This is just the first of 4 documents related to the topic. Follow the link in the document to see the entire proposal.
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.
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:
(Select the following to go to:) 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: ow-docket@epa.gov. 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.
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. 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:
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.
Existing regulations define a TMDL as a quantitative assessment of a water quality problem. The TMDL specifies the amount of a particular pollutant that may be present in a waterbody, allocates allowable pollutant loads among sources, and provides the basis for attaining or maintaining water quality standards. TMDLs are established for waterbody and pollutant combinations for waterbodies impaired by point sources, nonpoint sources, or a combination of both point and nonpoint sources.
Indian Tribes may be authorized to establish TMDLs for waterbodies within their jurisdiction. To date, however, no Tribe has sought or received CWA authority to establish TMDLs.
2. What Was the TMDL Federal Advisory Committee Act (FACA) Committee and What Did It Do?
In November 1996, EPA established a Federal Advisory Committee Act Committee (FACA Committee) to provide recommendations on improving regulations and guidance 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
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. 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 (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. 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. 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. 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. 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.
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)
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 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. 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. 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. 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. 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. 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. 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..
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.
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. 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). 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. 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; (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. 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. 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 . . . 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. 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.
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 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. 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. 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. 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. 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
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