Wednesday, November 22, 2006

EPA Attempts To Clarify "Daily" TMDL Meaning

Nov 15: U.S. EPA Assistant Administrator Benjamin Grumbles has issued a memorandum entitled, Establishing TMDL"Daily" Loads in light of the Decision by the U.S. Court of Appeals for the D.C. Circuit in Friends of the Earth, Inc. v. EPA, et al., No. 05-5015, (April 25, 2006) and Implications for NPDES Permits [See WIMS 5/2/06].

In the case the Appeals Court ruled that the case poses the question whether the word “daily,” as used in the Clean Water Act, is sufficiently pliant to mean a measure of time other than daily. Specifically, the Environmental Protection Agency (EPA) takes the position that Congress, in requiring the establishment of “total maximum daily loads” to cap effluent discharges of “suitable” pollutants into highly polluted waters, left room for EPA to establish seasonal or annual loads for those same pollutants.

The Appeals Court ruled, "The district court found EPA’s contextual and policy arguments sufficiently persuasive to disregard the plain meaning of 'daily,' but we do not. Daily means daily, nothing else. If EPA believes using daily loads for certain types of pollutants has undesirable consequences, then it must either amend its regulation designating all pollutants as “suitable” for daily loads or take its concerns to Congress. We therefore reverse and remand with instructions to vacate the non-daily 'daily' loads."

EPA's memo explains that its purpose is to clarify the Agency's expectations concerning the appropriate time increment used to express "total maximum daily loads" (TMDLs) in light of the Appeals Court decision. EPA says it "recommends that all future TMDLs and associated load allocations and wasteload allocations be expressed in terms of daily time increments. However, EPA does not believe that the Friends of the Earth decision requires any changes to EPA's existing policy and guidance describing how a TMDL's wasteload allocations are implemented in NPDES permits."

EPA says that it continues to believe that the use of the word "daily" in the term "total maximum daily load" is not an unambiguous direction from Congress that TMDLs must be stated in the form of a uniformly applicable 24-hour load. However at this time, there is significant legal uncertainty about whether courts across the country will follow the reasoning of the D.C. Circuit decision in Friends of the Earth or that of the U.S. Court of Appeals for the Second Circuit in their decision in NRDC v. Muszynskil. In light of that uncertainty, EPA recommends that all TMDLs and associated load allocations and wasteload allocations be expressed in terms of daily time increments. In addition, TMDL submissions may include alternative, non-daily pollutant load expressions in order to facilitate implementation of the applicable water quality standards. TMDLs must continue to be established at a level necessary to attain and maintain the applicable water quality standards, account for seasonal variations and include a margin of safety.

EPA notes that In NRDC v. Muszynski, 268 F.3d 91 (2nd Cir. 2001) [October 11, 2001], NRDC challenged EPA's approval of nutrient TMDLs with annual loads established by New York for reservoirs. The Second Circuit held that "the term 'total maximum daily load' is susceptible to a broader range of meanings" than loads calculated on a daily basis. The D.C. Circuit decision in Friends of the Earth is controlling legal precedent for cases brought in the District of Columbia Circuit while the Second Circuit decision in Musrynski is controlling legal precedent in cases brought in the Second Circuit, which includes the States of New York, Connecticut, and Vermont. EPA encourages the three States within the Second Circuit, to submit TMDLs with "daily" loads in a manner consistent with this memorandum. EPA also recognizes that, while the Second Circuit did not vacate the TMDLs in question merely because they did not contain "daily" loads, it required a reasoned explanation for the choice of any particular "non-daily" load.

EPA said it will issue additional technical guidance providing specific information regarding the establishment of daily loads for specific pollutants that will take into consideration the averaging period of the pollutant, the type of water body, and the type of sources the TMDL needs to address.

In terms of recommendations concerning existing TMDLs and TMDLs in process, EPA indicates that more than 20,000 TMDLs have been established, most of them in the last five or six years. and approximately 65,000 causes of impairment still need to be addressed by TMDLs. EPA said it believes that continued development of TMDLs pursuant to State TMDL development schedules is the highest priority at this time. If already existing TMDLs need to be revised in the future, revision of the TMDLs and allocations should be consistent with the recommendations in the memorandum. For TMDLs under development that have not yet been adopted by States or established by EPA, EPA recommends that such TMDLs and allocations be revised, if feasible, to be consistent with the memorandum.

And with regard to NPDES permits, EPA says it recommends that NPDES permitting authorities continue to establish effluent limits that implement wasteload allocations established in approved TMDLs in accordance with existing regulation, policy and guidance as described above.

Access the 6-page EPA Memo (
click here). Access the D.C. Circuit opinion (click here). Access the Second Circuit opinion (click here). Access EPA's TMDL website for further information (click here). [*Water]