The Proof Is in the Policy: The BushAdministration, Nonpoint Source Pollution,and EPA's Final TMDL Rule

I. Introduction The election of George W. Bush as our nation's forty-third President comes at a critical time in America's long fight to preserve and maintain its water resources. Since the passage of the Clean Water Act (CWA or the Act) in 1972,(3) the Environmental Protection Agency (EPA) has focused on helping states regulate water pollution through the use of technology-based standards and permitting programs. Although this focus on technology-based regulation has been effective in addressing point sources of water pollution, nonpoint source (NPS) pollution has continued to increase.4 NPS pollution occurs when water runs over land or through the ground, picks up pollutants, and deposits them in surface waters or introduces them into groundwater.5 Today, NPS pollution is the greatest threat to America's waters and is the main reason why over 40% of assessed waters still do not meet the water quality standards (WQS) that states, territories, and authorized tribes have set for them.6 In forty-two states, nonpoint sources are the predominant source of pollution in lakes, and in thirty-three states, NPS pollution is the most significant impairment of streams and rivers.7 Additionally, nonpoint sources account for 43% of the pollution in the nation's estuaries.8 These overwhelming effects on America's water resources have thrust NPS pollution into the environmental policy spotlight. The focus of the NPS pollution debate is the Total Maximum Daily Load (TMDL) program found in 303(d) of the CWA.9 While the team "total maximum daily load" is not expressly defined in the CWA, the EPA's current regulations define a TMDL as the sum of the "wasteload allocations" for point sources (PS), the "load allocations" for NPS, and a margin of safety.10 Thus, a TMDL is an estimate of the maximum amount of a pollutant that a waterbody can assimilate and still meet an applicable WQS.11 It is helpful to think of TMDLs as a recipe for a water segment in which each ingredient represents the maximum amount of a certain pollutant that can be present while allowing the segment to remain healthy. Therefore, for each impaired water segment, states must ascertain exactly which pollutants are present in the water and then work backward to determine the amount of pollutants each source can add to the mix. Although Congress established the TMDL program in 1972, (sec) 303(d) has lain dormant as the EPA has concentrated on fulfilling its obligations to create technology limits via discharge permits under (sec) 402 of the Act.12 In the past decade, citizen groups have filed numerous lawsuits against the EPA demanding the listing of rivers and the development of TMDLs under (sec) 303(d).13 After more than twenty years of hibernation, these lawsuits have awakened the sleeping giant of TMDLs and have changed the focus of federal water pollution regulation from technology-based standards to water quality-based standards.14 Through consent decrees and judgments, the majority of these lawsuits have forced the EPA to assume its statutory obligation under (sec) 303(d) to list impaired waters and to create TMDLs for these waters when states fail to undertake this responsibility.15 Realizing the magnitude of, and the need for direction in, the TMDL process, the EPA began a comprehensive evaluation of the EPA's and the states' implementation of their 303(d) responsibilities in 1996. …