The Need - The Quality of Our Nation's Waters
Over 40 percent of our assessed waters still do not meet the water quality standards states, territories, and authorized tribes have set for them. This amounts to over 20,000 individual river segments, lakes, and estuaries. These impaired waters include approximately 300,000 miles of rivers and shorelines and approximately 5 million acres of lakes -- polluted mostly by sediments, excess nutrients, and harmful microorganisms. An overwhelming majority of the population - 218 million - live within 10 miles of the impaired waters.
Section 303(d) of the Clean Water Act
Under section 303(d) of the 1972 Clean Water Act, states, territories, and authorized tribes are required to develop lists of impaired waters. These impaired waters do not meet water quality standards that states, territories, and authorized tribes have set for them, even after point sources of pollution have installed the minimum required levels of pollution control technology. The law requires that these jurisdictions establish priority rankings for waters on the lists and develop TMDLs for these waters.
What is a TMDL?
A TMDL specifies the maximum amount of a pollutant that a waterbody can receive and still meet water quality standards, and allocates pollutant loadings among point and nonpoint pollutant sources. By law, EPA must approve or disapprove lists and TMDLs established by states, territories, and authorized tribes. If a state, territory, or authorized tribe submission is inadequate, EPA must establish the list or the TMDL. EPA issued regulations in 1985 and 1992 that implement section 303(d) of the Clean Water Act - the TMDL provisions.
While TMDLs have been required by the Clean Water Act since 1972, until recently states, territories, authorized tribes, and EPA have not developed many. Several years ago citizen organizations began bringing legal actions against EPA seeking the listing of waters and development of TMDLs. To date, there have been about 40 legal actions in 38 states. EPA is under court order or consent decrees in many states to ensure that TMDLs are established, either by the state or by EPA.
EPA Actions to Implement the TMDL Program
Federal Advisory Committee
In an effort to speed the Nation's progress toward achieving water quality standards and improving the TMDL program, EPA began, in 1996, a comprehensive evaluation of EPA's and the states' implementation of their Clean Water Act section 303(d) responsibilities. EPA convened a committee under the Federal Advisory Committee Act, composed of 20 individuals with diverse backgrounds, including agriculture, forestry, environmental advocacy, industry, and state, local, and tribal governments. The committee issued its recommendations in 1998.
The New TMDL Rule
These recommendations were used to guide the development of proposed changes to the TMDL regulations, which EPA issued in draft in August, 1999. After a long comment period, hundreds of meetings and conference calls, much debate, and the Agency's review and serious consideration of over 34,000 comments, the final rule was published on July 13, 2000. However, Congress added a "rider" to one of their appropriations bills that prohibits EPA from spending FY2000 and FY2001 money to implement this new rule.
Current TMDL Program
The current rule remains in effect until 30 days after Congress permits EPA to implement the new rule. TMDLs continue to be developed and completed under the current rule, as required by the 1972 law and many court orders. The regulations that currently apply are those that were issued in 1985 and amended in 1992 (40 CFR Part 130, section 130.7). These regulations mandate that states, territories, and authorized tribes list impaired and threatened waters and develop TMDLs.