Draft by Mark T. Pifher

Trout & Raley, P.C.
1775 Sherman Street, #1300
Devner, CO 80203
ph 303.861.1963
fax 303.832.4465

TMDL Comments 12/6/99

Introduction

    EPA makes a distinction between "pollutants" and "pollution." Waters are to be "listed" if impaired by either of these sources, but no TMDL is necessary if "pollution" is identified as the cause of the problem. In support of its position, EPA appears to rely upon the fact that Section 303(d) (A) indicates that in their "prioritization" of impaired waterbodies, states are to consider "the severity of the pollution and the uses to be made of such waters." Section 303(d)(1)(C), however, pursuant to which load and wasteload allocations are to be developed, references only "pollutants" as being a part of this allocation process.

    In the eyes of EPA, it makes no difference in the listing or TMDL establishment process whether the "pollutants" arise from point or nonpoint sources. In either event, the waterbodies must be listed and TMDLs developed. WESTCAS is aware of the fact that litigation is pending which will address some of the questions surrounding the propriety of listing nonpoint source only waterbodies and, if listed, mandating TMDLs therefore. See Pronsolino v. Marcus, et al. There are some legitimate reasons for concluding, however, that Section 303(d)(1)(A) and (C) were meant to refer solely to "point source" impacted waterbodies. By way of example:

    As can be discerned from the above observations, WESTCAS harbors significant concerns over the listing of waterbodies impaired solely by pollutants from nonpoint sources. That is not to say, however, that nonpoint source controls should be ignored. Significant funding should be directed thereto. Nevertheless, regardless of how the legal debate over "points" and "nonpoints" is eventually resolved, WESTCAS has specific comments associated with the listing of waterbodies impaired by "pollution," as well as the potential treatment of western water rights under the proposed rule.

Listing of Waterbodies Impaired by Pollution

    Though Section 303(d)(1)(A) does utilize the word "pollution," it must be read in context. The first sentence in this paragraph refers only to "point source" effluent limitations, i.e., controls upon the discharge of "pollutants." Section 303(d)(1)(B), pursuant to which TMDLs are required, is similarly limited to loads for "pollutants." Thus, these types of discharges were the obvious focus of Congressional concern. The second sentence in paragraph (1)(A) utilizes the phrase "severity of the pollution" in the context of mandating a prioritization of the waterbodies. Though Congress could have been more precise, it would seem odd to refer to the "severity of pollutants" in ordinary nomenclature. It would be an even more strained interpretation, however, to think that Congress meant to have some of the highest ranked waterbodies, i.e., those with "severe pollution," placed on the TMDL list even though very little, if anything, could be accomplished under the Act to address these waterbodies, a fact admitted by EPA in acknowledging that no TMDLs needs to be developed therefore.

    On a more practical note, if waterbodies are to be listed due to "pollution," that pollution must be equated, in some reasonable, measurable manner, with a violation of water quality standards. ?303(d)(1)(A). Standards, in turn, are evidently composed of three components, i.e., criteria, uses, and an antidegradation policy. EPA goes so far as to state that the "standards" to be met, include "aquatic or riparian habitat, biological, channel, geomorphological or other appropriate conditions." However, many states have not yet incorporated such "biological based" or biocriteria standards into their programs. In fact, this broad brush approach would inappropriately place EPA in the midst of state water use and allocation decision making, without any clear Congressional authorization. A few examples of potential problems are in order.

  1. If the holder of a lawfully decreed water right exercises that right through diversion and/or storage and subsequently "dewaters" a stream reach for a set period of time, would the waterbody be placed on the list due to "pollution?" How would this impact Section 404 permitting, Section 401 certifications, FLPMA permitting or FERC licensing for projects? In other words, what are the consequences of the listing?
  2. At times, a water purveyor diverts or stores as in example No. 1, while at other times he releases water from a reservoir to run downstream where it is subsequently "picked up" for agricultural, municipal or industrial use. The storage and release patterns affect sediment loading to the reach. Is any degradation under such a scenario categorized as "pollution," or as emanating from "pollutants?"
  3. A reservoir is built above a tier 3 (high quality) waterbody segment. Its pattern of storage and diversion does not cause any downstream exceedence of standards, but does result in a measurable change in water quality. Must that waterbody be listed? What are the consequences? Wouldn't this encourage states to refrain from high quality designations?
  4. The diversion of water from a natural stream and its subsequent use for agricultural irrigation results in exceedance of the temperature standard in the stream or, on the other hand, the simple introduction of reservoir water to the stream causes such an exceedance. Is this a nonpoint source discharge of pollutants necessitating the development of a TMDL? What is to be allocated in remediating the problem?
  5. A dam releases impounded waters and adversely impacts dissolved oxygen levels downstream. Is this a "regulated" release under the TMDL program?
  6. There exists an exceedance of a standard in a downstream state due, in part, to the pattern of diversions and releases, from an upstream state's water facilities. There is an interstate compact on the stream governing flow deliveries. Could the TMDL program be utilized to modify upstream water storage, diversion or release patterns?
  7. A waterbody is impaired due to elevated concentrations of a certain parameter. The standard could be met by introducing additional "clean" dilution water into the system, thereby decreasing the concentrations without reducing the overall loading. Would it be permissible, (or even required), to utilize water deliveries in this manner?
  8. An entity engages in an "transbasin" diversion project. The water which he introduces into the basin contains "naturally" elevated levels of a given parameter, which causes or contributes to an exceedance or potential exceedance in the basin of receipt. Would this be "pollution" or the introduction of a "pollutant?"

    The above examples highlight why water purveyors, especially those subject to the prior appropriation system in the arid West, are concerned both about listing waterbodies due to pollution, and the scope of the TMDL program as it applies to pollutants associated with nonpoint sources. After all, EPA has identified "hydrologic modifications" as a nonpoint source. In order to avoid becoming entangled in state and local policy decisions regarding water allocation and use, and to demonstrate due deference to the principles underlying Section 101(g) of the CWA, i.e., the Wallop Amendment, EPA should: