Nonpoint Source News-Notes, October 2000, Issue 62
EPA Administrator Carol Browner signed a final rule to strengthen the TMDL program on July 11. This important national program, established under section 303(d) of the Clean Water Act, provides the framework for identifying and cleaning up polluted waterbodies. The rulemaking had been under development for several years.
The rule is subject to a rider attached to the fiscal year 2001 Military Construction/Supplemental Appropriations bill that expressly prohibits EPA from using any funds to implement new rules to the TMDL program. Because the bill was still awaiting the President's signature when the Admini- strator signed the rule, the rider did not prevent promulgation of the rule. However, as a consequence, the final rule will not become effective until October 1, 2001. While implementation of the new rule is interrupted by enactment of the rider, the program will operate under the "old" rule.
In August 1999, EPA proposed changes to its existing regulations to clarify and strengthen the authorities of EPA, states, territories, and authorized tribes to implement the TMDL program. EPA considered more than 34,000 comments on the proposed rulemaking and talked with hundreds of people in public outreach and information-sharing sessions. EPA made many final changes to the regulations as a result of public comment, including dropping the requirement to list "threatened" waters, eliminating the requirement that states give higher priority to certain impaired waters, and removing provisions that would have required new permits for forestry operations.
The final rule will
For the first time, a federal judge has upheld EPA's longstanding interpretation and practice that EPA and the states have the authority to identify which U.S. waterways are polluted by runoff from urban areas, agriculture, and timber harvesting - nonpoint sources of pollution - and to identify the maximum amount of pollutants that may enter these waterways. The court stated that TMDLs are authorized for nonpoint sources and that "no substandard river or water was immune by reason of its sources of pollution." "This important decision allows us to build on our successes of completing the task of cleaning our nation's waters," said EPA Administrator Carol Browner. "The Clinton-Gore Administration has made delivering clean, safe water to all Americans a priority in our efforts to ensure greater protection for the environment in communities across the country." The March 30 opinion by U.S. District Judge William Alsup in San Francisco affirms the comprehensive scope of the Clean Water Act's TMDL program. In the first decision to squarely address the issue, Judge Alsup found that Congress intended to include nonpoint source pollution in the Clean Water Act's water quality standards program, and he noted that nonpoint source pollution is the dominant water quality problem in the United States today. "The court has affirmed a strong tool for restoring America's rivers and cleaning up pollution, regardless of its source, " said Lois Schiffer, Assistant Attorney General for the Environment Division of the Justice Department. The court heard a challenge to an EPA decision to put the Garcia River on a list of impaired waterways in California and define the amount of sediment that should be allowed to enter from land along its banks. Although salmon and steelhead once flourished in the Garcia River, excessive sediment from forestry operations now prevents the river from supporting healthy fish. In March 1998, EPA developed a TMDL for sediment for the river. The Agency also defined the reductions in sediment that are necessary for the river to attain the water quality standard set by the state of California. The American Farm Bureau Federation and other agriculture and timber groups filed suit, claiming that EPA and the states should calculate TMDLs only for pollutants that are discharged from pipes, known as point sources. The court rejected this argument, holding that the Clean Water Act is designed to provide a comprehensive solution to the nation's water quality problems, "without regard to the sources of pollution." In California, only 1 percent of impaired waterways fail to meet water quality standards solely because of pollution that comes from pipes, municipal waste treatment works, or other point sources. According to EPA, 54 percent of California's impaired waterways are polluted by nonpoint sources exclusively, while another 45 percent are impaired by a combination of point and nonpoint sources. |
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