Transcript TMDL - Williams Mullen

The Chesapeake Bay
TMDL: Coming to an
Impaired Water Near
You?
Sean M. Sullivan
Williams Mullen
301 Fayetteville Street, Suite 1700
Raleigh, NC 27601
(919) 981-4312
[email protected]
Major Topics
• TMDL Basics
• Key Legal Issues in a TMDL
• Is the Chesapeake Bay TMDL the New
Normal?
• Implications for Impaired Waters in NC
TMDL Basics
• Section 303(d) of the Clean Water Act
contains the critical water quality-related
provisions.
• This section creates:
– Requirement to identify impaired waters.
– Requirement to develop Total Maximum
Daily Loads (“TMDL”) when technology
based effluent limits are insufficient.
TMDL Basics
• States must develop impaired waters lists
and TMDLs for impaired waters.
• States submit the lists and then the TMDLs
to EPA for approval.
• EPA is supposed to develop lists and
TMDLs when states fail to act.
• Significant litigation in the 1990s about
failures of states to develop lists and
TMDLs.
– Citizens groups filed suit against EPA when
EPA failed to act for the states.
TMDL Basics
• TMDL – maximum amount of a pollutant
that an impaired water can accept every
day without causing a violation of water
quality standards.
– D.C. Circuit Decision in Friends of the
Earth held that TMDLs must be set on a
daily basis.
TMDL Basics
• Historical Context of TMDL Program
– Before 1972, the CWA focused primarily
on achieving compliance with water
quality standards.
• Program was an utter failure.
– Beginning in 1972, Congress directed
EPA to focus on technology based
effluent limits for point sources.
• Water quality program was relegated to
“safety valve” status.
TMDL Basics
• Historical Context of TMDL Program
– A remnant of the pre-1972 CWA is the statecentric nature of the water quality program.
– Historically, EPA’s ability to force states to act
on TMDLs or impaired waters has been
limited.
– Cases from several circuits have held that
EPA’s authority is limited to:
• Objecting to NPDES permits.
• Withholding grant money from states.
TMDL Basics
• The final TMDL has three components:
– Waste Load Allocation (“WLA”) – the portion of
the daily load allocated to point sources.
– Load Allocation (“LA”) – the portion of the daily
load allocated to non-point sources.
– Margin of safety.
• The big question is whether the modeling
is sufficiently accurate to set a meaningful
TMDL that will achieve compliance with
the water quality standard.
TMDL Basics
• Once you determine the TMDL for a
particular pollutant, it represents a cap
on total daily discharges into that
waterbody.
• State must then reduce discharges of
that pollutant sufficient to comply with
the cap.
– Can come in the form of reductions from
point sources or non-point sources.
Major Topics
• TMDL Basics
• Key Legal Issues in a TMDL
• Is the Chesapeake Bay TMDL the New
Normal?
• Implications for Impaired Waters in NC
Key Legal Issues in a TMDL
• Point Sources versus Non-point
Sources
– Point sources are sources that
discharge through a pipe, ditch or other
discrete conveyance.
– Contrast to uncontrolled sheet flow.
– EPA’s authority under the CWA extends
only to point sources.
Key Legal Issues in a TMDL
• Point Sources versus Non-Point Sources
– States may authorize entities like DENR to
regulate non-point source pollution, but many
states do not.
– And, one of the primary culprits for nutrient
pollutant loads is non-point sources.
– Key Legal Question – how do you implement a
TMDL if you can’t regulate the primary sources
of pollutant loads?
Key Legal Issues in a TMDL
• Agriculture
– CWA prohibits EPA from regulating most
water discharges from agricultural
operations.
• Excluded from definition of “discharge.”
• Many states follow suit.
– For waters impaired by nutrient
pollution, this is another significant
source of pollutants that is beyond the
existing regulatory structure.
Legal Issues in a TMDL
• Reasonable Assurances
– Despite lack of regulatory authority, states
have attempted to use reductions in non-point
source discharges to show compliance with the
TMDL.
• Sometimes through voluntary programs or
public education.
– When EPA reviews a proposed TMDL that
relies on non-point source reductions, EPA
demands “reasonable assurances” that the
reductions will occur.
Legal Issues in a TMDL
• Reasonable Assurances (cont’d)
– Typically, EPA will look at the state’s
existing regulatory authorities and will
make a judgment about whether:
• The non-point source reductions have a
reasonable chance of being
implemented.
• The non-point source reductions are
sufficient to achieve compliance with the
TMDL.
Legal Issues in a TMDL
• Implementation
– Again, if a state fails to implement an
approved TMDL, EPA’s options are
limited.
– EPA cannot enforce programs that
states fail to implement.
– EPA’s best weapon is to object to every
NPDES permit for every direct
discharge into the waterbody.
Major Topics
• TMDL Basics
• Key Legal Issues in a TMDL
• Is the Chesapeake Bay TMDL the New
Normal?
• Implications for Impaired Waters in NC
The Bay TMDL
• Bay TMDL Basics
– Each state must develop, and EPA must
approve, a Watershed Implementation Plan
(“WIP”).
– The WIP describes the regulatory programs
each state will use to achieve compliance with
the TMDL.
• EPA threatened to impose federal
“backstop” requirements if the WIP is
ineffective.
– Backstop is even more stringent than the WIP.
The Bay TMDL
• Major Consequences of the Virginia WIP.
– Wastewater treatment plants must make
upgrades to meet stricter discharge limits.
• Higher utility fees and property taxes.
• Plants in the James River watershed face
even stricter requirements in 2016 via a
James River TMDL.
• City of Lynchburg said compliance with
EPA’s preferred option would cost $50MM.
The Bay TMDL
• Major Consequences of the Virginia WIP
(cont’d).
– Stricter requirements for onsite sewer / septic
systems.
• Must achieve 50% reduction in Nitrogen
discharges via alternative systems.
• Promote use of community-wide onsite
systems rather than individual systems.
• Tax credits and loans to encourage
upgrades and repairs to existing systems.
The Bay TMDL
• Major Consequences of the Virginia
WIP (cont’d).
– New / re-development cannot cause
increases in pollutant discharges.
– States will require additional stormwater
controls and increases in utility fees to
fund improvements to municipal
systems.
– Restrictions on commercial and private
application of non-agricultural fertilizers.
The Bay TMDL
• Virginia will also expand its nutrient
credit trading program.
– New discharges must have offsets to
comply with the cap.
– Allow other sources of pollutant
discharges to generate credits through
reducing their discharges.
• Voluntary reductions for agriculture in
Virginia.
The New Normal?
• EPA has said repeatedly that the Bay
TMDL is a model for future TMDLs
throughout the country.
• Significant question as to whether EPA
has authority to threaten states with a
“backstop allocation” or to implement
such a program.
– Traditionally, EPA’s authority has been
viewed as being limited to objecting to
individual NPDES permits.
The New Normal?
• For the Bay TMDL:
– EPA has been a much stronger driver in terms
of implementation strategies.
– EPA has threatened to implement its backstop
rule if state WIPs are unsuccessful or are not
implemented.
– EPA is proceeding in the face of widespread
objections to the sufficiency of the agency’s
modeling.
• Justified by imposing extra margin of safety.
Major Topics
• TMDL Basics
• Key Legal Issues in a TMDL
• Is the Chesapeake Bay TMDL the New
Normal?
• Implications for Impaired Waters in NC
Implications for Impaired
Waters in NC
• Daily means daily for a TMDL.
• If pollutant load reductions will come
from non-point sources:
– Expect higher scrutiny of methods to
achieve these reductions.
– Demand for details regarding TMDL
implementation prior to approval.
– Possibility of a “backstop” rule.
Contact Information
Sean M. Sullivan
Williams Mullen
301 Fayetteville Street, Suite 1700
Raleigh, NC 27601
(919) 981-4312
[email protected]