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A Review of Relevant Rules, Regulatory History, Agency Practice, and Case Law Concerning Pre-TMDL Permitting to Impaired Waters

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Thousands of waterbodies in the United States are currently listed as impaired. Although the TMDL process will eventually address these impairments, the reality is that it will take some time before all the TMDLs are prepared. As such, pre-TMDL permitting to new and existing discharges has emerged as a very important issue in the NPDES regulatory program. Unfortunately, the regulations are ambiguous or silent on this issue, and permitting agencies have been forced to take various case-by-case interim approaches which usually allow the permittee to maintain existing performance. EPA headquarters, however, apparently believes that an immediate WQBEL must be issued to dischargers causing or contributing to an impaired stream, regardless of their proportionate contribution. Although there is an exception, the courts have recognized the practical effect of such a requirement and generally agreed with the regional and state permitting agencies on the issue.
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Document Type: Research Article

Publication date: 2008-01-01

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