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July 2000Published Article

EPA Signs TMDL Final Rule Despite Congressional Protests

On July 11, Environmental Protection Agency ("EPA") Administrator Carol Browner signed the Total Maximum Daily Load Final Rule (the "Final Rule"), despite protests from Congress and farm organizations. While attempts by Congress to block implementation of the Final Rule failed, Congress did succeed in delaying implementation until October 1, 2001.

The Final Rule requires the identification of waterbodies that do not meet state water quality standards, the sources of the pollutants of those waters, and a state plan to restore impaired waters. It also prohibits the discharge of pollutants from point or nonpoint sources into any waterbody at levels that exceed state water quality standards, the total maximum daily load ("TMDL"). A TMDL is a calculation of the maximum amount of pollutant a waterbody can take in and still meet state water quality standards.

In order to meet the requirements described above, the EPA will require states to list all impaired waterbodies within their boundaries using clear methodologies to determine which of those waterbodies are impaired. The methodologies will be developed by the states themselves, with public input and EPA supervision. States will then be required to determine a TMDL for each impaired waterbody. TMDLs will be prepared for waterbodies based upon a priority system considering the severity of the pollution in the waterbody and the uses of the waterbody. High priority waterbodies will have TMDLs determined first with TMDLs for lower priority waterbodies determined later. The only waterbodies that will automatically be considered high priority waterbodies are those used for drinking water or those used by threatened or endangered species. TMDLs for high priority waterbodies will be established within five years, and TMDLs for remaining waterbodies will be established within fifteen years.

Each TMDL developed for each waterbody will require the following minimum elements:

  1. The name and location of the impaired or threatened waterbody;
  2. Identification of the pollutant and the amount the waterbody can receive and still meet State water quality standards;
  3. The excess amount of the pollutant that keeps the waterbody from meeting water quality standards;
  4. Identification of the source or sources of the pollutants;
  5. A determination of the amount of pollutants that may come from point sources;
  6. A determination of the amount of pollutants that may come from nonpoint sources;
  7. A margin of safety in case waterbody modeling or monitoring techniques are not adequate;
  8. Consideration of seasonable variation to account for water levels, temperature, etc.;
  9. An allowance for future growth and reasonably foreseeable increases in pollutants; and
  10. An implementation plan with specific actions to ensure that the TMDL will result in a healthy waterbody.

All implementation plans must require specific actions to reduce pollution whether caused by point or nonpoint sources. Specifically, the implementation plan must provide: (i) a list of required actions to reduce pollutant loading into the waterbody; (ii) a timeline describing when the required actions will be implemented; (iii) waste load allocations for point and nonpoint sources, (iv) the governmental authorities involved in implementing the plan; (v) an estimate of the amount of time required to meet State water quality standards; (vi) a plan for monitoring the waterbody to determine if reductions are being achieved; (vii) water quality goals for measuring pollution reduction progress; and (viii) a plan for revising the TMDL in the event progress is not made in reducing the level of pollution in the waterbody.

Given the requirements described above, and the implications of those requirements, the Final Rule could be one of the most ambitious and significant environmental regulations to impact agriculture.

For more information, please contact Porter J. Martin at pjmartin@michaelbest.com or 608.283.0116, or David A. Crass at dacrass@michaelbest.com or 608.283.2267.

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