Winter 2000

TMDLs: A Significant Change in Water Quality Regulation Enforcement

By Laosheng Wu, Asst. CE Irrigation/Water Management Specialist, University of California, Riverside

Contents:

Impact of TMDL Requirements on the California Economy California's Current 303(d) List The Water Quality Standards-based Approach of TMDL Regulations Implementation of TMDL Regulations Restrictions on Point Sources' New Discharges TMDL Guidelines California TMDL Litigation Sample Technical TMDLs Federal Clarification Forthcoming of 303(d) Process NEWS UPDATE -- SWRCB WEBSITE

Introduction

Environmental lawsuits and the courts have breathed new life into requirements of the Clean Water Act that were overlooked until recently. Section 303(d) of the Clean Water Act, passed in 1972 but previously ignored, requires states to identify all of its water bodies that fail to meet applicable water quality standards and to establish "total maximum daily loads" -- TMDLs -- for these impaired, polluted water bodies so that they can get cleaned up and comply with applicable water quality objectives.

At present, California has more than 500 water bodies on its 303(d) list, which means TMDLs must be established and implemented for them.

TMDLs define how much of a pollutant a water body can tolerate (absorb) daily and still comply with applicable water quality standards. All pollutant sources in the watershed combined, including nonpoint sources, are limited to discharging no more than the TMDL.

In California, litigation has been the impetus for determining where and when TMDLs will be developed.

"Section 303 requires states to prepare a list of waters that don't meet water quality standards after implementation of the technology-based controls. It isn't perfectly clear just what Congress had in mind with this section. One possibility, increasingly favored by the courts, is that under section 303, water quality standards would be used in the event that technology-based standards didn't quite get the job done...There are not yet any statewide policies or regulations guiding TMDL development, and the State Water Resources Control Board has no TMDL program or budget," wrote the California Research Bureau (CRB) in a report earlier this year, entitled "TMDLs, the Revolution in Water Quality Regulation" (April 1999).

Federal law demands that Regional Water QualityControl Boards (RWQCB) and the State Water Resources Control Board (SWRCB)develop TMDLs, but both agencies have received little additional fundingto carry out these mandates, according to the CRB report.

The United States Environmental Protection Agency (EPA) is under court order in 13 states to produce TMDLs; complaints have been filed in 16 other states, seeking orders to force EPA to produce TMDLs; and notices of intent to sue EPA in 11 other states have been filed seeking EPA action on TMDLs.

The courts have ordered California and the EPA to prepare TMDLs on very tight schedules, which have forced the RWQCBs to "just do the numbers" and issue TMDLs for impaired water bodies without preparing implementation plans, according to the CRB report. Delays in establishing TMDLs have led to more lawsuits.

Impact of TMDL Requirements on the California Economy

TMDLs could have significant impact on the California economy:

"Exactly how this TMDL requirement is going to work is far from clear; almost everything about it is cloaked in controversy or at least ambiguity. However, the weight of court decisions from around the country and especially in California suggest the very real possibility that water quality regulation is in the act of changing in quite fundamental ways. The most important change is also the simplest: if water bodies must be made cleaner, then one of two things must happen. Either point sources, such as municipalities and factories, must clean up their discharges even further, even though additional purity comes at great expense, or nonpoint sources, such as farms, timber operators, and urban runoff, must be subject to stringent water quality controls that they have avoided so far.

"TMDL requirements have the potential to greatly expand the scope, impact, and economic cost of water quality regulations, and could change the way that the agriculture, forestry, and construction industries do business. Estimates of the regulatory cost of this program range from $5 million to $1 billion, excluding the costs to industries and urban areas of pollution controls needed to meet more stringent standards." (TMDLs, the Revolution in Water Quality Regulation, CRB, April 1999.)

California's Current 303(d) List

Section 303(d) of the Clean Water Act requires California and other states to priority rank their impaired water bodies, known as water quality limited segments (WQLS), based on the severity of the pollution and the intended beneficial uses of the polluted waters. Such "303(d) lists" of WQLS must be submitted to the EPA by April 1 of every even-numbered year (every two years).

Identifying WQLS that should be included on the 303(d) list is not straightforward because (i) EPA has yet to issue guidance or regulations that standardize the monitoring data used to develop 303(d) lists and (ii) water quality criteria (objectives) can be stated in numeric (ppm or mg/L) or narrative form. Narrative standards describe a condition that must be met for a water body to meet its beneficial use designation. Narrative objectives must be quantified to determine if water quality meets the objectives; thus, the EPA and states are forced to quantify a threshold for a pollutant that they already recognized as inherently difficult to measure.

Questions have arisen because California has failed to adopt any regulations explaining the process, timing, and requirements for preparing its 303(d) list, establishing TMDLs, and taking WQLS off its 303(d) list. The SWRCB has issued guidelines for the regions to use, but they were not adopted as regulations and therefore were not subject to review and scrutiny by the regulated community, other interested parties, or the Office of Administrative Law. The SWRCB guidelines address only the selection of impaired water bodies to be included on the 303(d) list. They do not identify any criteria for prioritizing the impaired waters, establishing TMDLs, or standards for removing water bodies from the list.

Nonetheless, California's current 303(d) list includes more than 500 water bodies identified as failing to meet applicable water quality standards. For these WQLS, TMDLs must be established, calculated by the state or the EPA, and implemented. The SWRCB approved California's most recent 303(d) list in May 1998. That list, a composite of individual lists prepared by each of the nine RWQCBs, included 472 stream segments, rivers, lakes, and estuaries equal to 1,380 pollutant/water body combinations because many water bodies were listed for more than one pollutant. Pollutants represented on the list include pesticides, metals, sediment, nutrients or low dissolved oxygen, bacteria and pathogens, and trash or debris. The EPA reviewed California's list, as required by the Clean Water Act, and approved it, but not before adding 37 water bodies for 12 pollutants.

Once EPA approves the 303(d) list and any submitted TMDLs, then California and other states must incorporate them into their water quality management plans. If EPA were to disapprove the state's list or its TMDLs, then EPA has 30 days to prepare its own list for the state and to establish applicable TMDLs.

The Water Quality Standards-based Approach of TMDL Regulations

TMDLs must be set at the "level necessary to achieve the applicable water quality standards," taking into account seasonal variations and adding in a margin of safety to accommodate "any lack of knowledge concerning the relationship between effluent limitations and water quality."

Once the TMDL is determined, the regulatory agency allocates a portion to each source of that pollutant within a particular watershed. The portion allocated to point sources is called the "waste load allocation (WLA)", which is enforced through conditions inserted into the National Pollutant Discharge Elimination System (NPDES) permits. WLAs are a type of water quality-based effluent limitation.

The portion allocated to nonpoint sources and naturally occurring pollutants (natural background sources) is called the "load allocation (LA)", which is enforced through the state's nonpoint source management program. Natural and nonpoint source loads should be distinguished, if possible.

The quantitative water quality-based approach of pollution control set forth by the TMDL requirements of Section 303 differs markedly from the technology-based effluent limits imposed by the NPDES program also set forth by the Clean Water Act. Under the NPDES program, EPA sets standards for various industrial categories of wastewater, attainable if pollution control technologies are used. Under the TMDL program, EPA or the state must determine the quantities of pollutants that can be tolerated in a water body and must assign portions of the total allowable pollutant load to the various sources. EPA's regulations do not specify the process by which states should develop TMDLs, LAs, and WLAs. EPA and the state determine the TMDL submission schedules.

Implementation of TMDL Regulations

EPA requires that each TMDL include implementation information -- a description of best management practices (BMPs), point source controls, and plans stating when necessary controls or restoration actions will be accomplished and who is responsible for their implementation (see TMDL Guidelines). Once EPA approves a TMDL submitted by the state or establishes an applicable TMDL for a WQLS, then the state is said to be required to incorporate the TMDL and its associated allocations (WLA and LA) and implementation measures into its water quality management plan. However, implementation is not statutorily required in Section 303(d) of the Clean Water Act, according to the CRB report. The SWRCB has not adopted regulations or policies governing implementation of TMDLs.

TMDLs improve water quality only if the pollutant allocations are implemented, not when the TMDL is established. To implement TMDLs, the RWQCBs must first amend the TMDLs into their basin plans. It is not clear how and when the RWQCBs will do so. Using TMDLs as the basis for pollution control, these improved water quality objectives are expected to be accomplished via (i) NPDES permits as new effluent limits for point sources and as (ii) numeric limits for nonpoint source pollutants. The numeric limits for nonpoint source pollutants due to TMDLs represent a significant change from the current approach to nonpoint source pollution controls. Until now, California has relied on voluntary compliance with BMPs as its primary means of controlling nonpoint source pollution.

Restrictions on Point Sources' New Discharges

After a water body is placed on the state's 303(d) list, a TMDL for that particular water body might not be completed for several years; however, during the interim, federal law and regulatory restrictions prohibit the state from issuing new or additional NPDES permits for discharges into that water body. Once the TMDL is established for a WQLS, the RWQCB must incorporate its wasteload allocations into point source dischargers' NPDES permits. Therefore, the Federal Advisory Committee on TMDLs has suggested that during the period between 303(d) listing and TMDL development that stakeholders could develop a plan that could trade point and nonpoint sources discharges and thereby attain water quality standards without a TMDL.

Restrictions on Nonpoint Sources in TMDLs

Despite EPA's explicit inclusion of nonpoint sources and allocation of pollutant loads to them in the development of TMDLs, nonpoint sources have disagreed with EPA's interpretation of Section 303(d). Timber and agricultural interests in California argue that the TMDL program does not apply to them, that the intent of Section 303(d) language is a point source water pollution control program. Since TMDLs and the list of impaired waters are to be developed to address water pollution problems that remain after technology-based controls are imposed on point sources, they argue that the intent of Section 303(d) is limited to point sources. According to the CRB report, SWRCB and RWQCB personnel think TMDLs will hold nonpoint sources accountable for reducing their contribution to pollutant loads because of the enforceable, quantitative load allocations (LA) assigned to them.

The California Farm Bureau opposes inclusion of agriculture in TMDLs. Requiring farmers to meet numeric limits on pollutants creates a "de facto permit," which could lead to state agency enforcement of those limits, says the Farm Bureau. It has developed its own Nonpoint Source Initiative and has organized local, landowner-based groups on a watershed basis to develop processes and methods for participants to implement nonpoint source pollution management.

TMDL Guidelines

An EPA fact sheet describes the TMDL process and its individual components. TMDLs should include

  1. Problem Statement. Water body or watershed setting description, beneficial use impairments of concern, and pollutants or stressors causing the impairment.
  2. Numeric Target(s). For each pollutant or stressor addressed in the TMDL, appropriate measurable indicators and associated numeric target(s).
  3. Source Analysis. n assessment of relative contributions of pollutant or stressor sources to or causes of the use impairment and the extent of needed discharge reductions or controls.
  4. Loading Capacity Estimate. An estimate of the assimilative capacity of the water body for the pollutant(s) of concern.
  5. Allocations. Allocation of allowable loads or load reductions among different sources of concern, providing an adequate margin of safety, expressed as wasteload allocations to point sources and load allocations to nonpoint sources. The TMDL equals the sum of allocations and cannot exceed the loading capacity (EPA's emphasis).
  6. Monitoring Plan. Plan to monitor the TMDL's effectiveness, schedule for reviewing and revising the TMDL, if necessary, and associated implementation elements (as described in the text).

Source: TMDLs: The Revolution in Water Quality Regulation, by Jennifer Ruffolo, California Research Bureau, April

California TMDL Litigation Sample

A settlement entered in January 1999 for the Los Angeles Region orders the state and EPA to prepare 92 TMDLs in 13 years at a minimum pace of 5 TMDLs/yr, according to the CRB report. The Los Angeles Region includes nearly 60 percent of the impaired water bodies on the state's 303(d) list.

In a March 1997 consent decree, the Pacific Coast Fishermen's Association and the EPA agreed to an 11-year schedule for developing TMDLs for 17 North Coast rivers. Under this supplemental TMDL establishment schedule, California will produce two TMDLs/yr from 1998 - 2007 in addition to its Section 303(d) priority list of more than 500 impaired water bodies statewide. A November 1997 consent decree between EPA and Defend the Bay sets out a 4-year schedule for establishing TMDLs for Newport Bay and requires EPA to ensure that TMDLs are developed if the RWQCB fails to do so.

The Sacramento Regional County Sanitation District has a lawsuit pending against the SWRCB because it disagrees with the state's application of narrative water quality standards (objectives).

Technical TMDLs

Because litigation and consent decrees have resulted in the need to do TMDLs quickly, the EPA has authorized the Regional Boards to prepare "technical TMDLs." Technical TMDLs meet the Clean Water Act's Section 303(d) requirements for load allocations but do not include implementation and monitoring plans. It is unclear when the technical TMDLs will be implemented.

Federal Clarification Forthcoming of 303(d) Process

Clarification about many aspects of the Section 303(d) requirements should be forthcoming from EPA. The comment period has been extended to Jan. 20, 2000 regarding proposed regulations based on the conclusions of the Federal Advisory Committee on TMDLs, which was established in Nov. 1996 by the EPA. Previously, the Committee recommended that (i) EPA issue guidance and regulations explaining how states should apply narrative criteria in 303(d) listing decisions and (ii) assist states with funding to determine if WQLS have attained relevant water quality standards, including narrative objectives.

NEWS UPDATE -- SWRCB WEBSITE

We reported in a prior issue of the newsletter that the State Water Resources Control Board (SWRCB) website would include updated information about the water usage statewide in the future. That information was added to the SWRCB website in October 1999 and can be accessed by using the website address http://www.swrcb.ca.gov/recycling/index.html