Washington Insight

EPA considering multiple changes to TMDL rule

Heather McTavish
Government Relations Coordinator
APWA Washington, D.C. office

The United States Environmental Protection Agency (EPA) officials reportedly have told industry and environmental leaders who have filed legal challenges to the TMDL rule that after an extensive internal review, EPA has identified over a half-dozen aspects of the rule it is considering changing. Those legal challenges, from both industry and environmentalists, have been consolidated in American Farm Bureau Federation et al vs. Whitman.

One of the major changes considered by EPA is turning over responsibility for the bulk of the nation's impaired waters program to state water officials. The shift would move the agency's oversight of state implementation plans from section 303 (d) of the Clean Water Act to section 303 (e), essentially transferring to state officials the responsibility for reviewing implementation plans, rather than EPA. The operation of the states' TMDL planning process is mapped in section 303 (e).

EPA is considering making changes to the amount of data that is required before a water body is listed or de-listed as impaired-the concern being that water bodies are placed on the list without sufficient science to support or reject the need for regulating discharges in the water body. Administration officials indicate that President Bush will likely opt for stricter standards for putting water bodies on the impaired waters list, considering his emphasis on science-based policies.

Also being considered is further clarification to the definition of "reasonable assurance." The rule's "reasonable assurance" clause requires states to provide the agency with explicit information showing their TMDL implementation plans will meet water quality standards.

EPA is also proposing dropping a mandatory requirement from its controversial rule for impaired waters that obligates states to develop implementation plans to limit discharges. Instead, EPA will include a provision in a forthcoming guidance that will increase grant funds if states voluntarily develop those implementation plans for non-point sources.

Reportedly, EPA is likely to drop the requirement from the impaired waters rule because of complaints from state officials that the plans were expensive, time-consuming, and essentially could not be completed before impaired waters discharge limits (TMDLs) were formally put into place.

The grant funding guidance will serve as a template for states to write the implementation plans, even though the agency will no longer make the plans a mandatory requirement. The guidance will give direction to the allocation of Section 319 federal grants, used by state officials to help control non-point sources of pollution.

The issue at hand is the Clinton administration's controversial rule amending the agency's impaired waters program. Under the July 2000 rule, EPA required states to write and submit implementation plans detailing the methods they were going to use to ensure that TMDLs for both point and non-point sources are met. Those plans would have been submitted to EPA along with the states' impaired water lists every four years. However, the Bush administration recently proposed that the effective date of that rule be delayed until October 2002.

It is likely that once the Bush administration proposes the new version of the rule, EPA will likely drop the Clinton administration's requirement that states develop implementation plans and instead encourage the development of implementation plans by providing section 319 grants. The provision in the upcoming section 319 guidance signals that EPA officials still believe it is important that states lay out exactly how they plan to implement TMDLs for non-point sources of pollution, even though it may not be required in the rule.

Some state officials say section 319 grant funding will not ensure that states write implementation plans, since the funding is relatively small-averaging between $20,000 to $80,000 for a non-point source control project-and will not provide enough of an impetus for states to write implementation plans. EPA officials are also considering ways to promote implementation plans for point sources of pollution since Section 319 grants are only for non-point sources of pollution. The July 2000 TMDL rule, on the other hand, required that states write implementation plans for all TMDLs, both point and non-point sources.

The new rule is expected to be issued in the spring of 2002.

To contact Heather McTavish, please call (202) 408-9541 or send e-mail to hmctavish@apwa.net.