EPA's TMDL program

Ecology Law Quarterly

Volumn 28, Issue 2, 2001, Pages 297-324

  Birkeland, Sarah ^a  

^a NONE

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EID: 0035612638     PISSN: 00461121     EISSN: None     Source Type: Journal    
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References (172)

1. See Water Quality Planning and Management Regulation, 65 Fed. Reg. 43,585 (July 13, 2000) (to be codified at 40 C.F.R. pts. 9, 122, 123, 124, 130).
2. See generally WILLIAM H. RODGERS JR., ENVIRONMENTAL LAW (2d ed. 1996).
3. See 33 U.S.C. § 1313(d)(1)(A) (2000). The standards referenced in Section 303(d)(1)(A) are the "best practicable control technology" standards of Section 301(b)(1)(A) and secondary treatment for publicly owned treatment works under Section 301(b)(1)(B). 33 U.S.C. § 1311(b)(1)(A), (B) (2000).
4. Id. § 1313(d)(1)(C).
5. Id.
6. James Boyd, The New Face of the Clean Water Act: A Critical Review of the EPA's Proposed TMDL Rules 4 (Mar. 2000) (Discussion Paper 00-12, Resources for the Future) (on file with author).
7. Id. at 6.
8. See Water Quality Planning and Management, 65 Fed. Reg. 43,568, 43,587 (July 13, 2000).
9. See Pronsolino v. Marcus, 91 F. Supp. 2d 1337 (N.D. Cal. 2000).
10. The FACA committee appointed by EPA to develop recommendations for the new TMDL regulations illustrated the divide; committee members were unable to reach a consensus on whether Section 303(d) applied to nonpoint sources. Oliver A. Houck, TMDLs III: A New Framework for the Clean Water Act's Ambient Standard Program, 28 ENVTL. L. REP. 10,415, 10,421 (1998) [hereinafter Houck, TMDLs III]. Agricultural interests on the committee read Section 303(d) to apply where NPDES effluent limitations have failed to achieve the applicable water quality standard. Accordingly, Section 303(d) can only be triggered for waters with point source dischargers where water quality standards continue to be violated, not for waters impaired solely by nonpoint pollution. Id. A recent California district court decision discussed in this issue flatly contradicts this reading of Section 303(d). See Pronsolino, 91 F. Supp. 2d at 1337; see also Debbie Shosteck, Note, Pronsolino v. Marcus, 28 ECOLOGY L.Q. 327 (2001).
11. The FACA committee appointed by EPA to develop recommendations for the new TMDL regulations illustrated the divide; committee members were unable to reach a consensus on whether Section 303(d) applied to nonpoint sources. Oliver A. Houck, TMDLs III: A New Framework for the Clean Water Act's Ambient Standard Program, 28 ENVTL. L. REP. 10,415, 10,421 (1998) [hereinafter Houck, TMDLs III]. Agricultural interests on the committee read Section 303(d) to apply where NPDES effluent limitations have failed to achieve the applicable water quality standard. Accordingly, Section 303(d) can only be triggered for waters with point source dischargers where water quality standards continue to be violated, not for waters impaired solely by nonpoint pollution. Id. A recent California district court decision discussed in this issue flatly contradicts this reading of Section 303(d). See Pronsolino, 91 F. Supp. 2d at 1337; see also Debbie Shosteck, Note, Pronsolino v. Marcus, 28 ECOLOGY L.Q. 327 (2001).
12. See 40 C.F.R. § 130.32.
13. For example, it cost the Oregon Department of Environmental Quality one million dollars to establish one TMDL for one river. Craig N. Johnston, Don't Go Near the Water: the Ninth Circuit Undermines Water Quality Enforcement, 24 ENVTL. L. 1289, 1314 (1994); see also Mark T. Pifher, The Clean Water Act: Cooperative Federalism?, NAT. RESOURCES & ENVT., Summer 1997, at 36 (questioning how the states will be able to afford the data-intensive TMDL program).
14. For example, it cost the Oregon Department of Environmental Quality one million dollars to establish one TMDL for one river. Craig N. Johnston, Don't Go Near the Water: the Ninth Circuit Undermines Water Quality Enforcement, 24 ENVTL. L. 1289, 1314 (1994); see also Mark T. Pifher, The Clean Water Act: Cooperative Federalism?, NAT. RESOURCES & ENVT., Summer 1997, at 36 (questioning how the states will be able to afford the data-intensive TMDL program).
15. See Oliver A. Houck, TMDLs, Are We There Yet?: The Long Road Toward Water Quality-Based Regulation Under the Clean Water Act, 27 ENVTL. L. REP. 10,391, 10,401 (1997) [hereinafter Houck, Are We There Yet?].
16. See Oliver A. Houck, TMDLs, Are We There Yet?: The Long Road Toward Water Quality-Based Regulation Under the Clean Water Act, 27 ENVTL. L. REP. 10,391, 10,401 (1997) [hereinafter Houck, Are We There Yet?].
17. See Oliver A. Houck, TMDLs IV: The Final Frontier, 29 ENVTL. L. REP. 10,469, 10,479 (1999) [hereinafter Houck, The Final Frontier].
18. See Oliver A. Houck, TMDLs IV: The Final Frontier, 29 ENVTL. L. REP. 10,469, 10,479 (1999) [hereinafter Houck, The Final Frontier].
19. A best management practice is a control measure for slowing, retaining, or absorbing pollutants produced by the surface water runoff associated with nonpoint source pollution. See Daniel R. Mandelker, Controlling Nonpoint Source Water Pollution: Can It Be Done?, 65 CHI.-KENT L. REV. 479, 483 (1989). Best management practice was not defined under the CWA's nonpoint provisions; apparently Congress did not want to limit states' flexibility in developing programs or undercut existing programs. See id.
20. See Pronsolino v. Marcus, 91 F. Supp. 2d 1337, 1355 (N.D. Cal. 2000) (stating that "[u]nlike EPA's authority to revise individual NPDES permits issued by States for individual point sources, EPA received no authority to review land-use restrictions placed (or not placed) on timber-harvesting permits by [California Department of Forestry] or any other practice permitted for agriculture or silviculture." Id.
21. See Houck, The Final Frontier, supra note 14, at 10,469; Drew Caputo, A Job Half Finished: The Clean Water Act After 25 Years, 27 ENVTL. L. REP. 10,574, 10,575-76 (1997).
22. See Houck, The Final Frontier, supra note 14, at 10,469; Drew Caputo, A Job Half Finished: The Clean Water Act After 25 Years, 27 ENVTL. L. REP. 10,574, 10,575-76 (1997).
23. See generally ROBERT ADLER ET AL., THE CLEAN WATER ACT 20 YEARS LATER 16 (1993).
24. See Houck, The Final Frontier, supra note 14, at 10,471 (citing COUNCIL ON ENVTL. QUALITY, ENVIRONMENTAL QUALITY 1994-95 271-73 (1997)).
25. See id. at 10,470. The principal sources contributing to water quality impairment today are nonpoint sources. The National Water Quality Inventory Report to Congress for 1998 indicates that of the 23% of the nation's rivers and streams that have been assessed, 35% do not fully support water quality standards or uses and an additional 10% are threatened. The report indicates that pollutants in the runoff from urban and agricultural land are a leading source of impairment. Agriculture is the leading source of pollutants in assessed rivers and streams, contributing to 59% of the reported water quality problems and affecting about 170,000 river miles. Hydromodification is the second leading source of impairment, and urban runoff/storm sewers is the third major source, contributing respectively 20% and 12% of water quality problems. Water Quality Planning and Management Regulation, 65 Fed. Reg. 43,585, 43,587 (July 13, 2000).
26. See, e.g., Oliver A. Houck, TMDLs: The Resurrection of Water Quality Standards-Based Regulation Under the Clean Water Act, 27 ENVTL. L. REP. 10,329, 10,330 (1997) [hereinafter Houck, Resurrection]. Houck rests the theory of water quality-based regulation squarely on human use. Id. Water quality-based regulation was the original federal water pollution strategy in this country, but faced with "reports of deteriorating water quality from every quarter, the nation was ready for a new strategy of pollution control." Id. The new strategy was technology-based, and rested on the premise that water should simply be clean. Id.
27. See, e.g., Oliver A. Houck, TMDLs: The Resurrection of Water Quality Standards-Based Regulation Under the Clean Water Act, 27 ENVTL. L. REP. 10,329, 10,330 (1997) [hereinafter Houck, Resurrection]. Houck rests the theory of water quality-based regulation squarely on human use. Id. Water quality-based regulation was the original federal water pollution strategy in this country, but faced with "reports of deteriorating water quality from every quarter, the nation was ready for a new strategy of pollution control." Id. The new strategy was technology-based, and rested on the premise that water should simply be clean. Id.
28. 33 U.S.C. §§ 1311, 1342.
29. Section 402 established the NPDES program to regulate the discharge of pollutants from point sources into waters of the United States. 33 U.S.C. § 1342 (2000).
30. Houck, The Final Frontier, supra note 14, at 10,483 n.233. The Clean Air Act's toxic emissions program copies the CWA's NPDES program (42 U.S.C. § 7412), as do the Resource Conservation and Recovery Act's "land ban" requirements (42 U.S.C. § 6924). Id. The European Union has adopted a water pollution control program modeled on the CWA. Id. 25. 33 U.S.C. § 1313(a)-(c).
31. 33 U.S.C. § 1313(c)(2)(A).
32. For a summary of the history of TMDL litigation, see http://www.epa.gov/OWOW/tmdl/lawsuit1.html. See also Houck, Are We There Yet? supra note 11, at 10,392-96. Early citizen's suits focused on EPA's duty to list impaired waterbodies and develop TMDLs when a state fails to do so. In 1996, the focus of TMDL litigation shifted to challenge EPA approval of lists and TMDLs. See Idaho Sportsmen's Coalition v. Browner, 951 F. Supp. 962 (W.D. Wash. 1996) (finding that EPA's approval of Idaho's list of 36 water quality impaired waterbody segments was arbitrary and capricious in light of available information); Sierra Club v. Hankinson, 939 F. Supp. 865 (N.D. Ga. 1996) (holding that EPA's approval of Georgia's two inadequate TMDL submissions was arbitrary and capricious, and its failure to promulgate TMDLs for Georgia violated the CWA).
33. See Houck, Resurrection, supra note 19, at 10,332-35.
34. Id. at 10,337.
35. "Industry knew water quality standards did not work, and that is exactly why it wanted them." id.
36. See Houck, Are We There Yet? supra note 11, at 10,392-93. EPA's 1978 regulations "delayed, soft-pedaled, and understated the section 303(d) requirements to a remarkable degree." Id. at 10,393. Indeed, EPA saw little reason for implementing the "safely net" of Section 303(d) before technology controls were in place. Id. at 10,392.
37. 33 U.S.C. § 1281(c) (2000).
38. Houck, Are We There Yet?, supra note 11, at 10,392.
39. Id.
40. Water Quality Planning and Management Regulation, 65 Fed. Reg. 43,585, 43,587 (July 13, 2000).
41. Id.
42. Id. at 43,588.
43. See Boyd, supra note 6, at 4-5.
44. Id.
45. See 33 U.S.C. § 1288(a) (2000).
46. See 33 U.S.C. § 1329(a) (2000). Section 319 requires states to identify waters which cannot reasonably be expected to meet water quality standards because of nonpoint source pollution, and to develop "state management programs" prescribing best management practices to control nonpoint sources. Id.
47. 33 U.S.C. § 1281(c).
48. But see Robert W. Adler, Addressing Barriers to Watershed Protection, 25 ENVTL. L. 973, 1042-44 (1995) (finding that Section 208 is rarely used by states and given little attention by EPA).
49. 33 U.S.C. § 1329(b)(4).
50. Id. § 1329(a).
51. Id. § 1329(d)(3).
52. Id. § 1329(d)(2). Section 1329(d)(2) authorizes EPA to deny grant funding where a state program is inadequate.
53. An externality occurs when a community is able to reap the benefits of encouraging activities that cause nonpoint source pollution which may affect others downstream, without having to pay for the consequences of that pollution.
54. For the theory and practice of water quality standards programs, see RODGERS, supra note 2.
55. Under the 1965 Act, a water quality standard consisted of water quality criteria, designated uses, and a plan of enforcement. Id. at 343. After the initial submission of standards for EPA approval under the 1972 Amendments, Section 303(c) "removed the plan as an element of the water quality standards." Id. Thus, at present, the designated uses and the criteria are the gist of the matter. Id.
56. Id.
57. Id. at 344 (citing U.S. EPA Designated Uses-Water Quality Standards Criteria Digest: A Compilation of State/Federal Criteria 21 (1980)).
58. Id.
59. See generally Jeffrey M. Gaba, Federal Supervision of State Water Quality Standards Under the Clean Water Act, 36 VAND. L. REV. 1167 (1983).
60. RODGERS, supra note 2, at 347.
61. Id.
62. Several commentators suggest that TMDLs offer a tool for implementing an ecosystem approach capable of accounting for diverse pollutant sources and cumulative effects. See, e.g., Michael M. Wenig, How "Total" are "Total Maximum Daily Loads?" Legal Issues Regarding the Scope of Watershed-Based Pollution Control Under the Clean Water Act, 12 TUL. ENVTL. L. J. 87 (1998); see also, Adler, supra note 42, at 977-78 (explaining that a watershed ecosystem approach is part of EPA's overall strategy to achieve sustainable environmental and economic quality). Nonetheless, previous reliance on an ambient approach in water, air, and toxic pollution regulation failed to prove its merit. See, e.g., Houck, TMDLs III, supra note 9, at 10,415 ("The granddaddy of all approaches to pollution control is the regulation of discharges by ambient standards. The continuing vitality and attraction of this approach could be surprising, given the fact that it has never really worked for water pollution, air pollution, or anything else."). In 1965 Congress passed the Water Quality Act, an ambient-based regulation described as a "[monument] of faith in the commitment of state and local government to secure clean water in the face of powerful local interests; in the ability of science to predict aquatic impacts and to trace observed impacts to their sources; and in the practicality of treating water pollution through comprehensive, regional planning." Houck, The Final Frontier, supra note 14, at 10,471. But see William F. Pederson Jr., Turning the Tide on Water Quality, 15 ECOLOGY L.Q. 69 (1988) (advocating a return to a water quality-based focus under the CWA).
63. Several commentators suggest that TMDLs offer a tool for implementing an ecosystem approach capable of accounting for diverse pollutant sources and cumulative effects. See, e.g., Michael M. Wenig, How "Total" are "Total Maximum Daily Loads?" Legal Issues Regarding the Scope of Watershed-Based Pollution Control Under the Clean Water Act, 12 TUL. ENVTL. L. J. 87 (1998); see also, Adler, supra note 42, at 977-78 (explaining that a watershed ecosystem approach is part of EPA's overall strategy to achieve sustainable environmental and economic quality). Nonetheless, previous reliance on an ambient approach in water, air, and toxic pollution regulation failed to prove its merit. See, e.g., Houck, TMDLs III, supra note 9, at 10,415 ("The granddaddy of all approaches to pollution control is the regulation of discharges by ambient standards. The continuing vitality and attraction of this approach could be surprising, given the fact that it has never really worked for water pollution, air pollution, or anything else."). In 1965 Congress passed the Water Quality Act, an ambient-based regulation described as a "[monument] of faith in the commitment of state and local government to secure clean water in the face of powerful local interests; in the ability of science to predict aquatic impacts and to trace observed impacts to their sources; and in the practicality of treating water pollution through comprehensive, regional planning." Houck, The Final Frontier, supra note 14, at 10,471. But see William F. Pederson Jr., Turning the Tide on Water Quality, 15 ECOLOGY L.Q. 69 (1988) (advocating a return to a water quality-based focus under the CWA).
64. Several commentators suggest that TMDLs offer a tool for implementing an ecosystem approach capable of accounting for diverse pollutant sources and cumulative effects. See, e.g., Michael M. Wenig, How "Total" are "Total Maximum Daily Loads?" Legal Issues Regarding the Scope of Watershed-Based Pollution Control Under the Clean Water Act, 12 TUL. ENVTL. L. J. 87 (1998); see also, Adler, supra note 42, at 977-78 (explaining that a watershed ecosystem approach is part of EPA's overall strategy to achieve sustainable environmental and economic quality). Nonetheless, previous reliance on an ambient approach in water, air, and toxic pollution regulation failed to prove its merit. See, e.g., Houck, TMDLs III, supra note 9, at 10,415 ("The granddaddy of all approaches to pollution control is the regulation of discharges by ambient standards. The continuing vitality and attraction of this approach could be surprising, given the fact that it has never really worked for water pollution, air pollution, or anything else."). In 1965 Congress passed the Water Quality Act, an ambient-based regulation described as a "[monument] of faith in the commitment of state and local government to secure clean water in the face of powerful local interests; in the ability of science to predict aquatic impacts and to trace observed impacts to their sources; and in the practicality of treating water pollution through comprehensive, regional planning." Houck, The Final Frontier, supra note 14, at 10,471. But see William F. Pederson Jr., Turning the Tide on Water Quality, 15 ECOLOGY L.Q. 69 (1988) (advocating a return to a water quality-based focus under the CWA).
65. Several commentators suggest that TMDLs offer a tool for implementing an ecosystem approach capable of accounting for diverse pollutant sources and cumulative effects. See, e.g., Michael M. Wenig, How "Total" are "Total Maximum Daily Loads?" Legal Issues Regarding the Scope of Watershed-Based Pollution Control Under the Clean Water Act, 12 TUL. ENVTL. L. J. 87 (1998); see also, Adler, supra note 42, at 977-78 (explaining that a watershed ecosystem approach is part of EPA's overall strategy to achieve sustainable environmental and economic quality). Nonetheless, previous reliance on an ambient approach in water, air, and toxic pollution regulation failed to prove its merit. See, e.g., Houck, TMDLs III, supra note 9, at 10,415 ("The granddaddy of all approaches to pollution control is the regulation of discharges by ambient standards. The continuing vitality and attraction of this approach could be surprising, given the fact that it has never really worked for water pollution, air pollution, or anything else."). In 1965 Congress passed the Water Quality Act, an ambient-based regulation described as a "[monument] of faith in the commitment of state and local government to secure clean water in the face of powerful local interests; in the ability of science to predict aquatic impacts and to trace observed impacts to their sources; and in the practicality of treating water pollution through comprehensive, regional planning." Houck, The Final Frontier, supra note 14, at 10,471. But see William F. Pederson Jr., Turning the Tide on Water Quality, 15 ECOLOGY L.Q. 69 (1988) (advocating a return to a water quality-based focus under the CWA).
66. 33 U.S.C. § 1288(b)(2).
67. See definition supra note 15. Examples of BMPs include detention ponds, infiltration swales, restricting land-disturbing activities to particular seasons, and so on.
68. See Robert W. Adler, Integrated Approaches to Water Pollution: Lessons from the Clean Air Act, 23 HARV. ENVTL. L. REV. 203, 227 (1999).
69. See discussion infra accompanying notes 94-98.
70. The first round of Section 303(d) lists were submitted in April 1998. Water Quality Planning and Management Regulation, 65 Fed. Reg. 43,585, 43,587 (July 13, 2000).
71. Id. at 43,669 (to be codified at C.F.R. pt. 130.36).
72. Id. at 43,666-67 (to be codified at C.F.R. pts. 130.28, 130.32(c)).
73. The lists have now been submitted. See id. at 43,616-17. The new regulations require states to submit lists of impaired waters and priority rankings by April 1 of every fourth year, starting in 2002. See id. at 43,667 (to be codified at 40 C.F.R. pt. 130.30).
74. That state was Kansas. See Houck, TMDLs III, supra note 9, at 10,435.
75. See 33 U.S.C. § 1313(d)(1)(A).
76. See Adler, supra note 59, at 295 n.88 (noting the lack of existing EPA guidance on monitoring and reporting systems).
77. See 33 U.S.C. § 1319(a)(2) (2000).
78. Water Quality Planning and Management Regulation, 65 Fed. Reg. at 43,664. States must use "existing and readily available water quality-related data and information." Existing and readily available data and information includes at a minimum the state's most recent Section 305(b) report and EPA approved Section 303(d) list, Section 319 source assessments, drinking water source assessments, dilution calculations, trend analyses, or predictive models for determining the physical, chemical, or biological integrity of waterbodies, and data and information from local, state, territorial or federal agencies, tribal governments, members of the public, and academic institutions. See 40 C.F.R. § 130.22(b)(1)-(6).
79. See 40 C.F.R. § 130.22(b)(1)-(6).
80. The scope of the listing requirement under Section 303(d) is broader than the requirement that states establish TMDLs. In fact, the listing requirement arguably covers all waters within a state's boundaries. Under Section 303(d)(3), the Act requires states to identify all remaining waters "[f]or the specific purpose of developing information." 33 U.S.C. § 1313(d)(3). This listing process arguably entails a separate process and is not limited to impaired waters. The waters listed under this provision also require an estimate of "total maximum daily load with seasonal variations and margins of safety." Id. Interestingly, not only is the purpose spelled out for this listing exercise, so is the standard for setting TMDLs: "at a level that would assure protection and propagation of a balanced indigenous population of fish, shellfish, and wildlife." Id. Because this list is for informational purposes only, EPA does not require that it be submitted for review. See 40 C.F.R. § 130.7(e) (1997).
81. See 33 U.S.C. § 1313(d)(1)(C), (d)(3). EPA has listed pollutants suitable for TMDL calculations at 33 U.S.C. § 1314(a)(2) (2000).
82. Id. at § 1313(d)(1)(D), (d)(3). Section 303(d) also covers pollution caused by thermal discharges. The standard is set in the statute in Section 303(d)(1)(B) as the protection and propagation of shellfish, fish, and wildlife, in contrast to TMDLs, where designated use is part of the water quality standard developed by the state. This Note does not discuss the standards for thermal discharges.
83. 40 C.F.R. § 130.27(a)(1). When listing impaired waterbodies for TMDL development, a state may indicate a stream segment or an entire basin. The geographic scope of the listed waterbody drives the scope of the implementation plan. The area must be large enough to account for all the sources contributing to the impairment, but not so large as to be unmanageable.
84. 40 C.F.R. § 130.27(a)(2). Section 303(d)(1)(A) of the CWA has been interpreted by the EPA as requiring listing of impaired waters, whether the impairment is caused by pollutants or pollution. EPA reads Section 303(d)(1)(A) to include waters not meeting water quality standards in spite of required effluent limitations, due to pollution, and where there is no pollutant causing or contributing to the impairment. See Water Quality Planning and Management Regulation, 65 Fed. Reg. 43,585, 43,610 (July 13, 2000). Pollution is defined as the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water. See 33 U.S.C. § 1362(19).
85. Water Quality Planning and Management Regulation, 65 Fed. Reg. at 43,665.
86. See 40 C.F.R. § 130.27(a)(4).
87. Id.
88. Id.
89. See id. § 130.36(a).
90. See id. § 130.23(a). The public shall have the opportunity to submit comments for no less than 60 days, and the state must provide a summary of all comments received and a response to the significant comments when the final methodology is submitted to EPA. See id. 82. See id. § 130.32(a).
91. See id. § 130.32(b).
92. A potential consequence of state control is the transformation of conflicts over who is to shoulder load allocations into an argument over relative economic values. See Boyd, supra note 6, at 6. Not only do states have the discretion to assign reductions based on economic as well as environmental factors, whole categories of sources may be exempted from the program. For example, Florida recently enacted a TMDL implementation statute that specifically excludes agricultural nonpoint source pollution from load allocations. J. B. Ruhl, Farms, Their Environmental Harms, and Environmental Law, 27 ECOLOGY L.Q. 263, 304 (2000). James Boyd suggests that the need to meet water quality standards "sets up a state-by-state confrontation between well-organized industrial interests - who can claim to have already paid their pollution control dues - and organized agricultural, silvicultural, and municipal interests who resist the 'expansion' of CWA-driven requirements to their hard-to-solve nonpoint problems." Boyd, supra note 6, at 6; see also Caputo, supra note 17, at 10,582 (predicting that point sources will likely push for legislative reform to force nonpoint sources to bear more of the burden of pollution reductions necessary to meet applicable TMDLs).
93. Wasteloads are assigned to point sources permitted under Section 402 of the Act. See 40 C.F.R. § 130.32(b)(6) (2000).
94. See id. § 130.32(b)(7). EPA concedes the difficulties associated with quantifying loadings from nonpoint sources by allowing quantification on an aggregate basis. Water Quality Planning and Management Regulation, 65 Fed. Reg. 43,585, 43,623 (July 13, 2000).
95. See Adler, supra, note 59, at 230.
96. See id.
97. See 40 C.F.R. § 130.32(c).
98. Id.
99. See Water Quality Planning and Management Regulation, 65 Fed. Reg. at 43,625.
100. Id.
101. See id.
102. 40 C.F.R. § 130.2(p). EPA asserts its authority for requiring reasonable assurance under the Section 303(d) general requirement that TMDLs achieve water quality standards and CWA Section 501 (a) authorizing EPA to adopt regulations as necessary to implement the CWA. See Water Quality Planning and Management Regulation, 65 Fed. Reg. at 43,598.
103. 40 C.F.R. § 130.2(p)(1).
104. Id. § 130.2(p)(2).
105. See 40 C.F.R. §§ 130.32(a)(11), 130.32(c)(2)(ii), 130.2(p); see also Water Quality Planning and Management Regulation, 65 Fed. Reg. at 43,599.
106. See 40 C.F.R. § 130.2(p)(2)(ii).
107. See id. § 130.28. States must submit TMDLs "as expeditiously as possible," but no later than 10 years from July 10, 2000. Id. § 130.28(b)(2). A state may extend the schedule for submission of one or more TMDLs by no more than 5 years, if the state can demonstrate that establishing all TMDLs is not practicable. See id. This schedule has not pleased environmentalists, but EPA may be showing both wisdom and generosity in giving the states time to tackle a task that is nothing short of daunting. The scientific, technical, and administrative challenges of implementing TMDLs are significant and will strain the resources of many state agencies.
108. See, e.g., Scott v. City of Hammond, 741 F.2d 992 (7th Cir. 1984); Alaska Ctr. for Env't v. Browner, 20 F.3d 981 (9th Cir. 1994).
109. Water Quality Planning and Management Regulation, 65 Fed. Reg. at 43,669.
110. When the EPA develops a TMDL, the regulations allow the Agency two years for publication of the TMDL. The Administrator may extend the period an additional two years where there is a "compelling need" for more time. See 40 C.F.R. § 130.35(a)(2). In that event, the Administrator must publish its decision to extend the TMDL development period in the Federal Register. Id. 103. See 33 U.S.C. §§ 1342(b)-(c), (d), 1329.
111. See supra text accompanying notes 80-81.
112. See generally THOMAS DUNNE & LUNA B. LEOPOLD, WATER IN ENVIRONMENTAL PLANNING 255-78 (1978).
113. See RODGERS, supra note 2, at 307.
114. See, e.g., Houck, The Final Frontier, supra note 14, at 10,483.
115. The CWA as originally enacted would have encompassed the collected return flow from irrigated agriculture under the NPDES program, but Congress closed that avenue by amending the Act in 1977 to exclude irrigated agriculture from point source regulation. See Pub. L. No. 95-217 § 33(b), 91 Stat. 1566, 1577 (1977). For a discussion of the struggle between EPA, courts, and Congress over this issue, see Ruhl, supra note 84, at 294-95. In 1987, Congress excluded all agricultural stormwater discharges from the definition of "point source," so that runoff collected in ditches, canals, and other conveyances are beyond the reach of the NPDES program. Id. at 296.
116. See Ruhl, supra note 84, at 296 n. 194.
117. See, e.g., id.; John H. Davidson, Commentary: Using Special Water Districts to Control Nonpoint Sources of Water Pollution, 65 CHI.-KENT L. REV. 503 (1989). Davidson notes that over one-half of all water in the western U.S. is controlled by special water districts. See id. at 505. These water districts assume many forms, but all are political subdivisions of state government. See id. According to Davidson, special water districts are well situated to address water quality issues; they are typically organized by watersheds, and have the capacity to bring economies of scale to pollution control and to mitigate the effect of the argument that farmers are "price-takers" in the marketplace, and are therefore unable to pass the cost of pollution control on to consumers. Id. at 515-17.
118. See Water Quality Planning and Management Regulation, 65 Fed. Reg. 43,585, 43,648-52 (July 13, 2000).
119. Houck suggests the Agency may have balked based on its experience trying to regulate highly polluting CAFOs. See Houck The Final Frontier, supra note 14, at 10,482.
120. See Houck, Are We There Yet?, supra note 11, at 10,401. Houck suggests that once the difficulty and cost of TMDLs sink in, coupled with the uncertainty of achieving load reductions at the end of it all, "technology standards may begin to look like quite a bargain." Id.
121. See, e.g., Caputo, supra note 17, at 10,582 (explaining that TMDLs are a "crucial mechanism" for achieving ambient water quality goals); Houck, The Final Frontier, supra note 14, at 10,485 (stating that TMDLs are the best prospect for "coming to grips" with the nation's last major unregulated sources of pollution).
122. For example, stormwater discharges may be monitored for lead in order to gauge the amount of lead contributed by runoff from an urban area. See Boyd, supra note 6, at 12.
123. For an in-depth discussion of runoff processes, see DUNNE & LEOPOLD, supra note 105, at 255-78.
124. See Houck, The Final Frontier, supra note 14, at 10,477.
125. Id.
126. Stakeholders have already exploited weaknesses in monitoring and assessment by pressuring states to reduce their Section 303(d) lists of impaired waters to the absolutely proven. See id.
127. David Schoenbrod, Goals Statutes or Rules Statutes: The Case of the Clean Air Act, 30 UCLA L. REV. 740, 743 (1983).
128. Subsection title borrowed from Robert W. Adler's article, Integrated Approaches to Water Pollution: Lessons from the Clean Air Act, supra note 59.
129. See Caputo, supra note 17, at 10,581-82.
130. Unlike the NPDES program, Section 303(d) does not afford multiple opportunities for enforcement. For example, the CWA's citizen suit provision does not cover Section 303(d). See generally, Michael P. Healy, Still Dirty After Twenty Five Years: Water Quality Standard Enforcement and the Availability of Citizen Suits, 24 ECOLOGY L.Q. 393 (1997).
131. See Adler, supra note 59, at 206.
132. Note that air quality standards are published by EPA, not by individual states. EPA has published "National Ambient Air Quality Standards (NAAQS) for six pollutants only, thus the scope of SIPs is limited. The scope of pollutants for which TMDLs may be developed is much broader.
133. See 42 U.S.C. § 7410(a)(2)(F) (2000).
134. 40 C.F.R. 130.32(c)(2)(ii).
135. See Adler, supra note 59, at 208 ("[T]he TMDL program is certain to fail if its implementers do not learn from the checkered history of the SIP process.").
136. See id. at 240.
137. Former EPA Administrator Douglas Costle stated: "Modeling is becoming elevated to the same high art of gamesmanship as lawyering, and often a company finds it cheaper to hire modelers and lawyers than to put in pollution control equipment." Schoenbrod, supra note 120, at 773. Even where states do not "game," models of air quality rarely offer precise answers. See, e.g., David M. Driesen, Five Lessons from the Clean Air Act Implementation. 14 PACE ENVTL. L. REV. 51, 56 (1996).
138. See Howard Latin, Regulatory Failure, Administrative Incentives, and the New Clean Air Act, 21 ENVTL. LAW. 1647, 1689, 1692-94 (1991).
139. Schoenbrod, supra note 120, at 749-50.
140. See Adler, supra note 59, at 245-49.
141. See id. at 260-62.
142. Patrick Del Duca & Daniel Mansueto, Indirect Source Controls: An Intersection of Air Quality Management and Land Use Regulation, 24 LOY. L.A. L. REV. 1131, 1143 (1991).
143. See id. at 1148.
144. See Adler, supra note 59, at 245-46.
145. See Del Duca & Mansueto, supra note 135, at 1149.
146. Id.
147. See id. at 1152-53.
148. Adler, supra note 59, at 247.
149. See Del Duca & Mansueto, supra note 135, at 1154. EPA gave three reasons for the regulations' failure: (1) political opposition; (2) the EPA lacked resources to implement the regulations; and (3) the EPA failed to offer technical resources to the states to carry out the regulations. See id.
150. See Adler, supra note 59, at 247-48.
151. 42 U.S.C. § 7431 (2000).
152. 16 U.S.C. §§ 1451-1465.
153. 16 U.S.C. § 1455(g).
154. See Houck, TMDLs III, supra note 9, at 10,424.
155. 16 U.S.C. § 1455(c)(3).
156. See Houck, TMDLs III, supra note 9, at 10,424.
157. Id.
158. EPA has attempted to make the reasonable assurance requirement as rigorous as possible. Voluntary and incentive-based actions, or existing programs are acceptable means of demonstrating reasonable assurance but they must meet EPA's four-part test set out in 40 C.F.R. § 130.2(p)(2). They must apply specifically to the pollutant for which the TMDL is being developed, be implemented as expeditiously as practicable, be accompanied by a reliable delivery mechanism, and support on adequate findings. Id. 152. This failure is due in part to the exemptions granted particular nonpoint sources. Agriculture is the most obvious example. See Ruhl, supra note 84.
159. See generally James M. McElfish, Jr., State Enforcement Authorities for Polluted Runoff, 28 ENVTL. L. REP. 10,181 (1998). According to McElfish, enforcement mechanisms vary significantly from state to state, and from watershed to watershed. Examples include provisions found in fish and game laws, forestry practices laws, and sedimentation and erosion laws. Id.
160. See, e.g., Houck, The Final Frontier, supra note 14, at 10,480. By way of example, Houck explains, "[n]o state employee in his or her right mind would volunteer to take on the sugar industry." Id.
161. If states do decide to tackle land use, they may find the CAA and CWA model of federalism useful. The state could set goals and assign responsibility for meeting those goals. Local governments would be responsible for meeting those goals through land use regulation, backed by the threat of state substitution where local government fails to act. For a discussion of the 1989 Air Quality Management Plan for California's South Coast Air Basin, see Del Duca & Mansueto, supra note 135.
162. Examples include protecting large riparian buffer zones and clustering residential development to maximize vegetative cover and undisturbed soil area.
163. James Boyd describes BMPs as "the nonpoint analog to end-of-pipe controls on point sources." Boyd, supra note 6, at 22.
164. See 33 U.S.C. § 1329(b)(2)(B).
165. Id. § 1329(b)(2)(A).
166. See 40 C.F.R. § 130.6(c)(4)(iii)(A)-(G) (2001).
167. See generally, Mandelker, supra note 15; Richard Whitman, Clean Water or Multiple Use? Best Management Practices for Water Quality Control in the National Forests, 16 ECOLOGY L.Q. 909 (1989).
168. See Mandelker, supra note 15, at 485; see, e.g., Bruce K. Ferguson, The Failure of Detention and the Future of Stormwater Design, LANDSCAPE ARCHITECTURE 76 (1992) (finding that uniform on-site detention fails to reduce flooding or improve water quality).
169. See Boyd, supra note 6, at 22-23.
170. See id.
171. See id.
172. For suggested alternative approaches to reducing nonpoint source pollution, including tax incentives and restrictions on farming applications, see, e.g., Ruhl, supra note 84; David Zaring, Agriculture, Nonpoint Source Pollution, and Regulatory Control: The Clean Water Act's Bleak Present and Future, 20 HARV. ENVTL. L. REV. 515 (1996).