POTENTIAL CONFLICTS BETWEEN TMDLS AND OTHER FEDERAL STATUTES

As the TMDL provisions of the Clean Water Act (CWA) are implemented, increasing focus will be placed upon control of nonpoint sources, which are responsible wholly or in part for approximately 90% of the waters listed nationwide as “impaired.” The cited causes of impairment in waterbodies are often from sources that are not managed under CWA programs. These include sources such as atmospheric emissions, discharges of groundwater contaminated by past waste disposal practices, surface runoff from inadequately controlled landfills, historically contaminated in-place sediments, and the legal application of pesticides and herbicides. Pollutants from these sources have been regulated under statutes other than the CWA. Thus, the possibility exists for overlap or conflict between the TMDL regulations and statutes such as the Clean Air Act (CAA), the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Additional complications arise when comparing the provisions of the Safe Drinking Water Act (SDWA) and the Endangered Species Act (ESA) with the CWA.The scientific and technical issues posed by implementation of the TMDL provisions of the CWA are recognized to be significant. However, the regulatory issues are also challenging. To date, TMDLs have had a role in reopening Superfund sites, in establishing NPDES permit limits of “zero” for a pollutant that enters the system almost entirely through atmospheric deposition, and in requiring an NPDES permit to apply a registered pesticide. These examples, as well as others involving the SDWA and ESA, illustrate the potentially overlapping and conflicting provisions of the TMDL regulations with other statutes and programs.