[Federal Register Volume 65, Number 135 (Thursday, July 13, 2000)]
[Rules and Regulations]
[Pages 43586-43670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-17831]



[[Page 43585]]

-----------------------------------------------------------------------

Part VI





Environmental Protection Agency





-----------------------------------------------------------------------



40 CFR Part 9 et al.



Revisions to the Water Quality Planning and Management Regulation and 
Revisions to the National Pollutant Discharge Elimination System 
Program in Support of Revisions to the Water Quality Planning and 
Management Regulation; Final Rules

  Federal Register / Vol. 65, No. 135 / Thursday, July 13, 2000 / Rules 
and Regulations  

[[Page 43586]]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9, 122, 123, 124, and 130

[FRL-6733-2]


Revisions to the Water Quality Planning and Management Regulation 
and Revisions to the National Pollutant Discharge Elimination System 
Program in Support of Revisions to the Water Quality Planning and 
Management Regulation

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Today's final rule revises and clarifies the Environmental 
Protection Agency's (EPA) current regulatory requirements for 
establishing Total Maximum Daily Loads (TMDLs) under the Clean Water 
Act (CWA) so that TMDLs can more effectively contribute to improving 
the nation's water quality. Clean water has been a national goal for 
many decades. While significant progress has been made, particularly in 
stemming pollution from factories and city sewage systems, major 
challenges remain. These challenges call for a focused effort to 
identify polluted waters and enlist all those who enjoy, use, or depend 
on them in the restoration effort. Today's action will establish an 
effective and flexible framework to move the country toward the goal of 
clean water for all Americans. It establishes a process for making 
decisions in a common sense, cost effective way on how best to restore 
polluted waterbodies. It is based on identifying and implementing 
necessary reductions in both point and nonpoint sources of pollutants 
as expeditiously as practicable. States, Territories, and authorized 
Tribes will develop more comprehensive lists of all waterbodies that do 
not attain and maintain water quality standards. States, Territories, 
and authorized Tribes will schedule, based on priority factors, the 
establishment of all necessary TMDLs over 10 years, with an allowance 
for another five years where necessary. The rule also specifies 
elements of approvable TMDLs, including implementation plans which 
contain lists of actions and expeditious schedules to reduce pollutant 
loadings. States, Territories, and authorized Tribes will provide the 
public with opportunities to comment on methodologies, lists, 
prioritized schedules, and TMDLs prior to submission to EPA. The rule 
lays out specific timeframes under which EPA will assure that lists of 
waters and TMDLs are completed as scheduled, and necessary National 
Pollutant Discharge Elimination System (NPDES) permits are issued to 
implement TMDLs. The final rule explains EPA's discretionary authority 
to object to, and reissue if necessary, State-issued NPDES permits that 
have been administratively continued after expiration where there is a 
need for a change in the conditions of the permit to be consistent with 
water quality standards and established and approved TMDLs.
    EPA believes that these regulations are necessary because the TMDL 
program which Congress mandated in 1972 has brought about insufficient 
improvement in water quality. EPA had been concerned about this lack of 
progress for some time when, in 1996, it established a Federal Advisory 
Committee. The Committee was asked to advise EPA on possible 
improvements to the program. After careful deliberations, the Committee 
recommended that EPA amend several aspects of the regulations.
    EPA believes that these regulations will benefit human health and 
the environment by establishing clear goals for identification of 
impaired waterbodies and establishment of TMDLs. The regulations will 
also ensure that States, Territories and authorized Tribes give a 
higher priority to restoring waterbodies which have a greater potential 
to affect human health or threatened or endangered species thereby 
focusing the benefits of these regulations on the most pressing 
problems.

DATES: This regulation is not effective until 30 days after the date 
that Congress allows EPA to implement this regulation. EPA will publish 
notice of the effective date in the Federal Register. This action is 
considered issued for purposes of judicial review, as of 1:00 p.m. 
Eastern Daylight Time, on July 27, 2000 as provided in Sec. 23.2.

ADDRESSES: The complete administrative records for the final rule have 
been established under docket numbers W-98-31 and W-99-04, and include 
supporting documentation as well as printed, paper versions of 
electronic comments. Copies of information in the record are available 
upon request. A reasonable fee may be charged for copying. The records 
are available for inspection and copying from 9 a.m. to 4 p.m., Monday 
through Friday, excluding legal holidays, at the Water Docket, EPA, 
East Tower Basement, 401 M Street, SW, Washington, DC. For access to 
docket materials, please call (202) 260-3027 to schedule an 
appointment.

FOR FURTHER INFORMATION CONTACT: Jim Pendergast, U.S. EPA, Office of 
Wetlands, Oceans and Watersheds (4503F), 1200 Pennsylvania Ave., N.W., 
Washington, D.C. 20460, (202) 260-9549 for information pertaining to 
Part 130 of today's rule, or Kim Kramer, U.S. EPA, Office of Wastewater 
Management (4203), 1200 Pennsylvania Ave., N.W., Washington, D.C. 
20460, (202) 401-4078, for information regarding Parts 122, 123, and 
124.

SUPPLEMENTARY INFORMATION:

A. Authority

    Clean Water Act sections 106, 205(g), 205(j), 208, 301, 302, 
303, 305, 308, 319, 402, 501, 502, and 603; 33 U.S.C. 1256, 1285(g), 
1285(j), 1288, 1311, 1312, 1313, 1315, 1318, 1329, 1342, 1361, 1362, 
and 1373.

B. Table of Contents of This Preamble

I. Introduction
    A. Background
    1. What are the water quality concerns addressed by this rule?
    2. What are the current statutory authorities to support this 
final rule?
    3. What is the regulatory background of today's action?
    a. What are the current requirements?
    b. What changes did EPA propose in August 1999?
    c. What has EPA done to gather information and input as it 
developed this final rule?
    B. What are the significant issues in today's rule?
    1. What are EPA's objectives for today's rule?
    2. What are the key differences between the proposal and today's 
final rule?
II. Changes to Part 130
    A. What definitions are included in this final rule? 
(Sec. 130.2)
    1. What definitions are added or revised?
    2. Response to requests for new definitions.
    B. Who must comply with the requirements of subpart C? 
(Sec. 130.20)
    C. What is the purpose of subpart C ? (Sec. 130.21)
    D. What water-quality related data and information must be 
assembled to develop the list of impaired waterbodies ? 
(Sec. 130.22)
    E. How must the methodology for considering and evaluating 
existing and available water-quality related data and information to 
develop the list be documented ? (Sec. 130.23)
    F. When must the methodology be provided to EPA ? (Sec. 130.24)
    G. What is the scope of the list of impaired waterbodies? 
(Sec. 130.25)
    H. How do you apply your water quality standards antidegradation 
policy to the listing of impaired waterbodies? (Sec. 130.26)
    I. What is the format and content of the list? (Sec. 130.27)
    J. What must the prioritized schedule for submitting TMDLs to 
EPA contain? (Sec. 130.28)
    K. Can the list be modified? (Sec. 130.29)

[[Page 43587]]

    L. When must the list of impaired waterbodies be submitted to 
EPA and what will EPA do with it? (Sec. 130.30)
    M. Must TMDLs be established? (Sec. 130.31)
    N. What is a TMDL? (Sec. 130.32(a))
    O. What are the minimum elements of a TMDL? (Sec. 130.32(b))
    P. What are the requirements of the implementation plan? 
(Sec. 130.32(c))
    Q. What are the special requirements for Total Maximum Daily 
Thermal Loads? (Sec. 130.32(d))
    R. How must TMDLs take into account endangered and threatened 
species? (Sec. 130.32(e))
    S. How are TMDLs expressed? (Sec. 130.33)
    T. What actions must EPA take on TMDLs that are submitted for 
review? (Sec. 130.34)
    U. How will EPA assure that TMDLs are established? (Sec. 130.35)
    V. What public participation requirements apply to the lists and 
TMDLs? (Sec. 130.36)
    W. What is the effect of this rule on TMDLs established when the 
rule is first implemented? (Sec. 130.37)
    X. Continuing planning process (Sec. 130.50)
    Y. Water quality management plans (Sec. 130.51)
    Z. Petitions to EPA to establish TMDLs (Sec. 130.65)
    AA. Water quality monitoring and report (Secs. 130.10 and 
130.11)
    AB. Other sections (Secs. 130.0, 130.1, 130.3, 130.7, 130.61, 
130.62, 130.63, and 130.64)
III. Changes to Parts 122,123, and 124
    A. Reasonable further progress toward attaining water quality 
standards in impaired waterbodies in the absence of a TMDL
    1. Background
    2. Requirements for new and significantly expanding dischargers
    3. EPA authority to reissue state-issued expired and 
administratively-continued NPDES Permits
    B. New tools to ensure implementation of established TMDLs
    1. Background
    2. Designation of concentrated animal feeding operations
    3. Designation of concentrated aquatic animal production 
facilities
    4. Designation of point source storm water discharges associated 
with silvicultural operations
    5. EPA authority to reissue state-issued expired and 
administratively-continued NPDES Permits
IV. Costs and benefits of the rule
V. Regulatory requirements
    A. Regulatory Flexibility Act (RFA) as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
U.S.C. 601 et seq.
    B. Regulatory Planning and Review, Executive Order 12866
    C. Unfunded Mandates Reform Act
    D. Paperwork Reduction Act
    E. Federalism, Executive Order 13132
    F. Consultation and Coordination with Indian Tribal Governments, 
Executive Order 13084
    G. Protection of Children from Environmental Health Risks and 
Safety Risks, Executive Order 13045
    H. National Technology Transfer and Advancement Act
    I. Congressional Review Act

Entities Potentially Regulated by the Final Rule

    State, Territorial or authorized Tribal Governments.
    States, Territories and authorized Tribes.
    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in this table could also be regulated. To determine whether 
you are regulated by this action, you should carefully examine the 
applicability criteria in Sec. 130.20. If you have questions regarding 
the applicability of this action to a particular entity, consult one of 
the persons listed in the FOR FURTHER INFORMATION CONTACT section.

Response to Comments

    This preamble explains in detail the elements of the final TMDL 
regulations and the amendments which EPA is making to the NPDES program 
in order to support implementation of the TMDL program. EPA has made 
changes to its proposal in response to comments received on the 
proposed rules. EPA has evaluated all the significant comments it 
received including comments submitted after the close of the comment 
period and prepared a Response to Comment Document containing EPA's 
response to those comments. This document complements discussions in 
this preamble and is available for review in the Water Docket.

Before Reading This Preamble, You Should Read the Final Rule

I. Introduction

A. Background

1. What are the Water Quality Concerns Addressed by this Rule?
    The CWA includes a number of programs aimed at restoring and 
maintaining water quality. These include national technology-based 
effluent limitation guidelines; national water quality criteria 
guidance; State, Territorial and authorized Tribal water quality 
standards; State, Territorial and authorized Tribal nonpoint source 
(NPS) management programs; funding provisions for municipal wastewater 
treatment facilities; State, Territorial and authorized Tribal water 
quality monitoring programs; and the NPDES permit program for point 
sources. These programs have produced significant and widespread 
improvements in water quality over the last quarter-century, but many 
waterbodies still fail to attain or maintain water quality standards 
due to one or more pollutants.
    The National Water Quality Inventory Report to Congress for 1998 
indicates that of the 23 percent of the Nation's rivers and streams 
that have been assessed, 35 percent do not fully support water quality 
standards or uses and an additional 10 percent are threatened. Of the 
32 percent of estuary waterbodies assessed, 44 percent are not fully 
supporting water quality standards or uses and an additional 9 percent 
are threatened. Of the 42 percent of lakes, ponds, and reservoirs 
assessed (not including the Great Lakes), 45 percent are not fully 
supporting water quality standards or uses and an additional 9 percent 
are threatened. The report also indicates that 90 percent of the Great 
Lakes shoreline miles have been assessed, and that 96 percent of these 
are not fully supporting water quality standards and an additional 2 
percent are threatened. The report indicates that pollutants in 
rainwater 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 percent 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 percent and 12 percent of reported water quality 
problems. EPA recognizes that a large percentage of streams has not 
been assessed but believes that there is sufficient information in hand 
to warrant concern over those unassessed waters and the slow pace at 
which many waters are attaining water quality standards.
    The 1998 section 303(d) lists of impaired waterbodies submitted by 
States and Territories provided additional information. The section 
303(d) lists relied, in part, on information in the section 305(b) 
reports. The States and Territories identified over 20,000 individual 
waterbodies including river and stream segments, lakes, and estuaries 
that do not attain State water quality standards despite 28 years of 
pollution control efforts. These impaired waterbodies include 
approximately 300,000 miles of river and shoreline and approximately 5 
million acres of lakes. Approximately 210 million people live within 10 
miles of these waterbodies. State and local governments also reported 
that they

[[Page 43588]]

issued 2,506 fish advisories and closed 353 beaches in 1998.
    EPA believes that a significant part of the response to these 
problems must be a more rigorous implementation of the TMDL program. 
EPA believes that today's rule will provide the tools for States, 
Territories and authorized Tribes to bring the assessment and 
restoration authorities provided by section 303(d) into greater use and 
result in significant improvements in the quality of the Nation's 
waterbodies.
2. What are the Current Statutory Authorities That Support This Final 
Rule?
    The goal of establishing TMDLs is to assure that water quality 
standards are attained and maintained. Section 303(d) of the CWA which 
Congress enacted in 1972 requires States, Territories and authorized 
Tribes to identify and establish a priority ranking for waterbodies for 
which technology-based effluent limitations required by section 301 are 
not stringent enough to attain and maintain applicable water quality 
standards, establish TMDLs for the pollutants causing impairment in 
those waterbodies, and submit, from time to time, the list of impaired 
waterbodies and TMDLs to EPA. EPA must review and approve or disapprove 
lists and TMDLs within 30 days of the time they are submitted. If EPA 
disapproves a list or a TMDL, EPA must establish the list or TMDL. In 
addition, EPA and the courts have interpreted the statute as requiring 
EPA to establish lists and TMDLs when a State fails to do so. 
Furthermore, the requirement to identify and establish TMDLs for 
waterbodies exists regardless of whether the waterbody is impaired by 
point sources, nonpoint sources or a combination of both. Pronsolino v. 
Marcus, 2000 WL 356305 (N.D. Cal. March 30, 2000.)
    Listing impaired waterbodies and establishing TMDLs for waterbodies 
impaired by pollutants from nonpoint sources does not mean any new or 
additional implementation authorities are created. Once a TMDL is 
established, existing State, Territorial and authorized Tribal 
programs, other Federal agencies' policies and procedures, as well as 
voluntary and incentive-based programs, are the basis for implementing 
the controls and reductions identified in TMDLs.
    CWA Section 402 establishes a program, the NPDES Program, to 
regulate the ``discharge of a pollutant,'' other than dredged or fill 
materials, from a ``point source'' into ``waters of the United 
States.'' The CWA and NPDES regulations define a ``discharge of a 
pollutant,'' ``point source,'' and ``waters of the United States.'' The 
NPDES Program is administered at the federal level by EPA unless a 
State, Tribe or U.S. Territory assumes the program after receiving 
approval by the federal government. Under section 402, discharges of 
pollutants to waters of the United States are authorized by obtaining 
and complying with the terms of an NPDES permit. NPDES permits commonly 
contain numerical limits on the amounts of specified pollutants that 
may be discharged and specified best management practices (BMPs) 
designed to minimize water quality impacts. These numerical effluent 
limitations and BMPs or other non-numerical effluent limitations 
implement both technology-based and water quality-based requirements of 
the Act. Technology-based limitations represent the degree of control 
that can be achieved by point sources using various levels of pollution 
control technology. If necessary to achieve compliance with applicable 
water quality standards, NPDES permits must contain water quality-based 
limitations more stringent than the applicable technology-based 
standards.
3. What is the Regulatory Background of Today's Action?
a. What are the Current Requirements?
    EPA issued regulations governing identification of impaired 
waterbodies and establishment of TMDLs, at Sec. 130.7, in 1985 and 
revised them in 1992. These regulations provide that:

     State, Territorial and authorized Tribal lists must 
include those waters still requiring TMDLs because technology based 
effluent limitations required by the CWA or more stringent effluent 
limitations and other pollution controls (e.g., management measures) 
required by local, State, or Federal authority are not stringent 
enough to attain and maintain applicable water quality standards;
     State, Territorial and authorized Tribal lists must be 
submitted to EPA every two years, beginning in 1992, on April 1 of 
every even-numbered year;
     The priority ranking for listed waters must include an 
identification of the pollutant or pollutants causing or expected to 
cause the impairment and an identification of the waterbodies 
targeted for TMDL development in the next two years;
     States, Territories and authorized Tribes, in 
developing lists, must assemble and evaluate all existing and 
readily available water quality-related data and information;
     States, Territories and authorized Tribes must submit, 
with each list, the methodology used to develop the list and provide 
EPA with a rationale for any decision not to use any existing and 
readily available water quality-related data and information; and
     TMDLs must be established at levels necessary to 
implement applicable water quality standards with seasonal 
variations and a margin of safety that takes into account any lack 
of knowledge concerning the relationship between effluent 
limitations and water quality.

    The regulations define a TMDL as a quantitative assessment of 
pollutants that cause water quality impairments. A TMDL specifies the 
amount of a particular pollutant that may be present in a waterbody, 
allocates allowable pollutant loads among sources, and provides the 
basis for attaining or maintaining water quality standards. TMDLs are 
established for waterbody and pollutant combinations for waterbodies 
impaired by point sources, nonpoint sources, or a combination of both 
point and nonpoint sources. Indian Tribes may be authorized to 
establish TMDLs for waterbodies within their jurisdiction. To date, 
however, no Tribe has sought or received CWA authority to establish 
TMDLs.
    The NPDES regulations, in several provisions and under certain 
circumstances, allow the permitting authority and/or EPA to subject 
certain previously non-designated sources to NPDES program 
requirements. EPA established these jurisdictional regulations in 1973 
when the Agency and the States focused permitting resources primarily 
on continuous discharges, for example, industrial and municipal 
sources. Also, in the early stages of CWA implementation, the Agency 
and the States focused on implementation of technology-based standards. 
At that time, EPA attempted to limit the scope of the NPDES permitting 
program to certain types of point sources. The D.C. Circuit rejected 
that attempt, however, and explained that EPA could not exempt point 
sources from the NPDES program. NRDC v. Costle, 568 F.2d 1369, 1377 
(D.C. Cir. 1977). Although the Court rejected this attempt, it did 
recognize the Agency's discretion to define ``point source'' and 
``nonpoint source.'' The existing NPDES regulations identifying animal 
production and silvicultural sources represents an early attempt to do 
so.
    Also, under the NPDES program regulations, a Regional Administrator 
may review and object to State-issued NPDES permits. The procedures by 
which a Regional Administrator may review and object to these permits 
are found in Sec. 123.44. The existing objection authority, under 
section 402(d) of the Act, grants EPA 90 days within which to object to 
a proposed State permit that fails to meet the guidelines and 
requirements of the Act.

[[Page 43589]]

If a State fails to respond to an EPA objection within 90 days of 
objection, exclusive authority to issue the NPDES permit to that 
discharger passes to EPA.
b. What Changes Did EPA Propose in August 1999?
    In 1996, the Office of Water determined that there was a need for a 
comprehensive evaluation of EPA's and State, Territorial and authorized 
Tribal implementation of section 303(d) requirements. EPA convened a 
committee under the Federal Advisory Committee Act (TMDL FACA 
committee) to undertake such an evaluation and make recommendations for 
improving implementation of the TMDL program, including recommendation 
for revised regulations and guidance. The TMDL FACA committee included 
20 individuals with diverse backgrounds, including agriculture, 
forestry, environmental advocacy, industry, and State, local, and 
Tribal governments. On July 28, 1998, the committee submitted its final 
report to EPA which contained more than 100 consensus recommendations, 
a subset of which recommended regulatory changes. The TMDL FACA 
committee recommendations helped guide the development of the revisions 
which EPA proposed in August 1999.
    In proposing revisions to the regulations governing TMDLs, EPA also 
relied upon the past experience of States and Territories. EPA's 
proposal recognized and responded to some of the issues raised by 
stakeholders regarding the effectiveness and consistency of the TMDL 
program. EPA also proposed changes intended to resolve some of the 
issues and concerns raised by litigation concerning the identification 
of impaired waterbodies and the establishment of TMDLs. Finally, EPA 
proposed changes to the NPDES permitting regulations to assist in the 
establishment and implementation of TMDLs and to better address point 
source discharges to waters not meeting water quality standards prior 
to establishment of a TMDL.
    Key elements of the changes proposed in August, 1999 include:
     State, Territorial, and authorized Tribal section 303(d) 
listing methodologies would become more specific, subject to public 
review, and provided to EPA for review prior to submission of the list.
     States, Territories and authorized Tribes would develop a 
more comprehensive list of waterbodies impaired and threatened by 
pollution, organize it into four parts, and submit it to EPA.
     States, Territories and authorized Tribes would establish 
TMDLs only for waterbodies on the first part of the list.
     States, Territories and authorized Tribes would keep 
waterbodies on the lists until water quality standards were achieved.
     States, Territories and authorized Tribes would establish 
and submit to EPA schedules to establish all TMDLS within 15 years of 
listing.
     States, Territories, and authorized Tribes would rank 
TMDLs into high, medium or low priority.
     TMDLs would include 10 specific elements, one of which is 
an implementation plan.
     States, Territories, and authorized Tribes would notify 
the public and give them the opportunity to comment on the methodology, 
lists, priority rankings, schedules, and TMDLs prior to submission to 
EPA.
     New and significantly expanded discharges subject to NPDES 
permits would need to obtain an offset for the increased discharge 
before being allowed to discharge the increase.
     Certain point source storm water discharges from 
silviculture would be required to seek a permit if necessary to 
implement a TMDL.
     EPA could designate certain animal feeding operations and 
aquatic animal production facilities as sources subject to NPDES 
permits in authorized States.
     EPA could object to expired and administratively continued 
State-issued NPDES permits.
     Regulatory language would codify requirements pertaining 
to citizens' rights to petition EPA.
c. What has EPA Done to Gather Information and Input as it Developed 
This Final Rule?
    EPA published the proposed rule on August 23, 1999, and provided 
for an initial 60 day comment period, which was later extended to a 
total of 150 days. EPA received about 34,000 comments on the proposal 
comprised of about 30,500 postcards, 2,700 letters making one or two 
points, and 780 detailed comments addressing many issues. EPA has 
reviewed all these comments as part of the development of today's final 
rule.
    EPA also engaged in an extensive outreach and information-sharing 
effort following the publication of the proposed rule. The Agency 
sponsored and participated in six public meetings nationwide, to better 
inform the public on the contents of the proposed rules, and to get 
informal feedback from the public. These meetings took place in Denver, 
Los Angeles, Atlanta, Kansas City, Seattle, and Manchester, New 
Hampshire. In addition, EPA participated in numerous other meetings, 
conferences and information-sharing sessions to discuss the proposed 
rule and listen to alternative approaches to achieving the nation's 
clean water goals.
    The Agency has had an ongoing dialogue with State and local 
officials and their national/regional organizations throughout the 
development of this rule. EPA has met with organizations representing 
State and local-elected officials including: the National Governors' 
Association, the Western Governors' Association, the National 
Conference of State Legislatures, the National Association of Counties, 
the National League of Cities and EPA's State and Local Advisory Group. 
Many discussion sessions were held with officials who administer State 
and local programs related to water quality, agriculture, forestry, and 
harbors. Discussions were held with such organizations as the 
Environmental Council of the States, the Association of State and 
Interstate Water Pollution Control Administrators, the Association of 
Municipal Sewerage Agencies, the Association of Municipal Water 
Agencies, the National Association of State Agricultural Departments, 
the National Association of State Foresters, the Western States Water 
Council, the Association of State Drinking Water Administrators, the 
National Association of Flood and Storm Water Management Agencies, the 
Interstate Conference on Water Policy, and the Western States Land 
Commissioners
    EPA met with groups representing business, industry, agriculture, 
and forestry interests, including the Electric Power Research 
Institute, the Utility Water Action Group, American Water Works 
Association, the American Forest and Paper Association, the Family Farm 
Alliance, the National Association of Conservation Districts, a number 
of State Farm Bureaus, corn and soybean grower organizations and 
forestry associations. EPA also met with environmental and citizen 
groups including the Natural Resources Defense Council, Sierra Club, 
Friends of the Earth and Earth Justice. EPA participated in numerous 
Congressional briefings and hearings held in Washington and in several 
field locations. The results of these meetings and discussions are 
reflected in today's rule.

[[Page 43590]]

B. What are the Significant Issues in Today's Rule?

1. What are EPA's Objectives for Today's Rule?
    States, Territories, and authorized Tribes are essential in 
carrying out a successful program and EPA looks forward to working with 
them in developing this program. Further, we believe that, ultimately, 
any successful effort depends on a cooperative approach that pulls 
together the variety of entities and stakeholders involved in the 
watershed. EPA through this rulemaking seeks to provide a framework 
that facilitates this approach.
    EPA received many comments regarding the overall purpose of the 
proposed rule. Many commenters expressed concerns that EPA was putting 
too much emphasis on TMDLs and ignoring other programs and initiatives 
under the CWA which are also aimed at restoring or maintaining water 
quality. A common theme through many comments was that the Agency 
should not attempt to force-fit clean up of every impairment through 
the TMDL process. EPA agrees with the commenters that for some 
waterbodies and watersheds, existing plans and agreements may 
accomplish much of what this rule intends. However, EPA believes that 
identifying waterbodies that are impaired and establishing TMDLs is 
both statutorily required and will help focus ongoing activities for 
more efficient attainment of water quality standards.
    The CWA requires TMDLs for pollutants in impaired waterbodies if 
implementation of technology-based effluent limitations is not 
sufficient to attain water quality standards. Today's rule clarifies 
this concept to require that TMDLs be established for all pollutants in 
impaired waterbodies unless enforceable Federal, State, Territorial or 
authorized Tribal controls will result in attainment of water quality 
standards by the time the next list in the listing cycle is required.
    EPA recognizes that watershed or other plans developed under other 
State, Territorial or authorized Tribal programs or by other Federal 
agencies, such as wet weather flow plans, Coastal Zone Management 
plans, or conservation plans administered by the Natural Resources 
Conservation Service, have the same goal as a TMDL. EPA believes that 
these other activities are crucial to the attainment of water quality 
standards either because they will result in attainment of water 
quality standards before a TMDL is established or because they are the 
basis for implementation of the controls required by TMDLs. Thus, 
today's rule provides a role for the various programs aimed at 
improving water quality--both as an alternative to developing a TMDL in 
certain circumstances, and a means for implementing TMDLs.
    Many commenters also perceived EPA's proposal as an attempt to 
supplant State, Territorial or authorized Tribal primacy. Today's rule 
preserves the primary responsibilities of States, Territories and 
authorized Tribes and clarifies EPA's responsibilities under the CWA. 
EPA believes that today's rule provides greater clarity regarding the 
requirements for States, Territories and authorized Tribes and EPA's 
own responsibilities for the TMDL program. EPA believes that today's 
rule establishes a framework for effective, cooperative efforts between 
State, Territorial, authorized Tribal governments, individuals, local 
governments and other Federal agencies.
    EPA is also conscious of the need for adequate resources. EPA has 
sought to increase funding for development and implementation of TMDLs 
in both the FY 2001 Federal budget and prior budgets. In the FY 2001 
Federal budget the Agency has requested an additional $45 million in 
CWA Section 106 grants specifically for the TMDL program. In FY 2001, 
EPA requested $250 million for section 319 nonpoint source grants, an 
increase of $50 million (25%) over FY 2000. In addition, the FY 1999 
and FY 2000 budgets of $200 million per year for section 319 grants 
represented a doubling (100% increase) of the prior section 319 
funding. To further support State nonpoint source implementation, EPA 
has proposed an FY2002 budget that gives States and Territories the 
option to reserve up to 19% of their Clean Water State Revolving Fund 
capitalization grants to provide grants for implementing nonpoint 
source and estuary management projects.
2. What Are the Key Differences Between the Proposal and Today's Final 
Rule?
    This section summarizes the significant changes EPA has made in the 
rule adopted today compared to the proposed rule. A more detailed 
discussion of all the changes is included in the specific sections for 
these changes in this preamble.
    a. Threatened waterbodies. EPA proposed that threatened waterbodies 
be listed on Part 1 of the list, meaning that TMDLs would have to be 
established for them as for impaired waters. After carefully 
considering comments, particularly the concerns raised by commenters 
regarding the technical difficulties inherent in determining when water 
quality trends are declining and the difficulty in making listing 
decisions, EPA is not requiring that States, Territories or authorized 
Tribes list threatened waterbodies on the section 303(d) list or that 
TMDLs be prepared for these waterbodies. States, Territories and 
authorized Tribes retain, at their discretion, the option to list 
threatened waterbodies on their section 303(d) list and establish TMDLs 
for these waterbodies.
    b. The four-part 303(d) list. EPA proposed that the section 303(d) 
list include all impaired waterbodies, sorted into four parts, and a 
priority ranking for those waterbodies with respect to establishing 
TMDLs. Part 1 of the list would include impaired waterbodies for which 
TMDLs would be required to be established within 15 years. Part 2 of 
the list would include waterbodies impaired by pollution that is not 
caused by a pollutant. TMDLs would not be required for these 
waterbodies. Part 3 of the list would include waterbodies for which 
TMDLs had been established but water quality standards not yet 
attained. Part 4 would include waterbodies for which technology-based 
controls or other enforceable controls would attain water quality 
standards by the next listing cycle. Today's final rule adds a 
clarification that if during the development of each list, a waterbody 
previously listed on Part 3 of the list has not made substantial 
progress towards attainment of water quality standards, it must be 
moved to Part 1 and a new TMDL must be established. Today's rule also 
allows States, Territories and authorized Tribes to submit their list 
in different formats. EPA will still approve all four parts of the 
list, but States, Territories and authorized Tribes may submit lists in 
any of three formats. Lists may be submitted to EPA as described in the 
proposal--that is, as one four-part list published by itself, as part 
of the section 305(b) water quality report, or with Part 1 submitted 
separately to EPA as a section 303(d) submission and Parts 2, 3 and 4 
submitted to EPA as a section 303(d) component of the section 305(b) 
water quality report.
    c. Inclusion of schedules in the section 303(d) list. EPA proposed 
that States, Territories and authorized Tribes should submit the list 
and priority rankings to EPA for approval, and should separately submit 
a schedule for establishing TMDLs which would not be subject to EPA 
approval. Today's rule requires States, Territories, and authorized 
Tribes to submit a prioritized schedule for establishing TMDLs for 
waterbodies listed on Part 1. Further, as

[[Page 43591]]

suggested by some commenters, the final regulations require that TMDL 
establishment be scheduled as expeditiously as practicable and within 
10 years of July 10, 2000, or 10 years from the due date for the first 
list on which the waterbody appeared, whichever is later, rather than 
the 15 year period EPA proposed. However, the schedule can be extended 
for up to 5 years when a State, Territory, or authorized Tribe explains 
that despite expeditious action establishment of TMDLs within 10 years 
is not practicable.
    d. Implementation plan. EPA proposed that TMDLs must contain an 
implementation plan as a required element for approval. Today's rule, 
like the proposal, requires an implementation plan as a mandatory 
element of an approvable TMDL, and includes substantial changes to the 
reasonable assurance and implementation plan requirements in response 
to the comments received. The implementation plan requirements differ 
depending on whether waterbodies are impaired only by point sources 
subject to an NPDES permit, only by other sources (including nonpoint 
sources), or by both. EPA is also adding specificity regarding when the 
NPDES permits implementing wasteload allocations must be issued. 
Finally EPA is establishing a goal of 5 years for implementing 
management measures or control actions to achieve load allocations, and 
a goal of 10 years for attaining water quality standards.
    e. Reasonable assurance. EPA proposed that States, Territories and 
authorized Tribes provide reasonable assurance that the wasteload and 
load allocations reflected in TMDLs would be implemented. Today's final 
rule clarifies how reasonable assurance can be demonstrated for 
waterbodies impaired by all pollutant sources, and provides additional 
detail on how reasonable assurance can be demonstrated for nonpoint 
sources. These changes reflect and seek to address the uncertainties 
inherent in dealing with nonpoint pollutant sources and recognize the 
importance of voluntary and incentive-based programs. Finally, today's 
rule specifies how EPA will provide reasonable assurance when it 
establishes TMDLs.
    f. The petition process. EPA proposed to codify requirements 
applicable to petitions which can be filed with the Administrator by 
citizens who believe that EPA has failed to comply with its TMDL 
responsibilities under the CWA. Today's rule does not include 
requirements codifying the petition process. EPA notes, however, that 
eliminating the proposed petition process from the rule does not change 
the fact that any person is entitled, under the Administrative 
Procedure Act (APA), to petition EPA to take specific actions regarding 
identification of impaired waterbodies and establishment of TMDLs.
    g. Offsets. EPA proposed to require new and significantly expanded 
discharges subject to the NPDES permit program to obtain an offset for 
their increased load before being allowed to discharge the increase. 
Today's rule does not include any requirement for an offset.
    h. Silviculture, Animal Feeding Operations, and Aquatic Animal 
Production Facilities. EPA proposed to allow EPA and States to 
designate certain point source storm water discharges from silviculture 
as subject to the NPDES permitting program. EPA also proposed to allow 
EPA to designate certain animal feeding operations and aquatic animal 
production facilities as point sources in NPDES authorized states. EPA 
has decided to withdraw this proposal.

II. Changes to Part 130

    This section explains in detail the elements of the final Part 130 
TMDL regulations and how these regulations differ from the proposal. 
EPA has made several significant changes to the proposal, clarified 
other requirements, and rewritten and reorganized the regulatory 
language. Most of these changes have been made in response to comments 
received on the proposed rule.

A. What Definitions are Included in This Final Rule? (Sec. 130.2)

    Today's final action revises the definitions of load (or loading), 
load allocation, wasteload allocation, and TMDL, and adds definitions 
for the terms pollutant, total maximum daily thermal load, impaired 
waterbody, thermal discharge, reasonable assurance, management 
measures, waterbody, and list. In addition, for reasons explained in 
detail later in this section EPA has decided not to promulgate 
definitions which were not proposed but were suggested by the 
commenters.
1. What Definitions are Added or Revised?
a. New Definition of Pollutant (Sec. 130.2(d))
    What did EPA propose? On August 23, 1999, EPA proposed to add a 
definition for ``pollutant'' that was the same as the definition in the 
CWA at section 502(6). EPA also proposed to clarify that, in EPA's 
view, the definition of pollutant would encompass drinking water 
contaminants that are regulated under section 1412 of the Safe Drinking 
Water Act and that may be discharged to waters of the U.S. that are the 
source water of one or more public water systems. EPA was proposing to 
clarify that drinking water contaminants that meet these criteria are 
pollutants as defined in the CWA.
    What comments did EPA receive? EPA received many comments on this 
proposed definition which are addressed fully in the Response to 
Comment Document included in the Docket. Most commenters offered 
suggestions as to which particular substances (particularly naturally 
occurring pollutants, FIFRA registered pesticides, and flow) may or may 
not be pollutants, and requested specific recognition of these 
substances in the definition. Others objected to inclusion of drinking 
water contaminants in the definition, believing that they were better 
addressed by the Safe Drinking Water Act requirements. In addition, EPA 
received several requests for more examples to help clarify the 
distinction between pollutants and pollution. Some commenters 
understood EPA to propose that ``pollutant'' includes non-point source 
pollution while others did not. Others gave examples of situations 
where they believed it would be impossible to decide whether a 
waterbody was impaired by pollution or a pollutant. Examples given 
included: biological impairment due to displacement of bedload sediment 
during high intermittent streamflow caused by increased impervious 
surface, and impairment due to low dissolved oxygen levels in 
hydropower releases.
    What is EPA promulgating today? EPA is promulgating a definition of 
pollutant that is identical to the definition in EPA's current NPDES 
regulations. That definition is identical to the CWA definition except 
that it excludes certain radioactive materials from the definition. 
Train v. Colorado Public Int. Research Group, 426 U.S. 1, 25 (1976) 
(Congress did not intend for materials governed by the Atomic Energy 
Act to be included in the category of pollutants subject to regulation 
by EPA under the CWA). In recognition that the CWA definition does not 
expressly discuss drinking water contaminants, EPA is not including a 
reference to drinking water contaminants in the final language. 
However, EPA interprets the CWA definition of pollutant to include, in 
most cases, drinking water contaminants that are regulated under

[[Page 43592]]

section 1412 of the Safe Drinking Water Act (SDWA). This interpretation 
is consistent with both the language and the intent of the CWA. First, 
drinking water contaminants fall within the meaning of one or more of 
the terms used by Congress to define pollutant. Second, the term 
``public water supplies'' is listed under CWA section 303(c)(2)(A) as a 
potential beneficial use to be protected by water quality standards. 
EPA expects that virtually all drinking water contaminants that are 
regulated in the future will be encompassed by one of or more of the 
terms used to define pollutants.
    EPA wishes to clarify the relationship between pollutants and 
pollution for purposes of section 303(d). Pollution, as defined by the 
CWA, and the current regulations is ``the man-made or man-induced 
alteration of the chemical, physical, biological, and radiological 
integrity of a waterbody.'' This is a broad term that encompasses many 
types of changes to a waterbody, including alterations to the character 
of a waterbody that do not result from the introduction of a specific 
pollutant or the presence of pollutants in a waterbody at a level that 
causes an impairment. In other words, all waterbodies which are 
impaired by human intervention suffer from some form of pollution. In 
some cases, the pollution is caused by the presence of a pollutant, and 
a TMDL is required. In other cases it is caused by activities other 
than the introduction of a pollutant.
    The following are two examples of pollution caused by pollutants. 
The discharge of copper from an NPDES regulated facility is the 
introduction of a pollutant into a waterbody. To the extent that this 
pollutant alters the chemical or biological integrity of the waterbody, 
it is also an example of pollution. (Copper is not likely to cause an 
alteration to the water's physical integrity.) Similarly, landscape 
actions that result in the introduction of sediment into a waterbody 
constitute pollution when that sediment (which is a pollutant) results 
in an alteration of the chemical, physical, or biological integrity of 
the waterbody. TMDLs would have to be established for each of these 
waterbodies.
    Degraded aquatic habitat is evidence of impairment which may be 
caused solely by channelization of a stream's bottom. In this case the 
waterbody would be considered impaired by pollution that is not a 
result of the introduction or presence of a pollutant. However, if the 
channelization also caused the bottom to become smothered by excessive 
sediment deposition, then the waterbody impairment is caused by a 
pollutant (sediment) and a TMDL would be required.
    Based on data contained in the 1998 section 303(d) lists, EPA 
believes that many waterbodies that fail to attain water quality 
standards, fail to do so because a specific substance or material, a 
pollutant, has been or is being introduced into the waterbody. EPA 
believes the vast majority of impairments are caused by the 
introduction of pollutants and does not anticipate large numbers of 
waterbodies to be identified as impaired only by pollution. Of the top 
15 categories of impairment identified on the 1998 section 303(d) 
lists, 11 categories are directly or indirectly associated with 
pollutants: sediments, pathogens, nutrients, metals, low dissolved 
oxygen, temperature, pH, pesticides, mercury, organics, and ammonia. 
Together, these categories account for 77% of the total impairments 
listed. In comparison, three of the top 15 categories either are not 
associated with pollutants or the link to pollutants is generally 
unknown: habitat alterations, impaired biologic communities and flow 
alterations. These categories account for only 12% of the total number 
of listed impairments.
    While TMDLs are not required to be established for waterbodies 
impaired by pollution but not a pollutant, they nonetheless remain 
waterbodies which fail to attain or maintain water quality standards. 
EPA believes that States, Territories and authorized Tribes should use 
approaches and institute actions other than TMDLs to begin the task of 
returning these waterbodies to full attainment of water quality 
standards. As explained later in the preamble, one of the reasons for 
including these waterbodies on Part 2 of the list is to ensure that 
they remain in the public's eye and are not simply ignored.
    Another frequently asked question concerns pollutants that are 
``natural.'' Water quality standards often fail to distinguish between 
pollutants that are introduced into a waterbody as the result of some 
human activity and those that are present in a waterbody due to natural 
processes such as weathering of metals from geologic strata. Where a 
natural pollutant occurs along with an anthropogenic pollutant, they 
both must be accounted for within the TMDL so that the TMDL is 
established at a level that will implement the water quality standards. 
For example, cadmium originating from the natural weathering of a 
geologic outcrop, as well as cadmium from a mine tailings pond, must be 
accounted for in the wasteload allocation of a TMDL to ensure that the 
wasteload allocation is properly set to achieve water quality 
standards. EPA recognizes that there may be instances where the 
introduction of natural substances alone may cause the waterbody to 
exceed the water quality standards unless the standard contains an 
exception for addressing such situations. In those circumstances, EPA 
encourages States, Territories, and authorized Tribes to revise their 
water quality standards to reflect and recognize the presence and 
effect of substances that occur naturally.
    EPA does not believe that flow, or lack of flow, is a pollutant as 
defined by CWA Section 502(6). Some commenters have urged EPA to revise 
the proposed regulations to require TMDLs for all forms of pollution, 
including hydromodification, which reduce the amount of water flowing 
through a river or stream. They argue that since low flow can lead to 
non-attainment of water quality standards, e.g., use as a fishery, 
waterbodies impacted by low flow should be listed on Part 1 and have 
TMDLs established for them. While EPA believes that waterbodies which 
do not attain and maintain water quality standards solely because of 
low flow must be identified on Part 2 of a State's section 303(d) list, 
it does not believe section 303(d)(1)(C) requires that States must 
establish TMDLs for such waters. This is because EPA interprets section 
303(d)(1)(C) to require that TMDLs be established for ``pollutants'' 
and does not believe ``low flow'' is a pollutant. Section 303(d)(1)(C) 
provides that States shall establish TMDLs ``for those pollutants'' 
which the Administrator identifies as suitable for such calculation. In 
1978, EPA said that all pollutants under proper technical permit 
conditions were suitable for TMDL calculations. However, low flow is 
not a pollutant. It is not one of the items specifically mentioned in 
the list of pollutants Congress included at section 502(6) of the CWA. 
Nor does it fit within the meaning of any of those terms.
    Instead, low flow is a condition of a waterbody (i.e., a reduced 
volume of water) that when man-made or man-induced would be categorized 
under the CWA as pollution, provided it altered the physical, 
biological and radiological integrity of the water. Many forms of human 
activity, including the introduction of pollutants, can cause water 
pollution. Not all pollution-causing activities, however, must be 
analyzed and allocated in a TMDL. Section 303(d) is a mechanism that 
requires an accounting and allocation of pollutants introduced into 
impaired waters (whether from point or nonpoint

[[Page 43593]]

sources). If low flow in a river, even if man-induced, exacerbates or 
amplifies the impairing effect of a pollutant in that river by 
increasing its concentration, that factor is to be accounted for and 
dealt with in the TMDL by calculating and allocating the total 
pollutant load in light of, among other things, seasonal variations in 
flow. However, where no pollutant is identified as causing an 
exceedance of water quality standards, EPA does not believe the CWA 
requires a TMDL to be established.
    The Supreme Court's decision in PUD. No 1 of Jefferson County et 
al. v. Washington Dept. of Ecology et al., 511 U.S. 700 (1994), does 
not compel a different result. In that case a city and local utility 
district wanted to build a dam on the Dosewallips river in Washington 
State. The project would divert water from the river to run the dam's 
turbines and then return the water to the river below the dam. To 
protect salmon populations in the river, the state imposed a minimum 
flow requirement as part of its CWA section 401 certification of the 
project. The Court determined that compliance with section 303(c) water 
quality standards is a proper function of a section 401 certificate. 
Accordingly, the Court concluded that pursuant to section 401, the 
state may require the dam project to maintain minimum stream flow 
necessary to protect the river's designed use as salmon habitat.
    The Supreme Court in Jefferson County did not interpret section 
303(d) and did not hold that TMDLs had to be established for flow-
impacted waters. The Court did reject petitioner's claim that the CWA 
is only concerned with water ``quality'' and does not allow the 
regulation of water ``quantity.'' Like EPA, it recognized that water 
quantity may be closely related to water quality and that reduced 
stream flow may constitute ``pollution'' under the Act. However, in 
holding that section 401 certification applied to dam projects as a 
whole--including pollution-causing water withdrawals--and not just 
discharges of pollutants, the Court did not decide that a section 
303(d) TMDL must be established for low flow-impaired waterbody. This 
is because Jefferson County did not decide that low flow was a 
pollutant. Under section 303(d) it is pollutants, not pollution, for 
which TMDLs must be established.
    However, EPA recognizes that there will be cases where flow or lack 
thereof will enhance the ability of a pollutant to impair a waterbody. 
EPA has provided for this eventuality by requiring that States, 
Territories and authorized Tribes consider seasonal variations, 
including flow, when establishing TMDLs. (See discussion at 
Sec. 130.32(b)(9).)
    Also, EPA declines at this time to define ``chemical wastes'' as 
that term appears in the definition of ``pollutant'' to exclude 
pesticides designated for aquatic uses. EPA recognizes that the 
requirements of section 303(d) and this rule may lead to waterbodies 
being listed due to the presence of pesticides registered under the 
Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) because 
water quality standards for that chemical are exceeded. EPA will 
continue to evaluate the interface between its regulatory 
responsibilities under FIFRA and the CWA.

    Note: EPA erroneously listed ``pollution'' as a proposed new 
definition in the preamble to the proposal. In fact, the definition 
of pollution is included in the current rules and has been revised 
by simply adding a citation of the CWA section defining that term.

b. Revised Definition of Loading (Sec. 130.2(e))
    What did EPA propose? EPA proposed to make a grammatical revision 
to the definition of ``load or loading'' by using the words ``loading 
of pollutant'' to clarify that loading is the introduction of a 
pollutant whether man-made or naturally-occurring rather than as a 
parenthetical explanation of what is man-caused loading. EPA did not 
consider this change substantive and did not discuss it in the preamble 
to the proposed rule.
    What comments did EPA receive? Some commenters expressed concern 
about perceived inconsistencies between (1) the proposed definition of 
loading and the expression of a TMDL at proposed Sec. 130.34 and (2) 
between this definition and the proposed definition of a TMDL at 
Sec. 130.2(h)(2). Other commenters requested revisions to clarify that 
the load describes when the water quality standard is attained, that 
the definition does not apply to nonpoint sources, or that ambient 
temperature increases are not a load. Another commenter suggested that 
EPA include the definition of load capacity included in the current 
requirements which EPA did not include in the proposal.
    What is EPA promulgating today? EPA has carefully considered these 
comments but is promulgating this definition as proposed. EPA does not 
believe that there are inconsistencies between the definition and the 
manner in which TMDLs may be expressed pursuant to Sec. 130.33. EPA 
does not interpret the final rule to require that TMDLs be always 
expressed as the load or load reduction of the pollutant causing the 
impairment. The final rule at Sec. 130.33(b)(4) preserves the 
flexibility to express the TMDL as a quantitative expression of a 
modification to a characteristic of the waterbody that results in a 
certain load or load reduction. Similarly, EPA does not believe there 
are inconsistencies between the proposed definition of load as a 
substance or matter introduced in a waterbody and the proposed 
definition of a TMDL at Sec. 130.2(h)(2) which would have required 
identification and quantification of the load ``that may be present'' 
in the waterbody. TMDLs are generally established using the principle 
of mass balance, which is the core principle of water quality modeling. 
The mass of a pollutant in a waterbody is a function of the mass 
introduced into the waterbody and the mass that flows out of the 
waterbody. The same principle applies for thermal energy.
    EPA sees no inconsistency between describing loading as an 
introduction of a substance or matter into a waterbody and requiring 
identification of the pollutant load present within the waterbody for 
the purpose of establishing TMDLs. The characterization of a mass of 
material as a load into, or a load within, a waterbody will depend in 
some instances on how the State, Territory, or authorized Tribe decides 
to frame the TMDL.
    EPA is not revising the definition of load to suggest that the load 
describes when the water quality standard is attained. The definition 
of ``load or loading'' merely refers to the quantity of matter or 
thermal energy introduced into a waterbody; it is not intended to 
include an interpretation of the environmental consequence of that 
load. It is the calculation of the TMDL and the resulting allocations 
which establish the loading targets necessary to achieve water quality 
standards.
    EPA is not revising the definition of load or loading to exclude 
nonpoint sources. As noted above, EPA believes that section 303(d) 
applies to all sources including nonpoint sources, and that all sources 
are considered when allocations needed to attain or maintain water 
quality standards are established. EPA has consistently required the 
inclusion of pollutants from nonpoint sources in estimates of loading. 
By defining ``load allocations'' which pertain to nonpoint sources as 
``best estimate of loadings,'' the language of the current regulations 
clearly demonstrates that EPA intended for pollutants from nonpoint 
sources to be included in the definition of load and loading. 
Therefore, EPA believes it is simply a continuation of its policy to

[[Page 43594]]

consider the definition of loads to apply to nonpoint sources.
    Similarly, EPA is not revising the definition of load or loading to 
exclude increases in temperature due to solar input. EPA does not 
believe that the source of a load should disqualify it from being a 
load. What needs to be done to mitigate heat load from solar input will 
be addressed by a State, Territory, or authorized Tribe when it 
establishes the TMDL.
    Finally, EPA is not including the definition of load capacity 
contained in the existing regulations. EPA proposed to delete the 
definition of `` load capacity'' because retaining a separate 
definition of load capacity would only add confusion as to whether a 
TMDL consisted merely of the load capacity or the ten elements of the 
TMDL. The loading capacity is found as element three in the eleven 
elements of the TMDL. EPA continues to believe that retaining a 
separate definition of load capacity would only add confusion as to 
whether a TMDL consisted merely of the load capacity or the ten 
elements of the TMDL promulgated in today's regulation.
c. Revised Definition of Load Allocation (Sec. 130.2(f))
    What did EPA propose? EPA proposed to simplify the existing 
definition of ``load allocation'' by defining it as simply the part of 
the total load in a TMDL that is allocated to nonpoint sources, 
including atmospheric deposition, or natural background sources, as 
opposed to wasteload allocation to point sources. In proposing this 
change, EPA moved the substantive requirement of how a load allocation 
is determined from the definition of load allocation to the description 
of a TMDL in proposed Sec. 130.33(b).
    What comments did EPA receive? EPA received a large number of 
comments with regard to its definition of load allocations, covering a 
range of issues. Again, many commenters asserted that EPA did not have 
the statutory authority to address pollutant loadings from nonpoint 
sources because Congress intended the TMDL provisions of the CWA to 
apply only to waterbodies impaired by point sources or waterbodies 
where control of point sources alone would result in attainment of 
water quality standards.
    In contrast, many commenters supported the inclusion of pollutant 
loadings from nonpoint sources in the TMDL program. A frequently-cited 
reason for the need for such an approach was the commenters' belief 
that existing nonpoint source programs had so far failed to adequately 
address nonpoint source pollution. Numerous commenters urged EPA to 
require quantitative estimates of pollutant loadings from nonpoint 
sources, while acknowledging that doing so would be more difficult than 
for point sources.
    Some commenters suggested that EPA retain the existing definition 
of load allocation, along with the definitions of wasteload allocation, 
loading capacity, and TMDL. These commenters believed that the current 
definitions provide more clarity as to how loadings are defined and 
allocated than did the proposed definitions.
    Other commenters suggested that the definition of load allocation 
should not include specific reference to atmospheric deposition or 
natural background. These commenters contended that the technical 
uncertainties in linking atmospheric deposition sources to water 
quality and the lack of Clean Air Act authority to control atmospheric 
loadings would make it difficult to calculate and implement load 
allocations. Furthermore, the commenters contended that natural 
background cannot be reduced and therefore should not be part of the 
load allocation.
    Several comments called for including point sources not covered by 
the NPDES permit program (such as certain types of storm water sources) 
under the load allocation portion of the TMDL, rather than the 
wasteload allocation portion.
    What is EPA promulgating today? In response to comments, EPA is 
clarifying that pollutants from storm water runoff not regulated under 
NPDES must be accounted for in the load allocation. EPA is also 
clarifying that pollutants from other sources, such as groundwater, air 
deposition or background pollutants from upstream sources must be 
accounted for in the load allocation.
    For the reasons discussed earlier in today's preamble, EPA 
continues to believe that the CWA requires TMDLs to consider loadings 
from nonpoint sources. For these reasons, EPA rejects the suggestions 
that EPA delete the definition of load allocation, and consider the 
TMDL to consist only of wasteload allocations for point sources 
regulated by NPDES permits. EPA also continues to believe that load 
allocations must reflect contributions from atmospheric deposition. 
Where these loads exist, they contribute to the overall load of a 
pollutant within a waterbody and must be accounted for in the TMDL. 
Otherwise, the sum of load and wasteload allocations will exceed the 
amount necessary for the waterbody to attain water quality standards. 
For these reason and the reasons expressed in the Response to Comment 
Document, EPA believes that load allocations must include pollutant 
loads from all sources not already reflected in the wasteload 
allocations.
    EPA believes that, at a minimum, it is possible to determine the 
total of aggregated loadings from air deposition to a particular 
waterbody. As a result, EPA expects that States, Territories and 
authorized Tribes will initially develop load allocations based on 
nationwide reductions expected as a result of programs developed under 
the Clean Air Act, and any State-required reductions in emission from 
local sources. As techniques improve to quantify the relative 
contributions of different sources, EPA expects that States, 
Territories and authorized Tribes will more specifically identify air 
sources and the expected reduction from these sources.
    EPA does not consider a loading to surface water from groundwater 
to necessarily be part of the background loading. The background 
loading in a TMDL is generally either the loading from upstream of the 
waterbody for which the TMDL is being established, or else is a loading 
to the waterbody that originates from natural, not anthropogenic, 
sources. Pollutants entering a waterbody from groundwater can originate 
from either natural or anthropogenic sources. For example, the 
chlorides in groundwater that seep into a waterbody can originate from 
the geological rock formations or from brine seeping from oil 
production wells. In either case, the load allocation will address 
these loadings as part of the load allocation.
    EPA recognizes that by moving some of the details from the current 
definition of load allocation into the TMDL regulatory requirements of 
Sec. 130.32, it has shortened the definition of load allocation in the 
current rule. EPA believes this is appropriate because the new 
Sec. 130.32 provides sufficient additional information about the nature 
of a load allocation (and a wasteload allocation). EPA believes it is 
better to include this information in one place, and has selected to do 
so in Sec. 130.32.
d. Revised Definition of Wasteload Allocation (Sec. 130.2(g))
    What did EPA propose? EPA proposed to simplify the existing 
definition of ``wasteload allocation'' by defining it as simply the 
part of the total load in a TMDL that is allocated to a point source. 
In proposing this change, EPA moved the substantive requirement of how 
a wasteload allocation is

[[Page 43595]]

determined into the description of a TMDL in proposed Sec. 130.33(b).
    What comments did EPA receive? Some commenters said that wasteload 
allocations should include only loads from point sources covered by the 
NPDES permit program, but not include loads from point sources not 
covered by NPDES, such as some types of storm water. Other commenters 
indicated that all point sources should be included in the wasteload 
allocation, regardless of their status with regard to NPDES.
    A significant number of commenters said EPA should retain language 
in the existing definition which states that wasteload allocations are 
a form of effluent limits. One commenter noted that wasteload 
allocations should be defined as allocated to individual, classes or 
groups of sources.
    What is EPA promulgating today? Today's rule clarifies that only 
point sources subject to an NPDES permit need to be included in the 
wasteload allocation. All other sources of a pollutant, be they point 
source or nonpoint sources, are included in the load allocation. In 
1985, when EPA published the definition contained in the existing 
regulations, all point source discharges were subject to an NPDES 
permit. The Water Quality Act of 1987, however, provided that not all 
storm water discharges from point sources were subject to NPDES 
permits. As a result, today some storm water discharges through point 
sources are not subject to NPDES requirements. Generally, these are 
storm water discharges that do not fall into the eleven categories of 
storm water associated with industrial activities or that are below the 
threshold of the storm water phase II regulations. To continue this 
approach, EPA is clarifying that wasteload allocations apply only to 
point source discharges which are or can be subject to an NPDES permit.
    Also, EPA is clarifying that for waterbodies impaired by both point 
and nonpoint sources, anticipated load reductions from nonpoint sources 
may be taken into account in calculating the wasteload allocation. EPA 
received a number of comments stating that in such cases implementation 
of the TMDL may proceed on different schedules for point and nonpoint 
sources and supporting the recognition in the final rule of a such a 
phased approach to implementation of TMDLs (i.e. ``phased TMDLs''). EPA 
interprets the term ``phased TMDLs'' to describe TMDLs where the 
wasteload allocations are based on expected reductions from sources 
other than those regulated by NPDES permits. A phased TMDL includes 
wasteload allocations that are based on those expected load allocations 
and includes a monitoring plan to verify the load reductions. See 
Guidance for Water Quality-Based Decisions: The TMDL process, EPA 440/
4-91/001. EPA considers that the combination of requirements for 
reasonable assurance and the implementation plan in today's rule 
provide the structure for phased TMDLs. The definition of reasonable 
assurance provides the basis by which a State, Territory, or authorized 
Tribe can demonstrate that the load allocations in the TMDL are likely 
to occur. The implementation plan also requires that the TMDL establish 
a schedule or timetable which includes a monitoring or modeling plan to 
measure the effectiveness of point and nonpoint source control 
measures. Such a plan would include data collection, the assessment for 
water quality standards attainment, and, if needed, additional 
predictive modeling.
    EPA recognizes it is difficult to ensure with precision that 
implementing nonpoint source controls will achieve expected load 
reductions. For example, management measures for nonpoint sources may 
not perform according to expectations to achieve expected pollutant 
load reductions despite best efforts. EPA believes that an important 
part of the phased approach, as discussed above, is the recognition 
that ultimate success in achieving water quality standards for nonpoint 
sources may depend upon an iterative approach. States, Territories and 
authorized Tribes may determine to what extent nonpoint source 
management measures are meeting the performance expectations on which 
they are based and implement improved management measures, designs or 
operations and maintenance procedures. Today's rule at 
Sec. 130.32(c)(2)(v) provides for interim, measurable milestones for 
determining whether management measures or other action controls are 
being implemented, and a process for implementing stronger and more 
effective management measures if necessary. EPA recognizes that this 
type of approach might involve very long time-frames before water 
quality standards are eventually realized. EPA also expects that 
information on actual performance of management measures may lead to 
questions concerning the appropriateness of the water quality standards 
and that, in some cases, States, Territories and authorized Tribes may 
initiate use attainability analyses to determine the appropriate use 
and, possibly, revise the use on the basis of the information gathered 
during implementation phase of the TMDL.
    EPA is deleting the sentence in the current definition that defines 
a wasteload allocation as a type of water quality based effluent 
limitation. EPA acknowledges that water quality-based effluent 
limitations that derive from a TMDL are based on the TMDL wasteload 
allocation, but does not believe that wasteload allocations serve as 
water quality based effluent limits. EPA explained this in its 1991 
``Technical Support Guidance for Water Quality-based Toxics Control.'' 
Wasteload allocations reflect the mass load of a pollutant that allows 
a waterbody to attain water quality standards based on the averaging 
period of the water quality standard. For example, a wasteload 
allocation based on attaining the 4-day average water quality criterion 
for copper reflects a 4-day mass load. Effluent limitations reflect 
periods established by NPDES regulations: generally weekly and monthly 
limits for publicly owned treatment works and daily and monthly limits 
for other facilities (see Sec. 122.45(d)) and therefore are not the 
strict equivalent of a wasteload allocation.
e. Revised Definition of TMDL (Sec. 130.2(h))
    What did EPA propose? EPA proposed to define a ``TMDL'' as a 
written plan and analysis established to ensure that an impaired 
waterbody attains and maintains water quality standards in the event of 
reasonably foreseeable increases in pollutant loads. Under the proposed 
revisions, a TMDL would also have had to include ten basic elements, 
which were described in Sec. 130.33(b) and are listed in section 
I.A.3.b. of this preamble. EPA's proposal was meant to amplify the 
existing regulatory definition that a TMDL is the sum of load and 
wasteload allocations and a margin of safety, taking into consideration 
seasonal variations.
    What comments did EPA receive? EPA received numerous comments 
regarding its proposed changes to the definition of TMDLs. Specific 
comments regarding the ten proposed elements of a TMDL are addressed 
later in the discussion of Sec. 130.32(b) of today's rule. Some 
commenters expressed concerns that the proposed definition expanded the 
concept of a TMDL beyond that mandated by section 303(d). Additional 
commenters suggested that section 303(d) requires TMDLs only for point 
sources, and suggested that the TMDL definition reflect this. Others 
interpreted the proposed definition as going beyond the statutory 
concept of a

[[Page 43596]]

TMDL as simply a calculation of the total load necessary to attain and 
maintain water quality standards. Further comments suggested that the 
proposed definition was too vague. All these commenters recommended 
that the existing definition be retained.
    Some commenters supported the proposed definition and agreed that 
it was consistent with section 303(d). These commenters suggested that 
EPA clarify how the ten elements of the TMDL achieve the statutory 
concept, i.e., quantify the sum of load and wasteload allocations with 
a margin of safety and take into consideration seasonal variations.
    Further comments expressed concern that the proposed definition 
required a separate TMDL analysis for each pollutant causing an 
impairment and for each waterbody. Several commenters believed EPA has 
no authority to require TMDLs to address growth and recommended that 
references to growth be stricken from the definition.
    What is EPA promulgating today? Today's rule modifies the proposal 
in a number of ways. EPA is adding the word ``quantitative'' to the 
final definition at Sec. 130.2(f) to clarify that the TMDL must contain 
a quantified plan for allocating pollutant loads to attain and maintain 
water quality standards. EPA is also clarifying that a TMDL must assure 
that water quality standards are attained and maintained throughout the 
waterbody and in all seasons of the year. EPA believes this revision 
clarifies that the TMDL quantifies how water quality standards will be 
attained and maintained. As proposed and promulgated, the total effect 
of all the elements of the TMDL require a quantification of the sum of 
load and wasteload allocations, along with a margin of safety and 
consideration of seasonal variations, and EPA believes that the 
definition in the final rule is consistent with section 303(d). Also, 
EPA has reorganized the provisions of two of the elements and split 
one, such that there are now eleven elements of a TMDL; this change is 
discussed in the preamble discussion of Sec. 130.32(b).
    EPA declines to use the existing regulatory definition of TMDL as 
suggested by many comments for several reasons. Based on its experience 
in reviewing and approving TMDLs, EPA continues to believe that the 
TMDL elements in the final rule definition specify in appropriate 
detail the information EPA considers necessary to quantify loadings and 
determine whether the loadings, once implemented, would result in 
attainment of water quality standards in the waterbody. They will also 
provide EPA with an element missing from the current regulations, i.e., 
assurance that the TMDL will in fact be implemented. EPA believes that 
this information will allow the Agency to make timely and appropriate 
decisions on TMDLs submitted for review. It will also provide certainty 
to States, Territories and authorized Tribes on what an approvable TMDL 
is. Furthermore, as previously discussed in today's preamble, section 
303(d) applies to both point sources and nonpoint sources.
    EPA is deleting the reference to reasonable foreseeable increases 
in pollutant loads from the proposed introductory paragraph in the 
definition, because these increases are addressed in the element of the 
TMDL that pertains to increases in pollutant loading. EPA addresses 
other comments and concerns about how TMDLs consider increases in 
pollutant loads in the Response to Comments document and in today's 
preamble discussion about Sec. 130.32(b).
    Finally, in the promulgated definition, EPA is clarifying that it 
considers a TMDL to apply to one pollutant in a waterbody. However, 
this does not mean that EPA requires a separate data collection, data 
analysis, or report for each TMDL. Instead, EPA encourages States, 
Territories, and authorized Tribes to establish TMDLs on a coordinated 
basis for a group of waterbodies within a watershed, and that a single 
analysis can be conducted for several pollutants, instead of for only a 
single pollutant. EPA does not construe the new definition of waterbody 
at Sec. 130.2(q) to limit the ability of States, Territories and 
authorized Tribes to establish TMDLs on a watershed basis. In fact, EPA 
encourages coordinating the establishment of TMDLs on a watershed 
basis. Also, EPA did not intend to require that States, Territories, 
and authorized Tribes conduct a separate TMDL analysis for each 
pollutant in a waterbody or watershed. EPA wants to provide States, 
Territories and authorized Tribes the flexibility to develop and focus 
their TMDLs as appropriate, i.e., to address single or multiple 
impairments in a waterbody, in part of a waterbody, or in multiple 
waterbodies.
f. New Definition of TMDTL (Sec. 130.2(i))
    EPA is promulgating a definition of the term ``total maximum daily 
thermal load'' or TMDTL to help promote clarity with respect to the 
requirements which apply to TMDTLs. A TMDTL is a TMDL for a waterbody 
impaired by thermal discharge(s). In general, the same requirements for 
an approvable TMDL also apply to TMDTLs, since they are a subset of 
TMDLs. However, waterbodies with a thermal discharge will be evaluated 
for listing based on whether the waterbody is supporting a balanced, 
indigenous population of shellfish, fish, and wildlife. If such waters 
are listed, they will receive a TMDTL which must be calculated to 
assure protection and propagation of such a population.
g. New Definition of Impaired Waterbody (Sec. 130.2(j))
    What did EPA propose? EPA proposed a definition of ``impaired 
waterbody'' to define precisely waterbodies which should be considered 
as not attaining water quality standards and proposed to include within 
that definition waterbodies impaired by unknown causes.
    What comments did EPA receive? Many commenters objected to that 
part of the definition which required them to account for waterbodies 
impaired by unknown causes. They believed that the concept was too 
vague and too broad. They were concerned that some would argue that 
certain waterbodies should be deemed impaired when there was no 
evidence of impairment.
    What is EPA promulgating today? In response to the comments, EPA is 
making a change to the proposed definition to clarify its intent 
regarding waterbodies impaired by unknown causes. EPA does not intend 
for States, Territories, and authorized Tribes to list waterbodies in 
the absence of any information demonstrating an impairment. Rather, by 
proposing to require listing of impaired waters even if the pollutant 
causing the impairment is unknown, EPA wanted to ensure that lack of 
information regarding the specific pollutant would not be a reason for 
not listing an impaired water. After consideration of the comments 
received, EPA has decided to modify the proposed provision. In 
situations where the specific pollutant is unknown, but there is 
information showing impairment, such information tends to consist of 
biological information (e.g., information showing a water is not 
supporting a designated or existing aquatic life habitat use). 
Therefore, EPA is replacing the reference to unknown causes of 
impairments in the proposal with a provision requiring that waterbodies 
be considered impaired (and thus listed) when biological information 
indicates that they do not attain and maintain water quality standards. 
Prior to developing a TMDL for such waters, the State, Territory, or 
authorized Tribe would need to identify the particular pollutant 
causing the

[[Page 43597]]

impairment. EPA is aware that in past lists, some States, Territories, 
and authorized Tribes have identified broad categories of pollutants, 
such as metals or nutrients, as the cause of impairments. Under today's 
regulation, the only situation in which the State may identify the 
pollutant as unknown until such time that the TMDL is developed is for 
waters where the only information demonstrating impairment is 
biological information. EPA is developing guidance to assist States, 
Territories, and authorized Tribes to identify the causes of a 
biological impairment. See draft ``Stressor Identification Guidance'', 
April 28, 2000. Otherwise, EPA expects that States will be able to 
identify the particular metal, nutrient, or other pollutant causing the 
impairment.
    EPA is also modifying the definition of impaired waterbody to 
include waters that fail to attain and maintain water quality 
standards. EPA is using the phrase ``attain and maintain'' to mean that 
the waterbody must consistently continue to meet water quality 
standards throughout the waterbody in order to be considered not 
impaired. Any failure to meet an applicable standard would mean that 
the waterbody should be listed and a TMDL should be developed if it is 
listed on Part 1. The use of the phrase ``attain and maintain'' can be 
distinguished from the proposed requirement to list threatened waters, 
which is not included in today's action. Threatened waters are those 
that are meeting standards, but exhibit a declining trend in water 
quality such that they would likely exceed standards in the future. 
Such waters are not required to be included on the section 303(d) list 
though States can do so. By waters that do not attain and maintain 
standards, EPA intends to ensure that States, Territories, and 
authorized Tribes list waters that may occasionally meet an applicable 
standard, but fail to consistently do so. As in the proposal, the 
Agency is including in the promulgated definition language from section 
303(d)(1)(B) which establishes the standard for considering a waterbody 
impaired by thermal discharges, i.e., the waterbody does not have or 
maintain a balanced indigenous population of shellfish, fish and 
wildlife. As discussed in the preamble to the proposed rule (64 FR 
46021-46022, August 23, 1999) and later in today's preamble, EPA 
interprets section 303(d) to require TMDLs only for waterbodies 
impaired by pollutants.
    Finally, EPA believes that the term impaired waterbodies is a plain 
language definition of the pre-existing regulatory term water quality 
limited segment which derived from the CWA. EPA interprets section 
303(d) as pertaining to parts of or complete waterbodies that do not 
attain and maintain water quality standards. For these waterbodies 
technology-based controls are insufficient to attain water quality 
standards and water quality-based controls are required, i.e., they are 
water-quality limited. Also in today's rule, EPA defines waterbody to 
include one or multiple segments of rivers, lakes, estuaries, etc. 
Thus, EPA believes that the term ``impaired waterbodies'' is analogous 
to the term water-quality limited segment and more understandable to 
the general public.
h. New Definition of Management Measures (Sec. 130.2 (m))
    What did EPA propose? EPA did not propose a definition for 
``management measures.'' Instead, the proposed regulations used the 
term Best Management Practices (BMPs), a definition of which was 
carried over in the proposal from the current requirements.
    What comments did EPA receive? Commenters pointed out that the 
definition of BMPs in the current regulations refers only to nonpoint 
sources, and they suggested that it should be revised to refer to all 
sources to which BMPs could be applied. These would include some point 
sources such as certain storm water discharges. Commenters also were 
concerned that the reference to BMPs as being selected by an agency 
would limit the applicability of certain BMPs in the context of 
establishing TMDLs.
    What is EPA promulgating today? EPA agrees with the commenters that 
it intended the term BMPs in the proposal to include the management of 
sources other than nonpoint sources. However, rather than modify the 
pre-existing definition of BMP to accomplish that result, which could 
have unforeseen impacts on other Agency programs which use this term, 
EPA is including a definition of ``management measures'' in today's 
regulation. This term and definition retain those concepts in the 
current definition of BMPs which are applicable to TMDLs but eliminate 
the references to nonpoint sources and selection by an agency. 
EPAbelieves the definition of ``management measure'' is a logical 
outgrowth of the proposed definition of ``BMP'' and a reasonable 
response to the above-referenced comments.
i. New Definition of Thermal Discharge (Sec. 130.2(o))
    What did EPA propose? EPA proposed adding the definition of 
``thermal discharge'' to clarify the meaning of the term for the 
purpose of identifying impaired waterbodies and establishing Total 
Maximum Daily Thermal Loads (TMDTLs) pursuant to section 303(d). EPA 
proposed to define the term as ``the discharge of heat from a point 
source.'' EPA believed that the definition was important since 
waterbodies impaired by thermal discharge are subject to section 303(d) 
listing and TMDTL requirements, and furthermore, the test for measuring 
successful implementation is different than for other pollutants.
    What comments did EPA receive? EPA received several comments on 
this definition. Some comments requested clarification of whether EPA 
meant discharge of heat from all point sources. Other comments 
suggested that the definition be revised to include nonpoint sources of 
heat.
    What is EPA promulgating today? EPA is promulgating the proposed 
definition with a minor change to clarify that it applies to only those 
point sources ``that are required to have NPDES permits.'' EPA provided 
detailed explanations in the preamble to the proposal regarding its 
interpretation of the statute as it pertains to inclusion of thermal 
discharges in the TMDL program. (64 FR 46017 August 23, 1999). As 
discussed in the preamble to the proposed rule, EPA believes the CWA 
reference to ``balanced, indigenous population of shellfish, fish and 
wildlife'' refers only to those discharges subject to sections 301 and 
306, which relate to point sources subject to NPDES permits. Therefore 
EPA is not expanding the definition of thermal discharge to include 
nonpoint sources. EPA acknowledges that nonpoint sources and other 
sources not subject to NPDES permits can introduce heat into a 
waterbody. However, for reasons discussed in the preamble to the 
proposed rule, EPA believes that the CWA requires that TMDLs rather 
than TMDTLs be established for these waterbodies if they are impaired 
solely by these sources and that they must attain water quality 
standards, and not just a balanced, indigenous population of shellfish, 
fish and wildlife.
j. New Definition of Reasonable Assurance (Sec. 130.2(p))
    What did EPA propose? EPA proposed to define ``reasonable 
assurance'' as a demonstration that wasteload allocations and load 
allocations in a TMDL would be implemented. EPA proposed that each TMDL 
provide reasonable assurance that allocations contained in a TMDL 
would, in fact, be implemented to attain

[[Page 43598]]

and maintain water quality standards in the waterbody. EPA incorporated 
the term in proposed Sec. 130.33(b)(10)(iii) dealing with TMDL 
implementation plans to emphasize that implementation of the 
allocations in TMDLs is critical to the ultimate attainment of 
standards in impaired waterbodies across the country.
    What comments did EPA receive? EPA received a number of comments 
generally opposing the concept of reasonable assurance. Some commenters 
believe that EPA does not have the authority to require States, 
Territories or authorized Tribes to demonstrate reasonable assurance, 
and that the definition of reasonable assurance was too prescriptive. 
EPA also received comments generally in support of the reasonable 
assurance provision, noting that it is important to have assurance that 
implementation will occur and that water quality standards will be met.
    EPA received many comments on specific aspects of the proposed 
definition of reasonable assurance. A major theme was that the proposed 
definition did not recognize that State, Territorial and authorized 
Tribal nonpoint source programs are largely voluntary. Furthermore, 
many commenters noted that States may have limited regulatory authority 
to address nonpoint sources, and perceived the definition of reasonable 
assurance as forcing States to adopt regulatory controls on nonpoint 
sources. Many commenters urged that voluntary, incentive-based programs 
should be acceptable as reasonable assurance. Conversely, a number of 
commenters believed that regulatory controls for nonpoint sources were 
necessary to provide reasonable assurance, or that, in order to provide 
reasonable assurance, implementation plans needed to be enforceable. A 
few commenters suggested that States, Territories and authorized Tribes 
need to have regulatory authority to control pollutants from nonpoint 
sources in the event that voluntary programs do not succeed.
    Numerous commenters expressed concern about the funding component 
of reasonable assurance. A frequently-cited concern was that States 
would not be able to guarantee full funding to implement the TMDL at 
the time a TMDL was established. Some commenters also believed that the 
funding provision was not well-defined, and that, when reviewing TMDLs, 
EPA would not be able to evaluate whether the State had demonstrated 
``adequate funding.'' Others noted that States, Territories and 
authorized Tribes lack adequate funding and staff to establish and 
implement TMDLs and that EPA needs to ensure adequate funding through 
the section and other programs.
    EPA received some comments regarding the ability of existing State 
and Federal authorities and programs to satisfy the reasonable 
assurance provision. Some commenters suggested that approval of a 
State, Territorial or authorized Tribal nonpoint source program or 
nonpoint source management plan should by itself, constitute reasonable 
assurance. Other commenters disagreed and said that reference to 
existing programs by itself is not adequate, and that control actions 
assuring TMDL implementation must be specific to the source and the 
waterbody. Some commenters urged flexibility in allowing for a variety 
of implementation mechanisms to satisfy reasonable assurance such as 
other Federal and State forest and land management programs. Several 
comments pointed out that it would be difficult to provide reasonable 
assurance, given the challenge of aligning multiple State and Federal 
agencies, and multiple watershed groups.
    Some commenters suggested that EPA needs to better define what it 
means that procedures and mechanisms relating to nonpoint sources of a 
pollutant must be implemented expeditiously, or specify a particular 
timeframe for their implementation. A few commenters believed that EPA 
was not in a position to evaluate what constitutes expeditious, and 
that the term should be eliminated.
    A few commenters questioned EPA's authority to provide reasonable 
assurance when it establishes a TMDL for nonpoint sources. Some also 
questioned EPA's authority to condition section 319 grant funds as a 
way of providing reasonable assurance. Conversely, a few commenters 
supported EPA's full use of its authorities to implement TMDLs, or to 
condition section 319 funds, as necessary.
    What is EPA promulgating today? Today's rule contains a revised 
definition of reasonable assurance. Reasonable assurance continues to 
mean a demonstration that TMDLs will be implemented through regulatory 
or voluntary actions, by Federal, State or local governments, 
authorized Tribes or individuals.
    Reasonable assurance is a demonstration that a TMDL's 
implementation plan will indeed be implemented. (See Sec. 130.32(c).) 
EPA believes that it has the authority to require the demonstration of 
reasonable assurance as part of the implementation plan. Section 303(d) 
requires that a TMDL be established at a level necessary to implement 
water quality standards and requires EPA to review and either approve 
or disapprove the TMDL. CWA section 501(a) also authorizes EPA to adopt 
regulations as necessary to implement the Act. To approve a TMDL, EPA 
believes it is necessary to determine whether a TMDL is in fact 
established at a level necessary to attain water quality standards. For 
EPA to determine that the TMDL will implement water quality standards, 
there must be a demonstration in the TMDL of reasonable assurance that 
the TMDL's load and wasteload allocations will be implemented. 
Otherwise, the allocations presented in a TMDL lack a necessary link to 
anticipated attainment of water quality standards.

Reasonable Assurance for Point Sources for Which an NPDES Permit is 
Required

    Reasonable assurance for point sources for which an NPDES permit is 
required means that States, Territories and authorized Tribes must 
identify procedures that will ensure that permits will be modified, 
issued or reissued as expeditiously as practicable to incorporate 
effluent limits consistent with the wasteload allocations. For these 
demonstrations of reasonable assurance, the phrase ``as expeditiously 
as practicable'' means in general that the permitting authority, either 
an authorized State, Territory, or Tribe, or EPA, will issue the permit 
as follows. For facilities receiving a permit for the first time, ``as 
expeditiously as practicable'' means that the permitting authority must 
issue the permit that implements the wasteload allocation before the 
facility begins to discharge. Under EPA's current NPDES rules, a 
facility may only discharge pollutants from point sources into waters 
of the United States as authorized by an NPDES permit (Sec. 122.1). New 
facilities must receive their permit before they can lawfully discharge 
pollutants. Also, current NPDES regulations require that NPDES effluent 
limitations be consistent with the applicable wasteload allocation in 
an approved TMDL (Sec. 122.44(d)(1)(vii)(B)). Therefore, EPA believes 
that its interpretation of ``as expeditiously as practicable'' for 
facilities receiving their first permit is consistent with the current 
practice of the NPDES permit program. For facilities currently 
permitted, ``as expeditiously as practicable'' means that the 
permitting authority will reissue the permit as soon as it can after 
the permit expires, taking into account factors such as available 
permitting resources, staff and budget constraints, other competing

[[Page 43599]]

priorities, and watershed efficiencies. Alternatively, the permitting 
authority, may choose to modify the permit prior to expiration in 
accordance with the permitting authority's modification requirements.
    The phrase ``as expeditiously as practicable'' adds a time element 
to the word ``expeditiously'', which was used in the proposal. The 
dictionary definition of ``expeditiously'' is fast or rapidly. EPA 
received comments about ``how fast is fast,'' and whether any factor 
governed how quickly EPA expected a permitting authority to issue or 
reissue NPDES permits. EPA intended that permitting authorities would 
not delay their normal issuance or reissuance of permits and would 
modify the permits when they contained a reopener provision allowing 
modification of the permit conditions on the basis of new information. 
EPA is using the phrase ``as expeditiously as practicable'' in the 
final rule to clarify further what EPA means by the word 
``expeditiously'' used in the proposal. This clarification should allow 
permit authorities to schedule permit issuance and reissuance actions 
consistent with the relevant factors discussed above.

Reasonable Assurance for Sources for Which an NPDES Permit is Not 
Required

    For all other sources, including nonpoint sources, storm water 
sources for which an NPDES permit is not required, atmospheric 
deposition, groundwater and background sources, reasonable assurance 
means that actions implementing the load allocations meet a four-part 
test. The control actions or management measures must be (1) specific 
to the pollutant and waterbody for which the TMDL is being established, 
(2) implemented as expeditiously as practicable, (3) accomplished 
through reliable delivery mechanisms, and (4) supported by adequate 
funding. For these sources, each TMDL must meet each one of these tests 
prior to EPA approval.
    (1) Specific to the pollutant and waterbody. The first part of the 
four part test for reasonable assurance is that the management measure 
or control be specific to the pollutant and waterbody. By this, EPA 
means that the State, Territory, or authorized Tribe knows of, and can 
point to, information showing that the management measure relied upon 
to achieve the reduction in the loading can reduce that pollutant. By 
``specific,'' EPA does not intend that States, Territories or 
authorized Tribes collect new or additional site-specific information, 
but rather that they provide EPA existing data that relates to the 
specific waterbody and pollutant. For example, a State may rely on a 
program that installs buffer strips to demonstrate reasonable 
assurance. In this example, the State would point to National Resource 
Conservation Service information showing that buffer strips are 
effective in mitigating erosion and thus can reduce loadings of the 
specific pollutant, i.e., sediment. Also, the State would need to show 
which waterbodies within the watershed would receive buffer strips and 
explain the characteristic of these buffer strips. In this way, the 
State may fulfill the requirements of this part of the four part test. 
For atmospheric deposition, where the controls will result from Clean 
Air Act regulations, reference to current or anticipated Clean Air Act 
regulations should explain how those regulations relate to the specific 
pollutant of concern.
    (2) As expeditiously as practicable. EPA intended that States, 
Territories, and authorized Tribes would implement management measures 
as quickly as they reasonably could in light of other water quality 
needs. For the reasons discussed above, EPA is using the phrase ``as 
expeditiously as practicable'' in the final rule to clarify the word 
``expeditiously'' as used in the proposal. EPA expects that States, 
Territories, and authorized Tribes will make nonpoint source controls 
implementing a TMDL for which there are no point sources subject to 
NPDES permits a high priority for nonpoint source program funding. 
Scheduling of nonpoint source controls is also discussed in section 
II.P. of this preamble. For atmospheric deposition, adoption of Clean 
Air Act regulations and implementation of those regulations pursuant to 
the provisions of the Clean Air Act would satisfy the reasonable 
assurance requirement that implementation will occur as expeditiously 
as practicable.
    (3) Reliable delivery mechanisms. EPA did not include the concept 
of ``reliable delivery mechanism'' in the proposed definition of 
reasonable assurance. EPA did discuss this concept in the preamble 
discussion of the definition. ( 64 FR 46033, August 23, 1999). Reliable 
delivery mechanism means the programmatic and administrative means by 
which the management measures and control actions will be implemented 
and monitored. Several comments expressed concern that the preamble 
discussion was not reflected in the rule language, and suggested that 
this preamble phrase should be included in the definition. EPA was 
persuaded by the comments that it should do this.
    EPA is also adding the word ``effective'' to modify ``reliable 
delivery mechanism.'' EPA believes that this concept is a logical 
outgrowth of the preamble to the proposed rule. There, EPA discussed 
that voluntary and incentive-based programs may be used to demonstrate 
reasonable assurance. It goes without saying that these programs must 
be ``effective'' in order to provide reasonable assurance. 
Nevertheless, to avoid confusion, EPA decided to be clear and add the 
word ``effective'' to the final rule.
    Some existing nonpoint source related programs may also be reliable 
and effective delivery mechanisms specific to the waterbody and 
pollutant for purposes of providing reasonable assurance. Programs, 
procedures or authorities including State, Territorial or authorized 
Tribal programs approved under section 319 of the CWA or existing 
conservation or water quality protection programs administered by the 
United States Department of Agriculture which have demonstrated success 
in delivering water quality improvements in the past may be reliable 
delivery mechanisms for the purpose of Sec. 130.2(p). State, 
Territories and authorized Tribes will need to explain how these 
programs will be implemented in the specific impaired waterbody and how 
they address the pollutant causing the impairment. For atmospheric 
deposition, implementation of the Clean Air Act regulatory program 
could provide the necessary reliable delivery mechanism.
    (4) Adequate funding. Finally, today's rule clarifies what EPA 
considers to be ``adequate funding'' for the purpose of demonstrating 
reasonable assurance. In response to comments, EPA is including in the 
final rule the funding language from the proposed rule preamble, and 
providing a more detailed discussion of this term below. (64 FR 46033 
to 46034, August 23, 1999). EPA believes that adequate funding means 
that existing water quality funds have been allocated to implement load 
allocations to the fullest extent practicable and in a manner 
consistent with the effective operation of the clean water program in 
the State, Territory, or authorized Tribe. EPA believes that 
implementing TMDLs is a central part of water quality management. At 
the same time EPA recognizes that effective water quality programs are 
comprised of many different activities which must be carried out 
concurrently. It would make no sense to fund only TMDL activities and 
eliminate other important activities. For atmospheric deposition, where 
controls will be required by Clean Air Act regulations, the process for 
adoption

[[Page 43600]]

and implementation of those regulations should satisfy the requirement 
for adequate funding.
    Today's rule requires that States, Territories and authorized 
Tribes identify adequate clean water program funding to implement load 
allocations. Clean water program funding includes Federal funding 
through the CWA and some related Federal, State, Territorial or 
authorized Tribal funding. In the event that funding is not currently 
adequate to implement the TMDL, EPA may approve the TMDL if the State, 
Territory, or authorized Tribe provides an explanation of when adequate 
funds will be available and a schedule by which these funds will be 
obtained and used to implement the TMDL. EPA believes that such a 
schedule identifying when load allocations will be implemented as 
funding becomes available is necessary to provide reasonable assurance 
that load allocations will be achieved where adequate funding is not 
currently available. As indicated in implementation plans provisions, 
such a schedule must assure that implementation will be as expeditious 
as practicable (i.e., within 5 years when practicable) for waterbodies 
impaired only by sources which are not subject to NPDES permits, 
including nonpoint sources.

Use of Existing Programs

    EPA believes that existing nonpoint source programs can provide the 
suite of control actions and management measures for States to rely on 
when meeting the reasonable assurance test. Examples of voluntary and 
incentive-based actions or existing programs include State, Territorial 
or authorized Tribal programs to audit implementation of agricultural 
management measures and memoranda of understanding between State, 
Territorial and authorized Tribal governments and organizations that 
represent categories, subcategories or individual sources which assure 
implementation and effectiveness of management measures.
    A State, Territory, or authorized Tribe may need to consider other 
programs to address pollutants introduced in a waterbody by atmospheric 
deposition or groundwater. For example, the State, Territory, or 
authorized Tribe could rely on scheduled reductions in atmospheric 
sources under the Clean Air Act or similar State authority. Likewise, 
it could rely on reduced groundwater loadings as a result of remedial 
actions under the Resource Conservation and Recovery Act (RCRA) or 
similar State authority. If these programs cannot provide reasonable 
assurance that the pollutant loads will be reduced, the load reduction 
will have to be assigned to other sources.
    Generally, a State, Territory, or authorized Tribe will demonstrate 
reasonable assurance for the part of the load allocation that addresses 
the loading of pollutants contributed by background sources by 
quantifying the loading so that it can be included in the calculation 
of the total loading in a waterbody. In these situations, this 
background loading would be presumed to be constant and load reductions 
will be assigned to other sources. However, if a State, Territory, or 
authorized Tribe expects that the background loadings will decrease as 
a result of some action and is relying on this decrease in the 
calculation of wasteload and load allocations, then the State, 
Territory, or authorized Tribe will need to apply the four-part test to 
demonstrate the reasonable assurance for this expected reduction.
    The test of reasonable assurance in today's rule is not met simply 
by having programs, authorities or voluntary measures described in the 
definition of reasonable assurance in place. In order for such 
programs, authorities or measures to provide reasonable assurance each 
one of the four parts of the test must be satisfied. For example, if a 
State offers a particular voluntary program approved under section 319 
as proof of reasonable assurance, EPA will review the program 
information to see whether it specifically addresses the waterbody/
pollutant of concern, includes actions that will be implemented as 
expeditiously as practicable, will be accomplished through a reliable 
delivery mechanism with a good track record of success and meet the 
adequate funding test.

Reasonable Assurance When EPA Establishes TMDLs

    In some cases, EPA will have to disapprove a State's TMDL and 
establish the TMDL. When establishing a TMDL, EPA will also have to 
provide reasonable assurance as required by Secs. 130.32(c) and 
130.2(p). In providing reasonable assurance, EPA may rely on various 
statutory or regulatory authorities to meet the four-part test which 
applies to load allocations for sources not subject to an NPDES permit. 
EPA cannot, of course, require States, Territories or authorized Tribes 
to use their own statutory or regulatory authorities to provide 
reasonable assurance for EPA. EPA may, however, condition some or all 
CWA grants to the fullest extent practicable and in a manner consistent 
with the effective operation of other CWA programs in order to meet the 
adequate funding part of the four-part reasonable assurance test. Such 
action would by itself serve to satisfy that part of the reasonable 
assurance test when EPA establishes a TMDL. For example, EPA may 
condition section 319 grants such that States can only use some or all 
of these funds to implement management measures in watersheds where EPA 
has established a TMDL that includes load reductions for nonpoint 
sources. Similarly, EPA may condition section 106 grants to States such 
that some of the funds for monitoring can only be used to support the 
monitoring specified in TMDL implementation plans. EPA may also use its 
voluntary, incentive-based programs, such as section 104(b)(3) 
demonstration grants for watershed restoration, to ensure that 
management measures are funded and implemented. EPA may provide 
reasonable assurance for wasteload allocations by issuing NPDES permits 
within the time frames prescribed by Sec. 130.32(c)(1)(ii) where EPA is 
the permitting authority, or by objecting to expired State-issued 
permits so that new permits will be issued to implement wasteload 
allocations from approved TMDLs.
    By requiring such a demonstration of reasonable assurance before it 
may approve or establish a TMDL, EPA does not intend to create a 
mandatory duty or legal obligation that either the State, Territory, 
authorized Tribe or EPA implement those actions identified as providing 
reasonable assurance. The reasonable assurance demonstration is a 
``snapshot-in-time'' identification of those voluntary and regulatory 
actions that the State, Territory, authorized Tribe or EPA intends to 
take to ensure that the nonpoint source load allocations assigned in 
the TMDL will be realized. If such demonstration is deemed satisfactory 
at the time the TMDL is being reviewed or developed by EPA, the TMDL 
may be approved or established. If in the future, the State, Territory, 
authorized Tribe or EPA determines that the TMDL is not being 
implemented, or that the implementation plan needs to be revised, the 
State, Territory, authorized Tribe or EPA may take action, as 
appropriate under existing State, Territorial, Tribal or Federal legal 
authority, to effect implementation or revise the TMDL. Nothing in this 
rule, however, creates in EPA or the States new legal authority beyond 
that provided by existing State, Territorial, Tribal or Federal law to 
implement load allocations for nonpoint sources or

[[Page 43601]]

creates for EPA, States, Territories or authorized Tribes a mandatory 
duty to do so.
k. New Definition of Waterbody (Sec. 130.2(q))
    What did EPA propose? EPA proposed a definition of the new term 
``waterbody'' to codify EPA's interpretation of the term for the 
purposes of TMDLs. The proposed definition would have provided States, 
Territories, and authorized Tribes more flexibility than the current 
regulation which refers to segments and would have allowed States, 
Territories, and authorized Tribes to tailor the geographical size of 
the watershed for which the TMDL was being established to match the 
pollutants and nature of impairment.
    What comments did EPA receive? EPA received a number of comments on 
this definition. Most commenters suggested that the definition exclude 
ephemeral streams and wetlands. These commenters expressed concern over 
the application of water quality standards to these waterbodies, and 
thus suggested that TMDLs should not be established for them. Other 
comments expressed concern that the definition would prevent 
establishment of a TMDL for one segment of a river.
    What is EPA promulgating today? After review of comments, EPA is 
promulgating the proposed definition with two minor changes. First, EPA 
is revising the proposed language to recognize that waterbodies can be 
made up of one or more segments of rivers, streams, lakes, wetlands, 
coastal waters or ocean waters. EPA did not intend to require that a 
TMDL consider the full geographic extent of a waterbody. Rather EPA 
intended to give States, Territories and authorized Tribes the 
flexibility to establish TMDLs for one or more segments. Second, EPA is 
adding a recommendation to the rule that the use of segments should be 
consistent with the use of segments in a State's water quality 
standards. EPA is making this recommendation to help promote 
consistency between how TMDLs are developed and how water quality 
standards are expressed.
    EPA does not believe that the nature of a waterbody, such as an 
ephemeral stream or a wetland, and the challenge that nature may pose 
to establishing a TMDL, should preclude it from being defined as a 
waterbody. EPA believes that this is a water quality standard issue and 
that the appropriate forum for resolving questions about water quality 
standards is in the development of the standards themselves, and not in 
the application of the standards in a TMDL context.
1. New Definition of List (Sec. 130.2(v))
    What did EPA propose? EPA proposed to include a new definition to 
refer to the four elements of the list and the prioritized schedule. 
EPA proposed this revision to expedite reference to the four elements 
and schedule within the rule.
    What comments did EPA receive? EPA received no substantial comments 
unique to this definition. Some commenters did offer suggestions on 
what are acceptable elements of a list; these comments are addressed in 
parts of today's preamble that address these elements.
    What is EPA promulgating today? EPA is revising the proposed 
definition of ``list of impaired waterbodies'' to make it consistent 
with other provisions of the final rule. First, EPA is clarifying that 
the list consists of all four parts of the required submission. This is 
to ensure that there is no confusion over whether certain parts of the 
list that may be submitted along with the State's section 305(b) report 
are in fact part of the section 303(d) list. In addition, the 
definition states that Part 1 of the list includes both waterbodies 
identified for TMDL development and the prioritized schedule for those 
waterbodies. This revision makes the definition consistent with the 
requirement to submit the prioritized schedule as part of the list 
itself, subject to EPA approval or disapproval, rather than as a 
separate document with the list submission that EPA will review but not 
take action on.
2. Response to Requests for New Definitions
    What did EPA propose? EPA's proposal of August 23, 1999, requested 
comments on all aspects of adding new definitions.
    What comments did EPA receive? EPA received comments suggesting 
that EPA add several definitions for terms used in the proposed rule or 
discussed in comments which requested additions to the requirements of 
the final rule.
    What is EPA promulgating today? EPA has decided not to add other 
definitions to Sec. 130.2. EPA is not adding a definition of ``balanced 
indigenous population of fish, shellfish, and wildlife.'' There is an 
existing regulatory definition of the term ``balanced indigenous 
population'' in Sec. 125.70 that, although it explicitly applies only 
to the regulations implementing section 316(a), provides the Agency's 
interpretation of this term for purposes of identifying impaired 
waterbodies and establishing TMDLs pursuant to section 303(d).
    EPA is not adding a definition of ``watershed.'' The term is not 
used within the final rule to trigger a regulatory provision, and thus 
does not require definition. EPA prefers to allow States, Territories, 
and authorized Tribes the flexibility to define a watershed within the 
context of their own programs. However, EPA encourages the use of the 
hydrologic unit codes for watersheds defined by the U.S. Geologic 
Survey since they are a uniform system of watershed identification that 
will clearly identify to other States, Territories, Tribes, EPA and the 
public the boundaries of watersheds defined by the States in the 
context of their water quality programs.
    EPA is not including a specific definition in the final rule for `` 
trading'' and thus declines to add trading-related definitions for 
``real,'' ``quantifiable'' or ``surplus'' as suggested by some comments 
as being necessary if EPA included regulatory provisions for trading.
    EPA is not adding a definition of ``existing and readily 
available,'' ``man-made or man-induced,'' ``point source,'' ``nonpoint 
source,'' and ``waters of the contiguous zone.'' This final rule at 
Sec. 130.22(b) already provides a definition of existing and readily 
available water-quality related data and information by enumerating 
particular categories of water-quality related data and information 
that must be considered. The regulations clearly state that this list 
is not exhaustive, but rather is intended to identify specific kinds of 
water quality-related data and information that will be considered 
existing and readily available, in addition to water-quality related 
data and information in other relevant categories that are not 
explicitly listed in the regulations. EPA does not believe it can 
accurately identify each and every type of water-quality related data 
and information that should be considered in every state's listing 
process, in light of the broad variety of relevant water-quality 
related data and information that is and will be available. Therefore, 
it is appropriate to list specific categories that are likely to exist 
for every state, and leave it to the States, Territories, and 
authorized Tribes to collect and evaluate other relevant information.
    The CWA itself uses the term ``man-made or man-induced'' within the 
statutory definition of pollution; EPA believes this term is very clear 
and needs no further clarification. The CWA already defines ``point 
source'' and EPA does not believe that today's rule needs to reiterate 
this definition. EPA

[[Page 43602]]

interprets ``nonpoint source'' to apply to all sources that do not meet 
the statutory definition of a point source. Finally, the CWA at section 
502(a) already defines the term ``contiguous zone'' and EPA does not 
believe that it needs to reiterate this definition in today's final 
rule.
    EPA disagrees that it should add a definition of ``sensitive 
aquatic species.'' This term was used in the proposal merely to 
indicate a factor that States, Territories and authorized Tribes should 
consider when establishing priorities for TMDLs. Since this is a 
discretionary practice in the final rule, EPA believes that it need not 
define the term.
    EPA also disagrees that it should add a definition of ``seasonal 
variations.'' This term originates in CWA section 303(d)(1)(C). EPA 
believes it means seasonal variation in environmental conditions which 
affect a waterbody's character, e.g., variations in a waterbody's 
temperature, flow rate, or dissolved oxygen level. EPA does not believe 
the term needs a separate regulatory definition. Further, 
Sec. 130.32(b)(9) provides sufficient explanation of what is to be 
included in the assessment of seasonal variation.
    EPA disagrees that it should add a definition of ``comprehensive 
watershed management plan.'' This term is not used in the final rule, 
and thus does not require definition.
    EPA disagrees that it should add a definition of ``natural sources/
causes'' or ``ephemeral stream.'' EPA believes these terms are best 
defined in State, Territorial and authorized Tribe's water quality 
standards. The term ``natural sources/causes'' was suggested to clarify 
how a TMDL would address impairments caused by natural sources or 
causes. EPA believes this question is best addressed when a State, 
Territory, or authorized Tribe decides the appropriate water quality 
criteria for that waterbody. The term ``ephemeral stream'' was 
suggested to identify a type of waterbody for which special water 
quality standards would be necessary. Again, EPA believes this question 
is best addressed when a State, Territory, or authorized Tribe decides 
the appropriate water quality criteria for that waterbody.

B. Who Must Comply With the Requirements of Subpart C? (Sec. 130.20)

    What did EPA propose? EPA's proposal included a list of entities 
which would be subject to the subpart C regulations. The proposal 
defined the term ``you'' to pertain to States, Territories, and 
authorized Tribes. The proposal also stated that portions of subpart C 
apply to EPA.
    What comments did EPA receive? EPA received only a few of comments 
on this section. These comments expressed concern that EPA was only 
subject to unspecified portions of subpart C, and recommended that EPA 
should be subject to the same requirements as are States, Territories, 
and authorized Tribes.
    What is EPA promulgating today? EPA declines to further clarify 
this section. Its purpose is to explain that the term ``you'' as used 
in a rule written in plain English applies to States, Territories and 
authorized Tribes. As to the parts of the rule that apply to EPA, EPA 
considers that Secs. 130.22, 130.23, 130.25, 130.26, 130.27, 130.28, 
130.29,130.31, 130.32, 130.33, 130.36, and 130.37 apply to EPA when EPA 
establishes lists or TMDLs. These are the same substantive requirements 
that apply to States, Territories, and authorized Tribes.
    Other sections of subpart C pertain to EPA's review and approval or 
disapproval of lists and TMDLs. These sections are specifically 
identified in the titles for the sections.

C. What is the Purpose of Subpart C? (Sec. 130.21)

    EPA proposed to include this section in the regulations to give the 
reader an overall summary of the requirements included in Secs. 130.22 
through 130.37 of Subpart C. EPA received many comments regarding the 
purpose of its proposal. These comments are all addressed in other 
parts of this preamble or in the Response to Comments Document. For the 
sake of clarity, this section has been slightly expanded in today's 
rule to reflect decisions made on the various requirements which are 
explained in detail following sections of the preamble. In addition, 
the section clearly lays out the actions which EPA will undertake in 
the absence of approvable actions by a State, Territory, or authorized 
Tribe. Finally, this section is reorganized to group together 
requirements for States, Territories, and authorized Tribes, and those 
for EPA.

D. What Water-Quality Related Data and Information Must be Assembled To 
Develop the List of Impaired Waterbodies? (Sec. 130.22)

    What did EPA propose? In Sec. 130.22 of the proposal, EPA included 
a listing of the sources of water-quality related data and information 
which a State should consider in order to develop its list of impaired 
waterbodies. Generally, EPA proposed to retain the requirements of 
current Sec. 130.7(b)(5) with one significant addition. EPA proposed at 
Sec. 130.22(b)(4) that States, Territories and authorized Tribes should 
consider the information included in the Drinking Water Source 
assessments mandated by the Safe Drinking Water Act. EPA intended that 
the data obtained from these sources would then be analyzed using the 
State's methodology developed under proposed Sec. 130.23.
    What comments did EPA receive? EPA received a significant number of 
comments concerning both this section and proposed Sec. 130.23. Some 
commenters specifically addressed the list of data sources proposed in 
Sec. 130.22. Their comments are addressed in this section. EPA also 
received many comments dealing with the issues of data quality, types 
of data which should be considered as existing and readily available, 
and the use of monitored vs. modeled or evaluated data. Some commenters 
raised these issues in the context of Sec. 130.22, others in the 
context of Sec. 130.23 For the sake of clarity EPA is addressing these 
issues in the discussion of Sec. 130.23.
    As far as the list of sources, a significant number of commenters 
took exception to inclusion of the source water assessments while 
others supported it. Some commenters suggested that source water 
assessments were not appropriate sources of data because they are 
likely to be desk-top short-term qualitative documents containing no 
actual data, and suggested that sanitary surveys would be better 
sources of data. Others believed that EPA should clarify that ground 
water assessments should not be used for listing decisions. Other 
commenters suggested either additions or deletions from the list.
    What is EPA promulgating today? After careful consideration of 
these comments, EPA is promulgating this section as proposed. The 
Agency appreciates that there are other sources of data available and 
does not intend the list to be exclusive. States must consider other 
types of water quality-related data and information that are existing 
and readily available. On the other hand, EPA does not expect the 
States, Territories and authorized Tribes to use data contained in the 
listed documents, including source water or groundwater assessments, in 
an indiscriminate fashion. The expressed purpose of Sec. 130.23 is to 
document the decision process the States, Territories and authorized 
Tribes will use to consider how data from these and any other existing 
and readily available sources will be used in making listing decisions. 
Thus, States, Territories, and authorized Tribes must consider all 
existing and readily available water quality-related

[[Page 43603]]

data and information in the listing process, but may decide not to use 
certain such data or information as a basis for listing waters. These 
decisions will be explained in the state's methodology, discussed 
below, so that the public and EPA will have an opportunity to provide 
input on the decision process.

E. How Must the Methodology for Considering and Evaluating Existing and 
Available Water-Quality Related Data and Information to Develop the 
List be Documented? (Sec. 130.23)

    What did EPA propose? Under the current regulations, States, 
Territories and authorized Tribes must submit to EPA documentation 
justifying their decisions to list or not list waterbodies at the same 
time they submit the list. EPA proposed to decouple the two 
requirements to provide for early input from stakeholders and EPA on 
this decision-making process. EPA's rationale was that resolving 
methodology issues early in the process would lead to better, more 
readily approvable lists. EPA proposed to require that States, 
Territories, and authorized Tribes develop a methodology covering all 
aspects of how existing and readily available data and information 
would be used to identify waterbodies as impaired, assign priorities 
and develop a schedule for establishing TMDLs.
    What comments did EPA receive? EPA received a significant number of 
comments concerning the use of all existing and readily available data 
as a basis for listing and delisting impaired waters. Many commenters 
strongly advocated the use of data from all sources, with or without 
QA/QC documentation. These commenters were concerned that setting data 
quality requirements too high would result in a less than comprehensive 
assessment of all waters, and therefore dramatically limit or 
underestimate the identification and listing of impaired waters. They 
pointed out that listing and TMDL establishment is an iterative 
process, and that if necessary, States, Territories and authorized 
Tribes could collect supplemental data to confirm or make adjustments 
to their initial listing decisions. Numerous commenters suggested that 
data should not be used for the basis of listing and delisting unless 
it met rigorous QA/QC requirements, and was collected and processed 
with documented and scientifically valid protocols. Several commenters 
supported the establishment of prescribed QA/QC data quality guidelines 
in order to assure that all data met a minimum level of technical 
credibility.
    Numerous commenters suggested that EPA specify in detail the 
contents of an adequate assessment methodology. In this approach, EPA 
would establish requirements for sampling design, data collection, and 
data analysis and interpretation. Other commenters objected to such a 
``one size fits all'' approach, and believed that the format and 
contents of the methodology should be left to States, Territories and 
authorized Tribes.
    Several commenters expressed concerns over the proposed requirement 
that there be a separate public participation process in the 
development of the methodology, while others asked for more specific 
public participation requirements which would mandate involvement of 
certain stakeholders. Several commenters also suggested that the 
methodology be adopted through rulemaking. Some commenters asked that 
the final methodology be made available to the public.
    A number of commenters expressed concern over the adequacy of 
current monitoring programs to characterize and evaluate their waters 
in a comprehensive manner, regardless of how restrictive the States, 
Territories and authorized Tribes are in the use of existing and 
readily available data and information. They pointed out that State, 
Territorial and authorized Tribal monitoring programs needed to expand 
their spatial and temporal coverage, monitor for additional parameters, 
and rapidly incorporate biological and habitat quality indicators.
    Finally, some commenters suggested that the methodology needed to 
consider how to resolve disagreements involving waterbodies that 
crossed Territorial and all Tribal boundaries.
    What is EPA promulgating today? EPA is making several changes to 
the proposed language to conform with decisions explained elsewhere in 
this preamble. These changes reflect the decision that the section 
303(d) list include four Parts, and for Part 1, the prioritized 
schedule for establishing TMDLs. Also, in recognition of the fact that 
EPA will be reviewing and commenting on, but not approving or 
disapproving, the methodology, EPA has revised the regulatory text to 
say that States, Territories, and authorized Tribes ``should'', rather 
than must, include certain elements in the methodology.
    EPA is retaining the proposed requirement that there be a separate 
public participation process in the development of the methodology. EPA 
recognizes the cost savings of combining the public participation of 
the methodology with that of the list. However, EPA believes there is a 
significant benefit to the public to have reviewed the methodology 
before the public reviews the list of impaired waters. EPA is also 
adding language to encourage States, Territories and authorized Tribes 
to provide direct notification of the availability of the draft 
methodology to persons who submit a written request. This change 
conforms with changes made to Sec. 130.36 and makes all public notice 
requirements contained in the final rule consistent. EPA believes it is 
reasonable to expect States to provide direct notification to such 
parties, and that it will not be burdensome. Public participation is 
essential to ensuring accurate, comprehensive lists, and providing 
persons with sufficient interest in the process to request notification 
in writing is a fairly simple way to further ensure that all interested 
parties receive notice of the availability of the draft methodology. 
EPA notes that States need not respond to such requests by providing 
copies of the methodology itself, but rather may simply notify the 
requesting parties that the methodology is available for public review 
and comment. EPA also agrees with the comment that the public should 
have access to the final methodology and is adding language to this 
effect. Today's final rule does not specify how States, Territories, 
and authorized Tribes are to make the methodology available. EPA 
expects that they will use their existing practices for doing so. EPA 
is requiring that the final methodology be made available to the 
public.
    EPA also agrees with the commenter's concerns regarding State, 
Territorial and authorized Tribal monitoring protocols. The final 
regulations specify that the methodology should describe procedures 
that States, Territories and authorized Tribes will use to collect 
ambient water quality information. EPA believes this is reasonable and 
appropriate to provide as part of the methodology since this 
information will likely be critical in listing waterbodies as well as 
determining whether waterbodies are meeting standards and may be 
removed from the list. It is important for the public to be informed of 
the data collection methods the State, Territory, or authorized Tribe 
intends to use, and to have an opportunity to comment on such methods. 
EPA believes this process will serve to minimize concerns that would 
otherwise be raised later, when the State, Territory, or authorized 
Tribe lists

[[Page 43604]]

or removes waters based on data it has collected through its ambient 
water quality data collection programs.
    EPA supports the collection and use of high quality data in 
decision making. EPA's grant regulations require that when grantee 
projects, such as State and Territorial water quality work using CWA 
section 106 funds, involve environmentally-related measurement or data 
generation, the grantee shall implement quality assurance practices 
that produce data of quality adequate to meet the project objectives. 
40 CFR 31.45. Because regulations already require quality assurance 
practices, EPA declines to duplicate these requirements in today's 
rule. EPA has published guidance which governs EPA's own data 
collection activities and references quality assurance/quality control 
guidances for others. See ``Policy and Program Requirements to 
Implement the Mandatory Quality Assurance Program'', EPA Order 5360.1, 
April 3, 1984, as revised July 16, 1998.
    Similarly, EPA recognizes the concern that quality assurance 
practices could be set at so high a level as to preclude consideration 
of most environmental water-quality related data. For this reason, EPA 
is committing in the final rule to comment about a State's, Territory's 
or authorized Tribe's assessment methodology. This will allow EPA to 
express concerns about the assessment methodology, including whether 
the State, Territory, or authorized Tribe inappropriately included or 
excluded water-quality related data. In addition, EPA will consider 
this when EPA reviews the list of impaired waters.
    The final rule at Sec. 130.23(e)(2) now provides that the State, 
Territory, or authorized Tribe should develop a process for resolving 
disagreements with other jurisdictions involving waterbodies crossed by 
Territorial and Tribal boundaries, in addition to the State and 
authorized Tribal boundaries discussed in the proposal. EPA is adding 
Territories to this provision because, under section 303(d), 
Territories are considered in the same way as States. EPA is adding 
Tribes that are not authorized to administer section 303(d) to this 
provision because, in part, Tribes without section 303(d) authorization 
may have authorization under section 303(d) for water quality 
standards, and a resolution of disputes over how to interpret and use 
water quality standards becomes relevant.
    EPA also declines to specify in the final rule the detailed 
contents of an adequate assessment methodology. EPA believes that 
States, Territories, and authorized Tribes need the flexibility to 
tailor their assessment methodology to their monitoring programs and 
the waterbodies within their jurisdiction and that methods change over 
time. To assist States, Territories and authorized Tribes, EPA is, 
however, developing guidance on this subject which will include key 
elements of monitoring programs, monitoring design for achieving 
comprehensive coverage of assessments, and decision criteria for 
determining impairments. This guidance will be available to the States, 
Territories, and authorized Tribes in 2000, unless delayed by the TMDL 
rider.
    EPA recognizes the concerns expressed by commenters over the 
adequacy of current monitoring programs to characterize and evaluate 
their waters in a comprehensive manner. EPA continues to work with 
States, Territories, and other stakeholders to increase the quality and 
comprehensiveness of water quality monitoring and assessment programs. 
This is achieved through data sharing and development of consistent 
monitoring designs and assessment criteria. EPA provides technical 
assistance, guidance and resources for monitoring design and 
implementation. EPA and its partners in States, Territories, Tribes and 
other Federal agencies are developing a consolidated assessment 
methodology that will provide a consistent approach for characterizing 
water quality.

F. When Must the Methodology be Provided to EPA? (Sec. 130.24)

    What did EPA propose? EPA envisioned the methodology as an evolving 
document which States, Territories and authorized Tribes would revise 
as appropriate at some time during the listing cycle. EPA proposed that 
States, Territories and authorized Tribes would submit their first 
final methodology to EPA no later than January 31, 2000, and no later 
than January 31 of every year preceding the year when a list would be 
due, but noted in the preamble that the first date was subject to 
change based on the date when these regulations would be promulgated. 
EPA also proposed that it would review the listing methodology and 
provide comments to the State, Territory, or authorized Tribe. EPA 
proposed to consider the methodology in its approval or disapproval of 
the section 303(d) list and explained in the preamble to the proposal 
that it was considering using the way in which EPA's comments on the 
draft methodology were addressed as a factor in approving or 
disapproving the list.
    What comments did EPA receive? Commenters expressed differing 
opinions on how frequently the methodology should be submitted. Some 
advocated a one time submission, with updates as needed. Others 
suggested that the methodology be submitted with each list. There was a 
diverse set of comments concerning the role of EPA in formally 
approving the methodology. Some commenters strongly endorsed a formal 
approval/disapproval of the methodology as part of EPA's action on the 
submitted list. Some commenters believed that EPA had no role in 
reviewing or approving the methodology. They believed that it was 
strictly a State, Territorial and authorized Tribal responsibility to 
establish and implement data collection and assessment protocols. 
Numerous commenters strongly advocated that EPA only provide advice, 
comment and technical guidance to States, Territories and authorized 
Tribes.
    What is EPA promulgating today? EPA continues to believe that the 
methodology will be an evolving document; therefore, the final rule 
requires that it be provided to EPA during every listing cycle. 
However, EPA recognizes that not all aspects of the methodology may 
change during any given cycle, and the final rule provides that only 
revised portions of the methodology need be provided. EPA will already 
have the previous list's methodology, and will have provided comments 
on the unchanged portions during prior list cycles. Therefore, EPA's 
comments will likely focus on any changed portions of the methodology. 
However, the State, Territory, or authorized Tribe must make available 
to the public for comment the entire methodology, including portions 
unchanged from prior listing cycles. EPA expects the State, Territory, 
or authorized Tribe to address in its final methodology comments from 
the public on all aspects of the methodology, including those that were 
not changed.
    As was proposed, the final rule requires that the methodology and 
updates to the methodology be provided to EPA at least once per four-
year listing cycle. EPA's rationale for choosing a four year list 
submittal cycle is explained later in this preamble. Except for the 
first listing cycle pursuant to these regulations, States, Territories 
and authorized Tribes must provide the methodology no later than two 
years prior to the due date of the list. This time provides sufficient 
time for States, Territories and authorized Tribes to collect water-
quality related data for the next section 303(d) list consistent with

[[Page 43605]]

their most recent assessment methodology. This schedule is compressed 
for the first list because EPA agrees with the commenters who expressed 
an urgency in seeing these regulations implemented. The methodology for 
the first list required to be submitted under today's regulations is 
due no later than November 1, 2001, five months before the list is due, 
unless the rider is in effect through that date. EPA believes this date 
strikes a balance between the competing concerns of allowing States, 
Territories and authorized Tribes sufficient time to develop a 
methodology (including providing an opportunity for the public to 
comment) consistent with today's regulations, and having state lists 
submitted under today's regulations without undue delay. States, 
Territories and authorized Tribes will have nine months to develop the 
methodology and submit it to EPA. EPA will review the methodology and 
provide comments within 60 days (by July 1, 2001). Thus, the State, 
Territory, or authorized Tribe will have nine months from the time it 
receives EPA's comments on its methodology to develop and submit its 
section 303(d) list.
    EPA will not formally approve or disapprove the methodology but 
provide comments to help the State, Territory, or authorized Tribe 
develop appropriate methodologies for listing decisions so that the 
ultimate goal of Sec. 130.23--approvable lists--is achieved. Thus, 
EPA's review of and comments on State, Territory, or authorized Tribe 
methodologies will focus on whether the methodology will result in an 
adequate review of all existing and readily available water quality-
related information, whether the factors that will be used to make 
listing and removal decisions are reasonable, whether the process for 
evaluating different kinds of water-quality related data and 
information is sufficient, whether the process for resolving 
jurisdictional disagreements is sufficient, whether the process for 
developing a prioritized schedule is reasonable and consistent with the 
requirements of the CWA and EPA's regulations, and whether the State, 
Territory, or authorized Tribe has adequately responded to comments 
from the public on its draft methodology.
    In its review of the State's, Territory's or authorized Tribe's 
list submission, EPA will consider whether the State, Territory, or 
authorized Tribe adequately addressed EPA's comments on its final 
methodology. In some cases, the failure to address such comments may 
result in a disapproval or partial disapproval of the state's list 
submission. For example, if EPA concludes that the state's methodology 
fails to adequately consider certain kinds of relevant water-quality 
related data and information, but this deficiency is not corrected in 
the final list submission, EPA may disapprove the list if it determines 
that this deficiency resulted in the state's failure to include certain 
waterbodies required to be listed. Therefore, EPA is in the final 
regulation committing to provide comments to States, Territories and 
authorized Tribes within 60 days of receiving the methodology. This 
should give States, Territories and authorized Tribes sufficient time 
to make necessary adjustments in their methodology to submit an 
approvable list to EPA.
    EPA is also revising the proposed language to require in the final 
rule that States, Territories and authorized Tribes provide to EPA a 
summary of public comments they received on their final methodology and 
of their response to significant comments. EPA believes that it can 
better provide informed comments on State, Territory, and authorized 
Tribe methodologies if it knows what comments they received. Also, EPA 
believes it needs this information to assist in its review and approval 
or disapproval of the lists of impaired waterbodies in order to 
understand issues raised by members of the public and how they were 
addressed in the listing process.
    In the event that the effective date of today's rule is later than 
May 1, 2001, States, Territories, and authorized Tribes are not 
required to develop the methodology for the year 2002 list under the 
requirements of this regulation. Instead, States, Territories, and 
authorized Tribes will need to provide a methodology under the previous 
regulation. See Section V.5 of the preamble.

G. What is the Scope of the List of Impaired Waterbodies? (Sec. 130.25)

    What did EPA propose? EPA proposed to eliminate the term ``water 
quality-limited segments still requiring TMDLs'' from the regulations 
and to broaden the scope of the list. EPA proposed requiring States, 
Territories and authorized Tribes to list all impaired or threatened 
waterbodies, regardless of whether the waterbody was expected to attain 
water quality standards following the application of technology-based 
controls required by section 301 and 306 of the CWA, more stringent 
effluent limitations, or other required pollution controls.
    EPA proposed that States, Territories and authorized Tribes would 
list all waterbodies impaired or threatened by pollutants, by 
pollution, by atmospheric deposition, and by unknown pollutants. EPA 
proposed that these waterbodies be listed regardless of the source of 
the impairment: point source, nonpoint source or a combination of both. 
EPA's rationale for this proposed section was to provide a list that 
served as a comprehensive public accounting of impaired and threatened 
waterbodies and provided all stakeholders with an ongoing record of 
success in attaining water quality standards as TMDLs were completed 
and implemented.
    What comments did EPA receive? EPA received a significant number of 
comments suggesting that threatened waterbodies not be included on the 
section 303(d) lists. These commenters stated that the section 303(d) 
list was expressly for waterbodies not meeting water quality 
standards--not waterbodies currently meeting water quality standards 
even if they exhibited a declining trend in water quality. Several 
commenters supported the inclusion of threatened waters on the section 
303(d) list. They asserted that protective pollution control efforts 
would prevent further deterioration of these waters, and prevent them 
from becoming ``formally'' impaired. Many commenters suggested that 
threatened waters not be listed, but be tracked and reported elsewhere. 
Some commenters expressed concern that EPA had not yet provided 
sufficient guidance on how to define a declining trend, and that 
radically different approaches would be employed by the States. In 
general the States were very concerned with the workload that 
requirement might entail, in light of what they believed to be a more 
expansive definition of a TMDL.
    A significant number of commenters suggested that only waters 
impaired by an identified pollutant should be required to be listed, 
and that waters impaired by pollution, where no pollutant could be 
identified, should not be listed. It was their view that the section 
303(d) list was intended to identify waterbodies for which TMDLs for a 
pollutant or pollutants were to be established. Numerous commenters 
supported the required listing of waterbodies impaired by pollution. It 
was their position that the inclusion of pollution impairments was a 
more comprehensive reporting of the status of the nation's waterbodies, 
and allowed States, Territories and authorized Tribes to target 
pollution control actions more effectively.
    Several commenters objected to the use of drinking water standards 
as a basis for listing impaired waterbodies because they believed that 
MCLs are developed for protecting drinking water

[[Page 43606]]

at the tap and are wholly inappropriate for use as a standard to define 
ambient water quality impairments.
    EPA received numerous comments suggesting that the requirement to 
list waterbodies impaired or threatened by an unknown pollutant be 
eliminated. Some commenters believe that this language was so wide-open 
as to lead members of the public to request that waterbodies be listed 
in the absence of any information even indicating an impairment. Many 
commenters were concerned that listing for an impairment without 
identifying a pollutant could have significant adverse regulatory 
implications. Several commenters were concerned that in many cases of 
biological impairment, the pollutant could never be identified. Other 
commenters supported listing waterbodies where the pollutant was 
unidentified. They endorsed the strategy to first list the waterbody, 
and then attempt to identify the pollutant as a first step in 
establishing the TMDL.
    Several commenters strongly challenged EPA's authority to require 
the listing of waterbodies impaired by nonpoint source pollution. It 
was their interpretation of section 303(d) that the text ``waterbodies 
for which effluent limitations required by section 301(b)(1)(A) and 
(B), and are not stringent enough to implement any water quality 
standard,'' applies expressly only to point sources, and, therefore, 
exempts waters impaired by nonpoint sources alone. Many commenters were 
concerned that the inclusion of nonpoint source only waters would 
greatly expand the number of waters listed, and because of excessive 
resource demands, reduce the effectiveness of dealing with point source 
impairments. Other commenters supported the requirement to list waters 
impaired only by nonpoint sources. In general, these commenters 
suggested that waters be listed regardless of the cause of the 
impairment--point source, nonpoint source or both.
    A significant number of commenters suggested that EPA should not 
require the listing of waterbodies threatened by atmospheric 
deposition. Several of these commenters challenged EPA's statutory 
authority under the CWA to require that waters impaired by atmospheric 
deposition be listed. A number of these commenters suggested that the 
Clean Air Act was a more appropriate vehicle for addressing the effects 
and controls of air sources of pollutants. Many commenters stated that 
it was technically infeasible to link and estimate the significance of 
the atmospheric contribution of a pollutant, and that adequate 
technical tools to establish TMDLs for pollutants contributed by air 
deposition did not yet exist. Several commenters supported the listing 
of waterbodies impaired or threatened by atmospheric sources of 
pollutants. These commenters stated that the source of the impairment 
was irrelevant as to whether a waterbody should or should not be 
listed.
    What is EPA promulgating today? EPA is making two significant 
changes to the proposed language. First, EPA is not requiring that 
States Territories or authorized Tribes, include threatened waters. 
However, EPA is encouraging States, Territories and authorized Tribes 
to include on the list those waterbodies which they anticipate will 
become impaired before the next listing cycle.
    Waterbodies which exhibit a declining trend in water quality at the 
time a list is being developed such that water quality standards will 
likely be exceeded by the time of the next list submission are not 
required to be listed under the final rule. However, EPA expects that 
such waters will either exceed standards at the next listing cycle if 
the declining trend continues as expected and must then be listed or 
will attain standards by that time if the declining trend is reversed. 
Thus, a State, Territory, or authorized Tribe still has an incentive to 
adopt controls that address threatened waterbodies so that listing and 
TMDL development can ultimately be avoided. Moreover, if declining 
trends are not reversed, it is likely that the waterbody will be 
required to be included in the next list and scheduled for TMDL 
development if included on Part 1. For this reason, TMDL development 
will not be delayed more than four years compared to the proposed 
approach for requiring listing of threatened waters.
    Alternatively, a State, Territory, or authorized Tribe could decide 
to list a threatened waterbody on the section 303(d) list, schedule a 
TMDL if the impairment was caused by a pollutant, and proceed with 
establishing the TMDL. If a State, Territory, or authorized Tribe 
chooses to do so, this TMDL will be subject to the requirements of 
subpart C, that is, the TMDL must be submitted to EPA for review, and 
EPA's approval or disapproval and establishment of a TMDL will be based 
on the requirements of subpart C. In addition, as required by 
Sec. 130.35(a), EPA must establish a TMDL for any waterbody that a 
State, Territory, or authorized Tribe lists and does not make 
substantial progress in establishing the TMDL as compared to its 
approved schedule. The decision to include threatened waters or not is 
left entirely to the discretion of States, Territories, and authorized 
Tribes. EPA will not use grant conditions or other mechanisms to 
influence this decision.
    Second, EPA is clarifying that in order for a waterbody to be 
listed in the absence of information regarding the presence of a 
pollutant, there has to be some biological information, (e.g. not 
supporting a designated or existing habitat use) supporting the 
impairment finding.
    EPA is declining to make any of the changes suggested by the 
commenters pertaining to the scope of the list of impaired waterbodies 
as described by Sec. 130.25. Most of the comments suggesting that the 
scope of the list should be narrowed based their rationale on their 
interpretation of the CWA and EPA's authority under section 303(d). As 
stated in section I.A.2. of this preamble, EPA believes that the CWA 
does require that States, Territories, or authorized Tribes list waters 
impaired regardless of the source, except for the statutory exception 
for those waters where the installation of technology-based treatment 
will attain and maintain water quality standards. Accordingly, today's 
rule provides more examples of the types of sources, including 
atmospheric deposition and ground water, that may cause impairments 
requiring placement of the waterbody on the section 303(d) list.
    EPA continues to believe that there are merits in ensuring that the 
States, Territories and authorized Tribes have a complete accounting of 
impaired waterbodies and that the public should be able to have access 
to the list. As EPA explained in the preamble to the proposed 
regulations, there should be a close relationship between the 
information that States, Territories, or authorized Tribes used to 
develop the section 305(b) list and the information used to establish 
the section 303(d) list. Indeed, one requirement of Sec. 130.22 is that 
States, Territories, or authorized Tribes evaluate and consider their 
most recent section 305(b) report in developing their section 303(d) 
lists of impaired waterbodies. Therefore EPA does not believe that 
requiring the more complete section 303(d) list imposes an undue burden 
on the States, Territories, or authorized Tribes because they are using 
water-quality related data and information that they have in hand and 
may have already evaluated for their section 305(b) report. In 
addition, as discussed later in this preamble, EPA is providing States, 
Territories and authorized Tribes with significant flexibility in the 
way they can provide the list to EPA which will further alleviate this 
burden.

[[Page 43607]]

    Today's rule at Sec. 130.25(a) also recognizes that the existing 
and readily available water-quality related data and information used 
by States, Territories and authorized Tribes for environmentally-
related measurement or data generation must include appropriate quality 
assurance and quality control. EPA's grant regulations require that 
when grantee projects, such as State and Territorial water quality work 
using CWA section 106 funds, involve environmentally-related 
measurement or data generation, the grantee shall implement quality 
assurance practices that produce data of quality adequate to meet the 
project objectives. 40 CFR 31.45. Similarly, any monitoring or analysis 
activities undertaken by a Tribe with EPA funds must be performed in 
accordance with quality assurance/quality control 
practices.(Sec. 130.10). Therefore, EPA believes that it is consistent 
with the current requirements for how States, Territories and 
authorized Tribes consider data to recognize that the existing and 
ready available data and information must include appropriate quality 
assurance and quality control.

H. How do you Apply Your Water Quality Standards Antidegradation Policy 
to the Listing of Impaired Waterbodies? (Sec. 130.26)

    What did EPA propose? EPA proposed to clarify how State, 
Territorial and authorized Tribal antidegradation policies should be 
used in identifying and listing impaired and threatened waterbodies 
under section 303(d). As described in the preamble to the proposed 
rule, antidegradation policies and associated implementation procedures 
are an essential part of State, Territorial and authorized Tribal water 
quality standards and are required under Part 131. The preamble further 
described the relationship between the section 303(d) listing 
requirements and antidegradation policies. EPA proposed requiring that 
any decline in water quality for Outstanding National Resource Waters 
(ONWRs) waterbodies would represent an impairment, and that such 
waterbodies should be identified and listed. EPA also proposed 
requiring identification and listing of unimpaired waterbodies as 
threatened when trend data and information indicated that a designated 
use would not be maintained and protected by the time of the next 
listing cycle. For all waterbodies, EPA proposed requiring 
identification and listing of waterbodies as impaired where the 
designated use, or a more protective existing use, was not maintained. 
An existing use is a use actually attained in the waterbody on or after 
November 28, 1975 (when the Water Quality Standards regulations were 
published), whether or not the use is included in the Water Quality 
Standard. See Sec. 131.3(e). EPA also proposed listing such waterbodies 
as threatened when trend data indicated the designated use, or a more 
protective existing use, would no longer be attained at the end of the 
next listing cycle.
    What comments did EPA receive? EPA received a number of comments 
specific to the use of antidegradation policies in identifying and 
listing threatened and impaired waterbodies. Many commenters disagreed 
that the definition of water quality standards in the CWA and Part 131 
includes an antidegradation policy, thereby asserting that EPA does not 
have the authority to impose such policy on States and that 
antidegradation policies cannot serve as a basis for listings under 
section 303(d). Other commenters asserted that antidegradation 
policies, while part of water quality standards, are intended to apply 
only to waters that already attain water quality standards and thus 
antidegradation policies should not be considered when identifying and 
listing impaired waterbodies. Several commenters believed that ONRW 
waterbodies should not be listed as impaired based on a measurable 
change in water quality since there was no exceedance of a water 
quality standard; others asserted it was illogical since a decline in 
water quality could be temporary. Several commenters believed that EPA 
should remove the protection of existing uses from the water quality 
standards regulation. Several commenters believed that EPA should not 
require listing of threatened waters on the basis of a decline in water 
quality in unimpaired waterbodies, since EPA explicitly allows for a 
lowering of these waters' quality to accommodate important social and 
economic development. Finally, many commenters asserted that EPA lacks 
the statutory authority to require listing of threatened waters.
    What is EPA promulgating today? After carefully considering the 
comments received on the use of State, Territorial and authorized 
Tribal antidegradation policies in identifying and listing impaired and 
threatened waterbodies, EPA is promulgating the following requirements. 
First, ONRW waterbodies are impaired and must be listed when the water 
quality of such waterbodies has declined. Second, any waterbody not 
maintaining a designated use or more protective existing use is 
impaired and must be listed. Consistent with the decision not to 
require listing of threatened waterbodies, EPA is not including in the 
final rule the proposed provision requiring listing of unimpaired 
waterbodies that are determined to be threatened based on adverse trend 
data and information.
    EPA rejects the assertion made by many commenters that 
antidegradation policies are not part of water quality standards and 
that EPA lacks the authority to promulgate such policies for States, 
Territories or authorized Tribes. As described in the preamble to the 
proposed rule, antidegradation policies are a required element of 
State, Territorial and authorized Tribal water quality standards. The 
preamble to the Advance Notice of Proposed Rulemaking to the Water 
Quality Standards Regulation discusses at length both the statutory and 
regulatory basis for these longstanding requirements. ( 63 FR 36779-
36787. July 7, 1998). Further, EPA has in the past, and may in the 
future, promulgate replacement Federal water quality standards when 
State, Territorial or authorized Tribal water quality standards do not 
include an antidegradation policy which provides protection of water 
quality consistent with the Federal antidegradation policy at 
Sec. 131.12. ( Sec. 131.32, 61 FR 64816 December 9, 1996). Quite 
simply, antidegradation policies are part of water quality standards.
    EPA also rejects commenters' assertions that antidegradation 
policies should not be considered when identifying and listing impaired 
waterbodies because they apply only to waters that already attain water 
quality standards. As discussed in the preamble to the proposed rule, 
Sec. 131.12(a)(1) requires that existing uses and the water quality 
necessary to protect them be maintained and protected. This is the 
fundamental level of water quality protection, applicable to all waters 
of the U.S., established by the Federal antidegradation policy. While 
existing uses and designated uses may be equivalent, this is not always 
the case. (63 FR 36751, July 7,1998). For example, a waterbody may be 
designated as a warm water fishery, but in reality be supporting a 
cold-water fishery, a more protective existing use. While the cold-
water fishery has not yet been adopted as the designated use, as the 
existing use it must be maintained and protected. The intent of 
Sec. 131.12(a)(1) is to ensure that the more protective existing use is 
maintained and protected. In this example if the cold-water fishery is 
an existing use and is impaired prior to its adoption as the designated 
use in the water quality standards, such impairment is a failure to 
meet an

[[Page 43608]]

existing use and the water must be listed. Therefore, EPA believes that 
waterbodies which are not maintaining designated uses or more 
protective existing uses are impaired and must be listed under section 
303(d).
    EPA rejects the suggestion to remove protection of existing uses. 
To the extent this comment is related to the water quality standards 
regulations, it is outside the scope of today's action. EPA recognizes 
the inherent challenges associated with identifying and protecting 
existing uses. However, EPA has long-standing requirements for the 
protection of existing uses--prohibiting the removal of existing uses 
and requiring the adoption of designated uses consistent with existing 
uses. The existing requirement that water quality necessary to protect 
existing uses be maintained and protected will ensure that past or 
present water quality, at a minimum, will be maintained and protected. 
Requiring listing of waterbodies that are not maintaining designated 
uses or more protective existing uses as impaired is not only 
consistent with these longstanding requirements, but further clarifies 
and strengthens the protection of existing uses.
    EPA disagrees that degradation of the ONRW waterbody does not 
constitute an exceedance of a water quality standard. Section 
131.12(a)(3) establishes the highest level of protection for 
waterbodies by prohibiting the lowering of water quality. Thus, the 
level of water quality present at the time a waterbody is classified as 
a ONRW water, even that which exceeds the threshold for designated use 
attainment, must be maintained and protected. The only exception to 
this prohibition, as discussed in the preamble to the water quality 
standards regulation (54 FR 54100, November 8, 1983), is for activities 
that result in short-term and temporary changes. EPA guidance has not 
defined short-term or temporary, but views these terms as limiting 
water quality degradation for weeks or months, not years, with the 
intent of limiting degradation to the shortest possible time. For an 
ONRW waterbody the applicable standard is the prohibition on lowering 
of water quality. Therefore, EPA believes that when degradation to a 
waterbody classified as an ONRW occurs (beyond that which is short-term 
and temporary), such waterbody is impaired and must be listed under 
section 303(d). EPA acknowledges that an ONRW waterbody may have very 
high water quality which far exceeds the threshold required for 
attainment of its designated use. However, the level of protection 
established by Tier 3 is intended to maintain that level of water 
quality into the future. EPA notes that classification of any 
individual waterbody as an ONRW is solely at the discretion of the 
State, Territory, or authorized Tribe.

I. What is the Format and Content of the List? (Sec. 130.27)

    What did EPA propose? EPA's proposal at Sec. 130.27 would have 
established a specific format and content for States, Territories, and 
authorized Tribes to follow, which organized the types of waterbodies 
included on the list and clearly identified which waterbodies would 
require the establishment of TMDLs. The proposed rule would have 
required that a list consist of four parts:
    Part 1--Waterbodies impaired or threatened by one or more 
pollutants or unknown causes for which TMDLs would be required .
    Part 2--Waterbodies impaired or threatened by pollution for which 
TMDLs would not be required.
    Part 3--Waterbodies for which EPA has approved or established a 
TMDL and water quality standards have not yet been attained.
    Part 4--Waterbodies that are impaired, but for which implementation 
of technology-based or other enforceable controls are expected to 
result in attainment of water quality standards by the next listing 
cycle. A TMDL would not be required for waterbodies on this part of the 
list.
    EPA explained its belief that these four parts were necessary 
because the list no longer would include only waterbodies for which 
TMDLs were required. EPA wanted to ensure that the public and 
stakeholders would be aware of the different regulatory treatment 
afforded waterbodies depending on the basis of their inclusion on the 
various parts of the list.
    EPA also specifically requested comments on the advisability of 
identifying specific situations where the proposed technical conditions 
for establishment of TMDLs are not met, what those situations might be 
and whether EPA should include waters impaired by pollutants in such 
circumstances on a separate part of the list. These comments are 
addressed fully in the Response to Comments Document and in section 
II.M. of this preamble.
    What comments did EPA receive? EPA received many comments on the 
proposed format and content. In general, the same commenters who 
opposed the broader scope of the list also opposed the four parts 
proposed in Sec. 130.27 for the same reasons--lack of statutory 
authority and burden for the States. These commenters suggested that 
EPA maintain the current regulation requiring a one part list of 
waterbodies impaired by a pollutant or pollutants, and for which a TMDL 
is required.
    Some commenters who supported the proposed broader scope of the 
list also supported the four part list of impaired waterbodies. 
However, many commenters opposed the establishment of the Part 4 
component of the four-part list. Some opposed it because they believed 
that all waterbodies impaired by a pollutant, for which a TMDL has not 
been established, should be listed on Part 1. Others opposed it, 
because they believed that the States should not have to list impaired 
waterbodies where a pollution control mechanism was being implemented.
    Several commenters supported the establishment of the Part 4 
component, but did not agree that only enforceable controls should be 
determinative for inclusion of waterbodies on Part 4. Many of these 
commenters stated that voluntary measures, including community-based 
initiatives and incentive-based measures should also qualify a 
waterbody for inclusion on Part 4.
    EPA received numerous comments concerning the proposed requirement 
that a waterbody on Part 4 must attain water quality standards by the 
next listing cycle, or be moved to Part 1. They expressed the view that 
one listing cycle might not be a sufficient amount of time to achieve 
water quality standards, and that as long as reasonable progress 
towards attainment was being made, the waterbody should remain on Part 
4. In contrast, several commenters supported the proposed requirements, 
based on their belief that one listing cycle should be sufficient to 
determine whether other controls were adequate to attain water quality 
standards.
    A number of commenters were concerned about the implications of 
EPA's proposal to require the listing of waterbodies where impairment 
was caused by an unknown pollutant on Part 1. They were concerned that 
States would list waterbodies for broad and unspecified reasons, which 
would hinder the establishment of a TMDL.
    Some commenters advocated tracking impaired waterbodies that met 
the

[[Page 43609]]

definition of EPA's proposed Parts 2, 3, and 4 by way of other existing 
reporting mechanisms (e.g., the section 305(b) report). These 
commenters expressed support for identifying impaired waterbodies for 
any reason, but expressed a preference that section 303(d) be used only 
to address those waterbodies for which a TMDL is required.
    What is EPA promulgating today? After analyzing all the comments 
received, EPA is making a number of significant changes to the proposed 
language but is retaining the concept that the list must be divided 
into four parts. EPA believes that the distinctions provided by the 
four parts are important to address some of the concerns expressed by 
commenters that the list would be confusing to the public and could 
lead some to believe that TMDLs were required for every waterbody on 
the section 303(d) list. EPA also believes that each part is important 
for different reasons. Parts 1, 3 and 4 will provide valuable 
information regarding the progress made by waterbodies impaired by 
pollutants. Progress in establishing TMDLs can be tracked by following 
the movement of waterbodies from Part 1 to Part 3 of the list. 
Effectiveness of control measures should result in waterbodies removed 
from Part 3 or Part 4 and from the list altogether. If control measures 
are effective, very few waterbodies should move from Part 4 to Part 1 
or from Part 3 back to Part 1; the final regulations clarify 
circumstances which would warrant such changes. Part 2 helps ensure 
that stakeholders are aware of the extent to which waterbodies in a 
State, Territory, or authorized Tribe are impaired by pollution. In 
addition, if States, Territories or authorized Tribes decide to list 
the waterbodies which they anticipate will become impaired before the 
next listing cycle, and such waterbodies are included on Part 1, they 
must also include them in the prioritized schedule for TMDL 
establishment.
    Today's final rule also requires that Part 3 waterbodies be moved 
to Part 1 of the list if a State, Territory, or authorized Tribe, or 
EPA determines that the waterbodies are not showing substantial 
progress towards attainment of standards. This review could be part of 
the analysis conducted by a State, Territory, or authorized Tribe for 
its section 303(d) list submittal. If a State, Territory, or authorized 
Tribe, or EPA determines that such progress is not occurring, then the 
State, Territory, or authorized Tribe must include the waterbody on 
Part 1 on the next section 303(d) list and revise the schedule to 
identify when the new TMDL will be established. This provision is 
consistent with EPA's proposal that TMDL implementation plans contain a 
description of when TMDLs must be revised, and is intended to ensure 
that such revisions will occur as envisioned by the implementation 
plan, and when otherwise appropriate. Thus, as part of their 
consideration of existing and readily available water quality-related 
data and information, States, Territories, and authorized Tribes must 
also consider any such data and information regarding Part 3 
waterbodies and their progress towards attainment of standards. If, in 
that review, there is data or information that shows substantial 
progress is not being made, the waterbody must be moved to Part 1.
    This provision is particularly important for waterbodies with TMDLs 
established prior to the effective date of today's rule or under the 
pre-existing regulations within 18 months of publication of today's 
rule because these TMDLs are not required to include implementation 
plans. Therefore, if there is data or information available to the 
State, Territory, or authorized Tribe that shows such waterbodies are 
not making substantial progress towards attainment of standards, the 
State, Territory, or authorized Tribe must include the waterbody on 
Part 1 and schedule a new TMDL. The new TMDL should be better able to 
achieve water quality standards, since it will be required to contain 
an implementation plan that meets the requirements of Sec. 130.32(c).
    EPA will use the TMDL implementation plan to assess whether the 
waterbodies on Part 3 of the list exhibit substantial progress towards 
attainment of water quality standards. As required by Sec. 130.32(c), 
each TMDL established in accordance with today's rule will include a 
monitoring and/or modeling plan and criteria to determine whether 
substantial progress toward attaining water quality standards is not 
occurring and the TMDL needs to be revised. EPA will use the modeling 
and monitoring information and criteria to assess progress. For TMDLs 
established prior to the effective date of today's rule or prior to the 
end of the transition period described in Sec. 130.37, EPA and the 
State may consider information from section 305(b) reports and other 
available water quality information along with information on 
implementation of wasteload and load allocations to determine whether 
the waterbody is making substantial progress. In this review, EPA will 
also consider the pollutant controlled by the TMDL and the size and 
expected response of the waterbody to changed loads.
    The final rule requires that waterbodies that are expected to 
attain and maintain water quality standards by the next listing cycle 
through implementation of technology-based effluent limits or other 
enforceable controls (best practicable control technology and secondary 
treatment) be listed on Part 4 of the list. EPA believes that there is 
a benefit to the public of knowing that these waterbodies, though 
currently impaired, are expected to attain and maintain water quality 
standards once the technology-based requirements are implemented.
    EPA continues to believe that impaired waterbodies can only be 
placed on Part 4 of the list (1) if they are subject to technology-
based requirements of the CWA or other enforceable controls, and (2) 
for one listing cycle. Part 4 of the list can be construed as an 
exception to the requirement that TMDLs must be established for all 
waterbodies impaired by a pollutant or pollutants. Therefore EPA 
believes that it is appropriate to limit the scope and duration of this 
exception. Although EPA strongly supports the use of voluntary programs 
to resolve many impairment situations, EPA believes that enforceable 
controls will simplify the States, Territories and authorized Tribes' 
task of demonstrating that water quality standards will be attained 
within the relatively short period between listing cycles. Similarly 
EPA believes that a clear cut endpoint to this exception is necessary 
to ensure that the enforceable controls are sufficient to attain water 
quality standards.
    EPA disagrees with commenters who stated that EPA lacks authority 
to require listing of impaired waters under the Clean Water Act. EPA's 
analysis is described in the preamble to the proposed rule. 64 FR 
46020-23, August 23, 1999. In particular, EPA disagrees with the 
reading of section 303(d)(1)(A) as limited to waters that may need 
water quality-based effluent limitations, i.e., only waters that are 
not meeting standards due to point source discharges. First, EPA 
disagrees that the use of the word ``effluent limitations'' in section 
303(d) requires a reading of this section as limited to waters with 
sources that have effluent limitations. Rather, the term ``effluent 
limitation'' must be read in the context of the rest of section 303(d). 
Read in that context, EPA believes that Congress intended to exclude 
from listing only those waters where such limits are sufficient to 
implement standards, but did not mandate excluding any other categories

[[Page 43610]]

of waters. In the absence of plain language mandating such an 
exclusion, EPA believes that a reasonable interpretation of section 
303(d), consistent with the broader goals of the Act, is that all other 
waters can be required to be listed, since all are waters where 
effluent limits are insufficient to implement standards.
    In addition, there is no other indication in the statutory language 
that section 303(d)(1)(A) only requires listing of waters that require 
water quality-based effluent limitations. In fact, such limitations are 
to be established under a different section of the Act (section 
302(a)), which is not mentioned in section 303(d). Moreover, EPA 
disagrees that the legislative history referenced by one commenter 
supports a different interpretation. The commenter notes that the 
legislative history of section 303(d) reveals a clear Congressional 
intent to provide a mechanism for establishing water quality effluent 
limitations. However, the commenter points to a statement in the 
legislative history that describes the section 302 process for 
establishment of water quality-related effluent limitations for a 
single point source or a group of point sources, not listing of waters 
under section 303(d). The legislative history simply describes the 
basis on which more stringent effluent limitations will be set (i.e., 
the reduction needed to make the total load of the discharges from 
municipal and industrial sources consistent with water quality 
standards) under section 302(a), and does not support the proposition 
that only waters that need water quality-based effluent limitations 
should be listed under section 303(d). See H.R. 92-911 at 105-106, 
March 11, 1972.
    EPA also believes its interpretation of section 303(d) is a 
different situation than the interpretation of section 211(k)(6) of the 
Clean Air Act addressed in American Petroleum Institute v. EPA, 198 
F.3d. 275 (D.C. Cir. 2000). In that case, the court struck down EPA's 
interpretation of the phrase ``marginal, moderate, serious, or severe'' 
ozone nonattainment areas in the Clean Air Act to include other areas 
not classified as marginal, moderate, serious, or severe. In today's 
action, EPA is not interpreting a statutory phrase intended to 
circumscribe the limits of the availability of a regulatory option, as 
it was in the regulation at issue in the API case (in that case, the 
ability to opt-into the federal reformulated gasoline program). Rather, 
EPA is interpreting the language of section 303(d) to identify the 
universe of waterbodies that Congress clearly intended not be listed, 
and believes that universe consists of only one category of waters--
those for which effluent limitations required by sections 301(b)(1)(A) 
and (B) are sufficient to implement standards. This is not a situation 
where Congress ``makes an explicit provision for apples, oranges, and 
bananas,'' and therefore was ``unlikely to have meant grapefruit.'' Id. 
at 278, citations omitted. Rather, it is a situation where Congress 
identified only a particular category to be excluded, and remained 
silent on what should be included. In light of the Act's silence on the 
waters that must be listed, EPA believes a reasonable interpretation is 
to require all waters not meeting standards to be listed. This ensures 
that such waters will have TMDLs developed if appropriate, and will 
otherwise have their water quality problems identified, tracked, and 
addressed.
    Under this interpretation, each part of the list is authorized to 
be required by the Act, since none of the categories include waters 
expressly excluded by Congress. First, Part 1 includes those waters 
that are not meeting standards in spite of required effluent 
limitations, due to pollutants. Second, Part 2 also includes waters 
that are not meeting standards in spite of required effluent 
limitations, due to pollution where there is no pollutant causing or 
contributing to the impairment. Third, Part 3 includes waters that are 
not meeting standards in spite of required effluent limitations, where 
a TMDL has been completed. Fourth, Part 4 includes waters that are not 
meeting standards in spite of required effluent limitations, due to 
pollutants, where TMDL development need not be immediately scheduled 
because required controls on point and/or nonpoint sources are expected 
to result in achievement of standards by the next listing cycle. Thus, 
none of these categories include waters expressly excluded by Congress 
in Section 303(d), and all include waters not meeting standards. In 
light of the overall goals of the Act, EPA believes it is appropriate 
to require these waters to be listed to help ensure that they will 
ultimately meet standards.
    EPA also disagrees that it lacks statutory authority in particular 
for requiring listing of Part 2 waters. Some commenters who opposed 
this provision argue that the reference to ``pollution'' in the second 
sentence of section 303(d)(1)(A) refers to the consequence of 
introducing pollutants rather than requiring the listing of waterbodies 
impaired by pollution. EPA disagrees, and believes that its 
interpretation of the statutory language is a reasonable one. EPA also 
notes that it is not relying solely on the presence of the word 
``pollution'' in the second sentence of section 303(d)(1)(A) to support 
its authority to require listing of Part 2 waters. EPA's analysis of 
section 303(d) to authorize listing of waters beyond those requiring 
water quality-based effluent limitations is described above. The 
presence of the word ``pollution'' is simply additional indication that 
Congress did not intend to exclude Part 2 waters from the listing 
requirement, and provides further support for EPA's authority to 
require them to be listed. EPA believes that its interpretation of the 
presence of the word ``pollution'' is reasonable and more consistent 
with the goals of the Act than commenters' interpretation.
    Finally, some commenters misconstrue statements EPA made in the 
proposal. The commenters state that the proposal recognizes that the 
reach of the section 303(d) list is co-extensive with the waters 
requiring TMDLs, based on a statement in the proposal regarding 
development of TMDLs for waters with nonpoint sources of pollutants. 
However, this statement was made to explain that there is no express 
exclusion of nonpoint source waters from section 303(d)(1)(A), and 
therefore such waters are not automatically excluded from the 
requirement to develop TMDLs. EPA's statement in the proposal was made 
to explain why TMDLs are required for nonpoint source pollutants, and 
was not an assertion that only waters that need TMDLs may be listed. In 
fact, EPA also states clearly in the proposal that its interpretation 
of the listing obligation is not limited to only those waters needing 
TMDLs. See 64 FR 46022 (``While EPA interprets section 303(d) to 
require identification of all waters not meeting water quality 
standards * * * EPA interprets section 303(d) to require that TMDLs 
only be established where a waterbody is impaired or threatened by a 
pollutant.'')
    The final regulations also clarify that when biological information 
indicates that waterbodies are impaired but the pollutant is unknown, 
these waterbodies should be placed on Part 1 of the list unless data 
and information clearly indicate that pollution, not a pollutant, is 
the cause of the impairment.
    Waterbodies may be removed from Part 1 in several ways. If a TMDL 
is established and approved by EPA, the waterbody may be moved to Part 
3 of the list for the pollutant the TMDL addresses. In the absence of a 
TMDL, if new data or information shows that the waterbody is meeting 
the applicable water quality standard for a particular pollutant, the 
waterbody may be

[[Page 43611]]

removed from the section 303(d) list for that pollutant.
    EPA agrees with the commenters who suggested that information on 
Parts 2, 3 and 4 could be submitted as part of the section 305(b) 
report. The final regulations provide States, Territories and 
authorized Tribes with the flexibility to submit their list in any of 
three ways: as a stand alone list, as a clearly identified component of 
the section 305(b) report or in two sections: Part 1 as a stand alone 
list with Parts 2, 3 and 4 clearly identified in the section 305(b) 
report. Regardless of which format the States choose, the information 
must be consistent with the requirements of Secs. 130.22, 130.25, 
130.26, 130.27, 130.28, and 130.29. EPA will review and approve or 
disapprove all four parts of the list. When States, Territories or 
authorized Tribes elect to submit all or part of their list as a 
component of the section 305(b) report, it is only the information 
required by Secs. 130.27 and 130.28 that is considered to be part of 
the section 303(d) submittal. EPA recognizes that the section 305(b) 
report includes information other than that required by Secs. 130.27 
and 130.28; this additional information is not considered as part of 
the section 303(d) list.
    No matter which reporting format a State, Territory, or authorized 
Tribe chooses, EPA will take action on the entire list (i.e., all four 
parts). These two options are included for the sole purpose of 
providing flexibility to those States that wish to coordinate their 
section 305(b) reports with their section 303(d) lists. While joint 
reporting of the section 305(b) report and the section 303(d) list is 
not required, coordination of the two reports provides benefits for 
States, Territories, and authorized Tribes willing to use this option. 
These benefits include eliminating possible redundancy in monitoring, 
assessing, and reporting on the condition of water quality for two 
related CWA requirements. They also include using limited monitoring 
resources more efficiently which may free resources to increase the 
numbers of waterbodies assessed and improve the quality of the data 
collected. Under the regulations, the most recent section 305(b) report 
is considered to be existing and readily available information that a 
State, Territory, or authorized Tribe must consider in assembling the 
section 303(d) lists and the methodology must describe how the section 
305(b) report will be considered in the listing process. EPA notes 
that, even under the two options for the list format that allow for 
full or partial consolidation with the section 305(b) report 
submission, the regulations do not require that all waters identified 
as not meeting standards on the section 305(b) report be included on 
the section 303(d) list.
    Finally, EPA is making a minor change to the proposed language of 
Sec. 130.27(c) which would have required EPA and States to agree on the 
georeferencing system used to identify the geographic location of the 
impaired waterbodies. The final regulations require that States use 
either the National Hydrography Database or subsequent revisions, which 
is the system used by EPA and the U.S. Geological Survey or a 
compatible system.

J. What Must the Prioritized Schedule for Submitting TMDLs to EPA 
Contain? (Sec. 130.28)

    What did EPA propose? In the proposal, EPA included proposed 
Sec. 130.28 dealing with how States should prioritize the impaired 
waterbodies on Part 1 of their list and proposed Sec. 130.31 which 
would have required States to provide to EPA a schedule depicting when 
TMDLs would be developed. Both the priority rankings and the schedule 
would have had to be submitted to EPA at the same time as the list but 
EPA proposed to only approve the list and priority ranking, not the 
schedule.
    In Sec. 130.28 EPA proposed that States, Territories, and 
authorized Tribes would assign either a high, medium or low priority to 
each waterbody and pollutant combination on Part 1 of the list. The 
proposal would have required States, Territories and authorized Tribes 
to consider in their priority ranking the two factors listed in section 
303(d)(1) of the CWA, and the severity of the impairment and the 
designated use of the waterbody, and also listed a number of proposed 
optional factors. EPA further proposed that a high priority would have 
to be assigned to impaired waterbodies designated for use as public 
drinking water supplies, where the impairment was contributing to a 
violation of an Maximum Contaminant Level (MCL), and for waterbodies 
supporting a species listed as endangered or threatened under section 4 
of the Endangered Species Act, unless the State, Territory, or 
authorized Tribe could demonstrate that the impairment did not affect 
the listed species. The proposal would have required States, 
Territories, and authorized Tribes to provide EPA with an explanation 
of how they had used the ranking factors in determining their 
priorities.
    Section 130.31 of the proposal would have eliminated the current 
requirement that the listing submission include a list of the 
waterbody/pollutant combinations scheduled for TMDL development in the 
next two years. Instead, EPA proposed that States, Territories, and 
authorized Tribes be required to submit with Part 1 of their list 
comprehensive schedules for establishing TMDLs for all waterbody/
pollutant combinations on Part 1 of their list as expeditiously as 
practicable and no later than 15 years after the initial listing with a 
reasonably paced workload and generally in accordance with their 
priority rankings. EPA also proposed to recommend, but not require, 
that TMDLs for high priority waterbody/pollutant combinations be 
established first.
    What comments did EPA receive? EPA received a significant number of 
comments specific to the proposed priority ranking requirements. 
Several comments supported EPA's proposal, others, however, objected to 
this provision, for one of two reasons. Some comments said EPA should 
give States the flexibility to prioritize their waterbody/pollutant 
combinations anyway they choose. Others objected to this provision 
because of their opinion that a high, medium and low priority ranking 
was insufficiently precise.
    There were a wide variety of comments with regard to the factors 
that should be employed in priority rankings of waterbody/pollutant 
combinations. Some comments said that only the two factors cited in 
section 303(d)(1) of the CWA--severity of impairment and uses of the 
waterbody--should be considered. Other comments said these two factors 
alone were too narrow to provide an adequate basis for ranking, and 
called for a variety of other factors to be considered. Some said that 
certain factors listed in EPA's proposed regulation--aesthetic, 
cultural, historic--should not be considered at all in priority ranking 
because they were not related to the goals and objectives of the CWA.
    EPA received comments offering a variety of views on the issue of 
whether or not to specify certain factors that would automatically put 
a waterbody/pollutant combination in the high priority category. Some 
supported this concept in general, while other comments opposed it. 
Numerous comments objected to one or both of the two factors listed in 
EPA's proposal--presence of threatened or endangered species or 
contribution to a violation of an MCL in a waterbody designated for 
public water supply use. The most frequently expressed concern about 
the endangered species factor was the need to prove a negative (i.e. a 
pollutant is not harming the listed species). The most common criticism 
of the public

[[Page 43612]]

water supply ranking factor was that the EPA proposal seemed to be 
applying the Safe Drinking Water Act MCL in the raw water supply, 
rather than at the tap. Some comments, however, indicated that it was 
imperative to consider such situations as high priority, regardless of 
other, possibly mitigating, factors. Further comments suggested 
additional factors that should merit automatic high priority ranking 
for a waterbody/pollutant combination--waterbodies for which fish 
consumption advisories had been issued were mentioned several times in 
this regard.
    EPA received numerous comments on the issue of schedules for TMDL 
establishment. Some comments supported retaining the existing 
regulatory requirement. Some comments said States should not have to 
provide any schedule for TMDL establishment while others supported the 
proposal. Several comments said that schedules laid out under a State's 
rotating basin/watershed approach, rather than priorities put forth in 
the proposal, should be the primary determinant of the schedule for 
TMDL development. Commenters were split on the issue of EPA review and 
approval of the schedule. A substantial number of comments said States 
should not get locked into the comprehensive 15 year schedules they 
would initially submit, and should be able to modify the schedules over 
time, to adjust to new information and changing circumstances. Some 
comments said that after the initial listing of a waterbody and 
pollutant combination, 15 years was a reasonable maximum time for TMDL 
establishment. On the other hand, quite a few comments said 15 years 
was far too long a period and recommended considerably shorter 
timelines for TMDL establishment. Still others said that 15 years might 
not be enough time for establishing certain types of TMDLs, 
particularly ones involving high degrees of complexity or difficult-to-
address issues such as air deposition or legacy pollutants.
    What is EPA promulgating today? Having considered the comments 
received on the proposal's provisions on priority ranking (Sec. 130.28) 
and scheduling (Sec. 130.31), EPA is promulgating a rule that requires 
States, Territories and authorized Tribes to develop and submit a 
prioritized schedule. This approach combines the two proposed 
provisions into one, Sec. 130.28 of today's rule, entitled ``What must 
your prioritized schedule for submitting TMDLs to EPA contain?'' EPA is 
not promulgating the proposed requirement that waterbody/pollutant 
combinations be categorized into high, medium, and low priorities. 
Rather, today's rule requires that Part 1 of the list include a 
prioritized schedule for establishing TMDLs on Part 1 of the list. This 
change recognizes the close connection between prioritizing and 
scheduling waterbodies for TMDL development. Schedules are considered 
part of the list and subject to EPA review and approval.
    Section 303(d) requires States to ``establish a priority ranking'' 
for the waters it identifies on the list, taking into account the 
severity of the pollution and the uses to be made of such waters, and 
to develop TMDLs ``in accordance with the priority ranking.'' To 
implement this provision, EPA is requiring States, Territories and 
authorized Tribes to develop a schedule for TMDL establishment that 
identifies when each TMDL will be completed. In developing the 
schedule, States, Territories and authorized Tribes will need to decide 
which TMDLs are higher priority than others, taking into account the 
statutory factors identified above, as well as other relevant factors 
described in the regulations. EPA is not requiring States, Territories 
or authorized Tribes to specifically identify each TMDL as high, medium 
or low priority, since the scheduling process will require that each 
TMDL be ranked in priority order by date of development rather than by 
categorization as high, medium or low priority. The statute does not 
prescribe a particular method of establishing a priority ranking, and 
EPA believes that prioritizing by developing a schedule is a 
reasonable, efficient way to do this.
    In particular, the schedule is preferable to simply requiring that 
waterbodies be categorized as high, medium or low priority, since it 
identifies a specific time frame within which the public can expect 
each TMDL to be developed, and thus better enables public participation 
in TMDL development because citizens can anticipate when work will 
happen on a particular TMDL that is of interest to them. Categorization 
would not necessarily inform the public when specific TMDLs are to be 
developed, but rather simply identifies which TMDLs the State, 
Territory, or authorized Tribe believes should be done first. In 
addition, requiring a prioritized schedule rather than categorization 
plus a schedule eliminates a step in the process that EPA believes is 
unnecessary and adds little value to the list. Once a schedule is 
developed, whether a State, Territory, or authorized Tribe believes a 
particular TMDL is of high, medium or low priority is unimportant and 
the relative priority of each TMDL will be apparent based on whether it 
is to be developed early or late in the schedule. The public will be 
able to comment on the time frame in which the State, Territory, or 
authorized Tribe intends to develop each TMDL. In this way the schedule 
provides the public better information on the State's, Territory's, or 
authorized Tribe's priority ranking for TMDL development than simply 
identifying waterbodies as high, medium, or low priority. Requiring a 
prioritized schedule eliminates the need for such categorization.
    In today's rule, EPA is modifying the proposed regulations to 
require that the prioritized schedule for TMDL development be submitted 
as part of the section 303(d) list for EPA approval or disapproval. 
This approach is consistent with section 303(d) of the Act, which 
requires States, Territories, and authorized Tribes to both identify 
waters and establish a priority ranking for the identified waters as 
the first step in the process that is ultimately intended to result in 
the attainment of water quality standards. While the Act does not 
explicitly require EPA to approve or disapprove the priority ranking as 
part of the list submission, EPA believes that doing so is a reasonable 
exercise of its discretion to ensure that the goals of section 303(d) 
are achieved, consistent with EPA's authority under section 501(a) to 
adopt regulations necessary to carry out its functions under the Act. 
The priority ranking, embodied in the prioritized schedule required by 
today's regulations, is an essential step between the identification of 
waters and the development of TMDLs for waters that need them. The 
prioritized schedule ensures that TMDLs are developed at a reasonable, 
even pace and that the statutory factors (severity of pollution and 
uses to be made of the waters) are considered in deciding when 
particular TMDLs will be developed. Thus, because of the critical 
importance of the prioritized schedule in the overall section 303(d) 
process, EPA believes it needs to ensure that a State's, Territory's, 
or authorized Tribe's schedules are reasonable and consistent with the 
Act by reviewing and approving or disapproving the schedules as part of 
the list submissions, and establishing schedules in the event of a 
disapproval or a failure by the State, Territory, or authorized Tribe 
to do so.
    For the sake of clarity the following discussion follows the 
structure of 130.28.

[[Page 43613]]

Expeditious Schedules (Sec. 130.28(b))

    EPA is revising the proposal to require that establishment of TMDLs 
be evenly paced and as expeditious as practicable. In addition, States 
should schedule TMDLs no later than 10 years from July 11, 2000 or the 
initial listing date, which ever is later. The rule also provides that 
the schedule for specific TMDLs can be extended for an additional 5 
years if a State, Territory, or authorized Tribe explains to EPA that 
the shorter schedule is not practicable.
    EPA is shortening the proposed 15-year schedule to a requirement 
that the schedule be as expeditious as practicable and evenly paced, 
and that it should generally not extend beyond 10 years. As pointed out 
by many commenters, a ten year schedule is consistent with current EPA 
policy. See ``New Policies for Establishing and Implementing Total 
Maximum Daily Loads,'' August 8, 1997. As stated in the 1997 policy 
memorandum, EPA was to work with States to help schedule TMDL 
establishment within 13 years, i.e., by 2010. EPA believes that some 
States, Territories, or authorized Tribes can complete the TMDL 
development within 10 years, as evidenced by some current State 
schedules and by increased resources devoted to TMDL programs in many 
States as well as available through increased Federal funding. 
Currently, 46 States are developing TMDLs based on schedules of 13 
years or less, 20 of which are developing TMDLs based on a 10-year 
schedule. Further, EPA believes that making this change is reasonable 
since the regulations also provide that the schedule can be extended up 
to an additional 5 years for a total of 15 years if the State, 
Territory, or authorized Tribe explains that it needs the additional 
time to complete the task.
    A State, Territory, or authorized Tribe would need to explain why a 
10-year schedule is not practicable. For example, a State, Territory, 
or authorized Tribe could show that, despite working expeditiously, 
given the number of TMDLs that are required, they will require more 
than 10 years to complete all TMDLs. The State, Territory, or 
authorized Tribe could also show that the complexity of one or more 
TMDLs might require more time to collect information to quantify 
loadings from sources or to secure commitments for loading reductions 
for sources outside the State, Territory, or authorized Tribe. In these 
cases, the State, Territory, or authorized Tribe may schedule some 
TMDLs within an additional five years.
    By changing ``reasonably paced'' to ``evenly paced'', EPA intends 
that States, Territories, and authorized Tribes must schedule TMDL 
development in a way that reflects a generally even pace in 
establishing TMDLs over the length of the schedule. EPA recognizes that 
States, Territories and authorized Tribes will have valid reasons for 
establishing more TMDLs in some years and fewer TMDLs is other years. 
This may occur due to the varying degree of complexity and efficiencies 
which pertain to TMDL development in different watersheds in a State, 
Territory, or authorized Tribe. However, the general trend and pace of 
TMDL establishment across the schedule, after allowing for 
understandable year-to-year variation, should, with some exceptions, be 
generally even. While current schedules appropriately account for the 
ramp-up period needed for monitoring and other preliminary activities, 
EPA believes by April 2002 (when new schedules are required) that 
States, Territories, and authorized Tribes should be in a position to 
schedule TMDL development on a more even pace. Of course, application 
of this general requirement must account for additional time that may 
be needed to develop particularly complex or data-intensive TMDLs. In 
those cases, establishment of a smaller number of TMDLs may be 
justified. Similarly, the number of TMDLs may be larger in a year in 
which a State, Territory, or authorized Tribe concentrates on 
waterbodies for which a substantial amount of information has already 
been gathered.
    The proposed approach, which would have required TMDLs to be 
established as expeditiously as practicable but no later than 15 years 
from the time the waterbodies were listed on Part 1, could have led to 
the unintended result that TMDLs for waterbodies included on Part 4 
would be delayed if the waterbody was later moved to Part 1. EPA 
believes that TMDLs for waters included on Part 4, where enforceable 
controls ultimately fail to result in attainment of standard by the 
next listing cycle, should not be unnecessarily delayed. The addition 
of a Part 4 of the list was not intended to encourage or allow for such 
delay. In addition, it is reasonable to expect TMDLs for such 
waterbodies to be developed within 10 years (or up to 15 years, for 
certain TMDLs, as described above) of initial listing on any part of 
the list, since States, Territories, or authorized Tribes will be 
keeping track of progress on Part 4 waters to determine how well the 
enforceable controls are working and should be able to use this 
information to develop TMDLs for such waters well within the timeframe 
required by today's regulations.
    The final rule also clarifies that the provision that States, 
Territories, and authorized Tribes should generally schedule all TMDLs 
no later than 10 years (with a possible 5 year extension) from the 
later of July 11, 2000 or the date of initial listing of the waterbody/
pollutant combination on a section 303(d) list applies to waterbodies 
on a section 303(d) list prior to today's action. Thus, TMDLs for 
waterbodies that appeared on a section 303(d) list prior to today's 
action would need to be established no later than July 11, 2010, unless 
the schedule is extended as described above. This avoids unreasonably 
short deadlines for TMDL establishment for States, Territories, and 
authorized Tribes which happened to have listed a substantial portion 
of their impaired waters well before the promulgation of this rule. EPA 
believes it is appropriate to use the July 11, 2000 (i.e., the date of 
signature of today's action) as the baseline date for the 10-year 
schedule provision since States, Territories, or authorized Tribes have 
not been, until now, required by regulation to identify schedules for 
TMDL development other than specifying TMDLs that will be developed in 
the next 2 years. While States, Territories, or authorized Tribes 
should have schedules at this time in response to a request from EPA 
(``New Policies for Establishing and Implementing Total Maximum Daily 
Loads,'' August 8, 1997), in light of the new requirements in today's 
rule, States, Territories, or authorized Tribes should have an 
opportunity to reassess their TMDL development obligations and develop 
an appropriate schedule. Requiring TMDLs to be scheduled 10 years from 
the original listing could penalize States who had established 
comprehensive lists by 1992 by allowing them less time to complete 
TMDLs than those States, Territories, or authorized Tribes that more 
recently developed more comprehensive lists.

Identification of TMDLs to be Established (Sec. 130.28(c))

    Today's rule provides more specificity regarding the minimum level 
of detail required in schedules for establishment of TMDLs than did the 
proposal. Today's rule requires States, Territories, and authorized 
Tribes to indicate in their schedule which specific TMDLs will be 
completed in each year of the schedule. EPA has chosen to require 
scheduling of TMDLs in year blocks to

[[Page 43614]]

provide sufficient detail to allow all those involved in TMDL 
development to plan for the workload involved at various points in 
time. States, Territories, and authorized Tribes can change the order 
of TMDL establishment within any year period without consulting with 
EPA or seeking EPA approval. EPA will approve schedules if they reflect 
the priority factors and timeframes outlined in the rule. The schedules 
must also demonstrate that establishment of TMDLs is as expeditious as 
practicable and evenly paced over the duration of the schedule.
    EPA realizes that it is possible that States, Territories, and 
authorized Tribes will not be able to meet even this less precise 
schedule for each and every TMDL they must establish, and expects that 
States, Territories, and authorized Tribes will need to avail 
themselves of the opportunity to adjust schedules for TMDL 
establishment to reflect new information and other changing 
circumstances, and that such adjustments will be reflected in each 
subsequent list submitted on April 1 every fourth year. As long as 
States, Territories, and authorized Tribes establish each TMDL on Part 
1 of their list as expeditiously as practicable and the revised list 
reflects even pacing of the overall TMDL establishment task, within the 
timeframes specified in the regulations, taking the required factors 
into account, EPA will approve such schedule modifications without 
requiring that the entire schedule be revised.
    When a State, Territory, or authorized Tribe must develop multiple 
TMDLs within a watershed, EPA encourages the State, Territory, or 
authorized Tribe to schedule the TMDLs to be established at roughly the 
same time. This coordinated approach makes use of any efficiencies in 
coordinating monitoring, water quality analyses, implementation and 
public participation. It also helps integrate the establishment of 
TMDLs with the use of rotating basin or watershed approaches for 
restoring water quality. EPA is encouraging States, Territories and 
authorized Tribes to use a coordinated approach by making it one of the 
factors that may be considered and by including in the final rule 
language that explicitly recommends that States, Territories and 
authorized Tribes use this approach.

Priority Factors (Sec. 130.28(d), (e) (f))

    The final rule incorporates the prioritizing scheme of the proposal 
into the final requirements for a prioritized list. The final rule 
retains the concept that the statutory factors of severity of 
impairment and designated use of the waterbody should form the basis 
for prioritizing waterbodies. In addition, the final rule requires 
States, Territories, and authorized Tribes to consider drinking water 
uses and presence of a threatened or endangered species as higher 
priorities. However, the final rule does not require that an impairment 
at a public drinking water supply or the presence of threatened or 
endangered species be an automatic high priority for TMDL 
establishment. Rather, the State, Territory, or authorized Tribe may 
give waterbodies with these two factors present a lower priority (i.e., 
a later date for TMDL development) if the State, Territory, or 
authorized Tribe explains why this is appropriate. As another example, 
biological information might be available to allow a State, Territory, 
or authorized Tribe to show that other factors are the stressors to the 
threatened or endangered species.
    Also, EPA is not including in today's rule the proposed language 
that strongly encouraged States, Territories, and authorized Tribes to 
establish all TMDLs for high priority waterbody/pollutant combinations 
before completing TMDLs for medium or low priority combinations. These 
provisions have become moot because today's final rule does not include 
a requirement for ranking each waterbody/pollutant combination as 
either high, medium or low priority. Rather, a date must be specified 
for TMDL development for each waterbody/pollutant combination on Part 
1. Thus, rather than grouping each TMDL into one of 3 categories of 
priority States will rank each TMDL according to the most appropriate 
time frame for its establishment taking into account the factors 
described in this section. EPA believes that the prioritized schedules 
submitted by States, Territories and authorized Tribes, along with the 
explanations of how various factors were utilized in the development of 
such schedules, will serve the same purpose as the provisions it 
eliminated.

K. Can the List be Modified? (Sec. 130.29)

    What did EPA propose? EPA proposed at Sec. 130.29 to adopt the FACA 
Committee's recommendations that waterbodies should remain listed until 
water quality standards were attained, and that a previously listed 
impaired or threatened waterbody could be removed from the list at the 
time of the next list only when new data or information indicated that 
the waterbody has attained water quality standards.
    What comments did EPA receive? Many commenters supported the 
regulations as proposed. Several commenters strongly encouraged EPA to 
allow for immediate removal of waterbodies that met the de-listing 
requirement (i.e. in the interim period between listing cycles) 
especially if the Agency decided to promulgate a four or five year 
cycle for the listing requirement. This reflected a concern that 
waterbodies that were not impaired would remain on the lists for 
several years, leaving the public with an incorrect impression about 
the condition of the waterbody. There was also a fear that States, 
Territories, and authorized Tribes would elect to, or be forced to, 
move ahead with development of TMDLs for such waters, even though they 
were no longer needed. A number of commenters suggested that the 
information requirements for removing a waterbody from the section 
303(d) list should be no more rigorous than the requirements for 
listing a waterbody. Other commenters suggested that States, 
Territories, and authorized Tribes should be able to add some 
waterbodies between the times when the full lists are required. 
Commenters also asked that the regulations specify that the methodology 
and public participation requirements should apply to delisting. 
Finally, several commenters reiterated that waterbodies should not be 
removed from the section 303(d) list just because a point or nonpoint 
source control measure was implemented but had to remain listed until 
water quality standards were met.
    What is EPA promulgating today? EPA generally agrees with the 
comments it received on this section. EPA agrees that States should be 
able to remove waterbodies from a list at times other than those when 
full lists must be submitted to EPA. This is consistent with section 
303(d) which requires States, Territories, and authorized Tribes to 
submit lists of waters ``from time to time.'' EPA has previously 
interpreted section 303(d) to allow removal of waterbodies that attain 
water quality standards at times other than when they make their 
biennial list submissions. See ``Guidance for 1994 Section 303(d) 
Lists,'' November 26, 1993. By extension, EPA believes that the same 
flexibility should be provided for adding waterbodies to the list. 
Therefore EPA has reshaped this section in the final regulation to 
cover modifications of the list (i.e. listings, delistings and changes 
to the prioritized schedules). These provisions regarding modifications 
to the list at times other than required list submissions do not alter 
what is permitted under the pre-existing regulations. EPA is simply

[[Page 43615]]

adding regulatory language to clarify that States may modify their 
lists at times other than required submissions and to clarify the 
procedure for doing so. EPA is maintaining the proposed requirements 
that waterbodies must remain on the list until water quality standards 
are attained.
    EPA is also adding a Sec. 130.29(e) which specifies that changes to 
the schedule for TMDLs which the State, Territory, or authorized Tribe 
make must be considered a modification of the list if they involve 
rescheduling establishment of a TMDL from one year to another. Changes 
to the list are subject to EPA review and approval/disapproval. EPA 
notes that these modifications to the list may be time consuming and 
expects that States, Territories, and authorized Tribes will use these 
provisions no more than once a year, mostly to remove waterbodies which 
have attained water quality standards from the list.
    EPA is adopting regulatory language to clarify the specific 
requirements that apply when a State, Territory, or authorized Tribe 
modifies its list in between required list submissions. First, the 
regulations provide that the scope of public notice and opportunity for 
comment on the modification shall be limited to the waterbodies and 
issues raised by the modification. For example, if the State, 
Territory, or authorized Tribe develops a draft list modification that 
removes certain waterbodies based on new information collected since 
the prior list submission, the public notice and the opportunity for 
comments would be limited to those particular waters and the water-
quality related data the State, Territory, or authorized Tribe believes 
warrants removal from the list. Neither the State, Territory, or 
authorized Tribe nor EPA would be obligated to address comments on the 
remainder of the list or other unrelated waters. As another example, if 
the State, Territory, or authorized Tribe proposes to add or remove 
certain waterbodies based on a change to the methodology used in the 
prior list, the public notice and opportunity for comments would be 
limited to such change and to any waterbodies affected by it. Neither 
the State, Territory, or authorized Tribe nor EPA would be obligated to 
address comments on other aspects of the methodology or other 
unaffected waters.
    When submitting list modifications, the same provisions apply to 
removal of waterbodies as for required list submissions. A State, 
Territory, or authorized Tribe may remove a listed waterbody only if 
new water-quality related data or information indicates it is attaining 
and maintaining applicable water quality standards. A State, Territory, 
or authorized Tribe may add a waterbody to the list if there is data or 
information showing it is impaired. When developing a list 
modification, the State, Territory, or authorized Tribe must satisfy 
the same public process requirements that apply to required list 
submissions--the State, Territory, or authorized Tribe must provide 
adequate notice to the public of the draft list modification, must 
provide at least 60 days for public comments on the modification, and 
must address relevant comments in its submission of the modification to 
EPA.
    However, EPA is not requiring prior submission of a methodology for 
each list modification. Because the methodology is generally required 
to be submitted at least two years before required list submissions 
(after allowing the public an opportunity to comment), EPA believes it 
would be overly burdensome to require submission of the methodology for 
each list modification, and would undercut the purpose of the 
modification provision, i.e., to allow States, Territories and 
authorized Tribes to more easily make appropriate changes in their 
lists in between required submissions. Thus, States, Territories and 
authorized Tribes are not required to submit a methodology for the 
modification prior to the submission of the modification. EPA expects 
that in most cases the State, Territory, or authorized Tribe will use 
the same methodology used in the most recent required list submission 
for modifications. However, where the modification includes a change to 
the methodology, EPA expects that the modification provided to EPA will 
identify and explain such change so that EPA can consider it in its 
review of and action on the modification. In addition, when providing 
public notice of a modification that includes a change to the pre-
existing methodology, the State, Territory, or authorized Tribe would 
need to identify and explain such change to the public since it would 
be the basis for resulting additions to or removals from the list.
    EPA is including a provision in the regulations clarifying that a 
State's, Territory's, or authorized Tribe's revisions to their 
prioritized schedules must be considered modifications to the list and 
submitted to EPA as such. This is consistent with the definition of the 
list to include both the identification of waters and pollutants and 
the prioritized schedule for TMDL development. Revisions to the 
schedule would include moving any TMDL from any one-year period to 
another, and must be based on new information in accordance with the 
priority ranking. Thus, for example, a State, Territory, or authorized 
Tribe may receive new information regarding newly found sources of 
pollutants in a particular year and may decide on that basis to move 
certain TMDLs earlier or later in the schedule. Similarly, the State, 
Territory, or authorized Tribe may become aware that water-quality 
related data relevant to development of a particular TMDL will be 
available earlier than expected, and may therefore decide to move that 
TMDL earlier in the schedule. In either case, the State, Territory, or 
authorized Tribe must constrain the modification such that it 
establishes at least the same number of TMDLs in the first four year 
period. This requirement serves to ensure that the State, Territory, or 
authorized Tribe establish TMDLs at an even pace. EPA will review 
revisions to the schedule to determine if they are consistent with the 
regulatory provisions governing development of the prioritized 
schedule, and will approve or disapprove them as appropriate.
    Some waterbodies are listed by States, Territories, and authorized 
Tribes for multiple impairments. When a State, Territory, or authorized 
Tribe has new water-quality related data or information showing that a 
waterbody attains water quality standards, it may be for only some of 
the pollutants causing the impairment. In this instance, the States, 
Territories, and authorized Tribes may remove only those pollutants 
from the list that no longer cause impairment, but cannot remove the 
waterbody itself until it has new water-quality related data or 
information showing that the waterbody attains water quality standards 
for all the impairments that caused the listing.
    EPA interprets ``new water-quality related data or information'' to 
include new water quality data or water quality modeling information 
that supplements water quality data. EPA also interprets ``new data or 
information'' to include such instances as when the State, Territory, 
and authorized Tribe has revised the applicable water quality standard 
consistent with Part 131, EPA has approved that standard, and existing 
water quality data shows that the waterbody attains the new water 
quality standard. EPA also interprets ``new data or information'' to 
include where the State, Territory, and authorized Tribe can show that 
the existing data actually showed that the water quality standards were 
attained and that the waterbody was listed in error due to a 
transcription, typographical, or some other clerical error. Therefore, 
``new'' is not limited to data or information

[[Page 43616]]

collected after listing. The intent of the new requirement is to ensure 
that listed waterbodies (or pollutants) are not removed in the absence 
of data or information indicating attainment of water quality 
standards.
    EPA does not interpret ``new data or information'' to allow removal 
of a waterbody (or pollutant) in instances where a State, Territory, 
and authorized Tribe disputes the quality of the information or 
reinterprets the same information that it previously used to list a 
water on the section 303(d) list and concludes the data or information 
did not support a finding of impairment. EPA is not suggesting that 
States, Territories, and authorized Tribes use poor quality data to 
support listing waterbodies on the section 303(d) list. Rather, in the 
absence of data or information supporting a determination that a 
waterbody is attaining water quality standards, a waterbody should not 
be removed from the list. The one exception that would allow removal 
would be a waterbody that was listed incorrectly. EPA recognized this 
possible situation in the August 23, 1999, proposal. (64 FR 46024, 
August 23, 1999). EPA intended this to cover situations where a water 
was listed due to an error such as a transcription or typographical 
error, not a re-evaluation of data on which the waterbody was 
originally listed. EPA will consider State, Territories and authorized 
Tribes methodologies in approving or disapproving lists but it is not 
obliged to approve decisions simply because they are consistent with 
the methodologies.
    Finally, EPA is adding Sec. 130.29(g) to allow EPA to modify a list 
consistent with the provisions of paragraph (c), (d), and (e) of this 
section. As described in today's preamble, EPA at times may be required 
to establish a TMDL. In the course of developing the TMDL, EPA may find 
new information that shows that the waterbody should not be listed on 
Part 1 of the list and a TMDL is not necessary. For example, EPA could 
find that, based on new data or information, the waterbody is attaining 
and maintaining the applicable water quality standards. This is the 
criterion that allows a State, Territory, or authorized Tribe to remove 
the waterbody/pollutant combination from the list. In this situation, 
the waterbody is not required to be listed and no TMDL is required. EPA 
could also find that, for waterbodies listed on the basis of biological 
information, the cause of the impairment is not a pollutant or 
pollutants, but rather some attribute of pollution. In this situation, 
the waterbody belongs on Part 2 of the list and no TMDL is required.
    In examples such as these, there is no merit in developing a TMDL; 
yet in the absence of this new provision, the requirements of today's 
rule would have EPA establish the TMDL. For this reason, EPA believes 
it should have the same authority to modify a section 303(d) list to 
remove a waterbody/pollutant combination, in accordance with the same 
requirements that pertain to States, Territories, and authorized 
Tribes.

L. When Must the List of Impaired Waterbodies be Submitted to EPA and 
What Will EPA do With it? (Sec. 130.30)

    What did EPA propose? EPA proposed that States, Territories, and 
approved Tribes would be required to submit their list of threatened 
and impaired waterbodies and the priority rankings of waterbody and 
pollutant combinations to EPA by October 1 at regular intervals. EPA 
noted that it was considering ranges of two, four or five years, for 
these intervals beginning with the year 2000. EPA proposed to maintain 
the current requirement that EPA review and either approve or 
disapprove a submitted list within 30 days of receipt. EPA also 
proposed to require States, Territories, and authorized Tribes to 
incorporate approved lists of impaired waterbodies in Water Quality 
Management Plans. Finally, EPA proposed to codify in the regulations 
its authority to establish lists for States, Territories, or authorized 
Tribes which do not.
    What comments did EPA receive? The issue of how frequently States, 
Territories, and authorized Tribes should submit lists of impaired 
waters, priority rankings and schedules, was the subject of numerous 
comments. Regarding the frequency of submission of lists, priority 
rankings and schedules for TMDL establishment, five years was the most 
commonly supported period, with four years getting a large number of 
supporters. Retaining the current two year cycle also received a 
substantial amount of support.
    Those supporting a longer listing cycle (more than two years) 
provided a variety of reasons for their position. A large number of 
commenters believed that a two year cycle forced States, Territories, 
and authorized Tribes to spend too much time preparing listing reports, 
thereby diverting limited resources away from developing and 
implementing TMDLs. Nearly as many commenters indicated that a longer 
cycle would enable States, Territories, and authorized Tribes to do a 
better job of assembling and interpreting data regarding the condition 
of waterbodies. Others observed that it is unusual for the condition of 
a waterbody to change measurably in just two years, and having to 
prepare a report saying ``no change'' was not a wise use of resources. 
Some commenters thought that longer cycles would encourage efforts to 
implement pollution controls and thereby prevent waters from going on 
the list (or at least Part 1) in the first place.
    Those supporting a five-year cycle noted the correlation with the 
five year term of NPDES permits and the five-year cycle employed by 
most States that have adopted the watershed/rotating basin approach. 
Those supporting a four-year schedule noted that this would correspond 
to every second section 305(b) report submitted by States, Territories, 
and authorized Tribes. On the other hand, some supporters of longer 
cycles called for establishment of interim milestones such as water 
quality monitoring or source identification, during the cycle, to 
ensure adequate funding and budgeting by States, Territories, and 
authorized Tribes.
    Those supporting retention of the current two-year cycle offered a 
number of reasons in support of their position. Numerous commenters 
feared that longer listing cycles would serve to delay the date by 
which TMDLs were established for some waterbodies, which in turn would 
delay the date on which water quality standards were attained. For 
example, commenters were worried that lengthening the listing cycle 
would result in more waterbodies being placed on Part 4 of the list, 
and such waterbodies staying on Part 4 longer, yet ultimately failing 
to meet water quality standards by the next listing cycle, and still 
needing TMDLs. Quite a few comments said the public needed more 
frequent, not less frequent, reports on which waters were impaired.
    Comments were split with regard to whether April 1 or October 1 of 
the ``listing year'' should be the deadline for submission of the 
section 303(d) lists. Those favoring April 1 believed that having 
concurrent deadlines for the section 305(b) reports and the section 
303(d) lists would reduce duplication of effort on the part of States, 
Territories, and authorized Tribes. Those favoring October 1 believed 
that it would be beneficial to have several months after the due date 
for the section 305(b) report to perform additional analysis needed for 
completing the section 303(d) report. EPA also received comments 
recommending against incorporation of approved lists of impaired waters 
in Water Quality Management Plans. These comments

[[Page 43617]]

expressed concern about the volume of information included in these 
plans.
    What is EPA promulgating today? EPA is today promulgating the 
requirement that States, Territories, and authorized Tribes submit 
their lists of impaired waters including prioritized schedules by April 
1 of every fourth year, starting in 2002.
    EPA decided upon a longer listing cycle because of the reduction in 
reporting burdens, opportunity for more complete data gathering and 
analysis, and greater likelihood of observing changes in the condition 
of waters between listings. Concerns about improperly-listed waters 
later found to be meeting standards remaining on lists for nearly four 
years have been addressed by clarifying that there is an opportunity 
for States, Territories, and authorized Tribes to make modifications to 
their list as provided by Sec. 130.29 discussed above.
    EPA believes that the public will receive adequate updates 
regarding the condition of the nation's waters through the biennial 
section 305(b) reports that States, Territories, and authorized Tribes 
must submit according to the CWA. Though EPA recognizes that in the 
future, some TMDLs may be established a couple years later than would 
have been the case with a two-year listing cycle because they will be 
listed every four years rather than every two years, this decision has 
no impact on TMDLs already listed which must be established on the 
schedule required by today's rule.
    EPA has selected a four-year listing cycle, as opposed to a five-
year cycle because it believes that coordination between section 303(d) 
lists and section 305(b) reports provides significant efficiencies. 
States, Territories, and authorized Tribes will continue to be able to 
make use of their section 305(b) reports when they develop their 
section 303(d) lists. There should still be ample opportunity to 
coordinate between the section 303(d) listing process and the 
monitoring and implementation activities performed as part of a five-
year watershed/rotating basin strategy. In a five-year watershed or 
rotating basin strategy, a State, Territory, or authorized Tribe 
identifies a process of collecting information, assessing the 
information, determining the watershed-wide loading requirements, and 
implementing those requirements. At any time during this five-year 
cycle, a State, Territory, or authorized Tribe can develop a list of 
impaired waterbodies for its jurisdiction based on the existing and 
readily available information it has collected. The State, Territory, 
or authorized Tribe can then develop a schedule for TMDLs that is in 
synchronization with the anticipated development of watershed-wide 
requirements in its five-year rotating basin plan. In this way, a 
State, Territory, or authorized Tribe can continue to address pollution 
problems in a five-year rotating basin cycle while fulfilling its 
obligations to develop lists of impaired waterbodies every four years.
    After careful consideration of the comments and other relevant 
factors, EPA has decided that April 1 would be the best deadline for 
submission of the section 303(d) list. Since today's promulgation 
provides the opportunity for combining the section 303(d) list and the 
section 305(b) report, it seems logical to make the deadline for both 
of these reports fall on the same day of the year. By requiring section 
303(d) lists to be submitted every four years, rather than every two 
years as previously required, EPA intends to provide States, 
Territories, and authorized Tribes with ample time to analyze data 
specifically relevant to section 303(d) listing, and therefore, does 
not believe that having the section 303(d) list due on the same day of 
the year as the section 305(b) report will pose additional burdens. In 
addition, this date is the same date as under the pre-existing rules 
(Sec. 130.7).
    EPA has decided to retain the proposed requirement that States, 
Territories, and authorized Tribes incorporate the approved lists of 
impaired waterbodies in the Water Quality Management Plans. EPA 
recognizes the volume of information that the lists will include. 
Nevertheless, EPA believes the public needs to be able to find the 
lists of impaired waterbodies, and the Water Quality Management Plans 
is a logical place to find this information. A State, Territory, or 
authorized Tribe can satisfy this requirement by either incorporating 
the actual list on waters with the other parts of the Water Quality 
Management Plan, or by incorporating the list by reference. 
Furthermore, as stated in Sec. 130.51(b), the Water Quality Management 
Plans are used to direct implementation. By requiring that the approved 
lists of impaired waterbodies are incorporated into the Water Quality 
Management Plans, EPA believes this is an efficient connection between 
the targets for implementation (impaired waters) and the implementation 
procedures. This is particularly useful for the Part 2 waterbodies 
where States, Territories, and authorized Tribes will need to 
incorporate in the Water Quality Management Plan implementation 
procedures to address pollution not associated with pollutants. 
Finally, EPA interprets section 303(d) as requiring that States, 
Territories, and authorized Tribes include the lists into their Water 
Quality Management Plans.
    When a State, Territory, or authorized Tribe submits a list or 
modification to a list to EPA, EPA will approve it if it meets the 
applicable requirements. EPA will consider public comment on the list 
and may modify the list to assure that it complies with the regulations 
of Part 130. If a State, Territory, or authorized Tribe does not submit 
a list on time EPA will use its authority to establish the list for the 
State, Territory, or authorized Tribe. In response to comments, EPA has 
clarified which sections of subpart C it will use in reviewing the 
lists, and what actions EPA is obligated to take in its decisions. 
Therefore, the final rule uses the word ``must'' to represent EPA's 
statutory obligations to either approve or disapprove and establish a 
section 303(d) list of impaired waterbodies, and to establish a list 
for any State, Territory, or authorized Tribe that does not do so by 
April 1 of every fourth year.
    Finally, EPA includes a statement in today's rule that EPA may 
establish a list of waterbodies that do not attain and maintain Federal 
water quality standards. EPA recognizes that there are some impaired 
waterbodies outside the jurisdiction of States, Territories, and 
authorized Tribes. Where EPA has established Federal water quality 
standards for these waters, EPA believes it clearly has the authority 
to list impaired waterbodies. These waterbodies are generally inside 
Indian Country where the Tribe is not authorized to implement section 
303(d) or in Federal ocean waters.

M. Must TMDLs be Established? (Sec. 130.31)

    What did EPA propose? EPA proposed that TMDLs be established for 
all waterbody and pollutant combinations listed on Part 1 of the list, 
but did not propose to require TMDLs for waterbody and pollutant 
combinations listed on Parts 2, 3, or 4 of the list. In addition, EPA 
proposed that States, Territories, and authorized Tribes establish 
TMDLs in accordance with the priority rankings required by proposed 
Sec. 130.28. Finally, EPA proposed allowing States, Territories and 
authorized Tribes to establish TMDLs in a different order than provided 
by the most recently submitted schedule as long as the TMDLs were 
established in a manner consistent with the overall requirements of 
proposed Sec. 130.31(a)(1) through (a)(3). EPA explained that it was 
planning to

[[Page 43618]]

consider the extent to which a State, Territory, or authorized Tribe 
had not or was not likely to meet its schedule for establishing TMDLs 
when making a decision to step in and establish TMDLs for the State, 
Territory, or authorized Tribe. (64 FR 46037, August 23, 1999).
    What comments did EPA receive? EPA received many comments specific 
to this section. Some commenters reiterated their concerns about the 
four-part list. Other commenters pointed to inconsistencies between 
proposed Secs. 130.32(b), 130.32(c), and 130.31(a)(3) and the need for 
more flexibility to establish TMDLs out of the planned sequence. Some 
commenters expressed the view that EPA should allow States to use 
existing programs that achieve the same results as a TMDL instead of 
requiring a TMDL for all Part 1 waterbodies. Other commenters inquired 
as to the requirements for ``informational TMDLs'' under section 
303(d)(3).
    EPA also received many comments regarding the issues of pollutants 
which might not be suitable for TMDL calculations. A number of 
commenters put forth the position that TMDLs were appropriate for all 
situations, and that EPA should not allow exemptions for technically 
complex impairments under any circumstances. EPA received a number of 
comments suggesting that the establishment of TMDLs for certain 
impairments resulting from atmospheric deposition (e.g. mercury and 
nitrogen) was not feasible because of a lack of appropriate technical 
tools (e.g. data, models), and therefore, EPA should exempt these 
waterbodies from the list. Similarly, several commenters stated that 
TMDLs for extremely difficult to solve problems (e.g. contaminated 
sediments) should also be exempt from TMDL establishment, or at least 
deferred until such time that the tools and data were available. Other 
commenters expressed a position that EPA had failed to meet its 
statutory duty under 304(a)(2)(D) to provide guidance on how to 
determine for which pollutants technical conditions exist to establish 
a TMDL. Therefore, these commenters felt that the States, Territories 
and authorized Tribes should be given maximum deference to make this 
determination for themselves, especially for toxics. A number of 
commenters suggested that a new part 5 of the list be established to 
accommodate impairments where the technical conditions were such that 
TMDLs could not be established until advances in data and models were 
made. A number of comments suggested that EPA should include the 
statutory language that recognizes that some pollutants may not be 
suitable for TMDL calculations. Some comments made specific 
recommendations that EPA should now determine that flow, biological 
criteria, temperature, sediment, any interpretation of narrative 
criteria, whole effluent toxicity, sediment toxicity, legacy 
pollutants, any pollutant originating from nonpoint sources or 
atmospheric deposition, mercury, and any pollutant found in an 
ephemeral stream are not suitable for TMDL calculation. A few comments 
suggested that TMDLs should be required for stream flow for legal and 
policy reasons.
    What is EPA promulgating today? Based on its analysis of the many 
comments received on this section, EPA has made four changes to the 
proposed rule language. First, EPA is requiring in final Sec. 130.31(a) 
that States, Territories, and authorized Tribes submit the TMDLs they 
establish to EPA. EPA made this change because although Sec. 130.35 of 
the proposed rule addressed EPA's review of TMDLs submitted by States, 
Territories, and authorized Tribes, the proposed rule did not include a 
specific requirement that States, Territories, and authorized Tribes 
submit their established TMDLs to EPA.
    Second, the final rule separates the requirement that States, 
Territories, and authorized Tribes establish TMDLs for waterbodies on 
Part 1 of the list from the statement that TMDLs are not required for 
waterbodies on Parts 2, 3, or 4. EPA believes this provides additional 
clarity as to which waterbodies require TMDLs.
    Third, EPA is not promulgating the proposed requirement that 
States, Territories, and authorized Tribes establish TMDLs in 
accordance with their priority rankings. Instead EPA is requiring that 
States establish TMDLs in accordance with their approved schedule. EPA 
has changed the focus in the final rule from the priority ranking to 
the approved schedule because it has decided to equate a State's 
prioritization scheme with its schedule for establishing TMDLs for all 
waterbodies on Part 1 of the list. This is a reasonable interpretation 
and integration of sections 303(d)(1)(A) and 303(d)(1)(C). EPA believes 
it would be unreasonable for a State's TMDL schedule to differ 
significantly from its prioritization of waterbodies under section 
303(d)(1)(A) and therefore believes its modification of the proposal in 
the final rule to require that TMDLs be established in accordance with 
a State's approved schedule is a logical outgrowth of the proposal.
    Fourth, EPA is not promulgating the proposed allowance for States, 
Territories, and authorized Tribes to establish TMDLs in a different 
sequence than in their schedule. However, EPA recognizes that States, 
Territories, and authorized Tribes need the flexibility to adjust the 
order in which they establish TMDLs if newer information causes a lower 
priority TMDL to become of higher priority before the time of the next 
section 303(d) list submittal. The structure of Sec. 130.28(c) provides 
States, Territories, and authorized Tribes with the flexibility to 
shift work within each twelve-month block of the schedule without 
seeking EPA approval. EPA believes that the public should have the 
opportunity to participate in decisions regarding more significant 
changes in the sequence by which TMDLs are established. Therefore, EPA 
expects that States, Territories, and authorized Tribes will use the 
provisions of Sec. 130.29, which includes public participation, to make 
modifications to their schedules for TMDL establishment beyond those 
described above.
    EPA does not agree as suggested by comments that it should allow 
States, Territories, and authorized Tribes to use other existing 
programs in lieu of establishing a TMDL for impaired waterbodies. The 
requirements of the CWA are very clear that TMDLs are required for all 
waterbodies impaired by a pollutant(s) where the technology-based 
requirements of the Act cannot ensure attainment of water quality 
standards. EPA recognizes that there are many Federal and State 
programs and mechanisms available to address impaired waterbodies, and 
EPA encourages States, Territories, authorized Tribes, and citizens to 
use them. However, EPA does not believe it can ignore the clear 
requirement of section 303(d) of the CWA that States, Territories, and 
authorized Tribes identify impaired waters on a section 303(d) list and 
develop TMDLs for these waters. To the extent that States, Territories, 
and authorized Tribes use other programs and mechanisms to achieve 
water quality standards prior to the establishment of a TMDL, those 
mechanisms can provide a basis for the State, Territory, or authorized 
Tribe to remove a waterbody from the section 303(d) list. Also, EPA 
anticipates that States, Territories, and authorized Tribes will rely 
on their various existing water quality-related programs and 
authorities as a means to implement TMDLs.
    EPA acknowledges the comments on specific situations for which EPA 
should determine in this rulemaking that certain pollutants are not 
suitable

[[Page 43619]]

for TMDL calculation. EPA acknowledges that the CWA only requires TMDLs 
for those pollutants that EPA has determined are suitable for 
calculation of TMDLs. EPA made the determination on December 28, 1978 
(43 FR 60662) that all pollutants were suitable for TMDL calculation 
under the proper technical conditions. This 1978 finding is not part of 
today's rulemaking and although neither the determination nor this 
rulemaking foreclose any reconsideration at a later date for a specific 
pollutant, EPA is not making any changes to the determination in these 
regulations. EPA notes that this determination applies only to 
pollutants and not to all parameters used by EPA, States, Territories, 
or authorized Tribes to measure environmental health.
    EPA rejects a suggestion that TMDLs are unsuitable for calculation 
when either (1) suitable data cannot be collected to accurately 
quantify levels of the pollutant of concern, or (2) the water quality 
assessment methodology for that pollutant has not developed 
sufficiently to enable defensible determinations of wasteload 
allocations and load allocations that are likely to eliminate the 
impairment. EPA believes that the first condition is more a matter of 
resources than a technical limitation for developing TMDLs. Indeed, 
under this suggestion, all TMDLs would be unsuitable for calculation in 
the absence of data, and thus there would be no motivation to collect 
the necessary data. EPA believes the second condition is too subjective 
a test, and that the best forum for making this decision is during the 
public review of a TMDL.
    For whole effluent toxicity (WET), EPA recognizes that its own 
guidance states that chronic whole effluent toxicity measurements are 
not additive while one primary principle for calculating TMDLs is that 
mass is additive. EPA also previously declined to apply whole effluent 
toxicity to the TMDL provisions of Part 132. However, EPA does not 
believe that these previous guidances and statements mean that whole 
effluent toxicity is unsuitable for TMDL calculations in all instances. 
Rather, EPA believes that TMDL calculations for chronic whole effluent 
toxicity in situations of multiple discharges should be performed on 
the pollutant(s) causing the toxicity. In these situations, EPA 
believes the first logical step of analysis is to conduct an ambient 
toxicity identification evaluation to identify the pollutants causing 
the toxicity, as suggested by comments. EPA has developed guidance to 
assist States, Territories, authorized Tribes, and other interested 
parties in determining the pollutant(s) causing WET. See ``Toxicity 
Identification Evaluations: Characterization of Chronically Toxic 
Effluents, Phase I,'' EPA/600/6-91-005F, 1992; ``Methods for Aquatic 
Toxicity Identification Evaluations: Phase II Toxicity Identification 
Procedures for Samples Exhibiting Acute and Chronic Toxicity,'' EPA/
600/R-92-080, 1993; ``Methods for Aquatic Toxicity Identification 
Evaluations: Phase III Toxicity Confirmation Procedures for Samples 
Exhibiting Acute and Chronic Toxicity,'' EPA/600/R-92-081, 1993; 
``Marine Toxicity Identification Evaluation (TIR) Guidance Document, 
Phase I,'' EPA/600/R-96/054, 1996.
    Where a TMDL is being established for only one source of the 
chronic whole effluent toxicity endpoint, there is no addition of 
different loadings involved and the TMDL calculations are identical to 
NPDES calculations. Where there are multiple sources of the acute whole 
effluent toxicity endpoint, EPA's guidance considers acute toxicity to 
be additive. See the ``Technical Support Document for Water Quality-
Based Toxics Control,'' EPA/505/2-90-001, 1991, at page 24. In these 
instances, EPA considers TMDL calculations are suitable because acute 
whole effluent toxicity exhibits additive characteristics.
    EPA considers sediment toxicity to be a property of sediments 
resulting from the discharge of pollutants from multiple sources that 
were once in the water column and later settled into the sediments. 
Like chronic WET from multiple discharges, EPA believes that the TMDL 
calculations of sediment toxicity should be performed on the pollutants 
causing the toxicity. In these situations, EPA believes the first 
logical step of analysis is to conduct an ambient toxicity 
identification evaluation to identify the pollutants causing the 
toxicity, as suggested by comments. EPA has developed guidance to 
assist States, Territories, authorized Tribes, and other interested 
parties in determining the pollutant(s) causing sediment toxicity. See 
``Sediment Toxicity Identification Evaluation: Phase I 
(Characterization), Phase II (Identification), and Phase III 
(Confirmation) Modifications of Effluent Procedures'', EPA/600/6-91/
007, EPA, 1991.
    In addition, EPA was asked in comments to clarify that TMDLs are 
suitable for addressing impairments caused by urban wet weather 
sources. EPA recognizes the additional complexity in collecting data 
and conducting the analyses for pollutant problems related to these 
sources, but believes that these issues can be addressed by States, 
Territories and authorized Tribes by providing more time to establish 
the TMDL in the schedule.
    EPA does not consider flow to be a pollutant, and therefore the 
final rule does not require TMDLs for flow. However, EPA recognizes 
that there will be cases where flow or lack thereof will contribute to 
impairment by a pollutant. In some cases the requirement that States, 
Territories and authorized Tribes consider seasonal variations 
including flow when establishing TMDLs will result in States, 
Territories and authorized Tribes having to consider the effect of low 
and high flow on water quality. In addition anthropogenic changes may 
contribute to the presence of a pollutant. For example, flow 
withdrawals or diversions may remove water that once diluted pollutants 
in the stream or cause the in-stream temperature to rise. Another 
example is high flow which degrades the aquatic habitat through 
excessive sedimentation. In these instances, the final rule requires 
the State, Territory, or authorized Tribe to develop a TMDL for the 
pollutant (including heat) which is causing the water to exceed the 
water quality standards. The State, Territory, or authorized Tribe will 
have to identify in the implementation plan the approach it intends to 
use to bring the waterbody into compliance with water quality 
standards. When implementing a TMDL, the State, Territory, or 
authorized Tribe may find it necessary to address the non-discharge 
causes of elevated pollutants, including low flow. In these instances, 
the TMDL allocations will directly address the excessive loading of the 
pollutant and the implementation plan will indirectly address the 
pollution problems.
    EPA recognizes that the proposal did not include the current 
regulatory requirements at Sec. 130.7(e) which codify the statutory 
provisions of section 303(d)(3), which addresses ``informational 
TMDLs.'' This section of the Act provides that States can at their 
discretion, establish TMDLs for waterbodies which are not impaired. 
These ``informational TMDLs'' which contain the load necessary to 
attain water quality standards with seasonal variations and a margin of 
safety are not subject to EPA review and approval and EPA does not 
believe regulatory language is needed to address them.

N. What is a TMDL? (Sec. 130.32(a))

    What did EPA propose? EPA proposed new Sec. 130.33(a), renumbered 
Sec. 130.32(a) in today's final rule, to mirror the proposed definition 
of a TMDL, and to recognize that TMDLs provide the opportunity for 
comparing

[[Page 43620]]

relative contributions of pollutants from all sources and considering 
economic and technical trade-offs between point and nonpoint sources.
    What comments did EPA receive? EPA received numerous comments on 
this subsection. Many echoed comments submitted on the definition of a 
TMDL. Some recommended that this section restate in the same words the 
definition of a TMDL. EPA received a number of comments concerning the 
ability of TMDLs to accommodate trade-offs between point and nonpoint 
sources. Many of these comments addressed the general topic of 
watershed-based effluent trading (as distinguished from comments 
specific to the offset provision set forth in the proposed NPDES 
companion rule). The majority of these comments supported the concept 
of ``trading'' in general, though most did not specify which of the 
numerous models of water pollutant trading they specifically endorsed. 
Reasons given for supporting the concept of trading included: (1) 
Ability to achieve water quality goals in the most cost-effective 
manner; (2) potential for achieving water quality goals sooner than 
otherwise would be the case; and (3) ability to go beyond (do better 
than) stated water quality goals/standards. Several comments called 
upon EPA to include language in the rule itself making it clear that 
``trading'' was allowed as a component of a TMDL implementation plan.
    On the other hand, some comments, though expressing support for the 
broad concept of ``trading,'' urged EPA to proceed carefully with 
approval of individual trading programs, citing concerns about loss of 
accountability for point sources and reductions in opportunities for 
public participation in decisions regarding pollutant discharges from 
individual point sources.
    EPA received many other comments regarding how loads are allocated 
between sources. Some comments suggested that EPA require that States, 
Territories, and authorized Tribes conduct specified analyses related 
to allocations. Other comments suggested that EPA require that 
allocations credit sources with pollutant reductions already achieved 
or require reductions in proportion to the existing loadings. Further 
comments suggested that all sources of loads must fairly share in load 
reductions, regardless of their size or relative contribution. In 
contrast, some comments stated that EPA has no authority to specify any 
allocation methodology or conditions, and that the allocation process 
is solely the authority of the State, Territory, or authorized Tribe. 
EPA received suggestions that EPA provide more examples of allocation 
methods in guidance.
    Finally, a number of commenters have said that EPA should not have 
said that TMDLs should be set at levels that will ``attain and 
maintain'' water quality standards, and that in the final rule, EPA 
should not couple the two words.
    What is EPA promulgating today? EPA is promulgating this subsection 
with revisions to make the first and second sentence match the first 
and second sentences in the definition of a TMDL. These revisions are 
described in today's preamble in the discussion of the TMDL definition.
    Though EPA continues to support efforts by States, Territories, and 
authorized Tribes, as well as various stakeholders, to identify the 
most cost-effective means of achieving water quality standards through 
development and implementation of TMDLs, EPA does not believe it is 
necessary to provide specific regulatory language specifying how 
trading should occur. EPA has articulated its support for the trading 
concept in an ``Effluent Trading in Watersheds Policy Statement,'' 
January 1996, and a ``Draft Framework for Watershed-Based Trading,'' 
May 1996, and provided funding and technical support for a number of 
individual watershed trading projects, and continues to interact with 
those developing and implementing such projects.
    EPA's position has been, and continues to be, that States, 
Territories, and authorized Tribes may employ in TMDLs any kind of 
system or policy for allocating pollutant loadings among sources, as 
long as the resulting allocations will lead to attainment and 
maintenance of water quality standards. Among the permissible 
allocation options are ones by which a source of pollutants would 
provide compensation to another source, in exchange for which the 
second source would accept a lower allocation, thereby offsetting a 
higher allocation for the first source. EPA encourages States, 
Territories and authorized Tribes to bring together stakeholders 
potentially affected by and interested in a planned TMDL to work 
together to explore ways in which a variety of allocation arrangements 
can be considered in selecting a scheme for a TMDL and reflected in the 
TMDL implementation plan.
    EPA also declines to require that States, Territories or authorized 
Tribes conduct any specific prescribed analyses as part of their 
decision to allocate loads to point and nonpoint sources. Similarly, 
EPA declines to require that allocations credit sources with pollutant 
reductions already achieved, require reductions in proportion to the 
existing loadings, consider the ability to pay or treatment capacity or 
where reductions are the easiest to achieve, or require that all 
sources of loads must fairly share in load reductions, regardless of 
their size or relative contribution. EPA believes that the decision on 
how to identify the most cost-effective or equitable means of 
allocating loadings is best handled by the State, Territory, or 
authorized Tribe, when the State, Territory, or authorized Tribe 
establishes the TMDL. Therefore, EPA is not prescribing certain 
allocation methodologies for States, Territories, or authorized Tribes 
in this rule. Today's final rule requires that the wasteload and load 
allocations, when implemented together, will result in the attainment 
and maintenance of the water quality standard(s) applicable to the 
pollutant for which the TMDL is being established. EPA's review of the 
allocations will focus on whether they attain and maintain the water 
quality standards.
    EPA believes the allocation methodology should create a technically 
feasible and reasonably fair division of the allowable load among 
sources. Understanding the relationship between pollutant loads and the 
condition of the waterbody is the basis for evaluating alternative 
allocation strategies. If there is a range of allocation strategies 
that could be implemented, EPA encourages the State, Territory, or 
authorized Tribe to consider various allocation options. This allows 
for a more rigorous evaluation and decision making process by the 
stakeholders and regulators. Ideally, States, Territories and 
authorized Tribes could bring together stakeholders potentially 
affected by and interested in a TMDL to work together to reach 
consensus on allocations that are believed by the stakeholders to be 
effective and equitable.
    Pollutant reductions can be allocated among sources in numerous 
ways (see ``Technical Support Document for Water Quality-based Toxics 
Control,'' EPA/505/2-90-001, 1991, Chapter 4.) States, Territories, and 
authorized Tribes may consider several factors, including technical and 
programmatic feasibility to reduce specific loads, cost-effectiveness, 
relative or proportional source contributions, ability of small 
entities to pay for pollutant load reductions, equity based on previous 
commitments to load reductions, and the likelihood of implementation, 
to develop the most effective allocation strategy. EPA encourages 
States, Territories, and authorized Tribes to consider these factors 
when they allocate loads.

[[Page 43621]]

    When EPA establishes a TMDL, EPA will seek advice from the 
applicable State, Territory, or authorized Tribe as to which allocation 
methodology it prefers that EPA use. As a general approach, EPA intends 
to use the same allocation methodology that the State, Territory, or 
authorized Tribe uses for TMDLs it establishes. However, if EPA is not 
able to establish reasonable assurance of implementation of needed 
pollution control measures, EPA will revise the pollutant reduction 
allocation as needed. EPA recognizes the benefit of guidance on the 
merits of various allocation methodologies, and intends to publish this 
guidance within a year following promulgation of today's rule for use 
by States, Territories, and authorized Tribes.
    EPA believes the phrase ``attain and maintain'' is consistent with 
the language in CWA section 303(d)(1)(C) that requires that TMDLs be 
established at a level necessary to implement water quality standards. 
EPA interprets the term ``implement'' to include not just choosing a 
load necessary to attain the appropriate water quality standard at a 
given moment in time, i.e., the date the TMDL is established, but also 
choosing a load that will ensure that the appropriate water quality 
standard is implemented over time. For that reason, EPA believes it has 
the authority to use the phrase ``attain and maintain'' and has 
modified the proposed rule in a number of places consistent with this 
belief.

O. What are the Minimum Elements of a TMDL? (Sec. 130.32(b))

    EPA proposed in Sec. 130.33(b), renumbered as Sec. 130.32(b) in 
today's rule, that a TMDL include ten minimum elements. The final rule, 
for reasons explained later, includes eleven elements. Ten of these are 
discussed in this section. The issues raised by commenters regarding 
the eleventh element, i.e., the implementation plan, and changes 
resulting from these comments are discussed in Section II.P. of this 
preamble. EPA is promulgating its proposal that TMDLs include all the 
elements. EPA recognizes that TMDLs for waterbodies with only NPDES-
regulated point sources contributing the pollutant impairing the 
waterbody would not require a load allocation. In this situation, the 
TMDL could include a load allocation of zero. Similarly, TMDLs for 
waterbodies with only sources which are not subject to NPDES permits 
contributing the pollutant impairing the waterbody would not require a 
wasteload allocation. In this situation, the TMDL could include a 
wasteload allocation of zero.
1. Waterbody Name and Geographic Location
    What did EPA propose? EPA proposed in Sec. 130.33(b)(1) that the 
TMDL include the information provided on the section 303(d) list 
regarding the name and geographic location of the waterbody for which 
the TMDL was established, as well as the name and geographic location 
of upstream waterbodies which contributed a significant amount of the 
pollutant for which the TMDL was established.
    What comments did EPA receive? EPA received very few comments 
regarding this proposed requirement. Some commenters were concerned 
that the requirement to identify upstream sources of pollutants meant 
that controls would have to be established for these sources.
    What is EPA promulgating today? EPA is promulgating this section as 
proposed but now renumbered as Sec. 130.32(b)(1). The Agency believes 
that it is important to identify upstream contributors of a pollutant 
for which a TMDL is being established because, as clarified in today's 
regulations at Sec. 130.32(b)(4), this pollutant load must be accounted 
for in the TMDL as background loading. EPA recognizes that, due to 
limited information, a State Territory, or authorized Tribe may not be 
able to identify a specific upstream waterbody as being the source of 
pollutants that flow into the segment of the waterbody for which the 
TMDL is being established. EPA expects that the State, Territory, or 
authorized Tribe will only identify specific sources of that pollutant 
upstream of the segment for which the TMDL is being established to the 
extent those sources are known.
2. Identification and Quantification of the Pollutant Load, and 
Deviation From Loads
    What did EPA propose? In proposed Sec. 130.33(b)(2), and (3), EPA 
proposed that States, Territories and authorized Tribes identify the 
pollutant for which a TMDL was established, quantify the load of the 
pollutant which may be present in the waterbody and not cause an 
exceedance of a water quality standard, and identify the difference 
between that amount and the current loading.
    What comments did EPA receive? EPA received few comments on these 
proposed sections. Commenters mostly requested technical clarifications 
on how to calculate pollutant loads. Other comments requested that the 
rule require disclosure of which water quality standards apply to a 
TMDL, and assurance that background loadings are accounted for in the 
TMDL.
    What is EPA promulgating today? EPA is slightly reorganizing these 
sections to separate the requirements for identification of the 
pollutant, now contained in Sec. 130.32(b)(2), from the quantification 
of the pollutant load necessary to attain water quality standards in 
Sec. 130.32(b)(3) and the quantification of the deviation between 
current loading and that necessary to attain and maintain water quality 
standards in Sec. 130.32(b)(4). EPA believes that this separation 
better clarifies the elements of the TMDL. This also results in there 
being 11 elements of the TMDL, because two requirements are reorganized 
into three requirements.
    In addition, as suggested by comments, EPA is adding the 
requirement to consider pollutant loads from upstream sources as part 
of the background. EPA recognizes that the TMDL serves as a mechanism 
for accounting for the total load of a pollutant in a waterbody. In the 
TMDL, all pollutant loads need to be accounted for to ensure that when 
the total load is allocated, the sum of the allocations does not exceed 
the water quality standard. Without identifying loads from upstream 
sources as background loads, the allocation process is likely to over-
allocate loadings to point and nonpoint sources, thus leading to an 
exceedance of the water quality standard.
    EPA does not interpret quantification of loads as always requiring 
the direct monitoring of sources of pollutant loads or the pollutant 
load within a waterbody. States, Territories, and authorized Tribes 
have the flexibility to use any methodology that develops a number that 
expresses the pollutant load. Direct monitoring is one way, but there 
are others. For example, States, Territories, and authorized Tribes may 
use water quality modeling techniques, either empirical or 
deterministic, to quantify the load. They may use correlation 
methodologies to relate non-pollutant metrics to pollutant loads. In 
general, the State, Territory, or authorized Tribe needs to use a 
procedure by which it can develop a number that characterizes the load.
    Also, as suggested by comments, EPA is clarifying that the 
applicable water quality standard must be identified along with the 
pollutant for which a TMDL is being established. EPA agrees that the 
public should have access to this information when they review and 
comment on a proposed TMDL because the water quality standard is the 
basis for the TMDL.

[[Page 43622]]

3. Source Categories
    What did EPA propose? EPA proposed in Sec. 130.33(b)(4) that a TMDL 
should include an identification of the source of the pollutant with as 
much precision as feasible, i.e., individual or categorical, in 
accordance with the definitions of load allocation and wasteload 
allocations.
    What comments did EPA receive? Many commenters repeated either 
their support or opposition to including nonpoint sources in the TMDL 
process. Several comments expressed support for identification of all 
sources, and suggested EPA encourage States, Territories, and 
authorized Tribes to identify all sources of a pollutant. Others 
repeated their concerns regarding designation of certain animal feeding 
operations and silviculture activities as point sources. These comments 
are addressed elsewhere in today's preamble.
    What is EPA promulgating today? EPA is promulgating the proposed 
language with minor editorial modifications at Sec. 130.32(b)(5) of 
today's rule. For reasons discussed previously in today's preamble, EPA 
believes that the requirement to identify and establish TMDLs for 
waterbodies exists regardless of whether the waterbody is impaired by 
point sources, nonpoint sources or a combination of both. Pronsolino v. 
Marcus, 2000 WL 356305 (N.D. Cal. March 30, 2000.) Therefore, EPA 
declines to revise the proposed requirement to exclude identification 
of nonpoint sources that contribute the pollutant causing an 
impairment.
4. Wasteload Allocation
    What did EPA propose? EPA proposed that an individual wasteload 
allocation be assigned to each point source covered by the NPDES permit 
program, with two exceptions. First, EPA proposed that one waste load 
could be allocated to a category or subcategory of sources within a 
waterbody subject to a general permit under the NPDES program. 
Similarly, EPA proposed that pollutant loads from permitted facilities 
that did not need to be reduced in order to achieve water quality 
standards could be grouped into one category or subcategory, or 
considered as part of background loads.
    EPA also proposed to require States, Territories, and authorized 
Tribes to provide technical analysis demonstrating that wasteload 
allocations, when implemented, would result in attainment and 
maintenance of water quality standards in the waterbody.
    What comments did EPA receive? EPA received a wide variety of 
comments on the provisions in proposed Sec. 130.33 dealing with 
wasteload allocations. (Other comments regarding the definition of 
``wasteload allocations'' are addressed elsewhere in this preamble.)
    The proposal that one wasteload allocation could be developed for 
all point sources subject to a general NPDES permit drew substantial 
and widely varied response. Some commenters endorsed this notion, 
saying it would reduce administrative burdens on States, Territories 
and authorized Tribes. On the other hand, there were a number of 
comments objecting to this provision. These commenters questioned the 
feasibility of estimating the total loading from all point sources 
covered by a general permit, particularly permits which do not require 
the sources wishing to be covered to send a Notice of Intent to the 
NPDES authority.
    Commenters also opposed grouping all sources for which no load 
reduction was required. They questioned how EPA could ensure that 
dischargers included under a wasteload allocation, or bundled under the 
allocation to background, did not increase their loadings of the 
pollutant above levels discharged at the time of TMDL establishment.
    A number of comments called upon EPA to require that States, 
Territories, and authorized Tribes directly notify any pollutant source 
potentially affected by the allocations in a proposed TMDL that had 
been published for public review and comment.
    What is EPA promulgating today? After consideration of all comments 
received, EPA is promulgating a provision that is very similar to the 
one proposed. The one key change is aimed at clarifying that, for 
waterbodies affected by both nonpoint and point sources of the 
pollutant of concern, implementation of the wasteload allocation alone 
is not always expected to result in attainment of water quality 
standards. Rather, today's rule specifies that States, Territories, and 
authorized Tribes should submit, along with the wasteload allocation, 
supporting technical analyses demonstrating that wasteload allocations, 
when implemented in conjunction with necessary load allocations, will 
result in the attainment and maintenance of water quality standards in 
the waterbody.
    As with the proposed rule, today's promulgation states that point 
sources subject to individual NPDES permits must be given individual 
wasteload allocations, except those that would not need to reduce their 
loadings. Point sources subject to individual NPDES permits that, 
according to the terms of the wasteload allocation for the waterbody 
into which they discharge, would not need to decrease their pollutant 
loadings, may be included within a single wasteload allocation for a 
category or subcategory of sources. Individual NPDES permits for point 
sources included in such categories or subcategories should have 
effluent limits (or other permit provisions) for the pollutant being 
addressed in the TMDL, ensuring that the permittee would not increase 
its discharge of that pollutant beyond the level it was assessed as 
discharging in calculating the TMDL's wasteload allocation for that 
category or subcategory of sources. In these instances, the current 
NPDES permit provides the regulatory control to prevent these sources 
of pollutants from increasing their pollutant loads.
    Today's rule allows for wasteload allocations to be allotted to a 
category of sources seeking coverage under a general permit, i.e., all 
sources seeking coverage under a general permit that are located on the 
waterbody for which the TMDL is established could be covered under one 
wasteload allocation (Sec. 130.32(b)(6)). General permits, like 
individual permits, must include effluent limits or conditions that are 
consistent with the assumptions and requirements of the wasteload 
allocation. Today's rule requires that the implementation plan identify 
the category of point sources subject to the TMDL which are regulated 
by a general permit and specify the general permit that applies or will 
apply to the sources (Sec. 130.32(c)(1)(i)). Today's rule also requires 
that the implementation plan identify the wasteload allocation that 
will be the basis for the effluent limitations (which may be in the 
form of Best Management Practices defined for NPDES at Sec. 122.2) in 
the NPDES permit ``that will be issued, reissued, or revised.'' Id.
    Existing NPDES regulations require the permitting authority to 
develop water quality-based effluent limits that derive from and comply 
with all applicable water quality standards. These regulations also 
require that water quality-based effluent limits be consistent with the 
assumptions and requirements of any available wasteload allocation 
prepared by the State and approved by EPA pursuant to Sec. 130.7 (see 
Sec. 122.44(d)(1)(vii)(B)). Therefore, when an existing permit expires, 
upon reissuance of that permit, the permitting authority will evaluate 
whether the effluent limitations or conditions within the permit are 
consistent with the wasteload allocation in an applicable

[[Page 43623]]

TMDL. If not, the permitting authority must ensure the reissued permit 
includes effluent limitations that are consistent with the wasteload 
allocation. In the case of storm water permits, the effluent 
limitations may include best management practices that evidence shows 
are consistent with the wasteload allocation.
    Where a State is establishing a TMDL and that State is authorized 
to administer general permits under the NPDES program, the State has 
the discretion and flexibility to determine whether to issue separate 
general or individual permits to implement the wasteload allocation or 
whether to revise or reissue a general permit to implement the 
wasteload allocation. A separate general permit would be specific to 
the waterbody for which the TMDL is established and may include a 
different set of conditions and requirements that would be designed or 
tailored to implement the applicable wasteload allocation under the 
TMDL. A State may also choose to revise the existing general permit to 
include additional conditions or effluent limitations applicable to 
those sources or categories of sources, consistent with the wasteload 
allocation. EPA believes that a new general permit (e.g. a storm water 
general permit) that includes best management practices, rather than 
numerical limitations on the mass or concentration of pollutants in the 
discharge, is adequate for the purposes of ensuring implementation of a 
wasteload allocation.
    When a State is establishing a TMDL but that State is not 
authorized to administer general permits under the NPDES program, the 
State and EPA would work together to address how the applicable 
national general permit would be ``issued, reissued or revised'' to 
implement the wasteload allocations applicable to the category of 
sources subject to a TMDL covered by the general permit. EPA would also 
have the discretion and flexibility to determine whether to issue a 
separate general permit to implement the wasteload allocation, whether 
to issue an individual permit, or whether to revise or reissue the 
general permit to implement the wasteload allocation. This discretion 
and flexibility would also be available to EPA where the Agency is 
establishing a TMDL for a State that is not authorized to administer 
general permits under the NPDES program. In addition, where EPA is 
establishing a TMDL for a State and that State is authorized to 
administer general permits under the NPDES program, EPA, in developing 
the implementation plan, would need to work with the State to determine 
how the State-issued general permits would be ``issued, reissued or 
revised'' to implement the applicable wasteload allocation under the 
TMDL.
    As would have been the case with the proposed rule, when EPA 
approves a TMDL, it will also be approving the component wasteload 
allocations and load allocations. EPA's review of wasteload allocations 
and corresponding load allocations will be aided by the supporting 
technical analyses demonstrating that implementation of wasteload 
allocations and load allocations (where applicable) is feasible and 
will result in attainment of water quality standards. EPA's review will 
also include a review of the sources of information that the State, 
Territory, or authorized Tribe cites in support of its technical 
analysis.
5. Load Allocation
    What did EPA propose? The proposed rule required States, 
Territories, and authorized Tribes to assign individual load 
allocations to specific nonpoint sources (including air deposition and 
natural background) unless doing so would be impossible. In cases where 
it was not possible to assign individual load allocations, specific 
nonpoint sources could be grouped together into categories or 
subcategories. Each category or subcategory would be given a load 
allocation. In addition, where load reductions are not needed from 
certain sources, the load allocation for those sources could be grouped 
into one aggregate load allocation.
    The proposal also required States, Territories, and authorized 
Tribes to provide technical analysis demonstrating that load 
allocations, when implemented, would result in attainment and 
maintenance of water quality standards.
    What comments did EPA receive? EPA received a large number of 
comments with regard to load allocations, covering a range of issues. A 
number of these comments are also relevant to the proposed definition 
of ``load allocation'' at Sec. 130.2(f), and are summarized in the 
discussion of that provision.
    The proposal to allow States, Territories, and authorized Tribes to 
aggregate a number of individual nonpoint sources into a category or 
subcategory for which just one wasteload allocation would be required, 
received both favorable and unfavorable comments. Several commenters 
specifically objected to the language requiring States, Territories, 
and authorized Tribes to calculate individual load allocations for 
specific nonpoint sources if doing so were ``possible'' and encouraged 
EPA to use the word ``feasible'' or ``practical'' instead.
    The issue of possible inequities in the allocation of allowable 
loads among sources of the pollutant for which a TMDL was being 
developed was the subject of a significant number of comments. A number 
of commenters expressed the fear that because of a lack of Federal 
regulatory authority (and often, State authority as well), States, 
Territories, and authorized Tribes would likely give relatively 
generous allocations to nonpoint sources, thereby requiring 
disproportionately large reductions by point sources. Some of those 
expressing this concern urged EPA to require that allocations of 
loadings be done ``proportional to current loadings'' from various 
sources. On the other hand, some called upon EPA and States, 
Territories, and authorized Tribes to take ``achievability and 
assurance'' of loadings reductions into account when doing allocations 
of loadings and indicated this meant that greater responsibility for 
loadings reductions would be assigned to sources either subject to 
enforcement or very likely to actually achieve reductions for other 
reasons.
    What is EPA promulgating today? The provision of Sec. 130.32 
addressing load allocations that is being promulgated today is very 
similar to the proposed rule. A few changes have been made in response 
to comments. First, the provision was revised to be consistent with 
revisions to the definition of ``load allocation'' that were previously 
discussed in today's preamble. Second, based on comments, the condition 
to trigger developing separate load allocations was changed from 
``possible'' to ``feasible.'' EPA believes that a feasibility standard 
is better for making this decision. Developing a separate load 
allocation for a source may be possible but not feasible. In some 
instances, the loadings from nonpoint sources can only be feasiblely 
quantified on an aggregate basis. EPA does not intend States, 
Territories, or authorized Tribes to expend additional effort to 
develop separate load allocations if not feasible, and thus has made 
this change to the final rule.
6. Margin of Safety
    What did EPA propose? EPA proposed in Sec. 130.33(b)(7) to specify 
how States, Territories and authorized Tribes could satisfy the 
statutory requirement that TMDLs include a margin of safety. EPA 
proposed that the requirement could be satisfied either by expressing 
the margin of safety as

[[Page 43624]]

unallocated assimilative capacity, i.e., demonstrating that the 
pollutant loading would be less than the assimilative capacity of the 
waterbody, or demonstrating that conservative assumptions had been 
built into the calculations of the wasteload and load allocations.
    What comments did EPA receive? EPA received many comments asking 
for specific criteria to calculate the margin of safety while others 
suggested that EPA should keep this requirement as flexible as 
possible. Some commenters pointed out that water quality standards 
already account for scientific uncertainties. Some commenters suggested 
that the margin of safety should increase as uncertainties in the 
quality of the data used to establish the load and wasteload 
allocations increase.
    What is EPA promulgating today? EPA believes that the margin of 
safety required by the section 303(d)(1)(C) for establishment of TMDLs 
allows for consideration of more factors than the scientific 
uncertainty included in the development of water quality standards and 
must also account for analytical uncertainties associated with all the 
calculations required to establish a TMDL. Nothing in the statute 
indicates that these factors are exclusive to all others in 
interpreting what margin of safety means. EPA has clarified this 
requirement at Sec. 130.32(b)(8) in the final rule by explicitly 
stating that the margin of safety must appropriately account for 
uncertainty, including those associated with pollutant loads, water 
quality modeling, and monitoring. EPA has also clarified how the margin 
of safety could be expressed. EPA agrees with the commenters that the 
calculation of margin of safety is complex and that guidance addressing 
a variety of situations, including reliability of the data need to be 
developed. EPA is planning to issue such guidance soon after this rule 
is promulgated.
    EPA does not believe that the margin of safety is addressed by how 
the water quality standards account for scientific uncertainties. CWA 
section 303(d) requires that TMDLs implement the applicable water 
quality standard. EPA interprets the margin of safety requirement of 
the CWA to address the relationship of the TMDL to the water quality 
standard, and not how the standard itself addresses uncertainties.
7. Consideration of Seasonal Variations
    What did EPA propose? EPA proposed in Sec. 130.33(b)(8) to codify 
the statutory requirement that TMDLs must account for seasonal 
variations and to require States, Territories and authorized Tribes to 
also consider other environmental factors which could affect the water 
quality impact of the pollutant for which a TMDL was established.
    What comments did EPA receive? EPA received considerable support 
for this requirement. Many commenters pointed out that the amount of 
flow in a waterbody could have significant impact on the level of a 
pollutant and that EPA should require TMDLs to account for low flow as 
well as wet weather flow and storm water events. Other commenters 
however, construed this proposed requirement as an interference with 
States' water rights and allocation processes. Finally, many commenters 
did not agree that water quality standards must be attained in all 
seasons or during unusual events such as major storms.
    What is EPA promulgating today? EPA is promulgating this 
requirement at Sec. 130.32(b)(9) with a few changes. EPA agrees with 
the commenters that the level of flow in a waterbody can affect whether 
or not a waterbody attains and maintains water quality standards; 
therefore, EPA is specifically requiring that flow levels be taken into 
consideration as part of seasonal variations. By including this 
language, EPA is not intending that States, Territories or authorized 
Tribes make changes to established water allocations or water rights. 
Instead, EPA intends for the pollutant load allocation to take into 
account the impact of flows on the water quality of the impaired 
waterbody. EPA also believes that TMDLs must be established so that 
water quality standards are attained and maintained in all seasons and 
all flows. This includes consideration of storm conditions where storms 
or storm water runoff contribute the pollutants causing the impairment 
to the waterbody. EPA believes that this is the very reason 
consideration of seasonal variations is included in the statutory 
language, and EPA is adding language in the final rule to clarify this 
point. EPA's intent is that TMDLs must account for normal variations in 
seasonal conditions for environmental factors such as flow, 
precipitation or temperature, and not necessarily account for extreme 
unusual conditions such as 100-year storms or hurricanes.
    States, Territories, and authorized Tribes can address seasonal 
variations in many different ways. One way is to use water quality 
modeling techniques, such as continuous or dynamic modeling, that 
directly consider variations in environmental conditions. Another way 
is to conservatively identify a suite of environmental conditions that 
represent the worse conditions experienced in the waterbody, and thus 
lead to identifying a load that is protective of all conditions. Yet 
another way is to establish TMDLs for each season or month that are 
representative of the environmental conditions in those seasons or 
months. Because there are different ways of addressing seasonal 
variations in environmental conditions such that water quality 
standards are met as required, EPA believes that it is more appropriate 
to address the details of this analysis in guidance rather than in 
today's rule.
8. Allowance for Increases in Pollutant Loads
    What did EPA propose? EPA proposed at Sec. 130.33(b)(9) that TMDLs 
include an allowance for future growth to account for reasonably 
foreseeable increases in pollutant loads. EPA included this provision 
to meet the statutory mandate that water quality standards must be 
attained and maintained. EPA believed that, absent such an allowance, 
it would be difficult to demonstrate maintenance of the standards. EPA 
explained in the preamble that it intended for the allowance to be 
based on existing and readily available data at the time the TMDL was 
established.
    What comments did EPA receive? Many commenters pointed out that 
decisions about future growth were the province of local governments. 
They opposed the proposed language because they construed it as a 
requirement to control growth. Others were concerned that allowance for 
future growth would render TMDLs more stringent than necessary and 
unfairly place a burden on current dischargers.
    What is EPA promulgating today? EPA is promulgating this 
requirement at Sec. 130.32(b)(10) but is modifying the proposed 
language to clarify that the intent of this provision is not to control 
growth but to ensure that TMDLs take into account potential increases 
in loadings regardless of their cause. EPA believes accounting for any 
such potential increases is a necessary step in setting loads at a 
level necessary to implement standards and accordingly is authorized by 
Sec. 303(d)(1)(c). If a State, Territory, or authorized Tribe does not 
anticipate increased loadings in a TMDL, it may satisfy this element by 
indicating it does not expect there to be such increases and providing 
a brief explanation why. Moreover, if the State, Territory, or 
authorized Tribe does not anticipate future increased loadings, it may 
find itself needing quickly to revise the TMDL to accommodate new

[[Page 43625]]

discharges. On the other hand, if a State, Territory, or authorized 
Tribe includes an allocation for increases in pollutant loads, then any 
new loading or increase in pollutant loading that occurs will be 
addressed by that allocation without requiring that the TMDL be 
revised. EPA does not intend that, if a State, Territory, or authorized 
Tribe decides to specifically provide an allocation for increased 
pollutant loadings in a TMDL, it needs to identify the types of 
facilities or activities that would receive that allocation. Instead, 
EPA expects that the allowance for increased pollutant loadings would 
be an aggregate amount that could be applied to any future increase in 
loads. The specific decisions as to how to allocate that aggregate 
allowance for increased loads to new facilities or activities are best 
made by the State, Territory, and authorized Tribe along with local 
governments.

P. What Are the Requirements of the Implementation Plan 
(Sec. 130.32(c))?

    What did EPA propose? EPA proposed that each TMDL include, as a 
minimum element required for approval, an implementation plan. The 
implementation plan as proposed contained eight minimum elements: (1) 
Intended control actions; (2) a time line; (3) reasonable assurance 
that wasteload and load allocations will be achieved; (4) legal 
authority; (5) time required to attain water quality standards; (6) 
monitoring plan; (7) milestones for attaining water quality standards; 
and (8) TMDL revision procedures. The proposal would have required 
States, Territories and authorized Tribes to submit implementation 
plans to show how each TMDL was to be implemented. The proposal 
recognized that it would be more effective and supportive of watershed 
approaches to have implementation plans that show how all TMDLs for a 
particular pollutant or a number of pollutants in particular basins, 
would be implemented. EPA specified that it would not approve a TMDL 
without an adequate implementation plan. The proposal linked the 
adequacy of the implementation plan to a determination by EPA that 
there was reasonable assurance that implementation would occur. If EPA 
could not approve the TMDL, EPA would have to establish the TMDL which 
would include an implementation plan and provide reasonable assurance.
    What comments did EPA receive? EPA received numerous comments on 
the proposed implementation plan requirement. A few commenters 
supported the requirement as proposed. Many commenters opposed the 
requirement altogether. Among commenters who supported the requirement 
many questioned EPA's authority to require implementation plans as 
mandatory parts of TMDLs under the authority of section 303(d). These 
commenters suggested that EPA should continue to require implementation 
plans as part of a State's water quality management plan even if it 
meant promulgating amendments to the regulations at Sec. 130.51 to make 
the plans enforceable. Some commenters opposed implementation plans 
because they believe they would considerably slow establishment of 
TMDLs. Others expressed concerns that the proposal was too inflexible 
and would lead to federal regulations of non point sources. Some 
commenters argued that separating the implementation plan from TMDL 
establishment would lead to more scientifically defensible TMDLs and 
that approved TMDLs would provide a clear goal and the impetus for 
better interaction between stakeholders in designing implementation 
plans. Some commenters supported the requirement for implementation 
plans but raised questions concerning the specific proposed elements of 
the implementation plan requirement, especially in regard to nonpoint 
sources.
    What is EPA promulgating today? Today's rule at Sec. 130.32(c) 
retains the requirement for implementation plans as required elements 
of TMDLs. As discussed in the August 23, 1999 preamble (64 FR 46032-
46035), EPA believes that it has the authority to require 
implementation plans because section 303(d) requires that TMDLs be 
established at a level necessary to implement water quality standards. 
Today's rule establishes that one way EPA can determine whether a TMDL 
is approved at a level necessary to implement applicable water quality 
standards is to require an implementation plan. In addition, EPA 
believes that implementation plans provide the basis for demonstrating 
that water quality standards will be attained and maintained through 
pollution controls other than controls over point source discharges 
subject to an NPDES permit.
    EPA believes that implementation of TMDLs is the most important 
aspect of today's rule. Without implementation, TMDLs are merely paper 
plans to attain water quality standards. The implementation plan 
requirement assures that the Nations' remaining water quality problems 
will actually be addressed by appropriate actions identified in the 
implementation plans submitted as part of the TMDLs.
    Today's rule acknowledges that implementation plans will differ 
depending upon the type of sources causing the impairments in a 
particular waterbody. Therefore the final rule makes it clear that the 
purpose of the implementation plan is to describe, at a level of detail 
appropriate to the circumstances, actions necessary to implement the 
TMDL. Implementation plans are not meant to be lengthy or complex. They 
must however contain sufficient detail so that EPA and the public can 
determine whether the actions proposed in the plan can actually 
eliminate the impairment and whether there is reasonable assurance that 
they will occur and when.
    The requirements of the implementation plan are now identified 
separately for waterbodies impaired (1) only by point sources required 
to have an NPDES permit, (2) only by sources other than those required 
to have an NPDES permit including nonpoint sources, or (3) by a 
combination of both point sources required to have an NPDES permit and 
other sources including nonpoint sources. Although the requirements are 
identified separately, they provide common information on what sources 
will be expected to reduce loadings, how these reductions will be 
accomplished, when these reductions will occur, and how the results 
will be measured.
    Some elements of implementation plans are common to all sources: A 
schedule for implementation actions, the date by which the 
implementation plan will attain water quality standards, a modeling 
and/or monitoring plan and a description of interim, measurable 
milestones and criteria to be used to determine progress towards 
attaining water quality standards and when the TMDL needs to be 
revised. These provisions were included in the proposed rule, and 
except for one change discussed below, are unchanged in the final rule 
except for formatting changes.
    In the final rule, EPA is making a small revision to the proposed 
language regarding the time to attain water quality standards. The 
proposal would have required ``an estimate'' of the time necessary to 
attain water quality standards. The final rule requires that the 
implementation plan must include ``the date'' by which the waterbody 
will attain water quality standards. EPA believes the phrasing of the 
final rule is a logical outgrowth of the proposal and a clearer 
description of what is intended--the ``date'' when the State, 
Territory, or authorized Tribe believes water quality standards will be 
attained.

[[Page 43626]]

Implementation Plans for Point Sources for Which an NPDES Permit is 
Required

    For waterbodies impaired by only point sources subject to an NPDES 
permit, the implementation plan is expected to rely primarily on the 
NPDES permit(s) that will be issued, reissued or revised so their 
effluent limit(s) will be consistent with the wasteload allocations in 
the TMDL. The plan will identify which facilities are required to have 
permit limits that are consistent with the wasteload allocation, 
identify the limits to be incorporated into the permits, and identify 
the schedule by which the permits will be issued, reissued, or 
modified. EPA's expectation of when these permits will be issued, and 
EPA's commitment to ensure the proper and timely issuance of these 
permits, is described in the preamble discussion about EPA's objection 
to State-issued expired and administratively continued permits.

Implementation Plans for Sources for Which an NPDES Permit is Not 
Required

    For waterbodies impaired only by sources other than those subject 
to an NPDES permit, including nonpoint sources, the implementation 
plans are required to contain several different elements. The plans for 
these waterbodies must identify the source categories, subcategories or 
individual sources that are expected to implement load allocations. 
These implementation plans must also include a description of specific 
regulatory or voluntary actions, including management measures or 
controls that State, Territorial, authorized Tribal or local 
governments and individuals will implement that provide reasonable 
assurance that load reductions will be achieved, and the schedule by 
which these measures are expected to be implemented.
    EPA recognizes that nonpoint source problems are different from 
point source problems and that implementation plans for nonpoint 
sources must reflect the higher natural variability and relative 
imprecision of nonpoint sources in relation to point sources. EPA 
expects that implementation of load allocations will depend primarily 
upon recognized nonpoint source control activities. These actions are 
often those already undertaken in States, Territories and authorized 
Tribes to carry out programs and activities approved under CWA section 
319, as well as those under the requirements of the Coastal Zone Act 
Reauthorization Amendments and the cooperative conservation and water 
quality programs carried out by the United States Department of 
Agriculture (USDA). These ongoing activities are expected to provide 
the foundation for nonpoint source implementation plans. EPA expects 
that nonpoint source implementation activities will rely upon 
management measures and that implementation plans will reflect 
performance expectations of these measures over time. In the case of 
nonpoint source impaired waterbodies, the detail and level of certainty 
that water quality standards will be attained through these management 
measures may be different from that for waterbodies impaired only by 
point sources.
    EPA is also clarifying in Sec. 130.32(c)(2)(iii) that 
implementation plans for other than point sources (primarily nonpoint 
sources) must include a schedule for implementing management measures 
or other controls in a TMDL within five years when implementation 
within that period is practicable. In response to comments, EPA has 
added a target date of five years for implementation of management 
measures and other controls where it is practicable to do so. The 
proposal required that implementation plans include a timeline, 
including interim milestones, for implementing control actions and/or 
management measures. The final rule requires this timeline be in the 
form of a schedule for implementing the control actions and/or 
management measures as well as a description of the interim milestones 
for determining whether the management measures and/or control actions 
are being implemented.
    EPA added the five-year target in response to comments that there 
needed to be some target or goal for implementing the control actions 
and/or management measures. EPA never intended that implementation of 
the control actions and/or management measures would be open ended. The 
proposal included the requirement for milestones for implementation. 
The five-year target for implementation represents the Agency's 
expectation that, where practicable, the management measures and/or 
control actions should be implemented within five years. This is a 
logical outgrowth of the proposal that the implementation plan include 
an estimate of the time required to attain and maintain water quality 
standards and reasonable response to comments received. EPA expects 
that the public believes that the TMDL will be quickly implemented 
following its establishment. If implementation requires more than five 
years, EPA believes that the public is entitled to an explanation as to 
why five years is not practicable.
    The final rule recognizes that the schedule may provide for more 
than five years. Where a State, Territory, or authorized Tribe 
determines that five years is not practicable, it must explain the 
basis for its determination. In determining whether it can implement 
management measures within five years, the State, Territory, or 
authorized Tribe may consider, but is not limited to, such factors as 
technical feasibility of installing controls and measures or changing 
practices within five years, competing program priorities in providing 
necessary funding and/or necessary technical assistance, and time to 
work with members of the affected community. The analysis of 
practicability in this provision is not intended to add a new 
requirement beyond the requirement to establish reasonable assurance 
that management measures and/or control actions will be implemented as 
expeditiously as practicable. It recognizes that if it is practicable 
to implement controls and measures within five years, they should be 
implemented within five years. EPA recognizes that even if controls and 
measures are implemented within five years, it reasonably would be 
expected to take additional time for the actions and measures to 
achieve their intended results and for load allocations to be met.
    In general, EPA believes that, barring resource constraints or 
other impediments that make expeditious implementation impracticable, 
TMDLs can be implemented within five years of completion of the 
implementation plan. In the typical situation, the types of management 
measures that will be used to implementation the TMDL will consist of a 
set of well-established practices that are commonly practiced within 
the affected industries and can be implemented within a five-year time 
frame.
    For example, to address soil erosion, well-established practices 
such as those that were used by USDA to implement the conservation 
compliance program on highly erodible cropland within the statutorily 
required five-year implementation period of 1985-1990 would typically 
be used. To address the impact of grazing upon water quality, typical 
approaches would include a USDA ``conservation management system'' or 
other similar range management plan to reduce cattle's access to the 
stream (e.g., by providing alternative supplies of water, shade, and 
salt away from the stream; hardening the limited access points to the 
stream; and using fencing where necessary), and

[[Page 43627]]

to employ effective grazing rotation strategies that will ensure both 
that upland areas remain both productive and that soil erosion is 
reduced.
    Similarly, the primary practices to be used to implement measures 
to address silvicultural nonpoint sources include road maintenance 
practices to reduce runoff and streamside management practices that 
will assure that sufficient protection is provided to provide adequate 
shade and erosion control in streamside management zones. For urban 
runoff, typical measures will include prevention techniques such as 
erosion and sediment control in new developments (which are required by 
new NPDES regulations for all developments larger than one acre); 
continued treatment of post-development runoff through a variety of 
urban best management practices, protection and restoration of riparian 
areas; and techniques to treat runoff in developed areas.
    These and other nonpoint source measures can generally be 
implemented within five years from the time that it has been determined 
through a TMDL implementation plan that they will be needed to achieve 
water quality standards. EPA recognizes that in some situations, a 
five-year implementation period may prove to be impracticable. This 
situation is most likely to arise in some heavily developed areas where 
existing infrastructure limits the availability of effective technical 
approaches to very sophisticated and expensive treatment options. For 
this reason, the rule states that TMDLs should generally be implemented 
within a five-year period but allows for the State to make appropriate 
exceptions to the general five-year implementation period to address 
situations where the implementation plan cannot practicably be 
implemented within five years.

Implementation Plans for Blended Sources

    For waterbodies impaired by both point sources required to have an 
NPDES permit and other sources, including nonpoint sources, 
implementation plans are required to include all of the elements 
applicable to these sources. In addition, implementation plans for 
waterbodies impaired by both types of sources must include a 
description of the extent to which wasteload allocations reflect the 
expected achievement of load allocations. EPA encourages implementation 
plans that reflect tradeoffs between wasteload and load allocations. A 
particular wasteload allocation may be set which anticipates that a 
load allocation will achieve a certain reduction in nonpoint source 
loadings. As long as the wasteload and load allocations together will 
achieve the TMDL, the TMDL is approvable. EPA does not expect that load 
allocations will actually be achieved before a corresponding wasteload 
allocation is established but the implementation plan must demonstrate 
the reasonable assurance that the practices will achieve the load 
reductions.
    In the final rule at Sec. 130.32(c)(4), EPA has clarified that 
implementation plans for all impaired waterbodies must be based on a 
``goal'' of attaining and maintaining the applicable water quality 
standards ``as expeditiously as practicable.'' EPA believes this new 
section is a logical outgrowth of its proposal that implementation 
plans include ``an estimate of the time required to attain and maintain 
water quality standards and discussion of the basis for that 
estimate.''
    In response to comments, EPA is providing greater clarity in the 
final rule by identifying the goal that States, Territories and 
authorized Tribes should be striving to achieve in their implementation 
plans, i.e., attaining and maintaining water quality standards as 
expeditiously as practicable. EPA has not expressed its sense of an 
appropriate time within which to attain water quality standards in the 
form of a rigid regulatory requirement. Instead, the goal of attaining 
water quality standards as expeditiously as practicable mirrors the 
provision in the reasonable assurance definition that TMDLs be 
implemented as expeditiously as practicable. The definition of 
reasonable assurance provides the criteria for determining if the TMDL 
is being implemented within 10 years whenever practicable. The 
provision in Sec. 130.32(c)(4) is not intended to establish a test for 
TMDL approval that is different from the requirement to establish 
reasonable assurance. Attaining standards as expeditiously as 
practicable is stated in the rule as a goal whose achievement States 
should strive for as they develop their implementation plans.
    The ``practicability'' of meeting standards within 10 years may be 
influenced by a wide variety of factors, such as the degree of water 
quality impairment, the time required to install controls or change 
practices, the time for such actions to have in-stream effects on water 
quality, the costs to implement such actions, and time to work with 
members of the affected community. EPA recognizes that there is a 
significant amount of uncertainty regarding how quickly implementation 
measures, once installed, will be effective in achieving water quality 
standards. In some cases, particularly water impaired by point sources 
where implementation will be accomplished through NPDES modifications, 
water quality standards may be achieved within months or a few years. 
For waterbodies impaired by nonpoint sources, where implementation 
involves significant habitat restoration or reforestation, water 
quality standards may not be met for decades. Accordingly, EPA has 
selected 10 years as a reasonable point between these extremes. If a 
State, Territory, or authorized Tribe expects that it will take longer 
than 10 years to achieve water quality standards it must explain why 
attainment within 10 years is not practicable.
    In reviewing State, Territory, and authorized Tribe implementation 
plans, and particularly those components whose flexibility is 
conditioned upon a finding of ``reasonableness'' or ``practicability'', 
EPA is not required to, and does not intend to, engage in a detailed 
effort at second-guessing the judgment of a State, Territory, or 
authorized Tribe as to whether these conditions are met. Instead, EPA 
will review the State's, Territory's, or authorized Tribe's submission 
to determine whether the State, Territory, and authorized Tribe has 
provided a demonstration of ``reasonableness'' or ``practicability'', 
where such is required. If so, that will be the end of the inquiry. A 
State's, Territory's, or authorized Tribe's demonstration need not be 
extremely detailed to pass scrutiny. For example, it would be 
sufficient to demonstrate that the five-year implementation schedule 
requirement of Sec. 130.32(c)(2)(iii) is not practicable by stating 
that section 319 grant money and other sources of funds to implement 
the relevant management measures will not be available until year six 
because the next five years worth of funds are already earmarked for 
other TMDL implementation.

Q. Total Maximum Daily Thermal Load (Sec. 130.32(d))

    What did EPA propose? EPA proposed Sec. 130.33(c) to restate the 
existing requirements at Sec. 130.7(c)(2) in plain English format. This 
subsection requires that States, Territories, and authorized Tribes 
develop total maximum daily thermal loads (TMDTLs) for thermal 
discharges from point sources into thermally impaired waterbodies.
    What comments did EPA receive? EPA received numerous comments on 
this subsection. Several comments

[[Page 43628]]

suggested that the balanced indigenous population (BIP) of shellfish, 
fish and wildlife standard should be used for both point and nonpoint 
sources, instead of just point sources. These commenters expressed the 
belief that Congress intended section 303(d)(1)(D) to apply to all 
discharges of heat and not just point sources. Other commenters 
suggested that this subsection was unnecessary, as these discharges are 
already regulated through NPDES permits. These commenters expressed a 
belief that most NPDES facilities discharging heat are already 
regulated based on a BIP standard, and that a thermal TMDL would not 
result in any greater reductions in heat discharged into the waterbody. 
One comment suggested that the subsection should recognize that 
calculations to determine the total maximum daily heat input should be 
focused on the waterbodies identified on the section 303(d) list as 
being impaired by point source thermal discharges.
    What is EPA promulgating today? EPA is promulgating Sec. 130.32(d) 
with three revisions. First, EPA is deleting the phrase ``from point 
sources'' because this phrase is redundant. Earlier in today's 
preamble, EPA explained that its definition of ``thermal discharge'' is 
limited to a point source discharge of heat. Thus, the phrase ``from 
point sources'' that modifies the phrase ``thermal discharges'' in 
Sec. 130.32(d) is redundant. Second, EPA made the revision suggested by 
comments to clarify that the TMDTL calculations apply to waterbodies 
that are listed as impaired by thermal discharges. Third, EPA is 
clarifying that TMDTLs must meet the requirements of Sec. 130.32(b) and 
(c). EPA recognizes that the proposal was unclear regarding whether the 
elements of a TMDL also apply to TMDTLs. EPA intended that they do. 
Moreover, the purpose of Sec. 130.32(d) is to explain that TMDTLs are 
designed to achieve a balanced indigenous population of shellfish, 
fish, and wildlife instead of attaining the water quality criterion for 
temperature.
    EPA declines to apply the BIP standard to TMDLs established for 
waterbodies impaired only by nonpoint sources of thermal loading. As 
discussed in the preamble to the proposed rule, EPA believes that 
section 303(d)(1)(B) and (D) applies the BIP standard only to thermal 
discharges from point sources. (64 FR 46017, August 23, 1999).
    EPA also rejects the suggestions that Sec. 130.32(d) be deleted 
because thermal discharges are already regulated through NPDES permits. 
Not all NPDES regulated discharges have permits that contain effluent 
limits for heat. For some discharges on thermally impaired waterbodies 
there may, therefore, be a need to develop thermal TMDLs to address for 
the first time impairments by thermal discharges. EPA recognizes that, 
where an NPDES regulated facility has obtained a section 316(a) 
variance from thermal water quality standards, the facility already is 
required to discharge at a level based on a BIP standard. However, this 
is no different than the situation where a point source discharging 
nitrogen is also regulated by an NPDES permit with effluent limitations 
based on the applicable water quality standard. Section 303(d) requires 
TMDLs and TMDTLs in both situations.

R. How Must TMDLs Take Into Account Endangered and Threatened Species 
(Sec. 130.32(e))

    What did EPA propose? EPA proposed to include language at 
Sec. 130.33(e) to explain that TMDLs must not be likely to jeopardize 
the continued existence of an endangered or threatened species listed 
under section 4 of the Endangered Species Act or result in the 
destruction or adverse modification of its designated critical habitat. 
In practice, EPA believes it would be highly unlikely TMDL activities 
could jeopardize listed species, since the TMDL program will result in 
substantial improvements in water quality, to the benefit of all water-
dependent species.
    What comments did EPA receive? A number of commenters opposed EPA's 
proposal. Grounds for these objections include allegations that EPA 
lacks authority to impose such a requirement, and that EPA is 
attempting to shift the burden of compliance with the Endangered 
Species Act away from EPA and to the States.
    What is EPA promulgating today? EPA is promulgating this section as 
proposed. Today's rule provides a framework for the public, States, 
Territories and authorized Tribes and other Federal agencies to 
recognize and account for the effects of lists and TMDLs on endangered 
species.
    The CWA provides ample authority for EPA to include this 
requirement. This requirement is consistent with the goals of restoring 
and maintaining the biological integrity of the nation's waters and 
protection of fish, shellfish and wildlife. See CWA section 101(a). 
Furthermore, the CWA requires that TMDLs be established at a level 
necessary to implement applicable water quality standards, and that 
standards consider propagation of fish and wildlife. See CWA sections 
303(d)(1)(C) and 303(c)(2)(A). This is adequate authority to include a 
regulatory requirement designed to protect endangered or threatened 
species. See American Iron & Steel Institute v. EPA, 115 F.3d 979, 1003 
(D.C. Cir. 1997). Although EPA does intend to require State, Territory, 
or authorized Tribe TMDL submissions to adhere to this provision, it is 
not EPA's intent to divest itself of any duty to comply with the ESA. 
Where the ESA imposes duties upon EPA, the Agency intends to comply 
with those requirements.

S. How are TMDLs Expressed? (Sec. 130.33)

    What did EPA propose? EPA proposed at Sec. 130.34 specific 
requirements regarding how TMDLs may be expressed. First, EPA clarified 
that all TMDLs must contain an expression of the pollutant load or load 
reduction necessary to assure that the waterbody will attain and 
maintain water quality standards. This includes aquatic and riparian 
habitats, and biological, channel, geomorphological, or other 
appropriate conditions that represent attainment or maintenance of the 
water quality standard. In these instances, the TMDL will contain the 
wasteload and load allocations necessary to maintain these conditions.
    EPA also proposed that States, Territories, and authorized Tribes 
may use one of four approaches when expressing a TMDL. First, the TMDL 
could be expressed as the pollutant load that ensures that the 
waterbody does not exceed water quality standards. Second, the TMDL 
could be expressed as the pollutant load reduction that attains or 
maintains water quality standards. Third, the TMDL could be expressed 
as the pollutant load or load reduction that attains or maintains 
aquatic, riparian, biological, channel, or geomorphological measures so 
that water quality standards are attained and maintained. Fourth, the 
TMDL could be expressed as the pollutant load or load reduction that 
results from modifying a characteristic of the waterbody such that 
water quality standards are attained or maintained. EPA made this 
proposal to allow States, Territories, and authorized Tribes to express 
TMDLs in terms that are appropriate to the characteristics of the 
waterbody and pollutant combination. Finally, EPA proposed that TMDLs 
may, where appropriate, be expressed in other than daily terms, e.g., 
weekly, monthly, seasonal, or annual, as needed, to ensure that the 
TMDL attains and maintains water quality standards. EPA made this 
proposal because EPA has found through the practice of

[[Page 43629]]

establishing TMDLs that for some pollutants and their applicable 
standards the concept of a ``daily'' load is simply not a technically 
appropriate way of expressing a TMDL in a manner necessary to implement 
water quality standards. In the preamble, EPA provided examples of 
three situations where a seasonal or average loading was more 
appropriate than a daily loading. (64 FR 46031, August 23, 1999). EPA 
believes that allowing flexibility in expressing the TMDL to reflect 
the environmental realities of the pollutant and waterbody better 
allows TMDLs to achieve the Congressional goal of establishing TMDLs at 
a ``level necessary to implement the applicable water quality 
standards.''
    What comments did EPA receive? EPA received many comments specific 
to this section. Most comments focused on the legal and technical 
issues pertaining to expressing TMDLs as other than a daily load. Some 
comments expressed support for the flexibility to express TMDLs as 
daily, monthly, seasonal, or annual loads where appropriate, and 
believed this would allow TMDLs to better address nonpoint sources. 
Many comments expressed concerns that use of other than daily loads 
would allow for excessive loadings over short time periods. When 
averaged with periods of no loading, these short-term loads could cause 
the water quality standard to be exceeded. A number of comments stated 
that only daily loads are permissible under the CWA, including for 
nonpoint source loads. Other comments expressed the view that the need 
to use any expression other than a daily value is an indication that 
the pollutant is not suitable for TMDL calculations.
    Some comments expressed concern that proposed Sec. 130.34 implied 
that a TMDL was no longer a quantitative expression of the load 
necessary to attain water quality standards. Other comments expressed 
confusion whether the language of Sec. 130.34(b) allowed TMDLs to be 
expressed as load reductions or not. A number of comments expressed 
concern that, because TMDLs are now required to be quantitative 
expressions of loads or load reductions, this removes the current 
flexibility to express TMDLs as measures of water quality improvement 
that do not directly express the load reductions. These comments 
supported retaining the current rule language.
    Some comments expressed support for TMDLs addressing riparian and 
aquatic habitat, and biological, channel, geomorphological, or other 
appropriate conditions. Other comments expressed doubt that TMDLs could 
quantify the relationships between pollutant loads and these 
expressions of water quality standards. Further comments expressed the 
belief that TMDLs should only address numeric (and not narrative) 
criteria in water quality standards.
    What is EPA promulgating today? Based on its analysis of the many 
comments received on this section, EPA is making the following changes 
to the proposed rule language. First, EPA is revising proposed 
Sec. 130.34(a) to add the word ``quantitative'' to modify the phrase 
``expression of the pollutant load.'' EPA is making this change to 
respond to the concerns that the TMDL was no longer a quantification of 
the load necessary to attain water quality standards. As explained in 
the preambles to both the proposed and final rules, the purpose of the 
TMDL is to attain and maintain water quality standards, and the purpose 
of the wasteload and load allocations is to identify the loadings 
needed to attain and maintain these standards. EPA agrees there should 
be no confusion as to this requirement, and thus is making this change 
to the final rule.
    Second, EPA is changing the word ``represent'' to ``result in'' in 
proposed Sec. 130.34(a). EPA made this change based on concerns 
expressed in comments that loadings or loading reductions do not 
represent water quality standards but rather result in the attaining 
and maintaining of water quality standards. EPA agrees with the 
commenters that the words ``represent'' is imprecise.
    Third, EPA is not promulgating the language of proposed 
Sec. 130.34(b) that recognized that both the pollutant load and load 
reductions may be expressed as other than a daily value as appropriate 
to the characteristics of the waterbody and pollutant. This language 
allowed TMDLs to be expressed as monthly, seasonal, and annual averages 
as appropriate to the characteristics of the waterbody. EPA has decided 
not to include this provision in the final rule because EPA is 
concerned that it could be used to justify some TMDLs that do not in 
fact attain and maintain water quality standards in all seasons and for 
all flows. Instead, EPA is retaining a sentence it promulgated in the 
1985 rule in the definition of a TMDL that speaks to how a TMDL can be 
expressed. That sentence says that TMDLs may be expressed ``* * * in 
terms of either mass per time, toxicity, or other appropriate 
measure.'' EPA continues to believe that in some situations, it is 
reasonable to authorize TMDLs that are expressed in other than daily 
terms. As discussed in the August 1999 preamble, to conclude otherwise 
could frustrate the Congressional goal of establishing TMDLs at a level 
necessary to implement the applicable water quality standards. EPA 
disagrees with the comments asserting that only daily loads are 
permissible under the CWA. (64 FR 46031, August 23, 1999). The CWA does 
not define a TMDL. Nor does the Act specify how a TMDL may or should be 
expressed. Consequently, the Act does not mandate that a TMDL be 
expressed as a daily load, and does not require EPA to disapprove TMDLs 
expressed as daily loads. Rather, this matter is left to EPA's 
discretion because where a statute is silent on a specific issue, EPA's 
interpretive regulations are entitled to controlling weight. EPA's 
previous regulations at Sec. 130.2(i) and current regulations at 
Sec. 130.33(b)(5) expressly provide that a TMDL may be expressed in 
terms of either mass per time, toxicity, or other appropriate measure. 
Furthermore, EPA interprets its regulations to permit TMDLs to be 
expressed in terms other than daily loads as long as compliance with 
the applicable water quality standard is assured.
    EPA acknowledges the concern that use of other than daily loads 
could allow for excessive loadings over short time periods that, when 
averaged with periods of no loading, might satisfy the wasteload and 
load allocations, but would cause the water quality standard to be 
exceeded. However, EPA continues to believe that there are situations 
where other than a daily load is appropriate to ensure that water 
quality standards are attained and maintained. Where other than a daily 
load is necessary to address relevant factors, such as the variability 
of nonpoint sources, the averaging period of the water quality standard 
or the physical size and hydraulic nature of the waterbody, EPA expects 
that the State, Territory, or authorized Tribe will use the most 
appropriate expression of the load amenable to those characteristics. 
To help ensure that this flexibility is appropriately used, EPA, in its 
review of the TMDL, will look for an explanation by the State, 
Territory, or authorized Tribe as to the reasons why it is appropriate 
to express the TMDL in terms other than a daily load. The TMDL 
documentation will need to show that the resulting allocations are 
sufficient to eliminate the impairment, addressing all aspects of the 
water quality standard and the adverse effects of the pollutant in 
question. For example, the documentation would discuss, where 
appropriate, the difference between acute short-term impacts during 
storm flows and long-term effects of the pollutants in the

[[Page 43630]]

system over time, or the difference between short-term changes in water 
column concentrations and the long-term impacts of pollutant 
concentrations in sediments and biota. If a TMDL for a particular 
pollutant contained an expression other than a daily load, and the 
situation indicated that expressing the TMDL as a daily load is a 
necessity to attain and maintain water quality standards, EPA would 
disapprove the TMDL as insufficient to attain and maintain water 
quality standards.
    EPA does not interpret the final rule to require that TMDLs always 
be expressed as the load or load reduction of the pollutant causing the 
impairment. The final rule at Sec. 130.32(b)(5) preserves the 
flexibility to express the TMDL as a quantitative expression of a 
modification to a characteristic of the waterbody that results in a 
certain load or load reduction. In these situations, the TMDL is 
required to identify the pollutant load present in the waterbody 
(Sec. 130.32(b)(3)) and the deviation from that load necessary to 
attain and maintain water quality standards (Sec. 130.32(b)(4)). 
However, the allocations and implementation plan monitoring measures 
could be expressed in terms of a surrogate measure of the necessary 
load reduction. In these situations, the relationship between a 
surrogate measure and the pollutant load should be clearly described in 
the TMDL documentation. For example, a TMDL that addresses exceedances 
of temperature criteria because of a denuded riparian corridor is 
ultimately expressed in terms of heat units, e.g., BTU or calories per 
day, over time. However, the environmental measure that might be most 
appropriate for implementation plan monitoring purposes is temperature 
(degrees); for implementation plan management measures it might be 
miles or acres of riparian zone restored. These surrogate measures must 
correlate to their ability to reflect a reduction of heat load and 
decrease in water temperature. In this example, the TMDL documentation 
would calculate the total heat load that achieves either the 
temperature water quality standard, or a balanced, indigenous 
population of fish, shellfish and wildlife, whichever standard is 
applicable for the waterbody. The TMDL would then show how that heat 
load would be achieved by a quantified increase in forestation (the 
appropriate surrogate measure) designed to increase shading of the 
waterbody. In this way, the environmental measures of ambient 
temperature and riparian characteristics are quantitatively related to 
the thermal load expressed in the TMDL.
    Other comments expressed doubt that TMDLs could quantify the 
relationships between pollutant loads and expressions of aquatic or 
riparian habitat health, and biological, channel, geomorphological, or 
other appropriate conditions in water quality standards. EPA recognizes 
there are many causes of elevated pollutants in surface waterbodies. 
Some situations do not involve a discharge of pollutants, but 
nevertheless affect the amount of a pollutant load in the waterbody. In 
these instances, the final rule language requires the State, Territory, 
or authorized Tribe to develop a TMDL for whatever pollutant (including 
heat) that causes the waterbody to exceed the water quality standard. 
For example, where the impairment of an aquatic habitat is caused by 
excessive sediment as a result of landslides or bank erosion, EPA 
expects that the TMDL would be established for the pollutant sediment. 
Another example is where an aquatic habitat is stressed by excessive 
temperature as a result of a denuded riparian habitat. In this 
instance, EPA expects the TMDL would be established for the pollutant 
heat. EPA has developed guidance on how to address impairments due to 
sediment, which was the most frequent cause of impairment mentioned in 
the States' 1998 section 303(d) lists. See ``Protocol for Developing 
Sediment TMDLs,'' EPA 841-B-99-004, October 1999.
    EPA declines changing the proposal to provide in the final rule 
that TMDLs need address only impairments of numeric criteria in water 
quality standards. EPA's long standing policy has been that narrative 
criteria apply to all designated uses at all flows and are a necessary 
component of State water quality standards. See section 303(c)(2)(A) of 
the CWA; and the Water Quality Standards Handbook, EPA-823-B-94-005a, 
August 1994, page 3-24. Narrative criteria descriptively accomplish 
what numeric criteria account for quantitatively. Narrative criteria 
are descriptions of the conditions of the waterbody necessary to attain 
and maintain its designated use, while numeric criteria are values 
expressed as levels, concentrations, toxicity units or other measures 
which quantitatively define the permissible level of protection. Thus, 
narrative water quality criteria establish the basic foundation for 
attainment of designated uses while numeric water quality criteria 
provide a specific quantitative translation of the necessary level of 
protection. In short, numeric criteria are specific, quantified 
expressions of the narrative criteria. States, Territories and 
authorized Tribes adopt translator procedures by which to derive a 
quantified numeric interpretation of the narrative criterion. Such 
procedures must be scientifically defensible, and are also subject to 
EPA review and approval. EPA recognizes that narrative water quality 
criteria are not expressed as numbers and thus are not directly 
amenable to TMDL calculations. However, as expressed in EPA guidance, a 
State, Territory, authorized Tribe, or EPA can quantify narrative 
criteria for use on regulatory actions. See ``Technical Support 
Document for Water Quality-based Toxics Control,'' EPA/505/2-90/001, 
March 1991; Sec. 122.44(d)(1); ``Guidance for Water-Quality-based 
Decisions: The TMDL Process,'' EPA 440-4-91-001, 1991; Sec. 132 
Appendix F Procedure 3 [which speaks to ``values'' which are that 
rule's equivalent to quantifications of narrative criteria]. Therefore, 
EPA continues to believe that TMDLs can be calculated based on 
narrative criteria where those criteria can be quantified.
    CWA section 303 directs States, with oversight by EPA, to adopt 
water quality standards to protect the public health and welfare, 
enhance the quality of water and serve the purposes of the CWA. Under 
section 303, States, Territories, and authorized Tribes are required to 
develop water quality standards for waters of the United States within 
the State. Section 303(c) provides that water quality standards shall 
include the designated use or uses to be made of the water. EPA 
regulations implementing section 303(c) are published at Part 131. 
Under these rules, the minimum elements that must be included in a 
State's water quality standards include use designations for all water 
bodies in the State, water quality criteria sufficient to protect those 
use designations, and an antidegradation policy. Section 131.10 
requires States and authorized Tribes to adopt appropriate uses to be 
achieved and protected. In no case can they adopt waste transport or 
assimilation as a use for any waters. EPA has in the past, and may in 
the future, promulgate designated uses for State waters where such 
action is necessary to meet the requirements of the CWA and the 
implementing federal regulations.
    EPA's policy is that, because designated or existing uses of a 
waterbody are part of the water quality standards, they are also an 
appropriate basis for determining an impairment of that waterbody. All 
of the water quality protections established by the CWA follow from the 
waterbody's use--established, protected and maintained

[[Page 43631]]

under the authorities of section 303(c) of the CWA. Thus, designated 
uses establish the fundamental basis for determining whether the water 
quality standards of a waterbody are attained.
    In certain circumstances it is possible that water quality criteria 
can be met, and the designated uses still not achieved. For example, 
factors such as food web structure, the concentration of dissolved 
organic carbon in the ambient water, and accumulations in the sediment 
may effect uptake of mercury into fish flesh on a site specific basis. 
In these circumstances, EPA recommends States, Territories, and 
authorized Tribes translate the applicable narrative criteria on a site 
specific basis, or adopt site specific numeric criteria, to protect 
designated uses. However, ultimately, the final determination of 
whether the water quality standard is attained is made by determining 
the attainment of the designated use.

T. What Actions Must EPA Take on TMDLs That are Submitted for Review? 
(Sec. 130.34)

    What did EPA propose? In proposed Sec. 130.35, EPA included several 
minor changes to its current regulatory submission and approval 
requirements for TMDLs to clarify how the approval process would work. 
The proposal provided that EPA would only approve a TMDL submission 
that included all required minimum elements. The proposal would have 
continued the requirements of the current regulations that when EPA 
establishes a TMDL, it would send it to the State, Territory, or 
authorized Tribe for incorporation into the water quality management 
plan. EPA also proposed to continue the requirements of the current 
regulations that, when EPA establishes a TMDL, it requests public 
comment on the TMDL for at least 30 days following its establishment. 
The proposal also would have added new requirements regarding how EPA 
would provide public notice and revise TMDLs it establishes based on 
the public comment it receives.
    What comments did EPA receive? EPA received comments regarding the 
criteria it will use to review TMDLs. Some comments suggested that 
EPA's review should focus only on whether the TMDL included all 
required elements, and that EPA must approve any TMDL received if it 
contained all elements. In contrast, other comments suggested that EPA 
should review the elements for their consistency with the substantive 
requirements of this subpart, including whether the TMDL is set at a 
level sufficient to attain and maintain water quality standards. 
Further comments again expressed belief that the CWA only allows EPA to 
review the total load calculated for a waterbody and nothing else. 
(Today's preamble discusses this issue in section II.A.1.e.)
    EPA also received comments about the timing of its actions. Many 
comments requested an automatic approval of TMDLs if EPA does not act 
to approve or disapprove the TMDLs within 30 days, or fails to send the 
State, Territory, or authorized Tribe comments on the TMDL. These 
comments expressed concern that EPA will not be able to take timely 
action on all TMDLs and that the new rules will make EPA's review take 
even longer.
    EPA also received comments about its process for disapproving and 
establishing TMDLs. Several comments expressed concern that the 
proposal did not commit EPA to take action as required by the CWA. 
These comments suggested that EPA use the word ``must'' or ``shall'' 
where ever the section spoke to statutory obligations. Many comments 
requested that EPA provide an appeal process, public hearing, or 
consultation with States, Territories and authorized Tribes on 
disapproved TMDLs. Other comments requested that EPA explain to States, 
Territories and authorized Tribes and the public why it disapproved any 
TMDL. These comments generally expressed concern that EPA might make 
arbitrary decisions to disapprove TMDLs. Some comments expressed the 
view that EPA must follow the same public notice process as States, 
Territories and authorized Tribes when EPA establishes a TMDL.
    EPA also received comments about the adoption of TMDLs into water 
quality management plans. Some comments requested that EPA establish a 
deadline by which States, Territories, and authorized Tribes must adopt 
TMDLs into their plans. Other comments expressed a belief that a TMDL 
is not effective until after a State, Territory, or authorized Tribe 
adopts it into its water quality management plan.
    What is EPA promulgating today? Based on its analysis of the many 
comments received, EPA has revised this section, now numbered as 
Sec. 130.34. First, EPA is deleting proposed paragraph Sec. 130.35(a) 
because it was duplicative of the requirements of proposed paragraph 
Sec. 130.35(b). Section Sec. 130.35(a) would have required that EPA 
approve TMDLs that included the elements identified in proposed 
Sec. 130.33(b), whereas proposed Sec. 130.35(b) would have required 
that EPA approve TMDLs that met the requirements of proposed 
Secs. 130.32, 130.33, and 130.34, i.e., established in accordance with 
the schedule, including the elements required by Sec. 130.33(b) and 
appropriately expressed. EPA agrees with commenters that the review 
criterion in proposed Sec. 130.35(a) was included within proposed 
Sec. 130.35(b). Therefore, EPA is not including the language for 
proposed Sec. 130.35(a) in the final rule.
    The final regulations at Sec. 130.34(a) provide that EPA will 
approve TMDLs if they are established for the appropriate waterbody/
pollutant combination as required by Sec. 130.31, include all elements 
prescribed by Sec. 130.32, and are expressed in accordance with 
Sec. 130.33. EPA will disapprove any TMDL submitted by a State, 
Territory, or authorized Tribe that does not include all elements of 
Sec. 130.32(b) or fulfill the substantive requirements of Secs. 130.31, 
130.32, and 130.33. EPA will work with States, Territories, and 
authorized Tribes, including providing comments on TMDLs submitted to 
it in draft form, to help ensure that the TMDLs that EPA receives are 
approvable. EPA considers all elements of Sec. 130.32(b) and the 
substantive requirements of Secs. 130.31, 130.32, and 130.33 as 
necessary for determining whether a TMDL, when implemented, will attain 
and maintain water quality standards.
    EPA declines to provide that TMDLs shall be deemed automatically 
fully or conditionally approved at the end of the 30-day review period 
if EPA has not acted. EPA acknowledges commenters' concerns regarding 
the timeliness of EPA's TMDL approval actions. However, an automatic 
full or conditional approval of a State's, Territory's or authorized 
Tribe's TMDL submission upon expiration of the 30-day review period is 
not consistent with section 303 of the CWA. Section 303(d) requires EPA 
to approve or disapprove a submitted TMDL. EPA has the responsibility 
to determine that submitted TMDLs fulfill the requirements of the CWA 
and these implementing regulations. EPA declines to adopt an approach 
which would result in automatic approval actions when EPA has not 
evaluated the sufficiency of the TMDL with respect to the requirements 
of section 303(d). As previously discussed, EPA expects to share 
comments and information with States, Territories and authorized Tribes 
on draft TMDLs submitted to EPA for informal review. EPA believes that 
such information sharing will help assure approvable TMDLs and will 
enable EPA to complete its review within the 30-day statutory time 
frame.
    As requested by comments, EPA is clarifying what actions EPA is 
obligated to take in its decisions. Therefore, the

[[Page 43632]]

final rule uses the word ``must'' to represent EPA's statutory 
obligations to either approve or disapprove and establish a TMDL. The 
final rule also uses the word ``must'' with regards to EPA's public 
notice requirements when EPA disapproves and establishes a TMDL.
    EPA declines to establish in the final rule an appeal or 
consultation process for States, Territories, and authorized Tribes 
when EPA disapproves their TMDLs. Because section 303(d) only allows 
EPA 30 days to establish a replacement TMDL after EPA disapproves one, 
EPA does not have sufficient time to allow for an appeal or 
consultation process. Also, the 30-day period for EPA to issue an order 
establishing a TMDL and the minimum 30-day public comment period on the 
TMDL allows time during which the State and EPA can consult on the new 
TMDL. If during that time, the State decided to adopt and EPA approved 
a TMDL meeting EPA's objectives, EPA would withdraw its TMDL. As 
previously discussed, EPA expects that sharing information with States, 
Territories, and authorized Tribes on TMDLs being drafted will help EPA 
and States, Territories, and authorized Tribes resolve differences over 
TMDLs before they are submitted.
    EPA agrees that it needs to describe in the administrative record 
of its TMDL disapproval decisions the reasons for the disapproval and 
make that information available to States, Territories, authorized 
Tribes, and interested parties. EPA's public notice requirements at 
Part 25 describe the process by which EPA generally makes information 
available and receives public comment. As described later in the 
preamble, EPA patterned the TMDL public notice requirements on its own 
Part 25 requirements. EPA also declines to establish a deadline by 
which States, Territories, and authorized Tribes must adopt TMDLs into 
their water quality management plans. The CWA does not provide for or 
require such a deadline. EPA does not believe it is necessary to 
require adoption of TMDLs in the State's, Territory's or authorized 
Tribe's plan on a specified schedule once EPA approves or establishes 
it. A TMDL may be used as a basis for NPDES permits and other 
implementation actions once EPA approves or establishes it and before 
it is incorporated into the Water Quality Management Plan. States, 
Territories and authorized Tribes have different legal requirements for 
revising their Plans to incorporate TMDLs. EPA believes there is no 
compelling reason to require States, Territories, and authorized Tribes 
to revise their individual requirements solely to assure incorporation 
of all TMDLs into Water Quality Management Plans by a certain 
federally-prescribed date.
    EPA is also adding Sec. 130.34(b) and (c) to clarify how EPA will 
provide reasonable assurance when EPA establishes a TMDL. EPA will use 
its authority to condition CWA grants to the fullest extent practicable 
and in a manner consistent with the effective operation of clean water 
programs. For example, EPA may condition section 319 grants such that 
the funds can only be used to implement management measures in 
watersheds where EPA has established a TMDL that includes load 
reductions for nonpoint sources. Similarly, EPA may condition section 
106 grants such that the funds for monitoring can only be used to 
support the monitoring specified in TMDL implementation plans. EPA may 
also use its voluntary, incentive-based programs to ensure that 
management measures are funded and implemented. EPA believes this 
authority to condition grants will generally be the sole or primary 
basis by which it will demonstrate reasonable assurance for the 
implementation of load allocations. EPA will also encourage States, 
Territories, and authorized Tribes to use their own statutory and 
regulatory authorities. EPA cannot, however, require States, 
Territories or authorized Tribes to use their statutory and regulatory 
authorities.
    Where necessary, EPA will make use of its other statutory and 
regulatory authorities to provide reasonable assurance. EPA recognizes 
that its CWA regulatory authority is primarily limited to the NPDES 
permit program for point sources. In some cases, EPA may use 
authorities under section 504 of the CWA to address an ``imminent and 
substantial endangerment to human health or welfare.''

U. How Will EPA Assure That TMDLs Are Established? (Sec. 130.35)

    What did EPA propose? EPA proposed in Sec. 130.36 to codify its 
authority to establish TMDLs if the State, Territory, or authorized 
Tribe so requests, or if EPA determines that a State, Territory, or 
authorized Tribe has not or is not likely to establish TMDLs in 
accordance with their schedules, or if EPA determines it should 
establish TMDLs for interstate or boundary waterbodies. EPA made this 
proposal for a number of reasons. EPA explained that it may be 
necessary for EPA to establish TMDLs if interstate or international 
issues and coordination needs require EPA to assume a leadership role. 
64 FR 46037, August 23, 1999.
    EPA explained in the preamble that it anticipates that a decision 
to step in and establish TMDLs would be ``rare and based on case 
specific decisions.'' Finally, EPA explained that it may have to 
exercise its authority to establish TMDLs where the State, Territory, 
or authorized Tribe requests this support from EPA. As discussed in the 
preamble, EPA recognizes that this authority to establish TMDLs absent 
a prior disapproval is not expressly stated in section 303(d). However, 
EPA explained that such authority is clearly implied in the CWA, is a 
reasonable interpretation of the Act, has been required of EPA by the 
courts, and is necessary to accomplish the purposes of the Act. 64 FR 
46037, August 23, 1999.
    What comments did EPA receive? EPA received comments about the 
conditions under which EPA proposed to establish TMDLs. Some comments 
expressed a belief that EPA must step in when a State, Territory, or 
authorized Tribe is likely not to or does not establish TMDLs according 
to its schedule. Others were concerned about the phrase ``likely not 
to'' and suggested that EPA establish TMDLs only after a State, 
Territory, or authorized Tribe fails to do so. Further comments 
expressed the belief that EPA has no authority to establish TMDLs 
outside of a disapproval except when a State requests EPA to do so.
    EPA received comments about the conditions under which EPA would 
establish a TMDL for interstate waterbodies. Some comments supported 
the proposal. Others believed that EPA must establish interstate TMDLs 
on behalf of the States. Further comments expressed the view that this 
authority is limited to situations where EPA determines that States, 
Territories and authorized Tribes are not making progress in 
establishing TMDLs. More comments expressed the view that this 
authority is limited to situations where States, Territories and 
authorized Tribes or interstate commissions ask EPA to establish TMDLs. 
A few comments rejected EPA's suggested option to require States, 
Territories and authorized Tribes jointly to develop interstate TMDLs. 
Others suggested that EPA's role is to coordinate with States, 
Territories and authorized Tribes on interstate TMDLs and not establish 
them for States, Territories and authorized Tribes.
    What is EPA promulgating today? In Sec. 130.36 of the proposal, EPA 
proposed to codify its authority to establish TMDLs for waterbodies on 
Part 1 of a list under certain circumstances,

[[Page 43633]]

including if EPA determined that a State, Territory, or authorized 
Tribe had not or was not likely to establish TMDLs consistent with its 
schedule. In response to comments and to better ensure that TMDLs will 
be established, EPA has added a new Sec. 130.35 to the final rule which 
codifies steps EPA will take to implement its authority under section 
303(d) to assure that TMDLs are established for listed waters. In 
addition to ``working with'' States, Territories, and authorized Tribes 
to assure establishment in accordance with approved schedules, EPA will 
ensure that TMDLs are established for States, Territories, and 
authorized Tribes if they have not made ``substantial progress'' in 
establishing TMDLs in accordance with their ``approved schedule.'' A 
discussion of what EPA means by ``substantial progress'' and a more 
detailed discussion of EPA's schedule for acting if States, 
Territories, and authorized Tribes fail to demonstrate ``substantial 
progress'' appears below.
    As requested by comments, EPA is clarifying that it is obligated to 
ensure that States, Territories, and authorized Tribes establish TMDLs 
in accordance with their approved schedules. EPA believes the 
requirements it is placing on itself to act in Sec. 130.35 are both 
consistent with CWA section 303(d) as it has been interpreted by a 
number of courts and a logical outgrowth of the proposal. They are a 
logical outgrowth in that, in the proposal, EPA clearly noticed its 
intent to exercise its authority under section 303(d) to step in and 
establish TMDLs when it determines a State was not likely to do so. In 
the final rule, EPA is simply clarifying and expanding upon that 
concept and stating under what specific conditions and upon what 
schedule EPA will do that. EPA's decision to codify the circumstances 
under which it will ensure that TMDLs are established is also 
consistent with the decisions of a number of courts which have 
interpreted CWA section 303(d) as placing upon EPA a duty to establish 
TMDLs where a State, Territory, or authorized Tribe has failed to do 
so, or in the words of the courts, where a State has made a 
``constructive submission'' of no TMDLs.
    EPA is also identifying two ways by which it will assure that all 
TMDLs are established as planned for in the schedule for TMDLs. First, 
EPA must work with the State, Territory, or authorized Tribe in 
establishing TMDLs. EPA may do this by providing technical or financial 
assistance consistent with EPA's abilities and resources, or by 
establishing certain TMDLs upon the request of the State, Territory, or 
authorized Tribe. Where a State, Territory, or authorized Tribe has not 
made substantial progress on establishing a TMDL in accordance with its 
approved schedule, EPA must ensure that the TMDL is established. EPA 
does not expect to invoke this authority frequently. Based on its 
experience to date under court-ordered schedules, EPA believes that the 
States, Territories, and authorized Tribes will be able to establish 
most of their TMDLs according to the dates in their schedules.
    Today's final rule also explains how EPA will determine if a State, 
Territory, or authorized Tribe has made substantial progress in 
establishing a TMDL. Under Sec. 130.28(c), States, Territories, and 
authorized Tribes will specify which TMDLs they intend to establish in 
each one year period. If a State, Territory, or authorized Tribe has 
not established the TMDL by the end of the one year period within which 
the TMDL was scheduled to be established, it has not made ``substantial 
progress'' as described in today's rule. At this point, EPA must ensure 
that the TMDL is established within two years. In a case where EPA 
develops a TMDL, the Agency expects to publish the TMDL within 2 years. 
In rare instances, where there is a compelling need for additional 
time, the Administrator may extend the 2 year period by up to an 
additional 2 years. The Administrator must publish a description of a 
decision to provide an extension in the Federal Register. If the State, 
Territory, or authorized Tribe establishes the ``missed'' TMDL before 
EPA establishes it pursuant to this section, EPA must review and either 
approve or disapprove that TMDL pursuant to section 303(d), and if 
approved at that time its obligation to establish the TMDL expires. EPA 
will also look at the stage of development of a TMDL in comparison to 
the schedule in determining if a State, Territory, or authorized Tribe 
is making substantial progress. Where the State, Territory, or 
authorized Tribe is close to completing the TMDL at the time called for 
by the schedule, EPA will interpret this as substantial progress.
    As discussed in the August 1999 preamble, EPA has the authority to 
establish TMDLs even when it has not disapproved a State, Territorial, 
or authorized Tribal submission. 64 FR 46037-46038, August 23, 1999. 
EPA recognizes the merit, in some instances, for it to take the lead in 
establishing TMDLs for interstate and boundary waterbodies and expects 
to exercise this authority primarily for interstate waterbodies. For 
this reason, EPA is including in the final rule a provision allowing 
EPA the discretion to establish TMDLs for interstate or boundary 
waters. Boundary waters are those rivers, streams and lakes which form 
part of the boundary between States, Territories and Indian Country. 
These waters present special problems because, in many instances, the 
waterbody is governed by two or more potentially differing sets of 
water quality standards. Similar problems may be present for interstate 
water which--rather than forming a jurisdictional boundary--flow out of 
one jurisdiction and into another. In exercising this authority, EPA 
will encourage States, Territories and authorized Tribes to take the 
lead in developing TMDLs for such waterbodies because EPA interprets 
the CWA as giving States, Territories and authorized Tribes the lead 
responsibility for doing so. EPA also strongly encourages States, 
Territories and authorized Tribes to work with interstate river basin 
and other commissions, where appropriate, when establishing TMDLs for 
interstate or boundary waters. These commissions are uniquely 
positioned, by virtue of their multi-state membership and technical 
expertise, to assist EPA and the States in establishing TMDLs for such 
waters.
    EPA anticipates at least two instances in which it might need to 
exercise its authority to establish interstate and boundary water 
TMDLs. The first is when the States, Territories and authorized Tribes 
have not made substantial progress in establishing interstate and 
boundary water TMDLs according to their schedules. The second is where 
individual adjacent State schedules are so different with respect to 
interstate or boundary waters that they may defeat the ability of the 
States, Territories and authorized Tribes to work together to establish 
an interstate or boundary water TMDL. EPA believes the final rule 
language should allow EPA the flexibility to establish TMDLs for 
interstate and boundary waters under such circumstances. Finally, EPA 
is not including in the final rule a requirement that States, 
Territories and authorized Tribes work together jointly to establish 
TMDLs on interstate waters. Instead, EPA will continue to serve as a 
facilitator to help States, Territories and authorized Tribes establish 
interstate TMDLs, and EPA will use its authority when necessary to 
ensure that interstate TMDLs are established.
    EPA is also adding a statement at Sec. 130.35(b)(2) that EPA may 
establish TMDLs for waterbodies to implement Federal water quality 
standards. As previously discussed in today's

[[Page 43634]]

preamble, EPA recognizes that there are some impaired waterbodies 
outside the jurisdiction of States, Territories, and authorized Tribes. 
Where EPA has established Federal water quality standards for these 
waterbodies, such as waterbodies located on tribal lands where the 
Tribe has yet to be authorized under section 303, EPA believes it has 
the authority to also establish TMDLs for the reasons given above.

V. What Public Participation Requirements Apply to the Lists and TMDLs? 
(Sec. 130.36)

    What did EPA propose? EPA proposed a number of specific 
requirements for public participation. EPA proposed to require that 
States, Territories and authorized Tribes provide the public with at 
least 30 days to review and comment on all aspects of the list, the 
priority ranking, the schedule for developing TMDLs, and the TMDLs 
themselves prior to their submission to EPA. EPA also proposed that, at 
the time States, Territories, and authorized Tribes submit their list, 
schedule or TMDLs to EPA, they provide EPA with a written summary of 
any public comments received during the public comment period and their 
response to such comments. In addition, EPA proposed to require States, 
Territories, and authorized Tribes to send, at the time of public 
notice, copies of lists, priority rankings, TMDL schedules and TMDLs to 
the U.S. Fish and Wildlife Service and the National Marine Fisheries 
Service (the Services), where appropriate (e.g., coastal areas). The 
proposal also provided that, if requested, EPA would send this 
information to the Services on behalf of the State, Territory, or 
authorized Tribe.
    As proposed, the rule also encouraged States, Territories, and 
authorized Tribes to establish processes with both Services to provide 
for the early identification and resolution of threatened and 
endangered species issues as they may relate to lists of impaired 
waterbodies, priority rankings, schedules, and TMDLs. The proposal also 
would have required States, Territories, and authorized Tribes to 
consider any comments received from the Services prior to the 
submission of their lists of impaired or threatened waterbodies, 
priority rankings, schedules, and TMDLs to EPA. EPA proposed these 
provisions to help ensure timely input from the wildlife agencies as 
lists and TMDLs are being developed.
    What comments did EPA receive? EPA received a number of comments 
specific to the public participation process. Most comments supported 
the inclusion of public participation requirements. Many comments, 
however, stated that a 30-day period was too short. A number of 
comments suggested that the public comment period should be 60 days or 
longer to facilitate better understanding of the complex issues related 
to lists and TMDLs. Some commenters recommended specific requirements 
for the purpose of ensuring notice to interested parties and 
incorporation of their comments on listing and TMDL decisions. Most 
comments which addressed this issue recommended that EPA pattern the 
public notice requirement after those for NPDES permits. Specifically, 
commenters asked that States, Territories and authorized Tribes be 
required to establish and maintain mailing lists. Other commenters 
recommended that EPA be subject to the same public participation 
requirements as proposed for States, Territories, and authorized 
Tribes. Further comments suggested that any action to remove a 
waterbody from a section 303(d) list be subject to the same public 
participation process as the listing of a waterbody. Many comments 
objected to the detailed requirements governing how States, Territories 
and authorized Tribes should address comments they receive and the 
amount of information about those comments, including responses, they 
should supply to EPA. Commenters also expressed concern that the 
proposal gave special notice consideration to the Services, and thus 
seemed to transfer EPA's obligations under the Endangered Species Act 
to States, Territories, and authorized Tribes.
    What is EPA promulgating today? After carefully considering the 
comments received on the public participation requirements, EPA is 
today promulgating the requirements as proposed with a few changes. EPA 
is making conforming changes throughout the section to reflect the 
fact, as discussed earlier, that the list of impaired waterbodies 
includes a prioritized schedule for establishing TMDLs.
    The final rule maintains the requirement for a minimum 30-day 
comment period on lists and TMDLs. EPA recognizes that decisions on 
lists and TMDLs can sometimes benefit from a significant amount of 
technical information and analysis related to decisions on lists, 
rankings, schedules, and TMDLs. States, Territories and authorized 
Tribes may in such circumstances find a need to allow for longer than 
30-day comment periods on lists and TMDLs. However, the rule as 
proposed and promulgated today specifies 30 days as the minimum comment 
period. In some instances, particularly where the issues and analyses 
related to a TMDL are not complex, States, Territories, and authorized 
Tribes should find that a 30-day comment period is adequate. The final 
rule, however, gives States, Territories, and authorized Tribes the 
flexibility to increase their comment periods as appropriate.
    EPA is also adding language in the final rule also to encourage 
States, Territories, and authorized Tribes to notify directly those 
parties who submit a written request for notification. EPA received a 
number of comments suggesting that direct notification be a requirement 
in the same way that authorized State NPDES programs are required to 
directly notify parties that request such notice. EPA does not believe 
that establishment of TMDLs is entirely comparable to issuance of an 
NPDES permit for notice purposes (e.g. the number of potentially 
affected parties may be much larger for a TMDL). EPA however, is 
including in the final regulation a recommendation that States, 
Territories and authorized Tribes provide direct notification to 
parties that request it.
    EPA is not including in this section of the final rule public 
participation requirements for EPA. Today's final rule at Sec. 130.34 
includes public participation requirements for EPA regarding 
disapproval and establishment of TMDLs. In addition, EPA's rules at 
Part 25 already provide general public participation guidance and 
requirements for EPA, which include notice to parties that request 
notice, publication of notice in a newspaper of general circulation, 
and response to significant comments.
    EPA recognizes the importance of public participation on all 
aspects of section 303(d) decisions, including decisions to remove a 
waterbody/pollutant combination from the section 303(d) list. EPA has 
added provisions in the final rule at Sec. 130.29(a) to require that 
all actions to add or remove waterbodies from the list follow the 
public participation requirements. In this way, the public is kept 
informed as to the nature and reasons for any changes to the section 
303(d) list.
    EPA agrees with the comments which suggested that the proposal was 
too detailed regarding how States, Territories and authorized Tribes 
should respond to comments. As suggested by some comments, EPA has 
reviewed the rules pertaining to NPDES permitting and EPA's rules at 
Part 25 and has simplified the response to comments requirements for 
the final rule. The final

[[Page 43635]]

rule now requires a response to ``all significant comments'' instead of 
``all comments,'' as proposed. The final rule no longer includes 
specific requirements as to what is to be included in the response to 
comments document. EPA believes this change will allow States, 
Territories, and authorized Tribes the flexibility they need when 
addressing public comments. EPA's public participation rules for 
rulemaking and permitting at Part 25 require EPA to respond to 
significant comments and to include at a minimum, a summary of public 
views, significant comments, criticisms and suggestions, and set forth 
the Agency's specific responses in terms of modification of the 
proposed action or an explanation for rejection of proposals made by 
the public (Sec. 25.8). EPA is persuaded by the comments that States, 
Territories and authorized Tribes should not be held to a higher 
standard than EPA. Pursuant to the final rule, States, Territories and 
authorized Tribes need only consider significant comments and indicate 
how they were addressed in the final action or why they were not 
addressed.
    The rule recognizes that the Fish and Wildlife Service and the 
National Marine Fisheries Service have an interest in a State's, 
Territory's or authorized Tribe's list and TMDLs. By including the 
provisions of Sec. 130.36(c), EPA is not giving the Services greater 
opportunity to receive information or to comment than is afforded 
anyone else. Nor is EPA attempting to transfer its obligations under 
the Endangered Species Act to States, Territories or authorized Tribes. 
The provisions of Sec. 130.36(c)(1) require States, Territories, and 
authorized Tribes to provide the Services with copies of lists, 
including prioritized schedules and TMDLs. However, under the public 
participation requirements of Sec. 130.36(a), any interested party may 
also request similar access to this information by making a written 
request to the State for direct notification. EPA is promulgating 
Sec. 130.36(c)(1) because the Services have expressed to EPA an 
interest in reviewing section 303(d) lists and TMDLs. In recognition of 
the potential burdens on the States which such information sharing 
might impose, EPA agreed it would undertake this information sharing 
responsibility with the Services if requested by a State, Territory, or 
authorized Tribe.
    The provisions of Sec. 130.36(c)(2) encourage, but do not require, 
States, Territories, and authorized Tribes to engage the Services in a 
dialogue related to Endangered Species Act concerns. EPA believes that 
it can reduce the number of times it may need to disapprove a list or 
TMDL based on endangered species concerns if the States, Territories, 
and authorized Tribes communicate with the Services early in the 
process of developing lists and TMDLs. For this reason, EPA is 
including in the final rule a recommendation that States, Territories 
and authorized Tribes establish processes with the Services that will 
provide for the early identification and resolution of their concerns 
as they relate to lists and TMDLs. States, Territories and authorized 
Tribes are not required to establish such a process, but may find it 
advantageous to do so.
    Section 130.36(c)(3) requires States, Territories, and authorized 
Tribes to consider comments from the Services and EPA in the same way 
that Sec. 130.36(b) requires States, Territories, and authorized Tribes 
to provide a response to significant comments and an explanation of how 
those comments were addressed in the final action or why they were not 
addressed. Section 130.36(c)(3) does not require States, Territories, 
and authorized Tribes to agree with or adopt comments or 
recommendations from EPA and the Services; however, it does require an 
explanation of how these comments were considered in the final 
decision. This is the standard set by Sec. 130.36(b) for all comments 
received by a State, Territory, or authorized Tribe.
    The provisions of Sec. 130.36(d) recognize that EPA will consider 
the comments of the Services when EPA reviews lists and TMDLs. EPA does 
not believe that this provision provides the Services with any greater 
access to the decision maker than other commenters. Rather, this 
provision alerts States, Territories, and authorized Tribes that EPA 
will consider the comments of the Services and how those comments were 
addressed.

W. What is the Effect of This Rule on TMDLs Established When the Rule 
is First Implemented? (Sec. 130.37)

    What did EPA propose? EPA proposed a transitional period for 
implementing the TMDL requirements of the new rule. Specifically, EPA 
proposed that it would approve any TMDL submitted to it for review 
within 12 months of the final rule's effective date if it met either 
the pre-promulgation requirements in Sec. 130.7 or the post-
promulgation requirements in Secs. 130.31, 130.32 and 130.33. EPA also 
proposed that when EPA establishes TMDLs within 12 months of the rule's 
effective date, EPA would use either the Sec. 130.7 requirements or the 
new requirements in proposed Secs. 130.31, 130.32 and 130.33. EPA 
proposed this transitional period to give States, Territories, 
authorized Tribes and EPA the security of knowing they could develop 
TMDLs prior to promulgation of the new rules without them later being 
determined inadequate as a result of the adoption of the new rule. In 
this way, States, Territories, authorized Tribes and EPA would not 
delay work towards establishing TMDLs until after the final rule was 
published. Also, EPA requested comment on whether the new TMDL 
requirements would affect the ability of States, Territories, or 
authorized Tribes to establish TMDLs on a schedule consistent with 
consent decree or settlement agreement schedules, and if so, how to 
address the issue.
    What comments did EPA receive? EPA received a number of comments 
specific to the transitional period and actions EPA should take to 
facilitate establishing TMDLs in accordance with schedules in consent 
decrees and settlement agreements. Most comments supported the 
transitional period and many supported a period longer than 12 months. 
Some comments requested that some TMDLs be developed under the current 
requirements for ``good cause.'' Two comments suggested no transitional 
period, with one suggesting that States, Territories, and authorized 
Tribes be allowed to submit implementation plans no more than six 
months after submitting the other parts of the TMDL. EPA also received 
comments suggesting that EPA must establish TMDLs using either the 
current or new rules during the transitional period, and that EPA 
should work to establish TMDLs quickly using the new rules. Finally, 
EPA received some comments suggesting that all schedules should be 
revised because of these new regulations.
    What is EPA promulgating today? After carefully considering the 
comments received on the transitional period, EPA is today promulgating 
a transition period for the new elements of TMDLs lasting 18 months 
from the date of publication of this rule in the Federal Register or 
nine months from the effective date of this rule, whichever is later. 
EPA recognizes the concerns voiced in many comments about the challenge 
of now drafting an implementation plan for a TMDL already nearing 
completion, and the benefit of including stakeholders in implementation 
decisions at the beginning of the TMDL development process in order to 
better integrate the implementation strategies with the allocation of 
loads. Most States, Territories and authorized Tribes, as

[[Page 43636]]

well as State associations, supported a transitional period of up to 18 
months. Of the comments suggesting more than 18 months, only one 
provided a reason, i.e., the average TMDL requires 24 months to 
complete. EPA does not believe States need to begin implementation 
plans at the onset of TMDL development. One comment describes the first 
18 months of TMDL development to consist of collecting data, developing 
models, and conducting the analysis. EPA believes that at least the 
first six months of this work, especially data collection and modeling, 
can be conducted before approaching stakeholders to start developing 
the implementation plan. For this reason, EPA is including a 
transitional period of 18 months in the final rule unless the rule's 
effective data is delayed, in which case the transition period will be 
9 months from the rule's effective date.
    EPA rejects the suggestion not to allow a transitional period based 
on the commenter's belief that implementation plans could be quickly 
developed, or that States, Territories, and authorized Tribes have had 
sufficient notice to begin developing these plans in anticipation of 
the new regulatory requirements. EPA does not believe that the mere 
fact that implementation plans were part of the proposal would by 
itself have caused States, Territories, or authorized Tribes reasonably 
to believe that the final rule would necessarily require submission of 
an implementation plan with the rest of the TMDL. EPA received many 
comments, some from States, Territories and authorized Tribes, 
contesting the legal authority to require States, Territories, and 
authorized Tribes to submit implementation plans as part of the TMDL. 
(This issue was discussed previously in today's preamble.) EPA believes 
these comments illustrate that many States, Territories, and authorized 
Tribes have waited to see the final rule before beginning to develop 
these plans.
    EPA also rejects the suggestion not to provide a transitional 
period but rather to defer submittal of implementation plans up to six 
months following submittal of the rest of the TMDL. As discussed in 
today's preamble, EPA considers the implementation plan to be an 
integral part of the TMDL that is reviewed by EPA under section 303(d). 
Under today's rule EPA cannot approve the TMDL if it does not contain 
all the required elements, including an implementation plan. Therefore, 
the suggestion to defer submission of such plans to a later date would 
only further delay TMDL approvals, which is what EPA is attempting to 
prevent.
    Today's rule also revises the proposed language regarding EPA's 
establishment of a TMDL during the transition. EPA proposed at 
Sec. 130.38(b) that it may establish TMDLs using either approach, i.e., 
the pre-promulgation or post-promulgation requirements. Some commenters 
misconstrued this language as a statement by EPA that it may choose not 
to establish TMDLs even if required to do so by court order or the 
statute. To eliminate confusion on this issue, EPA is using the word 
``will'' instead or ``may'' in the final regulations. It is EPA's 
intention to use the new regulations as soon as possible. However, EPA 
recognizes that it may need to establish a TMDL where a State, 
Territory, or authorized Tribe has not, and to do so, EPA may need as 
much time as a State, Territory, or authorized Tribe to develop an 
implementation plan.
    In particular instances, before the end of the transition period, 
where a schedule in a consent decree or settlement agreement would make 
it impossible to establish TMDLs with an implementation plan under the 
schedule, EPA would consider approaching the Plaintiffs to request an 
extension of the schedule so that TMDLs could be established using the 
new requirements. EPA expects that by the end of the transition period, 
States, Territories, and authorized Tribes will have established 
procedures for integrating implementation plan into TMDLs. EPA's 
expectation is that the transition period should greatly reduce the 
need for EPA to establish TMDLs pursuant to the existing consent 
decrees and settlement agreements.

X. Continuing Planning Process (Sec. 130.50)

    What did EPA propose? EPA proposed to make only minor changes to 
the continuing planning process (CPP) requirements currently found at 
Sec. 130.5. The proposal renumbered the section as Sec. 130.50 and 
revised the current regulatory requirements to clarify that States, 
Territories and authorized Tribes have discretion to go beyond the 
mandatory plan elements set out in the regulation and also include 
other processes, such as watershed-based planning and implementation. 
The proposal also makes clear that a CPP need not be a single document 
but may be a compendium of many different State, Territorial and 
authorized Tribal planning documents. Finally, the proposal made 
conforming changes to citations to sections that are renumbered by the 
proposal.
    What comments did EPA receive? EPA received a number of comments 
specific to this section. Three comments supported the proposal. One 
comment expressed concern that the proposed change required that the 
CPP be a document. A number of other comments suggested additional 
revisions to the existing CPP requirements.
    What is EPA promulgating today? Based on its analysis of the 
comments received on this section, EPA is making one change to 
Sec. 130.50(b) of the proposed rule. EPA is changing the final rule to 
recognize that the CPP need not be a single document. EPA acknowledges 
that the CPP is a process often described in numerous documents, rather 
than being a single document. EPA believes the revision in the final 
rule removes the confusion expressed over this. EPA declines to make 
the other requested changes for the reasons expressed in the Response 
to Comments Document.

Y. Water Quality Management Plans (Sec. 130.51)

    What did EPA propose? EPA proposed to make only minor changes to 
the water quality management plan requirements currently found at 
Sec. 130.6. EPA proposed to renumber the section as Sec. 130.51 and to 
revise the current regulatory requirements to clarify that updates to 
water quality management plans should incorporate approved TMDLs and 
generally have a watershed focus. In addition, EPA rewrote proposed 
Sec. 130.51(a) in plain English format.
    What comments did EPA receive? EPA received a number of comments 
specific to this section. In most instances, only one commenter 
suggested a specific revision or addition. In four instances, multiple 
commenters made the same or similar comment. Two comments supported the 
proposal. Two comments suggested that Sec. 130.51(a) retain the 
references to sections 208, 303, and 305 of the CWA that were in the 
existing rule. Two comments requested a change to or clarification of 
the part of the rule dealing with nonpoint source regulatory programs. 
Three commenters requested revisions to the existing rule language to 
clarify what a nonpoint source is. Another comment suggested that EPA 
recognize the link between the State Revolving Fund (SRF) and 
Sec. 130.51(f).
    What is EPA promulgating today? Based on its analysis of the 
comments received on this section, EPA is making three changes to 
Sec. 130.51(a) of the proposed rule. First, EPA is reinstating the 
reference to CWA section 208 and 303(e) in the sentence describing the 
initial water quality management plan. Second, EPA is reinstating the 
reference

[[Page 43637]]

to CWA section 305(b) reports in the sentence describing what the 
annual planning should include. These references were in the existing 
regulation. EPA agrees that these references describe the authority and 
context for the water quality management plan, and wishes to maintain 
continuity between the requirements for water quality management plans 
prior to and after today's final rule. Third, EPA is adding a sentence 
to Sec. 130.51(f) to recognize the link between the SRF and Water 
Quality Management Plans. This is a requirement of CWA section 603(f) 
that had not yet been incorporated into Part 130.
    EPA does not interpret the revision of Sec. 130.51(a) to require 
all States, Territories, and authorized Tribes to rewrite their initial 
water quality management plan. Again, the purpose of the revision is to 
clarify that updates to water quality management plans should 
incorporate approved TMDLs and generally have a watershed focus. Also, 
EPA does not interpret this revision to be a change in focus of the 
water quality management plan or CPP. EPA interprets the phrase ``focus 
on priority issues and geographical areas'' to mean essentially the 
same as the phrase ``shall be based upon water quality problems 
identified in the latest section 305(b) reports.'' The section 305(b) 
reports generally identify priority water quality issues in 
geographical areas.
    EPA declines to make other requested changes to the water quality 
management plan for the reasons stated below and in the Response to 
Comments document. EPA declines to require that States, Territories, 
and authorized Tribes adopt regulatory programs for nonpoint sources. 
The final rule continues the existing rule requirements that States, 
Territories, and authorized Tribes develop regulatory programs if they 
find it necessary. EPA also declines to revise Sec. 130.51(c)(4)(iii) 
to further clarify what a nonpoint source is. EPA acknowledges that 
some residual waste, agriculture and silviculture, mines, construction, 
and urban storm water activities are considered point sources and are 
subject to NPDES permits. At the same time, some are not. EPA 
interprets Sec. 130.51(c)(4) to apply only to activities that are not 
required to have an NPDES permit. Because EPA has referenced these 
sources in the context of ``nonpoint source management and control,'' 
EPA believes that it is reasonable for others to make the same 
interpretation.

Z. Petitions to EPA to Establish TMDLs (Sec. 130.65)

    What did EPA propose?  EPA proposed to codify specific requirements 
to formalize a petition process for the public to request that EPA step 
in and perform duties imposed on States, Territories and authorized 
Tribes by section 303(d) when they fail to perform these duties. This 
petition process has been available to the public under the authority 
of the Administrative Procedure Act, but has seldom been used in the 
context of section 303(d). EPA made this proposal to increase public 
awareness of this procedure for requesting EPA action.
    What comments did EPA receive? EPA received a number of comments 
specific to the petition process. Very few comments were fully 
supportive. Most comments argued that EPA should drop the provision 
entirely. Many comments expressed a concern that EPA was trying to 
impose this procedure as a mandatory first step before a party could 
bring a judicial action against EPA, and saw the petition process as an 
administrative barrier which would delay the party's right of redress. 
Other comments expressed concern that the petition process provided EPA 
a way to by-pass or undermine State authority and suggested that the 
final rule require petitioners to exhaust all State administrative 
remedies prior to petitioning EPA. Finally, other comments saw the 
petition provision as a way to exclude stakeholders from dialogue on 
TMDLs.
    What is EPA promulgating today? Based on its analysis of the many 
comments received on this section, EPA is not including the petition 
provision in the final regulations. EPA continues to believe that a 
petition process would present the advantages outlined in the proposal 
at 64 FR 46040-46041, August 23, 1999. However, this opportunity is 
already available to the public as a matter of law. See 5 U.S.C. 
section 555(b). EPA does not believe it needs to provide specific 
regulatory requirements relating to a petition process.
    EPA recognizes the concerns expressed in comments, and believes it 
has responded to these comments by not promulgating any specific 
provision for a TMDL petition. Many commenters misconstrued EPA's 
intent as creating an administrative process that either delays a 
party's right of judicial redress or excludes most stakeholders, 
including States, Territories and authorized Tribes, from a dialogue on 
TMDLs. These were not EPA's intentions. On the contrary, EPA believed 
the petition process provided a more expeditious way of resolving a 
party's concerns than the judicial process. Given the misunderstanding 
on the purpose and use of the petition process, EPA is not providing a 
specific petition process for TMDLs in the regulations. However, 
section 555(b) of the Administrative Procedure Act does allow any party 
to petition EPA to take action regarding lists and TMDLs, despite the 
absence of a specific TMDL petition process in Part 130.

AA. Water Quality Monitoring and Report (Sec. 130.10 and 130.11)

    What did EPA propose? EPA proposed three minor changes to these 
sections. First, EPA proposed to identify the current EPA quality 
assurance guidance referred to in Sec. 130.10(a). Second, EPA added 
source water assessments to the list of uses for data collected by 
State, Territorial, or authorized Tribal water quality monitoring in 
Sec. 130.10(b). Finally, EPA proposed to revise Sec. 130.11(a) to 
recommend that water quality problems identified in a section 305(b) 
report should be used in source water assessments.
    What comments did EPA receive? EPA received many comments on these 
sections. Most of the comments suggested EPA adopt regulatory 
requirements to improve monitoring. These comments called for EPA to 
define the elements of an adequate monitoring program and provide both 
incentives and penalties to ensure that States monitor all waters of 
the State. Commenters also suggested EPA improve coordination among the 
many entities that monitor water quality. Comments on the water quality 
inventory report point out that this report is a state's comprehensive 
accounting of water quality, including healthy, threatened and impaired 
waters. Some commenters cited the need to improve these reports by 
requiring States monitor all waters of the State. Other suggested 
improvements include better analysis of the costs and benefits of 
achieving the goals of the CWA. A number of commenters expressed 
concern that EPA's proposed regulation makes the section 303(d) list a 
comprehensive accounting of State water quality which is redundant with 
the section 305(b) report. Some commenters suggested the water quality 
inventory report and the section 303(d) list should be consolidated, 
while others recommended they be kept distinct.
    What is EPA promulgating today? EPA is promulgating these section 
as proposed with one change. EPA is moving the reference to the current

[[Page 43638]]

quality assurance guidance to a note. EPA made this change to 
facilitate including references to any future updates to this guidance.
    EPA declines to make other changes to these sections as suggested 
by comments. EPA did not propose any regulatory requirements for 
monitoring or reporting, and believes that it would need to propose any 
such requirements before promulgating requirements.

AB. Other Sections (Secs. 130.0, 130.1, 130.3, 130.7, 130.61, 130.62, 
130.63, and 130.64)

    What did EPA propose? EPA's August 23, 1999 recodification included 
sections of existing regulations for which EPA did not propose changes 
or request comment. These were included in the proposal to show how 
they would be reformatted in Part 130. 64 FR 46015, August 23, 1999. 
EPA explicitly identified the following sections as unchanged in the 
proposal: Secs. 130.0, 130.1, 130.60, 130.61, 130.62, 130.63, and 
130.64. EPA did propose a conforming change to Sec. 130.64 to reflect 
that the citation for a TMDL had moved from Sec. 130.7. EPA also 
proposed to delete Sec. 130.3 and 130.61(d), and replace Sec. 130.7 
with the new requirements of subpart C. EPA believed Sec. 130.3 
duplicates the definition of ``water quality standard'' found in Part 
131. EPA also believes that Sec. 130.61(d) is obsolete because it 
pertains to a one-time data submittal under section 304(l) that was 
completed almost a decade ago.
    What comments did EPA receive? EPA received no substantive comments 
on the sections that were proposed to be deleted. EPA received many 
comments on other sections, especially Sec. 130.62, and Sec. 130.63. 
Most comments did not suggest revisions to the final rule, but rather 
offered suggestions on how EPA could improve implementation of the TMDL 
program. The comments that suggested revisions were diverse and covered 
many themes. Other comments suggested specifically recognizing coastal 
nonpoint source programs, Federal land management, and the Great Lakes 
Water Quality Guidance in the regulations. Other comments offered 
suggestions on regulatory language related to improving the 
participation of indigenous people in all aspects of water quality 
planning and implementation. Finally, EPA received a comment that the 
language of Sec. 130.61(b)(2) was inconsistent with the provisions 
proposed for lists of waterbodies, priority rankings, and schedules of 
TMDLs.
    What is EPA promulgating today? With the exception of Secs. 130.7 
and 130.61, EPA is promulgating these sections as proposed. EPA did not 
propose revisions to Secs. 130.0, 130.1, 130.60, 130.61, 130.62, 
130.63, and 130.64 except for a conforming citation in Sec. 130.64, nor 
did EPA request comment on these sections. Instead, EPA included these 
sections solely to illustrate the reformatting of Part 130 that results 
from writing the TMDL regulations in plain English format. Thus, EPA 
believes any comment on these sections is beyond the scope of the 
proposed rulemaking and declines to make changes as a result of 
comments. EPA will try to be mindful of any comments received on these 
sections when and if it does any further rulemaking on Part 130
    EPA's proposed Secs. 130.20 through 130.37 replace the requirements 
of Sec. 130.7. However, for the period of 18 months from publication or 
nine months from the effective date of today's rule, whichever occurs 
later, Sec. 130.37 allows States, Territories, authorized Tribes, and 
EPA to establish TMDLs consistent with either the requirements of 
Secs. 130.31 through 130.33 of today's rule or Sec. 130.7 from the 
previous rule. States, Territories, and authorized Tribes will need to 
be able to find the requirements of Sec. 130.7(c), which contains the 
TMDL requirements, until they are no longer needed. For this reason, 
today's rule removes Sec. 130.7 except for paragraph (c), and revises 
paragraph (c) to refer to the listing requirements of today's rule.
    With respect to Sec. 130.61, EPA found during the development of 
the final rule that Sec. 130.61(b)(2), which requires identification of 
water-quality limited waters requiring TMDLs, and of waters targeted 
for TMDL development within the next two years, is inconsistent with 
both the proposed and final requirements for listing waterbodies. 
Therefore, EPA is deleting the requirements of Sec. 130.61(b)(2) and 
reserving this paragraph. EPA believes that without this change, the 
Part 130 regulations would include two conflicting requirements causing 
confusion over what the regulations require. EPA believes this change 
is technical in nature and a logical outgrowth of EPA's proposal. EPA 
recognizes that it is making this change without soliciting public 
comment on this specific change. However, EPA did solicit comment on 
Secs. 130.25 through 130.30, which are the technical and procedural 
requirements for section 303(d) lists of impaired waterbodies. Based on 
those comments, EPA promulgated the final rule for those sections. EPA 
expects that, had it solicited comments on whether it should revise 
Sec. 130.61(b)(2) to conform with the information in Secs. 130.25 
through 130.30, the comments would have been supportive. Therefore, EPA 
believes that there is good cause under Administrative Procedure Act 
section 555(b)(3)(B) not to provide notice on this change because it is 
unnecessary to do so. Furthermore, EPA believes it is contrary to the 
public interest to expend the resources to solicit comment on 
eliminating an inconsistency in its rules when to do so is unnecessary. 
Therefore, consistent with the ``good cause'' provision of 
Administrative Procedure Act section 553(b)(3)(B), EPA believes it has 
good cause to delete and reserve Sec. 130.61(b)(2) without proposing 
that change.

III. Changes to Parts 122, 123, and 124

A. Reasonable Further Progress Toward Attaining Water Quality Standards 
in Impaired Waterbodies in the Absence of a TMDL

1. Background
    On August 23, 1999, EPA proposed revisions to the National 
Pollutant Discharge Elimination System (NPDES) Program and the Federal 
Antidegradation Policy in support of the revisions to the Water Quality 
Planning and Management regulations. These proposed revisions included 
new requirements and explicit authority to achieve reasonable further 
progress toward the attainment of water quality standards in impaired 
waterbodies in the absence of an EPA approved or established TMDL. EPA 
proposed a new requirement under the Federal antidegradation policy and 
proposed to revise the NPDES permitting regulations to implement that 
requirement. The proposed antidegradation requirement applied to all 
large new dischargers and existing dischargers undergoing a significant 
expansion proposing to discharge, to an impaired waterbody, the 
pollutant(s) for which the waterbody was impaired. The proposal stated 
that these dischargers would be required to achieve reasonable further 
progress toward the attainment of water quality standards in the 
waterbody to which they proposed to discharge. To achieve reasonable 
further progress, the proposal required these dischargers to obtain an 
offset of their new or increased loading of the pollutant(s) for which 
the waterbody was impaired. To obtain an offset, these dischargers 
would need to secure reductions from another existing source(s) 
discharging the pollutant(s) of concern into the same waterbody. The 
net effect of this offset would be a reduction in the loading of the 
pollutant of concern in the waterbody. Thus, reasonable further

[[Page 43639]]

progress toward the attainment of water quality standards in the 
waterbody would be achieved.
    Also to achieve reasonable further progress in the absence of an 
EPA approved or established TMDL, EPA proposed explicit language 
describing the Regional Administrator's discretionary authority to 
review, object to, and reissue, if necessary, State-issued permits that 
are ``administratively continued'' after expiration. The proposal 
stated that this authority would be available when an expired permit 
authorizes a discharge into an impaired waterbody and the existing 
permit limits need to be revised. These permits were referred to as 
``environmentally-significant permits.'' The two situations in which 
EPA proposed to invoke this authority were when an expired permit 
contains effluent limitations or conditions inconsistent with water 
quality standards or inconsistent with an established TMDL. In the 
absence of a TMDL, invoking this authority would allow the Regional 
Administrator to review, object to, and reissue, if necessary, expired 
permits inconsistent with water quality standards to ensure that those 
permits contain adequate water quality-based effluent limitations. 
Permits that contain adequate water quality-based effluent limitations 
would, in turn, be consistent with water quality standards and, thus, 
reasonable further progress toward the attainment of water quality 
standards would be achieved. See section III.B.5. below for a 
discussion of where this authority could be invoked to ensure that an 
expired permit is consistent with an established TMDL.
2. Requirements for New and Significantly Expanding Dischargers
    What did EPA propose? EPA proposed a new requirement under the 
Federal antidegradation policy and proposed revisions to the NPDES 
permitting regulations to implement that requirement, to achieve 
reasonable further progress toward the attainment of water quality 
standards in impaired waters in the absence of an EPA approved or 
established TMDL. EPA proposed these new requirements in response to 
the TMDL FACA recommendation that EPA actively encourage and support 
stakeholders stabilizing and enhancing water quality in impaired 
waterbodies before a TMDL is in place. Both EPA and the FACA recognized 
the significant time lag that could exist between the initial listing 
of a waterbody under CWA section 303(d) and the actual completion and 
approval of a TMDL. (See ``Report of the Federal Advisory Committee on 
the Total Maximum Daily Load (TMDL) Program'', EPA 100-R-98-006, July 
1998.) As discussed in the preamble to the proposed rule, EPA believes 
that progress toward the section 101(a) goals of the CWA should occur 
even in the interim period between the initial listing of a waterbody 
under CWA Section 303(d) and the actual completion, approval and 
implementation of a TMDL. EPA therefore proposed to require that 
certain dischargers, located on an impaired waterbody discharging the 
pollutant for which the waterbody is impaired, achieve ``reasonable 
further progress'' toward the attainment of water quality standards.
    The NPDES dischargers required to achieve reasonable further 
progress included a subset of dischargers proposing to discharge new 
loadings of a pollutant of concern to an impaired waterbody. This 
subset of dischargers included all large new dischargers and existing 
dischargers undergoing a significant expansion. EPA proposed revisions 
to the definition of a ``new discharger'' at Sec. 122.2 as well as 
proposed a new definition of an ``existing discharger'' and what 
constitutes a ``significant expansion'' of an existing discharger. 
These proposed definitions were revised or added with the intent of 
defining the subset of dischargers subject to the proposed offset 
requirement.
    EPA believed that the best way for these dischargers to achieve 
reasonable further progress was through an offset mechanism. The 
proposed offset mechanism would have required these dischargers to 
offset any new or increased loading of the pollutant of concern to an 
impaired waterbody by obtaining or securing reductions in the loading 
of the same pollutant from an existing source(s) located on the same 
waterbody. EPA stated that an offset of at least one and one half to 
one would generally be appropriate as a means of ensuring reasonable 
further progress. The proposal also specified several additional 
requirements for implementing offsets through NPDES permits. These 
revisions to the NPDES permitting regulations were designed to ensure 
that the offset and resulting reductions would be realized and, 
therefore, reasonable further progress would be achieved. The Agency 
believed that reasonable further progress toward meeting the applicable 
water quality standard would be achieved through this mechanism because 
the total load of the pollutant(s) to the impaired waterbody would be 
reduced.
    The proposal also would have required the permitting authority to 
include, in the fact sheet for the permit (required under Sec. 124.8), 
an explanation of how and why any limitations and/or requirements were 
derived to satisfy an offset requirement. Where fact sheets are not 
required, EPA proposed that similar information be included in the 
statement of basis for the permit (required under Sec. 124.7).
    To emphasize the importance of State antidegradation policies, 
including the proposed offset requirement, EPA proposed to include the 
phrase ``State antidegradation provisions'' in its water quality-based 
permitting regulations at Sec. 122.44(d)(1). Section 122.44 contains 
the requirements for establishing limitations, standards and other 
permit conditions in NPDES permits necessary to ensure that NPDES 
permits are protective of water quality standards. The purpose of 
including this phrase was clarifying only and was not intended to 
create a substantive change. Including this phrase in these provisions 
was intended to give added notice and clarification to the longstanding 
requirement at Sec. 131.12 that States, at a minimum, include in their 
water quality standards an antidegradation policy consistent with the 
Federal antidegradation policy, and identify their methods and 
procedures for implementing that policy.
    What comments did EPA receive? The following summarizes certain 
major comments the Agency received on the proposal requiring large new 
and significantly expanding existing dischargers located on impaired 
waterbodies to obtain offsets of their new pollutant loads. There was 
widespread concern that the proposal to require offsets was virtually 
impossible to implement and environmental efficacy on a national scale 
would have therefore been unlikely. Many commenters noted that a one-
size-fits-all approach was infeasible due to the differences between 
the types of sources subject to the offset requirement, the differences 
in the nature of the discharges from the sources subject to the offset 
requirement, and the differences in the types of NPDES permitting used 
for sources subject to the offset requirement. A significant number of 
commenters also expressed concern regarding the requirement that the 
offset be achieved on or before a source could begin discharging as 
well as the distinct likelihood that there might be no source in the 
waterbody from which an offset could be obtained. They pointed out that 
this would cause significant delay in the operation or construction of 
their business and

[[Page 43640]]

possibly even prevent them from operating at all.
    Several commenters stated that the offset provision, as proposed, 
would be particularly difficult to implement with respect to wet 
weather sources. With respect to storm water, commenters expressed that 
it would be difficult to predict the contents and/or flow of storm 
water runoff because wet weather events vary in terms of frequency and 
duration of rainfall as well as other uncontrollable factors (e.g., the 
use of copper brake pads, leaking oil pans on cars) that contribute to 
the contents and/or flow of storm water runoff. Similar concerns were 
raised with respect to obtaining offsets from nonpoint sources. 
Commenters stated that pollution reductions would be difficult to 
measure or quantify due to the variability in flow, pollutants and 
loading. They also noted the difficulty in demonstrating the impact or 
level of reductions achieved by nonpoint source control measures or 
BMPs. The Agency also received many comments that claimed that the 
offset provisions, as proposed, would have an adverse effect on 
trading. For point source to nonpoint source trades, commenters 
asserted that the offset provision would provide a disincentive for 
point sources to trade because they would be held liable for a nonpoint 
source's failure to achieve the requisite reductions.
    Commenters expressed concern over the implications the offset 
requirement would have on the use of general permits. Many stated that 
offsets could not be implemented through general permits. Although the 
Agency did not propose an approach to implement offsets for dischargers 
that seek coverage under general permits, many commenters were 
concerned that the offset requirement, as proposed, would have caused a 
large number of dischargers to seek coverage under individual permits 
instead of general permits. Commenters also noted that they would 
experience considerable delays in their operations and increased costs 
if they had to seek coverage under an individual permit.
    A significant number of commenters stated that the proposal to 
require offsets established an inequitable allocation of responsibility 
between large and small dischargers and was, thus, inconsistent with 
the goals of the CWA. Many asserted that the proposal to require 
offsets conflicted with and impeded the TMDL program thereby delaying 
the attainment of water quality standards. Some commenters also 
asserted that the proposal to allow new discharges and require offsets 
would have undercut the ability to interpret Sec. 122.4(i) as requiring 
an absolute prohibition on new discharges to impaired waters. Finally, 
while many commenters agreed that there should be reasonable further 
progress toward improving water quality in the period before a TMDL is 
approved or established, they asserted that the proposed offset 
requirements would undercut State primacy in determining what actions 
are necessary to attain water quality standards.
    The Agency also received several comments on the proposed 
definitions for existing, new and significantly expanding dischargers. 
The Agency proposed these definitions for the sole purpose of 
implementing the offset provision. Many commenters suggested that these 
definitions were ``confusing and unworkable.'' Most commenters were 
concerned that the definitions were not consistent with existing 
definitions for related and separate programs. Some commenters also 
stated that the definition describing significant expansion was not 
scientifically based. For example, the definition did not specify 
whether the 20% increase in loadings was related to concentration or 
mass.
    What is EPA promulgating today? After considering comments received 
and upon further analysis of what the Agency proposed, EPA is not 
promulgating the revisions to the Federal antidegradation policy and 
NPDES regulations that would require certain dischargers to achieve 
reasonable further progress toward the attainment of water quality 
standards by obtaining an offset of their new or increased pollutant 
loads (hereafter ``the offset requirement''). EPA continues to believe, 
however, that further degradation of already impaired waterbodies 
should be prevented and that progress toward the attainment of water 
quality standards should be made in the interim period between the 
identification of an impaired waterbody and the establishment of a 
TMDL. EPA does not believe it is necessary to amend the antidegradation 
regulations to explicitly include such a requirement because EPA has 
concluded that the offset requirement, as proposed, is not the best 
mechanism to achieve progress in impaired waters in the absence of a 
TMDL. The Agency based this conclusion on several considerations.
    Subsequent to the proposal, EPA gained additional insight into 
current practices for deriving water quality-based effluent limits for 
sources located on impaired waters and discharging the pollutant(s) for 
which the waterbody is impaired. EPA found a wide range of practices 
for deriving such limits with respect to both new dischargers and 
existing dischargers. The Agency believes that there is considerable 
room for improvement in establishing water quality-based effluent 
limits for all dischargers (new dischargers being permitted for the 
first time and expanding and existing dischargers undergoing permit 
reissuance) discharging pollutant(s) of concern to an impaired 
waterbody (emphasis added). EPA therefore concluded that its existing 
regulations, implemented consistently at the time of permit issuance, 
would provide greater progress toward the attainment of water quality 
standards in impaired waters than through the proposed offset 
requirement.
    As proposed, the offset requirement (in addition to existing 
regulatory requirements) would be very difficult to apply and only 
affect a small subset of dischargers. Thus, the likelihood of achieving 
additional progress toward attaining water quality standards for a 
significant number of impaired waterbodies through the offset 
provision, in the aggregate, would be quite small. EPA further believes 
that expanding the application of the requirement to additional 
dischargers, as some commenters suggested, would still not have 
significant environmental benefit for the reasons discussed below.
    Many commenters pointed out, and upon further analysis EPA agrees, 
that the proposed offset requirement, a one-size fits all method for 
specifying reasonable further progress, is simply unworkable. As 
proposed, it would have been extremely difficult for a majority of the 
sources within the very small subset of sources to which it would have 
applied, to implement an offset requirement (e.g., those sources with 
intermittent discharges or discharges only as a result of storm events 
and those regulated through general permits by best management 
practices (BMPs)). Calculating what constitutes a one and one half to 
one offset for sources with intermittent discharges would have often 
been extremely subjective. Likewise, as proposed, it would have been 
difficult or infeasible to implement the offset requirement with 
respect to dischargers that seek NPDES permit coverage under a general 
permit. Typically, general permits do not contain numeric water 
quality-based effluent limitations (WQBELs); they contain BMPs designed 
to ensure protection of water quality standards. It would have been 
difficult or infeasible to quantify, and thereafter implement, a one 
and one half to one offset from a source whose water quality impacts 
are controlled solely by BMPs.

[[Page 43641]]

    EPA also concluded that the additional environmental benefits from 
the offset requirement, in many cases, would have been minimal at best, 
even if expanded to cover additional dischargers as some commenters 
suggested. The offset requirement would have been a requirement over 
and above the requirements under current NPDES permitting regulations 
at Secs. 122.44(d)(1)(vii) and 122.4(i). Section 122.44(d)(1)(vii) 
requires permits to include, where necessary, effluent limits that 
derive from and comply with water quality standards. Section 122.4(i) 
prohibits the issuance of permits to a new source or a new discharger 
if the discharge will cause or contribute to a violation of water 
quality standards. For those dischargers who would have been subject to 
the offset requirement, consistent implementation of 
Secs. 122.44(d)(1)(vii) and 122.4(i) following existing EPA guidance 
would result in permits, if issued, containing limits and conditions 
for the pollutant(s) of concern that derive from and comply with 
applicable water quality standards. These limits and conditions are 
water quality-based effluent limits and, if derived in compliance with 
existing regulations, ensure that the discharge will not cause or 
contribute to a violation of water quality standards. These limits 
would define the amount of the pollutant(s) in the discharger's 
effluent that could not be exceeded. In most cases, where a discharge 
is to an impaired water, this amount (the water quality-based effluent 
limit) would be quite small. Using either a numeric criterion or a 
quantitative translation of a narrative criterion, the limits would be 
calculated to ensure that the discharger did not cause or contribute to 
an excursion of that criterion in the receiving water. Also, a 
permitting authority may determine that this limit must reflect an 
overall reduction in pollutant loading to the waterbody in order to 
ensure that the discharge does not cause or contribute to a violation 
of water quality standards. Thus, where existing regulations for water 
quality-based permitting are appropriately implemented, the additional 
offset that EPA proposed to require of such dischargers (150% of the 
water quality-based effluent limit), in most cases, would not have had 
a significant effect on ambient water quality. Given this and the fact 
that applying the offset to many types of discharges would be extremely 
difficult or even infeasible, as discussed above, EPA concluded that 
the net environmental benefits from the offset requirement would be 
insignificant.
    Although EPA is not promulgating regulations containing the offset 
requirement, EPA expects to achieve progress toward the attainment of 
water quality standards in impaired waters in the absence of a TMDL. 
EPA believes that progress toward the attainment of water quality 
standards prior to a TMDL would be achieved through consistent 
implementation of EPA's existing regulatory authorities.
    EPA's current water quality-based permitting regulations and 
accompanying guidance apply not only to new and expanding dischargers, 
but to all dischargers. These regulations require that NPDES permits 
have conditions as necessary to achieve water quality standards 
established under section 303(c) of the CWA. Sec. 122.44(d)(1). The 
permitting authority must therefore determine whether a discharge 
causes, has reasonable potential to cause, or contributes to an in-
stream excursion above the applicable water quality standard. In making 
this determination, the permitting authority must ``account for 
existing controls on point and nonpoint sources of pollution, the 
variability of the pollutant or pollutant parameter in the effluent, 
the sensitivity of the species to toxicity testing (when evaluating 
whole effluent toxicity), and, where appropriate, the dilution of the 
effluent in the receiving water.'' Sec. 122.44(d)(1)(ii). Where water 
quality-based effluent limits are needed, the regulations are designed 
to ensure that those limits derive from and comply with water quality 
standards and, therefore, ensure that dischargers subject to such 
limits will not cause or contribute to the violation of water quality 
standards. Secs. 122.44(d)(1)(vii) and 122.4(i).
    EPA has developed guidance for applying the water quality-based 
permitting regulations. The ``Technical Support Document for Water 
Quality-Based Toxics Control'' (TSD) U.S. EPA, EPA/505/2-90-001, March 
1991 and the Water Quality Guidance for the Great Lakes System (60 FR 
15366, March 23, 1995) (hereafter ``Great Lakes Guidance'') include 
procedures for making the determination of whether a discharge causes, 
has reasonable potential to cause, or contributes to an instream 
excursion above the applicable water quality criteria (the ``reasonable 
potential analysis''). These procedures also present options for 
developing wasteload allocations (the basis for effluent limits) which 
ensure that a discharge does not cause or contribute to the 
nonattainment of applicable water quality standards. Thus, while both 
are primarily focused on toxics, and the Great Lakes Guidance applies 
to the Great Lakes, both serve as practical guides for developing 
effluent limits to ensure compliance with both Secs. 122.44(d) and 
122.4(i).
    As mentioned above, the Agency found various interpretations and 
implementation methods for applying the water quality-based permitting 
regulations and the Agency's accompanying guidance. For example, EPA 
found varied consideration of other source contributions and background 
concentrations in the receiving water when determining the need for 
water quality-based effluent limits and setting water quality-based 
effluent limits for pollutants of concern in compliance with 
Sec. 122.44(d). EPA notes it has a longstanding interpretation of 
Sec. 122.44(d) regarding consideration of source contributions and 
background concentrations, as presented in the TSD since 1991.
    EPA notes that the TSD references using background concentration 
when calculating wasteload allocations. For example, on p. 97, the TSD 
states, ``Traditional single-value or two-value steady-state wasteload 
allocation models calculate wasteload allocations at critical 
conditions, which are usually combinations of worst-case assumptions of 
flow, effluent, and environmental effects. For example, a steady-state 
model for ammonia considers the maximum effluent discharge to occur on 
the day of lowest river flow, highest upstream concentration, highest 
pH, and highest temperature'' (emphasis added). Also, it is 
particularly noteworthy that every case example in the TSD uses an 
ambient background concentration value of the pollutant of concern when 
determining reasonable potential and calculating wasteload allocations 
and effluent limits.
    An assessment of the ambient background concentration in the 
receiving water is the element of the reasonable potential analysis 
presented in the TSD that represents the nonattained condition of 
waters not meeting water quality standards because they are exceeding 
water quality criteria. This element of the reasonable potential 
analysis is necessary to account for existing controls on point and 
nonpoint sources of pollution and available dilution as required by 
Sec. 122.44(d)(1)(ii). Failure to use a background value would result 
in evaluating the discharge to the nonattained water as if the water 
were actually attaining its water quality standards. Simply put, use of 
valid, verifiable ambient background values is imperative to 
technically sound effluent characterization and analysis of the

[[Page 43642]]

need for water quality-based effluent limits.
    Furthermore, where there is valid, verifiable background data 
indicating existing impairment of a waterbody, such data must be taken 
into consideration when developing water quality-based effluent limits 
for a discharge to an impaired water. EPA is aware that some permitting 
authorities, when calculating wasteload allocations that are the basis 
for water quality-based effluent limits, have, on occasion, made the 
assumption that background concentrations of the pollutant(s) of 
concern are zero, even in view of valid and verifiable background data, 
and have proceeded to allocate all of a waterbody's assimilative 
capacity to one or more point sources. Such an assumption is 
inconsistent with NPDES regulations requiring that water quality-based 
effluent limits derive from and comply with water quality standards 
(Sec. 122.44(d)(1)(vii)), and longstanding Agency guidance and policy 
on complying with the regulations.
    Once again, EPA notes that the TSD indicates the need to consider 
background concentrations of the pollutant(s) of concern when 
developing wasteload allocations and water quality-based effluent 
limits. Where valid, verifiable data and information that are 
representative of ambient conditions indicate that the waterbody is not 
attaining water quality standards, there is no basis for permitting a 
discharge to an impaired water as if the waterbody were not impaired. 
Where such data are available, the permitting authority has no 
alternative but to use those data when calculating wasteload 
allocations and effluent limits. For discharges to an impaired water 
where ambient pollutant concentration is the cause of impairment, 
including background pollutant concentrations in all permit limit 
calculations will result in water quality-based effluent limits based 
on a wasteload allocation that attains the applicable criteria or a 
lower pollutant concentration in the effluent (i.e., ``criteria end of 
pipe'' or better). Of course, a permitting authority may have new or 
additional data about the ambient water quality, presented by the 
discharger or collected by the permitting authority itself. Those 
additional data would allow for a more site-specific evaluation of the 
need for water quality-based effluent limits and of the calculation of 
wasteload allocations and effluent limits than was perhaps possible 
when a decision was made to list the waterbody on the section 303(d) 
list.
    EPA recognizes the need for further clarification to authorities 
implementing the NPDES program of existing NPDES regulations and 
guidance on water quality-based permitting. In addition, further 
guidance is needed to ensure that permitting authorities adequately 
protect designated uses through complete consideration of both 
applicable narrative and numeric criteria when developing effluent 
limits that derive from and comply with all applicable water quality 
standards (Sec. 122.44(d)(1)(vii)). Narrative water quality criteria 
establish the basic foundation for attainment of designated uses, while 
numeric water quality criteria provide a specific quantitative 
translation of the necessary level of protection.
    In some situations, there are no numeric criteria for a pollutant 
of concern or the permitting authority may determine that the existing 
numeric criteria are not designed to address an important endpoint of 
concern. When numeric criteria are developed, it is not possible to 
anticipate all pollutants or endpoints or derive some types of criteria 
that will apply generally across the Nation's waters or all of the 
waters of a State or Tribe. Often there are not sufficient data to 
develop site-specific numeric water quality criteria at the time of 
water quality standards adoption. Recognizing these situations, 
standards setting authorities adopt narrative criteria to ensure full 
protection of designated uses. Narrative criteria can descriptively 
accomplish what numeric criteria, in many cases, cannot account for 
quantitatively at the time water quality standards are adopted. For 
example, fish contamination as a result of site-specific 
bioaccumulation or algal blooms from nutrient over enrichment may 
impair a designated use, but may not be sufficiently addressed by 
adopted numeric water quality criteria. Applicable narrative criteria, 
however, can often be translated into a quantitative measurement that 
will protect a specific endpoint from a specific pollutant not 
accounted for by the applicable numeric criteria.
    The NPDES regulations at Sec. 122.44(d)(1)(v) and (vi) are 
particularly instructive to permitting authorities developing water 
quality-based effluent limits from narrative water quality criteria in 
order to meet the requirement that such limits derive from and comply 
with all applicable water quality standards. The NPDES regulations 
require that if a discharge causes, has the reasonable potential to 
cause, or contributes to an in-stream excursion of an applicable 
narrative criterion, the permit must contain effluent limits for whole 
effluent toxicity. Whole effluent toxicity limits are not necessary, 
however, if the permitting authority demonstrates that chemical-
specific effluent limits for the effluent are sufficient to attain and 
maintain applicable numeric and narrative water quality standards 
(emphasis added). The regulations describe how to develop water 
quality-based effluent limits for a specific pollutant in this 
situation. The permitting authority must develop effluent limits based 
on one of the following options: (1) use a calculated numeric water 
quality criterion that the permitting authority demonstrates will 
attain and maintain applicable narrative water quality criteria and 
will fully protect the designated use [This criterion may be derived 
using a criterion proposed by the standards setting authority or an 
explicit policy or regulation interpreting the authority's narrative 
criterion, supplemented with other relevant information]; (2) on a 
case-by-case basis, use EPA's water quality criteria, published under 
Section 304(a) of the Clean Water Act, supplemented where necessary by 
other relevant information; or (3) under certain conditions, use an 
indicator parameter for the pollutant of concern.
    EPA understands that permitting authorities will take a variety of 
approaches to interpreting designated uses and the criteria necessary 
to protect those uses, characterizing effluent quality, and deriving 
wasteload allocations and permit limits. EPA believes, however, that 
permitting authorities do not always quantitatively translate 
applicable narrative criteria, nor do they always apply the most 
stringent permit limit when both numeric criteria and numeric 
interpretations of narrative criteria are available and applicable. The 
NPDES regulations require permitting authorities to evaluate the 
reasonable potential for an effluent to cause or contribute to an 
excursion of both numeric and narrative criteria in order to evaluate 
whether the underlying designated use will be maintained and protected 
and, where necessary, derive water quality-based effluent limitations 
from those criteria. Where there is uncertainty about what numeric 
value should be used that represents either the numeric or narrative 
water quality criterion (the water quality value on which the effluent 
characterization must be based), EPA believes this uncertainty must be 
resolved before a permit is issued. EPA believes that, instead of 
resolving this uncertainty, some permitting authorities may be issuing 
permits with inadequate permit limits

[[Page 43643]]

that do not conform to the water quality-based permitting regulations.
    EPA believes that further clarification and additional guidance on 
interpreting and implementing the water quality-based permitting 
regulations are needed. Rather than promulgating a new regulatory 
requirement that is difficult to apply and offers potentially little 
environmental benefit over adequate implementation of current NPDES 
regulations, the Agency believes that improved implementation of the 
current regulatory program will yield better and more significant 
progress in attaining and maintaining water quality standards 
nationwide. The Agency, therefore, is intending to achieve more 
consistent implementation of existing NPDES regulations and guidance. 
EPA intends to provide further guidance to clarify the Agency's 
recommendations for methods and procedures for developing water 
quality-based effluent limits for sources discharging a pollutant of 
concern to an impaired waterbody in the absence of a TMDL. EPA expects 
that this guidance will address approaches to deriving permit limits 
both in situations where there are applicable numeric criteria that 
address the cause of impairment and situations where there are no 
applicable numeric criteria that address the cause of impairment.
    In summary, EPA believes that ensuring adequate and consistent 
implementation of existing water quality-based permitting regulations 
for all dischargers located on impaired waterbodies will lead to 
substantial improvement in the quality of the Nations's waters. EPA 
notes that the TMDL, once established, may include waste load 
allocations that may result in the need for permit limits to change.

Definitions

    EPA is not promulgating the proposed revisions to the definition of 
a ``new discharger'' (Sec. 122.2) as well as the proposed new 
definition for an ``existing discharger'' and what constitutes a 
``significant expansion'' of an existing discharger. EPA is not 
promulgating these proposed definitions because it is not promulgating 
the proposed offset requirement. These proposed definitions were 
revised or added with the intent of defining the subset of dischargers 
subject to the proposed offset requirement.

Fact Sheet and Statement of Basis

    EPA is not promulgating revisions to the regulatory provisions on 
fact sheets (Sec. 124.56) or revisions to the regulatory provisions on 
statement of basis (Sec. 124.7) as proposed. EPA proposed changes to 
these provisions to clarify that the permit writer must provide all 
information necessary to explain the derivation of permit conditions. 
In particular, these proposed changes were designed to capture, in the 
record of the permit, the rationale for and derivation of the proposed 
offset requirement. Because EPA is not promulgating the offset 
requirement, the proposed changes regarding fact sheets and statements 
of basis are unnecessary. EPA continues to believe, however, that it is 
important to clarify the type of information that a permit writer must 
provide to explain the basis for and derivation of permit limits and 
conditions. In light of the scope of today's rule, the Agency believes 
that providing an adequate explanation is particularly important for 
permits that authorize discharges to impaired waters both prior to and 
after the establishment of a TMDL. EPA is therefore establishing such 
clarifications to the fact sheet regulations at Sec. 124.8 and to the 
statement of basis regulations at Sec. 124.7.
    Section 124.8 requires that a fact sheet be prepared for certain 
permits identified under that section. Section 124.7 requires EPA to 
prepare a statement of basis for every draft permit for which a fact 
sheet is not prepared. The purpose of including a fact sheet or a 
statement of basis with the permit is to provide a mechanism that helps 
the permittee and any other interested party understand how and why 
limits, conditions, and/or requirements in the accompanying NPDES 
permit were derived. This information also helps the permittee and 
other interested parties participate in the decision-making on what 
will be included in the final permit; an explanation of how and why 
these measures were derived enables the public to participate in the 
final decision.
    Today's rule clarifies what data and information must be placed in 
the fact sheet and statement of basis for permits authorizing 
discharges to impaired waters. Specifically, the clarifications to the 
fact sheet and statement of basis regulations concern information which 
must be provided when a permit is developed for the discharge of a 
pollutant into a water which is impaired for that pollutant. Where a 
fact sheet or statement of basis is required, the Agency believes the 
records for such permits must contain a full explanation of the basis 
for water quality-based limits including those for a pollutant(s) for 
which a waterbody is impaired. Specifically, the fact sheet or 
statement of basis must contain: (1) In cases where a TMDL has not been 
established for an impaired waterbody, an explanation of how permit 
limits and/or conditions were derived for all pollutants in the 
discharger's effluent for which the waterbody is impaired; and (2) in 
cases where a TMDL has been established for an impaired waterbody, any 
TMDL that has been established for a pollutant contained in the 
discharger's effluent; the applicable wasteload allocation derived for 
the pollutant under the TMDL for that discharger; and an explanation of 
how permit limits for the pollutant of concern were derived as well as 
how those limits are consistent with the applicable wasteload 
allocation.
    EPA interprets its existing regulations to require this information 
already. Specifically, Sec. 124.8(b)(4) requires the fact sheet to 
include ``a brief summary of the basis for the draft permit conditions 
*  * *. '' Section 124.7 requires the statement of basis to ``briefly 
describe the derivation of the conditions of the draft permit and the 
reasons for them* * * ;'' Also, Sec. 122.44(d)(1)(vii)(B) requires the 
permitting authority to ensure that ``effluent limits developed to 
protect a narrative water quality criterion, a numeric water quality 
criterion, or both, are consistent with the assumptions and 
requirements of any available wasteload allocation for the discharge 
prepared by the State and approved by EPA pursuant to Sec. 130.7.'' 
Evidence of this longstanding interpretation is found in EPA's 
``Technical Support Document for Water Quality-based Toxics Control'' 
where the Agency refers to the fact sheet regulations at Sec. 124.56 
and states that ``the wasteload allocations along with the required 
long-term average and coefficient of variation used and the 
calculations deriving them must be included or referenced in the fact 
sheet. The permit limit derivation method used must also be explained 
in the permit documentation.'' (EPA/505/2-90-001, March 1991, p.110). 
By revising these regulations to include today's clarifications, the 
Agency is merely emphasizing the importance of providing data and 
information for permit limits and conditions contained in permits 
authorizing discharges to impaired waters both prior to and after the 
establishment of a TMDL. Making this concept completely explicit in the 
regulations will help to clarify EPA's previous intent behind these 
provisions and ensure consistency in fact sheets and statements of 
basis accompanying permits for discharges into impaired waters. In 
addition, these clarifications to the existing regulations are 
consistent with the provisions in the proposal requiring fact sheets 
and statements of

[[Page 43644]]

basis to include an explanation for the basis of any offset obtained in 
an impaired water.
    Adding these clarifications also improves the ability to track 
whether permits requiring a fact sheet or statement of basis contain 
limits that derive from and comply with applicable water quality 
standards as well as whether the limits are consistent with an 
applicable TMDL. EPA intends to track information in order to monitor 
and report progress nationally on permitting in impaired waters. The 
Agency believes tracking this information supports the purposes and 
goals of the CWA, to restore and maintain the chemical, physical, and 
biological integrity of the Nation's waters. The Administrator also 
bears a statutory responsibility under CWA section 303(d) to ensure 
timely establishment of TMDLs and an obligation under CWA section 
301(b)(1)(C) to ensure that permits include water quality-based 
effluent limits as necessary to meet water quality standards. Tracking 
these data will help to ensure that needed water quality-based effluent 
limits are placed in all permits requiring them prior to a TMDL. It 
will also help to ensure that TMDLs, once established, are in fact, 
implemented.

Revisions to the Water Quality-based Permitting Regulations

    Although EPA is not promulgating the offset requirement, the Agency 
still believes emphasis should be placed on State antidegradation 
policies as part of a State's water quality standards. EPA, therefore, 
is promulgating the clarifying change to the water quality-based 
permitting regulations by adding the phrase ``State antidegradation 
provisions'' to section Sec. 122.44(d)(1).
3. EPA Authority to Reissue Expired and Administratively-Continued 
NPDES Permits Issued by Authorized States
    What did EPA propose? Under the NPDES program regulations, a 
Regional Administrator may review and object to an NPDES permit that an 
authorized State proposes to issue. The procedures by which a Regional 
Administrator may review and object to these permits are found in 
Sec. 123.44. EPA proposed a new mechanism by which a Regional 
Administrator could trigger these procedures for two purposes. EPA 
proposed to grant the Regional Administrator the discretion to trigger 
these procedures to (1) achieve reasonable further progress toward the 
attainment of water quality standards in impaired waters in the absence 
of a TMDL; and (2) ensure that established TMDLs are, in fact, 
implemented. This proposed discretionary authority would be available 
to the Regional Administrator to achieve these goals by using the 
procedures in Sec. 123.44 to address a subset of existing expired 
State-issued NPDES permits. This authority could be exercised when an 
NPDES permit that has been administratively-continued after expiration 
authorizes a discharge to a waterbody that does not attain and maintain 
water quality standards where there is a need for a change in the 
existing permit limits to be protective of water quality standards. In 
the preamble to the proposal, these permits were referred to as 
``environmentally-significant permits.''
    To achieve reasonable further progress toward the attainment of 
water quality standards in impaired waters in the absence of a TMDL, 
proposed Sec. 123.44(k) would give EPA the discretion to treat a subset 
of environmentally-significant State-issued permits that are 
administratively-continued after expiration as the State's submission 
of a permit for EPA review under Sec. 123.44. This subset of permits 
includes those permits that authorize discharges of a pollutant(s) of 
concern (i.e., a pollutant(s) for which the waterbody is impaired) to a 
waterbody that does not attain and maintain water quality standards for 
those pollutants and for which EPA has not established or approved a 
TMDL. EPA proposed that this authority be available to the Agency where 
there is a need for a change in the existing permit limits. 
Specifically, this authority could be invoked where there is a need to 
include more adequate and protective water quality-based effluent 
limits in order to ensure that such limits derive from and comply with 
applicable water quality standards. See Sec. 122.44(d)(1)(vii).
    EPA proposed to assert the Agency's discretion to exercise the 
authority to use these procedures for a State-issued permit that meets 
the conditions above, where that permit has been expired and 
administratively-continued for more than 90 days, and where the State 
has failed to reissue that permit. The Agency's NPDES regulations 
require that an existing permittee submit a new permit application at 
least 180 days before an existing permit expires (Sec. 122.21(d)(2)). 
When a permittee has submitted a timely and complete application for 
renewal, but the State Director fails to act on the permittee's 
application before the existing permit expires, States' laws often 
provide that the existing permit continues in effect by operation of 
law. The permit remains in effect by operation of law until the State 
takes final action on the permittee's application (until the State 
makes a final decision to grant or deny a new permit). This is often 
referred to as ``administrative continuance.'' These State laws, like 
the corresponding provisions in Sec. 122.6 and the Federal 
Administrative Procedure Act at 5 U.S.C. 558(c), aim to protect a 
permittee who has submitted a timely and complete application for 
renewal. Such State laws protect a permittee from losing its 
authorization to discharge simply because the permit-issuing authority 
has not issued a new permit before the existing permit expires.
    In some cases, administrative continuance of expired permits 
provides States with flexibility to prioritize their action without 
significant adverse impacts on receiving waters. However, 
administrative continuance also may lead to inappropriate delays in 
reissuing permits that need revision to comply with current 
requirements. State administrative-continuance laws typically allow an 
expired permit to remain administratively-continued indefinitely. 
Therefore, a lengthy administrative continuance of a permit for a 
discharge into an impaired waterbody can significantly delay the 
implementation of needed water quality-based effluent limitations. 
Under EPA's existing regulations, no mechanism currently exists by 
which to invoke the Agency's permit review and objection authority to 
address this situation. The proposed authority and the procedures to 
invoke this authority would provide that procedural mechanism.
    The proposal provided that if, after notice, the State failed to 
submit to EPA a draft or proposed permit for a discharge into an 
impaired waterbody within 90 days following the permit expiration date, 
the Regional Administrator could treat the expired and 
administratively-continued permit as the State's submission of a draft 
or proposed permit for EPA review under Sec. 123.44. For EPA to 
exercise this discretionary review authority, EPA would give the State 
and the discharger 90-days notice of its intent to treat the 
administrative-continuance as the reissuance of a permit containing the 
same terms as the permit that had expired. EPA could provide this 
notice at any time following the 90-day period after permit expiration. 
EPA's use of this new mechanism would be discretionary.
    Once the environmentally-significant, administratively-continued 
permit was subject to review under Sec. 123.44 procedures, EPA would be 
able to comment on, object to, or recommend

[[Page 43645]]

changes to the permit. If the State, under Sec. 123.44(a), submitted a 
draft or proposed permit for EPA review at any time before authority to 
issue the permit passed to EPA under Sec. 123.44(h), EPA would withdraw 
its notice of intent to assume permitting authority. At that point, 
existing rules on EPA objection to State-issued permits would govern. 
Therefore, EPA could take any appropriate action, including 
transmission of comments on or possible objection to the new draft or 
proposed permit submitted by the State. Furthermore, EPA's ability to 
invoke this authority would continue until the State issues the final 
permit. In other words, if a State submits a draft or proposed permit 
that EPA believes resolves all of the concerns under the objection but 
fails to issue the final permit, EPA could invoke this authority again 
and object to the original (expired and administratively-continued) 
permit.
    In the proposal, the Agency stressed that the new review mechanism 
would be used only in those circumstances where other means of working 
with the State to reissue the permit failed. At any time during this 
process, the State is encouraged to explain to EPA the reasons for not 
reissuing the expired permit. The Agency will carefully consider any 
such explanation before proceeding with these objection procedures. 
Similarly, the Agency would not expect to depend heavily upon the 
proposed mechanism in States whose administrative continuance laws 
operate for limited periods of time.
    As noted in the preamble to the proposed rule, Sec. 123.44(k) would 
apply only to those expired, State-issued permits for which a timely 
and complete application for renewal has been submitted to the State, 
and for which State law has provided for continuation of the expired 
permit. The new provision would not apply to unpermitted discharges. 
Existing authority allows the Agency to institute judicial or 
administrative actions against unpermitted dischargers for discharging 
without a permit, even if they have submitted an application to the 
State and the State has not issued the permit.
    EPA recognized in the preamble to the proposed rule that many 
administratively-continued permits for discharges into impaired waters 
have not been reissued and that the Agency expects to exercise its 
discretion to use this authority only in very rare instances and only 
with respect to environmentally-significant permits. The Agency intends 
to use its discretion under this provision as one way to help ensure 
that these permits will be issued in a timely manner to support the 
fulfillment of the CWA goals to ensure that water quality standards are 
maintained and protected.
    EPA's authority to make these changes to its regulations was 
discussed at length in the proposal. EPA restates the most important 
elements of that discussion here. Section 301(b)(1)(C) of the Act 
directs EPA and the States to include water quality-based effluent 
limitations in NPDES permits that will enable the waterbody to meet the 
applicable water quality standards. Also, CWA section 501(a) allows the 
Agency to promulgate a regulation to implement CWA section 402(b)(1)(B) 
and EPA's authority in CWA section 402(d) to prevent a State from 
avoiding (or postponing by lengthy administrative continuance), what 
otherwise would be required by reissuance. The Agency bears an 
obligation under CWA section 402(c)(2) to ensure that State programs 
and State-issued permits comply with the requirements of the Act 
including section 402(b)(1)(B). NPDES permits may not be issued for 
periods exceeding five years (CWA section 402(b)(1)) and should be 
reviewed and revised in a timely fashion to ensure compliance with the 
CWA and applicable regulations.
    What comments did EPA receive? The following summarizes the major 
comments received on the proposed authority for EPA to review, object 
to, and reissue, if necessary, a State-issued NPDES permit that has 
been administratively-continued after expiration. The majority of 
comments received on this proposed provision asserted that EPA does not 
have the statutory authority under the CWA to amend the NPDES 
regulations to permit the Agency to review, object to, and reissue 
State-issued NPDES permits that have been administratively-continued. 
Many of these commenters stated that Congress intended authorized 
States to have complete authority to administer the NPDES program and 
that EPA should not undermine any portion of that authority. Some 
commenters asserted that the only statutorily-authorized mechanism EPA 
has to address State-issued, administratively-continued permits is to 
withdraw the approval of a State's NPDES program.
    Several commenters expressed their concern that EPA does not have 
the resources to effectively take on this additional regulatory 
responsibility. To support this argument, these commenters cited EPA's 
current permit backlog. Many also asserted that EPA does not have the 
expertise to do a better job than the State. These commenters argued 
that State agencies have a much closer relationship with their NPDES 
permittees and would, therefore, have a better understanding of all 
aspects of the permits and necessary requirements.
    A number of commenters strongly supported this proposed change to 
the NPDES regulations. Some commenters expressed their belief that EPA 
already has the authority to review any and all NPDES permits. These 
commenters argued that EPA has an obligation under the CWA to ensure 
that all State programs and State-issued permits comply with the 
requirements of the Act. Some expressed their belief that the proposed 
regulatory language limits EPA's review of expired permits by allowing 
this authority to be invoked only for those expired permits authorizing 
discharges to waters that do not attain and maintain water quality 
standards. These commenters suggested that the authority be broadened 
to allow for review of all State-issued permits that have been 
administratively-continued after expiration. Several commenters also 
expressed their belief that this authority should be mandatory rather 
than discretionary, i.e., EPA should be required to review, and 
reissue, if necessary, all administratively-continued permits. These 
commenters asserted that delaying review results in unlawful continued 
approval of permits authorizing discharges in violation of water 
quality standards and established TMDLs.
    Some commenters expressed procedural concerns regarding the 
proposed provision. Many asserted that this proposed authority 
constituted a ``second veto'' authority because the Agency already had 
the chance to object to the permit after the State's notification of 
its intent to issue the original NPDES permit. Others suggested 
extending the period for States to Act after EPA notice from 90 days to 
two years. These commenters argued that this time is necessary to 
resolve all permitting issues, including the very complex process of 
incorporating the applicable wasteload allocations that are derived 
under a TMDL. Some recommended that EPA only allow this authority in 
waters that do not attain and maintain water quality standards where a 
TMDL has been established.
    What is EPA promulgating today?
    After considering all of the comments EPA received on the proposed 
mechanism and considering further the purpose of the underlying 
authority, EPA is today promulgating the

[[Page 43646]]

regulations proposed at Sec. 123.44(k) except as explained later in 
today's preamble. The Regional Administrator will generally have the 
discretionary authority to review, object to, and reissue, if 
necessary, environmentally-significant State-issued NPDES permits that 
have been administratively-continued after expiration. An 
environmentally-significant permit authorizes a discharge to a 
waterbody that does not attain and maintain water quality standards 
where there is a need for a change in the existing permit limits to be 
protective of water quality standards.
    The availability of this authority is important for permits that 
authorize discharges of pollutant(s) of concern to waterbodies in the 
absence of an EPA approved or established TMDL. In particular, the 
availability of this authority, under these circumstances, is important 
for permits that do not contain limits and/or conditions that derive 
from and comply with water quality standards. Again, the Agency expects 
to use this authority only in rare instances as States will continue to 
have the primary role in administering the NPDES program. The Agency 
believes that this mechanism advances the goals of the CWA, to attain 
and maintain water quality standards. The Agency further believes that 
this authority is necessary to facilitate the fulfillment of EPA's 
statutory responsibility to include water quality-based effluent 
limitations in NPDES permits that meet the applicable water quality 
standards. (CWA section 301(b)(1)(C)).
    In response to comments opposing this provision, EPA does not 
believe that Congress intended authorized States to have unfettered 
discretion with regard to NPDES permitting after authorization. 
Congress expressed its clear intent regarding State-issued NPDES 
permits in the specific text of CWA sections 402(b)(1)(B) and (c)(2) 
and today's rule improves implementation of those provisions. EPA 
action on this provision of today's rule does not undermine State 
authority, but rather enhances the authority and responsibility of 
authorized States to the extent that a discharger with an expired 
permit may affirmatively seek action from the State (compared to the 
status quo where the discharger with an expired permit has no incentive 
to seek action from the State).

B. New Tools To Ensure Implementation of TMDLs

1. Background
    In addition to ensuring reasonable further progress toward the 
attainment of water quality standards prior to an EPA approved or 
established TMDL (described above), EPA proposed revisions that 
included new tools to ensure implementation of EPA approved or 
established TMDLs. EPA proposed explicit language describing the 
authority of EPA and States with approved NPDES programs to designate 
certain currently unregulated sources as discharges requiring NPDES 
permits. These sources would have included certain animal feeding 
operations, aquatic animal production facilities and silvicultural 
operations. The proposal stated that EPA could invoke this authority 
when necessary to provide reasonable assurance that an EPA approved or 
established TMDL would be implemented with respect to the particular 
source to be designated. Moreover, EPA proposed that it could invoke 
this authority when necessary to provide reasonable assurance that the 
designated source would achieve its allocated load reductions under the 
TMDL.
    EPA also proposed explicit language describing the Agency's 
discretionary authority to review, object to, and reissue, if 
necessary, State-issued permits that are ``administratively-continued'' 
after expiration, authorizing discharges into waters that do not attain 
and maintain water quality standards with an EPA approved or 
established TMDL. EPA proposed that it could exercise this authority 
when necessary to ensure that those permits are consistent with 
applicable wasteload allocations under a TMDL.
    What comments did EPA receive? The following summarizes the major 
comments received on the proposed new tools to ensure that established 
TMDLs are implemented. Several comments expressed support for EPA's 
authority to designate certain animal feeding operations (AFOs), 
aquatic animal production facilities (AAPFs), and silvicultural 
activities as subject to the NPDES program. Conversely, several 
commenters expressed their concern that additional prescriptive, 
command and control requirements would be counterproductive, impede 
economic sustainability, and stall progress already made at the local 
level. Some commenters added that the proposed rule would alienate the 
partners and cooperators with whom working relationships should be 
fostered. These commenters asserted that water quality improvements 
could instead be achieved by good locally lead, incentive-based 
programs, and voluntary best management practices. Some commenters 
noted that voluntary programs, including the CWA section 319 program, 
were inadequately funded and that additional resources directed to 
these programs would be more effective in achieving water quality goals 
than through additional regulatory mechanisms.
    Many comments stated that nonpoint source pollution derived from 
agricultural and silvicultural activities should not be regulated. 
Several comments stated that Congress did not intend to regulate AFOs 
or silviculture activities under the Clean Water Act or subsequent 
amendments. EPA also received many comments regarding whether EPA has 
the authority to designate sources in NPDES-authorized States. These 
commenters expressed their belief that the proposal was designed to 
extract from States more rigorous (i.e. enforceable) ``reasonable 
assurances'' that nonpoint source load allocations will be met.
    Some comments noted that the determination regarding whether or not 
to permit an AFO, AAPF, or silviculture activity should be based upon 
whether or not the operation or activity met the statutory definition 
of a point source rather than on case-by-case determinations. Several 
comments specifically addressed the definition of ``point source'' and 
emphasized that any discernible, confined and discrete conveyance falls 
within that definition and, therefore, all operations with such 
conveyances should be regulated as point sources. Other comments that 
addressed this same issue asserted that only those operations with a 
discrete, confined and discernible conveyance fall within the 
definition of point source and only those can thus be permitted.
    The Agency received comments asserting that requiring permits on a 
case-by-case basis violates the due process rights of the permittee 
since there are no clear standards to apply and no hearing rights 
provided to challenge abusive decision-making regarding NPDES 
permitting. The comments further noted that permit decisions should be 
based upon fixed rules rather than on-the-spot decisions by Federal 
employees.
2. Designation of concentrated animal feeding operations (CAFOs)
    What Did EPA Propose? EPA proposed changes to the NPDES regulations 
regarding the designation of concentrated animal feeding operations 
(CAFOs). EPA proposed explicit language describing the Agency's 
authority, in States with approved NPDES programs, to designate animal 
feeding operations (AFOs) as CAFOs. Once designated, these sources 
would be subject to NPDES program requirements. This designation 
authority, like the authority of NPDES-

[[Page 43647]]

authorized States and EPA in unauthorized States, would be 
discretionary. The proposed authority was limited to instances when EPA 
establishes a TMDL and determines designation is necessary to provide 
reasonable assurance that the TMDL will be implemented. If the Agency 
chose to invoke this authority, it would do so on a case-by-case basis 
and only in those instances where other means of working with the State 
were not successful.
    The NPDES regulations for CAFOs first define the term ``animal 
feeding operation'' (AFO) and then the term ``concentrated animal 
feeding operation'' (CAFO). An operation must first be an AFO before it 
can be defined or designated as a CAFO. The term ``animal feeding 
operation'' is defined in EPA regulations as a ``lot or facility'' 
where animals ``have been, are, or will be stabled or confined and fed 
or maintained for a total of 45 days or more in any 12 month period and 
crops, vegetation forage growth, or post-harvest residues are not 
sustained in the normal growing season over any portion of the lot or 
facility'' See Sec. 122.23.
    Once a facility meets the AFO definition, its size, determined by 
the total numbers of animals confined, is a fundamental factor in 
determining whether it is a CAFO. The animal livestock industry is 
diverse and includes a number of different types of animals that are 
kept and raised in confined situations. To define these various 
livestock sectors, EPA regulations established the concept of an 
``animal unit'' (AU) (Part 122 Appendix B). An AU varies according to 
animal type. One animal is not necessarily equal to one AU. The 
regulations assign a multiplication factor for each livestock type, 
except poultry.
    An AFO is a CAFO either if it meets the regulatory definition of a 
CAFO or it is designated as a CAFO on a case-by-case basis. An AFO is 
defined as a CAFO where more than 1,000 AUs (as defined by the existing 
regulation) are confined at a facility. These CAFOs are considered 
``large CAFOs.'' In general, a medium-sized AFO where more than 300 AUs 
are confined at a facility is also defined as a CAFO where pollutants 
are discharged either into navigable waters through a manmade ditch, or 
directly into waters that originate outside of and pass over, across, 
or through the facility, or come into direct contact with the confined 
animals. Today's regulation does not address AFOs that are defined as 
CAFOs under these criteria.
    As mentioned, an AFO can become a CAFO subject to NPDES permitting 
through case-by-case designation. See Sec. 122.23(c). Case-by-case 
designations are based on a Director's determination that the operation 
or facility is a significant contributor of pollutants to waters of the 
United States. In designating an operation or facility as a significant 
contributor of pollutants, the Director essentially finds that the 
facility's discharges are more like point sources already subject to 
NPDES regulation than those agricultural nonpoint sources that are not. 
EPA regulations define the term ``Director'' as the EPA Regional 
Administrator or the State Director (in States authorized to administer 
the NPDES program), as the context requires, or an authorized 
representative. See Sec. 122.2. This definition explains that when 
there is an approved State program, ``Director'' normally means the 
State Director but that in some circumstances, EPA retains the 
authority to take certain actions even when there is an approved State 
program. In the proposed rule, EPA identified designation of CAFOs and 
concentrated aquatic animal production facilities (CAAPFs) as 
instances, where the context requires, that EPA retain authority in 
authorized States.
    In making the determination that a source is a significant 
contributor of pollutants to waters of the United States, the Director 
conducts an on-site inspection of the facility and considers the 
following factors: (1) The size of the animal feeding operation and the 
amount of wastes reaching waters of the United States; (2) the location 
of the animal feeding operation relative to waters of the United 
States; (3) the means of conveyance of animal wastes and process waste 
waters into waters of the United States; (4) the slope, vegetation, 
rainfall, and other factors affecting the likelihood or frequency of 
discharge of animal wastes and process waste waters into waters of the 
United States; and (5) other relevant factors. See Sec. 122.23(c). One 
such relevant factor could be the water quality of the receiving water, 
including the degree of nonattainment of water quality standards.
    EPA has designated AFOs as CAFOs in States where it is the NPDES 
permitting authority although it has done so only on rare occasions. 
EPA believes it should be able to designate facilities in NPDES-
authorized States as well, for example, to assure implementation of an 
EPA-established TMDL. EPA, therefore, proposed to revise Sec. 122.23 to 
include explicit language describing the Agency's authority (under 
certain circumstances discussed below) to make such designations in 
instances when the State has not already done so.
    The proposed regulatory change limited the exercise of this 
discretion to the situation where EPA establishes a TMDL for a 
waterbody in an authorized State and determines that designation is 
necessary to provide reasonable assurance that the wasteload 
allocations and load allocations under the TMDL will be achieved. EPA 
may establish a TMDL for a State where a State fails to establish a 
TMDL for a waterbody in accordance with its approved schedule or where 
EPA disapproves a State-established TMDL. States must submit each TMDL 
they establish to EPA for approval. EPA is today promulgating 
regulations to require States to submit a plan to implement the load 
allocations and wasteload allocations of a TMDL. EPA will evaluate the 
adequacy of the implementation plan (a required element of a TMDL) in 
determining whether to approve a TMDL. If EPA disapproves a TMDL based 
on a determination that the implementation plan is inadequate EPA would 
then need to establish the TMDL itself, including an implementation 
plan.
    The implementation plan must provide reasonable assurance that the 
control actions and/or management measures required to implement the 
load allocations and wasteload allocations of the TMDL will be put in 
place and the load allocations and wasteload allocations will be met. 
Thus, EPA may disapprove the TMDL if the Agency determines that the 
wasteload allocation or load allocation is not appropriate, or the 
implementation plan does not provide such reasonable assurance. For 
example, EPA may determine that the implementation plan lacks 
reasonable assurance that certain AFOs will achieve and maintain their 
respective pollutant load allocations. Under these circumstances, EPA 
proposed that it would work with the State to provide the necessary 
reasonable assurance. EPA might suggest to the State, for example, that 
certain additional management measures be put in place to control the 
water quality impacts from AFOs contributing to the water quality 
impairment necessitating the TMDL. EPA also might recommend that 
certain improvements be made to existing State programs, whether 
voluntary or regulatory, to control water quality impacts from such 
sources.
    If working with the State to achieve reasonable assurance has 
failed, however, EPA proposed that it would disapprove the TMDL and 
thereafter establish the TMDL, including an implementation plan. Under 
these

[[Page 43648]]

circumstances, EPA proposed that the Agency may then determine that an 
AFO is a significant contributor of pollutants to waters of the United 
States. EPA may also determine that the best way for EPA to provide 
reasonable assurance that such feedlot pollutant sources achieve and 
maintain assigned pollutant load allocations is through the issuance 
(and enforcement) of an NPDES permit. Under the proposal, EPA could 
then invoke its designation authority and require the AFO to seek an 
NPDES permit as a CAFO.
    What comments did EPA receive? In addition to the comments noted 
above under the section titled ``What Comments Did the Agency Receive 
on These Proposed New Tools,'' the Agency received several comments 
specific to the proposed designation of animal feeding operations. The 
following discussion summarizes some of the major comments received on 
this provision. EPA received several comments supporting the proposed 
authority to designate certain AFOs. Many commenters also recommended 
that using its designation authority, the Agency correct NPDES-
authorized States that fail to properly permit all large AFOs as CAFOs.
    Many commenters, on the other hand, opposed EPA designation in 
NPDES-authorized States. These commenters asserted that States should 
have the lead in regulating AFOs and expressed concern that the 
proposed rule would result in increased coordination costs for Federal 
and State governments. Others expressed concern that EPA designation of 
AFOs in NPDES-authorized States would not be consistent with a State's 
designation authority. These commenters asserted that EPA is not 
required to conduct the same analysis as a State when deciding whether 
to require a permit.
    Several comments stated that EPA could not intervene in NPDES-
authorized States unless it decides to withdraw the NPDES program. 
Commenters stated that EPA designation in authorized States would 
conflict with State decisions regarding its NPDES program, for example, 
by overriding a State's decision not to regulate certain AFOs. One 
commenter expressed concern that the rule could result in inconsistent 
permitting decisions for similar sources located in different EPA 
Regions.
    EPA also received comments recommending that a limit or threshold 
level be established for the number of small AFOs that would be 
designated on a case-by-case basis under this rule. These commenters 
suggested that such a limitation would place a cap on the potential 
strain to State resources caused by the inclusion of a large number of 
additional facilities that would be added to the NPDES program. Some 
comments stated that only AFOs that discharge pollutants from a point 
source--a discrete, confined, discernable conveyance--can be permitted 
whereas nonpoint source dischargers could not. Others commented that 
Congress only intended to regulate large AFOs.
    What is EPA promulgating today? In response to comments received on 
the proposed rule, EPA is not taking final action on the proposed 
changes to the NPDES regulations applicable to AFOs and CAFOs at 
Sec. 122.23.
3. Designation of Concentrated Aquatic Animal Production Facilities 
(CAAPFs)
    What did EPA propose? EPA proposed changes to the NPDES regulations 
regarding the designation of concentrated aquatic animal production 
facilities (CAAPFs). EPA proposed explicit language describing its 
authority, in States with approved NPDES programs, to designate aquatic 
animal production facilities (AAPFs) as CAAPFs. Once designated, these 
sources would become subject to NPDES program requirements. This 
designation authority would be discretionary and if invoked, would be 
used on a case-by-case basis. The proposed authority was limited to 
instances where EPA is establishing a TMDL and the Agency determines 
that designation is necessary to provide reasonable assurance that the 
TMDL will be implemented. The Agency's purpose and basis for this 
action is nearly identical to the purpose and basis explained for EPA 
designation of CAFOs in NPDES-authorized States.
    Under existing regulations, concentrated aquatic animal production 
facilities are subject to the NPDES program. As with AFOs, one 
situation in which an AAPF is considered ``concentrated'' and thus 
subject to NPDES permitting, is when the Director so designates the 
operation or facility on a case-by-case basis. See Sec. 122.24(c). As 
with case-by-case designations of CAFOs, case-by-case designations of 
CAAPFs are based on a determination that the operation or facility is a 
significant contributor of pollutants to waters of the United States. 
In designating an operation or facility as a significant contributor of 
pollutants, the Director essentially finds that the facility's 
discharges are more like point sources already subject to NPDES 
regulation than agricultural nonpoint sources that are not.
    In making the determination that an AAPF is a significant 
contributor of pollutants to waters of the United States, the Director 
conducts an on-site inspection of the facility and considers the 
following factors: (1) The location and quality of the receiving waters 
of the United States; (2) the holding, feeding and production 
capacities of the facility; (3) the quantity and nature of the 
pollutants reaching waters of the United States; and (4) other relevant 
factors. See Sec. 122.24(c). The proposed regulatory change would 
restrict EPA's authority to exercise the discretion to designate CAAPFs 
to the same limiting situations for designating CAFOs, specifically, 
when EPA establishes a TMDL for a waterbody in an authorized State and 
determines that designation is necessary to provide reasonable 
assurance that the wasteload allocations and load allocations under the 
TMDL will be achieved.
    In addition, the preamble to the proposed rule offered an 
interpretation of the distinction between ``aquaculture'' and 
``concentrated aquatic animal production facilities.'' Based on 
additional consultation, today's preamble offers a clarification to 
that interpretation as explained below.
    What comments did EPA receive? In addition to the comments noted 
above under the section titled ``What Comments Did EPA Receive on These 
Proposed New Tools,'' the Agency received several comments specific to 
the designation of CAAPFs. EPA received very few comments addressing 
issues relevant solely to the designation of CAAPFs. The following is a 
summary of those comments. One comment expressed support for the 
proposal but suggested that the scope of designation authority should 
be broadened. This commenter expressed concern that there were too many 
exemptions under which a facility would not be covered under the NPDES 
program and that the proposal should be revised to allow for 
designation of all CAAPFs in every instance.
    Most of the comments received opposed EPA's proposal to designate 
certain AAPFs in those instances where other means of working with a 
State have failed. One commenter expressed concern that the proposal 
was a questionable expansion of EPA's authority to supercede current 
State actions that efficiently and economically regulate CAAPFs. This 
commenter stated that States with large aquatic production industries 
already have a comprehensive regulatory framework, enforcement 
authority and compliance assistance, as well as voluntary incentives, 
including operator

[[Page 43649]]

training and certification, complaint systems, and coordination with 
various State agencies.
    What is EPA promulgating today? In response to comments received on 
the proposed rule, EPA is withdrawing the proposed changes to the NPDES 
regulations applicable to AAPFs and CAAPFs at Sec. 122.24.
    By today's preamble, however, EPA offers a clarification of its 
interpretation of the distinction between ``aquaculture'' and 
``concentrated aquatic animal production facilities.'' The preamble to 
the proposed rule differentiated between ``aquaculture'' and ``aquatic 
animal production facilities'' based on the location of aquatic stock 
confinement relative to jurisdictional waters of the United States. The 
proposal indicated that with respect to ``aquaculture,'' aquatic stock 
is confined within jurisdictional waters whereas aquatic stock in 
``aquatic animal production facilities'' is not confined within 
jurisdictional waters but the facilities discharge to jurisdictional 
waters. Upon closer review of the original CWA legislative history, the 
regulations for aquaculture and aquatic animal production facilities, 
and past Agency statements on the matter, EPA today clarifies the 
statements in the preamble to the proposed rule. As an initial matter, 
the Agency notes that it did not intend to amend or revise existing EPA 
interpretations regarding the scope of the two regulations, but merely 
to provide clarification for the reader. EPA regrets any confusion 
fostered by the proposal.
    Section 318 of the CWA specifically addresses ``aquaculture.'' The 
CWA does not specifically address ``concentrated aquatic animal 
production facilities.'' The latter are a type of ``concentrated animal 
feeding operation,'' which the CWA explicitly identifies as a ``point 
source.'' The legislative history is clear that ``aquaculture,'' as the 
term is used in Section 318 of the Act, is intended to refer to 
controlled conditions at an approved aquaculture project, i.e., 
innovative reuse of effluent discharged from municipal and/or 
industrial sources. In 1977, EPA explained that aquaculture projects 
were viewed as one way to put existing pollution to productive use. (42 
FR 25478, May 17, 1977.) (``aquaculture projects using pollutants 
within navigable waters will be unique since discharges in excess of 
those permitted pursuant to effluent limitations are to be allowed 
within the project area.''). When EPA proposed the aquaculture 
regulations in August 1978, the proposed regulatory text provided:

    The regulations are intended to authorize, on a selective basis, 
controlled discharges which could otherwise be unlawful under the 
Act in order to determine, in a carefully supervised manner, the 
existing and potential feasibility of using pollutants to grow 
aquatic organisms which can be harvested and used beneficially and 
to encourage such projects, while at the same time protecting the 
other beneficial uses of the waters.

    Section 125.15(b) (as proposed at 43 FR 37132 on August 21, 1978). 
The Agency further proposed that:

    These regulations do not apply to those aquaculture facilities 
such as fish hatcheries, fish farms, and similar projects which do 
not use discharges of wastes from a separate industrial or municipal 
point source for the maintenance, propagation and/or production of 
harvestable freshwater, marine, or estuarine organisms. Such 
projects are regulated directly as aquatic animal production 
facilities under section 402 of the Act.

    Section 125.15(c) (as proposed on August 21, 1978). The 1978 
proposal was nearly identical to the aquaculture regulations then in 
existence under Part 115. Its purpose was to incorporate the Part 115 
regulations into the NPDES permit regulations, reflecting the Agency's 
intent to merge aquaculture permitting into the NPDES program following 
changes to Section 318 in the 1977 CWA amendments. While the current 
regulations addressing aquaculture have changed slightly and been 
renumbered, the proposed regulatory text quoted above most clearly 
illustrates the distinction between ``aquaculture'' within the meaning 
of CWA section 318 and regulated under Sec. 122.25, and ``concentrated 
aquatic animal production facilities'' regulated under Sec. 122.24. 
Therefore, by today's final rule, EPA is clarifying that the 
distinction between ``aquaculture'' and ``concentrated aquatic animal 
production facilities'' is not based on the location of aquatic stock 
confinement relative to jurisdictional waters of the United States. 
Most commercial fish husbandry that the layperson refers to as 
``aquaculture,'' including fish farms located in waters of the U.S., is 
subject to NPDES regulation under the rubric ``concentrated aquatic 
animal production facility.'' As with feedlots, an ``aquatic animal 
production facility'' is subject to regulation under the NPDES 
permitting program only if the facility is ``concentrated'' according 
to the NPDES regulations.

4. Designation of Point Source Storm Water Discharges Associated With 
Silvicultural Operations

    What did EPA propose? The proposed regulations would have provided 
States authorized to administer the NPDES program and EPA with the 
opportunity to use the NPDES program to manage pollution from forestry 
operations under certain circumstances. As proposed, a State could 
designate a forestry operation not already subject to NPDES permit 
requirements, as requiring an NPDES permit only (1) where the operation 
includes a physical ``discharge'' of storm water from a discrete, 
confined, discernible conveyance (a physical point source); and (2) 
upon a determination that the operation was a ``significant contributor 
of pollutants'' or was contributing to the violation of a water quality 
standard. The proposal would have also provided EPA with this 
designation authority. The Agency's use of this authority, however, 
would have been limited to instances where the Agency establishes a 
TMDL and designation is deemed necessary to provide ``reasonable 
assurance'' that a source would meet its allocated load reductions 
under the TMDL.
    Under the proposed regulations, pollutants from forestry operations 
that do not cause significant water quality problems would not be 
subject to the NPDES program. Even where forestry activities were 
causing significant water quality problems, State permitting 
authorities would have retained the option of determining that 
approaches other than the NPDES program, such as State voluntary or 
alternate regulatory programs, would be more effective and sufficient 
to restore the health of the polluted waterbody.
    As proposed, where a State identifies a polluted waterbody, the 
State would be required to develop a TMDL to restore the water and 
provide ``reasonable assurance'' that the necessary pollution controls 
would actually be implemented. States authorized to administer the 
NPDES program would have, among others, the option to issue an NPDES 
permit for a point source discharge of storm water associated with a 
forestry operation to provide ``reasonable assurance'' that the 
pollution control measures would be implemented. EPA noted in the 
proposal that the Agency expected that States would use this permit 
option only to address ``bad actors'' who had not responded to various 
non-regulatory approaches and were not adequately implementing best 
management

[[Page 43650]]

practices to control water quality impacts.
    The Clean Water Act requires that EPA review and approve TMDLs as 
adequate to restore the health of polluted waters. Where a State TMDL 
is not adequate and EPA disapproves the TMDL, EPA is required to 
establish the TMDL. In cases where EPA establishes a TMDL that 
identifies silvicultural activities as a significant source of 
pollutant loadings, the Agency proposed that it would work with the 
States and rely on voluntary, incentive-based approaches, where such 
approaches are proven to be effective, to provide reasonable assurance 
that the loads and wasteloads allocated in the TMDL would be achieved. 
Where working with the State did not prove successful, the proposed 
regulations would have allowed EPA to designate, as a point source 
discharge, the addition of pollutants from forestry activities that 
discharge storm water through a discrete, confined, discernible 
conveyance. As discussed in the preamble to the proposed regulations, 
EPA expected that the Agency would use this authority only as a last 
resort. To accomplish this objective and achieve the intended result in 
the least burdensome fashion, EPA proposed changes to the silviculture 
and storm water permit provisions at Secs. 122.27 and 122.26.
    Forests have a significant role in protecting the quality of our 
Nation's waters. Covering about one-third of the Nation's land area, 
forests are the source of about two-thirds of the Nation's runoff, 
excluding Alaska. Vegetated forested lands help to dissipate rain, 
reduce flooding and slow storm water runoff. In addition, forested 
lands help to refill underground aquifers, cool and cleanse water, and 
provide critical habitat for fish and wildlife. Forests also improve 
our quality of life by providing abundant recreational opportunities.
    EPA recognized that implementing properly designed forest 
management plans can result in silvicultural activities that are both 
profitable and protective of water quality. These plans can be designed 
to include mechanisms that would accommodate the full range of forestry 
activities that might otherwise pollute waters (e.g., by designating 
special areas for protection; planning the proper timing of forestry 
activities; describing best management measures for road layout, 
design, construction, and maintenance; and identifying the most 
appropriate methods for harvesting and forest regeneration). EPA also 
recognized that in many parts of the country, Federal agencies, States, 
and professional forest managers are implementing effective forest 
management plans combining a range of tools including education, 
financial assistance, and regulatory requirements.
    Despite these public and private forest management efforts, 
silvicultural activities may yet contribute to water quality 
impairments and aquatic habitat loss (e.g., when operators resist such 
forest management efforts or when forest management efforts become 
outdated or unresponsive to current conditions). Impairments and 
habitat loss may occur due to sediment and nutrient pollutant loadings, 
adverse impacts to runoff and infiltration patterns, and water 
temperature increases. Discharges due to improper road design, 
location, maintenance and use also can impair aquatic ecosystems and 
result in physical alterations in stream channel morphology and 
substrate composition, stream bank destablization, changes in flow 
regime, habitat fragmentation, etc. (``Environmental Assessment to the 
Interim Rule: Administration of the Forest Development Transportation 
System: Temporary Suspension of Road Construction and Reconstruction in 
Unroaded Areas,'' February 1999, USDA Forest Service). Sedimentation 
due to uncontrolled discharges from silviculture activities, for 
example, discharges from forest road building, threatens water quality 
and important aquatic habitat.
    In 1998, 32 States identified forestry as a source of water quality 
problems that affect more than 20,000 miles of rivers and streams, 
220,000 acres of lakes, and 15 square miles of coastal waters. This 
data was derived from an unpublished analysis using data from the 1998 
section 303(d) lists and the CWA section 305(b) reports. The Agency 
believes that these numbers underestimate the number of waters impaired 
by forestry operations due to a number of data limitations.
    EPA proposed changes to the NPDES regulations for silviculture and 
for storm water discharges in order to address this potential source of 
significant impairment. Most discharges of storm water associated with 
road building and other land disturbing activity that disturbs more 
than five acres of land are currently regulated under the NPDES 
permitting program pursuant to the NPDES permit regulations for storm 
water discharges at Sec. 122.26. EPA published the storm water 
discharge application regulations in 1990. After promulgation of those 
regulations, and in discussions with stakeholders, it became clear to 
EPA that, at a minimum, there was a perception of a ``gap'' in 
regulatory treatment of silviculture roads compared to all other types 
of roads. This regulatory gap arose based on the NPDES regulation 
addressing silvicultural sources which identified, among other things, 
silvicultural ``road construction and maintenance from which there is 
natural runoff'' as a nonpoint source silvicultural activity.
    The Agency believes that it acted within its delegated authority 
when it proposed to remove this sentence from the regulation. EPA 
proposed that, under limited circumstances, when a silvicultural 
activity results in a ``physical'' point source discharge that can and 
should be regulated under NPDES permits, like those for other storm 
water discharges, States and EPA should have the option of using the 
NPDES program as a means to address the water quality impacts from a 
significant remaining, unregulated source of pollutants causing adverse 
impacts to water quality. Specifically, the Agency believed that this 
option should be available to address those sources that are doing a 
poor job of implementing measures designed to prevent water quality 
problems.
    The proposal would have provided all NPDES permitting authorities 
with sufficient authority to regulate ``physical'' point source 
discharges from silvicultural sources not already subject to NPDES 
permit requirements. Again, the Agency hastens to note that the 
existing limitation on regulation of discharges from silvicultural 
sources was not compelled by the CWA. EPA promulgated the existing 
regulation on silviculture based on the interpretive authority for 
rulemaking under CWA section 501(a), which authorizes the Administrator 
to prescribe regulations that are necessary to carry out her functions 
under the Act. The CWA preserves the rights of States to experiment 
with alternative regulatory (and non-regulatory) approaches to control 
nonpoint sources of pollution. The CWA does not provide specific legal 
authority for EPA to regulate nonpoint sources in a way that would 
assure the attainment of water quality standards. Such authority is 
reserved for the States.
    Under the proposed rule, EPA would have deleted a sentence from the 
existing NPDES regulations that identifies a series of nonpoint source 
silvicultural activities (Sec. 122.27(b)(1)). While most such 
activities, in fact, can result in diffuse runoff (i.e., a nonpoint 
source of pollutants), some discharges from some silvicultural 
activities may physically resemble point source discharges. As early as 
1976, the Agency

[[Page 43651]]

struggled to articulate a general definition for the term nonpoint 
source. (41 FR 24709, 24710 col.2, June 18, 1976). There was, and 
perhaps remains, however, no precise and absolute definition. Id. In 
the 1976 preamble, EPA relied on three criteria to characterize 
nonpoint sources: Pollutants discharged are induced by natural 
processes; pollutants discharged are not traceable to any discrete or 
identifiable facility; and pollutants discharged are better controlled 
through the utilization of BMPs, including process and planning 
techniques. As evidenced by implementation of the NPDES permitting 
program for storm water discharges associated with construction, the 
first and third of these criteria are probably less meaningful in the 
current context of silvicultural road building and maintenance.
    As explained in the preamble to the proposed rule, EPA premised the 
existing silviculture regulation (at Sec. 122.27) on a judicial 
decision that held that EPA could not exempt any point sources from the 
NPDES permitting program. See Natural Resources Defense Council, Inc. 
v. Costle, 568 F.2d 1369 (D.C. Cir. 1977). EPA interprets the 1987 
storm water amendments in CWA section 402(p)(1) to essentially 
supercede this judicial finding and create a new category of 
``unregulated point sources.'' In place of this regulatory gap from 
permitting for silvicultural discharges, the proposed rule would allow 
for case-by-case regulation of a new category of ``unregulated point 
sources'' associated with the silvicultural activities that are 
currently unregulated under the NPDES program. Note that ``return flows 
from irrigated agriculture'' and ``agricultural storm water'' are 
``statutory'' nonpoint sources (based on CWA section 502(14)). As such, 
EPA can not and would not attempt to regulate those statutory nonpoint 
sources under the NPDES permitting program. The Agency emphasizes that 
the proposal would have affected only those currently unregulated 
silvicultural activities that cause ``physical'' point source 
discharges. As discussed previously, except for some CAFOs, a term 
specifically included in the definition of ``point source,'' the NPDES 
permit requirement only applies when a particular source has the 
``physical characteristics'' of a point source discharge. As a 
threshold matter, regulation as a point source requires a ``discrete, 
confined, and discernible conveyance.'' CWA section 502(14), 33 U.S.C. 
section 1362(14).
    In the 1987 amendments to the CWA, Congress established a general 
moratorium against permitting discharges composed entirely of storm 
water in CWA section 402(p)(1). As such, the section created the 
category of ``unregulated'' point sources of storm water described 
above. Unregulated point sources of storm water are point sources to 
which the NPDES permitting program does not apply. CWA section 
402(p)(2) identified discharges that are not subject to the moratorium, 
including discharges from municipal separate storm sewer systems 
serving populations over a certain size, as well as storm water 
discharges associated with industrial activity.
    Of particular interest, CWA section 402(p)(2)(E) specifically 
identifies a category of discharges--other than municipal or industrial 
storm water discharges--that can be regulated on a case-by-case at some 
future time. EPA regulations that implement section 402(p)(2)(E) are 
found at Sec. 122.26(a)(1)(v). Section 402(p)(2)(E) is the basis and 
the only basis, upon which physical point source discharges from the 
currently unregulated silvicultural activities would be required to 
obtain an NPDES permit. Designation under section 402(p)(2)(E) is only 
available for point sources. The sentence in EPA's current silviculture 
regulation that identified nonpoint source discharges from 
silvicultural activities enabled inconsistent interpretations regarding 
whether discharges from such activities, which otherwise would appear 
to add pollutants from a discrete, confined, discernible conveyance, 
could be designated under section 402(p)(2)(E). EPA proposed deletion 
of this sentence to clarify the circumstances when such sources can and 
should be regulated under the NPDES permitting program for storm water 
discharges.
    As noted above, the reason EPA proposed to remove the sentence 
describing silvicultural nonpoint sources was to provide States with an 
additional tool to manage water quality impacts from these sources as 
well as to ensure that EPA could implement a TMDL that the Agency might 
be required to establish in the event of State default. Accordingly, 
the proposed rule would have imposed a restriction on EPA that would 
not exist for States. Specifically, the Agency could not have 
designated discharges from currently unregulated silvicultural 
activities except in instances where EPA must establish a TMDL. This 
additional tool would be provided to NPDES-authorized States and to EPA 
under the combination of the existing storm water regulations which 
allow for case-by-case designation of certain storm water discharges at 
Sec. 122.26(a)(1)(v) and by amending the silviculture regulations at 
Sec. 122.27.
    EPA notes that it did not provide an accurate cite for one of the 
documents cited in the proposal that described the impacts of 
silviculture on water quality. The Agency did not intend to 
misrepresent the views of the authors of the cited publication. EPA 
erroneously cited the wrong document authored by one of the same 
authors of a document in the same year (1989). The paper that the 
Agency intended to cite is titled, ``An Overview of Nonpoint Source 
Pollution in the Southern United States'' authored by Neary, D.G., 
Swank, W.T., Riekerk, H., which was published in ``Proceedings of the 
Symposium: Forested Wetlands of the Southern U.S.,'' July 12-14, 1988, 
Orlando Fl., U.S. Forest Service. General Technical Report SE-50, 
published January 1989.
    The proposed rule contained the statement, ``silviculture 
contributes approximately three to nine percent of nonpoint source 
pollution to the Nation's waters.'' EPA meant to state that, based on 
State assessments reported in the 1988 section 305(b) Report to 
Congress (EPA Document #440-4-90-003), three to nine% of assessed 
rivers are impaired by silviculture. The Neary et al. document that the 
Agency intended to cite supports this statement. This document contains 
the statement that, ``except for two [of the reported] states, 
(Arkansas and Louisiana), silviculture was responsible for 8% of the 
impacts on surface waters.'' This number falls within the range 
reported by the States in the 1988 section 305(b) report.
    What comments did EPA receive? In addition to the comments noted 
above under the section titled ``What Comments Did EPA Receive on These 
Proposed New Tools,'' the Agency received many comments specific to the 
designation of silvicultural activities. The following discussion 
summarizes these comments. An overwhelming number of commenters had a 
basic misunderstanding of what the Agency proposed. These commenters 
misinterpreted the proposal to mean that, upon promulgation of the 
rule, each and every existing and future silvicultural operation would 
be required to obtain an NPDES permit. Based on this misunderstanding, 
these commenters also misunderstood the proposal as a mechanism that 
would unfairly and unnecessarily regulate even those operators that are 
adequately implementing appropriate measures to protect water quality. 
As discussed above, the scope of the proposed authority was much 
narrower, it only

[[Page 43652]]

applied in very limited circumstances, and would have been a mechanism 
to address bad actors only.
    Several commenters claimed that obtaining and issuing NPDES permits 
would be an economic burden to the forestry industry as well as the 
government and that the money to obtain and issue these permits would 
not be well spent because it would not produce a meaningful change in 
water quality. Claiming that forestry has been reported as only a minor 
source of water quality pollution, commenters further claimed that EPA 
lacks the data to support this regulatory change. Commenters also 
asserted that the economic analysis to the proposal underestimated the 
costs to landowners of obtaining an NPDES permit. Many commenters 
expressed their belief that existing regulatory and voluntary State 
Forest Management programs are adequate to manage the environmental 
impacts from silviculture and that the proposal, if finalized, would 
undercut these programs.
    A significant number of commenters asserted that EPA lacks the 
authority to make the proposed regulatory changes. These commenters 
disagreed with the Agency's position that the CWA provides adequate 
statutory authority to make these revisions. Several commenters stated 
that EPA did not have the authority to redefine general silvicultural 
practices as point sources unless there was an associated conveyance. 
Other commenters argued that EPA cannot and should not shield sources 
with discharges from discrete, discernible, confined conveyances from 
NPDES permit requirements. These commenters asserted that all sources 
with discharges from discrete, discernible, confined conveyances are 
and should be required to obtain NPDES permits. EPA also received a 
significant number of comments that asserted that EPA does have the 
statutory authority to make these regulatory changes. These commenters 
pointed out that in the absence of clear statutory language excluding 
silvicultural activities from the definition of a point source, EPA has 
the authority to regulate them as point sources. These commenters also 
highlighted the court decision in NRDC v. Costle, where the U.S. Court 
of Appeals for the D.C. Circuit explicitly held that ``the power to 
define point and nonpoint sources is vested in EPA.'' 568 F.2d at 1382.
    The Agency received numerous comments in support of the proposed 
authority to designate certain silvicultural operations as requiring 
NPDES permits. Several commenters provided data and case examples 
describing the need to permit silvicultural activities including data 
describing the adverse impacts to water quality from increased sediment 
loadings, road construction and the use of herbicides. Many commenters 
stated that the proposed authority was too restrictive to provide 
meaningful environmental results. These commenters encouraged EPA to 
expand designation authority to allow EPA to designate a source outside 
of the context of a TMDL and to expand the authority to apply 
universally to sources discharging into any water of the United States.
    Many commenters encouraged EPA to require NPDES permits for all 
silvicultural operations that discharge pollutants from a point source 
to waters of the United States as opposed to the proposed case-by-case 
approach. Several commenters expressed their concern that the proposed 
case-by-case designation authority was retroactive in effect because 
designation was limited to instances where the State or EPA had already 
determined that the operator is a significant contributor of pollutants 
or contributes to a violation of water quality standards. These 
commenters supported a more proactive approach that would place less of 
a burden on the State or EPA. To preserve unspoiled waters, many also 
suggested that the authority be available to the State or EPA to 
designate sources currently located on these waters and those sources 
that wish to locate on these waters in the future.
    Commenters expressed their concern regarding the potential for 
citizens to petition the State or EPA to issue an NPDES permit to 
silviculture operators. They were concerned that citizen suits would be 
costly and cause significant delays in operation. Conversely, some 
commenters supported the ability for citizens to use the petition 
process so that citizens can help to identify silvicultural operations 
that are causing significant water quality problems. Others expressed 
concern that sources undergoing land clearing activities incidental to 
activities such as farming or construction and development would claim 
that they are conducting silvicultural activities and therefore would 
be exempt from NPDES permit requirements (unless and until designated).
    Some commenters asserted that the proposed requirement would 
override State control over land use decisions. These commenters 
asserted that requiring an NPDES permit constituted a Federal 
``taking'' of a private landowner's use of property. Commenters also 
suggested that States (and the sources within States) that have 
effective and adequately protective forestry programs should be exempt 
from the effects of the proposed provisions. These commenters suggested 
that EPA develop reporting criteria that allow for a reasoned 
determination of whether a State is demonstrating the level of effort 
sufficient to warrant a determination that its forestry program 
provides ``reasonable assurance'' that water quality will be protected.
    What is EPA promulgating today? In response to comments received on 
the proposed rule, EPA is not taking final action in today's rule on 
the proposed changes to the NPDES regulations applicable to 
silviculture at Secs. 122.26 and 122.27. EPA has no plans at present to 
repropose changes to the silviculture exemption or to finalize the 
August 1999 proposal, but will continue to evaluate how to best address 
the water quality impacts from forestry.

5. EPA Authority To Reissue Expired and Administratively-Continued 
NPDES Permits Issued by Authorized States

    What did EPA propose? As discussed in Section III.A.3, Reasonable 
Further Progress Toward Attaining Water Quality Standards in Impaired 
Waterbodies in the Absence of a TMDL, of this preamble, EPA proposed to 
grant the Regional Administrator the discretion to trigger the 
objection procedures of Sec. 123.44 to ensure that established TMDLs 
are, in fact, implemented.
    What comments did EPA receive? The comments received on this 
proposal are discussed in III.A.3, Reasonable Further Progress Toward 
Attaining Water Quality Standards in Impaired Waterbodies in the 
Absence of a TMDL above.
    What is EPA promulgating today? After carefully considering all of 
the comments EPA received on the proposed mechanism and considering 
further the purpose underlying the authority, EPA is today promulgating 
proposed Sec. 123.44(k) as reflected in today's Federal Register. A 
discussion of EPA's authority to review, object to, and reissue State-
issued NPDES permits that have been administratively-continued 
authorizing discharges to impaired waters is contained in Section 
III.A.3. of this preamble and below. The scope of this provision is 
consistent with what the Agency proposed on August 23, 1999 except as 
discussed below. The Regional Administrator will generally have the 
discretionary authority to review, object to, and reissue, if 
necessary, environmentally-significant State-issued NPDES permits

[[Page 43653]]

that have been administratively-continued after expiration. An 
environmentally-significant permit authorizes a discharge to a 
waterbody that does not attain and maintain water quality standards 
where there is a need for a change in the existing permit limits to be 
protective of water quality standards.
    The availability of this authority is important for permits that 
authorize discharges of pollutant(s) of concern to waterbodies where a 
TMDL has been established but not implemented through permits. Under 
these circumstances, the availability of this authority for these 
permits is important because they do not contain limits and/or 
conditions that are consistent with applicable wasteload allocations 
established in a TMDL. In response to comments supporting the proposal 
and suggesting that EPA commit to action more strongly, EPA has 
modified the proposed rule as it relates to the operation of the 
provision after the establishment of a TMDL. In Sec. 130.32(c)(1)(ii) 
of today's rule, EPA commits to exercise its authority to act on 
expired State-issued permits (when State law ``administratively 
continues'' the expired permit) to ensure the incorporation of effluent 
limitations (based on the wasteload allocation(s) in a TMDL) into the 
NPDES permit. EPA commits to exercise this authority to ensure that 
such limits are incorporated into the permits within two years from the 
expiration of the permit term, or, when the permit term expired prior 
to the establishment of the TMDL, within two years from the 
establishment of the TMDL. In order to ensure that these limits are 
incorporated into the permits, EPA intends to monitor the State's 
progress in incorporating the appropriate limits into the permits 
within one year after the permit expires or, when the permit expired 
prior to establishment of the TMDL, within one year of establishment of 
the TMDL. In accordance with the new provisions of 
Sec. 130.32(c)(1)(ii), if EPA concludes that the State will not issue 
the permit within the applicable timeframe, with the appropriate 
limits, EPA will trigger these review and objection procedures. These 
provisions apply only to TMDLs approved after the effective date of 
today's rule.
    Implementation plans for TMDLs (described in the revisions to Part 
130 elsewhere in today's Federal Register) need to contain a schedule 
for reissuing or revising relevant NPDES permits as expeditiously as 
practicable in order to incorporate effluent limits consistent with the 
wasteload allocation(s) in the TMDL. Where EPA is the NPDES permitting 
authority, EPA must reissue or revise the permits within two years 
after the establishment of the TMDL. EPA will rely on existing 
regulations at Sec. 122.62(a)(2) as a basis to modify permits during 
their term to revise existing WQBELs or incorporate new WQBELs to 
implement the wasteload allocation(s) in the TMDL (which, in turn, 
implement existing water quality standards). EPA explained the 
operation of Sec. 122.62(a)(2) in an earlier rulemaking preamble. (45 
FR 33290, 33315 col. 1, May 19, 1980). A TMDL that implements a water 
quality standard where that water quality standard was in existence at 
the time of permit issuance represents ``new information'' that did not 
exist at the time of permit issuance. This justifies new permit 
requirements to implement those standards. [Note: Where a TMDL 
implements a water quality standard and that water quality standard is 
revised or issued after the issuance of a permit, the applicable 
regulation would be Sec. 122.62(a)(3) rather than (a)(2). Thus, 
modification of the permit prior to expiration would not be authorized 
unless (A) the permit condition to be modified was based on EPA 
approved or promulgated water quality standards, (B) EPA has approved a 
State action with regard to the water quality standard on which the 
permit condition was based and (C) the permittee requests modification 
in accordance with Sec. 124.5 within 90 days of the Federal Register 
notice of the action on which the request is based.]
    The Agency believes that this mechanism is necessary to support the 
goals of the CWA to attain and maintain water quality standards. The 
Agency further believes that this authority is necessary to facilitate 
the fulfillment of EPA's statutory responsibility to ensure timely 
establishment and implementation of TMDLs and to ensure that permits 
include water quality-based effluent limitations that will enable the 
waterbody to meet the applicable water quality standards. CWA sections 
303(d) and 301(b)(1)(C). The wasteload allocations derived from the 
TMDL provide the basis for the water quality-based effluent limitations 
that permits must contain. EPA has concluded that the time frames 
discussed above are necessary to ensure timely TMDL implementation.

IV. Costs of the Rule

    The incremental costs associated with today's rule are contained in 
``Analysis of the Incremental Cost of Final Revisions to the Water 
Quality Planning and Management Regulation and the National Pollutant 
Discharge Elimination System Program''. You should read that document 
for a complete description of the cost estimates and the basis for 
those estimates. The following is a summary from that report.

------------------------------------------------------------------------
                                                              Annualized
                                                             cost  (2000
              Revision to the current program                    $ in
                                                              millions/
                                                                 yr)
------------------------------------------------------------------------
Revisions to the listing requirements......................       $0.066
Revisions affecting the content and development of TMDLs...       13.708
Revisions requiring TMDLs to be developed within 10 years..        9.030
EPA reissuance of state-issued expired and administratively        0.078
 continued permits.........................................
                                                            ------------
    Total annualized cost..................................      $22.882
------------------------------------------------------------------------

    For the Water Quality Planning and Management Rule (changes to part 
130), EPA estimated the incremental costs that will accrue from today's 
regulation over the period from 2000 through 2008. This period of 
analysis was chosen because it spans a 10 year period, the full time 
during which most TMDLs will be developed for waterbodies included on 
the 1998 section 303(d) lists of impaired waters. Today's final rule 
allows States, Territories, and authorized Tribes up to 2010 to 
establish all the TMDLs for waterbodies included on the 1998 section 
303(d) list; therefore, the actual costs may be lower than estimated. 
The incremental costs that are analyzed are the additional requirements 
of today's rule above the current requirements associated with 
developing all the section 303(d) lists and all the TMDLs that will be 
completed during this period. In accordance with today's rule, section 
303(d) lists will be developed in 2002, in 2006, and in 2010. During 
this period, all TMDLs will be developed for waterbodies on the 1998 
lists, most of the TMDLs will be developed for waterbodies newly listed 
in 2002, some of the TMDLs will be developed for waterbodies newly 
listed in 2006, etc.
    As shown above, the net annualized cost that is attributable to the 
revisions to the listing requirements over and above the current 
program amounts to about $0.066 million. This reflects the net of the 
additional cost attributable to the listing requirement (about $0.229 
million) offset by the annualized savings associated with extending the 
listing cycle from two years to four years (about $0.163 million). The 
additional cost of revised requirements for developing TMDLs is 
estimated to be about $13.708 million annually for the TMDLs that will 
be developed for waterbodies on

[[Page 43654]]

the 1998 303(d) list. For perspective, these additional costs represent 
about a 9% increase in the baseline costs of developing these TMDLs as 
required under the current program prior to the revision of the Water 
Quality Planning and Management Rule. Finally, the revised requirements 
are expected to result in accelerating the development of about 17% of 
the TMDLs for the 1998 section 303(d) lists. The additional cost 
associated with developing these TMDLs on a more rapid schedule than 
would have occurred in the baseline is estimated to be about $9.03 
million annually through 2008.
    For the provision in the new regulation affecting the NPDES program 
(parts 122, 123, and 124), EPA estimated the incremental costs relating 
to EPA reissuing expired State-issued and administratively continued 
permits where necessary to implement a TMDL. The analysis of the 
incremental costs of the NPDES program revision is limited to the 
incremental costs that the regulation will impose in connection with 
waterbodies on the current section 303(d) list and associated sources. 
TMDLs for waterbodies on the 1998 section 303(d) lists are assumed to 
be developed during the period from 2000 through 2008.
    As shown above, the total annualized cost associated with the 
provision is estimated to be $0.078 million per year. Costs to State 
and Federal permit authorities include the additional permitting and 
evaluation burdens associated with the proposed revision. The 
annualized costs shown above reflect all costs projected to be incurred 
from 2000 onward and are presented in March 2000 dollars.

V. Regulatory Requirements

A. Regulatory Flexibility Act (RFA), as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions. For purposes 
of assessing the impacts of today's rule on small entities, a small 
entity is defined as: (1) A small business according to the RFA default 
definition for small business (based on the Small Business 
Administration size standards); (2) a small governmental jurisdiction 
that is a government of a city, county, town, school district or 
special district with a population of less than 50,000; (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field. For 
purposes of the RFA, States, Territories and tribal governments are not 
considered small government jurisdictions since they are independent 
sovereigns.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This final 
rule will not impose any requirements on small entities. Today's rule 
established requirements applicable only to EPA, States, Territories, 
and authorized Tribes. Thus, EPA is not required to prepare a 
regulatory flexibility analysis.
    Court decisions make it clear that the RFA imposes no obligation on 
an agency to prepare a small entity impact analysis of the effect of a 
rule on entities which the rule itself does not regulate. Rules which 
do not regulate small entities directly--rules which affect the 
decisions made by other regulators for example--do not require an 
analysis of such effects. Therefore, the key issue in deciding whether 
EPA must prepare a regulatory impact analysis here is whether today's 
rule will ``regulate'' small entities. Court decisions provide further 
guidance on when, for purposes of triggering the RFA requirement, a 
small entity is not subject to a rule or not regulated by a rule.
    For example, the U.S. Court of Appeals for the District of Columbia 
Circuit has determined that the Federal Energy Regulatory Commission 
(FERC) was not required to analyze the effects of two rules on small 
entities that were not subject to the requirements of the rules. In the 
first case, the rule had the effect of increasing the rates that 
electric utilities could charge their wholesale customers for 
electricity. The agency certified that the rule would not have a 
significant impact on a substantial number of small entities because 
virtually none of the utilities it regulated were small entities. 
Challengers to the agency argued that the RFA applied to all rules that 
affect small entities, whether the small entities are directly 
regulated or not. In their view, therefore, FERC should have considered 
the effect of the rule on customers of the electric utilities subject 
to rate regulation by FERC. The court disagreed, finding that under the 
RFA, an agency may properly certify that no regulatory flexibility 
analysis is necessary when it determines that the rule will not have a 
significant economic impact on a substantial number of small entities 
that are subject to the requirements of the rule. ``Congress did not 
intend to require that every agency consider every indirect effect that 
any regulation might have on small businesses in any stratum of the 
national economy.'' Mid-Tex Elec. Coop., Inc. v. FERC, 773 F.2d 327, 
342 (D.C. Cir. 1985).
    In the second FERC case, the court reaffirmed this earlier 
conclusion. In this case, the rule regulated the rates natural gas 
pipeline company charged local gas distribution companies for the sale 
(or transportation) of natural gas purchased by them. Under its 
enabling statute, FERC had no jurisdiction to regulate the local 
distribution of gas, only the interstate sale and transportation of 
natural gas. The local distribution companies argued that the rule 
would have a significant economic impact on them as customers of the 
regulated utilities. The court again held that no analysis is required 
when the agency determines the rule will not have a substantial 
economic impact on the small entities subject to the rule. FERC had no 
obligation to prepare an analysis of the economic effects of a rule on 
small entities which the rule itself did not regulate. United 
Distribution Company v. FERC, 88 F.3d 1105, 1048 (D.C. Cir. 1996).
    In addition, there are also a number of cases that have addressed 
EPA's obligation under the RFA when proposing and promulgating Clean 
Air Act (CAA) rules. The D.C. Circuit sustained EPA's certification of 
a rule establishing Federal automobile on-board emissions diagnostic 
devices. The rule allowed automobile manufacturers to comply with 
Federal requirements by complying with certain California regulations. 
EPA certified that the rule would not have a substantial economic 
impact on a significant number of automobile manufacturers. Businesses 
that manufacture, rebuild and sell car parts to replace the parts 
installed by the original manufacturers challenged EPA's failure to 
consider the effect of the rule on their businesses. The court held 
that, because the rule did not subject the car parts market itself to 
regulation, EPA was not required to prepare a flexibility analysis as 
to small businesses dealing in car parts. EPA only was obliged to 
consider the impact of the rule on small automobile manufacturers 
subject to the rule. Motor & Equipment Mfrs, Ass'n v. Nichols, 142 F,3d 
449, 467 (D.C. Cir. 1998).

[[Page 43655]]

    Recently, the D.C. Circuit determined that EPA properly certified 
that its revisions to the ozone and particulate national ambient air 
quality standards (NAAQS) would not have a significant economic impact 
on a substantial number of small entities. Under the CAA, EPA must 
promulgate NAAQS and State must then adopt State Implementation Plans 
(SIPs) providing for the implementation, maintenance and enforcement of 
the standards. 42 U.S.C. Sec. 7410(a)(1). The NAAQS themselves impose 
no regulation upon emission sources. Rather, the States regulate 
sources of emissions through the SIP. EPA may call for revisions to 
SIPs if EPA finds that the SIP is inadequate to meet the NAAQS or to 
otherwise comply with the CAA. 42 U.S.C. Sec. 7410(k)(5). Only if a 
State does not submit a SIP that complies with CAA requirements must 
EPA adopt an implementation plan of its own.
    The court held that EPA correctly determined that the NAAQS will 
not directly affect small entities because EPA has no authority to 
impose any burden upon such entities. The States have broad discretion 
in determining the manner in which they will achieve compliance with 
the NAAQS. The court concluded that the possible effects of the NAAQS 
on small entities were no different from the indirect effects on 
wholesale customers not subject to regulation in Mid-Tex. In the 
court's view, because States must submit SIPs that will achieve 
compliance with the NAAQS does not render small entities potentially 
regulated by the States ``subject'' to the NAAQS for RFA purposes. The 
court concluded that the States'' nearly complete discretion in 
determining which entities would bear the burden of achieving the NAAQS 
made these entities not subject to regulation by EPA. American Trucking 
Associations v. EPA, 175 F. 3d 1027, 1044-45 (D.C. Cir. 1999).
    More recently, the D.C. Circuit determined that a CAA rule which 
would require States to develop, adopt and submit revisions to SIPs to 
achieve required reductions in air emissions does not regulate small 
entities because it leaves to the States the task of determining how to 
obtain the reductions, including which entities to regulate. EPA does 
not tell States how to achieve compliance with required air quality 
levels. Rather, EPA merely provides the levels to be achieved by state-
determined compliance mechanisms. Under the CAA, States retain the 
power to determine which sources are burdened by regulation and to what 
extent. The rule leaves the control measures selection decision to the 
States. The rule in question did not directly regulate individual 
sources of emissions and therefore would not establish requirements 
applicable to small entities. Therefore, the court concluded that EPA 
properly certified the rule under section 605(b) of the RFA. State of 
Michigan v. EPA, 2000 WL 18.0650, p. 56 (D.C. Cir. Mar. 3, 2000).
    In today's regulations, EPA is adopting changes to its water 
quality planning and management regulations and the NPDES permitting 
program. In the case of its planning and management regulations, these 
amendments modify requirements of EPA's current TMDL program. The 
second area addressed by these changes is EPA's NPDES permitting 
program, where EPA is adopting provisions which require EPA to step in 
and reissue NPDES permits in authorized States where the State has 
failed to take certain actions required under the regulations.
    The Agency received numerous comments asserting that today's rule 
will have a direct, adverse impact on small governments and small 
businesses such as farmers and landowners, and that EPA has not met the 
requirements of the Regulatory Flexibility Act because it did not 
prepare a regulatory flexibility analysis. EPA disagrees with this 
conclusion for the reasons explained in sections 1 and 2 that follow. 
More detailed analysis is presented in the economic assessment 
document.
1. Changes to the TMDL Program
    The changes to EPA's listing and TMDL regulations do not directly 
regulate individual dischargers and therefore do not establish 
requirements applicable to small entities. As such, certification is 
proper.
    Under section 303(c) of the CWA water quality standards program, 
States, Territories, and authorized Tribes must adopt water quality 
standards for their waters that must be submitted to EPA for approval. 
These State, Territorial, or Tribal standards (or EPA-promulgated 
standards in the absence of EPA-approved State, Territorial, or Tribal 
standards) are implemented through various water quality control 
programs including the NPDES program that limits discharges to 
navigable waters in compliance with an EPA permit or permit issued 
under an approved State or Tribal NPDES program. The CWA requires that 
all NPDES permits include any limits on discharges that are necessary 
to meet State or Tribal water quality standards. A State or Tribe has 
discretion in deciding how to achieve compliance with its water quality 
standards and in developing discharge limits as needed to meet the 
standards. For example, in circumstances where there is more than one 
discharger to a waterbody that is subject to a water quality standard, 
a State or Tribe has discretion in deciding which dischargers will be 
subject to permit discharge limits necessary to meet the revised 
standards and whether and how such limits will be distributed among the 
discharges.
    Section 303(d) of the CWA requires States, Territories and 
authorized Tribes (and, under certain circumstances, EPA) to establish 
lists of waterbodies where water quality does not meet applicable 
State, Territorial or Tribal water quality standards even after 
application of technology-based effluent limitations on point source 
dischargers. States, Territories and authorized Tribes (and EPA in some 
cases) must also develop TMDLs for those waterbodies with reference to 
criteria contained in those water quality standards.
    Today's final regulation amends certain provisions of EPA's 
existing water quality management and planning regulations dealing with 
the listing of impaired waters and TMDL requirements. The regulation 
establishes new requirements for the listing program and requires 
schedules for completing TMDLs. Further, the rule establishes new 
requirements for the content and development of TMDLs, including 
development of an implementation plan as a required element of a TMDL, 
and also includes new public participation elements. (See Section II of 
the preamble for a full discussion of these specific changes). These 
new requirements allow States, Territories and authorized Tribes to 
tailor their water quality programs to address the characteristics, 
problems, risks and implementation tools available in individual 
watersheds, with meaningful involvement from stakeholders in the local 
community, by using a TMDL to align implementation under current 
programs. These final rules apply only to EPA, States, Territories and 
authorized Tribes and do not impose specific listing or TMDL 
development requirements upon any small entities. Under today's rule, 
EPA is not requiring or ordering any group of small businesses or 
government to change their method of operation/practices in any 
prescribed way.
    Even if future listing or TMDL actions ultimately may have some 
discernable effect on small entities, such impacts would actually arise 
from requirements already established under section 303(d) of the CWA 
and the States', Territories' and authorized Tribes' water quality

[[Page 43656]]

standards as described above, and not directly from these final 
regulatory amendments. Independent of today's final amendments, States, 
Territories and authorized Tribes (and, under certain circumstances, 
EPA) already have an obligation to list waterbodies and to calculate 
and apportion TMDLs and their component load and wasteload allocations 
necessary to implement the State, Territorial, and authorized Tribal 
water quality standards. Today's final rule merely amends EPA's 
existing regulations implementing those statutory requirements. 
Therefore, any potential impacts to small entities result from the 
independent statutory obligation to establish TMDLs that implement the 
State, Territorial and authorized Tribal water quality standards, and 
not from these final regulatory requirements.
    Moreover, any potential future effect on small entities that may 
result from State, Territorial or Tribal action in establishing TMDLs 
or changing current TMDLs as a consequence of adoption of today's 
regulation is not directly attributable either to the new or even 
existing TMDL rules. TMDLs are not self-implementing. They require 
State, Territorial and Tribal decision to implement them. Under the CWA 
and EPA's regulations, TMDL wasteload allocation do not automatically 
translate into NPDES permit limitations for point sources nor do they 
necessarily apply without modification to non-point sources. State, 
Territorial and Tribal authorities retain discretion in how they 
apportion wasteload allocations. Under EPA's NPDES permitting rules, 
effluent limits in point source permits must be ``consistent with'' 
(but not necessarily identical to) wasteload allocations in approved 
TMDLs. With respect to nonpoint sources, the load allocations in a TMDL 
are only ``enforceable'' to the extent State, Territorial, or 
authorized Tribes chose to bind themselves to these allocation. A 
State, Territory, or EPA decision to allocate load reductions to 
nonpoint sources does not bring that operator into a permit or 
regulatory program. Instead, implementation of the load allocation 
would be based on current State and local mechanisms, including 
implementation of State/local nonpoint source programs, and other 
voluntary and incentive-based actions. There are no Federal 
requirements that such load allocations must be met by small (or any 
other) entities.
2. Changes to the NPDES Permitting Program
    Today's final rule also amends the NPDES program regulations to 
require EPA, in certain circumstances, to reissue state-issued permits 
that have not been reissued following the expiration of their 5-year 
term. Where water quality standards (or applicable effluent limitations 
guidelines) change during a permit term, the permittee generally is 
protected during the permit term against new or more stringent permit 
conditions necessary to implement the new water quality standards or 
effluent limitations guidelines, until a new permit is issued. In most 
cases, permittees submit timely applications for renewal and permitting 
authorities reissue these permits in a timely manner. In some cases, 
authorized States may not reissue NPDES permits at the end of their 5-
year term as is currently required, and the existing permits continue 
in effect under general principles of administrative law. 
(Administrative continuance protects the permittee who has submitted a 
timely application for renewal from being penalized for discharging 
without a permit.)
    This final rule requires EPA to reissue a State issued permit that 
has expired in those cases where the State has not reissued the permit 
within two years from expiration. EPA's exercise of this authority is 
limited to circumstances in which a permit authorizes discharges to 
impaired waterbodies or the permit does not currently contain limits 
consistent with an applicable waste load allocation in an EPA approved 
or established TMDL. In addition, where a State permit has expired 
prior to the establishment of the TMDL, the regulations require EPA to 
exercise its authority to reissue the permit within two years from the 
establishment of the TMDL if the State has not acted. While EPA expects 
that authorized States will expeditiously reissue permits after they 
have expired with the required water quality-based effluent limits 
(because CWA section 402 allows a maximum five year permit term), where 
States do not reissue such permits, EPA would use this new authority to 
issue such permits in a timely manner.
    This provision also would not impose any additional costs on 
dischargers, including small entities. This is because as a matter of 
law, the discharger's new permit, when issued, already must include any 
applicable new or more stringent conditions. Therefore, the effect of 
the change is, at most, to accelerate the timing of reissuing expired 
permits such that they contain the legally-mandated new or more 
stringent conditions. Consequently, EPA has concluded that adoption of 
a rule to authorize future action by EPA would not result in the 
imposition of any new costs on small entities.

B. Regulatory Planning and Review, Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA 
must determine whether the regulatory action is ``significant'' and 
therefore subject to Office of Management and Budget (OMB) review and 
the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action.'' As 
such, this action was submitted to OMB for review. Changes made in 
response to OMB suggestion or recommendations will be documented in the 
public record.
    A detailed presentation and discussion of the costs and impacts of 
today's amendments to the TMDL and NPDES programs, and the 
methodologies used to assess them, are included in the document 
``Analysis of the Incremental Costs of Final Revisions to the Water 
Quality Planning and Management Regulation and the NPDES Program 
Regulation'', which is available in the docket for the final 
rulemaking. In addition, the Agency is preparing a supplemental cost 
and benefit analysis of the current TMDL program with publication 
planned in the near future.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, Tribal or local 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal Mandates'' that 
may result in expenditures to State, local, and Tribal governments, in 
the

[[Page 43657]]

aggregate, or to the private sector, of $100 million or more in any one 
year. Before promulgating an EPA rule for which a written statement is 
needed, section 205 of the UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that today's rule contains no Federal mandates 
(as defined by the regulatory provisions of Title II of the UMRA) for 
State, local, or Tribal governments or the private sector. The rule 
does not impose enforceable duties on any State, local or Tribal 
government or the private sector. If a State, territory or authorized 
tribe chooses not to implement this regulation, in whole or in part, 
EPA cannot compel or enforce compliance. Rather, EPA must undertake the 
actions the State, Territory, or authorized tribe has declined to 
implement.
    As described in detail previously, the total incremental cost 
associated with today's rule is not expected to exceed $22.88 million 
in any one year, and therefor does not exceed the $100 million 
threshold of UMRA. Thus, today's rule is not subject to the 
requirements of sections 202 and 205 of UMRA.
    EPA has determined that this final rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments, including Tribal governments. The requirements in today's 
rule relating to identification of impaired waters and establishment of 
TMDLs apply directly only to States, Territories and authorized Tribes. 
They do not apply to small governments of cities, counties or towns. 
Such entities are not required by today's rule to establish lists of 
impaired waters or TMDLs. Thus, the requirements of today's rule do not 
significantly or uniquely affect them in any direct way. To the extent 
that such small governments might in some indirect way be affected by a 
State's application of these regulations (e.g., its identification of a 
particular waterbody on a section 303(d) list, or its establishment of 
a TMDL for a particular waterbody with wasteload allocations that 
contemplate permit reductions for a particular small government's waste 
treatment plant), such indirect effects are not significant or unique 
to small governments. They are not unique because they might be felt by 
any entity covered by a wasteload or load allocation in a given TMDL.
    Today's rule will not significantly or uniquely affect Tribal 
governments. As explained earlier in this preamble, the Clean Water Act 
authorizes EPA to treat an Indian Tribe in the same manner as a State 
for purposes of establishing lists of waters and TMDLs, and EPA today 
is clarifying the test an Indian Tribe must meet to be authorized to 
establish lists of impaired waters and TMDLs. Currently, there are no 
Tribes authorized to establish TMDLs under section 303(d). Further, 
there are only fifteen Tribes with EPA approved or promulgated water 
quality standards. In addition, there are no Tribes authorized to 
administer the NPDES program. Consequently, this final rule will not 
significantly or uniquely affect Tribal governments. However, as Tribes 
continue to build their Clean Water Act capacity and establish water 
quality programs, more Tribes are likely to adopt water quality 
standards and seek approval to administer the NPDES program and 
establish TMDLs. Therefore, EPA included a Tribal representative on the 
TMDL FACA Committee that developed a set of recommendations that served 
as the framework for EPA in developing the TMDL proposal. The 
Committee's final report addressed Tribal issues, and recommended that 
EPA increase efforts to educate Tribes about water quality programs, 
including TMDLs, and ensure that EPA and State water quality staff 
respect the government-to-government relationship with Tribes in all 
TMDL activities. Additionally, once this rule is in effect, EPA will 
participate in Tribal conferences and workshops to inform and educate 
Tribal participants about the TMDL program and offer training to Tribes 
interested in administering the TMDL program on how to comply with the 
requirements of this rule.

D. Paperwork Reduction Act

    The Office of Management and Budget (OMB) has approved the 
information collection requirements contained in part 130 of this rule 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. and has assigned OMB control number 2040-0071.
    The requirements of part 130 guide how States and Territories 
(there are no currently authorized Tribes) identify and rank 
waterbodies which do not attain and maintain water quality standards 
following implementation of technology-based controls and establish 
TMDLs for those waterbodies that do not meet standards as a result of 
pollutant discharges. These activities are required by section 303(d) 
of the CWA. EPA also uses the information submitted under section 
303(d) to review the section 303(d) lists submitted to review whether 
they comply with the requirements of the statute and EPA's regulations 
and reflect an accurate accounting of waterbodies not meeting water 
quality standards after the application of technology-based controls. 
Also as required by section 303(d), EPA reviews TMDLs developed and 
submitted by the States and Territories to determine their technical 
sufficiency and whether they otherwise comply with the requirements of 
section 303(d) and the EPA regulations. Information collected through 
the proposed activities is not confidential because all respondents are 
State and Territorial agencies working entirely in a public forum.
    The revisions to part 130 increase the burden to States and 
Territories for four activities related to preparation of the section 
303(d) lists: revising the listing methodology, establishing schedules 
for TMDL development, increased public participation, and providing the 
listing methodology in a new format. The revisions also increase the 
burden for two activities related to establishing TMDLs: developing the 
implementation plans and writing responses to public comments. EPA's 
currently approved ICR for the period March 1999 through April 2003 was 
based on the burden to respondents of the current program and did not 
include consideration of the impact of the proposed regulations. The 
revised ICR include the increased section 303(d) listing burden to 
States and Territories that would result under the proposed regulations 
in the first three years following the effective date of the 
regulation.

[[Page 43658]]

    The average additional burden associated with the revised 303(d) 
rule requirements is estimated to be 6,497 hours per respondent, and 
the total annual burden for all 56 respondents is estimated to be 
363,845 hours. The information for lists of impaired waterbodies and 
the methodologies to develop those lists is required every four years. 
TMDLs are required consistent with schedules that are developed by 
States and Territories as part of the lists. The average additional 
cost associated with the revised 303(d) rule requirements is estimated 
to be $252,676 per respondent, and the total annual cost for all 56 
respondents is estimated to be $14,149,932. This estimate is entirely 
labor costs, and thus does not include a total capital and start-up 
cost component annualized over its expected useful life, a total 
operation and maintenance component, or a purchase of services 
component.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15. EPA is 
amending the table in 40 CFR part 9 of currently approved ICR control 
numbers issued by OMB for various regulations to list the information 
requirements contained in this rule.

E. Federalism, Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999) requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law, unless 
EPA consults with State and local officials early in the process of 
developing the proposed regulation.
    EPA received numerous comments asserting that today's rule does 
have federalism impacts and that the Agency had not met the 
requirements specified under E.O. 13132. Some commenters stated that 
EPA has no statutory or regulatory authority to require States to 
develop implementation plans as one of the required elements of TMDLs, 
and that such a requirement does substantially alter the relationship 
between EPA and the States in the TMDL Program. Other commenters 
believed that EPA did not work closely enough with the States or enable 
them to provide input on the rule. EPA also received comments claiming 
that the Agency's part 122 provisions enabling EPA to reissue State-
issued expired and administratively-continued permits represents a 
significant intrusion into the functioning of State authorities and a 
substantial revision of existing relationships. Others stated that the 
NPDES provisions would lead to a shift in the traditional relationship 
between States and the federal government beyond what was intended by 
Congress in the Clean Water Act. EPA disagrees with these comments that 
today's rule has federalism implications, for the reasons described 
below.
    Today's final rule amends the existing TMDL rule to clarify how 
impaired waters are identified and how TMDLs are established so that 
they can more effectively contribute to improving the nation's water 
quality. The regulation establishes new requirements for the content 
and format of the lists and the methodology for developing lists. It 
also establishes new requirements for the content and development of 
TMDLs, including development of an implementation plan as a required 
element of a TMDL and new public participation elements. These new 
requirements continue to allow the States, Territories and authorized 
Tribes to better tailor their water quality programs to address the 
characteristics, problems, risks and implementation tools available in 
individual watersheds, with meaningful involvement from stakeholders in 
the local community. Under this new rule, States continue to have 
primary responsibility for identifying impaired waters, setting 
priorities, and developing TMDLs. EPA's role continues to be one of 
reviewing State actions and exercising its authority to identify waters 
and develop TMDLs only in the face of inadequate State action or in 
unique circumstances where there are interstate waters or Federal water 
quality standards.
    As explained previously in the preamble, EPA has estimated that the 
total incremental costs to the States associated with parts 130 and 123 
of the rule, are estimated to be $22.88 million per year, with no 
direct costs being incurred by local governments.
    After careful consideration, EPA does not believe that this final 
rule has federalism implications within the meaning of the Executive 
Order. However, EPA places great value on the views of state, local, 
and tribal governments, and in the spirit of the Executive Order 
undertook a consultation process along the lines specified in the 
Executive Order. EPA initiated or participated in many meetings, 
teleconferences and exchanges or correspondence with state, local, and 
tribal governments. Hundreds of hours of in-depth discussions with 
state, tribal and local officials and organizations representing them 
preceded and followed the August proposals. Prior to the proposal, EPA 
convened a Federal Advisory Committee to make recommendations for 
improving the efficiency and effectiveness of TMDLs. The TMDL FACA 
Committee was comprised of 20 members, including four senior level 
State officials, an elected local official, and a Tribal consortium 
representative. Over a period of one and one-half years, the TMDL FACA 
Committee held six meetings at locations throughout the country. These 
meetings were open to the general public, as well as representatives of 
State, local, and Tribal governments, and all included public comment 
sessions. The TMDL FACA Committee focused its deliberations on four 
broad issue areas: identification and listing of waterbodies; 
development and approval of TMDLs; EPA management and oversight; and 
science and tools. On July 28, 1998, the TMDL FACA Committee submitted 
its

[[Page 43659]]

final report to EPA containing more than 160 recommendation (100 of 
them were consensus recommendations) advocating changes and 
improvements to the existing TMDL rules. EPA notes that the one local 
elected official did file a minority report taking exception with major 
portions of the Report. As explained throughout this preamble, EPA 
carefully reviewed the TMDL FACA Committee's recommendations and 
incorporated, in whole or in part, most of the majority recommendations 
in this proposal.
    Following completion of the FACA Committee process, EPA continued 
to meet with State and local government officials to seek their views 
on needed changes to the TMDL regulations and the NPDES regulations in 
support of TMDLs. Following the proposal, the Agency sponsored and 
participated in six public meetings nationwide, to better inform the 
public on what was included in the proposed rules, and to get informal 
feedback from the general public. These meetings took place in Denver, 
CO; Atlanta, GA; Kansas City, MO; Seattle, WA; Manchester, NH; and Los 
Angeles, CA. In addition, EPA has participated in numerous other 
meetings, conferences and public fora to discuss the proposed rule and 
listen to alternative approaches to achieving the nation's clean water 
goals. The Agency has had an ongoing dialogue with State and local 
officials and their national/regional organizations throughout the 
development of this rule. In particular, EPA has met with organizations 
representing State and local elected officials including: National 
Governors' Association, Western Governors' Association, Conference of 
State Legislatures, National Association of Counties, National League 
of Cities, and EPA's Local Government Advisory Committee. EPA also 
participated in numerous Congressional briefings and hearings on the 
proposed rule. There were numerous meetings with members and staff of 
organizations representing appointed officials of state government who 
play key roles in implementing the Clean Water Act, including the 
Environmental Commission of the States, the Association of State and 
Interstate Water Pollution Control Administrators, the Coastal States 
Organization, and International City Managers Association.
    While expressing support for many of the final changes being 
considered by EPA, State officials and their representatives also 
expressed concerns about the capacity of State governments to carry out 
the new requirements in today's final rule. In particular, States were 
concerned about the capacity of the State governments to carry out any 
new requirements beyond those in the current regulations. Local 
government officials expressed concerns in particular about any TMDL 
allocation approaches that could in their view, result in municipal 
point sources having to bear an inequitable share of the pollutant load 
reductions need to attain water quality standards. Both levels of 
government were concerned that, by including the requirement for an 
implementation plan, EPA was directing specific activities that States 
and local governments must use to implement TMDLs. The final rule does 
not direct specific activities that State and local governments must 
use to implement TMDLs. In developing implementation plans State and 
local governments are accorded significant flexibility to choose which 
management measures and other activities whey will undertake to 
implement the load and wasteload allocations in a TMDL. In developing 
today's rule, EPA considered the concerns of State, local and Tribal 
governments and determined the need to revise the TMDL regulations to 
provide States, Territories and Tribes with clear, consistent, and 
balanced direction for listing waters and developing TMDLs and thereby 
improve the effectiveness, efficiency and pace of TMDL establishment 
and water quality improvement.
    States were also concerned about the role of EPA in reissuing 
State-issued expired and administratively-continued NPDES permits. EPA 
determined that the exercise of its authority in limited circumstances 
is necessary to assure reasonable further progress in impaired 
waterbodies prior to the establishment of a TMDL and to provide 
reasonable assurance that TMDLs will be implemented. In developing 
today's final rule, EPA considered the concerns of State and local 
governments and determined the need to revise the NPDES and Water 
Quality Standards regulations to provide opportunities for further 
progress toward meeting water quality standards in impaired waterbodies 
and to provide reasonable assurance of effective TMDL development. 
Today's rule improves the effectiveness, efficiency and pace of water 
quality improvement and TMDL establishment.

F. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with these 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to OMB, in a separately identified section of 
the preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 13084 
requires EPA to develop an effective process permitting elected and 
other representatives of Indian tribal governments ``to provide 
meaningful and timely input in the development of regulatory policies 
on matters that significantly or uniquely affect their communities.''
    As explained above in the discussion of UMRA requirements, today's 
rule does not significantly or uniquely affect the communities of 
Indian tribal governments. In addition, today's rule does not impose 
any direct compliance costs on Tribes. There are no currently 
authorized tribal section 303(d) programs; therefore there are no 
current costs. To the extent that a Tribe decides to apply for section 
303(d) authorization, EPA expects that the Tribe will consider the 
costs in its decisions to apply. Since Tribal assumption of section 
303(d) programs is voluntary, the costs of the program are voluntarily 
assumed. Accordingly, the requirements of section 3(b) of Executive 
Order 13084 do not apply to this rule. Nonetheless, as stated in the 
discussion of UMRA, EPA intends to comply with the requirements of 
section 203 once the rule goes into effect by participating in Tribal 
conferences and workshops to inform and educate Tribal participants 
about the TMDL program and offer training to Tribes interested in 
administering the TMDL program on how to comply with the requirements 
of this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045 (62 Fed. Reg. 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the EPA must

[[Page 43660]]

evaluate the environmental health or safety effects of the planned rule 
on children, and explain why the planned regulation is preferable to 
other potentially effective and reasonably feasible alternatives 
considered by EPA.
    This final rule is not subject to Executive Order 13045 because it 
is not ``economically significant'' as defined under Executive Order 
12866. Further, it does not concern an environmental health or safety 
risk that EPA has reason to believe may have disappropriate effect on 
children.

H. National Technology Transfer and Advancement Act

    As noted in the proposed rule, Section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Pub L. No. 
104-113, Sec. 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standards bodies. The NTTAA directs EPA to provide Congress, through 
OMB, explanations when the Agency decides not to use available and 
applicable voluntary consensus standards. This final rulemaking does 
not involve technical standards. Therefore, EPA did not consider the 
use of any voluntary consensus standards.

I. Congressional Review Act

    Under the Congressional Review Act, a rule is ``major'' if the 
Administrator of the Office of Information and Regulatory Affairs 
(OIRA) finds that it is likely to result in: an annual effect on the 
economy of $100 million or more; a major increase in costs or prices 
for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions; or significant adverse 
effects on competition, employment, productivity, innovation, or on the 
ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and expert markets. The OIRA 
Administrator finds that this rule is major because it will impose a 
major increase in costs on State and local government agencies.

J. H.R. 4425 and Implementation of this Rulemaking

    Pending for the President's signature is an enrolled bill, H.R. 
4425, which among other provisions includes the following, hereafter 
referred to as the ``TMDL rider.

    None of the funds made available for fiscal years 2000 and 2001 
for the Environmental Protection Agency may be used to make a final 
determination on or implement any new rule relative to the Proposed 
Revisions to the National Pollutant Discharge Elimination System 
Program and Federal Antidegradation Policy and the Proposed 
Revisions to the Water Quality Planning and Management Regulations 
Concerning Total Maximum Daily Load, published in the Federal 
Register on August 23, 1999.


EPA is carefully evaluating this provision, with the assistance of the 
Office of Legal Counsel, Department of Justice. There is virtually no 
legislative history which accompanies this provision. The Statement of 
Managers in the Conference Report simply repeats the bill language with 
the statement that the provision was added.
    H.R. 4425 is an appropriations bill, and if it becomes law, it will 
remain in effect until October 1, 2001, at which time barring other 
action by Congress this rule would be allowed to be implemented. The 
TMDL rider in HR 4425 could also be repealed prior to that time. To 
accommodate this uncertainty, the final rule has an effective date of 
30 days after Congress allows the rule to be implemented, which will be 
more than 30 days after the rule is published in the Federal Register. 
In this way, the effective date of today's rule will comply with 
section 553(d) of the Administrative Procedure Act, the Congressional 
Review Act requirements for major rules, and HR 4425. In the time 
period before Congress allows EPA to implement this regulation, the 
pre-existing regulations will remain in place and EPA will continue to 
implement those regulations. 
    Most of the unique elements of the new rules are scheduled to be 
phased in after October 1, 2001, such as new listing requirements in 
2002, and new elements of TMDLs 18 months after publication of the 
rule. The only requirement of the new rule that would normally come 
into effect prior to October 1, 2001, is the requirement for providing 
the listing methodology to EPA by May 1, 2001. If the rider is in 
effect on that date, the rule is not effective and States, Territories, 
and authorized Tribe are not required to provide the methodology by 
that date. For this reason, if the rider is in effect at that time and 
the rule is not effective, the final rule requires States, Territories, 
and authorized Tribes to provide EPA at the time of submission of their 
year 2002 lists a description of the methodology used to develop their 
2002 lists and a description of the data and information used to 
identify waters (including a description of the existing and readily 
available data and information used by the State, Territory, and 
authorized Tribe). These are the requirements of Sec. 130.7(b), which 
is the listing requirement of the rules in effect prior to today's 
rule.
    In addition, today's rule adjusts the date on which States, 
Territories, and authorized Tribes must comply with the new TMDL 
requirements. That date is either 18 months after the date of 
publication in the Federal Register, or nine months after effective 
date of the rule, which ever occurs later. This approach reflects a 
balance between providing sufficient time for States, Territories, and 
authorized Tribes to revise their procedures consistent with the new 
TMDL requirements and implementing the new requirements as quickly as 
practicable. As discussed previously in today's preamble, EPA believes 
18 months provides States, Territories, and authorized Tribes 
sufficient time to complete TMDLs underway at the time today's rule is 
published. Also, States, Territories, and authorized Tribes will have 
sufficient notice of Congress' action, and thus will have sufficient 
time to complete TMDLs currently underway.

List of Subjects

40 CFR Part 9

    Reporting and recordkeeping requirements.

40 CFR Part 122

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous substances, Reporting and 
recordkeeping requirements, Water pollution control.

40 CFR Part 123

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous substances, Indians-lands, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Water pollution control.

40 CFR Part 124

    Environmental protection, Administrative practice and procedure, 
Hazardous substances, Indians-lands, Reporting and recordkeeping 
requirements, Water pollution control, Water supply.

40 CFR Part 130

    Environmental protection, Intergovernmental relations, Reporting 
and recordkeeping requirements, Water pollution control.


[[Page 43661]]


    Dated: July 11, 2000.
Carol Browner,
Administrator.

    For the reasons set forth in the preamble, EPA amends 40 CFR parts 
9, 122, 123, 124, and 130 as follows:

PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT

    1. The authority citation for part 9 continues to read as follows:

    Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003, 
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330, 
1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 
300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 
9601-9657, 11023, 11048.

    2. In Sec. 9.1, amend the table by removing the entries ``130.6-
130.10'' and ``130.15'', and adding new entries in numerical order 
under the indicated heading to read as follows:


Sec. 9.1  OMB approvals under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
                                                                  OMB
                       40 CFR citation                          control
                                                                  No.
------------------------------------------------------------------------
                          *    *    *    *    *
                  Water Quality Planning and Management
130.7.......................................................   2040-0071
130.11......................................................   2040-0071
130.20-130.37...............................................   2040-0071
130.51......................................................   2040-0071
130.60-130.61...............................................   2040-0071
130.64......................................................   2040-0071
------------------------------------------------------------------------

* * * * *

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

    1. The authority citation for part 122 continues to read as 
follows:

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

    2. Amend Sec. 122.44 to revise paragraphs (d) introductory text and 
(d)(1) introductory text to read as follows:


Sec. 122.44  Establishing limitations, standards, and other permit 
conditions (applicable to State NPDES programs, see Sec. 123.25).

* * * * *
    (d) Water quality standards and State requirements: any 
requirements in addition to or more stringent than promulgated effluent 
limitations guidelines or standards under sections 301, 304, 306, 307, 
318 and 405 of CWA necessary to:
    (1) Achieve water quality standards established under section 303 
of the CWA, including State narrative criteria for water quality and 
State antidegradation provisions.
* * * * *

PART 123--STATE PROGRAM REQUIREMENTS

    1. The authority citation for part 123 continues to read as 
follows:

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

    2. Amend Sec. 123.44 to add paragraph (k) to read as follows:


Sec. 123.44  EPA review of and objections to State permits.

* * * * *
    (k)(1) Where a State fails to submit a new draft or proposed permit 
to EPA within 90 days after the expiration of the existing permit, EPA 
may review the administratively-continued permit, using the procedure 
described in paragraphs (a)(1) through (h)(3) of this section, if:
    (i) The administratively-continued permit allows the discharge of 
pollutant(s) into a waterbody for which EPA has established or approved 
a TMDL and the permit is not consistent with an applicable wasteload 
allocation; or
    (ii) The administratively-continued permit allows the discharge of 
a pollutant(s) of concern into a waterbody that does not attain and 
maintain water quality standards and for which EPA has not established 
or approved a TMDL.
    (2) To review an expired and administratively-continued permit 
under this paragraph (k) EPA must give the State and the discharger at 
least 90 days written notice of its intent to consider the expired 
permit as a proposed permit. At any time beginning 90 days after permit 
expiration, EPA may submit this notice.
    (3) If the State submits a draft or proposed permit for EPA review 
at any time before EPA issues the permit under paragraph (h) of this 
section, EPA will withdraw its notice of intent to take permit 
authority under this paragraph (k) and will evaluate the draft or 
proposed permit under this section.

PART 124--PROCEDURES FOR DECISIONMAKING

    1. The authority citation for part 124 continues to read as 
follows:

    Authority: Resource Conservation and Recovery Act, 42 U.S.C. 
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300f et seq.; Clean 
Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et 
seq.

    2. Revise Sec. 124.7 to read as follows:


Sec. 124.7  Statement of basis.

    (a) EPA shall prepare a statement of basis for every draft permit 
for which a fact sheet under Sec. 124.8 is not prepared. The statement 
of basis shall briefly describe the derivation of the conditions of the 
draft permit and the reasons for them or, in the case of notices of 
intent to deny or terminate, reasons supporting the tentative decision. 
In particular, the statement of basis shall include:
    (1) In cases where a TMDL has not been established for an impaired 
waterbody, an explanation of how permit limits and/or conditions were 
derived for all pollutants in the discharger's effluent for which the 
waterbody is impaired; and
    (2) In cases where a TMDL has been established for an impaired 
waterbody, any TMDL that has been established for a pollutant contained 
in the discharger's effluent; the applicable wasteload allocation 
derived for the pollutant in the TMDL for that discharger; and an 
explanation of how permit limits for the pollutant of concern were 
derived as well as how those limits are consistent with the applicable 
wasteload allocation.
    (b) The statement of basis shall be sent to the applicant and, on 
request, to any other person.

    3. Amend Sec. 124.8 by adding paragraphs (b)(4)(i) and (b)(4)(ii) 
to read as follows:


Sec. 124.8  Fact sheet.

* * * * *
    (b) * * *
    (4) * * *
    (i) In cases where a TMDL has not been established for an impaired 
waterbody, an explanation of how permit limits and/or conditions were 
derived for all pollutants in the discharger's effluent for which the 
waterbody is impaired; and
    (ii) In cases where a TMDL has been established for an impaired 
waterbody, any TMDL that has been established for a pollutant contained 
in the discharger's effluent; the applicable wasteload allocation 
derived for the pollutant in the TMDL for that discharger; and an 
explanation of how permit limits for the pollutant of concern were 
derived as well as how those limits are consistent with the applicable 
wasteload allocation.
* * * * *

[[Page 43662]]

PART 130--WATER QUALITY PLANNING AND MANAGEMENT

    1. The authority citation for part 130 continues to read as 
follows:

    Authority: 33 U.S.C. 1251 et seq.

    2. Redesignate Secs. 130.4 through 130.6, and 130.8 through 130.15 
as follows: Secs. 130.4 through 130.15 [Redesignated]

------------------------------------------------------------------------
                        Old section                          New section
------------------------------------------------------------------------
130.4.....................................................        130.10
130.5.....................................................        130.50
130.6.....................................................        130.51
130.8.....................................................        130.11
130.9.....................................................        130.60
130.10....................................................        130.61
130.11....................................................        130.62
130.12....................................................        130.63
130.15....................................................        130.64
------------------------------------------------------------------------

Sec. 130.3  [Removed]

    3. Section 130.3 is removed.


Secs. 130.0 through 130.2 and Sec. 130.7  [Redesignated as Subpart A]

    4. Sections 130.0 through 130.2 and 130.7 are designated as Subpart 
A and a subpart heading is added to read as follows:

Subpart A--Summary, Purpose and Definitions


Secs. 130.10 and 130.11  [Redesignated as Subpart B]

    5. Sections 130.10 and 130.11 are designated as Subpart B and a 
subpart heading is added to read as follows:

Subpart B--Water Quality Monitoring and Reporting


Secs. 130.50 and 130.51  [Redesignated as Subpart D]

    6. Sections 130.50 and 130.51 are designated as Subpart D and a 
subpart heading is added to read as follows:

Subpart D--Water Quality Planning and Implementation


Secs. 130.60 through 130.64  [Redesignated as Subpart E]

    7. Sections 130.60 through 130.64 are designated as Subpart E and a 
subpart heading is added to read as follows:

Subpart E--Miscellaneous Provisions

    8. Amend Sec. 130.1 to revise paragraph (a) as follows:


Sec. 130.1  Applicability.

    (a) This part applies to all State, eligible Indian Tribe, 
interstate, areawide and regional and local CWA water quality planning 
and management activities undertaken on or after February 11, 1985 
including all updates and continuing certifications for approved Water 
Quality Management plans developed under sections 208 and 303 of the 
Act.
* * * * *

    9. Amend Sec. 130.2 to revise paragraphs (c) (d), (e), (f), (g), 
(h), (i), (j), and (m), and add paragraphs (o), (p), (q), and (r) as 
follows:


Sec. 130.2  Definitions.

* * * * *
    (c) Pollution. The man-made or man-induced alteration of the 
chemical, physical, biological, and radiological integrity of water. 
(See Clean Water Act section 502(19).)
    (d) Pollutant. Dredged spoil, solid waste, incinerator residue, 
sewage, garbage, sewage sludge, munitions, chemical wastes, biological 
materials, radioactive materials (except those regulated under Atomic 
Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.)), heat, wrecked 
or discarded equipment, rock, sand, cellar dirt, and industrial, 
municipal, and agricultural waste discharged into water. This term does 
not mean: ``sewage from vessels'' within the meaning of section 312 of 
the Clean Water Act; or water, gas, or other material that is injected 
into a well to facilitate production of oil or gas, or water derived in 
association with oil or gas production and disposed of in a well, if 
the well used either to facilitate production or for disposal purposes 
is approved by authority of the State in which the well is located, and 
if the State determines that such injection or disposal will not result 
in the degradation of ground or surface water resources. (See Clean 
Water Act section 502(6).)
    (e) Load or loading. An amount of matter or thermal energy that is 
introduced into a receiving water; to introduce matter or thermal 
energy into a receiving water. Loading of pollutants may be either man-
caused or natural (natural background loading).
    (f) Load allocation. The portion of a TMDL's pollutant load 
allocated to a nonpoint source, storm water source for which a National 
Pollutant Discharge Elimination System (NPDES) permit is not required, 
atmospheric deposition, ground water, or background source of 
pollutants.
    (g) Wasteload allocation. The portion of a TMDL's pollutant load 
allocated to a point source of a pollutant for which an NPDES permit is 
required. For waterbodies impaired by both point and nonpoint sources, 
wasteload allocations may reflect anticipated or expected reductions of 
pollutants from other sources if those anticipated or expected 
reductions are supported by reasonable assurance that they will occur.
    (h) Total maximum daily load (TMDL). A TMDL is a written, 
quantitative plan and analysis for attaining and maintaining water 
quality standards in all seasons for a specific waterbody and 
pollutant. TMDLs may be established on a coordinated basis for a group 
of waterbodies in a watershed. TMDLs must be established for 
waterbodies on Part 1 of the list of impaired waterbodies and must 
include the following eleven elements:
    (1) The name and geographic location of the impaired waterbody;
    (2) Identification of the pollutant and the applicable water 
quality standard;
    (3) Quantification of the pollutant load that may be present in the 
waterbody and still ensure attainment and maintenance of water quality 
standards;
    (4) Quantification of the amount or degree by which the current 
pollutant load in the waterbody, including the pollutant load from 
upstream sources that is being accounted for as background loading, 
deviates from the pollutant load needed to attain and maintain water 
quality standards;
    (5) Identification of source categories, source subcategories or 
individual sources of the pollutant;
    (6) Wasteload allocations;
    (7) Load allocations;
    (8) A margin of safety;
    (9) Consideration of seasonal variations;
    (10) Allowance for reasonably foreseeable increases in pollutant 
loads including future growth; and
    (11) An implementation plan.
    (i) Total Maximum Daily Thermal Load (TMDTL). A TMDTL is a TMDL for 
impaired waterbodies receiving a thermal discharge.
    (j) Impaired waterbody. Any waterbody of the United States that 
does not attain and maintain water quality standards (as defined in 40 
CFR Part 131) throughout the waterbody due to an individual pollutant, 
multiple pollutants, or other causes of pollution, including any 
waterbody for which biological information indicates that it does not 
attain and maintain water quality standards. Where a waterbody receives 
a thermal discharge from one or more point sources, impaired means that 
the waterbody does not have or maintain a balanced indigenous 
population of shellfish, fish, and wildlife.
* * * * *
    (m) Management measures. Best practical and economically achievable 
measures to control the addition of pollutants to waters of the United 
States through the application of nonpoint pollution control practices, 
technologies, processes, siting criteria, operating methods, best 
management practices, or other alternatives.
* * * * *
    (o) Thermal discharge. The discharge of the pollutant heat from a 
point source

[[Page 43663]]

that is required to have an NPDES permit.
    (p) Reasonable assurance. Reasonable assurance means a 
demonstration that TMDLs will be implemented through regulatory or 
voluntary actions, including management measures or other controls, by 
Federal, State or local governments, authorized Tribes, or individuals.
    (1) For point sources regulated under section 402 of the Clean 
Water Act, the demonstration of reasonable assurance must identify 
procedures that ensure that NPDES permits will be issued, reissued, or 
revised as expeditiously as practicable to implement applicable TMDL 
wasteload allocations for point sources.
    (2) For nonpoint sources, storm water sources for which an NPDES 
permit is not required, atmospheric deposition, ground water or 
background sources of a pollutant, the demonstration of reasonable 
assurance must show that management measures or other control actions 
to implement the load allocations contained in each TMDL meet the 
following four-part test: they specifically apply to the pollutant(s) 
and the waterbody for which the TMDL is being established; they will be 
implemented as expeditiously as practicable; they will be accomplished 
through reliable and effective delivery mechanisms; and they will be 
supported by adequate water quality funding.
    (i) Adequate water quality funding means that the State, Territory, 
or authorized Tribe has allocated existing water quality funds from any 
source to the implementation of the TMDL load allocations to the 
fullest extent practicable and in a manner consistent with the 
effective operation of its clean water program. In the event that 
existing funding is not adequate to fully implement the TMDL load 
allocations, you may satisfy the funding requirement of reasonable 
assurance by including an explanation of when adequate funds will 
become available and the schedule by which these funds will be used to 
implement the TMDL load allocations. When EPA establishes a TMDL, EPA 
must show there is adequate funding. It may do so by conditioning Clean 
Water Act grants to the fullest extent practicable and in a manner 
consistent with effective operation of other Clean Water Act programs.
    (ii) Voluntary and incentive-based actions, or existing programs, 
procedures or authorities are acceptable means of demonstrating 
reasonable assurance if they satisfy the four-part test. Examples of 
voluntary and incentive-based actions include: State, Territorial, or 
authorized Tribal programs to audit implementation of agricultural or 
forestry best management practices; memoranda of understanding between 
States, Territories, authorized Tribes, and organizations representing 
categories, subcategories, or individual sources; or State-, Territory-
, or authorized Tribe-approved programs for categories, subcategories 
or individual sources to ensure effectiveness of best management 
practices.
    (iii) Examples of existing programs, procedures or authorities that 
may be reliable delivery mechanisms include State, Territorial, and 
authorized Tribal programs approved by EPA under section 319 of the 
Clean Water Act; participation in existing United States Department of 
Agriculture conservation or water quality protection programs; 
participation in existing programs under the Coastal Zone Act 
Reauthorization Amendments; regulations; local ordinances; performance 
bonds; contracts; cost-share agreements; memoranda of understanding; 
site-specific or watershed-specific voluntary actions; and compliance 
audits of best management practices.
    (q) Waterbody. A geographically defined portion of navigable 
waters, waters of the contiguous zone, and ocean waters under the 
jurisdiction of the United States, made up of one or more of the 
segments of rivers, streams, lakes, wetlands, coastal waters and ocean 
waters. Identifications of waterbodies should be consistent with the 
way in which segments are described in State, Territorial, or 
authorized Tribal water quality standards.
    (r) List of Impaired Waterbodies or ``List.'' The list of all 
impaired waterbodies submitted by a State, Territory, or authorized 
Tribe. This list consists of Parts 1, 2, 3, and 4 described in 
Sec. 130.27 and the prioritized schedule described in Sec. 130.28. Part 
1 of the list consists of the identification of the waterbodies for 
which TMDLs must be established and a prioritized schedule for 
establishing TMDLs.

    10. Revise Sec. 130.7 as follows:


Sec. 130.7  Total maximum daily loads (TMDL) and individual water 
quality-based effluent limitations.

    (a)-(b) [Reserved]
    (c) Development of TMDLs and individual water quality based 
effluent limitations. This paragraph will expire January 11, 2002 or 
nine months from the effective date of this rule, whichever occurs 
later.
    (1) Each State shall establish TMDLs for the waterbodies identified 
at Sec. 130.27(a) and in accordance with the priority ranking. For 
pollutants other than heat, TMDLs shall be established at levels 
necessary to attain and maintain the applicable narrative and numerical 
WQS with seasonal variations and a margin of safety which takes into 
account any lack of knowledge concerning the relationship between 
effluent limitations and water quality. Determinations of TMDLs shall 
take into account critical conditions for stream flow, loading, and 
water quality parameters.
    (i) TMDLs may be established using a pollutant-by-pollutant or 
biomonitoring approach. In many cases both techniques may be needed. 
Site-specific information should be used wherever possible.
    (ii) TMDLs shall be established for all pollutants preventing or 
expected to prevent attainment of water quality standards as identified 
pursuant to Sec. 130.27(a). Calculations to establish TMDLs shall be 
subject to public review as defined in the State CPP.
    (2) Each State shall estimate for the waterbodies identified at 
Sec. 130.27(a) that require thermal TMDLs, the total maximum daily 
thermal load which cannot be exceeded in order to assure protection and 
propagation of a balanced, indigenous population of shell-fish, fish 
and wildlife. Such estimates shall take into account the normal water 
temperatures, flow rates, seasonal variations, existing sources of heat 
input, and the dissipative capacity of the identified waters or parts 
thereof. Such estimates shall include a calculation of the maximum heat 
input that can be made into each such part and shall include a margin 
of safety which takes into account any lack of knowledge concerning the 
development of thermal water quality criteria for protection and 
propagation of a balanced, indigenous population of shellfish, fish and 
wildlife in the identified waters or parts thereof.

    11. Amend newly designated Sec. 130.10 in paragraph (a) by adding a 
note to the paragraph, and revise paragraph (b) as follows:


Sec. 130.10  Water quality monitoring.

    (a) * * *

    Note to paragraph (a): EPA recommends that you use ``Policy and 
Program Requirements to Implement the Mandatory Quality Assurance 
Program'', EPA Order 5360.1, April 3, 1984, as revised July 16, 
1998, or subsequent revisions.

    (b) The State's water monitoring program shall include collection 
and analysis of physical, chemical and biological data and quality 
assurance and control programs to assure scientifically valid data. The 
uses of

[[Page 43664]]

these data include determining abatement and control priorities; 
developing and reviewing water quality standards, total maximum daily 
loads, wasteload allocations and load allocations; assessing compliance 
with National Pollutant Discharge Elimination System (NPDES) permits by 
dischargers; reporting information to the public through the section 
305(b) report and reviewing site-specific monitoring efforts and source 
water assessments conducted under the Safe Drinking Water Act.

    12. Amend newly designated Sec. 130.11 to revise paragraph (a) as 
follows:


Sec. 130.11  Water quality report.

    (a) Each State shall prepare and submit biennially to the Regional 
Administrator a water quality report in accordance with section 305(b) 
of the Act. The water quality report serves as the primary assessment 
of State water quality. Based upon the water quality data and problems 
identified in the 305(b) report, States develop water quality 
management (WQM) plan elements to help direct all subsequent control 
activities. Water quality problems identified in the 305(b) report 
should be analyzed through water quality management planning leading to 
the development of alternative controls and procedures for problems 
identified in the latest 305(b) report. States may also use the 305(b) 
report to describe ground-water quality and to guide development of 
ground-water plans and programs. Water quality problems identified in 
the 305(b) report should be emphasized and reflected in the State's WQM 
plan and annual work program under sections 106 and 205(j) of the Clean 
Water Act and where the designated use includes public water supply, in 
the source water assessment conducted under the SDWA.
* * * * *

    13. Add Subpart C consisting of Secs. 130.20 through 130.37 as 
follows:
Subpart C--Identifying Impaired Waterbodies And Establishing Total 
Maximum Daily Loads (TMDLs)

What This Subpart Covers

Sec.
130.20   Who must comply with subpart C of this part?
130.21   What is the purpose of this subpart?

Listing Impaired Waterbodies, and Documenting Your Methodology for 
Making Listing Decisions

130.22   What data and information do you need to assemble and 
consider to identify and list impaired waterbodies?
130.23   How do you develop and document your methodology for 
considering and evaluating all existing and readily available data 
and information to develop your list?
130.24   When must you provide your methodology to EPA?
130.25   What is the scope of your list of impaired waterbodies?
130.26   How do you apply your water quality standards 
antidegradation policy to the listing of impaired waterbodies?
130.27   How must you format your list of impaired waterbodies?
130.28   What must your prioritized schedule for submitting TMDLs to 
EPA contain?
130.29   Can you modify your list?
130.30   When must you submit your list of impaired waterbodies to 
EPA and what will EPA do with it?

Establishment and EPA Review of TMDLs

130.31   Which waterbodies need TMDLs?
130.32   What are the minimum elements of a TMDL submitted to EPA?
130.33   How are TMDLs expressed?
130.34   What actions must EPA take on TMDLs that are submitted for 
review?
130.35   How will EPA assure that TMDLs are established?

Public Participation

130.36   What public participation requirements apply to your lists 
and TMDLs?

TMDLs Established During the Transition

130.37   What is the effect of this rule on TMDLs established during 
the transition?

Subpart C--Identifying Impaired Waterbodies And Establishing Total 
Maximum Daily Loads (TMDLs)

What This Subpart Covers


Sec. 130.20  Who must comply with subpart C in this part?

    (a) Subpart C applies to States, Territories, and authorized 
Tribes. The term ``you'' in this subpart refers to these three 
governmental entities.
    (b) Portions of this subpart apply to the United States 
Environmental Protection Agency (EPA). When this is the case, the rule 
specifies EPA's responsibilities and obligations.


Sec. 130.21  What is the purpose of this subpart?

    (a) This subpart explains how to identify and list impaired 
waterbodies and establish TMDLs in accordance with section 303(d) of 
the Clean Water Act. The subpart also explains how EPA reviews and 
approves or disapproves your lists and TMDLs. Specifically, the subpart 
explains how to:
    (1) Assemble all existing and readily available water quality-
related data and information;
    (2) Document your methodology for considering and evaluating all 
existing and readily available water quality-related data and 
information to make decisions on your list and provide the methodology 
to EPA and the public;
    (3) Identify impaired waterbodies to be included on the list and 
decide which of those waterbodies will have TMDLs established for them;
    (4) Identify the pollutant or pollutants causing the impairment for 
all waterbodies on Part 1 of your list;
    (5) Develop a prioritized schedule for establishing TMDLs for 
waterbodies on Part 1 of your list;
    (6) Establish TMDLs for waterbodies on Part 1 of your list and 
submit them to EPA for review;
    (7) Provide public notice and an opportunity for public comment on 
your methodology, your list, and TMDLs prior to final submission to 
EPA.
    (b) It also explains how EPA must:
    (1) Review and approve or disapprove your list of impaired 
waterbodies;
    (2) Develop a list where you fail to do so or if EPA disapproves 
your list;
    (3) Review and approve or disapprove your TMDLs;
    (4) Establish TMDLs if you have not made substantial progress in 
establishing TMDLs in accordance with your approved schedule, or if EPA 
disapproves your TMDLs .

Listing Impaired Waterbodies, and Documenting Your Methodology for 
Making Listing Decisions


Sec. 130.22  What data and information do you need to assemble and 
consider to identify and list impaired waterbodies?

    (a) You need to assemble and consider all existing and readily 
available water quality-related data and information when you develop 
your list of impaired waterbodies.
    (b) Existing and readily available water quality-related data and 
information includes at a minimum the data and information in and 
forming the basis for the following:
    (1) Your most recent EPA approved section 303(d) list;
    (2) Your most recent Clean Water Act section 305(b) report;
    (3) Clean Water Act section 319 nonpoint source assessments;
    (4) Drinking water source water assessments under section 1453 of 
the Safe Drinking Water Act;
    (5) Dilution calculations, trend analyses, or predictive models for 
determining the physical, chemical or biological integrity of streams, 
rivers, lakes, and estuaries; and
    (6) Data, information, and water quality problems reported from 
local, State, Territorial, or Federal agencies (especially the U.S. 
Geological Survey National Water Quality Assessment (NAWQA) and 
National Stream Quality Accounting Network (NASQAN)), Tribal

[[Page 43665]]

governments, members of the public, and academic institutions.


Sec. 130.23  How do you develop and document your methodology for 
considering and evaluating all existing and readily available data and 
information to develop your list?

    (a) Your methodology needs to explain how you will consider and 
evaluate all existing and readily available water quality-related data 
and information to determine which waterbodies you will include on 
Parts 1, 2, 3, and 4 of your list, and to determine how you will 
prioritize your schedule for establishing TMDLs for waterbodies on Part 
1 of your list. You must develop a draft methodology and notify the 
public of the availability of the draft methodology for review and 
comment. You should notify directly those who submit a written request 
for notification. You must provide the public an opportunity to submit 
comments on the draft methodology for no less than 60 days. You must 
provide a summary of all comments received and your responses to 
significant comments when you provide a copy of the final methodology 
to EPA, as required by Sec. 130.24 of this subpart. You must make your 
final methodology available to the public when you provide a copy to 
EPA.
    (b) The methodology should explain how you will consider and 
evaluate the following types of data and information when you make 
listing decisions and develop your prioritized schedule for TMDL 
establishment:
    (1) Physical data and information;
    (2) Chemical data and information;
    (3) Biological data and information;
    (4) Aquatic and riparian habitat data and information; and
    (5) Other data and information about waterbody impairments, 
including drinking water susceptibility analyses.
    (c) Your methodology should, at a minimum, identify those types of 
data and information that you will treat as ``existing and readily 
available'' and explain how you consider the following factors in 
making listing decisions and in developing your prioritized schedule 
for TMDL establishment:
    (1) Data quality and age;
    (2) Degree of confidence you have in the information you use to 
determine whether waterbodies are impaired, including a description of 
the quality assurance/quality control factors you will apply to data 
and information; and
    (3) Number and degree of exceedances of numeric or narrative 
criteria and periods of nonattainment of designated uses or other 
factors used to determine whether waterbodies are impaired.
    (d) Your methodology should describe the procedures and methods you 
will use to collect ambient water quality information.
    (e) Your methodology should, at a minimum, also include the 
following:
    (1) A description of the selection factors you will use to include 
and remove waterbodies from your list;
    (2) A process for resolving disagreements with other jurisdictions 
involving waterbodies crossed by State, Territorial, Tribal or 
international boundaries; and
    (3) A description of the method and factors you will use to develop 
your prioritized schedule for establishing TMDLs.


Sec. 130.24  When must you provide your methodology to EPA?

    (a)(1) If this section is not effective by May 1, 2001, you must 
provide to EPA a description of the methodology used to develop your 
2002 list and a description of the data and information used to 
identify waters (including a description of the existing and readily 
available data and information used by the State, Territory, and 
authorized Tribe) by April 1, 2002. The provisions of Sec. 130.23(b) 
through (e) do not apply to this methodology.
    (2) If this section is effective on or before May 1, 2001, you must 
provide your final methodology for your 2002 list and a summary of 
public comments on your methodology by November 1, 2001. This 
methodology will apply to the list required in 2002.
    (b) You must provide to EPA the final methodology and a summary of 
public comments for your 2006 and subsequent lists submitted under 
Sec. 130.30(a) no later than two years before you submit your next 
list, beginning in the year 2004. For example, you provide to EPA the 
methodology for your 303(d) list for 2006 on or before April 1, 2004. 
When providing final methodologies to EPA, you need to provide only the 
parts of the previous methodology you are revising; however, prior to 
submitting your final methodology to EPA, the entire methodology must 
be available to the public.
    (c) EPA will review your final methodology and will provide you 
with comments within 60 days of receiving it. EPA will not approve or 
disapprove your methodology. EPA will consider your methodology in its 
review and approval or disapproval of your next list.


Sec. 130.25  What is the scope of your list of impaired waterbodies?

    (a) Your approvable list of impaired waterbodies includes, based on 
all existing and readily available water quality-related data and 
information using appropriate quality assurance/quality control:
    (1) Waterbodies that are impaired by individual pollutants, 
multiple pollutants, or pollution from any source, including point 
sources, nonpoint sources, storm water sources for which a National 
Pollutant Discharge Elimination System (NPDES) permit is not required, 
ground water, and atmospheric deposition.
    (2) Waterbodies for which biological information indicates that 
they do not attain and maintain water quality standards.
    (3) Waterbodies that are impaired by point sources only, nonpoint 
sources only, or by a combination of point and nonpoint sources.
    (b) Your list may include, at your option, waterbodies that are not 
impaired, but which, based on expected changes in loadings or 
conditions, you anticipate will become impaired in the next four years.


Sec. 130.26  How do you apply your water quality standards 
antidegradation policy to the listing of impaired waterbodies?

    (a) Water quality standards as defined at 40 CFR Part 131 include 
several requirements, including one for a State antidegradation policy. 
Your list must include waterbodies consistent with your antidegradation 
policy as described below.
    (1) Any waterbody is impaired if it is not maintaining a designated 
use or more protective existing use that was attained on or after 
November 28, 1975.
    (2) Any Tier 3 waterbody is impaired when the level of water 
quality that existed at the time the waterbody was designated as Tier 3 
has declined. Tier 3 waters are waters you have designated as 
outstanding national resource waters.
    (b) [Reserved]


Sec. 130.27  How must you format your list of impaired waterbodies?

    (a) Your list of impaired waterbodies must include the following 
four parts:
    (1) Part 1. Waterbodies impaired by one or more pollutant(s) as 
defined by Sec. 130.2(d), unless listed in Part 3 or 4. Waterbodies 
identified as impaired through biological information must be listed on 
Part 1 unless you know that the impairment is not caused by one or more 
pollutants, in which case you may place the waterbody on Part 2 of the 
list. Where the waterbody is listed due to biological information, the 
first step in establishing the TMDL is identifying the pollutant(s) 
causing the impairment. Waterbodies must also be included on Part 1 
where you or EPA have determined, in accordance with 
Secs. 130.32(c)(1)(v), (2)(vii), and (3)(i),

[[Page 43666]]

that a TMDL needs to be revised. Waterbodies that you chose to list 
pursuant to Sec. 130.25(b), because you anticipate that they will 
become impaired by one or more pollutant(s), must be included on Part 1 
of your list. A TMDL is required for waterbodies on Part 1 of the list.
    (2) Part 2. Waterbodies impaired by pollution as defined by 
Sec. 130.2(c) but not impaired by one or more pollutants. A TMDL is not 
required for waterbodies on Part 2 of the list.
    (3) Part 3. Waterbodies for which EPA has approved or established a 
TMDL and water quality standards have not yet been attained. The 
waterbody must be placed on Part 1 of the list and scheduled for 
establishment of a new TMDL if you or EPA determine that substantial 
progress towards attaining the water quality standard is not occurring.
    (4) Part 4. Waterbodies that are impaired, for which the State, 
Territory, or authorized Tribe demonstrates that water quality 
standards will be attained by the date of submission of the next list 
as a result of implementation of technology-based effluent limitations 
required by sections 301(b), 306, or 307 of the Clean Water Act or 
other controls enforceable by State, Territorial or authorized Tribal 
or Federal law or regulation (including more stringent water quality-
based effluent limitations in NPDES permits). A TMDL is not required 
for waterbodies on Part 4. If a waterbody listed on Part 4 does not 
attain water quality standards by the time the next list is required to 
be submitted to EPA, such waterbody must be included on Part 1 unless 
you can demonstrate that the failure to attain water quality standards 
is due to failure of point source dischargers to comply with applicable 
NPDES permit effluent limitations, which are in effect. TMDLs for 
waterbodies moved from Part 4 to Part 1 of the list must be scheduled 
for establishment in accordance with the requirements of 
Sec. 130.28(b).
    (b) You must identify:
    (1) The pollutant or pollutants causing the impairment for each 
waterbody on Part 1 of the list, or for waterbodies for which the 
impairment is a result of biological information, the pollutant or 
pollutants if known.
    (2) The type of pollution causing the impairment for each waterbody 
on Part 2.
    (3) The geographic location of each waterbody on the list, using 
the National Hydrography Database or subsequent revisions, or a 
compatible georeferenced database.
    (c) Any one of the three reporting formats described in this 
paragraph are acceptable.
    (1) Separate section 303(d) list. You may submit your list as a 
separate four-part section 303(d) list.
    (2) Consolidated section 303(d) list and section 305(b) report. You 
may submit your list as a component of your water quality report 
(section 305(b) report) . You must clearly identify the parts of your 
water quality report you are submitting as your four-part section 
303(d) list.
    (3) Part 1 waterbodies in section 303(d) report and Parts 2, 3, and 
4 waterbodies in section 305(b) report. You may submit Part 1 of your 
list as a separate section 303(d) list, provided you include Parts 2, 
3, and 4 of your list as a component of your section 305(b) water 
quality report and clearly identify the parts of your water quality 
report that you are submitting as Parts 2, 3, and 4 of your section 
303(d) list.
    (d) EPA will approve or disapprove your four-part section 303(d) 
list regardless of the reporting format that you use.


Sec. 130.28  What must your prioritized schedule for submitting TMDLs 
to EPA contain?

    (a) Your list must include a prioritized schedule for establishing 
TMDLs for all waterbodies and pollutant combinations on Part 1 of your 
list.
    (b) You must schedule establishment of TMDLs:
    (1) as expeditiously as practicable, evenly paced over the duration 
of the schedule;
    (2) no later than 10 years from July 10, 2000, if the waterbody and 
pollutant was listed on any part of the list before that date or 10 
years from the due date of the first subsequent list after July 10, 
2000, on which the waterbody and pollutant is initially included. You 
may extend the schedule for one or more TMDLs by no more than five 
years if you explain to EPA as part of your list submission that, 
despite expeditious actions, establishment of all TMDLs on Part 1 of 
your list within 10 years is not practicable.
    (c) You must identify each specific TMDL you intend to establish 
and the one year period during which it is scheduled to be established. 
Your schedule should provide for the coordinated establishment of TMDLs 
within a watershed to the fullest extent practicable.
    (d) You must:
    (1) explain how you considered the severity of the impairment and 
the designated use of the waterbody in prioritizing waterbodies for 
TMDL establishment on your schedule.
    (2) Identify waterbodies:
    (i) That are designated in water quality standards as a public 
drinking water supply, or are used as a source of drinking water, and 
are impaired by a pollutant that is contributing to a violation of a 
national primary drinking water regulation (NPDWR) by a public water 
system or causes a public water system to be vulnerable to a violation 
of a NPDWR; or
    (ii) Where species listed as threatened or endangered under section 
4 of the Endangered Species Act are present in the waterbody.
    (3) Waterbodies identified in this subsection must be given a 
higher priority unless you explain why a different priority is 
appropriate.
    (e) When identifying and scheduling your waterbodies for TMDL 
establishment, you may also consider the presence of sensitive aquatic 
species and other factors such as the historical, cultural, economic 
and aesthetic uses of the waterbody. You may consider other factors in 
prioritizing your schedule, including the value and vulnerability of 
particular waterbodies; the recreational, economic, and aesthetic 
importance of particular waterbodies; TMDL complexity; the degree of 
public interest and support; State, Territorial and authorized Tribal 
policies and priorities; national policies and priorities; or the 
efficiencies that might result from coordinating the establishment of 
TMDLs for multiple waterbodies located in the same watershed. If you 
are using a rotating basin approach, you may take that approach into 
account when prioritizing waterbodies on your schedule because of the 
inherent efficiencies of such an approach.
    (f) If you consider other factors, you should identify each factor 
and explain how you used each factor in prioritizing your schedule.


Sec. 130.29  Can you modify your list?

    (a) You may modify your list at times other than those required by 
Sec. 130.30, in accordance with this section. If you modify your list 
and prioritized schedule, you must submit your list to EPA as a 
modification to your list under this section and follow the public 
participation requirements of Sec. 130.36, except that such 
requirements shall apply only to waterbodies and issues addressed by 
the modification. The requirements of subsections (b), (c), (d), and 
(e) of this section apply to lists submitted under Sec. 130.30(a) or at 
any other time.
    (b) You must keep each impaired waterbody on your list for a 
particular

[[Page 43667]]

pollutant until it is attaining and maintaining applicable water 
quality standards for that pollutant.
    (c) You may remove a listed waterbody for a particular pollutant if 
new data or information indicate that the waterbody is attaining and 
maintaining the applicable water quality standards for that pollutant.
    (d) You may add a waterbody to your list if you have data or 
information indicating that it is impaired.
    (e) You may modify your prioritized schedule for establishing TMDLs 
in accordance with Sec. 130.28 based on new information provided that 
the modification does not reduce the number of TMDLs scheduled for 
completion during the first four years of the current approved 
schedule.
    (f) EPA must issue an order approving or disapproving the 
modification of your list or prioritized schedule in accordance with 
Sec. 130.30(b).
    (g) EPA may also issue an order modifying a list consistent with 
the provisions of paragraphs (c), (d) and (e) of this section, after 
providing notice and an opportunity for public comment.


Sec. 130.30  When must you submit your list of impaired waterbodies to 
EPA and what will EPA do with it?

    (a) You must submit your list of impaired waterbodies to EPA by 
April 1 of every fourth year, beginning in the year 2002.
    (b) EPA must:
    (1) Issue an order approving or disapproving your list or 
modification of your list, within 30 days of receipt, in whole or in 
part if it is not consistent with the requirements of Secs. 130.25 
through 130.29.
    (2) By order, within 30 days of disapproval, issue a new list 
consistent with Secs. 130.25 through 130.29 if EPA disapproves or 
partially disapproves your list or modification of your list.
    (3) Publish the order required by paragraph (b)(2) of this section 
in the Federal Register and a general circulation newspaper in your 
State, Territory, or where your Tribe is located and request public 
comment for at least 30 days.
    (4) Issue a subsequent order revising the new list after the close 
of the public comment period, as appropriate, if EPA revises its 
initial order required by paragraph (b)(2) of this section based on 
public comment.
    (5) Send you a copy of its order(s).
    (6) Establish a list of impaired waterbodies for your State, 
Territory, or authorized Tribe consistent with Secs. 130.25 through 
130.29 if you fail to do so by April 1 of every fourth year.
    (c) EPA may establish lists of waterbodies that do not attain and 
maintain Federal water quality standards.
    (d) You must incorporate into your water quality management plan 
those portions of your list that EPA approves or establishes.

Establishment and EPA Review of TMDLs


Sec. 130.31  Which waterbodies need TMDLs?

    (a) You must establish TMDLs for all waterbodies and pollutant 
combinations on Part 1 of your list in accordance with your approved 
schedule and submit the TMDLs to EPA.
    (b) You do not need to establish TMDLs for waterbodies on Parts 2, 
3, and 4 of your list.


Sec. 130.32  What are the minimum elements of a TMDL submitted to EPA?

    (a) A TMDL is a written, quantitative plan and analysis for 
attaining and maintaining water quality standards in all seasons for a 
specific waterbody and pollutant. TMDLs may be established on a 
coordinated basis for a group of waterbodies in a watershed. A TMDL 
provides the opportunity to compare relative contributions of 
pollutants from all sources and consider technical and economic trade-
offs between point and nonpoint sources.
    (b) You must include the following minimum elements in any TMDL 
submitted to EPA:
    (1) The name and geographic location, as required by 
Sec. 130.27(b)(3), of the impaired waterbody for which the TMDL is 
being established and, to the extent known, the names and geographic 
locations of the waterbodies upstream of the impaired waterbody that 
contribute significant amounts of the pollutant for which the TMDL is 
being established;
    (2) Identification of the pollutant and the applicable water 
quality standard for which the TMDL is being established;
    (3) Quantification of the pollutant load that may be present in the 
waterbody and still ensure attainment and maintenance of water quality 
standards;
    (4) Quantification of the amount or degree by which the current 
pollutant load in the waterbody, including the pollutant load from 
upstream sources that is being accounted for as background loading, 
deviates from the pollutant load needed to attain and maintain water 
quality standards;
    (5) Identification of source categories, source subcategories, or 
individual sources of the pollutant consistent with the definitions of 
load and wasteload allocation in Secs. 130.2(f) and (g), respectively, 
for which the wasteload allocations and load allocations are being 
established;
    (6) Wasteload allocations assigned to point sources permitted under 
section 402 of the Clean Water Act discharging the pollutant for which 
the TMDL is being established that will, when implemented in 
conjunction with assigned load allocations, if any, result in the 
attainment and maintenance of water quality standards in the waterbody. 
Wasteload allocations that reflect pollutant load reductions for point 
sources needed to ensure that the waterbody attains and maintains water 
quality standards must be expressed as individual wasteload allocations 
for each source. Wasteload allocations that do not reflect pollutant 
load reductions from point sources needed for the waterbody to attain 
and maintain water quality standards may be expressed as an individual 
wasteload allocation for a source or may be included within a wasteload 
allocation for a category or subcategory of sources. Wasteload 
allocations for sources subject to a specified general permit, 
regardless of whether they reflect pollutant reductions, may be 
allotted to categories of sources. You should submit supporting 
technical analyses demonstrating that wasteload allocations, when 
implemented in conjunction with necessary load allocations, will result 
in the attainment and maintenance of the water quality standard(s) 
applicable to the pollutant for which the TMDL is being established;
    (7) Load allocations, ranging from reasonably accurate estimates to 
gross allotments, for nonpoint sources of a pollutant, storm water 
sources for which an NPDES permit is not required, atmospheric 
deposition, ground water or background sources of a pollutant that, 
when implemented in conjunction with assigned wasteload allocations, if 
any, result in the attainment and maintenance of water quality 
standards in the waterbody. If feasible, a separate load allocation 
must be allocated to each source of a pollutant. Where this is not 
feasible, load allocations may be allocated to categories or 
subcategories of sources. Pollutant loads from sources that do not need 
to be reduced for the waterbody to attain and maintain water quality 
standards may be included within a category of sources or subcategory 
of sources. You should submit supporting technical analyses 
demonstrating that load allocations, when implemented in conjunction 
with necessary wasteload allocations, will result in the attainment and 
maintenance of water quality standards

[[Page 43668]]

applicable to the pollutant for which the TMDL is being established;
    (8) A margin of safety that appropriately accounts for uncertainty 
related to the TMDL, including uncertainties associated with pollutant 
loads, modeling water quality, and monitoring water quality. A margin 
of safety may be expressed as unallocated assimilative capacity or 
conservative analytical assumptions used in establishing the TMDL;
    (9) Consideration of seasonal variations, stream water flow levels, 
and other environmental factors that affect the relationship between 
pollutant loadings and water quality impacts, such that the allocations 
will result in attainment and maintenance of water quality standards in 
all seasons of the year and during all flow conditions;
    (10) Allowance for reasonably foreseeable increases in pollutant 
loads including future growth; and
    (11) An implementation plan which meets the requirements of 
paragraph (c) of this section.
    (c) The purpose of the implementation plan is to provide a 
description, in a level of detail appropriate to the circumstances, of 
actions necessary to implement the TMDL so that the waterbody attains 
and maintains water quality standards. EPA does not expect the 
implementation plan to be a complex, lengthy document.
    (1) For waterbodies impaired only by point sources for which NPDES 
permits will implement the TMDL, an implementation plan must include:
    (i) An identification of the wasteload allocation(s) that the 
effluent limitation(s) must be consistent with pursuant to 
Sec. 122.44(d)(1)(vii)(B) in the NPDES permit(s) that will be issued, 
reissued, or revised. In all instances, the NPDES permit effluent 
limitation(s) must be consistent with the applicable wasteload 
allocation(s). You must identify:
    (A) The point sources that are or will be regulated by individual 
permits and the categories or subcategories of point sources that are 
or will be regulated by general permits that will be subject to such 
effluent limitations.
    (B) The permit, if you intend to implement the wasteload allocation 
by requiring a point source to apply for coverage under an existing 
NPDES general permit.
    (C) The elements of the general permit necessary to ensure 
implementation of the wasteload allocation, if you intend for a point 
source to be regulated by a new general permit.
    (ii) A schedule for issuing, reissuing or revising the NPDES 
permit(s) as expeditiously as practicable to include effluent limits 
consistent with the wasteload allocation(s) in the TMDL. EPA must:
    (A) Reissue or revise the permit(s) within two years after the 
establishment of the TMDL where EPA is the NPDES permitting authority.
    (B) Notify the NPDES Director of EPA's intent to object to the 
permit pursuant to the provisions of Sec. 123.44(k) within one year 
after expiration of the permit term, or where the permit term expired 
prior to the establishment of the TMDL, within one year from 
establishment of the TMDL where the State is the NPDES permitting 
authority, and the permit term has expired.
    (C) Issue an NPDES permit that incorporates effluent limitations 
based on wasteload allocation(s) in the TMDL within one year thereafter 
where the State has not done so. Nothing in this paragraph (c)(1)(ii) 
limits EPA's authority to reissue a permit after the expiration of the 
two-year time frame set forth in this paragraph (c)(1)(ii), or invoke 
the mechanism described in Sec. 123.44(k) after the expiration of 
either of the one-year time frames set forth in this paragraph 
(c)(1)(ii).
    (iii) The date by which the implementation plan will result in the 
waterbody attaining and maintaining applicable water quality standards 
and the basis for that determination;
    (iv) A monitoring and/or modeling plan designed to measure the 
effectiveness of the controls implementing the wasteload allocations 
and the progress the waterbody is making toward attaining water quality 
standards; and
    (v) The criteria you will use to determine that substantial 
progress toward attaining water quality standards is being made and if 
not, the criteria for determining whether the TMDL needs to be revised.
    (2) For waterbodies impaired only by nonpoint source(s), storm 
water sources for which an NPDES permit is not required, atmospheric 
deposition, ground water or background sources of a pollutant where no 
NPDES permit will implement the TMDL, the implementation plan must 
include:
    (i) An identification of the source categories, source 
subcategories, or individual sources of the pollutant which must be 
controlled to implement the load allocations;
    (ii) A description of specific regulatory or voluntary actions, 
including management measures or other controls, by Federal, State or 
local governments, authorized Tribes, or individuals that provide 
reasonable assurance, consistent with Sec. 130.2(p), that load 
allocations will be implemented and achieve the assigned load 
reductions. Your selection of management measures for achieving the 
load allocation may recognize both the natural variability and the 
difficulty in precisely predicting the performance of management 
measures over time;
    (iii) A schedule, which is as expeditious as practicable, for 
implementing the management measures or other control actions to 
achieve load allocations in the TMDL within 5 years, when 
implementation within this period is practicable;
    (iv) The date by which the implementation plan will result in the 
waterbody attaining and maintaining applicable water quality standards, 
and the basis for that determination;
    (v) A description of interim, measurable milestones for determining 
whether management measures or other control actions are being 
implemented;
    (vi) A monitoring and/or modeling plan designed to measure the 
effectiveness of the management measures or other controls implementing 
the load allocations and the progress the waterbody is making toward 
attaining water quality standards, and a process for implementing 
stronger and more effective management measures if necessary; and
    (vii) The criteria you will use to determine that substantial 
progress toward attaining water quality standards is being made and if 
not, the criteria for determining whether the TMDL needs to be revised.
    (3) For waterbodies impaired by both point sources and nonpoint 
sources where NPDES permits and management measures or other control 
actions for nonpoint or other sources will implement the TMDL, the 
implementation plan must include:
    (i) The elements of paragraphs (c)(1) and (2) of this section; and
    (ii) A description of the extent to which wasteload allocations 
reflect expected achievement of load allocations requiring reductions 
in loadings.
    (4) For all impaired waterbodies, the implementation plan must be 
based on a goal of attaining and maintaining the applicable water 
quality standards within ten years whenever attainment and maintenance 
within this period is practicable.
    (d) TMDTLs must meet all the requirements of paragraphs (b) and (c) 
of this section, except that, rather than estimating a TMDTL at a level 
necessary to attain and maintain water quality standards, you must 
estimate the TMDTL as required by statute at a level

[[Page 43669]]

necessary to ensure protection and propagation of a balanced indigenous 
population of shellfish, fish, and wildlife, taking into account the 
normal water temperatures, flow rates, seasonal variations, existing 
sources of heat input, and dissipative capacity of the waterbody for 
which the TMDTL is being established. Estimates for those waterbodies 
must include a calculation of the maximum heat input and a margin of 
safety that takes into account any lack of knowledge concerning the 
development of thermal water quality criteria.
    (e) A TMDL must not be likely to jeopardize the continued existence 
of an endangered or threatened species listed under section 4 of the 
Endangered Species Act or result in the destruction or adverse 
modification of its designated critical habitat.


Sec. 130.33  How are TMDLs expressed?

    (a) A TMDL must contain a quantitative expression of the pollutant 
load or load reduction necessary to ensure that the waterbody will 
attain and maintain water quality standards, or, as appropriate, the 
pollutant load or load reduction required to attain and maintain 
aquatic or riparian habitat, biological, channel or geomorphological or 
other conditions that will result in attainment and maintenance of 
water quality standards.
    (b) As appropriate to the characteristics of the waterbody and 
pollutant, the pollutant load or load reduction may be expressed in one 
or more of the following ways:
    (1) The pollutant load that can be present in the waterbody and 
ensure that it attains and maintains water quality standards;
    (2) The reduction from current pollutant loads required to attain 
and maintain water quality standards;
    (3) The pollutant load or reduction of pollutant load required to 
attain and maintain aquatic, riparian, biological, channel or 
geomorphological measures so that water quality standards are attained 
and maintained;
    (4) A quantitative expression of a modification of a characteristic 
of the waterbody, e.g., aquatic and riparian habitat, biological, 
channel, geomorphological, or chemical characteristics, that results in 
a pollutant load or reduction of pollutant load so that water quality 
standards are attained and maintained; or
    (5) In terms of either mass per time, toxicity or other appropriate 
measure.


Sec. 130.34  What actions must EPA take on TMDLs that are submitted for 
review?

    (a) EPA must:
    (1) Review each TMDL you submit to determine if it meets the 
requirements of Secs. 130.31, 130.32 and 130.33 and issue an order 
approving or disapproving each TMDL you submit within 30 days after you 
submit it.
    (2) Disapprove the TMDL if it does not meet all those requirements.
    (3) Issue an order establishing a new TMDL for a waterbody and 
pollutant within 30 days of EPA's disapproval or determination of the 
need for revision, if EPA disapproves a TMDL you submit or determines 
that an existing TMDL needs to be revised.
    (4) Publish this order in the Federal Register and a general 
circulation newspaper and request public comment for at least 30 days.
    (5) Issue a subsequent order revising the TMDL after the close of 
the public comment period, as appropriate, if EPA revises its initial 
order based on public comment.
    (6) Send you the final TMDL EPA establishes. You must incorporate 
any EPA-established or EPA approved TMDL into your water quality 
management plan.
    (b) When EPA establishes a TMDL it must provide reasonable 
assurance. It may satisfy the adequate funding requirement of 
reasonable assurance by conditioning Clean Water Act grants to the 
fullest extent practicable and in a manner consistent with effective 
operation of other Clean Water Act programs.
    (c) EPA may also use any of its statutory or regulatory authorities 
and voluntary, incentive-based programs, as it determines appropriate, 
to supplement conditioning Clean Water Act grants in demonstrating 
reasonable assurance.


Sec. 130.35  How will EPA assure that TMDLs are established?

    (a) EPA must assure that TMDLs for waterbodies and pollutants 
identified on Part 1 of your list are established. EPA must do this by:
    (1) Working with you to assure that TMDLs are established in 
accordance with your schedule; and
    (2) Establishing a TMDL if you have not made substantial progress 
in establishing the TMDL in accordance with your approved schedule. 
Substantial progress means that you have established a TMDL not later 
than the end of the one-year period during which it was scheduled to be 
established. EPA must establish the TMDL within two years of the date 
on which you fail to make substantial progress. The Administrator may 
extend this period for no more than two years on a case-by-case basis 
if there is a compelling need for additional time. Notice of such 
extension shall be published in the Federal Register.
    (b) EPA may establish TMDLs under other circumstances including:
    (1) You request that EPA do so; or
    (2) EPA determines it is necessary to establish a TMDL for an 
interstate or boundary waterbody or to implement Federal water quality 
standards.
    (c) In establishing any TMDL pursuant to this section, EPA shall 
provide notice and an opportunity for public comment on such order.

Public Participation


Sec. 130.36  What public participation requirements apply to your lists 
and TMDLs?

    (a) You must provide public notice and allow the public no less 
than 30 days to review and comment on your list of impaired waterbodies 
and TMDLs prior to submission to EPA. You should notify directly those 
who submit a written request for notification.
    (b) At the time you make your submission to EPA, you must provide 
EPA with a summary of all public comments received on your list and 
TMDLs and your response to all significant comments, indicating how the 
comments were considered in your final decision.
    (c) Prior to your submission to EPA, and at the time that you 
provide the public the opportunity to review and comment on your list 
and TMDLs:
    (1) You must provide a copy of each of these documents to EPA, the 
U.S. Fish and Wildlife Service, and to the National Marine Fisheries 
Service where appropriate (e.g., coastal areas), unless you request EPA 
to provide these documents to the Services, in which case EPA will do 
so.
    (2) You are encouraged to establish processes with both the U.S. 
Fish and Wildlife Service and the National Marine Fisheries Service 
that will provide for the early identification and resolution of 
threatened and endangered species concerns as they relate to your list 
and TMDLs. To facilitate consideration of endangered and threatened 
species in the listing and TMDL process, EPA will ask the U.S. Fish and 
Wildlife Service and the National Marine Fisheries Service, where 
appropriate, to provide you and EPA with any comments that they may 
have on your lists and TMDLs.
    (3) You must consider any comments from EPA, the U.S. Fish and 
Wildlife Service, or the National Marine Fisheries Service in 
establishing your list and TMDLs and document your consideration of 
these comments in

[[Page 43670]]

accordance with paragraph (b) of this section.
    (d) EPA will review any comments submitted by the U.S. Fish and 
Wildlife Service or the National Marine Fisheries Service and consider 
how you addressed these and EPA's comments prior to EPA's approval or 
disapproval of your submission.

TMDLs Established During the Transition


Sec. 130.37  What is the effect of this rule on TMDLs established 
during the transition?

    (a) EPA will approve any TMDL submitted to it for review before 
January 11, 2002 or nine months from the effective date of this rule, 
whichever occurs later, if the TMDL meets either the requirements in 
Sec. 130.7 in effect prior to July 13, 2000 or the requirements in 
Secs. 130.31, 130.32 and 130.33 of this Subpart C.
    (b) EPA will establish TMDLs before Janaury 11, 2002 or nine months 
from the effective date of this rule, whichever occurs later, either 
according to the requirements in Sec. 130.7 in effect prior to July 13, 
2000 or the requirements in Secs. 130.31, 130.32 and 130.33 of this 
Subpart C.
    14. Amend newly designated Sec. 130.50 to revise paragraph (b) 
introductory text and (b)(3) as follows:


Sec. 130.50  Continuing planning process

* * * * *
    (b) Content. The State may determine the format of its CPP as long 
as the minimum requirements of the CWA and this regulation are met. A 
State CPP need not be a single document, provided the State identifies 
in one document (i.e., an index) the other documents, statutes, rules, 
policies and guidance that comprise its CPP. The following processes 
must be described in each State CPP and the State may include other 
processes, including watershed-based planning and implementation, at 
its discretion.
* * * * *
    (3) The process for developing total maximum daily loads (TMDLs) 
and individual water quality based effluent limitations for pollutants 
in accordance with section 303(d) of the Act and Secs. 130.31 through 
130.36 of this Part.
* * * * *
    15. Amend newly designated Sec. 130.51 to revise paragraphs (a), 
(c)(1), and (f) as follows:


Sec. 130.51  Water quality management plans

    (a) Water quality management plans. You must base continuing water 
quality planning on initial water quality management plans produced in 
accordance with sections 208 and 303(e) of the Clean Water Act and 
certified and approved updates to those plans. Your annual water 
quality planning should focus on priority issues and geographic areas 
identified in your latest section 305(b) reports and have a watershed 
focus. Water quality planning should be directed at the removal of 
conditions placed on previously certified and approved water quality 
management plans and updates to support the implementation of wasteload 
allocations and load allocations contained in TMDLs.
* * * * *
    (c) * * *
    (1) Total Maximum Daily Loads. TMDLs in accordance with section 
303(d) and (e)(3)(C) of the Act and Secs. 130.2 and 130.31 through 
130.36; also lists of impaired waters in accordance with Secs. 130.2 
and 130.22 through 130.30.
* * * * *
    (f) Consistency. Construction grant and permit decisions must be 
made in accordance with certified and approved WQM plans as described 
in Secs. 130.63(a) and (b). Likewise, financial assistance under the 
State water pollution control revolving funds may be made only to 
projects which are in conformity with such plans as specified in 
section 603(f) of the Act.
* * * * *


Sec. 130.61  [Amended]

    16. Amend newly designated Sec. 130.61 to remove and reserve 
paragraph (b)(2), and remove paragraph (d).

    17. Revise newly designated Sec. 130.64 as follows:


Sec. 130.64  Processing application for Indian Tribes

    The Regional Administrator shall process an application of an 
Indian Tribe submitted under Sec. 130.51(d) in a timely manner. He 
shall promptly notify the Indian Tribe of receipt of the application.

[FR Doc. 00-17831 Filed 7-12-00; 8:45 am]
BILLING CODE 6561-12-P