Court-ordered deadlines have many states rushing to develop TMDLs - sometimes without adequate data. What does the "ready, fire, aim" climate mean for stormwater managers?

By F. Paul Calamita

Municipal stormwater managers nationwide have developed programs premised upon the implementation of best management practices (BMPs) to control stormwater. With the advent of the national total maximum daily loads (TMDL) program under the Clean Water Act (CWA), however, we are on the verge of a dramatic change in the focus of our stormwater control efforts. Rather than relying on BMPs, states, EPA, and citizen groups now increasingly seek to impose numeric concentration and mass limits on municipal stormwater discharges—especially discharges to impaired waters. The implications under the CWA for communities nationwide in terms of pollution control costs, growth management, and land-use planning are unprecedented.

This article discusses emerging issues under the TMDL program, with particular focus on how these TMDL developments and issues will impact municipal stormwater control programs and requirements. These developments range from the imposition of numeric effluent limits on stormwater discharges by the District of Columbia to an impaired water to a ban on new or expanded discharges to impaired waters throughout the state of Montana. The article also briefly discusses efforts of the 106^th Congress to clarify CWA requirements for municipal stormwater discharges.

The National TMDL Program

The TMDL program sprang to the forefront of water-quality regulation in 1999 with EPA's controversial proposal to completely overhaul the national TMDL program. The origin of EPA's new emphasis on the TMDL program reaches back to the tremendous success environmental groups achieved against the agency in federal courthouses across the nation. Through their aggressive litigation tactics, environmental groups obtained court orders mandating the listing of thousands of water bodies as being impaired. This brought about a corresponding development of thousands of TMDLs, on extremely tight schedules, for those waters in almost 20 states. Approximately 15 similar lawsuits are pending or have been formally threatened in other states. Absent strong defensive efforts by EPA, many more court orders will ensue.

With states and EPA regions gearing up to crank out TMDLs to meet the court-ordered deadlines, and other states jumping into action to head off judicial interference with their programs, the regulated community now has a keen interest in the implementation of the TMDL program. Industries and municipalities must scrutinize state lists of "impaired" waters to ensure a sound technical basis for listings that might impact their discharges. Given the high stakes for their operations, these dischargers now take active roles in the TMDL development process. A common theme includes an insistence on a fair process, grounded in sound science, leading to equitable allocations of available pollutant loadings. Unfortunately, conflicts increasingly occur as public participation and good decision-making end up compromised by agencies as they strive to meet arbitrary and extremely tight schedules for TMDL development.

Under these circumstances, it is not surprising that some now dub the TMDL program—one that has the potential to make a valuable contribution to our ongoing water-quality improvement efforts—as the "Too Many Damn Lawyers" program. Increasingly, stakeholders nationwide focus on three main phases of the TMDL program: (1) establishing a schedule to develop TMDLs for impaired waters in each state, (2) establishing accurate lists of impaired waters and determining any restrictions that follow such designations, and (3) developing individual TMDLs and resulting wasteload allocations.

Because municipal stormwater discharges are considered point-source discharges under the CWA, TMDLs are increasingly becoming the driving force for stormwater control programs.

TMDL Development Schedule Litigation

Environmental groups, such as Sierra Club and the American Canoe Association, enjoyed remarkable success in litigating against EPA to force the agency to backstop state TMDL programs pursuant to fixed TMDL-development schedules. Given the environmental groups' early successes, EPA became reluctant to seriously defend many of the subsequent and still-pending cases. These legal setbacks in 1997, 1998, and 1999, coupled with EPA management's political concerns about appearing to oppose the TMDL program, fueled an increasing number of court-ordered TMDL development schedules in states across the country. At this point, the environmental groups successfully forced EPA to commit to developing thousands of TMDLs over the next 10-12 years under consent decrees and other agreements in place in approximately 20 states.

This is a disturbing trend because the states and their permittees usually end up suffering for EPA's historical indifference to the TMDL program, albeit while EPA tends to higher priorities (such as developing water-quality standards and issuing and enforcing CWA permits). While EPA worked itself into a lay-down mode in TMDL cases, it is important to remember that EPA can win these cases as it did most recently in New York. In that case, Judge Leisure of the Southern District of New York refused to impose on EPA a binding TMDL-development schedule sought by the plaintiff environmental groups. The judge's reason covered several points: The state cooperated with EPA's recent efforts to establish TMDLs, the state developed and submitted a limited number of TMDLs to EPA, the state agreed to a nonbinding schedule for TMDL development through a Memorandum of Agreement with EPA, and the state committed significant resources to TMDL development.

Despite the New York case, it is likely that we will see more TMDL schedule litigation in other states. There are two primary concerns related to the resulting schedules. First, in trying to meet these schedules, the states and EPA will inappropriately rely on "back of the envelope," overly conservative assumptions in lieu of good data when devising TMDLs and wasteload allocations. Second, TMDLs developed by EPA will place a disproportionate share of the pollutant-reduction burden on point sources, which include stormwater discharges, compared to TMDLs developed under the state's process. This is because federal courts ruled that EPA has authority only over point-source dischargers. Conversely, states often have authority over point and nonpoint sources under state laws. States are also more likely to make decisions about what pollutant reductions prove practical among different sources, including stormwater.

Despite these significant concerns, the level of industrial and municipal participation in TMDL litigation by environmental groups seeking to force an EPA takeover of state programs has been fairly limited. In states with pending or anticipated litigation, dischargers should evaluate how best to participate in this process. Depending on the circumstances, different strategies might be appropriate, up to and including intervening in the lawsuit to help EPA defend the state's program.

Stormwater Control and Pre-TMDL Development Issues

For individual dischargers, the TMDL process begins by determining whether a receiving water meets applicable water-quality standards. Waters that do not meet an applicable standard are identified as "impaired," thus placing them on the state's CWA Section 303(d) list for TMDL development. As discussed below, this is a particularly challenging inquiry for waters receiving substantial wet-weather flows.

Most states began to develop their so-called "303(d) lists" of impaired waters in the 1990s. Historically, revised lists were developed and submitted to EPA for approval in April of every even-numbered year. EPA recently deferred the 2000 listing process to 2002 and changed the listing process to a four-year cycle under the TMDL program revisions slated to become effective on October 1, 2001.

The following sections provide some strategies for ensuring that the 303(d) listing process ends up fair to dischargers, particularly with regard to stormwater discharges.

Listing Methodologies. EPA's TMDL rules will require states to develop methodologies for identifying impaired waters. Many states formulated such listing methodologies in the past. The development of the state's listing methodology is an important opportunity for dischargers to address a number of concerns related to listing.

One significant concern, for example, includes the listing of water bodies without sufficient reliable scientific data to support finding a water body impaired. It is not uncommon to see listings based on a limited number of relatively old data, lacking what would presently be considered adequate quality controls. These issues can be addressed in the methodology. It is possible to use the methodology may be used to establish minimum data set size restrictions for any type of data used to derive an assessment. This is especially important because of a lack of federal law and guidance defining the minimum quantity and quality of data for listing purposes.

One stormwater-related concern includes the alleged impairments of a particular water occurring only during low-flow conditions. This would indicate that a TMDL should focus only on low-flow periods, leaving wet-weather discharges out of the mix. Conversely, some listings may be based upon primarily wet-weather concerns, such as high bacteria levels.

Designated Uses and Water-Quality Standards. States typically assume during their listing processes that designated uses were appropriately set. This is contrary to EPA's Advanced Notice of Proposed Rulemaking on the federal water-quality standards regulation, which cautioned that designated uses were set incorrectly by many states. This is especially true because few states took a hard look at setting appropriate wet-weather–designated uses and associated water-quality standards to both reflect wet-weather realities and accommodate wet-weather discharges.

Significantly, EPA will soon finalize a guidance document on the review and, as appropriate, revision of designated uses and associated water-quality standards during wet-weather events that cause combined sewer systems to overflow. That guidance, while directed toward the national combined sewer overflow (CSO) program, will be equally important and applicable to stormwater discharges nationwide.

State listing methodologies should require that designated uses and associated water-quality criteria be reevaluated before including water bodies on 303(d) lists. If uses are not properly set, then conclusions regarding impairment relative to water-quality standards applicable to protecting those uses will be erroneous. Reconsideration is particularly appropriate when point-source stormwater discharges exist to impaired waters.

Typically, states will review the designated uses of certain waters in connection with their triennial reviews of their water-quality standards. In most cases, the use reviews result in the removal of a use (such as public water supply) that proved incorrectly designated from the outset. Other designated-use reviews may result in refinements to existing uses to reflect seasonal uses or even dry- or wet-weather uses of particular stream segments. (One example would be a change from a trout to a warm-water fishery.)

Even where a change in a designated use is not appropriate, a change to the water-quality criteria assigned to protect that use might be appropriate. Dischargers should consider the development of site-specific criteria for their receiving waters. Such criteria, authorized by federal and state regulation, might help avoid the development of unnecessary TMDLs and/or the imposition of unnecessarily stringent wasteload allocations.

Two strategies warrant mention for stormwater managers seeking to minimize adverse impacts from having their receiving waters listed as impaired. The first involves getting the state to acknowledge in writing, preferably with the listing (i.e., as a footnote to it), that a wet-weather–use review was not performed and therefore it is unclear whether the stream is impaired during wet-weather events. The second approach would be to have the state list a water as being impaired during dry-weather conditions only, if the data supports such a conclusion. This could be significant because it would fix the critical flow period (for TMDL development) during low flow, when stormwater discharges should not be implicated. Consequently, there should be little impact to stormwater control programs from the TMDL.

Impacts of Listing Decisions. Concerns arise regarding the impacts of listing decisions pending the development of a TMDL, which might not occur for several years under the state's schedule. Some EPA regions and environmental groups sought to impose severe restrictions on discharges to listed waters pending the development of TMDLs for those waters. These restrictions range from prohibiting new or increased discharges of pollutants of concern, to prohibiting new mixing zones and phasing out existing mixing zones, to requiring offsets before allowing new discharges.

Such restrictions can be critical for new and existing stormwater discharges. For example, last September, a federal district court judge in Montana ruled that neither EPA nor the state of Montana could issue any permits for new or expanded discharges to impaired waters throughout Montana. The judge's words were as follows:

"Until all necessary TMDLs are established for a particular [water-quality–limited stream], neither the EPA nor the state of Montana shall issue any new permits or increase permitted discharge for any permittee under the National Pollutant Discharge Elimination System permitting program or under the Montana Pollutant Discharge Elimination System permitting program."

The state interpreted the order literally to preclude its issuance of new permits for stormwater discharges to impaired streams in support of dozens of planned road construction projects. This halted approximately 38 ongoing road projects and jeopardized more than $200 million worth of projects in 2001. After a firestorm of controversy, in October the court clarified its order to make an exception for stormwater permits available under Montana's general stormwater permits. In an unprincipled decision, the court held that the state's general stormwater permit had been issued prior to its order and, accordingly, the application of that permit to new road projects did not constitute a new permit for a new or expanded discharge to state waters.

As EPA and the states begin to issue Phase II stormwater permits, this type of restriction will likely surface in many states and will be a major issue of controversy.

Appealing Listing Decisions. Given the impacts of listing described above and other potentially significant impacts, dischargers should understand their rights to appeal listing decisions under state administrative laws. Stormwater managers cannot rely on other point sources to ensure listings are proper because in many cases urban and agricultural stormwater will be the major targets of TMDLs. This is especially true in the early TMDLs as the states seek to "cut their teeth" on TMDLs that do not affect major point-source dischargers.

In some states, there may be a right to appeal the listing decision. In other states, there may be no right to appeal until the TMDL is developed with a wasteload allocation for the discharger or even until a wasteload allocation is proposed in a specific permit. It might be that the proper timing will be unclear under applicable state law. In that case, the safest strategy is to file the appeal rather than risk waiving the opportunity for administrative/judicial review. If the appeal is dismissed as premature, nothing is lost because essentially the same papers can be refiled at the later date. After a case or two in each state, the appropriate juncture for filing listing challenges should become readily apparent. Another approach involves addressing listing issues through state legislatures, including providing express opportunities for judicial review. Finally, where EPA makes a listing decision, an appeal of that action would follow in federal court.

Stormwater Control and TMDLs

As states develop more TMDLs that affect point sources, an increasing number of disputes will arise. While there has been little litigation in this arena so far, one thing is clear: The states and EPA will enjoy a great deal of discretion in the highly technical process of developing TMDLs and establishing wasteload allocations (Dioxin/Organochlorine Center v. Clarke, 57 F.3d 1517; 9th Cir., 1995: allowing the agencywide discretion in the TMDL process and rejecting a challenge to a dioxin TMDL). Agency discretion, however, does come within bounds. For example, agencies must explain and be able to defend their models and the assumptions underlying their models (Eagle-Pitcher Indus. v. EPA, 759 F.2d 905, 921; D.C. Cir., 1985). As with all aspects of the TMDL development process, dischargers should closely scrutinize modeling. This is especially true where limits will be placed on municipal stormwater discharges based on a low-flow–oriented TMDL.

The states and EPA continue to be weak in discriminating between dry-weather and wet-weather impairments. Even more troubling is the application by states of their normal modeling and permitting software programs with impractical results for stormwater discharges. For example, TMDLs for urban streams in Memphis, TN, and Culpepper, VA, resulted in proposed National Pollutant Discharge Elimination System (NPDES) permit requirements to reduce bacteria in stormwater discharges by 97% in both communities. A similar requirement was recently proposed in a TMDL affecting a municipal authority in New Mexico. These impractical and expensive requirements will become the norm if stormwater managers do not aggressively participate in and help direct the TMDL program development effort in their states.

In another national precedent-setting case, EPA recently imposed numeric limits for oil and grease in an NPDES permit for stormwater discharges from the District of Columbia to a receiving water with a TMDL for oil and grease in effect. This action is significant because EPA jumped right to numeric permit limits rather than give the district the opportunity to develop a BMP program to address oil and grease issues. Recently a federal district court in Arizona ruled that EPA holds the authority to impose numeric effluent limits on stormwater discharges, along with the discretion to initially impose BMPs rather then jump directly to numeric limits. In addition to treating the district more severely than its agency counterparts treated the Arizona communities that were the subject of the Arizona litigation, EPA Region III set the oil and grease limits for the district at a level it appears the district cannot meet.

Adding insult to injury, several environmental groups appealed the district's NPDES permit for stormwater to EPA's Environmental Appeals Board. They argued that EPA should impose additional numeric effluent limits (mass and concentration) for a variety of other parameters, including solids, bacteria, and certain heavy metals. Moreover, they continue to seek to have numeric limits imposed on every one of the district's stormwater outfalls. The outcome of this case will affect stormwater control requirements nationwide.

Level of Participation

Active participation in the TMDL process is a must, but how best to participate is not always clear. A group of dischargers or other stakeholders might consider leading the process themselves. In addition to eliminating delays, this could result in a final TMDL of higher quality than one left to the limited resources of most states. This approach might well reduce protracted litigation.

In other cases, a discharger might be better off either undertaking its own assessment of the data or retaining water-quality experts to build a case for a larger overall or individual wasteload allocation. Because public-participation time frames can be very short, these steps should be conducted as early as possible in the state's process.

Early on, stormwater managers should consider working with their state permitting agency to initiate a wet-weather use and water-quality standards review. For example, almost every stream in the country will violate state bacteria standards during wet-weather events. Those standards, however, are "dry-weather" standards designed to allow primary contact recreation to occur. Absent a use review, we will end up facing stormwater bacteria reduction mandates in communities nationwide. If one determines that people in a particular community do not use a stormwater receiving water to swim in during storm events, a refined use (that excludes primary-contact recreation) can be established. This will avoid an impaired waters listing, the development of a TMDL for bacteria, and unnecessary stormwater control requirements.

Legislation, Regulations, and Guidance

One approach to help shape the state TMDL process involves seeking the enactment of TMDL legislation. In Florida, for example, a recent statute provides guidelines for the development of TMDLs. This means point sources can ensure equitable allocations of loading capacity to hold nonpoint sources responsible for their share of loadings causing an impairment. It is also a way for stormwater managers to work in a requirement for the state to conduct wet-weather use and water-quality standards reviews before imposing TMDL-related requirements on municipal stormwater discharges.

Similar objectives can be accomplished through the regulatory process by developing state-specific TMDL regulations or guidance documents. The state legislative process can address all aspects of the TMDL program from listing methodologies to the TMDL development process, equitable allocation of wasteloads, and even opportunities for review of agency decisions. Even the most thoughtful state process won't help if EPA steps in and develops TMDLs to comply with the consent decrees the agency seems determined to agree to in every state. In that case, the minimum public participation requirements that EPA established for itself provide the public with a 30-day comment period on proposed TMDLs. This has not kept states from conducting important TMDLs through the state process and feeding lesser TMDLs to EPA for it to develop under the abbreviated federal program.

Will Congress Revisit Requirements?

After considerable discussions, a coalition of national municipal associations, including the National League of Cities, National Association of Counties, Association of Metropolitan Sewerage Agencies, Water Environment Federation, and American Public Works Directors Association, introduced the Urban Wet Weather Priorities Act (HR 3570) before Congress. Among other things, the bill intended to prohibit EPA and the states from imposing numeric limits under the CWA on municipal stormwater discharges.

Unfortunately, the bill attracted only four cosponsors and did not progress. During the summer, the congressional discussion of stormwater issues changed from an outright ban to a 10-year moratorium on numeric limits. The idea behind this approach includes giving communities two five-year NPDES permit cycles to develop stormwater programs - most likely based on a strong BMP program - before numeric limits could be imposed. Previously a wide range of stakeholders supported this approach, including some national environmental groups.

As one of its final issues, the 106th Congress passed an alternative approach to stormwater: HR 828, the Wet Weather Water Quality Act of 2000. HR 828 will - among other things - require EPA to finalize a guidance document on conducting wet-weather designated-use and water-quality standards reviews. While primarily directed to the issue of CSOs, these reviews could potentially apply to every stormwater discharge in the country. Under this approach, localities, states, EPA, and interested stakeholders would, for the first time, consider what uses the public wants to make of wet-weather-receiving streams during wet-weather events as well as what uses are attainable in those streams during wet weather. Thus they could adjust the uses and water-qaulity standards accordingly. Such reviews hold considerable promise for focusing stormwater control requirements to those parameters and storm events that truly affect designated uses.

For information about HR 828 and its final disposition in the 106^th Congress, visit www.csop.com.

The combined effect of court-ordered TMDL schedules and EPA's pending revisions to the national TMDL program place TMDL development on the fast track. In the current "ready, fire, aim" climate of TMDL development, dischargers increasingly spar with regulatory agencies and other stakeholders in a rush to develop TMDLs, without the benefit of a fair process or adequate analytical data. Sophisticated dischargers will make the time to master the entire listing and TMDL development process in order to maximize their prospects for equitable and appropriate results while achieving the desired water-quality endpoints. This participation is particularly critical for stormwater managers given the potentially immense costs associated with inappropriate numeric concentration and mass loading limits for stormwater discharges.

Paul Calamita is a Clean Water Act lawyer with the law firm of McGuire Woods LLP in Richmond, VA.