Clean Water Act and Pollutant Total Maximum Daily Loads (TMDLs)

Claudia Copeland
Specialist in Resources and Environmental Policy

Section 303(d) of the Clean Water Act (CWA) requires states to identify waters that are impaired by pollution, even after application of pollution controls. For those waters, states must establish a total maximum daily load (TMDL) of pollutants to ensure that water quality standards can be attained. A TMDL is both a quantitative assessment of pollution sources and pollutant reductions needed to restore and protect U.S. waters and a planning process for attaining water quality standards. Implementation of Section 303(d) was dormant until states and the Environmental Protection Agency (EPA) were prodded by lawsuits. The program has been controversial, in part because of requirements and costs faced by states, as well as industries, cities, farmers, and others who may be required to use new pollution controls to meet TMDL requirements.

Despite controversies, the TMDL program has become a core element of overall efforts to protect and restore water quality. States and EPA develop several thousand TMDLs annually, but many more need to be completed. The most recent information indicates that over 41,000 waterbodies do not meet water quality standards and need a TMDL to initiate corrective measures. The 303(d) program has evolved, and especially during the last decade, EPA and states have addressed more complex issues, including TMDLs involving both point (direct discharges) and nonpoint sources (diffuse discharges) such as stormwater; TMDLs for less-traditional causes of impairment such as climate change; TMDLs for pollutants such as mercury that involve coordination among water, air, and other environmental programs; and multi-jurisdictional TMDLs.

The largest multi-jurisdictional TMDL, for the Chesapeake Bay watershed, has drawn considerable attention. It was developed by EPA and was necessitated because previous largely voluntary restoration efforts by the Bay jurisdictions were insufficient to attain water quality standards. It addresses all segments of the Bay and its tidal tributaries that are impaired from discharges of nitrogen, phosphorus, and sediment, with a goal of having TMDL implementation measures in place by 2025. The Chesapeake Bay TMDL has a number of novel elements, including Watershed Implementation Plans in which the jurisdictions identify specific measures to achieve needed pollutant reductions, and biennial reports to the public on progress in implementation. The Bay TMDL has been controversial with a number of groups concerned about the costs of implementation and the likely mandatory nature of many of EPA’s and states’ actions. EPA’s authority to develop the TMDL has been challenged in a lawsuit.

When a TMDL is developed, implementation is a major uncertainty. First, Section 303(d) does not require implementation, and states’ strategies for implementation vary widely. Only a few have laws requiring implementation plans, while many others rely on less structured policies. Second, a number of barriers to implementation can be identified. The most prominent is insufficient funding, but technical impediments such as insufficient scientific data also are a challenge. At the same time, factors that may aid effective implementation can be identified, including active involvement of stakeholders and governments, and adequate resources.

The TMDL program is in a period of transition and increasingly is addressing new challenges— more complex TMDLs, larger scale impairments, and nonpoint sources. Other than recent oversight hearings on the Chesapeake Bay TMDL, Congress has not shown active interest in the TMDL program for more than a decade. Some stakeholders, especially states, believe that several issues present Congress with an opportunity to examine the TMDL provisions of the CWA.


Date of Report: November 20, 2012
Number of Pages: 22
Order Number: R42752
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Air Quality: EPA’s 2012 Proposed Changes to the Particulate Matter (PM) Standard

Robert Esworthy
Specialist in Environmental Policy

On June 29, 2012, the Environmental Protection Agency (EPA) published a proposal to revise the National Ambient Air Quality Standard (NAAQS) under the Clean Air Act (CAA) for particulate matter (PM), in response to a June 6, 2012, order issued by the U.S. Court of Appeals for the District of Columbia Circuit. Environmental and public health advocacy groups and 11 states had petitioned the agency, and subsequently filed suit in the D.C. Circuit alleging that EPA failed to perform its mandated duty to complete the review of the PM NAAQS within the statutory deadline. EPA has agreed to issue final revised PM NAAQS by December 14, 2012. EPA’s review of the PM NAAQS has generated considerable debate and oversight in Congress.

The June 2012 proposal would strengthen the existing (2006) annual health-based (“primary”) standard for “fine” particulate matter 2.5 micrometers or less in diameter (or PM2.5), lowering the allowable average concentration of PM2.5 in the air from the current level of 15 micrograms per cubic meter (μg/m3), to a range of 12 to 13 μg/m.3 The annual PM2.5 NAAQS is set so as to address human health effects from chronic exposures to the pollutants. The existing 24-hour primary standard for PM2.5 that was reduced from 65 μg/m3 to 35 μg/m3 in 2006 would be retained, as would the existing standards for larger, but still inhalable “coarse” particles less than 10 micrometers in diameter or PM10. “Secondary” standards that provide protection against “welfare” (non-health) effects, such as ecological effects and material deterioration, would be identical to the primary standards the same as in 2006, but the June 2012 proposal included two options for a 24-hour PM2.5 standard to improve visibility.

In developing the June 2012 proposal, EPA reviewed scientific studies available since the agency’s previous review in 2006. EPA determined, and the independent scientific advisory committee mandated under the CAA (Clean Air Scientific Advisory Committee, or CASAC) concurred, that evidence continues to show associations between particulates in ambient air and numerous significant health problems, including aggravated asthma, chronic bronchitis, non-fatal heart attacks, and premature death. Populations shown to be most at risk include children, older adults, and those with heart and lung disease, and those of lower socioeconomic status.

EPA expects that the potential benefits of the proposed revisions would range from an estimated low of $88.0 million to a high of $5.9 billion dependent on the concentration level and other factors, and estimated costs would range from $2.9 million to $69.0 million. Some stakeholders and some Members express concerns that the cost impacts will be more significant than EPA estimated in those areas unable to comply with the new standards. EPA’s establishment of or revisions to the PM NAAQS do not directly regulate emissions from specific sources, or compel installation of any pollution control equipment or measures, but indirectly could affect operations at industrial facilities and other sources throughout the United States.

Final revised PM NAAQS will start a process that includes a determination of areas in each state that exceed the standard and must, therefore, reduce pollutant concentrations to achieve it. Following the determination of “nonattainment” areas (primarily counties) based on multiple years of monitoring data and other factors submitted by the states, state and local governments must develop (or revise) State Implementation Plans (SIPs) outlining measures to attain the standard. These often involve promulgation of new regulations by states, leading to the issuance of revised air permits. The process typically takes several years. Based on statutory scheduling requirements, designation of areas as nonattainment for any revised PM NAAQS would not be determined until the end of 2014, and states would have until at least 2020 to achieve compliance.


Date of Report: November 19, 2012
Number of Pages: 43
Order Number: R42671
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Controlling Air Emissions from Outer Continental Shelf Sources: A Comparison of Two Programs—EPA and DOI

Jonathan L. Ramseur
Specialist in Environmental Policy

Air emissions from outer continental shelf (OCS) operations are subject to different regulatory programs, depending on the location of the operation. The Department of the Interior (DOI) has jurisdiction over OCS sources in federal waters in the western Gulf of Mexico and most of the central Gulf. In addition, the Consolidated Appropriations Act, 2012 (P.L. 112-74), transferred air emission authority in the OCS off Alaska’s north coast from the Environmental Protection Agency (EPA) to DOI. EPA has jurisdiction over sources in all other federal waters.

The primary difference between the EPA and DOI programs is rooted in the different statutory authorities: the 1990 Clean Air Act (CAA) and the 1978 Outer Continental Shelf Lands Act (OCSLA). The primary objectives of these statutes are different—air quality versus offshore energy development. The two regulatory programs reflect these underlying differences. For much of the past 30 years, these differences received little attention, primarily because most of the federal oil and gas resources in EPA’s jurisdiction have been subject to moratoria. In 2008, moratoria provisions expired, potentially opening many of the areas in EPA’s jurisdiction to oil and gas leasing activity. If more OCS areas in EPA’s jurisdiction are open for oil and gas leasing, policymakers interest in these differences will likely increase.

For OCS sources in EPA’s jurisdiction, requirements depend on whether the source is located within 25 miles of a state’s seaward boundary (“inner OCS sources”) or beyond (“outer OCS sources”). Inner OCS sources are subject to the same requirements as comparable onshore emission sources, which vary by state and depend on the area’s air quality status; outer sources are subject to various CAA provisions, including the Prevention of Significant Deterioration (PSD) program. In contrast, OCS sources in DOI’s jurisdiction are subject to air emission requirements only if emissions would “significantly affect” onshore air quality.

A key difference between the EPA and DOI programs is the federal emission threshold that would subject a source to substantive requirements. For sources in EPA’s jurisdiction, this is the PSD threshold of 250 tons per year (tpy) of regulated emissions. Sources that exceed this level would likely be subject to Best Achievable Control Technology (BACT) and other provisions. States’ analogous thresholds that apply to inner OCS sources may be more stringent. By comparison, a DOI OCS source applies an exemption formula, based on distance from shore (e.g., a source 30 miles from shore would have an emission threshold of 990 tpy). If a source remains subject after this step, it must conduct air modeling to assess whether its emissions would have a significant effect on onshore air quality. In effect, this two-step process constitutes a much less stringent threshold than EPA’s 250 tpy threshold.

Another substantial difference is the time frame allotted to the agencies for reviewing a potential source’s permit (EPA) or activity-specific plan (DOI). In addition, the EPA permit process allows greater opportunity for input from the public. In particular, EPA’s Environmental Appeals Board offers parties a powerful tool to compel agency review.

Therefore, two identical operations, located in separate jurisdictions, could face considerably different requirements and procedural time frames. Some stakeholders would likely argue that the additional opportunities for public involvement in EPA’s permit process help create a balance between resource development and environmental concerns. Others would likely contend these steps present unnecessary burdens and timing uncertainty in the process.


Date of Report: November 26, 2012
Number of Pages: 33
Order Number: R42123
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Water Quality Management: A Compendium

Dominating this 500+ page Compendium are extensive sections covering implementation of the Clean Water Act and the Safe Drinking Water Act. A third equally extensive section focuses on water infrastructure.

The two federal laws, the Clean Water Act and the Safe Drinking Water Act, provide the framework for the nation’s efforts to provide safe and healthy water to its citizens. Although much progress has been made towards the goals established in these laws, long-standing problems persist, and new problems have emerged. Specific areas of interest include whether additional steps are necessary to achieve the overall goals of these acts; how to meet the costs and technological challenges of providing safe drinking water and cleaning the flow of used water from a community; and what is the appropriate federal role in guiding and paying for safe and healthy water and other activities.

Over the last 35 years, federal, state and local governments, and private utilities have invested more than $100 billion in water infrastructure in order to attain the goals of the Clean Water Act and the Safe Drinking Water Act, yet remaining funding needs are projected to be as much as $660 billion over the next two decades. According to the Environmental Protection Agency (EPA), if there is no increase in investment, there will be about an $11 billion annual gap between current capital expenditures for water infrastructure (which total $23 billion annually) and projected spending needs. Analysts predict that, barring major breakthroughs in technology, investment costs will rise for decades to come as more of the existing water infrastructure deteriorates. Many systems simultaneously face the need to increase security measures and to construct treatment plants to remove newly regulated drinking water contaminants. At issue are how to meet funding needs and what are the appropriate public and private sector roles in doing so. State, municipal, and rural stakeholders have called for greater federal investment in water infrastructure, while others (including privately owned water utilities) have argued for greater self-reliance. 


Date of Report: November 20, 2012
Number of Pages: 523
Order Number: C-12020
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Persistent Organic Pollutants (POPs): Fact Sheet on Three International Agreements

Linda-Jo Schierow
Specialist in Environmental Policy

Persistent organic pollutants (POPs) are chemicals that do not break down easily in the environment, tend to accumulate as they move up the food chain, and may be harmful to people and wildlife. Between 1998 and 2001, the United States signed two international treaties and one executive agreement to reduce the production and use of POPs and to regulate the trade and disposal of them. President Bush signed and submitted the two treaties to the Senate for advice and consent. If the Senate consents by a two-thirds majority, and if Congress passes legislation that would be needed to implement the treaties and the executive agreement in the United States, then the treaties could be ratified and the agreements would become binding U.S. law. Two U.S. statutes are inconsistent with the agreements: the Toxic Substances Control Act (TSCA), which governs production and use of chemicals in U.S. commerce, and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which regulates the sale and use of pesticides within the United States. Proposals to amend these statutes were considered but not enacted in the 107th, 108th, 109th, 111th, and 112th Congresses. Whether implementing legislation might be considered in the 113th Congress is unclear.


Date of Report: November 21, 2012
Number of Pages: 5
Order Number: RS22379
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