TMDL -- Should USGS be doing something?
To: " , WRD Archive File, Reston, VA "
cc: "Janice R Ward, Assistant Chief, OWQ, Reston, VA ",
"Iris M Collies, Writer-Editor, Reston, VA ",
"Nana L Frye, Secretary (OA), Reston, VA "
Subject: OFFICE OF WATER QUALITY TECHNICAL MEMORANDUM 97.05 -- With
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Date: Thu, 20 Feb 1997 11:14:54 -0500
From: "Nana L Frye, Secretary (OA), Reston, VA "
In Reply Refer To:
Mail Stop 412 February 19, 1997
OFFICE OF WATER QUALITY TECHNICAL MEMORANDUM 97.05
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
elements:
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
efficiently.
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
States.
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
decisions.
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 130.11.51.181"
type "anonymous" for the user id
type "anonymous" for the password
type "cd pub"
type "get tmdl.fm"
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
Introduction
Chronology
The USGS role
People to contact concerning the TMDL process
EPA headquarters
TMDL coordinators at EPA regions
References
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
ATTACHMENT:
The Total Maximum Daily Load (TMDL) Process
Table of Contents
Introduction
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
Introduction
Chronology
The USGS role
People to contact concerning the TMDL process
EPA headquarters
TMDL coordinators at EPA regions
References
Appendix I -- Overview of TMDL cases
TMDL cases with court decisions or consent decrees
Ongoing TMDL litigation
Notices of intent to file citizen suits
Introduction
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;
and
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,
1996d).
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
priorities.
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
responsibilities.
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
lands.
EPA will also facilitate cooperation between other Federal agencies and
States regarding the objectives of individual State water-quality
programs.
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
manner.
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
information).
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 http://www.epa.gov/owowwt1/tmd
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)
Delaware
Georgia
Idaho
Kansas
Louisiana
New Jersey
New Mexico
New York
Oregon
Pennsylvania
Washington
West Virginia
Wyoming
States with respect to which notices of intent to sue have been filed
include:
Alabama (2 notices)
Arizona (mercury arising out of a lawsuit to compel water-quality
standards for mercury)
Florida
Mississippi
Montana
North Carolina
(Information concerning TMDL litigations is a written communication,
January 9, 1997, from Amy Sosin, EPA. See Appendix I for more
information.)
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
States.
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
decisions.
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
doing).
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
questions).
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
permits.
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
Introduction
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
chlorophyll-a).
Chronology
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
stem,
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 http://www.epa.gov/owowwt1/tmdl/tmdlcost.htm
l
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
References
U.S. Environmental Protection Agency, 1996a, Draft TMDL program
implementation strategy--executive summary: from URL
http://www.epa.gov/owowwtr1/tmdl/strategy/execsum.html, Revised Dec. 5,
1996, p. 1.
U.S. Environmental Protection Agency, 1996b, TMDL Program -- Front page:
from URL http://www.epa.gov/owowwtr1/tmdl/indes.html, Revised Nov. 13,
1996, p. 1.
U.S. Environmental Protection Agency, 1996c,TMDL overview: from URL
http://www.epa.gov/owowwtr1/tmdl/fsintro.html, revised Nov. 13, 1996,
p. 1-2.
U.S. Environmental Protection Agency, 1996d,TMDL overview: from URL
http://www.epa.gov/owowwtr1/tmdl/fsintro.html, revised Nov. 13, 1996,
p. 1.
U.S. Environmental Protection Agency, 1996e, Draft TMDL Program
Implementation strategy: from URL
http://www.epa.gov/owowwtr1/tmdl/indes.html, Revised Dec. 9, 1996,
p. 1-8.
U.S. Environmental Protection Agency, 1996f, TMDL development costs
estimates: Availability of funding: from URL
http://www.epa.gov/owowwtr1/tmdl/part5.html, Modified July 30, 1996,
p.1.
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) --
Minnesota
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.) --
Georgia
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
submissions.
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
Washington."
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.) --
Pennsylvania
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
Jersey
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.) --
Louisiana
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) --
Mississippi
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