ALEC State Implementation of Clean Water Act Requirements

8/6/2019 ALEC State Implementation of Clean Water Act Requirements

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State Implementation of Clean Water Act (TMDL)RequirementsIntroductionThe Total Maximum Daily Load (TMDL) program hasbeen a part of the Clean Water Act since 1972, anddirects states to take measures to improve the quality ofwaterbodies that do not meet water quality standards.EPA regulations providing states guidance onimplementing the TMDL program were first adopted in1985, and states have been implementing the programsince that time (some states more aggressively thanothers).On August 23, 1999, EPA proposed two rules thatwould significantly increase the emphasis on, andexpand the scope of, the TMDL program, as well asdramatically expanding the responsibilities of statesunder that program. Ifthese rules are finalized in theform proposed, they will have a significant financialand human resource impact on states and on entities(some previously unregulated) that are determined tobe contributing to water quality impairment in somefashion. However, even if the proposed rules are notfinalized, or are finalized in significantly different formthan proposed, it is critical for states to address theirobligations under the TMDL program in a fashion thatrecognizes their resource constraints and that is baseson sound scientific data.The purpose of this model ALEC legislation is toprovide states a suggested approach for efftciently andeffectively addressing their obligations under theTMDL program by focusing limited resources on thosewaters where more active management will result in themost significant and cost-effective improvements inwater quality. The model legislation also requires theuse of sound science in making regulatory decisions.Description of the TMDL Program: The TMDLprogram requires each state to assess he quality ofwaters within its boundaries, and to determine whichwaters (or portions of waters) are not meetingapplicable surface water quality standards. Surfacewater quality standards vary somewhat fromstate-to-state, and typically are expressed either as: (1)


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numeric criteria (most commonly, maximumconcentrations of specific chemicals in water); or (2)nanative criteria (more subjective criteria that mayaddress factors such as color, odor, toxicity, andbiological or physical integrity).Once impaired waters are identified, states are requiredto quantify the sources contributing to the exceedanceof the applicable standard(s), and to determine theshare (or load) of the pollutant(s) in question that canbe allocated to each sonme in order to achieve theapphcable standards. Based on the total maximumdaily load that the state determines the water canreceive while s till not violating applicable surfacewater quality standards, the state then determines fromwhat sources, and in what amounts, pollutant loadingneeds to be reduced in order to comply with applicablestandards. The state then takes the steps necessary toachieve the required load reductions. These steps couldresult in significant reductions in allowable dischargesfrom permitted entities, or in new restrictions onpreviously unregulated (or lightly regulated) sources,including in some cases non-point sources.State Primacy and the Role of EPA: The Clean WaterAct vests primary responsibility for implementation ofthe TMDL program in the states. EPAs primaly role isto provide guidance and oversight, but the Agency alsomust approve each states lists of impaired waters andthe total maximum daily loads calculated for impairedwaters. (Under the statute, EPAs approval authoritydoes not extend to the states determination of how,and from what sources, to reduce loads.) States haveimplemented the TMDL program at varying rates, a factthat has led to extensive citizen suit legislation seekingto force EPA to step in to develop lists of waters andTMDLs where states have been slow to do so.Scope of Task Faced by States: The task faced by statesis daunting. At least 20,000 waters have been identifiedby states as requiring TMDLs, many for more than oneparameter. Because separate TMDLs typically must bedeveloped for each parameter that contributes to awaters impairment, the total number of TMDLs islikely to be much higher than 20,000. (EPA hasrecently estimated the number of required TMDLs atroughly 40,000, but the actual number may be muchhigher.). Moreover, the number of required TMDLs islike to increase still further because EPA is proposingto expand the number of waters for which states will berequired to develop TMDLs. States are estimating that


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they will incur an average cost of $50 million per stateto develop TMDLs if the proposed rule ispromulgated,Assuming (very conservatively) that 40,000 TMDLswill be required, and that all these TMDLs must becompleted within the next fifieen years (as EPA hasproposed), states cumulatively would have to completeon average S1 TMDLs each week for the next 780weeks, This averages out to approximately one TMDLper state per week for the next 15 years (obviously, thereal world burdens will vary greatly from state to state,depending on the number of TMDLs required perstate). Given that some states have not yet developedany TMDLs, and that most Th4DLS that have beendeveloped have taken a minimum of several months(and sometimes much longer) to complete, it is clearthat states are being asked to embark on a massive,costly and difficult undertaking. Moreover,implementing TMDLs will require states to addressmany sources of water pollution that have nottraditionally been addressed under the Clean Water Act(including, but not limited to, non-point sources suchas agricultural run-off and air deposition of pollutantsfrom sources that may be located great distances fromthe water).Economic Impacts: An estimate of the costs that maybe incurred by states in trying to implement the TMDLprogram is provided above ($50 million per state ifEPAs August 1999 proposals are enacted). These costsare likely to be substantial, but the potentialcompliance costs that would be incurred by theregulated community (particularly if EPAs August1999 proposals are adopted) are likely to be even moresizable. Existing point soume discharges (industrialfacilities, wastewater treatment plants) that have longbeen regulated by the Clean Water Act, and that arecomplying with current technology and water qualitybased standards, may have new and expensiverequirements imposed on them. Municipal andindustrial storm water discharges, which have only thisdecade been regulated by EPA under a programfocusing on site-specific best management practices,could be required to implement extensive new controls.Sources that Congress has not directly regulated underthe Clean Water Act permit program, and in some caseshas specifically exempted from that program (e.g.,agricultural non-point sources), are likely to be asked tomake significant reductions.


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It is difficult to quantify the total costs of implementingthe TMDL program, particularly since EPAsregulations are in a state of flux. However, it isreasonable to estimate that the costs for the regulatedcommunity and taxpayers to comply will run into thebillions of dollars.Areas of Flexibility that can be Addressed by ModelState Legislation: The Clean Water Act allows states agreat deal of flexibility in implementing the TMDLprogram Most notably, states have a great deal offlexibility to: (1) establish minimum data requirementsthat must be satisfied before listing waters as impaired(or determining that waters once listed as impaired areno longer impaired); (2) establish criteria fordetermining how impaired waters will be identified,including how impairment based on often subjectivenarrative criteria will be determined, (3) determine thepriority and schedule by which TMDLs will bedeveloped for impaired waters; and (4) establishimplementation plans and time frames for achievingcompliance in impaired waters. EPAs final rules arenot likely to divest states of this flexibility.The purpose of this draft legislation is to set forth amodel framework by which states may logically andefficiently exercise the flexibility granted them inimplementing the Clean Water Acts TMDL program.Portions of the model legislation are based oncomponents of TMDL legislation that has recentlybeen adopted by a few states (including Florida,Montana and Idaho). Because EPA is currentlyproposing that states submit lists of impaired waters forapproval by October 2000, developing model ALEClegislation in a timely fashion is important in order toassist states in drafting legislation to help meet theirTh4DL obligations in a timely manner.TOTAL MAXIMUM DAILY LOADIMPLEMENTATION ACT

SummaryThis Act sets forth criteria and procedures for states toimplement the mandate of the Clean Water Act todevelop total maximum daily loads for impaired waterswithin the States boundaries. The Act clarifies howstates will implement the requirements of the CleanWater Act and EPAs implementing regulations.


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Model Legislationi Section 1. [Title] This Act may be referred to as theTotal Maximum Daily Load Implementation Act.Section 2. [Purpose and Intent] It is the purpose ofthis legislation to establish procedures and criteria forcomplying with the mandates of Section 303(d) of theClean WaterAct, 33 U.S.C. 3 1313(d).Section 3. [Definitions] As used in this Act:

(A) Department means [insert name of state agencywith authority to implement the mandates of theTMDL program].(B) Effluent dependent water means a water of theUnited States, as defmed in 33 U.S.C. 5 1362, thatconsists primarily of discharges of treatedwastewater.(C) Ephemeral water means a water of the UnitedStates, as defined in 33 U.S.C. 3 1362, that has achannel that is at all times above the water table, thatflows only in response to precipitation, and that doesnot support a self-sustaining fish population.(0) Tmpaired water means a water of the UnitedStates, as defined in 33 U.S.C. 5 1362, for whichcredible scientific data satisfying the requirements ofSection 4 of this Act exists demonstrating that thewater should be identified pursuant to 33 U.S.C. 303(d).(E) Intermittent water means a water of the UnitedStates, as defined in 33 U.S.C. 0 1362, other than anephemeral water, in which flow normally occurs onlyon a seasonal or intermittent basis, for example as aresult of snow melt.(F) Nonpoint source means a source of pollutantloading to an impaired water that does not qualify asa point source.(G) Point source shalt have the same meaning as in33 U.S.C. 5 1362.(H) Surface water quality standard means astandard adopted by this state to comply with therequirements of section 303(c) of the Clean Water


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Act, 33 U.S.C. 0 1313(c)(I) Total maxinunn daily load means an estimationof the total amount of a pollutant, from all sources,that may be added to a water while still allowing thewater to achieve and maintain applicable surfacewater quality standards. Bach total maximurn dailyload shall include wasteload allocations for pointsources and load allocations for nonpoint sourcescontributing the pollutant to the water, as deemednecessary by the Department to achieve applicablesurface water quality standards,(J) TMDL implementation plan means a writtenstrategy to implement a total maximum daily loaddeveloped for an impaired water, TMDLimplementation plans may rely on any combinationof the following components that the Departmentdetermines will result in achieving and maintainingcompliance with applicable surface water qualitystandards in the most cost-effective and equitablefashion: permit limitations, best managementpractices, education and outreach efforts, technicalassistance, cooperative agreements, voluntarymeasures and incentive-based programs, loadreductions resulting from other legally requiredprograms or activities, land management programs,pollution prevention planning, waste minimization,and pollutant trading agreements.

Section 4. [Lists of Impaired Waters and DataRequirements](A) The Department shall prepare a list of impairedwaters for the purpose of complying with section303(d) ofthe Clean Water Act, 33 U.S.C. $ 1313(d),at least once every tive years. The list shall beadopted by rule prior to its submission to the UnitedStates Environmental Protection Agency.(B) In determining whether a water is impaired, theDepartment shall consider only reasonably currentcredible and scientifically defensible data that it hascollected itself or received from an outside source.Results of water sampling or other assessments ofwater quality, including physical or biologicalhealth, shall be considered credible and scientificallydefensible data only if the Department hasdetermined that:

(1) appropriate quality assurance/quality control


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procedures were followed and docnmented incollecting and analyzing the data;(2) the samples or analyses are representative ofwater quality conditions at the time the data wascollected,(3) the data is statistically significant, and(4) the method of sampling and analysis(including analytical, statistical and modelingmethods) is generally accepted and validated inthe scientific community as appropriate for use inassessing the condition of the water.

(C) The Department shall adopt by rule themethodology to be used in identifying waters asimpaired. The rules shall specify:(1) minimum data requirements and qualityassurance and quality control parameters,consistent with subsection B of this section, thatmust be satisfied in order for data to serve as thebasis for listing and delisting decisions;(2) appropriate sampling, analytical and scientifictechniques that may be used in assessing whethera water is impaired;(3) any statistical or modeling techniques that theDepartment plans to use to assess or interpret data;and(4) criteria for including and removing watersfrom the list of impaired waters, including anyimplementation procedures developed pursuant tosubsection P of this section, The criteria forremoving a water from the list of impaired watersshall not be any more stringent than the criteria foradding a water to that list.

(D) In assessing whether a water is impaired, theDepartment shall consider the data available in lightof the nature of the water in question, includingwhether the water is an ephemeral water. A waterwhere pollutant loadings from naturally occurringconditions alone are sufticient to cause anexceedance of applicable surface water qualitystandards shall not be listed as impaired.(E) If the Department has adopted a numeric


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criterion for a pollutant and that criterion is not beingexceeded in a water, the Department shall not list thewater as impaired based on a conclusion that thepresence of that pollutant causes a violation of anarrative or biological criterion unless theDepartment has first identified specific reasons,appropriate for the water in question and consistentwith generally accepted scientific thought, why thenumeric criterion is insuffic ient to protect waterquality.(F) Before listing a water as impaired based onviolation of a narrative or biological criterion, theDepartment shall adopt, after providing anopportunity for public notice and comment,implementation procedures specifically identifyingthe objective basis for determining that a violation ofthe narrative or biological criterion exists, No totalmaximum daily load designed to achieve compliancewith a narrative or biological criterion shah beadopted until the implementation procedure for thenarrative or biological criterion has been adopted.(9 BY - the Department shall develop andmaintain a data quality assurance managementsystem to assess he validity and reliability of thedata used in the listing and priority ranking processset forth in this section and section 5. TheDepartment shall make data from the data qualityassurance management system available to the publicupon request, and may charge a reasonable fee topersons requesting the data. The Department shalluse this data quality assurance management systemto review the data supporting the listing of waters asimpaired on the states list of impaired waters as ofIf the data supporting a listing doesnot conform to the requirements of section 4(B) ofthis subsection, the listed water shall not be includedon the next list submitted to the EnvironmentalProtection Agency, unless in the interim datasatisfying the requirements of section 4(B) has beencollected or received by the Department.(H) The Department shall add or remove a waterfrom the list by rule, even outside of the normallisting cycle, if it collects or receives credible andscientifically defensible data satisfying therequirements of subsections B and C of this sectionand demonstrating that the &rent quality of thewater is such that it should be removed from oradded to the list. In addition to changes in water


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, 7. The seasonal variation caused by natural eventssuch as storms or weather patterns.8. Existing treatment levels and managementpractices.9. The availability of effective and economicallyfeasible treatment techniques, managementpractices or other pollutant loading reductionmeasures.IO. The recreational, aesthetic, and economicimportance of the water.11. The extent to which the impairment is causedby discharges or activities that have ceased.

12. The extent to which natural sources contributeto the impairment.13. Whether the water is accorded any specialprotection under federal or state water quality law.

14. Whether action that is being, or is likely to be,taken under other programs, including voluntaryprograms, is likely to make significant progresstoward achieving applicable standards even if atotal maximum daily load is not developed.15. The time expected to be required to achievecompliance with applicable water qualitystandards.16. The availability of documented, effect iveanalytical tools for developing a total maximumdaily load for the water with reasonable accuracy.17. Department resources and programmaticneeds.

Section 6. [Total Maximum Daily Loads and TMDLImplementation Plans](A) The Department shall develop total maximumdaily loads only for those waters listed as impairedpursuant to this Act.(B) The Department shall use only statistical andmodeling techniques that are properly validated and


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, broadly accepted by the scientific community todevelop total maximum daily loads. The modelingtechnique may vary depending on the type of waterin question and the quantity and quality of availabledata meeting the quality assurance and qualitycontrol requirements of this Act. The statistical andmodeling techniques may be established in a rule ofgeneral applicability or in the rules establishing totalmaximum daily loads for specific waters.(C) Each total maximum daily load must be basedupon data and methodologies satisfying therequirements of section 4 of this Act and must beestablished at a level that will achieve and maintaincompliance with applicable surface water qualitystandards, and must include a reasonable margin ofsafety that takes into account any lack of knowledgeconcerning the relationship between effluentlimitations and water quality. The margin of safetyshall not be used as a substitute for adequate datawhen developing the total maximum daily load. Thetotal maximum daily load also must account forseasonal variations, which may include setting totalmaximum daily loads that apply on a seasonal basis,(D) For each impaired water, the Department shalladopt by rule its estimate of the total amount of eachpollutant causing the impairment, from all sources,that may be added to the water while still allowingthe water to achieve and maintain applicable surfacewater quality standards. The Department may adoptmore than one estimate in a single rule. After eachestimate is adopted, the Department shall determineallocations, consistent with subsection E of thissection, among the various contributing sourcessufficient to result in achieving compliance withapplicable surface water quality standards. TheDepartments proposed determination of allocationsshall be subject to public notice and comment, andits final determination shall be deemed to be a finalagency action.(E) The Department shah make reasonable andequitable allocations among sources whendeveloping total maximum daily loads. At aminimum, the Department shall consider thefollowing factors in making allocations:

1. The environmental, economic andtechnological feasibility of achieving theallocation;


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2. The cost and benefit associated with achievingthe allocation; and3. Any pollutant loading reductions reasonablyexpected to be achieved as a result o f other legallyrequired actions or voluntary measures.

(F) For each total maximum daily load, theDepartment shall establish a TMDL implementationplan explaining how the allocations, including anyreductions in existing pollutant loadings, will beachieved. The Department shall allow for publicnotice and comment on each TMDL implementationplan. Any sampling or monitoring components of aTMDL implementation plan shall be consistent withthe requirements of sections 4(B) and 4(C) of thisAct.(G) Each TMDL implementation plan shall set forththe time frame in which compliance with applicablestandards is expected to be achieved. A phasedprocess involving interim milestones and targets forload reductions may be set. Lengthier time framesare appropriate in cases involving: complexsituations with multiple dischargers; technical, legalor economic barriers to achieving necessary loadreductions; scientific uncertainty regarding dataquality or modeling; significant loading from naturalsources; and significant loading resulting fromdischarges or activities that have already ceased.(H) For waters that are impaired due partially tohistorical situations that are difficu lt to address,including but not limited to contaminated sediments,the Department shall consider those situations inaddressing existing point sources of the samepollutants. In developing total maximum daily loadsfor those waters, the Department shall use a phasedapproach, in which expected loading reductions fromthe historical sources over the long term are factoredin when establishing allocations for the point sourcesover the short term. During the period before thetotal maximum daily loads and TMDLimplementation plans are completed, any permitsissued for the point sources shall be deemedconsistent with the requirements of this Act if thepermits require reasonable reductions in thedischarges of the pollutants causing the impairment,and shall not impose extensive burdens on thosesources where the reductions accomplished would


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not significantly contribute to attainment of thestandards.(I) Once a total maximum daily load and a TMDLimplementation plan is adopted for a water, theDepartment shall review the status of the water atleast once every five years to determine ifcompliance with applicable surface water qualitystandards has been achieved. If compliance withapplicable surface water quality standards has notbeen achieved, the Department &all evaluatewhether modification of the total maximum dailyload or TMDL implementation plan is required.

Section 7. [Rules](A) The Department shall adopt rules necessary toimplement this Act.(B) The Department shall adopt rules necessary toestablish a pollutant trading program designed tofacilitate compliance with the requirements of thisAct.

Section 8. [Report] Within five years of the effectivedate of this Act, the Department shall submit a report tothe Governor, the Speaker of the House ofRepresentatives, and the President of the Senatedetailing progress made under this Act. At a minimum,the report shall: (1) evaluate the effectiveness of tbeprogram and identifl any recommended statutorychanges to make the program more efficient, effectiveand equitable; and (2) assess he extent to which waterquality problems that cannot be effectively addressedunder this program may be addressed under otherfederal or state laws.Section 9. [Advisory Council] Within 6 months of theeffective date of this Act, the Legislature shall appointthe member Total Maximum Daily Load AdvisoryCot&l. The council shall include representatives ofindustry, political subdivisions of the state, agricultureand environmental groups. The Council shall advisethe Department on issues relating to theimplementation of the program required by this Act,and shall provide input into the preparation of thereport required by section 8 of this Act.Section 10. [Severability Clause]Section 11. [Repealer Clause]


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Documents

ALEC State Implementation of Clean Water Act Requirements