Northwest Environmental Advocates--Programs

Insufficient Instream Flows

The loading capacity and allocations in a TMDL must result in the attainment of water quality standards. CWA § 303(d)(1)(C), 33 U.S.C. § (d)(1)(C). Where a TMDL fails to address flow modification, it may not be able to meet this statutory criterion, making EPA vulnerable to litigation. It will also fall short of meeting its environmental goal. For parameters where flow modification has an impact - such as temperature, dissolved oxygen, and habitat impairment - EPA appears to agree that the TMDL must establish the flows necessary to support beneficial uses and provide dilution of pollutants.

EPA's TMDL Federal Advisory Committee recommended that EPA treat flow modifications as part of the 303(d) program, including listing, TMDL development, and implementation. FACA Report at 51, 52. The FACA Committee recommended that TMDLs be done to address flow alterations, including loss of instream flows as well as excessive flows due to increases in impervious surfaces. The Committee noted that the time frame in which implementation to reach attainment would take place would often have to be longer than an ordinary TMDL, which itself was not defined, due to "legal, institutional, and political difficulties." Id. at 52. Nonetheless, the Committee addressed what is without a doubt the most politically sensitive environmental issue in the West: water rights. EPA, on the other hand, largely declined to address the flow issue in its proposal. By requiring the listing of waters violating standards due to pollution, as well as individual pollutants, the list will included waters affected by flow impairments. However, under the proposed rules, unless a waterbody has also been identified as having pollutant violations, no TMDL will be done. While the number of waters that have insufficient instream flow but no pollutant violations (i.e., complete removal of flow) may not be very large, it is unclear what EPA envisions for the majority of waters that have instream flow problems in addition to pollutant violations. Here, the TMDL can be done on the basis of assumptions of the existing flow and might be adequate if there are assurances that the flows are not going to decrease over time due to increased out-of-stream uses. However, the proposed regulations do not address this possible change in the fundamental calculation of a given TMDL. On the other hand, a TMDL might not ever be able to demonstrate on its face that it will lead to attainment of water quality standards if the existing instream flow is insufficient to protect beneficial uses, regardless of attempts to reduce pollutants. The proposed regulations simply do not address this situation.

Where instream flows are not sufficient, the TMDL Implementation Plan should call, at a minimum, for enforcement of existing water rights. States may actively enforce the conditions of existing surface water rights and hydrologically-connected ground water rights in order to increase actual stream flow pursuant to the TMDL. Examples of enforcement activities include the following: imposing metering and self-reporting monitoring requirements on all existing rights within the hydrologic system subject to the TMDL; metering of diversions for all new surface water rights; enforcement of metering requirements conditions for previously existing surface water rights; and metering and reporting requirements on new groundwater rights where ground water is hydrologically linked to the waterbody. Inspections should confirm that metering and monitoring data conform to parameters of water rights documents (including instantaneous and annual quantities, place of use, period of use) and that such data is accurately and timely submitted by water users. The TMDL should require evaluation of the implementation of conservation plans for all municipal suppliers in TMDL basins the issuance of orders requiring municipalities to ensure that waters are conserved and used efficiently. Where a state has legal authority to prevent waste, it should evaluate monitoring data to determine whether water usage meets state "no waste" criteria and institute relinquishment proceedings if they do not. See e.g., Ecology v. Grimes, 121 Wn.2d 459, 852 P.2d 1044 (1993). The TMDL Implementation Plan should also include enforcement against illegal water uses including the identification of all unauthorized uses of water and actions to eliminate and halt such uses. Where a state lacks enforcement authority over unadjudicated claims, it can institute general stream adjudication proceedings in those basins or subbasins where a TMDL has been established. See, e.g., Rettkowski v. Ecology, 122 Wn.2d. 219 (1993).

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