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Workshop Summary:

Developing and Implementing TMDLs

February 3-4, 2000 -- Tempe, Arizona

Published February 2000

Contents

Foreword
Acknowledgments
Agenda
Executive Summary
Keynote Address
Opening Roundtable
Panel One -- "Keys to Developing Approvable TMDLs"
Panel Two -- "Implementation Plans for Non-Point Sources"
Panel Three -- "Consultation Process for Endangered Species"
Meeting Notes: Outline of Final Roundtable Discussion
Links to Comments on EPA Proposed TMDL Rule
Links to Useful Web Sites

Foreword

The Clean Water Act requires states to identify and list lakes, rivers and streams that do not meet water quality standards. For each of those water bodies, a state is required to establish a total maximum daily load (TMDL) for each non-attainment pollutant, including non-point source pollutants, at a level necessary to ensure that applicable water quality standards can be obtained. A TMDL is the amount of pollution a water-body can absorb and still support aquatic life in addition to uses such as water for drinking and recreation.

While states have primary responsibility for establishing TMDLs, the U.S. Environmental Protection Agency (EPA) is charged with ensuring that states comply with the law and establish TMDL programs. The EPA is required to establish TMDLs if a state does not comply with the Clean Water Act. Development of state plans to implement the TMDL requirements has been slowed for a number of reasons including an early focus on point source regulation and limited resources. As a result, there are approximately 30 lawsuits pending against the EPA, charging that the EPA has not been enforcing the law with regard to the states.

TMDLs are a priority issue for western governors, and in 1997 the governors adopted Western Governors' Association (WGA) resolution 97-008 that directed WGA staff to facilitate state interaction on this subject. The governors noted that the unique features of the west including our hydrology, geography, water law, and land use and ownership patterns dictated the need for an equally unique approach to TMDL implementation. Under the direction of its lead governors for lands and water issues, Governor Jim Geringer of Wyoming and Governor John Kitzhaber of Oregon, WGA convened a forum of the states in Jackson, Wyoming in the Fall of 1997. The issues raised and recommendations made at that forum suggested to the governors that WGA should seek funds to coordinate TMDL issues for western states over the near term. In the Summer of 1998, WGA was awarded a grant by the EPA to design and manage a series of workshops primarily for state personnel on specific TMDL topics. The goals of the workshops are to seek through a collaborative process new and creative ways to implement the Clean Water Act regarding TMDLs, and to provide a venue for the states and other entities to enter into a constructive exchange on policy and regulatory issues associated with TMDLs.

This document attempts to capture some of the substance from WGA's fourth workshop: "Developing and Implementing TMDLs," which took place in Tempe, Arizona on February 3 & 4, 2000. The forum's purpose was to provide a forum to discuss key issues in developing approvable TMDLs, development of implementation plans for non-point sources, and the consultation process for developing a TMDL when a threatened or endangered species is involved. Roundtable discussions at the opening and closing of the workshop promoted open discussion regarding development and implementation of TMDLs.

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Acknowledgments

This workshop is one in a series of workshops funded by the U.S. Environmental Protection Agency. WGA appreciates the support and the expertise and good cheer of the EPA individuals who have worked with us. The considerable work of identifying topics, developing an agenda, selecting speakers, developing an invitation list and arranging logistics for the meetings fell to WGA's TMDLs Advisory Committee and WGA staff. The members of the advisory committee were selected because of their knowledge of TMDL issues and players, and because of their ability to capably represent the broad range of interests involved in TMDL issues. WGA aims to maintain the Advisory Committee throughout its TMDL work in order to continue reaping the benefits of the members' wisdom and insights. WGA's TMDLs Advisory Committee includes the following individuals:

WGA would also like to acknowledge and thank each of the speakers who gave freely of their time and experiences to participate in the WGA workshop. An extra thanks from WGA to the speakers for devoting extra time to develop thoughtful summaries of their presentations. A final note of gratitude is owed to Jim Alder of the Western States Water Council for his invaluable assistance at the meeting. We have attempted to capture the speakers' presentations in this report, but we urge those seeking further insights to contact them directly.

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Agenda

TMDL WORKSHOP
WESTERN GOVERNORS' ASSOCIATION

Developing and Implementing TMDLs

February 3-4, 2000
Fiesta Inn
Tempe, Arizona

Thursday, February 3

10:00 a.m.         Welcome and Introductions - Karen Smith, Water Quality Director, Arizona Department of Environmental Quality

10:30                 Roundtable Discussion on Western Issues regarding Development and Implementation of TMDLs

                           Moderators:

The moderators will kick off the forum by leading a discussion on western issues pertaining to development and implementation of TMDLs. This roundtable is intended to set the stage for the panels that will follow.

12:15                 Lunch (buffet provided)

1:00                   Panel One - "Keys to Developing Approvable TMDLs"

This panel will discuss the critical points to be addressed in the development of a TMDL in order for it to be approvable by EPA. The panelists will describe TMDLs that have been successfully implemented, focusing on the key components of the plans which resulted in EPA approval.

                           Moderator: Paul Orbuch, Western Governors' Association

                           Panelists:

3:00                    Break

3:15                    Panel Two - "Implementation Plans for Non-Point Sources"

This panel will discuss how to demonstrate reasonable assurance that an implementation plan for non-point sources of pollution will succeed, including consideration of options for a state to allocate responsibility for controls and milestones for non-point sources of pollution.

                           Moderator: Sue Lowry, Wyoming State Engineer's Office

                           Panelists:

5:00                      Adjourn

5:30 - 6:30           Reception

 

Friday, February 4

7:30 a.m.             Continental Breakfast Provided

8:00                    Welcome - WGA Staff

8:15                    Panel Three - "Consultation Process for Endangered Species"

This panel will discuss what the consultation process should be when an ESA species is involved within the context of developing an "approvable" TMDL.

                           Moderator: Rich Bechtel, Director, WGA-D.C. Office

                           Panelists:

10:15                 Break

10:30                 Roundtable Discussion

All meeting participants will take part in a general roundtable discussion on developing and implementing TMDLs

                          Moderator: Bruce Flinn, Bureau of Reclamation, Denver

11:30                 Final Summary/Wrap-Up/Next Steps - WGA's Lead Governors' Representatives will summarize the key points of the discussion                             that took place during the forum, and note any follow-up actions that might be taken.

Gary Beach, Wyoming DEQ
Mike Llewelyn, Oregon DEQ

12:00                  Adjourn

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Keynote Address

KAREN L. SMITH, PhD.

Karen L. Smith was appointed director of the Water Quality Division in the Arizona Department of Environmental Quality in August 1998. Prior to that, Dr. Smith worked at the Salt River Project for 15 years in a variety of positions, including manager of Water Resource Management. As director of Water Quality, Dr. Smith is responsible for the implementation in Arizona of the Clean Water Act, the Safe Drinking Water Act and the Arizona Environmental Quality Act. She has written and published several works on water resources in Arizona, including The Magnificent Experiment, and also serves as an adjunct professor at Arizona State University. Dr. Smith holds a PhD in history from the University of California, Santa Barbara, where her field of specialization was the history of technology.

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Executive Summary

WATER QUALITY/WATER RESOURCES
Total Maximum Daily Loads

WESTERN STATES WATER
Special Report
February 11, 2000

Introduction

The Western Governors' Association (WGA) sponsored the latest installment from a series of workshops on Total Maximum Daily Loads (TMDLs) on February 3-4, in Tempe, Arizona. Held at the Fiesta Inn in Tempe, the focus of this latest forum was "Developing and Implementing TMDLs." Participants were welcomed to the workshop by Shaun McGrath of WGA and Karen Smith, Water Quality Director for the Arizona Department of Environmental Quality (ADEQ). Ms. Smith briefed participants on recent water quality-related developments in the State of Arizona, describing Arizona's "vision" for water quality. She compared Arizona to the other western states, describing the state's frustration in working with the Environmental Protection Agency (EPA) in attempting to "juggle too many balls at once." She stated that her state's key for success in dealing with water quality programs is leveraging its resources through an integrated approach. This is accomplished by breaking down walls between the many programs and integrating resources, planning and data, and focusing her agency's efforts like those of a "SWAT team." Ms. Smith indicated that the pace of the work being done by her agency has exploded, with thirty TMDLs either completed or awaiting approval, where none had been established as late as 1998.

Opening Roundtable

The next segment of the workshop was a roundtable discussion focusing on "Western Issues regarding Development and Implementation of TMDLs." Panel members delivered prepared remarks, then answered questions from the audience. First to speak was Chuck Fox, Assistant Administrator for EPA's Office of Water. Mr. Fox reminded participants that the TMDL program is nothing new. It has existed since enactment of the CWA, but has only recently been implemented. Its purpose is to address the remaining significant water quality problems. Mr. Fox indicated that the final TMDL rules should be finished in late summer of this year. Approximately 30,000 comments were received on the proposed rules, with about half of them dealing with silviculture issues. Mr. Fox stated that the implementation plans contemplated by the proposed rules are of significant importance to the program. Creation of TMDLs is not enough, they must also be implemented, Mr. Fox stated. He further explained that "reasonable assurances," as envisioned by the proposed rules, were created to insure that implementation plans are adequate. He maintained that this requirement is intended to provide flexibility, as many participants expressed a need for clarification as to the concept's meaning. Mr. Fox also insisted that nonpoint source pollution must be subject to TMDL regulation if the program is going to have any chance of success. He also expressed a need for more state spending to complement increased federal funding for the program.

David Holm, Director of Colorado's Water Quality Control Division, detailed Colorado's history in regards to developing TMDLs. He listed a number of emerging issues in the field, with growth and development heading the list. He felt that there is substantial evidence that growth will result in a redistribution of discharge allocations, possibly affecting water rights use where effluents are discharged to streams that serve as drinking water sources. Another issue emerging in Colorado is the treatment of whirling disease in fish as a pollutant, with introduction of infected hatchery fish treated as a discharge. Mr. Holm also discussed some hurdles faced by his state with the need to double or triple monitoring and staff at the head of the list. Public outreach also needs to be increased. He felt that the "boogie-man" factor--a fear of the unknown--results in resistance, rigidity and a desire for certainty when faced with new program requirements. He also expressed a need for a "Good Samaritan" provision in the CWA to facilitate acid mine clean-ups. Mr. Holm also related to participants some of the tools that have benefited his agency, namely: stakeholder outreach; increasing staff with federal funding; and having a very elaborate water quality standards program.

Mike Freeman, of the Earthjustice Legal Defense Fund, expressed his belief that the proposed rules represent an improvement in the TMDL program, due mainly to the implementation plan and nonpoint source pollution provisions. He stressed that these measures are vital to the success of the new rules, stating that if they are not included in the final version of the rule, "we might as well go home now." Mr. Freeman also felt that to avoid the issue of water quantity is to "shoot ourselves in the foot." He advocated active EPA involvement in setting instream flows, claiming that states are not capable of doing the job. He also believes that if a stream segment is listed for pollution impairment, including depletions, TMDL creation should also be required. The final presenter of the morning's first panel was Pete Test, Associate Director of Governmental Affairs for the Oregon Farm Bureau Federation. He expressed the fear that farmers and ranchers have of the unknown, especially as to how these new rules might affect their operations. Mr. Test felt that TMDLs should not be used to regulate pollution, claiming that to do so violates the principles of the CWA and is outside the province of EPA. He also stated the importance of adaptive management principles. He claimed that people need to know what they must do and programs cannot just be stated as vague concepts and standards. Programs must consist of goals and objectives, and be outcome-based, if they are to be successful.

Panel One

The morning's second panel began with remarks by Don Brady, of EPA's Office of Wetlands, Oceans and Watersheds. Mr. Brady indicated that approval of TMDLs is delegated from EPA headquarters to the regional offices. He illustrated some of the numerous comments EPA had received on the proposed rules. He also addressed the EPA's TMDL review elements, giving a number of examples of TMDLs submitted for review and stating that whatever form a submission may take, it must ultimately be labeled as a TMDL to be considered for approval. Frank Metzler, Supervisor of the TMDL & Water Quality Assessment Unit for ADEQ, followed Mr. Brady and spoke to Arizona's TMDL efforts. He described one of the greatest difficulties for his unit as being the decision as to which streams are ephemeral, which are intermittent, and which are perennial, without the benefit of having USGS stream gauges on all streams. In relating his experiences, Mr. Metzler stated that he has found it beneficial to talk to regions, avoid surprises and establish effective watershed groups. He also felt it important to identify opportunities for creating TMDLs in advance of their scheduled development by using new data, studies and funding grants. Using proven, qualified consultants has also paid off in that he has been able to develop a short list of dependable, experienced contractors that he can go to immediately, avoiding investigation delays. Mr. Metzler also recommended "diversifying staff members' TMDL portfolio" by assigning them responsibility for both ephemeral and perennial streams, thus avoiding any downtime when ephemeral streams may not be flowing. He recommended that we avoid including pollution and stream flow issues in TMDLs, stating that "we will get squashed" should we do so. Finally, he recommended that EPA create a library of approved TMDLs, classified by stressor and region, providing states a reference when beginning new TMDLs.

Mike Ell, Administrator of North Dakota's Surface Water Quality Management Program, was the next speaker, and gave participants eight keys essential to approvable TMDLs. Mr. Ell stated that, first of all, TMDLs must result in attaining or maintaining the state's water quality standards. TMDLs must also contain a quantified target or endpoint, and a quantified pollutant reduction target. The reduction target, according to Mr. Ell, is the TMDL and it can be expressed in any appropriate manner. He also believes that it should consider all significant sources of the pollutant or stressor, including point and nonpoint sources, but only those sources which are significant. Deciding what the significant sources are should be supported by an appropriate level of technical analysis, according to Mr. Ell. The TMDL must include an adequate margin of safety and must consider seasonality, as required by the CWA. Mr. Ell felt that it is important that discharges are allocated responsibly among dischargers and other sources. He also stressed the importance of public involvement in the TMDL process.

John Roanhorse, of the Institute of Tribal Environmental Professionals, illustrated some existing tribal environmental standards, but stated that no tribes have approved TMDLs as of yet. He anticipates that there will be tribal TMDL submissions to EPA within two years time. He spoke generally about the State of Washington's cooperative management program and indicated that tribes are looking to establish a broader overall presence in the environmental arena. He stated that tribes are behind the curve in this area and need assistance to catch up. Kurt Segler, Utility Services Manager for the city of Henderson, Nevada, concluded the first morning's presentations with a description of his city's efforts in creating a TMDL for the Las Vegas Bay of Lake Mead. He indicated that the initial reaction had been negative, but reactions now are fairly positive, as the TMDL provides certainty for dischargers. Allocating wasteloads has occurred through voluntary negotiations and no permit violation is found if the overall TMDL is not violated. Mr. Segler felt that difficulties presented by the proposed TMDL rules included: differentiating between monitored and evaluated data; obtaining resources to complete TMDLs within fifteen years; differentiating between physical modifications and water quality impacts; equating reasonable assurances for nonpoint source best management practices (BMPs) to quantifiable results; and determining future growth impacts on nonpoint sources for TMDL set-asides.

Panel Two

Larry Koenig, of the Texas Natural Resource Conservation Commission, began Thursday afternoon's discussions on implementation plans for nonpoint sources, describing the situation in the Bosque River watershed of Texas. He stated his opinion that reasonable assurances must be both technically and socially feasible to be successful. He defined technically feasible to mean that necessary technology must exist and that the process be economically feasible. Social feasibility means to have the support of the public, according to Mr. Koenig. He expressed his belief that the proposed rules are not sufficiently accommodating towards nonpoint sources. It must be an interactive process, with some latitude for partial steps towards completion. He also felt that requiring implementation plans as a condition of TMDL approval is "putting the cart before the horse."

Nina Bell, Executive Director of Northwest Environmental Advocates, addressed participants next, and stressed that in her view, implementation plans are absolutely necessary to the success of the TMDL program. She stated that the tremendous uncertainty surrounding nonpoint source pollution should not be used as an excuse for justifying a "phased" approach. She believes that post-development monitoring should be part of every TMDL, but that monitoring does not constitute the required margin of safety. Ms. Bell emphasized that it makes sense to state TMDLs in practical ways, but ultimately, we must take a look at what really is necessary to remedy impairment. She also expressed her disappointment with the proposed rules in that she feels they do not adequately address instream flows, or do enough to put water back into streams.

Jamie Clover Adams, Kansas Secretary of Agriculture, defined success of the TMDL program as making water quality improvements while still retaining the possibility of continued agricultural livelihood. She stressed that agriculture agencies must be engaged in the development process. She also noted the importance of credible data--comparing farmers to members of Alcoholics Anonymous--and stating that "they first need to recognize that they have a problem." She emphasized the necessity of coordination with affected agencies, one-on-one contact with producers, and credible public participation, although these processes may be costly and time-consuming. Finally, after illustrating the fact that 3% is a good profit margin for farmers and describing one basin's study that showed implementing BMPs would take up 4-5% of producer product value, she called for taxpayers to "pony up" the money to help farmers incorporate changes that make taxpayers' values reachable.

Panel Three

Friday morning began with a discussion focusing on the intersection of the TMDL program and the consultation process for endangered species. Rich Bechtel, Director of the WGA Washington, D.C. office, moderated the panel and began the presentations by stating that no one really knows yet how TMDL and the ESA are going to interact. "It is a work in progress," he said. The first speaker was Gaylon Lee, Forest Activities Program Manager for the California State Water Resources Control Board. He felt that while some landowners believe they can do anything they want with their land, many want to "do the right thing, and should be given the chance." Confidentiality was an issue that Mr. Lee also discussed, with landowners wanting their activities to be held in confidence and not subject to public review. He also discussed what he feels to be a lack of understanding on the part of federal agencies. He feels that they should be more respectful of the states' situation, as landowners often require that the need for more regulation be proven to them in no uncertain terms, thereby demonstrating the need for complete understanding of the full effects of the interaction between the CWA and the ESA. Courts have also contributed to the pressure states are facing by placing time constraints on states for development of TMDLs that did not account for the possibility of ESA consultation requirements.

Bruce Taubert, Wildlife Management Division Assistant Director for the Arizona Game and Fish Department, suggested that TMDL implementation is centered on five things: who; what; when; where; and how. He stated that the consultation process is a necessary step because TMDL development results in an implementation plan that is approved and adopted by the EPA, and that this is a federal action requiring consultation. He suggested that states start early in developing TMDLs and involve their Fish & Game agencies early in the process. Steve Chambers, of the U.S. Fish & Wildlife Service (FWS), addressed participants next, explaining that no case study was available on this issue as no TMDL consultation has yet been completed. He agreed that TMDL approval appears to be an agency action necessitating consultation, although informal consultation might be the appropriate process. He also agreed with Mr. Lee that maintaining landowner confidentiality is important to the TMDL/consultation process.

The final speaker on this topic was Dave Smith, the TMDL Team Leader from EPA's Region IX, who agreed that we can count on seeing some ESA consultations in the TMDL approval process. He encouraged state and local participants to get to know their EPA regional personnel and to start talking to them about what they are facing. He believes that when the time comes to make decisions, this will facilitate a much smoother process. He indicated that EPA duties concerning ESA and TMDL interaction are currently being litigated in Montana. According to Mr. Smith, EPA, FWS, and the National Marine Fisheries Service (NFMS) convened a workgroup last December to devise policies and procedures for the consultation process. While no decisions have been made as of yet, some of the options may include programmatic consultations and a priority setting process leading to consultation. Mr. Smith also indicated that states can expect a 6-12 month wait to complete the consultation process. He also stated that EPA will work with states to ensure early coordination with FWS or NMFS and agreed that informal consultations are the best approach to this problem, although resorting to the formal consultation process will be used if necessary to keep the process moving.

Closing Roundtable

A general roundtable discussion followed this last panel, with Bruce Flinn of the Bureau of Reclamation's Denver office, moderating. Many participants were concerned with what would be required when pollutant/sediment load reductions do not restore water quality to levels appropriate for designated uses. Many felt that the answer might be to ensure that standards are appropriate for the waterbody. It was suggested that WGA convene a workgroup on the issue of what happens when background conditions and water quality standards conflict. Many participants questioned the extent of federal authority to control nonpoint source pollution under the CWA, and expressed a need to define jurisdictional issues regarding water rights and water quality. Numerous questions were raised as to what is meant by reasonable assurances. When asked for more clarity on this issue, it was explained that the goal of providing reasonable assurances is to better define what might make a TMDL acceptable, but to remain flexible as well. Participants pinpointed some inconsistency among EPA regions and its headquarters as to whether monitoring may provide an adequate margin of safety. Participants also suggested that WGA look into the issue of how the ESA or the CWA might be used to regulate water flows.

Remarks

The workshop came to a close with wrap-up remarks from representatives of the WGA lead governors on the TMDL issue--John Kitzhaber of Oregon and Jim Geringer of Wyoming. Mike Llewelyn, Water Quality Division Administrator for the Oregon Department of Environmental Quality, summarized his perception of the workshop, stating that he believes EPA will not back away from the proposal that implementation plans be closely tied to preparation of TMDLs. He felt that this is true of the proposal to list waters impaired by nonpoint sources of pollution as well. He believes that TMDLs are making states re-think their water quality programs and that fish management is playing a role is this process. He urged states to not let the TMDL program become a "smoke and mirrors" attempt to avoid TMDL development, but also urged the environmental community to understand that there are legitimate reasons for water quality standards changes in some cases. Mr. Llewelyn expressed his apprehensiveness with having TMDL development be driven by the ESA consultation process. Therefore, he concluded, it is vital that states be brought in early--it won't work without a working relationship and understanding on the federal agencies' part. He also expressed his concern that consultation-related delays could be counterproductive to the entire TMDL program.

Gary Beach, of the Wyoming Department of Environmental Quality, stated that he believes that while an approvable TMDL must come from the top-down, there has to be flexibility in the process. The focus of the TMDL process must be results on the ground, so that this is not just a document preparation exercise. He felt that more must be said on the margin of safety issue, as this is not yet adequately clarified. Another issue needing clarification that he gleaned from discussion during the workshop is how to account for growth. He also believes we must address the financial support available to help people achieve the goals of the program. Mr. Beach stated that we will have to address the issue of flow impairment sooner or later, and that this should be addressed at the state level. Finally, the consultation question is a huge concern for states, according to Mr. Beach. If we don't know how consultation will be approached, then there is no reasonable assurance for states that they will ever have completed TMDLs.

The final TMDL workshop is anticipated to be held sometime shortly after the release of the final TMDL rule later this summer.

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Opening Roundtable

Bio's

J. CHARLES FOX
Administrator for Water, US EPA

J. Charles Fox was confirmed by the U.S. Senate as Assistant Administrator for the U.S. Environmental Protection Agency (EPA) on October 21, 1998. As Assistant Administrator for Water, Mr. Fox is responsible for the national water quality management program, including implementation of the President's Clean Water Action Plan and the 1996 Safe Drinking Water Act Amendments. Prior to serving as Assistant Administrator for the Office of Water, Mr. Fox served as the Associate Administrator for EPA's Office of Reinvention where he directed the Common Sense Initiative, Project XL, and other regulatory reinvention efforts.

Mr. Fox has served as the Assistant Secretary and Chief Operating Officer of the Maryland Department of the Environment (MDE). Prior to joining MDE, he served as the Chief of Staff to EPA's Office of Water and as a Special Assistant to the EPA Administrator. Mr. Fox has held positions with a number of non-profit environmental organizations including American Rivers, Friends of the Earth, and the Environmental Policy Institute. Mr. Fox holds a Bachelor of Science degree in Urban Geography from the University of Wisconsin in Madison. He and his wife live in Annapolis, Maryland.

 

MICHAEL FREEMAN
Attorney, Earthjustice Legal Defense Fund

Michael Freeman is an attorney with Earthjustice Legal Defense Fund (formerly the Sierra Club Legal Defense Fund) in Denver, Colorado. His practice focuses on Clean Water Act issues and public lands litigation. In 1998 and 1999, Mike represented environmental groups in a lawsuit to force the development of total maximum daily loads in Colorado. Before joining Earthjustice, Mike practiced environmental law with the Chicago law firm of Jenner & Block. He is a 1994 graduate of the University of Chicago Law School.

 

J. DAVID HOLM
Director, Water Quality Control Division, Colorado Department of Public Health & Environ.

David Holm is the director of the Water Quality Control Division in the Colorado Department of Public Health & Environment. The Water Quality Control Division regulates the discharge of pollutants into the state's surface and ground waters and monitors and protects the quality of public drinking water supplies to protect the health of the citizens of Colorado.

Prior to working at the Water Quality Control Division, Mr. Holm was in charge of safeguarding hazards and addressing environmental problems associated with Colorado's numerous inactive and abandoned mines while working at the Colorado Division of Minerals and Geology (DMG) Mined Land Reclamation. Also while at DMG he worked in a regulatory capacity addressing a wide variety of mining and reclamation issues. He previously worked as a water quality specialist at the Colorado Health Department and as a research technician at both the University of Colorado Health Sciences Center and the National Center for Atmospheric Research.

Mr. Holm has a B.S. in biology from the University of Colorado in Denver and an M.P.H. in water quality/environmental health from the University of Michigan in addition to considerable post graduate work in civil engineering.

 

PETE TEST
Associate Director of Governmental Affairs, Oregon Farm Bureau Federation

Pete joined the Farm Bureau staff in July of 1994. In his short tenure, on behalf of the Oregon farmers and ranchers, he has assisted in developing and/or helped pass water-related legislation that protects and/or has provided fair treatment for agriculture producers. He has assisted with legislation and rule making related to other natural resource issues that affect Oregon's agriculture, specifically related to watershed/riparian systems, water quality, grazing and fish and wildlife. Pete was also a member of the American Farm bureau's National Water Quality Task Force. Pete's other activities include work with state water and natural resource work groups and task forces, as well as local natural resource cooperative working groups and individual farmers and ranchers. Before joining the Oregon Farm Bureau, Pete worked for Oregon State University as an Agriculture and Natural Resource Extension Agent in Grant County. Before coming to Oregon, he worked for the University of Nevada, Reno as an Extension Agent in two different Nevada counties, and prior to that, the Nevada Department of Wildlife as a Fishery Biologist.

Pete holds a B.S. in Renewable Natural Resources (Wildlife Management Option) from the University of Nevada, Reno. He also holds an M.S. in Range Management from Texas Tech University, and has a Ph.D. in Range Management from the University of Wyoming. Pete is actively involved with Society for Range Management on a national and regional level, as well as other professional societies. Pete is single, resides in Salem, and enjoys outdoor activities, particularly hunting and fishing.

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Panel One - "Keys to Developing Approvable TMDLs"

Background Info

Frank Metzler, Arizona Department of Environmental Quality

Based on your own experience, what would you consider to be the most critical elements in developing approvable TMDLs? What aspects of your own experience could serve as a template for the purpose of developing approvable TMDLs?

The Arizona Department of Environmental Quality (ADEQ) completed ten TMDLs on five waterbodies in 1999 after establishing a TMDL Program with 8 FTE dedicated solely to completing TMDLs. Our experiences are derived from developing those documents. We have approximately fifty-eight TMDL projects in development for completion by June 2001 - although some waterbodies are strong candidates for de-listing based on incoming data.

A) An open and effective channel of communication between state TMDL staff developing the draft document and the EPA regional staff responsible for reviewing submitted TMDLs is imperative. Receiving preliminary feedback from EPA on key elements such as the sampling plan, modeling approach and potential allocation strategies ensures we all are working in the right direction. EPA then has the opportunity to share knowledge of similar efforts and lessons learned in other states which can keep us from "re-inventing the wheel". Along those lines, it would be very beneficial if EPA Office of Water could establish an on-line reference library of completed TMDLs organized by stressor.

B) Arizona and Region IX have an agreed-upon outline of required TMDL elements. It is straightforward and reasonable to structure our documents in that format, and makes it easier for EPA to review our submittals in a timely fashion.

C) Grouped nonpoint source allocations present an opportunity for a TMDL to be completed and approved when existing data is insufficient to achieve more detailed resolution. By using a grouped allocation, ADEQ can work with all of the identified nonpoint contributors to identify and implement BMP's while we obtain additional monitoring and sourcing data. The TMDL can be revisited and the grouped allocation later subdivided when sufficient data exist. However, ADEQ does need to develop a better process for establishing agreements and MOU's among the affected parties.

D) Hire a good consultant with a proven track record to do the modeling on more complicated projects. ADEQ has recently developed a short-list of approved consultants who can rapidly bid on proposed work without having to go through the more lengthy RFP process.

E) Pray for rain, and be there with sampling equipment when the streams start flowing.

In contrast to 1 above, what do you expect will be the critical elements of an approvable TMDL in the future considering the proposed EPA TMDL regulations?

Implementation and reasonable assurance. ADEQ is concerned about our ability to develop implementation plans simultaneously with the TMDL with the degree of specificity set forth in the federal proposal. About 43% of Arizona is federally owned and managed land, and most of our listed waters are impaired by nonpoint source activities. Can ADEQ rely on federal land management agencies to implement nonpoint controls in a time-certain framework? What recourse do we have if they fail to do so? It may take years to establish the types of coordination, agreements, and legal authorities necessary to provide reasonable assurance. In addition, locking in the funding mechanisms necessary to pay for BMPs for an approvable plan of implementation on a nonpoint source TMDL may take several years to accomplish. Is the plan of implementation approvable before 319 proposals are developed and grants are awarded?

How were the margin of safety requirements dealt with?

For the Slide Rock TMDL, margin of safety was incorporated in several ways: all coliform was assumed to be E. coli for statistical purposes, even though a significant portion may be fecal coliform; conservative E. coli numeric action levels were developed for the issuance of swimming advisories in addition to developing stream stage and precipitation triggers for advisories. For the Arivaca Lakes mercury TMDL, a 25% unallocated reserve was established, Pena Blanca Lake had an unallocated reserve of 45%. For the Oak Creek nutrients TMDL, MOS was built into the conservative modeling assumptions. In addition, 2% of the nitrogen and 5% of the phosphorus unallocated reserve was set aside.

How was seasonal variation and natural background accounted for?

The Slide Rock pathogen TMDL analyzed variations in observed coliform counts both in the water column and in-stream sediment reservoirs throughout the year. Strong relationships exist between E. Coli populations and seasonality, summer monsoon events appear to play a major role in causing coliform exceedences, as does the highest recreational usage tied to the summer months and associated holidays. Numeric targets for sediment fecal coliform values were established for worst-case scenarios and remain in effect throughout the year. Research is ongoing to determine the source of origin and relative contribution of E. Coli using DNA typing. For the most part, coliform deriving from naturally occurring wildlife should be considered natural background. However, the issue of some manner of ungulate management in the watershed remains on the discussion table. In addittion, ADEQ has been working with Coconino County to conduct a survey of septic systems in the watershed.

How were TMDLs normally expressed (by load or some other surrogate)?

The Slide Rock pathogen TMDL was expressed as an overall 30% reduction in external fecal coliform loading by 2002, with further loading reductions required if fecal coliform counts in stream sediment reservoirs are not reduced commensurate with external loading reductions. The Rainbow Lake nutrient TMDL was expressed as an annual average nitrogen and phosphorus load in pounds attributed to both internal and external nutrient loading. The Arivaca and Pena Blanca mercury TMDLs were expressed as a total mercury loading rate in grams per year. The Oak Creek nutrient TMDL was expressed as a daily loading rate in kilograms.

If applicable, how were multi-jurisdictional issues addressed, e.g. watershed-based TMDLs that are dissected by political borders?

Arizona has not yet completed any TMDLs which cross state, state-tribal, or international boundaries. We are working on a TMDL along the southern boundary with Mexico which involves historic atmospheric deposition of metals from a smelter - but we are just beginning to figure out how we will coordinate our efforts with their environmental agencies and EPA. There are also two streams currently impaired by coliform and other stressors which flow from Mexico into Arizona. Check back with us in a few years on this question.

 

Michael J. Ell, North Dakota Division of Water Quality

"Nonpoint Source TMDLs in North Dakota: Keys to Unlocking the Approval Treasure Chest"

Power Point Presentation (Best viewed with Internet Explorer 5.0)

North Dakota is one of six states in US EPA Region 8. In 1996 and again in April 1997 Region 8 issued specific guidance regarding the key elements necessary for TMDL approval. This guidance was developed in cooperation with the states, recognizing the need to have a formal set of review criteria that EPA could use to defend approval decisions. It was also recognized that the review criteria need to accommodate both point and nonpoint source TMDLs.

The guidance provided by Region 8 established eight minimum requirements for TMDLs and provided a short description of each element. The requirements are summarized as follows:

- Application of TMDL results in maintaining and attaining water quality standards;
- The TMDL has a quantified target or endpoint;
- The TMDL includes a quantified pollutant reduction target, expressed in any appropriate manner;
- The TMDL must consider all significant sources of the stressor of concern;
- The TMDL is supported by an appropriate level of technical analysis;
- The TMDL contains a margin of safety and considers seasonality;
- The TMDL apportions responsibility for the load and wasteload allocations; and
- The TMDL involved some level of public involvement or review.

To date, EPA Region 8 has approved seven nonpoint source TMDLs submitted by the Department. Two of these TMDLs, Lake LaMoure and Goodman Creek, are described with respect to the minimum requirements for EPA approval.

While these two TMDLs involve two different waterbody types, they are similar in many respects. Both TMDLs were submitted and approved as part of a Section 319 Nonpoint Source Pollution project implementation plan (PIP). The format of Section 319 PIPs facilitates the TMDL development, review, and approval process.

Due to the voluntary nature of Section 319 projects and the inherent uncertainty associated with restoring beneficial uses through nonpoint source pollutant reductions, a margin of safety was built into each of these projects through the development and implementation of detailed monitoring plans. The monitoring plan ensures the project will meet the pollutant reduction target, as described in the TMDL, as well as ensuring that water quality standards (i.e., beneficial uses) are maintained. If it is determined that the project is not meeting its TMDL targets the project can be adjusted accordingly. This may involve targeting additional sources or addressing new sources. EPA Region 8 refers to this as a phased TMDL

Based on our current experience it appears that the critical elements of an approved TMDLs are: 1) the establishment of quantified target or endpoint necessary to meet water quality standards; and 2) the establishment of pollutant reduction targets which are quantified.

Current regional guidance also provides flexibility to the states when they develop TMDLs by allowing the states to rely on best professional judgement when they determine how pollutant reduction targets will be met. Regional guidance provides additional flexibility by allowing states to monitor project effectiveness to meet the margin of safety requirements.

This flexibility may be lost or sacrificed with the currently proposed regulations specifying the minimum requirements of an approved TMDL. It appears the critical elements of TMDL approvals in the future will focus on detailed load reduction or wasteload reduction estimates tied to specific implementation plans. Through this process, it appears the margin of safety requirement for TMDLs will have to be more explicit, relying on detailed monitoring and modeling, and less implicit, relying on best professional judgement and post project monitoring. While in the past, phased or iterative TMDLs have been very successful in advancing the goals of the Clean Water Act, this process may become obsolete in the future.

 

Kurt Segler, Henderson Utility Services

"Nevada's TMDL Implementation, Or... Fear and Loading in the Las Vegas Bay"

Power Point Presentation (Best viewed with Internet Explorer 5.0)

The Las Vegas valley is part of a hydrographic basin that drains to the Las Vegas Wash and to the Las Vegas Bay of Lake Mead. This man-made lake is the primary source of high quality water for the entire Las Vegas valley, including the cities of Boulder City, Henderson, Las Vegas, North Las Vegas and Clark County. It is also the largest storage reservoir on the Colorado River with a current volume of 25 million acre-feet.

Nevada's Total Maximum Daily Load (TMDL) started in the mid-1980's when the Nevada Division of Environmental Protection determined that water quality standards were being violated in the Las Vegas Wash and Bay. High amounts of chlorophyll A and unionized ammonia were endangering the fishable, swimmable beneficial use standards. NDEP conducted public workshops and began working with the, then, two discharges to the Las Vegas Wash, the City of Las Vegas and the Clark County Sanitation District. Prior to this time, there were no permit requirements for nitrification and the phosphorus limit was a concentration of 1 mg/l.

In 1987, NDEP published recommendations and revisions to the water quality standards that established TMDLs for phosphorus and ammonia: 434 lb./day from March 1st to October 31st for phosphorus and 970 lb./day from April 1st to September 30th of each year. Additionally, 90 lb./day of phosphorus was subtracted to account for non-point sources. The TMDL was split as Waste Load Allocations (WLA) to the two Dischargers based on flow.

Initially, the Dischargers had some concerns regarding the TMDLs. After working closely with NDEP to resolve these issues and set firm standards, the Dischargers supported the regulations. The Dischargers continuously strive to be better stewards or their environment and have continually increased treatment to meet beneficial use standards and TMDLs since their implementation in the Las Vegas Valley.

The TMDL program also became an avenue for partnership among the three Dischargers for developing shared waste load allocations for TMDLs. In 1993 the WLAs were revised to include the City of Henderson. This was accomplished cooperatively with the two current Dischargers voluntarily reducing their WLAs. The Dischargers coordinate their waste load allocations amongst themselves and with NDEP to allow flexibility in meeting the TMDLs for the Las Vegas Bay and compliance of individual permits. The Dischargers coordinate monitoring and implementation of the TMDL plan and are pleased with the overall outcome. They will continue their partnership with NDEP to ensure the beneficial use standards of Las Vegas Bay are met.

New NPDES permits are expected to be issued this calendar year that will allow the voluntary trading of WLA between and among the Dischargers, enforceable by NDEP.

Bio's

DON BRADY
EPA

Don Brady is the Chief of the Watershed Branch in the Assessment and Watershed Protection Division in EPA's Office of Wetlands, Oceans and Watersheds. The Watershed Branch is responsible for the TMDL program and technical support for watershed approaches in EPA. Don has worked in the Office of Water for 20 years and is a graduate of Fordham College and Georgetown University.

 

MICHAEL J. ELL
Surface Water Quality Management Program, ND Division of Water Quality

I currently administer the Surface Water Quality Management Program in the North Dakota Department of Health's Division of Water Quality. The Surface Water Quality Management Program has responsibility for lake and reservoir, river and stream, and wetlands monitoring and assessment, including the Section 305(b) report and Unified Watershed Assessments; Water Quality Standards; Section 401 Water Quality Certification on 404 permits; fish consumption advisories; the Section 319 Nonpoint Source Management Program; and TMDL development. The program has also recently gotten involved in the establishment of in-stream flows.

I was first employed by the Department of Health in 1985 where I worked in the Atmospheric Deposition Program (Acid Rain). I have been in the Division of Water Quality since 1987 and in my current position since May 1991.

I graduated from North Dakota State University (NDSU) with a BS in Zoology in 1982 and completed my MS degree at NDSU in 1988 where I studied the effects of weed harvesting on the biota of a small lake in north central North Dakota.

 

FRANK METZLER
Supervisor, TMDL & Water Quality Assessment Unit, AZ Department of Environmental Quality

Frank supervises the development of stream and lake TMDLs and the Water Quality Assessment Report (305b) for the Arizona Department of Environmental Quality. Prior to taking this position a year ago, he worked as a water resources planner with the Office of Colorado River Management, Arizona Department of Water Resources for two years and as a Research Specialist in irrigation management for four years with the University of Arizona Cooperative Extension. Frank also represents Arizona on the Colorado River Basin Salinity Control Program work group and technical modeling subcommittees. He has a Bachelor of Arts in Physical Geography from California State University, Fresno and a Master of Arts in Geography from New Mexico State University in Las Cruces. In his spare time, when not working on rivers, he likes to float down them - and finds it to be considerably more enjoyable.

 

JOHN ROANHORSE
Institute for Tribal Environmental Professionals

John recently started with the Institute for Tribal Environmental Professionals in Flagstaff, Arizona. Prior to that, he was the Water Quality Program Coordinator for the Inter Tribal Council of Arizona, Inc., with responsibility for preparing training programs, providing technical assistance and policy analysis for tribal environmental programs that are developing environmental regulatory authority. In 1998 John, was a member of the FACA on TMDLs. His other previous experience includes work with the Navajo Nation Environmental Protection Agency in Northern Arizona. He also served in the United States Navy at the Surface Warfare Officers School Command in Newport RI. He graduated in 1992 from the University of Colorado with B.S. in Environmental Planning.

 

KURT R. SEGLER
Henderson Utility Services Manager

Kurt Segler joined the City of Henderson as Utility Services Manager in 1989 and is responsible for all water, wastewater, and reclaimed water infrastructure management, with a personal emphasis on customer service. The Utility Services Division provides service for the collection and distribution of water, laboratory testing services, as well as customer and billing services.

During his tenure with the City of Henderson, he served as chairman of the technical advisory committee that led the effort for the Southern Nevada Water Authority and the Colorado River Commission to establish the largest nonfederally-funded water project, estimated at $2 billion, in the western United States. Major projects include the designing and construction of a 15 mgd Water Treatment Plant, a 10 mgd Water Reclamation Facility, and the Green Valley Reclaimed Water Distribution System. Since 1989, the number of customer accounts has increased from 12,000 to over 45,000.

In 1983 Kurt graduated with a Bachelor of Science, Engineering, from the University of Nevada, Las Vegas, and is a Registered Professional Engineer in Nevada and California. From 1983 to 1989, he served as a supervising engineer for Montgomery Watson, associate engineer for the Metropolitan Water District of Southern California, and engineering supervisor for the Clark County Sanitation District.

Kurt was appointed to the Nevada State Advisory Board on Water Planning, serves as Nevada Executive Director of the Colorado River Water Users Association, and is Nevada Director for the Western Coalition of Arid States (WESTCAS). He has also served as Chapter Director for the National Society of Professional Engineers and State Treasurer of the Water Environment Federation. Additionally, he is an active, contributing member of several water-related professional associations and committees. Kurt has co-authored a number of professional-related publications.

Top

Panel Two - "Implementation Plans for Non-Point Sources"

Background Info

Larry Koenig, Texas Natural Resource Conservation Commission

"Bosque River TMDL"

The Bosque River is located in north central Texas, northwest of the City of Waco, and is a tributary of the Brazos River. The Bosque River is impounded at Waco, near its confluence with the Brazos River, to form Waco Lake, which provides water for approximately 200,000 people. The North Bosque River is the longest arm of the Bosque system, draining approximately 75% of the Waco Lake watershed, while the Middle and South Bosque Rivers drain the remainder. The Texas 303(d) List identifies the North Bosque River as "impaired" by high levels of nutrients. Because of concern about increasing water treatment costs for the City of Waco, due to taste and odor problems attributed to algal blooms in Waco Lake, the TMDL is addressing the entire watershed of the lake, taking in the unlisted Middle and South Bosque River watersheds also. The TMDL watershed has a total area of approximately 1,665 square miles, or about 1,065,000 acres.

Topographically and historically, the Bosque River watershed is fairly representative of the heart of Texas. The area was crossed by herds driven up the Chisholm Trail towards Kansas, and early settlers experienced years of strife with the native Comanches. The upper watershed has medium-sized hills, carved into a limestone plateau, with relatively shallow, rocky soils and large areas of moderate to steep slope. Those areas have long been utilized for ranching, dairies, and other animal production agriculture. The lower watershed, along the Middle and South Bosque Rivers, has rolling blackland prairie with deep soils, and row crop production is the predominant form of agriculture.

During the 1980's, the dairy industry grew very rapidly in the Bosque River and adjacent watersheds, largely due to an influx of new operators from other states and countries. The total number of milk cows in the watershed grew tremendously, with the current total in the neighborhood of 41,000 head. In the same period, small dairies have been disappearing while large dairies have grown. Major milk producers in the watershed today typically are milking 1,000 to 4,500 head, but there are a few still milking 200 or fewer head. Virtually all of the dairies in operation today are located in the upper half of the North Bosque River watershed.

Recent studies to support the TMDL indicated that phosphorus is the limiting nutrient in the watershed, and that dairy waste application fields and municipal wastewater treatment plants are the major sources of phosphorus. Watershed modeling for the Bosque River TMDL assesses source categories of urban runoff, municipal WWTPs (permitted point sources), forest/range, improved pasture, row crops, non-row crops, and dairy waste application fields. Based on analyses of the contributions by those sources and their relative sizes (area covered) within the watershed, load allocations (reductions) are focused primarily on the dairy waste application fields and permitted WWTPs. Forest/range is considered to be the natural background land use (as near as possible today). These categories were determined based on the data available and model used. Other TMDLs define different source categories based on case-specific issues, data, and analytical tools.

TMDL development is coordinated with the Bosque River Advisory Committee (BRAC), which was initially formed several years earlier to address some of the social and political issues associated with the same dairy and water quality issues. The committee membership includes elected officials (state senators and representatives, county judges or commissioners, city mayors), watershed residents representing dairies (large and small), row crop farmers, non-agricultural industry, and citizens with more general interest in water quality, as well as representatives of several agencies involved in local TMDL or CAFO issues. Advisors and staff for the committee members also participate. The stakeholder committee is also supported by a Technical Work Group consisting of professionals from universities, institutes, and state and federal agencies. The technical work group provided peer review and consultation for the technical analyses performed for the TMDL. The main committee, the BRAC, is given the role of selecting available options, within the constraints of law and science, to guide TMDL development and implementation. The Technical Work Group and BRAC both reviewed studies that estimated phosphorus levels that would stifle algal growth in the river and lake, which became the bases for preliminary targets expressed as annual or seasonal average phosphorus concentrations at specific points. Those preliminary targets are very low - 10 g/L lake; 30 g/L river as time-weighted averages, versus similar averages of approximately 17 g/L in the lake and 40 to 1,100 g/L in the river. Predictive modeling, using full-permitted and future growth conditions typically required for TMDL analyses, suggest that feasible (but unpopular and stringent) BMPs could substantially reduce phosphorus concentrations most years, achieving the preliminary lake target with >50% probability and approaching the preliminary river target in the lower reaches. Now, we are in the process of determining what targets and management practices should be proposed as the bases for the TMDL.

The balance of incentives and mandates has not been determined yet. We cannot yet determine how "reasonable assurance" of funding or success would be demonstrated, nor what EPA would consider "reasonable assurance" other than permit limits.

Implementation plans must be technically and socially feasible in order to be successful. Technical feasibility means it must be possible to design and construct the needed BMPs. Social feasibility includes legal authority, political will, economic viability, and acceptance by the general population. Logically, there cannot be "reasonable assurance" that any plan can be implemented unless that plan is feasible.

Some type of phasing must be possible for complex TMDLs. Quite often, there may be no existing feasible way to fully (100%) accomplish desirable water quality goals, or, the appropriateness of those goals (standards, criteria) may be uncertain. In those cases, it is more productive to take partial steps, to the extent feasible, to make some progress now without precluding further steps in the future as more progress becomes feasible and is justified. Insisting on high levels of certainty with regard to low feasibility activities (physical or regulatory) before approving TMDL plans may encourage stalling tactics by affected parties and special interests and prevent achievements that are currently possible - which in the long run is counterproductive relative to the purposes of the TMDL program.

Since the proposed TMDL regulations would put EPA staff in the position of determining what is "reasonably" assured or "justified," the most critical element of an implementation plan reviewed under the proposed regulations may be who exactly at EPA is making such decisions case-by-case. Since EPA has not yet issued guidance related to evaluation of such qualitative requirements, states have no clues as to how that evaluation would be accomplished.

The most critical issue with regard to the proposed implementation plan elements is which are appropriate for any particular case. Some (i, ii, iv, vi) are feasible and appropriate for dealing with waters impaired by point sources only. None are feasible for blended or NPS-only waters.

Our intention is to first develop a "strategic implementation plan," which will contain those elements of implementation that are needed in order to develop the analyses linking sources and impacts (i.e. the models). Since those elements are also part of the technical analyses, it is reasonable for EPA to review them while considering the validity of the analyses and resulting conclusions/recommendations. It should be noted that under current regulations, EPA cannot disapprove our TMDL allocation based on proposed implementation plans. After TMDL approval, a "tactical implementation plan," which would address many of the funding, authority, and timing details demanded by the proposed regulations, will be developed. EPA will be able to review and comment on the tactical plan elements as the state Water Quality Management Plan (WQMP) is amended to include them. In the Bosque case, watershed-specific CAFO permitting rules may be needed, and might influence statewide rules, but the effort to develop new rules or rule revisions must wait until the TMDL requirements are known. The same is true for any voluntary or incentive-based programs that may be appropriate. Approval of the TMDL with review of the strategic implementation elements would allow the process of rule or program development to begin with known TMDL-compliant goals in mind, whereas delaying approval of the TMDL until such rules or programs are developed and finalized would delay and confuse the process. The TMDL, when approved, will be the "horse" that pulls the "cart" of rule or program development forward; requiring rule or program development first would put the "cart" before the "horse," which is famously inefficient and unproductive.

 

Nina Bell, Northwest Environmental Advocates

"Implementation Plans for Non-Point Sources"

Based on your experience, what are the most critical elements of successful implementation plans for non-point sources?

All elements are equally critical because each works with the others. If one element is missing or substandard, the entire process will be seriously jeopardized. For example, if there is no follow-up monitoring, the process will fail. If there is no timeframe in which control action must be taken or demonstrate results, the process will fail. The critical nature of each element is true both for the elements of Implementation Plans as well as the TMDLs themselves. That said, the most important aspect of the TMDL process with regard to implementing TMDLs for nonpoint sources is that the TMDL and its Implementation Plan are completely integrated. Otherwise, the technical analysis of the TMDL will not be carried over to the Implementation Plan, and the exercise will be relatively pointless. Therefore, Implementation Plans should be developed and presented to the public and the reviewing agencies concurrently with the TMDL.

One set of benefits derived from evaluating TMDLs and Implementation Plans concurrently is how they address issues that arise with nonpoint sources that encompass large land areas including, on the one hand, hazard areas (e.g., landslides, undercut banks, etc.) and, on the other, sensitive areas that require additional or different protections (e.g., wetlands, thermal refugia). While both the TMDL and the Implementation Plan could discuss both of these situations independently, the analysis of the TMDL and control actions of the Implementation Plan should be as connected as possible. This connection is far more likely to take place when the documents are prepared together for simultaneous submittal. If the TMDL is prepared for EPA first, EPA will be forced to take action on it without the benefit of knowing what the proposed solutions are. With nonpoint sources, since technical analysis is difficult and in its infancy, it is difficult to draw a bright line between analysis of problems and proposals for solutions. In fact, that is why the surrogate measures approach holds so much promise; it allows us to venture into a realm where standards and TMDLs are expressed in terms that are closer to the types of control actions that are needed (e.g., temperature loads = amount of shade = tree height, tree species, width of stream side vegetation, etc. = fencing, reforestation, changed logging practices, etc.). Only where TMDLs and the Implementation Plans are submitted together, can this proximity of analysis with control actions be achieved.

What do you expect the most critical elements of an approvable implementation plan to be under EPA's proposed regulations?

There are two areas where EPA's proposed regulations offer critical elements supporting the implementation of TMDLs to nonpoint sources. The first area is the definition of a TMDL itself, where the following four elements have been added that are of particular importance to implementation of TMDLs for nonpoint sources: 1) identification of the deviation from the pollutant load, 2) identification of sources, 3) requiring an allowance for future loading, and 4) an Implementation Plan. Identifying the deviation of today's conditions from those required to be in attainment with water quality standards should help direct the level of controls and management measures needed for nonpoint sources. Where that deviation is more, the controls will need to be greater. This allows the TMDL to tailor controls to the needs of the waterbody rather than apply a cookie cutter approach to nonpoint sources. Source identification is essential because nonpoint sources often are not as clearly identified as point sources under the NPDES program. Controls cannot be established for sources, if the sources themselves are not known. EPA, however, stops short of requiring that hazard areas be identified for large land holdings, an important aspect of source identification. The proposed rules imply that TMDLs should identify specific nonpoint sources to the greatest degree practicable, given available resources, which should be an explicit requirement. Finally, the Implementation Plan itself is the critical change proposed by EPA.

There are a few elements that are missing that are also extremely important to achieve the goal of using TMDLs to reduce nonpoint source contributions to water pollution, including the following three. First, TMDLs must clearly identify the water quality standards that apply to the area covered by the TMDL, including the criteria and beneficial use support requirements that apply, along with any formal or informal interpretations of how the state applies those gap-filling requirements. Second, the TMDL should include one or more maps, depending upon the scale of the TMDL in order for the public and reviewers to clearly identify the geographic scope of the TMDL, the relationship of rivers and tributaries, the location of sources in an absolute sense and in relation to one another, the location of any beneficial uses that might be specially identified in the TMDL, and the location of wetlands and other areas of concern. Third, the TMDL should identify the sources of water withdrawals from the waterbody, if instream flows are a concern for the dilution of pollutants or for support of beneficial uses.

The second area is the definition of the Implementation Plan itself. Each of the elements included by EPA is critical to the success of using TMDLs to reduce nonpoint source contributions to water pollution, including: implementation actions, the timeline for attainment, reasonable assurances, legal or regulatory controls that will be used, time required to attain water quality standards, a monitoring plan, milestones for attaining standards, and a plan for TMDL revision. If any one of these is omitted, implementation will be jeopardized. This is partly due to the level of uncertainty inherent in crafting nonpoint source controls that are deemed sufficient to attain standards and also the level of uncertainty about whether those controls will be implemented. The Implementation Plan needs to include clear measuring sticks for performance, monitoring approaches that dovetail with each performance measure, and a plan to revise controls and/or the TMDL if measures are not met.

 

Thomas W. Christensen, NRCS

"Implementation Plans For Non-Point Sources"

Power Point Presentation (Best viewed with Internet Explorer 5.0)

Introduction

The U.S. Department of Agriculture's (USDA) Natural Resources Conservation Service (NRCS) uses the voluntary participation approach to providing technical assistance and financial programs to the agricultural community. Thus, USDA/NRCS believes to achieve reasonable assurance that a TMDL implementation plan for non-point source pollution is to be successful, it is essential there be a willingness on the part of producers to participate. To ensure there is a willingness to participate, three issues have been identified that will support successful implementation of these plans: 1) Use of the locally-led process, 2) Make available technical assistance, and 3) Provide financial incentives.

Locally-Led Process

The need for local leadership in natural resources management was one of the most important factors leading to the establishment of conservation districts over 60 years ago. One of the most important steps in the locally-led process is to solicit input from individuals and organizations familiar with local resources needs and conditions.

The locally-led process is based on the principle that community members are best suited to identify and resolve resource issues that affect them. This is because local people have a far better knowledge of the way their communities work, what's socially and economically acceptable, and what alternatives will be most effective.

The needs assessment is another critical element in the locally led-process. With input from all interested parties, this assessment will provide a comprehensive evaluation of the condition of the area's resource base and be the platform for making decisions about local priorities.

The information gathered through the public outreach and needs assessment process can then be used to:

--Set measurable conservation goals and objectives;
--Identify conservation practices, systems and initiatives needed to achieve these goals and objectives; and
--Identify federal, state, local and non-government programs and services that are available to address specific conservation needs.

Voluntary Technical Assistance

USDA provides a wide variety of technical assistance (TA) to landowners/users, communities, conservation districts, units of local and State government, and other Federal Agencies, to solve conservation and resource protection issues. NRCS conservation assistance is provided through conservation districts and in partnership with state conservation agencies. Technical assistance can take the form of individual and group education, on-farm site assessments or inventories and evaluations, conservation farm planning, BMP or conservation practice design, field surveys and practice layout, construction inspection, and monitoring or evaluation.

This technical assistance can come directly from NRCS through its Conservation Technical Assistance Program or other USDA financial incentive programs, soil and water conservation districts, Extension Service, third-party vendors, State conservation agency partners, cooperating non-government organizations (e.g. Ducks Unlimited, Trout Unlimited, Pheasants Forever, etc), and other Federal Agencies assisting USDA on special projects.

NRCS has been providing technical assistance to landowners and units of government for over 65 years with limited funding, as compared to funds spent on point source discharge control under the Clean Water Act. The potential for providing technical assistance to landowners/users in over 21,000 impaired watersheds needing 40,000 TMDLs to be implemented would be a challenging task.

Incentives

A wide variety of incentives are available from USDA (NRCS in particular) to assist in implementing conservation practices and resource management systems to protect and restore soil, water, and related natural resources. The most widely used incentives are the various voluntary Natural Resource Conservation Programs and related activities.

The Environmental Quality Incentives Program (EQIP) provides technical, educational, and financial assistance to eligible farmers and ranchers to address priority soil, water, and related natural resource concerns in an environmentally beneficial and cost-effective manner in targeted or priority watersheds.

The Conservation Reserve Program (CRP) reduces soil erosion and improves water quality, and enhances forest and wetland resources by encouraging farmers through annual rental payments to convert highly erodible farmland or other environmentally sensitive areas to permanent vegetative cover such as grasses, wildlife planting, tress, buffer strips, or riparian buffers.

The Conservation Reserve Enhancement Program (CREP) is a State-federal conservation partnership targeted to address specific State and nationally significant water quality, erosion, and wildlife habitat issues related to agricultural use. The program uses financial incentives to encourage farmers and ranchers to voluntarily enroll in 10-15 year contracts to remove lands from agricultural production.

The Wetlands Reserve Program (WRP) is a voluntary program to restore wetlands by allowing landowners to establish either 30 year or permanent easements. Incentives are paid for both restoring wetlands and procuring easement payment.

The Small Watershed Program (PL-566 and PL-534) works through local government sponsors and helps participants solve natural resource and economic problems on a watershed basis. Both financial and technical assistance is available to address watershed protection, erosion, water quality, water supply, wetland protection and enhancement, wildlife habitat, and related recreational issues. Funding is available for developing program-neutral planning and implementing conservation practices.

The Resource Conservation and Development Program (RC&D) is designed to accelerate conservation, development and utilization of natural resources, improve the general level of economic activity in rural areas, and to enhance the environment and standard of living in authorized RC&D areas. It assists and improves the capability of State, Tribal, and local units of government to plan, develop, and carry out programs for resource conservation and development. Authorized RC&D areas are locally sponsored. In addition to providing grants, RC&D areas assist in obtaining and developing grants from other government and non-government sources.

The Wildlife Habitat Incentives Program (WHIP) provides financial incentives to develop habitat for fish and wildlife on private lands. Participants agree to implement wildlife habitat development plans and USDA agrees to provide cost-share assistance for initial implementation.

Conservation Technical Assistance (CTA) is a program to assist landowners/users, communities, units of State and local government, and other Federal agencies in planning, and implementing conservation systems. Technical assistance is provided to land users voluntarily applying conservation and to those who must comply with local, State or other Federal laws and regulations (e.g. wetland provisions of the Clean Water Act, highly erodible land [HEL] and wetland [Swampbuster] provisions of the 1985 Food Security Act). Technical assistance is provided to participants in USDA cost-share and conservation incentive programs.

In addition, other local, State, Federal incentive programs exist, for which NRCS and other USDA agencies provide technical assistance. Also, Congress is considering several proposals to provide Tax Incentives to individuals who apply conservation practices.

Measuring Program/TMDL Implementation Effectiveness

A critical element of the implementation process is to determine the effectiveness of actions and efforts that address TMDLs. It is difficult to assess the numeric quantitative effects of conservation practices and systems, that address TMDLs for non-point sources. Non-point sources are highly variable by their nature therefore; the application of conservation practices and their impacts are highly variable. Because of this variability it is essential that a Best Management Practice (BMP) approach to solving non-point source pollution problems be used.

Monitoring, a necessary component of any implementation program, can address the effective implementation of BMPs, as well as, numerically quantifying the offsite effects of BMPs. It may not be feasible or practical to attempt numeric monitoring on the thousands of farms and ranches that would be involved in implementing BMPs. Until science-based models are developed and accepted that address TMDL issues at the watershed level, monitoring should be focused on assuring the proper installation and functioning of BMPs.

Summary

USDA believes a locally-led, voluntary, incentive-based approach to watershed protection is the most effective way to address non-point source pollution.

Sufficient high quality technical assistance, coupled with adequate financial incentives, is critical to providing a reasonable assurance that the non-point source pollution problems are addressed. The National Watershed Assessment, under the Clean Water Action Plan, identifies over 21, 000 impaired watersheds, that the Environmental Protection Agency estimates there will be approximately 40,000 TMDL implementation plans to address. This correlates to approximately 4,000 TMDL implementation plans per year. To provide high quality technical assistance to this workload presents a tremendous challenge. Existing USDA, State, and local programs presently do not provide for sufficient technical assistance or financial incentives to adequately address this challenge.

Finally, we need to assure that expectations are realistic and deliverable. Addressing TMDL implementation plan effectiveness should be based on a BMP approach, using science-based, practical monitoring models, when developed and tested, to assess the watershed impacts.

 

Jamie Clover Adams, Kansas Secretary of Agriculture

"Implementation Plans For Non-Point Sources"

I. Opening

A. For Kansas agriculture its a matter of how to be part of a reasonable effort to improve water quality.

B. Must remember that the progress made with point sources was not accomplished over night. Common knowledge that Congress started with point sources because they were the easiest to tackle. Incremental improvement must be the standard.

II. Body

A. The key to success -- improving water quality while maintaining profitability for production agriculture -- has several components.

1. The agriculture agency of the state must actively participate in the process at the agency head level. If need be, Governors must require their environmental and agriculture departments to work together. The Governor's staff must be actively involved and ensure their agencies are working together.

a. This gets agriculture to the table in environmental agencies

b. Without our active participation and the Governor's prodding, agriculture will not be heard

c. We must look beyond the immediate problems in agriculture. If TMDLs are left unattended, they will be the stake in the heart of independent agriculture.

d. Kansas example. Former Secretary of Agriculture Allie Devine worked with our environmental agency -- KDHE -- to intervene in the lawsuit filed by the Kansas Natural Resources Council to protect the interests of the State. The Governor and his staff were involved to insure the agencies worked together.

2. Credible baseline data is imperative

a. Key to assessing the problem, measuring improvement and convincing producers that a problem exists and what the consequences might be.

b. Takes resources and long-term commitment -- $1 million annually; Also must commit resources to BMP research so that when producers buy-in, they have practical, proven management practices to use.

c. It is invaluable in making decisions but will not satisfy extremist in the activist community. They just raise the bar.

d. Kansas experience. KDHE has a 250 site chemical monitoring program in place across the state. It has been operational for over 20 years. We also have included biological monitoring prior to TMDL work in each basin.

3. Building partnerships between environmental agencies, agriculture agencies and stakeholders in agriculture.

a. After agriculture gets to the table. Must convince key agriculture groups in the state that its important and worth their effort. Start with staff and then give them time to work with elected leadership.

b. After the core agriculture group jells -- includes stakeholders, department of agriculture, land grant institution and conservation commission -- invite in the environment agency people to do some education. Must touch the grassroots leaders. They are the people who have to make the changes and you need their buy in to make progress.

c. Since agriculture was at the table, we had input into how KDHE defined progress. Monitoring data indicate the historic number of violations of the applicable water quality standards. The goal of the TMDLs will be to reduce the number of violations over time. In the end, our goal is that violations will occur in less than 10 percent of the samples taken in the future and when those violations occur, they are associated with high flow events.

d. Agriculture also had input into how responsibility for improvements will be assigned. In essence, if monitoring data shows that the impairment exists during low flow events, point sources will be asked to make adjustments. If impairments occur during high flow times, non-point sources will be asked to make adjustments to improve water quality.

e. The core group must then go to their local leaders and begin the education process. Kansas experience. Fourteen 14 agriculture organizations in the state have formed the Agricultural Working Group. They held two leader meetings in the first TMDL basin and are working with their membership to educate them on TMDLs. They are a core group that is essential to making water quality improvements.

f. Reasonable assurance. With stakeholder buy-in and work to identify and target cost-share dollars, we believe this qualifies as reasonable assurance. There is always the regulatory hammer.

4. Credible public participation is also important. Kansas used an existing water planning framework to enhance public participation. The public is involved in a year-long TMDL setting process. Through the Kansas Water Office Basin Advisory Committees, local leaders are educated about TMDLs and help establish the TMDL priorities. Meetings are held throughout the basin every 6-8 weeks. Public participation establishes buy-in. Buy-in leads to implementation and improved water quality. Common knowledge that without buy-in, water quality improvements are elusive.

B. Cost to Agriculture

1. Targeting limited resources. States must work with NRCS and EPA to harmonize priorities and cost-share funding.

a. Nemaha County estimates. The State Conservation Commission made a needs assessment in the portion of Nemaha county that is part of the first TMDL basin. They estimate $4-5 million is needed to make water quality improvements on 192,000 acres. The average value of agriculture production in Nemaha county is approximately $90,000. Therefore, TMDL improvements are 4-5 percent of the average producers gross income. In a good year that is more than the average margin. In bad years, like the past two, there is no margin. This is not about pushing paper and filing lawsuits against EPA and states. This is about people, their families, their businesses and their way of life.

b. Roadblocks to implementation

aa. Must focus on real problems; must motivate people to tackle real problems.

bb. Need cost effective, practical solutions. Be cognizant of the availability of capital of the entities that will be asked to make changes.

- 78% of Kansas farms had a market value of agriculture products sold of less than $100,000 -- 37% had less than $10,000
- 35% of Kansas farm operators worked more than 200 days per year off the farm
- Sedgwick County - with its large urban and suburban population had the most farms
- 86.4% of farms are own by individuals or families.
- Kansas farm population is only about 5% of our states total population.

2. Kansas experience illustrates that making progress on non-point source pollution is very labor intensive. In the Governor's Water Quality Initiative, KDA offered a $5 per acre payment to producers to apply atrazine during the time when KSU research showed that it would stay on the field. To implement this project, KDA paid for one-half the time of a local extension agent to go door-to-door to sell the program. All but one producer in the subbasin participated.

3. This is a very expensive proposition.

4. Americans benefit from cheap food and the economy benefits. Everyone should help pay.

5. EPA and NRCS should move away from their current stovepipe method of one-size fits all funding and work with states on the states priorities.

III. Closing

A. We can make progress on improving water quality without endangering the profitability of agriculture. Must be done in the fashion that the federal government preaches but seldom practices.

B. If EPA is serious about this effort and making real progress, they must put their money into this program. They must also not make unreasonable demands and instead move to practical solutions to water quality problems.

Bio's

NINA BELL
Executive Director, Northwest Environmental Advocates

Nina Bell is Executive Director of Northwest Environmental Advocates (NWEA), a membership organization working in Oregon and Washington to protect and restore water and air quality, wetlands, and wildlife habitat in the Pacific Northwest. Under Bell's direction, NWEA's litigation includes lawsuits against U.S. EPA on inadequate water pollution management in Oregon and Washington (TMDL programs), against the City of Portland for discharges of untreated sewage (combined sewer overflows), and the Washington Department of Ecology for emissions from the Centralia Coal Plant (visibility program). Bell served on EPA's Federal Advisory Committee on TMDLs and the Policy Advisory Committee to the Oregon Department of Environmental Quality's 1992-94 Triennial Review of Water Quality Standards.

Bell, who has a J.D. from Northwestern School of Law, has been with NWEA since 1977 except for two years when she served as the Assistant Director of the Washington, D.C.-based Nuclear Information and Resource Service.

 

TOM CHRISTENSEN
Director, Animal Husbandry and Clean Water Programs Division

Tom Christensen serves as the Director for NRCS' Animal Husbandry and Clean Water Programs Division, with offices in Beltsville, Maryland and Washington, D.C. Tom and his Division have responsibility for providing leadership and coordination for agency policy, program, and initiative development for animal husbandry (including animal feeding operations) and clean water, with supporting roles in global climate change, nutrient management, hypoxia, and other environmental issues. The Division also serves as the NHQ point of contact for approximately 25 NRCS national and regional liaisons.

Tom Christensen has worked 20 years for USDA; one year with the National Agricultural Statistics Service and 19 years with the NRCS. He has previously held the positions of Soil Conservationist, District Conservationist, Area Conservationist, Assistant State Conservationist, State Conservation for Illinois, and agency Chief Information Officer. Tom's career with USDA has taken him to eight locations in North Carolina, New York, Idaho, and Illinois, prior to the last three years at National Headquarters.

Tom graduated from Rutgers University with a B.S. in Forest Management. He received an M.S. in Renewable Natural Resources Conservation from the University of Connecticut. He also, attended Duke University at two different times, the most recent in 1990 for one year through NRCS Public Administration Program.

Tom and Marie, also a Rutgers University graduate, have been married for 22 years. They have two children: Trevor at Virginia Tech and Shannon at the University of Virginia (UVA). Although Virginia Tech and UVA are arch rivals, Tom and Marie cheer equally for both!

 

JAMIE CLOVER ADAMS
Kansas Secretary of Agriculture

Governor Bill Graves announced the appointment of Jamie Clover Adams as Secretary of the Kansas Department of Agriculture Aug. 18, 1999. Adams, 35, has served for three years as the Governor's Liaison for agriculture, environment, natural resources and water issues.

Prior to joining the governor's staff, Adams was vice-president for government affairs for the Kansas Grain and Feed and Kansas Fertilizer and Chemical associations. She also had worked in Washington, D.C., as director of environmental and labor affairs for the American Feed Industry Association. She also had been a research analyst for the United States Chamber of Commerce in Washington, D.C.

Adams was born and raised on a small farm in Michigan where she was active in 4-H and livestock activities. She holds a bachelor's degree in political science and economics from the University of Michigan and a master's of public policy from Georgetown University.

She and her husband, Lyle, are the parents of a three-year-old daughter, Alexandra.

 

LARRY KOENIG
Texas Natural Resource Conservation Commission (TNRCC)

Larry Koenig has worked for Texas water quality agencies since 1987, through several agency reorganizations that created the Texas Natural Resource Conservation Commission (TNRCC) of today. During those years, he has been involved in waste load evaluation modeling, wastewater permitting, watershed management planning, and TMDLs. His educational background includes a Bachelors degree in environmental science from a college of forestry, and a Masters degree in civil/environmental engineering from the University of Texas. Previous work experience included wetland delineation and permit enforcement for the Corps of Engineers (1979-1984), and field surveys of hydrology, plant communities, and bird populations for an environmental engineering consultant (1984-1986).

Top

Panel Three - "Consultation Process for Endangered Species"

Background Info

Gaylon Lee, California State Water Resources Control Board

"Coordination Between Requirements of the Federal Endangered Species Act, Federal Clean Water Act and Total Maximum Daily Load Requirements"

Introduction

On the West Coast, there has been a variable degree of success in resolving differences between those state and Federal agencies responsible for implementing Federal Clean Water Act (CWA) requirements for establishment of Total Maximum Daily Loads (TMDLs) and the Federal agencies responsible for implementation of the Federal Endangered Species Act (ESA). This presentation explores some of the important sources of contention that interfere with integrated implementation of the two acts and some emerging means of resolution.

Sources of Contention

The issues that are most real to landowners comprise a major part of the context within which state agencies must make their regulatory decisions. I begin with such issues then move up the scale to issues that involve primarily interagency relationships. Along the way, I mention some programs and activities that can help to soften or resolve some of the issues.

Property Rights Versus Public Trust

A classic source of contention is perceived property rights versus public trust doctrine. Most landowners resent being told what to do. They often argue that more stringent requirements comprise an illegal taking. A minority of landowners believe that they should be able to do whatever they choose on their land, regardless of the consequences for their neighbors or public trust resources. Many more believe that they should be able to do whatever they choose unless someone can prove that their actions will have significant adverse environmental or social effects. Of these, a significant number genuinely want to be good stewards of the land.

In California, the University of California Cooperative Extension, the Natural Resources Conservation Service (NRCS), local Resource Conservation Districts (RCDs), the California Association of RCDs, and the California Cattleman's Association have provided education and outreach to rural landowners, assisting them to recognize the problems to which their management may be contributing, increasing their desire to be a good steward of public trust resources, and increasing their understanding of what that will entail. Landowners are assisted in developing a land management plan which can often increase their production while lessening the impact on public trust resources.

Protection Versus Restoration

Almost all landowners resist the idea that they must contribute to recovery of a listed water body or species, especially where they did not initially contribute to causing the problem. Under the ESA, a landowner must not cause take of a listed species, but is not held responsible for contributing to its recovery. Nevertheless, there is no "clear bright line" between what is needed for protection of the populations and habitat of listed species and what is needed for their recovery. This gray area can cause states and landowners to perceive that the ESA agencies are demanding more stringent requirements than are needed just for protection. Under the CWA and California law, a landowner can be held responsible for