Published May 14, 2004

EPA faces push to include voluntary programs in TMDL off-ramp

Ben Geman, Inside EPA

EPA is considering ways to ease requirements for states to exempt impaired waterbodies from strict pollution caps, including a plan some states and agency officials support that would allow certain voluntary programs to serve as a justification for the "off-ramp,” sources say. The agency is contemplating the changes as it revises guidelines addressing how states should craft lists of impaired waters in 2006. Waterbodies included on the biannual list, known as the 303(d) list, are subject to aggregate pollution limits called total maximum daily loads (TMDLs).

Agency sources indicate EPA may address state concerns in revised guidance. "EPA's mind is open,” says one agency source, while another adds, "I would bet we are going to see a re-shaping of that part of the guidance.”

EPA's current guidelines allow states to avoid setting a TMDL for a polluted water if it can demonstrate that other regulatory programs will bring the water into attainment with water quality standards. Agency and state sources say that, properly applied, the off-ramp can allow states to rely on a suite of programs to address a polluted water -- especially nonpoint source pollution that evades traditional regulatory controls -- without going through the resource-intensive TMDL process.

But states say the process for avoiding a TMDL is onerous and bars consideration of many effective non-regulatory programs, such as funding for voluntary efforts to reduce agricultural pollution, that will allow a given water to meet standards.

The guidelines require "identification of the controls to be relied upon (for example, best management practices, air emission controls, sediment dredging, etc).” It also requires states to "list the suite of controls proposed for implementation and a range of the controls' effectiveness (e.g., cover crops will reduce current sediment loadings by 50-60%),” and provide other documentation.

EPA and state sources say current guidelines for leaving polluted waters off the list set an extremely high bar for allowing the off-ramp from the TMDL program, and as a result, states are not using the tool frequently even though the 2004 listing guidance relaxed the standard to some degree.

"It's as difficult to get into that category as it is to do a TMDL,” says one state source. "If it is as much work [as a TMDL], why do it?”

While states are still submitting their 303(d) lists for 2004, an agency source notes that in one region, no state has attempted to exempt impaired waters from TMDL requirements, although other sources predict a slight increase in use of the tool on state lists this year.

EPA officials crafting the guidance for the next round of listings say they may revise the requirements for exemptions in response to state concerns. One agency source says that under the current guidelines, "a TMDL is a three foot hurdle and [a TMDL exemption] is a six foot hurdle.”

A summary of concerns drafted by a Florida state official -- and circulated by the Association of State & Interstate Water Pollution Control Administrators -- attacks the provision in EPA guidelines mandating that pollution control measures be "required” in order to exempt an impaired water from TMDL requirements.

"[T]his interpretation doesn't acknowledge that all sources are not created equal and we do not have regulatory authority over some sources even if a TMDL were established,” the document states. It adds that restoration plans like Comprehensive Conservation & Management Plans under EPA's National Estuary Program contain voluntary elements and hence would not be sufficient to allow use of the off-ramp.

The paper also says, "EPA should simply acknowledge that some sources are simply outside of its regulatory authority and that, for any such sources, states do not need to provide assurance that the ‘other pollution control requirements' are ‘required.'”

An agency source agrees the guidance should explicitly allow ongoing voluntary programs that reduce nonpoint source pollution to qualify a water for the exemption if they are already demonstrating their effectiveness.

The source adds that EPA is considering whether to allow ongoing non-regulatory programs to qualify for the off-ramp. "They [EPA] would like to look at some options for loosening it up,” the source says. The source believes initiatives like local governments planting riparian areas along steams and deepening them to address temperature and acidity should be recognized if they are effective.

"If they are already implemented, should we really worry about the ‘required' part?” the source asks. The state source says EPA should revise the guidance because "the issue is: can you get to . . . water quality standards. How you get there and the tools you use should not be the issue.”

The agency source is not certain precisely how EPA may change the guidance but nonetheless predicts that revisions would address how the exemptions address nonpoint source pollution. "If there are changes, that will be the direction,” the source says.

The source says the agency hopes to release a draft listing guidance this summer, while another agency source says EPA plans to finalize the guidance 18 months before the April 2006 deadline for state 303(d) list submission.

However, the state source says environmentalists may be wary of efforts to avoid the TMDL program -- which has been plagued by delays but is an important regulatory backstop to address water pollution -- but that the off-ramp can address cases in which other programs would achieve water quality standards faster than developing TMDLs.

The source also says using the off-ramp to gain water quality improvements is helpful because the TMDL creation process is more adversarial. "We would like to get people to the table and it is a lot easier to do without a TMDL,” the source says.