in question, that will be implemented as expeditiously as practicable, through reliable and effective delivery mechanisms, and supported by adequate funding.
The degree of management measures required to implement load allocations to nonpoint sources is limited to those that are "practical and economically achievable." It is unclear how this last-minute change in the final rule will affect the underlying obligation to attain compliance with water quality standards.
Timeframe for Attainment of Water Quality Standards. For all impaired waterbodies, the implementation plan must be based on a goal of attaining and maintaining the applicable water quality standards within 10 years whenever attainment and maintenance within this period is practicable. The existing rules say nothing about when standards should be attained and the proposed rule did not include this goal. The Clean Water Act itself contains an interim goal for meeting water quality standards which provides for the protection of fish, shellfish, wildlife and recreation in and on the water that was to be achieved by July 1, 1983, and a goal of eliminating the discharge of pollutants into waters by 1985. While these goals have not been met, they continue to be a benchmark of what the Act is meant to accomplish, as well as a measure of how far we have to go to fulfill the intent of the Act.
EPA Backstop Role in Developing TMDLs. The statute and both existing and new rules say EPA must develop TMDLs within 30 days when State submissions are disapproved. In addition, under the new rules, EPA must backstop TMDL development where a State fails to meet its schedule for individual TMDLs. EPA has from 2 to 4 years from the end of the year in which the State was scheduled to establish a TMDL but has failed to do so to establish the TMDL itself. Existing rules say nothing about backstopping, but some courts have interpreted the Clean Water Act as imposing a duty on EPA to develop TMDLs when a State has failed to do so on a programmatic basis (constructive submittal of inadequate TMDLs triggers EPA's mandatory duty under the statute). In addition, EPA may establish TMDLs if a State requests, or where interstate and boundary considerations warrant EPA intervention. Existing rules are silent on this issue.
Public Involvement. The new rule strengthens public participation, but not nearly enough. It does not set out clear public involvement requirements, such as exist for federal NPDES discharge permits, except for assuring 30 day comment periods (60 days for draft listing methodology). States are encouraged, but not required, to maintain mailing lists of interested persons.
Silviculture. The final rule does not contain the proposed authority for EPA and the States to require direct discharge permits, on a discretionary, case-by-case-basis, for certain point source discharges from forestry operations. This language in the proposed rule was weak to begin with, and before the rule was finalized EPA had already backed off this provision through a "Joint Agreement" with USDA. The Joint Agreement announced that the provisions would not apply to federally-owned lands, would not apply anywhere for 5 years while States worked on improving voluntary Best Management Practices programs, and that no permits would ever be required in States that now have, or that develop, adequate forest water quality programs. This provision is not in the final version of the new rule due to industry pressure.
Impact on Existing Settlements and Court Orders. Uncertain. After a transition period during which TMDLs will be prepared under existing rules (18 months from July 2000 or 9 months from end of rider, whichever is later), EPA may request extensions from some plaintiffs or, if plaintiffs object, from the courts. EPA cannot change these schedules unilaterally.
Petition Process. Initially proposed, but eliminated in the final version of the new rules.
Offset Provision. Initially proposed, but eliminated in the final version of the new rules.
Glossary
Here is a glossary of the some of the terms used in this document:
Existing Rule = 1985/1992 TMDL regulations, which are the TMDL regulations currently in effect. Non-discretionary duties in regulations are enforceable.
New Rule = the July 2000 regulation that was signed into law but has not been put into effect yet, due to a Congressional rider which forbids EPA from spending any money on them in FY 01. This new rule is different from the rule proposed in August, 1999. The final new rule will not become enforceable until it replaces the existing rule, which won't happen unless or until the rider expires or is revoked and EPA receives funding from Congress to implement the new rules.
Proposed Regulations = the revisions to the TMDL rules proposed on August 23, 1999, and placed in the Federal Register for public comment.
Statute = the Clean Water Act TMDL provisions, at 33 U.S.C § 1313 (Clean Water Act § 303).
Guidance = various 1991-1997 EPA guidance documents. They were written to further instruct the States on how to implement the TMDL program, but are not enforceable.
Results of Litigation = the results of citizen lawsuits brought against EPA to require the agency to implement the TMDL program where states have failed to do so; according to EPA, these suits have resulted in court orders requiring EPA to develop TMDLs in 18 states, have been dismissed with or without a settlement agreement in 11 states, and are pending in 11 other states.
Alan Levine Coast Action Group P.O. Box 215 Point Arena, CA 95468
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