September 2000

Jim Fahey
Director of Government Relations
APWA Washington Office

A controversial final rule aimed at restoring polluted waterbodies in the United States was issued this summer by the U.S. Environmental Protection Agency (EPA), despite strong opposition from a number of lawmakers on Capitol Hill. The final rule, signed July 11, 2000, affects EPA’s Total Maximum Daily Load (TMDL) program, which requires states, territories and authorized tribes to identify impaired waters and to set pollution budgets to attain water quality standards. Controls established under the program to achieve water quality standards can affect certain public works programs and operations. The Clean Water Act of 1972 first required TMDLs.

When EPA proposed changes to the existing TMDL program in August 1999, it generated more than 34,000 comments and a storm of protest over proposals to subject certain agricultural and forestry operations to federal permitting requirements. Over the course of this past year, EPA made several revisions to the original proposed rule to address these and other concerns raised by states, Congress and some environmentalists.

Despite the revisions, some in Congress remained adamantly opposed to the rule and sought ways to delay its promulgation. During conference proceedings, a legislative “rider” was added to an appropriations bill, prohibiting EPA from using any funds to finalize or implement the rule before October 1, 2001. Nevertheless, the TMDL rule was signed, i.e. finalized, the day before the appropriations bill was enacted into law, prompting the introduction of legislative initiatives to nullify the rule.

By the start of the month-long August recess, Congress had enacted no further action affecting the final rule. Barring some form of congressional response in September, the rule remains final, but EPA is prohibited until the end of fiscal year 2001 from taking such actions as disapproving TMDLs or making decisions under the new rule. Conducting workshops or conferences to assist agencies and officials with complying with the new rule also would not be permitted.

Although EPA activities under the rule are restricted, deadlines for listing impaired waters under the rule are not postponed because of the congressional delay. Accordingly, some states will meet their first deadline for listing impaired waterbodies in April 2002.

Following is a brief overview of some of the important final TMDL rule’s provisions which directly or indirectly affect public works.

• States set the water quality standards that waters need to meet and develop the TMDLs to decide how to clean up their polluted waters.
• States are to develop more comprehensive lists of all polluted waterbodies and are required to develop their lists every four years instead of the current two years. Threatened waters may be included on the list at the State’s discretion.
• States are to establish a schedule for clean-up plans for polluted waters within 10 years or be given an additional five years if needed. EPA is requesting that higher priority be given to polluted waters that are sources of drinking water or support endangered species. States can explain why a higher priority is not appropriate.
• The TMDL implementation plan to achieve water quality standards should reflect both point sources, non-point sources, and other sources of pollution, including: a list of actions needed to reduce pollutant loadings and a time-line for implementation; reasonable assurances that implementation will occur; a monitoring or modeling plan and milestones for measuring progress; plans for revising the TMDL if progress toward cleaning up the waters is not made; and the date by which water quality standards will be met, generally within 10 years. Runoff controls should be put in place five years after the implementation plan is developed, if practicable.
• For point sources, reasonable assurance is to be provided through National Pollutant Discharge and Elimination System (NPDES) permits. For non-point and other sources, load allocations in each TMDL must meet a four-part test: they apply to the pollutant; they will be implemented expeditiously; they will be accomplished through effective programs; they will be supported by adequate water quality funding.

The final rule was published July 13, 2000 in the Federal Register. It can be viewed at http://www.epa.gov/owow/tmdl/finalrule/finalrule.pdf.