January 20, 2000

The Environmental Protection Agency's Proposed Changes to the Total Maximum Daily Load (TMDL) Program

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Proposed Revisions to the Water Quality Planning and Management Regulation (40 CFR Part 130) and to the National Pollution Discharge Elimination System Program and Federal Antidegradation Policy (40 CFR part 122 et al.

Stated Purpose:

Clarifies and strengthens how TMDLs are established so they can more effectively contribute to improving the nation’s water quality.

Summary of RSP Comment:

EPA's proposed changes to regulating states' establishment of Total Maximum Daily Loads (TMDLs) for managing water quality reflects a welcome shift from federally-mandated technology-based controls to controls based on the characteristics of individual watersheds. However, EPA's prescriptive, procedural rule is likely to undermine the benefits of a watershed approach.

Centralizing decision making with EPA for hundreds of thousands of river segments, lakes, and coastal zone regions complicates and delays decision making about matters that are inherently local. Under this proposal, EPA would obtain nearly unlimited authority to overrule state decisions, and impose any standard it chooses on any body of water under any circumstance. The costs to states, just to develop TMDL plans under the new rules, could reach into the billions.

River basins, watersheds, and coastal regions are natural units for managing water quality. EPA's approach must allow for and encourage the recognition of alternate geographic governance units that minimize the environmental cost of achieving improvements in water quality.

A water quality management system based on the rule of law and protection of environmental rights can be devised so that the goals of TMDL can be achieved. The system must include accountability and responsibility for actions that affect environmental quality. The system must allow for flexibility in the development of regulatory institutions and processes so that regional differences in benefits and costs can be taken into account, and innovative local solutions can be implemented to bring about real improvements in water quality.