TMDL -- Should USGS be doing something?

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cc: "Janice R Ward, Assistant Chief, OWQ, Reston, VA ",
        "Iris M Collies, Writer-Editor, Reston, VA ",
        "Nana L Frye, Secretary (OA), Reston, VA "
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Date: Thu, 20 Feb 1997 11:14:54 -0500
From: "Nana L Frye, Secretary (OA), Reston, VA "

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Mail Stop 412                                   February 19, 1997


Subject:   TMDL -- Should USGS be doing something?

The U.S. Environmental Protection Agency (EPA), Federal agencies with and 
management responsibilities, States, Tribes, and local agencies are all 
struggling with how to complete the Total Maximum Daily Loads (TMDL) 
process. This TMDL document -- much of which was obtained from the EPA 
TMDL home page -- describes (a) what EPA is required to accomplish, (b) 
the potential for USGS District input to the process, (c) examples of 
TMDL projects conducted in three Districts, and (d) TMDL contact people 
in EPA headquarters and regions. 
The TMDL process is specified in section 303 of the Clean Water Act as a 
tool to bring water-quality conditions in stream segments within 
standards. The TMDL process is based on the relation of stream 
water-quality conditions to pollution sources and includes five major 
       1.       Identifying stream segments requiring TMDLs.
       2.       Ranking and targeting the segments.
       3.       Developing TMDLs for each segment.
       4.       Implementing control actions.
       5.       Assessing control actions.
Section 303(d) and its implementing regulations requires each State -- in 
even numbered years -- to develop a list of those stream segments where 
required controls (such as technology-based controls for point sources) 
are inadequate to attain or maintain water-quality standards. To date, 
nine TMDL lawsuits filed against EPA have resulted in court decisions or 
consent decrees. In addition, there are 11 ongoing TMDL litigations and 
an additional 7 notices of intent to file citizen suits. Thus, EPA is 
under pressure to foster production of 303(d) listings of water-quality 
limited segments and to make the TMDL process work more effectively and 

It is appropriate for the USGS to be involved in TMDL process. Such work 
provides: (a) opportunities for developing new approaches and methods to 
monitor and assess water-quality conditions that have transfer value to 
the water-resource community, and (b) a significant contribution to the 
USGS mission of assessing the water-quality conditions of the United 

USGS can participate in the TMDL process in collaboration with States by:
        1.      Collecting, assembling, portraying, and interpreting data               to define 
water-quality limited segments (i.e., help 
                develop the 303(d) lists).
        2.      Helping conduct TMDL investigations by assessing, 
                simulating, and predicting the stream-quality response to 
                waste load allocations.
        3.      Helping design suitable monitoring programs to satisfy 
                303(d) requirements as well as to assess control actions.
        4.      Providing sound and adequate quality-assurance measures 
                and quality-control data to TMDL projects.
        5.      Providing objective scientific advice to state agencies 
                and other organizations for their use in reaching policy 

I would like to thank Marshall Jennings for suggesting the development of 
this document.
This 24 page TMDL document is in an Office of Water Quality (OWQ) 
directory as a View Only FrameMaker printable document and can be 
obtained as follows: 

     type "ftp"
     type "anonymous" for the user id
     type "anonymous" for the password
     type "cd pub"
     type "get"
     type "bye"

                          Table of Contents
What is a TMDL?
What does the Clean Water Act say about TMDLs?
What is a section 303(d) list?
Draft TMDL program implementation strategy
      Identify waters requiring TMDLs
      Priority ranking and targeting of TMDLs
      Develop TMDLs
      Implement control actions
      Assess control actions
      Build partnerships and involve the public
      Oversee consistent national performance
      Promote and support innovation
Federal TMDL resources
TMDL litigation
What can USGS do to help with the TMDL process?
Case studies
      South Carolina TMDL study
      North Carolina TMDL study
      Oregon Tualatin River Basin TMDL study
           The USGS role
People to contact concerning the TMDL process
      EPA headquarters
      TMDL coordinators at EPA regions
Appendix I -- Overview of TMDL cases
      TMDL cases with court decisions or consent decrees
      Ongoing TMDL litigation
      Notices of intent to file citizen suits

                        David A. Rickert /S/
                        Chief, Office of Water Quality

This memorandum does not supersede any other OWQ Technical Memorandum.

Key Words:      TMDL, water quality, segment

Distribution:   E


The Total Maximum Daily Load (TMDL) Process
Table of Contents
What is a TMDL?
What does the Clean Water Act say about TMDLs?
What is a section 303(d) list?
Draft TMDL program implementation strategy
      Identify waters requiring TMDLs
      Priority ranking and targeting of TMDLs
      Develop TMDLs
      Implement control actions
      Assess control actions
      Build partnerships and involve the public
      Oversee consistent national performance
      Promote and support innovation
Federal TMDL resources
TMDL litigation
What can USGS do to help with the TMDL process?
Case studies
      South Carolina TMDL study
      North Carolina TMDL study
      Oregon Tualatin River Basin TMDL study
           The USGS role
People to contact concerning the TMDL process
      EPA headquarters
      TMDL coordinators at EPA regions
Appendix I -- Overview of TMDL cases
      TMDL cases with court decisions or consent decrees
      Ongoing TMDL litigation
      Notices of intent to file citizen suits


The Clean Water Act established a national goal of "fishable, swimmable" 
waters.  There are still waters in the nation that do not meet this goal. 
Section 303(d) of the Clean Water Act identifies waters that do not or 
are not expected to meet State water-quality standards; States have been 
delegated the authority by the U.S. Environmental Protection Agency (EPA) 
to develop Total Maximum Daily Loads (TMDLs) to bring the quality within 
State standards with oversight from the EPA.  A TMDL allocates pollution 
control responsibilities among pollution sources in a watershed, and is 
the basis for taking the actions needed to restore a waterbody  (U. S. 
Environmental Protection Agency, 1996a).

                           What is a TMDL?

TMDL, or total maximum daily load, is a tool for implementing State 
water-quality standards and is based on the relation between pollution 
sources and stream water-quality conditions.  TMDLs establish the 
allowable loadings or other quantifiable parameters for a waterbody and 
thereby provide the basis for States to establish water quality-based 
controls.  These controls should provide the pollution reduction 
necessary for a waterbody to meet water-quality standards.  As such, 
TMDLs can play a key role in watershed management  (U.S. Environmental 
Protection Agency, 1996b).

Generally, EPA is suggesting that TMDLs be used as a means for 
recommending controls needed to meet water-quality standards in a 
particular water or watershed.  Water-quality standards are ordinarily 
broadly applicable to many waters; TMDLs contain specific goals for a 
given water or watershed.  Establishing a TMDL is a very important step 
in watershed protection because it sets quantified goals for 
water-quality conditions that may then determine what actions are needed 
to restore or protect the health of the waterbody.  

Current EPA regulations (see 40 Code of Federal Regulations (CFR), 
section 130.2(i)) define a TMDL in part as:

"The sum of the individual wasteload allocations (WLAs) for point sources 
and load allocations (LAs) for nonpoint sources and natural 
background.... TMDLs can be expressed in terms of either mass per time, 
toxicity, or other appropriate measure."

In accordance with Section 303(d), TMDLs must also include a margin of 
safety to account for uncertainty.  EPA guidance also suggests 
considering anticipated future growth when allocating loadings for both 
point and nonpoint sources. 

If a TMDL is based on a narrative standard, then a quantified endpoint 
needs to be developed in order to calculate the TMDL.  For example, if 
the narrative standard being violated or threatened is "no toxics in 
toxic amounts," the specific toxic pollutants of concern may need to be 
identified and targets established at levels that would assure no toxic 
effects on humans or wildlife/aquatic life.  TMDL development may be 
based on existing data and simple analytical tools or may require 
additional and more extensive data and complex modeling.

Generally, a TMDL considers only a single pollutant or stressor; the 
process does not consider several pollutants together.  So if the State 
looked at both dissolved oxygen and ammonia toxicity problems in a 
waterbody, this would be counted as two TMDLs, rather than one.  Note: If 
ammonia was contributing only to the nitrification stresses on dissolved 
oxygen rather than ammonia toxicity, one TMDL would be counted.  However, 
TMDLs for multiple stressors may be developed concurrently if it is 
efficient to do so.  For example, one water-quality monitoring survey and 
model application may be used to develop TMDLs for several metals.  By 
addressing all of the metals at one time, more economical analytical 
costs are incurred.  (Stressor is a buzzword these days in ecological 
risk assessment.  In this context, stressor includes a non-chemical 
pollutant, something that affects a classified use of the waterbody, but 
is difficult to set a quantitative limit for.  For example, habitat 
stressors may include removal of canopy, or unstable streambanks, 
deposition of uncontaminated sediment.)  A TMDL should consider all   
significant sources of that pollutant, but it does not have to allocate 
specifically among all the sources.  (Courts have upheld this strategy in 
the Columbia River dioxin TMDL.) (Anne Hoos, written communication, 
Tennessee District, USGS, 1996)

TMDLs are not self-implementing or directly enforceable against sources 
in the watershed.  Rather, they are implemented through other Clean Water 
Act mechanisms and other Federal, State, Tribal and/or local authorities, 
such as point source discharge permits, Federal land management plans, 
State nonpoint source programs, and local zoning programs.  (See U.S. 
Environmental Protection Agency, 1996c, for additional information.)

          What does the Clean Water Act say about TMDLs?

Section 303(d) of the Clean Water Act covers development of TMDLs and 
other directly related activities.  Section 303(d) provides that:

     o  States and authorized Tribes are to list waters for which point
        source  technology-based limits alone do not assure attainment of 
        water-quality standards;
     o  States and authorized Tribes are to set priority rankings for the 
        waters listed, taking into account the severity of the pollution 
        and intended uses of the waters;
     o  In accordance with the priority ranking, States and authorized 
        Tribes are to establish TMDLs that will meet water-quality 
        standards for each listed  water, considering seasonal variations 
        and a margin of safety that accounts for uncertainty;
     o  States and authorized Tribes are to submit their lists and TMDLs 
        to EPA for approval and, once EPA approves them, are to 
        incorporate these items into their continuing planning processes; 
     o  If EPA disapproves a State or Tribal list and/or TMDL, EPA must         
        (within 30 days of disapproval and allowing for public comment) 
        establish the list and/or TMDL for the State or Tribe and the 
        State or Tribe is then to incorporate EPA's action into its 
        continuing planning process (U.S. Environmental Protection 
        Agency, 1996d).

                  What is a Section 303(d) List?
Section 303(d) lists are to be submitted to EPA in April of every 
even-numbered year and must identify waters not meeting (or not expected 
to meet) water-quality standards after implementation of existing and 
scheduled controls.

Historically, the listing requirements of 303(d) were not implemented on 
a regular schedule.  Section 303(d) merely provides for States to submit 
lists to EPA "from time to time."  In the last 7 or 8 years, however, EPA 
and States have increased emphasis on TMDL activities.  Regulations that 
became effective in 1992 required lists to be submitted on a biennial 
basis.  The increasing emphasis on identifying and targeting impaired 
waters is consistent with the increased attention to watershed programs 
that is gradually replacing the water program's historical focus on point 
source technology-based controls (U.S. Environmental Protection Agency, 

              Draft TMDL Program Implementation Strategy

EPA is currently developing a strategy that explains EPA's vision, 
priorities, and steps the Agency will take to help States meet TMDL 
program requirements.  A draft strategy is currently available for public 
comment through April 1997.  This strategy identifies issues for which 
EPA may develop guidance and/or make regulatory changes.  The strategy 
also describes activities that are currently underway, have been recently 
initiated, or for which EPA will direct a greater portion of its 
available program resources.  EPA will use the strategy to facilitate 
broad-based public discussion on how the TMDL program can be improved.

The bulk of EPA's strategy to implement the TMDL program is based on the 
five elements of the water quality-based approach laid out in EPA's 1991 
TMDL guidance.  The elements are:

     1.  Identify waters requiring TMDLs
     2.  Priority ranking and targeting
     3.  Develop TMDLs
     4.  Implement control actions
     5.  Assess control actions

The current strategy adds three additional elements:
     6.  Build partnerships and involve the public
     7.  Oversee consistent national performance
     8.  Promote and support innovation

1.  Identify waters requiring TMDLs

EPA is evaluating whether the current regulatory requirement for States 
to identify waters needing TMDLs should be shifted from every 2 years to 
every 5 years.  A 5-year cycle would allow States to determine which 
waters need TMDLs based on more complete information.  It would also 
allow many States with rotating basin (watershed) schedules to 
synchronize the TMDL listing process with their basin planning processes. 
However, EPA still expects States to submit 1998 303(d) lists on April 1, 
1998, as required by the current regulations.

EPA recognizes the need to augment monitoring and assessment efforts at 
all geographic scales to better identify problem waters, determine 
appropriate pollution control activities, and assess whether the 
activities result in the attainment of water-quality goals. Comprehensive 
monitoring assessment will ensure that all waters needing TMDLs are 
appropriately identified.

EPA will revisit the definitions of terms such as assessed, monitored, 
evaluated, threatened, and impaired to determine whether current section 
305(b) definitions can be uniformly applied to all Clean Water Act 
assessment and reporting requirements, including the development of 
section 303(d) lists.  Consolidating the above requirements and 
establishing a 5-year reporting schedule would enable States to provide a 
comprehensive picture of their waters, direct monitoring and pollution 
control resources most efficiently, and help remedy overlapping reporting 
requirements.  Those States that do rotating basin planning on a 5-year 
schedule will also be able to conduct reporting in conjunction with their 
basin plans.  Consolidation would also provide a simpler way for EPA to 
track national progress.

EPA will explain the conditions under which a TMDL is not necessary and 
when a waterbody does not need to be listed.  EPA will consider whether 
certain circumstances such as pollutant loadings from other media (air), 
remote sources from across political boundaries, natural sources, 
one-time events, and banded substances could be valid reasons to not list 
waters.  EPA will also explain when and how activities done to meet other 
Federal, State or local requirements can be used instead of a TMDL to 
satisfy TMDL program requirements.

2.  Priority ranking and targeting of TMDLs

Determining priorities is a State responsibility, to be done in 
consultation with the public and EPA.  Priority rankings for lists of 
waters requiring TMDLs are also subject to EPA approval.  EPA will 
consider developing additional criteria for States to use in establishing 

EPA will consider modifying the regulatory requirement for States to 
target waters for which TMDLs will be initiated during the next 2 years 
to include State schedules for completing TMDLs for all 303(d) listed 
waters in a reasonable period of time.  At a minimum, the States and EPA 
will work together to agree on a pace for completing TMDLs.

Resources are a central consideration for establishing TMDL program 
priorities, including schedules for TMDL development.  EPA understands 
that resources can significantly constrain the pace of TMDL development, 
as well as the quality of TMDLs.  States may be able to complete large 
numbers of TMDLs in a relative short timeframe if they are based on 
existing data and simple analytical methods.  However, these types of 
TMDLs are not appropriate in all cases.  More complex water-quality 
problems often require TMDLs based on more recent and extensive data and 
more complex water-quality analysis.  In many situations, therefore, 
States may have to choose between speed and technical rigor.  EPA will 
work with each State to agree on the appropriate way to balance these 
tradeoffs while continuing to meet program requirements.  By summer 1997, 
EPA will publish an analysis of the costs associated with implementing 
the TMDL program; this will include identifying waters needing TMDLs, 
developing TMDLs, and financing TMDL development.

3.  Develop TMDLs

EPA will define the elements of an approvable TMDL in revised regulations 
and/or guidance.  Many of these elements already exist in draft form.  
EPA will increase its support for improving the technical tools for 
developing TMDLs (such as models) and for transferring the information to 
States.  This support includes:

     o  Development of TMDL procedures for chemical and nonchemical 
        stressors for which many States do not have numeric criteria.  
        EPA is beginning to develop TMDL procedures for assessing 
        streambed sediment, bacteria, and variable flow dissolved oxygen.
     o  EPA will continue to address the complexities and challenges 
        associated with predicting the water-quality impacts of runoff 
        from nonpoint sources during wet-weather events.  There are two 
        evolving methods for conducting predictive wet-weather modeling: 
        (1) continuous  simulation and (2) probabilistic simulation.  
        Continuous simulations models use input values at a particular 
        time interval (e.g., one hour, daily, weekly) to predict 
        receiving-water conditions.
     o  EPA will increase its support for technical transfer and training 
        to States and other parties developing TMDLs.
     o  EPA will seek opportunities to lead the development of selected 
        interstate TMDLs.  

4.  Implement control actions

Implementation of a TMDL depends on other programs and activities; a TMDL 
alone does not create any new or additional implementation authorities.  
The States, Tribes and EPA are partners within the TMDL program, and 
together they work with Federal, State and local authorities as well as 
other public and private organizations to implement TMDLs.

TMDLs that allocate pollutant loads to point sources regulated by the 
NPDES permit program carry the best assurance that they will be 
implemented.  Point source discharges are subject to direct Federal and 
State regulatory requirements.  Backed by the opportunity for citizen 
lawsuits, this complete enforcement authority provides strong assurance 
that pollution-control activities will be implemented.

Implementation is more complex for TMDLs that allocate pollutant loads to 
nonpoint sources because it does not rely on direct Federal regulation.  
Instead, implementation must typically rely on State law, local ordinance 
or programs administered by Federal agencies, that are voluntary or 
incentive-based in nature.  The implementation of many nonpoint source 
controls also depends on Federal, State or local funding sources such as 
cost share programs.

5.  Assess control actions

Assessing water-quality conditions after pollution controls are 
implemented is essential for determining the success of a TMDL.  This is 
especially true for situations of high uncertainty; for example, in 
watersheds that are polluted due to nonpoint-source pollution such as 
urban stormwater discharges.  

EPA will be issuing further guidance on the phased approach to TMDL 
development.  The phased approach allows nonpoint-source controls to be 
implemented in uncertain situations without waiting for new data 
collection and analysis.  The success of a phased TMDL depends on 
collecting additional data after the TMDL has been implemented to assess 
whether the anticipated controls have reduced pollution by the required 
amount.  The guidance will address monitoring and assessment of control 
actions for these highly uncertain situations, as well as when and how to 
make TMDL revisions for EPA approval.

6.  Build partnerships and involve the public

EPA will continue to develop partnerships with Tribes, Federal agencies, 
and key stakeholder groups.  EPA will also improve public access to 
water-quality information and encourage States to expand public 
involvement in the TMDL program.

EPA will work on a government-to-government basis with Tribes to meet the 
requirements of the TMDL program on Indian lands.  EPA recognizes Tribal 
governments as the primary party for implementing and managing the TMDL 
program on Indian lands.  Beginning in 1997, EPA will take steps to 
encourage and assist Tribes in assuming TMDL program management 

EPA will seek opportunities to cooperate with other Federal land managers 
and States to meet the requirements of the TMDL program on Federal lands. 
EPA will promote a national scale 
framework to consistently implement TMDL program requirements on Federal 

EPA will also facilitate cooperation between other Federal agencies and 
States regarding the objectives of individual State water-quality 

7.  Oversee consistent national performance

EPA will oversee consistent nationwide implementation of the TMDL program 
in two ways.  First, for States, EPA will intervene when necessary to 
identify waters needing TMDLs.  By summer 1997, EPA will establish 
criteria to determine when EPA will intervene to develop TMDLs if a 
State's performance is inadequate.  Second, EPA will use all means 
available to assure that it oversees State performance in a consistent 

8.  Promote and support innovation

EPA will promote and support innovative approaches linked to developing 
and implementing TMDLs, such as watershed-based trading, instream 
monitoring by NPDES point source discharges, and ecological restoration.  
Trading means that pollution sources can sell or barter their ability to 
reduce pollution with other sources that are unable to reduce their 
pollutant loads as economically.  TMDLs provide a basis for successful 
trading because they can be adapted to incorporate trades, and because 
the data and analyses generated in TMDLs allow water-quality managers to 
better understand and predict the effect of proposed trades.

Point source dischargers could provide a great deal of valuable ambient 
(instream) data to help make better watershed management decisions.  
Although the NPDES program has authority to require instream monitoring 
to assure that quality standards are being met, in most cases NPDES 
dischargers are required to monitor the condition of their effluent, 
rather than the condition of the receiving waterbody.

Many water-quality impairments stem from degraded habitat in a watershed. 
Ecological, or habitat restoration helps support diverse, productive 
communities of plants and animals.  Restoration techniques can be 
implemented as part of a TMDL to meet a water-quality standard.  For 
example, in a watershed where elevated sediment loadings damage fish 
spawning habitat, a TMDL can establish a desirable percentage of fine 
sediment in the stream bottom as a measurable endpoint and identify 
instream, streambank, or upland techniques to restore spawning habitat
(see U.S. Environmental Protection Agency, 1996e, for additional 

EPA has convened a TMDL federal advisory committee to advise them about 
their strategy.  That committee is currently compiling its 
recommendations to EPA and when it is available, you should be able to 
locate it through the TMDL home page at URL
l/index.html  The Committee will be meeting in Galveston TX on Feb. 
19-21, 1997; in Wisconsin June 11-13, 1997; in Portland OR Sept. 3-5, 
1997; and in Salt Lake City UT 
Jan. 21-23, 1998.

                       Federal TMDL Resources

The basic funding sources available to States and Indian Tribes under the 
Clean Water Act for implementing the Watershed Approach include:
     o  Section 106 provides base support for overall water-quality 
        management programs -- $80 million
     o  Section 314 (Clean Lakes) provides funding to assess and mitigate 
        lake water-quality problems -- not funded in FY 95 (historically 
        averages approximately $5 million)  
     o  Section 319  provides funding to implement nonpoint source 
        control measures -- $100 million
     o  Section 604(b) provides support for water-quality planning 
        activities  (it does not provide support for implementation of 
        program activities) -- $15 - 20 million
     o  Additional programs (Wetlands, project oriented) funding is 
        available under section 104(b) (3) of the Clean Water Act 
        (U.S. Environmental Protection Agency, 1996f).

                           TMDL Litigation 

Since 1984, nine lawsuits have been filed against EPA that resulted in 
court decisions or consent decrees.  These lawsuits have affected the 
States of Oregon, Alaska, Washington, Minnesota, Idaho, Georgia and New 
York; Lake Michigan (States of Illinois, Indiana, Michigan, and 
Wisconsin); and the Columbia River (States of Idaho, Oregon, and 
Washington).  There are currently (January, 1997) 11 ongoing TMDL 
litigations, and an additional 7 notices of intent to file citizen suits. 
See appendix at end of document for overview of TMDL cases.

States with respect to which EPA is currently under court order to 
establish TMDLs include:

     Oregon -- 1986 consent decree
     Alaska -- 1992 court order
     Georgia -- 1992 court order

States with respect to which plaintiffs have filed litigation seeking 
completion of section 303(d) lists and/or TMDLs  include:

     California (Newport Bay)
     California (North Coast)

     New Jersey
     New Mexico
     New York

     West Virginia

States with respect to which notices of intent to sue have been filed 

     Alabama (2 notices)
     Arizona (mercury arising out of a lawsuit to compel water-quality
       standards for mercury)
     North Carolina

(Information concerning TMDL litigations is a written communication, 
January 9, 1997, from Amy Sosin, EPA.  See Appendix I for more 

          What can USGS do to Help with the TMDL Process?

It is appropriate for the USGS to be involved in TMDL process. Such work 
provides: (a) opportunities for developing new approaches and methods to 
monitor and assess water-quality conditions that have transfer value to 
the water-resource community, and (b) a significant contribution to the 
USGS mission of assessing the water-quality conditions of the United 

When EPA reviewed this document, they expressed a need for USGS expertise 
with regard to field surveys in support of TMDL development, such as, 
reaeration study surveys.  EPA also has a particular need for designing 
water-quality monitoring programs during wet-weather conditions.  EPA has 
its own "suite" of water-quality models.  However, there may be USGS 
models that meet a need not currently addressed by EPA models.  EPA 
Regional coordinators have expressed a need for assistance in measuring 
sediment loadings, nutrient impairments in streams and rivers, bacteria, 
and dissolved-oxygen concentrations at conditions other than low flow.

USGS can participate in the TMDL process in collaboration with States by:
        1.      Collecting, assembling, portraying, and interpreting data 
                to define, water-quality limited segments (i.e., help 
                develop the 303(d) lists).
        2.      Helping conduct TMDL investigations by assessing, 
                simulating, and predicting the stream-quality response to 
                waste load allocations.
        3.      Helping design suitable monitoring programs to satisfy 
                303(d) requirements as well as to assess control actions.
        4.      Providing sound and adequate quality-assurance measures 
                and quality-control data to TMDL projects.
        5.      Providing objective scientific advice to state agencies 
                and other organizations for their use in reaching policy 

One of the first activities should be for the District Management to 
become informed about what is happening in their State.  Possible ways of 
coming up to speed include:

     o  Get a copy of the 1996 303(d) report from your State 
        water-quality regulatory agency or EPA Region.  States need to 
        determine if Tribes in their States have requested the authority 
        to do their own 303(d) lists and TMDLs. 
     o  Review the listings for locations and issues and determine if you 
        have information available  that could improve the list by:  (1) 
        adding sites, (2) deleting sites, or (3) determining that a site 
        is seasonally affected.
     o  Schedule a meeting with the other Federal, State, Tribal and 
        local agencies to discuss our information and what we can do to 
        assist them.
     o  Call the EPA regional TMDL coordinator to indicate that USGS is 
        interested in participating in the TMDL process (be specific as 
        to geographic area and different activities you are capable of 

USGS has several options or possibilities when working with EPA, other 
Federal agencies, States, Tribes, and local governments.  Items 1 through 
3 below will help develop more accurate 303(d) lists.

1.  Develop a project to effectively present our data in a geographic 
format that will aid the State in identifying water-quality limited 
segments (WQLS).  Many States will already have this 
ability; Tribes and local governments may not.  Is there a mechanism that 
should be established to make our data available to them in a routine 
manner?  Consider overlaying the areas of your State with ecoregion 
boundaries as a basis for systematically assessing stream background 
conditions and effects of pollution.  (Be aware that some States have 
developed their own ecoregions, 
sometimes based on the work by Omernik, but not always.) 

2.  Develop a project to evaluate all agency ambient data being collected 
and identify where there is inadequate coverage in space, season, and 
parameters.  All ambient data includes the State, other Federal agencies, 
USGS, local governments, any stream sampling as part of NPDES 
permits (local sewage treatment plants and industrial waste-water 
treatment plants), and any 
voluntary monitoring (with acceptable quality-assurance programs).  There 
are several potential intermediate steps here, many which must be done in 
collaboration with the State:

     o  Locate all environmental and quality-control data and determine 
        the ease of obtaining the data.
     o  Determine, in collaboration with the State, the minimum precision 
        and bias or quality assurance needed to use the data.
     o  Prioritize, in collaboration with the State, areas to review (not 
        all areas of a State are usually of equal priority).
     o  Identify, in collaboration with the State, a method and 
        individuals that will review data of interest for a geographic 
        area with the following objectives:
         a) What sites have water-quality conditions that fail to meet 
            State standards?
         b) Are standards violated for a season or all year?
         c) When considering land-use activities and point-source 
            loadings, can you determine the extent upstream and  
            downstream of the measured site that should be included in  
            the stream segment?
         d) What are the baseline conditions for this site (as part of 
            the ecoregion)?  Do these conditions meet the standards?
         e) Which sites lack sufficient data to determine if State 
            standards are met? 

The process described above is basically what the State does to develop a 
303(d) list.  Therefore, USGS should only do this work in close 
collaboration and coordination with the State

3.  Develop a project in cooperation with a State or Tribal agency to 
obtain the data needed to identify all reaches that should be in a 303(d) 
listing.  This could include working with other agencies to:

     o  Make all ambient NPDES data available for interpretation.
     o  Identify where new ambient data collected as part of amended 
        NPDES  permits would help assess water-quality conditions.
     o  Identify parameters of priority interest to include in amended 
        NPDES permits.
     o  Where applicable, amend current ambient monitoring programs to 
        include priority sites.
     o  Add new sites to ambient monitoring programs.
     o  Add new monitoring programs (synoptic sampling for seasonal 
     o  Identify agencies, people, timelines, and reporting mechanisms to 
        evaluate these data and make the information available to 
        managers and all interested people (fact sheets, public radio 
        summaries, newspaper articles).
    o   Review quality-assurance plans associated with 
        voluntary-monitoring activities.

Once a stream segment is listed as exceeding (or is expected to exceed) a 
state standard, the State agency must, in consultation with EPA, assign a 
priority for conducting the TMDL process.  This process is still being 
developed by EPA and States and likely will include the following:

     1. Determine if Best Management Practices (BMPs) are being         
        followed.  If not, their development and application would likely 
        proceed a TMDL assessment.
     2. Obtain additional data to delineate the length of the stream 
        segment, season of interest, and benefits being restricted 
        because of the water-quality problem.
     3. If the watershed is scheduled for review of all NPDES  permits, 
        a TMDL should be assigned a timeline to proceed renewal of the 
     4. Determine the priority of conducting a TMDL.

The USGS could develop a project to assist other Federal, State, Tribal, 
and local agencies in answering  these questions.  Such a project should 
include as many specific tasks and timelines as possible.

                          Case Studies

Below are three case studies of TMDL investigations by the USGS.  

South Carolina TMDL Study

The TMDL process for allocation of constituent loadings to a receiving 
stream that accounts for point-source, non-point source, and reserve 
capacity is one in which the USGS can play an important role in 
developing the necessary tools to understand and simulate the watershed 
and stream dynamics.  Our experience with the regulatory agency in South 
Carolina is that there are critical elements to the process that are 
regulatory that do not fall within the role of the USGS, but others that 
do.  Fundamental to the TMDL process is the determination of the 
assimilative capacity of the receiving stream.  For unregulated upland 
streams, the process is fairly straight forward whereas for coastal 
waters (where most of the South Carolina District experience has been) 
the process becomes complicated by technical issues; interpretation of 
water-quality standards (written for steady-state upland streams) applied 
to dynamic coastal waters; interpretation of dynamic model output; and 
determination of the "critical conditions" that are "reasonable" to 
permitted dischargers and the regulators.

The Grand Strand is a rapidly growing resort area in Horry and Georgetown 
Counties on the northeastern coast of South Carolina. The Atlantic 
Intracoastal Waterway (AIW), Waccamaw River, and Bull Creek are receiving 
streams for municipal wastewater-treatment facilities in the Grand Strand 
area.  Permits for wasteload allocation are issued by the South Carolina 
Department of Health  and Environmental Control (SCDHEC) and have been 
based on a steady-state, water-quality model developed in 1975.  In the 
late 1980s, the USGS proposed to develop a model that would more 
accurately simulate the dissolved-oxygen concentration of the receiving 
streams.  The project began in 1989 in cooperation with the Waccamaw 
Regional Planning and Development Council (WRPDC), which represents the 
major municipalities in the Grand Strand area.  The model was developed 
with the understanding that the USGS would transfer the model to SCDHEC 
for permitting purposes.  The assimilative capacities of tidally 
influenced reaches of the Waccamaw River, AIW, and Bull Creek were 
determined using results from water-quality simulations by the Branched 
Lagrangian Transport Model (BLTM).  Hydrodynamic data for the BLTM were 
simulated using the BRANCH one-dimensional unsteady-flow model.  Data 
collection included continuous stage, specific conductance, dissolved 
oxygen, and temperature at 15 gaging stations; tidal-cycle discharge 
measurements during low, medium, and high flow conditions at 15 
locations; tidal-cycle nutrient data at 15 locations; and channel slope 
and geometry conditions.  The BLTM calibration and validation is 
documented in WRIR 95-4111.  

Although the model has been accepted by SCDHEC, it has not been used in 
the current permitting process for several reasons.  One problem is the 
interpretation of the point-one rule, which incorporates provisions for 
streams that do not meet the dissolved-oxygen concentration standard due 
to natural conditions.  For these streams, effluent releases are 
permitted only if the instream dissolved-oxygen concentration is not 
lowered more than one-tenth (0.1) of a milligram per liter.  There is 
some debate over the time interval in which the 0.1 deficit can occur.  
USGS determined the ultimate oxygen demand (assimilative capacity), in 
pounds of oxygen per day, for four reaches of the system using a 
seven-day average dissolved-oxygen concentration.  The ultimate oxygen 
demand changes significantly if a different averaging interval of one day 
or 30 days is used. SCDHEC maintains that they must use a 24-hour 
averaging interval because of the way that the State water-quality 
standards are written (SCDHEC acknowledges that the currents standards 
are inadequate for coastal waters). The municipalities maintain that a 
longer averaging period based on the 14- to 28-day spring and neap tidal 
frequency would be more appropriate.  USGS continues to provide technical 
support to WRPDC and SCDHEC as the permitting process continues.  The 
development of this model has enhanced the understanding of 
dissolved-oxygen dynamics in the study area, and will set a precedent for 
wastewater permitting in the coastal areas of South Carolina. (Contact 
Marjorie Davenport (msdavenp) at (803) 750-6109 if you have questions.)

North Carolina TMDL Study

The 7,860 km2 Catawba River basin in North Carolina extends from the 
mountains of the Blue Ridge physiographic province to Lake Wylie, which 
lies along the North Carolina - South Carolina state line in the low 
rolling terrain of the Piedmont province.  In South Carolina, the 
Catawba becomes the Wateree River at Wateree Dam, where the drainage area 
is 12,400 km2.  Essentially all of the Catawba River is regulated.  The 
only extended free-flowing reach of the river in North Carolina is 
between Bridgewater Dam at Lake James and the headwaters of Lake 
Rhodhiss.  A 48-km reach of free-flowing river is located between Wylie 
Dam and the
headwaters of Fishing Creek Reservoir in South Carolina. Thirteen of the 
14 reservoirs on the river were constructed before 1930.   The Federal 
Energy Regulatory Commission (FERC) operating licenses for seven of the 
dams on the Catawba River in North Carolina will be renewed 
simultaneously in the next 5 - 7 years.  North Carolina permits 
point-source discharges using a basinwide approach, so that all 
discharges in the Catawba basin are permitted simultaneously once every 5 
years.  The Catawba River basin is also part of the USGS National Water 
Quality Assessment (NAWQA) Program's Santee - Coastal basin study unit.

A wide variety of industrial and manufacturing facilities are present in 
the area around Rhodhiss Lake and Lake Hickory in the upper Catawba 
basin, which are  the second and third, respectively, reservoirs in the 
Catawba chain.  Three water-supply intakes are located in Lake Rhodhiss, 
and two intakes are in Lake Hickory. There are 35 permitted point sources 
in the subbasin which drains directly to Rhodhiss Lake, including 13 in 
the Lower Creek basin and two to the reservoir. The region around the 
City of Hickory is a rapidly growing urban area, and much of the Lake 
Hickory waterfront has been developed with primary residences and second 
homes.  Twenty-three point-source discharges are present in the Lake 
Hickory subbasin, including two to the reservoir.  Nearby communities 
such as Lenoir, located in the Lower Creek basin, and Morganton continue 
to experience strong growth.  Agriculture is also a major land use north 
of Rhodhiss Lake and Lake Hickory and probably has a significant effect 
on water quality of streams in the area. In 1992, the USGS, in 
cooperation with the Western Piedmont Council of Governments, began an 
investigation to characterize water-quality conditions in the Rhodhiss 
Lake and Lake Hickory basins.  Included in the 3-year study was stream 
sampling on Lower Creek, Upper Little River, and Middle Little River; and 
reservoir sampling on Rhodhiss Lake and Lake Hickory.  Stream sampling 
was conducted to determine total loads into the reservoirs. Inflows and 
outflows from the reservoirs were sampled, and loads were determined.  
Two-dimensional, unsteady water-quality models were developed for 
Rhodhiss Lake and for Lake Hickory.  Modeling was done using the Corps of 
Engineers CE-QUAL-W2 model and detailed boundary data collected during 
the investigation.  The model describes the time-varying vertical and 
longitudinal distributions of velocity, thermal energy, and 21 separate 
nonconservative physical, chemical, and biological constituents 
throughout the reservoir.  The models provide resource managers and 
regulators with a scientifically credible tool for predicting the effects 
of management actions, such as changes in point-source inputs or in 
reservoir operations, on reservoir water quality.  The determination of 
loads which result in the violation of water-quality standards also can 
be determined for a range of hydrologic and meteorologic conditions. 
North Carolina is one of the few (if not only) states which has a 
chlorophyll-a water-quality standard. 

Mountain Island Lake supplies water to more than 500,000 persons in 
Mecklenburg and surrounding counties.  It is expected that millions of 
dollars may be spent by local governments to purchase land around the 
reservoir to protect the land from development.  An additional 30 to 40 
million dollars may also be spent to construct detention ponds in the 180 
km2 basin which drains directly to the reservoir; annual maintenance 
costs for the ponds could be 3 million dollars, or more.  Mountain Island 
Lake also receives waste from the Charlotte-Mecklenburg Utility 
Department's McDowell Creek wastewater treatment plant.  Both the 
McDowell Creek and the Gar Creek embayments of the reservoir have 
suffered from poor water quality in recent years, and the North Carolina 
Division of Environmental Management conducted some intensive studies in 
the McDowell Creek embayment in 1993-94.

Despite the importance of the Catawba River, and in particular Mountain 
Island Lake, to the Charlotte area, very little was known about (1) 
stream (or nonpoint-source) inputs to the reservoir, (2) hydraulic 
circulation and transport mechanisms in the reservoir, and (3) 
water-quality transport and transformation processes.  In 1994, the USGS, 
in cooperation with the Charlotte-Mecklenburg Utility Department began an 
investigation to relate water-quality in Mountain Island Lake to present 
and possible future conditions using methods and analysis techniques 
consistent with those applied elsewhere in the Catawba basin.  The study 
was designed to specifically address the issues of (1) stream inputs to 
Mountain Island Lake, and (2) circulation, constituent transport, 
chemical transformation, and internal cycling processes in the reservoir. 
Total loads into and out of the reservoir were measured, and CE-QUAL-W2 
was applied to the reservoir to estimate total allowable maximum daily 
loads to the reservoir.

Similar investigations have been proposed for Lake Norman and Lake Wylie. 
 Lake Norman is the largest reservoir in North Carolina, just upstream 
from Mountain Island Lake, and is a likely water-supply source for the 
growing western Piedmont of North Carolina. Lake Wylie is immediately 
downstream from Mountain Island Lake. Lake Wylie is one of the most 
eutrophic reservoirs in the State, and increases in loads to the 
reservoir are expected. The application of consistent methods and models 
to the reservoirs in the Catawba River basin will provide managers with 
powerful tools for permitting point-source discharges and determining the 
relative effects of nonpoint-sources on basin water quality.

Oregon Tualatin River Basin TMDL Study


The Tualatin River drains a 712 square-mile basin on the west side of the 
Portland metropolitan area in northwestern Oregon. The basin supports a 
growing population of more than 300,000 and a wide range of urban, 
agricultural, and forest-derived activities. This population depends 
heavily on the Tualatin River for drinking water, irrigation water, 
recreation, and waste removal. The economic prosperity currently enjoyed 
within the basin also depends upon the proper management of this surface 
water resource and the maintenance of its quality. The urban area of the 
basin is served by four waste-water treatment plants (WWTPs) operated by 
the Unified Sewerage Agency (USA) of Washington County. Historically, 
these plants discharged high concentrations of ammonia and phosphorus 
into the main stem of the river.  The high ammonia concentrations often 
caused significant in-river nitrification during the summer, resulting in 
a high oxygen demand and low dissolved-oxygen concentrations downstream 
of the plants. In addition, large populations of phytoplankton thrived in 
the main stem during the summer; the algal blooms and subsequent 
population crashes contributed to violations of the State of Oregon 
minimum dissolved oxygen standard (6.0 mg/L, now revised) and the maximum 
pH standard (8.5).  Several sites also exceeded the State of Oregon 
action level for nuisance algal growth (15 mg/L of 


In response to the Federal Clean Water Act (CWA) of 1972, the Oregon 
Department of Environmental Quality (ODEQ) listed the Tualatin River as a 
"water-quality limited" stream in June of 1973. In 1984 and 1986, the 
ODEQ again listed the Tualatin River as water-quality limited because of 
low dissolved oxygen concentrations and nuisance levels of algae. The 
beneficial uses of the river, designated as "aesthetics" and "swimming," 
were listed as impaired by algal blooms. Once a river has been designated 
as water-quality limited, the CWA requires that total maximum daily loads 
(TMDLs) be developed for that waterbody in order to meet the established 
water-quality standards. In November of 1985, ODEQ and USA began a study 
of pollution sources and water quality in the Tualatin River. In December 
of 1986, the Northwest Environmental Defense Center (NEDC) filed suit 
against EPA for failing to establish and maintain TMDLs for the Tualatin 
River. In June of 1987, a Federal District Court consent decree was 
issued which required the State of Oregon to adopt TMDLs, waste load 
allocations (WLAs), and load allocations (LAs) for the Tualatin River.  

In September of 1988, the Oregon Environmental Quality Commission 
established TMDLs for both ammonia-nitrogen and total phosphorus for the 
main stem Tualatin River and its largest tributaries. The ammonia TMDL 
was set to protect fish habitat from excessively low dissolved oxygen 
concentrations caused by in-river nitrification; the total phosphorus 
TMDL was set in an attempt to control algal growth and improve the 
aesthetics of the river. In December of 1988, ODEQ issued interim LAs and 
WLAs for phosphorus. The establishment of TMDLs in the Tualatin River 
basin prompted the various management agencies to take action to meet the 
load allocations by June of 1993. Since 1988, a wide variety of best 
management practices have been implemented to control non-point and 
stormwater inputs. By far the most significant improvements in water 
quality, however, have been the result of upgrades at the two largest 
WWTPs.  In-plant nitrification has reduced substantially the in-stream 
ammonia load; advanced phosphorus removal results in effluent that has a 
lower phosphorus concentration than that of the receiving water.

By June of 1992, it was apparent that the river would not meet the 
compliance schedule for the total phosphorus TMDL. The point sources 
would be in compliance, but the non-point sources would not. In June of 
1993, the Tualatin River was in compliance with the ammonia-nitrogen 
TMDL, and an extended implementation and compliance schedule had been 
developed and approved for the total phosphorus TMDL.

The USGS Role

In 1990, the U.S. Geological Survey entered into a cooperative agreement 
with the USA to assess the water quality conditions of the Tualatin 
River. The objectives of that project were:

     1. To identify the major sources of nutrients (nitrogen and
        phosphorus) to the main stem of the Tualatin River, 
     2. To assess the transport and fate of those nutrients in the main 
     3. To quantify processes that affect dissolved-oxygen concentrations 
        in the main stem, and
     4. To construct and use a mechanistically-based, process-oriented 
        model of nutrients and dissolved oxygen for the main stem.

Since 1990, USGS personnel have completed these studies of nutrient 
transport, dissolved oxygen sources and sinks, and process-based 
modeling. In particular, the USGS work discovered a large, natural, 
geologic source of phosphorus that will make meeting the non-point LAs of 
the total phosphorus TMDL almost impossible.  In addition, the USGS model 
of the river has been a valuable tool in assessing both the likelihood of 
meeting the TMDLs under various management conditions and the subsequent 
changes in water quality that would result.  Since early 1995, the 
Tualatin TMDLs have been undergoing review, and USGS personnel were 
invited by ODEQ to participate on a technical advisory committee that 
will recommend revisions to these TMDLs. 

The work done by the USGS in the Tualatin River Basin has served to 
inject new information and focus the scientific debate surrounding the 
issues of river management in the Tualatin River basin. Several 
"spin-off" cooperative projects in the basin have been initiated, 
including research and modeling exercises to better understand the 
processes that affect the river's temperature. USA has estimated that 
their partnership with USGS has saved them hundreds of millions of 
dollars in unnecessary treatment plant and BMP upgrades.

The TMDL process is often highly charged with political agendas, a great 
deal of mistrust for the party on the other side of the negotiating 
table, and threats of legal action. Despite these sources of frustration, 
the TMDL process also represents a wonderful opportunity for the USGS to 
stand just beyond the political fray and conduct sound scientific 
investigations of immediate beneficial impact.  (Contact Stewart Rounds 
[sarounds) at (503) 251-3280 if you have questions.)

Additional examples of case studies of 14 TMDLs and TMDL development cost 
estimates can be found at URL

               People to Contact Concerning the TMDL Process

EPA Headquarters
Office of Water

TMDL Team, Assessment and Watershed Protection Division, Office of 
Wetlands, Oceans and Watersheds

Phone:    (202) 260-7074
Fax:                7024

Exposure Assessment Branch, Standards and Applied Sciences Division, 
Office of Science and Technology

Phone:    (202) 260-7301
Fax:                9830

TMDL Coordinators at  EPA Regions
Region 1
Mark Voorhees
Water Quality Management Section
USEPA Region 1 (CWQ)
J.F. Kennedy Building
Boston, MA 02203-2211
Phone (617) 565-4436
Fax             4940

Region 2
Rosella O'Connor
Division of Envir. Planning and Protection
USEPA Region 2
290 Broadway, 24th floor
New York, NY 10007-1866
Phone (212) 637-3823
Fax             3889

Also: Felix Locicero
      Phone: (212) 637-3775

Region 3
Thomas Henry
Water Protection Division (3WP13)
USEPA Region 3 
841 Chestnut Street
Philadelphia, PA 19107
Phone (215) 566-5752
Fax             2301

Region 4
Jim Greenfield
Water Quality Management Branch
USEPA Region 4 - Atlanta Federal Center
100 Alabama Street, SW
Atlanta, GA 30303
Phone (404) 562-9243
Fax             9318

Also: Yvonne Martin
      Phone: (404) 562-9263

Region 5
Joan Karnauskas
USEPA Region 5 (5WQ-16J)
77 West Jackson Street
Chicago, IL  60604-3507
Phone (312) 886-6090
Fax             7804

Region 6
Troy Hill
USEPA Region 6 (6WQ-EW)
1445 Ross Avenue
Dallas, TX 75202-2733
Phone (214) 665-6647
Fax             6689

Region 7
Jerry Pitt
USEPA Region 7
Water Wetlands and Pesticide Division
726 Minnesota Avenue
Kansas City, KS 66101
Phone (913) 551-7766
Fax             7765

Region 8
Bruce Zander
USEPA Region 8 (8EPR-EP)
999 18th Street, Suite 500
Denver, CO  80202-2405
Phone (303) 312-6846
Fax             6071

Region 9
Dave Smith
Watershed Protection Branch (WRT-2)
USEPA Region 9
75 Hawthorne Street
San Francisco, CA 94105
Phone (415) 744-2012
Fax             1078

Region 10
Bruce Cleland
USEPA Region 10 (OW-134)
1200 Sixth Avenue
Seattle, WA 98101
Phone (206) 553-2600
Fax             0165

Also: Alan Henning (OW-134)
      Phone: (206) 553-8293; Fax: (206) 553-0165


U.S. Environmental Protection Agency, 1996a, Draft TMDL program
  implementation strategy--executive summary: from URL, Revised Dec. 5, 
  1996, p. 1. 

U.S. Environmental Protection Agency, 1996b, TMDL Program -- Front page: 
  from URL, Revised Nov. 13, 
  1996, p. 1. 

U.S. Environmental Protection Agency, 1996c,TMDL overview: from URL, revised Nov. 13, 1996, 
  p. 1-2.

U.S. Environmental Protection Agency, 1996d,TMDL overview: from URL, revised Nov. 13, 1996, 
  p. 1.

U.S. Environmental Protection Agency, 1996e, Draft TMDL Program 
  Implementation strategy: from URL, Revised Dec. 9, 1996,
  p. 1-8. 

U.S. Environmental Protection Agency, 1996f, TMDL development costs 
  estimates: Availability of funding: from URL, Modified July 30, 1996, 

                   Appendix I  -- Overview of TMDL Cases

TMDL Cases with Court Decisions or Consent Decrees

A.  Scott v. City of Hammond, 741 F.2d 992, 996 (7th Cir. 1984), cert. 
denied, 469 U.S. 1196 (1985) -- Lake Michigan Plaintiffs alleged that EPA 
had a mandatory duty under section 303(d) to promulgate TMDLs for Lake 
Michigan if the State failed to do so.  In this case, the States had not 
identified any water-quality limited segments or established any TMDLs 
for Lake Michigan.  That fact, coupled with EPA's admission that no TMDL 
submissions had been made, in the Court's view "raise[d] the 
possibility that the [S]tates ha[d] determined that TMDLs for Lake 
Michigan [were] unnecessary."  The Court of Appeals remanded the case to 
the District Court for a finding whether the States had "refused" to act. 
"[S]tate inaction amounting to a refusal to act" would be interpreted as 
a constructive submission of no TMDL, thus triggering EPA's duty to 
approve or disapprove such submission and to promulgate the TMDL itself 
(in the event of a disapproval). On remand, Illinois, Indiana, and 
Michigan submitted determinations that TMDLs were unnecessary for Lake 
Michigan; Wisconsin identified four areas for TMDL development.  EPA 
approved the State determinations in 1985.  In a subsequent case 
(National Wildlife Federation v. Adamkus, 1991 U.S. Dist. LEXIS 4037 (N>D>
 Ill. Mar. 27, 1991)) plaintiffs contended that insufficient TMDL 
activity by States bordering Lake Michigan constituted a constructive 
submission of no TMDLs and that EPA was required to approve or disapprove 
the submission.  The court rejected the plaintiffs' contention because 
the Lake Michigan States had made actual submissions in 1985 which EPA 
approved, thus precluding a finding of constructive submission.

B.  Northwest Environmental Defense Center, et al. v. EPA, No. 96-1578 
(D.Ore.) Oregon

Plaintiffs brought this mandatory duty suit in 1986 on a constructive 
submission theory.  Oregon had done little, if anything, to implement the 
requirements of section 303(d).  Accordingly, EPA entered into a consent 
decree with plaintiffs that addresses EPA obligations under section 
303(d) in the event the State of Oregon does not carry them out.  In 
1994, the same plaintiffs filed a new lawsuit alleging that Oregon had 
constructively submitted no 1994 section 303(d) lists, thereby triggering 
a duty by EPA to establish such lists.  EPA entered into a consent decree 
to act on 
Oregon's 1996 list submissions by May 1996.  EPA satisfied that decree.

C.  Alaska Center for the Environment v. Reilly, 762F. Supp. 1422-29 
(W.D. Wash. 1991) upheld on appeal 20 F.3d 981 (9th Cir. 1994) -- Alaska

In this case, all parties agreed that no TMDL had ever been submitted to 
EPA for Alaska.  Moreover, the court found that the State of Alaska had 
not completed "even the first stage of the TMDL process."  The court 
noted that although the State's 1988 305(d) report identified several 
hundred water bodies as impaired or threatened by water pollution, Alaska 
had identified only one water-quality-limited segment prior to the 
litigation and had submitted to EPA a list of 48 segments after the 
litigation commenced.  The court also concluded from the evidence that 
the State had not attempted to develop a TMDL and therefore 
constructively submitted no TMDLs. The court ordered EPA to initiate its 
own process of establishing TMDLs, including any and all necessary steps 
to effectively identify the appropriate waterbodies at issue.

D.  Northwest Environmental Defense Center, et al. v. EPA, No. C91-427R 
(W.D. Wash.) -- Washington

This mandatory duty suit was brought in 1991 by the same plaintiffs that 
commenced the 1986 Oregon 303(d) lawsuit.  Like that suit, the plaintiffs 
alleged that State inaction amounted to a constructive submission of no 
TMDLs or lists.  EPA entered into a consent decree in 1992 that required 
EPA to negotiate with the State of Washington a 5-year plan for 
implementation of section 303(d) in the State, but the court retained 
jurisdiction.  On December 7, 1994, these plaintiffs, dissatisfied with 
progress under the decree, amended their complaint (see discussion below).

E.  Sierra Club v. Browner, 843 F. Supp. 1304,1314 (D. Minn. 1993) -- 

Invoking the theory of "constructive submission," plaintiffs in this case 
alleged that EPA had a mandatory duty to establish a list of 
water-quality-limited segments and accompanying TMDLs for Minnesota 
waters.  The court found that the State had submitted several lists of 
waters to EPA and, although EPA disapproved these lists and promulgated 
its own list, refused to apply the constructive submission theory to 
these facts.  The court also noted that the State was working on a TMDL 
for a 330-mile stretch of the Minnesota River, as well as TMDLs for five 
other water-quality-limited segments, with schedules and dates ranging 
from July 1993 to December 2002.  The court also noted that EPA had 
approved schedules for two more TMDLs.  In concluding that the 
Minnesota's TMDL activities precluded a finding of constructive 
submission, the court also noted that EPA had approved 43 TMDLs/wasteload 
allocations submitted by the State (which were in the form of 
water-quality-based effluent limits in NPDES permits).  The court 
dismissed the case.

F.  Dioxin/Organochlorine Center, et al. v. Rasmussen, (57 F.3d 1517  
(9th Cir. 1995) -- Columbia River TMDL (WA, OR, ID)

In this case, environmental and industry plaintiffs challenged the 
adequacy and reasonableness of the TMDL for dioxin promulgated by EPA for 
the Columbia River.  The District Court upheld the TMDL and concluded, 
among other things, that a TMDL did not need to set wasteload allocations 
for all point sources and load allocations for all nonpoint sources, 
provided that all discharges of a pollutant are considered.  The Court of 
Appeals affirmed, upholding EPAs TMDL for dioxin as sufficiently 
protective of subsistence fishers.

G.  Idaho Sportsmen's Coalition, et al. v. Browner, No. C93-943, W.D. 
Wash -- Idaho (ongoing litigation)

In the first part of their lawsuit, plaintiffs successfully challenged as 
arbitrary and capricious EPA's approval of a list of 36 water 
quality-limited segments (WQLS) submitted by the State of Idaho.  The 
court concluded, among other things, that the list improperly omitted 
waters identified as impaired in the State's 305(b) report and failed to 
consider information available from the U.S. Forest Service.  The court 
then directed EPA to establish its own list, which EPA did on 
October 7, 1994.

In the second part of this lawsuit, plaintiffs alleged that Idaho had 
constructively submitted no TMDLs, thereby triggering EPA's mandatory 
duty to promulgate TMDLs.  On May 19, 1995, the Court ruled that Idaho's 
submission of two TMDLs, coupled with its progress in developing TMDLs in 
29 listed segments and other pollution control strategies, was sufficient 
to defeat the plaintiffs' constructive submission claim, although the 
court noted that it was a "close question."  The court went on to find, 
however, that EPA had violated a "duty" under the statute and the TMDL 
regulations -- and had acted arbitrarily and capriciously -- in failing 
to develop, with Idaho, a reasonable schedule for the development of 
TMDLs for all listed water-quality limited streams (WQLSs).  (There are 
presently 962 waters on the list.)  The court then directed EPA to file 
such a schedule by May 19, 1996, which EPA did.  On September 26, 1996, 
the court rejected the schedule submitted by EPA and remanded to EPA with 
instructions to submit a new schedule within 6 months.

H.  Sierra Club, et al. v. Hankinson, No. 1 94-CV-2501-MHS (N.D. Ga.) -- 

In this case, plaintiffs asserted that Georgia's failure to submit TMDLs 
over a long period of time amounted to a constructive submission of no 
TMDLs, thus triggering EPA's duty to establish TMDLs for Georgia.  The 
court, in an order dated March 25, 1996, held that the constructive 
submission theory was not appropriate in this case "because Georgia has 
made some TMDL submissions, albeit totally inadequate."  However, the 
court also found that "EPA's failure to disapprove of Georgia's 
inadequate TMDL submissions was arbitrary and capricious in violation of 
the Administrative Procedure Act and that EPA's failure to promulgate 
TMDLs for Georgia violates the Clean Water Act."

On August 30, 1996, the court issued an order directing EPA to establish 
TMDLs for all listed waters within 5 years and to ensure that TMDLs are 
implemented through the NPDES permitting program which the State, not 
EPA, administers.  EPA filed a notice of appeal on November 4, 1996.

I.  Natural Resources Defense Council, et al. v. Fox, No. 94 Civ. 8424 
(S.D.N.Y.) -- New York (ongoing litigation)  

In this case (filed November 1994), the plaintiffs seek an order 
directing EPA to establish a list of water-quality-limited segments for 
the State of New York as well as TMDLs for those waters.  The expressed 
intent of this complaint, however, is to protect the drinking water 
supply for New York City through the development of TMDLs for New York 
City's drinking water reservoirs and tributaries, and the plaintiffs 
accordingly ask the court to direct EPA to assign a high priority to the 
protection of those water segments.  Both parties moved for summary 
judgement which the court denied in December 1995.  The court found that 
a trial was needed to determine whether the State had made TMDL 

Ongoing TMDL Litigation -- not briefed

A.  Northwest Environmental Advocates, et al. v. Browner, No. 91-427R 
(W.D. Wash.) -- Washington

In this amended complaint (filed November 1994), the plaintiffs ask the 
court, among other things, to order EPA to develop a schedule for the 
establishment of TMDLs for all water-quality-limited segments in 
Washington.  They also seek an order directing EPA to disapprove the 
State's section 303(e) continuing planning process (CPP) because of the 
alleged section 303(d) violations and, on that basis, to "disapprove" the 
State's NPDES permit program and to prohibit the issuance or renewal of 
any new or existing NPDES permit that "would allow for additional 
discharge of pollutants into the navigable waters of the State of 

B.  Ohio Valley Environmental Coalition, Inc., et al. v. Carol Browner, 
et al., No. 2:95-0529) (S.D.W.VA.) -- West Virginia

In this case (filed July 1995), plaintiffs are asking the court to direct 
EPA to establish section 303(d) lists and TMDLs for West Virginia.  
Plaintiffs are also seeking an injunction establishing an expeditious 
schedule for EPA compliance with these duties and ensuring that either 
West Virginia or EPA undertake monitoring to determine the full set of 
West Virginia's "water-quality limited" waters.

C.  Kansas Natural Resources Council, Inc., et al. v. Browner, No. 
95-2490 -JWL (D. Kansas) -- Kansas

In this case (filed October 1995), in addition to seeking an order 
directing EPA to disapprove Kansas' section 303(d) list and to establish 
lists and TMDLs for Kansas, plaintiffs ask the court to order EPA to 
withdraw its approval of Kansas' NPDES permit program, to stop making 
permit-related grants to Kansas, and to refrain from issuing or renewing 
NPDES permits for Kansas until EPA has approved an adequate continuing 
planning process for Kansas.

D.  Pacific Coast Federation of Fishermen's Association, et al. v. 
Marcus, et al., No. 95-4474 MHP (N.D. Calif.) -- California (North Coast)

In this case (filed December 1995), plaintiffs seek an order directing 
EPA to establish a priority schedule for establishing TMDLs for 17 
waterbodies in the North Coast of California and to establish such TMDLs 
in accordance with the schedule if the State of California fails to 
establish the TMDLs.

E.  American Littoral Society, et al. v. EPA. No. 96-489 (E.D. Pa.) -- 

In this case (filed January 1996), plaintiffs seek a court order 
directing EPA to disapprove the State's TMDL list and establish a list 
for the State, establish TMDLs for all listed waterbodies, disapprove the 
State's section 303(e) continuing planning process (CPP) and if the State 
fails to adopt an approvable CPP, withdraw the State's NPDES 
authorization, and to consult pursuant to the Endangered Species Act in 
carrying out its obligations under section 303(d) and (e).
F.  American Littoral Society, et al. v. EPA, No. 96-339 (MLP) -- New 

In this case (filed January 1996), plaintiffs seek a court order 
basically the same as in the 
Pennsylvania litigation summarized above.

G.  Sierra Club, et al. v. Saginaw. et al., No. 96-0527 (N.D. La.) -- 

In this case (filed February 1996), plaintiffs seek a court order 
directing EPA to establish a section 303(d) list for the State, establish 
TMDLs for all waterbodies on the list, and establish a schedule for 
submission of TMDLs for all listed waterbodies.

H.  Forest Guardians, et al. v. Browner, No. 96-0826 LH (D. N. Mex.) -- 
New Mexico

In this case (filed June 1996), plaintiffs seek a court order directing 
EPA to establish TMDLs for all listed waters in the State.

I.  American Littoral Society, et al. v. EPA, et al., No. 96-330 (D. 
Del.) -- Delaware

In this case (filed June 1996), plaintiffs seek the same relief requested 
in the Pennsylvania and New Jersey cases summarized above.

J.  Defend the Bay, Inc. v. Marcus. et al., No. 96-2591 DLJ (N.D. Calif.) 
-- California (Newport Bay) (complaint withdrawn)

In this case (filed July 1996), plaintiff seeks a court order directing 
EPA to establish TMDLs for Newport Bay, Orange County, California, and 
restraining EPA for allowing California to permit discharges into the Bay 
of any pollutants responsible for water-quality impairment.  Plaintiffs 
withdrew their complaint; settlement negotiations are ongoing.

K.  Northwest Environmental Advocates, et al. v. Browner, et al., No. 
C94-1666R (W.D. Wash.) -- Oregon

In this case (filed September 1996), plaintiffs challenge EPA's approval 
of Oregon's 1994-96 section 303(d) list, allege that EPA failed to 
approve or disapprove TMDLs submitted by Oregon within 30 days, allege 
that EPA must establish a schedule for establishment of TMDLs in Oregon, 
and allege that EPA must disapprove the State's CPP and NPDES program.

Notices of Intent to File Citizen Suits

A.  Cahaba River Society (filed June 1994) -- Alabama
B.  Florida Wildlife Federation (filed August 1994) -- Florida
C.  Sierra Club (Mississippi Chapter) (filed September 1995) -- 
D.  Wyoming Outdoor Council, it al. (filed October 1996) -- Wyoming
E.  Edward W.Mudd, Jr. (filed October 1996) -- Alabama
F.  Arizona Center for Law in the Public Interest (filed October 1996) -- 
      Arizona (notice forced on waters impaired by mercury)
G.  Neuse River Foundation (filed October 1996) -- North Carolina