EPA Repeals Approval of Lake Champlain TMDL

Following on a 2008 lawsuit from the Conservation Law Foundation (CLF) the Environmental Protection Agency (EPA) has agreed to rewrite the Lake Champlain phosphorus budget known as a TMDL. The TMDL establishes an amount of phosphorus that can be absorbed by the lake and then allocates allowable discharges between point sources like wastewater treatment facilities and non-point sources such as agricultural and developed land run off. About 5% of phosphorus loading to Lake Champlain comes from wastewater treatment facilities.

EPA determined that the existing TMDL did not include an adequate margin of safety and did not provide reasonable assurance that sufficient reductions in non-point source discharges could be achieved to allow more discharge from wastewater treatment facilities.

The original TMDL was produced jointly by New York and Vermont and approved by EPA in 2002. As a result of the suit, EPA will take the lead in rewriting the TMDL and has committed $150,000 to the effort. They have stressed that they will act in conjunction with the Vermont Agency of Natural Resources in this regard. They took pains to praise the efforts Vermont has made to date, stating in their cover letter, “Please do not consider this disapproval an indictment of the good work the State and other entities have been engaged in to restore Lake Champlain. EPA recognizes and appreciates the extensive effort involved in the development of the original TMDL and the many excellent projects and programs implemented to reduced phosphorus inputs to the lake.”

By law EPA has thirty days to produce the new TMDL but they have conceded that they will not be able to meet that deadline. They anticipate it will take “months” to complete the new budget.

Implications for New York
The New York portion of the TMDL will not be affected by the decision. It was determined that the Vermont and New York portions of the TMDL constituted separate documents and the CLF appeal applied only to the Vermont portion. The statute of limitations has expired for any appeals to the New York portion, and there is no provision within the Clean Water Act to require any review in the future.

Meanwhile, New York’s wastewater treatment facilities discharge more phosphorus than Vermont’s. In 2009 there were 60 Vermont wastewater treatment facilities that discharged directly or indirectly to Lake Champlain. They treated 40.5 million gallons per day of wastewater and released a total of 20.3 metric tons of phosphorus. New York wastewater treatment facilities released more phosphorus (20.9 metric tons) despite there being fewer facilities (only 29) and treating a lower volume of waste (31.5 million gallons per day).

What Will It Mean?
In the absence of a phosphorus allocation in a TMDL, no permits can be issued for discharges that would cause or contribute to the impairment of the water body by producing phosphorus. Therefore, until a new TMDL is approved, individual wastewater treatment facilities may not be able to renew their permits unless they offset all their phosphorus loads. It is currently unclear how regulatory agencies will deal with permit renewals.

At its best the EPA’s decision will force the development of programs that better track reductions in phosphorus loading from farms and developed land. (Better tracking could conceivably occur irrespective of any actual changes in management). Another potential positive is that the revision could lead to new, as yet unidentified sources of funding for addressing phosphorus pollution. At its worst the EPA decision will lead to a diversion of resources from the principal sources of phosphorus, agriculture and developed land, to greater investment in wastewater treatment facilities.

LCC’s Approach
LCC has dedicated extensive time and energy to reducing phosphorus pollution in Lake Champlain. We were instrumental in establishing the water quality standards that the TMDL is built around. We have successfully pursued legislation that led to elimination of phosphorus in laundry and dishwasher detergents. We work extensively to guide resources to programs that reduce phosphorus loading from farms. We have instituted innumerable outreach programs that make homeowners and regional residents aware of their personal responsibility for reducing phosphorus inputs to the lake. In the
wake of this decision we will work to make sure that efforts to combat phosphorus pollution do not lose their current focus on the most extensive sources of pollution loading – farms and runoff from developed land.