Western States Water Council 2005 Report

Home Browse Search

involves the active participation and support of all levels of government and local communities. Unfortunately, many have said the rule designed to implement the TMDL program falls short of achieving the goals." EPA proposes reconsidering some of the choices made in the July 2000 rule, and will consider a number of recommendations for improving the program prepared by the National Academy of Sciences at the direction of the Congress. The Western States Water Council favors rules allowing states to effectively implement the TMDL program and voiced concern that the rules lacked the necessary flexibility. For example, the TMDL rules had no "functional equivalency" provision so that existing state programs might continue if the rule would have the same end result as the TMDLs. The Council also opposed as unrealistic the fixed 10 -year standard for attaining water quality standards in all waterbodies. Such a "one size fits all" approach did not reflect the reality that many waterbodies will not reach established standards within that time. Instead, the Council urged EPA to estimate the time period it will take individual waterbodies to reach water quality standards. Additionally, the Council feared that by allowing EPA to give itself power to cancel administratively - continued state NPDES permits, EPA would be usurping the authority to effectively implement TMDLs without regard to state law. The EPA's final rules also included a Tier 3 classification for those bodies of water which see a decline in the level of water quality since the designation of the rule. The Council was of the opinion that this classification should be limited to only high quality waters on the 303(d) list, in order to assure higher scientific precision of a TMDL, bringing out a positive change in water quality. The Council wholeheartedly supported EPA's decision to remove from the final rules provisions pertaining to the §303(d) public petition process, to remove the required pollution offsets for new and expanded discharges in listed waters, and to remove the provision requiring NPDES permitting for certain categories of agricultural and forestry activities. In a potentially precedent setting policy decision, EPA declined to act on a request by the Montana Department of Environmental Quality (DEQ) to approve a "flow TMDL" for Big Creek. On July 27th, Bruce Zander, EPA Region VIII's TMDL Coordinator responded in a letter that while EPA agreed with the findings, submitted in a December 2000 letter to EPA for review, in Montana's flow management plan for Big Creek, "EPA is not taking formal action pursuant to Section 303(d)(2) of the Clean Water Act [CWA] to approve or disapprove this TMDL. It is EPA's position that TMDLs are required by the Clean Water Act only for pollutants that are causing or contributing to the impairment of a water quality limited segment (WQLS). Section 303(d)(1) of the Act requires States to identify water quality limited segments, and to establish TMDLs for such waters for `those pollutants' EPA identifies as suitable for such calculation. The Act in turn defines `pollutants' to include various materials discharged into water. See § 509(6). We interpret the definition of `pollutant' in the Act as excluding flow alterations, such as those causing the impairment of Big Creek, since flow alterations are not covered by the list of materials in this definition. Therefore, since TMDLs are required only for pollutants, and flow alteration is not a pollutant, no TMDL for low flow is required for Big Creek under the Act or EPA regulations. "ab The letter continues, "We believe that the flow management plan for Big Creek that you have submitted is a reasonable approach to addressing flow in this waterway. However, the Act does not 46 Western States Water, Issue #1422, August 17, 2001 and Issue #1433, November 2, 2001. 45