Comments of the Upper Mississippi River Basin Association[1]


Proposed Revisions to the Water Quality

Planning and Management Regulation

40 CFR Part 130


[January 14, 2000]



Interstate waterbodies pose particularly challenging problems for water quality planning and management, including both upstream/downstream relationships and border relationships.  Those challenges are certainly more complex when the waterbody and its watershed encompass more than just two state or tribal jurisdictions.  The Mississippi River is a prime example of a waterbody that faces these multiple challenges.


The U.S. Environmental Protection Agency (EPA) has a unique and important role to play with regard to such large interstate waterbodies.  Acting individually, states lack sufficient resources and the legal and institutional capacity to adequately address these shared waterbodies.  Thus, EPA has a responsibility to actively coordinate and support interstate efforts on such waters.


The proposed Water Quality Planning and Management Regulations at 40 CFR Part 130 do not adequately address the unique character and special needs of interstate waters.  In particular, reference is made to interstate waters in only two specific sections (i.e., 130.23(d)(2) and 130.36), neither of which provides a clear and solid foundation for the sort of complex, multijurisdictional coordination that will be essential to any successful effort to establish total maximum daily loads (TMDLs) for large interstate waterbodies.


Methodology for lists and priority rankings (Section 130.23)


Section 130.23 sets forth requirements for documenting the approach used by a State, Territory, or authorized Tribe to list impaired and threatened waterbodies and determine priority rankings for those waterbodies.  The methodology that must be developed and submitted to EPA is to include, among other things, “a process for resolving disagreements with other jurisdictions involving waterbodies crossed by State or authorized Tribal or international boundaries.”  (Section 130.23(d)(2))  The proposed regulation provides no guidance regarding the specifics of such a conflict resolution process, nor does it include a means for ensuring that States and other entities sharing a waterbody will employ complementary, coordinated processes.  Without such coordination from the outset, the prospect of inconsistent, incompatible results is very real.


While EPA does not and should not approve the listing methodologies, it is at this early stage that EPA should exercise leadership.  In consultation with affected States and Tribes, EPA should identify specific interstate waters for which it will take a lead in coordinating multijurisdictional efforts.  By engaging early, EPA’s leadership can be extended to the important precursors of TMDLs, including assessing water quality under the authority of Section 305(b) of the Clean Water Act and identifying threatened and impaired waters under the authority of Section 303(d) of the Clean Water Act.  On many interstate waters such as the Mississippi River, 305(b) assessments, 303(d) lists, and water quality standards are frequently inconsistent.  EPA has a responsibility and an opportunity to take the lead in coordinating these efforts.


Such EPA leadership is particularly important in instances where EPA may be considering intervening to establish TMDLs for interstate waterbodies (see Section 130.36).  If the comprehensive and interrelated process of assessment, listings, standards, TMDL development, and monitoring is to be effective on interstate waters, EPA must engage itself early and actively in all phases of a cooperative process.


When Can EPA Establish TMDLs (Section 130.36)


Section 130.36 identifies three circumstances in which EPA may take responsibility for establishing a TMDL:  if asked by a State, if EPA determines the State is not likely to establish TMDLs consistent with the State’s schedule, or “if EPA determines that it should establish TMDLs for interstate or boundary waterbodies.”


While the proposed rule itself does not include criteria upon which EPA will make its determination to intervene, the background discussion suggests that EPA may assume leadership for large rivers, for large watersheds, where complex technical questions exist, or where there are “jurisdictional issues such as those faced on boundary waterbodies.”  These are all appropriate criteria and, in fact, are all relevant to the Mississippi River.  However, the relevant criteria should be incorporated into the rule itself.  Moreover, in applying those criteria, EPA should consult with the affected States and Tribes and quickly identify those interstate waterbodies for which EPA intends to assume a leadership role.  This is essential if States and authorized Tribes are to effectively coordinate TMDL development on intrastate waterbodies with those TMDLs on interstate waterbodies for which EPA will be taking the lead. 


After identifying the interstate waterbodies for which EPA will assume a leadership role, the process for establishing TMDLs for these waterbodies must also be identified.  The proposed rule simply states that EPA itself may establish TMDLs for such waterbodies.  Other options that EPA indicates it considered were a) imposing requirements that States consult with each other before listing a boundary water as impaired and before developing a TMDL for such waterbody or b) imposing a requirement that neighboring states jointly develop the TMDL for interstate waterbodies.  None of these three alternatives (i.e., EPA-established TMDLs, interstate consultation, or joint State development) is entirely satisfactory.  States are willing to work together on interstate waterbodies, but look to EPA for leadership.  At the same time, it is inappropriate and unrealistic for EPA itself to unilaterally establish TMDLs on interstate waters.  Yet simply requiring states through regulation to “consult” or “jointly develop” TMDLs is insufficient and does not fulfill EPA’s unique responsibilities for interstate waters.  Rather, what must be established is a cooperative process led by EPA, but involving all key players in a collaborative, coordinated effort.  Such a cooperative process could take many forms depending on the existing institutional relationships among the states involved.  For some interstate waterbodies, such as the Mississippi River, EPA will face the additional challenge of ensuring coordination among its own Regions.


Perhaps most importantly, EPA’s involvement in interstate waterbodies cannot be limited to TMDL development alone.  EPA must also be more fully engaged in cooperative efforts for assessments (305b), listings (303d), and TMDL implementation activities on interstate waterbodies.


There is a presumption in doing TMDLs on interstate waters that the precursors [305(b) assessments and 303(d) listings] have been coordinated for that interstate waterbody.  In fact, the success of the TMDL process depends upon accurately defining the water quality impairment and the causes and sources of impairments.  It is at this initial stage, which is not specifically addressed in EPA’s recent proposed guidance, that interstate agreement must be reached on border waterways.  Thus, EPA must broaden its involvement in interstate waterbodies to include all phases of standard setting, assessment, listing, planning, and implementation.

[1]  The Governors of Illinois, Iowa, Minnesota, Missouri, and Wisconsin formed the Upper Mississippi River Basin Association in 1981 to coordinate the state agencies’ river-related programs and policies and to work with federal agencies on regional issues.