Nov. 7, 2018- The Tennessee Department of Environment and Conservation (TDEC) is currently in the process of developing a Total Maximum Daily Load (TMDL) for the Harpeth River. A TMDL is a pollution reduction study and plan that puts a waterbody on the path to restoration. In the case of the Harpeth River, TDEC is engaging stakeholders to help develop limits for phosphorus pollution. Presentation Table of Contents: • Why Are We Doing a TMDL? Why are We Here? • The Over-Riding Goal of a TMDL • Where Are We Now? • Elements of a TMDL • Issues with Most TMDLs? • Solutions? Stakeholder-led TMDL – “Privatize” the TMDL Process • Examples & Similar Structures • Requirements & Interim Measures • Potential for Legislative Involvement / Encouragement • Similarity to USEPA Region 4’s 5R Approach • Conclusion

1. Harpeth
Conservancy
11/7/2018

2. Harpeth Conservancy’s Innovative Suggestions to
Help TDEC and Restore the River
• Harpeth Conservancy Proposes that TDEC Facilitate a Stakeholder-led
TMDL Process
• Similar to USEPA “5R” approach
• Stretches TDEC’s scarce resources
• Allows Private Sector Expertise to be Brought to Bear
• Technical issues
• “Voluntary” process
• TMDL is a “Deal” – Allows Parties to Start Getting into “Deal Mode” Sooner
• Thinking about allocations and implementation
• Potential to Actually Achieve Restoration

3. Table of Contents
• Why Are We Doing a TMDL? Why are We Here?
• The Over-Riding Goal of a TMDL
• Where Are We Now?
• Elements of a TMDL
• Issues with Most TMDLs?
• Solutions? Stakeholder-led TMDL – “Privatize” the TMDL Process
• Examples & Similar Structures
• Requirements & Interim Measures
• Potential for Legislative Involvement / Encouragement
• Similarity to USEPA Region 4’s 5R Approach
• Conclusion

4. Why Are We Doing a TMDL? Why Are We
Here?
•River Is Impaired
• CWA §303 Requires a TMDL:
• TMDL required where Technology-based Effluent Limits (TBELS – end-of-pipe
controls) are NOT sufficient
• “Each State shall identify those waters within its boundaries for which the
effluent limitations required by section 1311(b)(1)(A) [TBELS for point sources
other than POTWs] and section 1311(b)(1)(B) [secondary treatment for pre-
existing POTWs] of this title are not stringent enough to implement any water
quality standard applicable to such waters.” 33 USC §1313 (d)(1)(A)

5. The Harpeth River Needs a TMDL
• The Harpeth River has been on Tennessee’s 303(d) List for excess
“nutrients” since 1996 and it has been listed as impaired by phosphorus
since 2004.
• Low DO violations
• Algae growth drives low DO
• Excess nutrients (nitrogen and/or phosphorus) can lead to harmful algal
blooms that are toxic to humans, pets, and wildlife; toxic algae can taint
drinking water and poison swimmers, and algal blooms can deplete the
water of the oxygen needed by fish and other water species.
• In 2014, TDEC began conversations with stakeholders about developing a
TMDL for the Harpeth River Watershed.

6. Map of Harpeth River Impairments

7. The Over-Riding Goal of a TMDL
•Get the River off the 303(d) List
• CWA §303(d)(1)(C): “Each State shall establish for the waters
identified in paragraph (1)(A) of this subsection, … the total maximum
daily load, …. Such load shall be established at a level necessary to
implement the applicable water quality standards with seasonal
variations and a margin of safety which takes into account any lack of
knowledge concerning the relationship between effluent limitations
and water quality.”

8. Where Are We Now?
• TMDL is over 3 years old and still lacks critical initial elements
• No workplan yet finalized, even though it is a critical first step in any
scientific study (M. Corn, Feb. 2018)
• 2004 – Harpeth River is first listed as impaired for phosphorus
• 2015 – (July 2015) -- TDEC announces new TMDL at same time as new water
withdrawal permit.
• 2016 – (May 2016) – TDEC holds first meeting on new TMDL
• 2018 – Meetings continue, but still no final work plan or Scientific Advisory
Panel (Technical Advisory Committee) per 2013 Draft Permit

9. Statutory Elements of a TMDL
• Each State shall establish TMDLs for the water quality limited segments
identified [on the State 303(d) List], and in accordance with the priority
ranking. 40 C.F.R. §130.7(c)(1).
• Waters on the 303(d) List require TMDLs when (i) technology-based effluent
limitations required by the CWA; (ii) more stringent effluent limitations required by
either State or local authority preserved by CWA Section 510, or Federal authority;
and (iii) other pollution control requirements (e.g. best management practices) are
not stringent enough to implement any water quality standards applicable to such
waters
• “water quality standards applicable to such waters” = water quality standards established under
CWA 303, including numeric criteria, narrative criteria, waterbody uses, and antidegradation
requirements
• “priority ranking” = established in accordance with the process described in the
State’s Continuing Planning Process, taking into account the severity of the pollution
and the uses to be made of such waters, and must identify waters targeted for TMDL
development in the next two years

10. Statutory Elements of a TMDL (cont’d)
• For pollutants other than heat, TMDLs shall be established at levels necessary
to attain and maintain the applicable narrative and numerical water quality
standards (WQS) with seasonal variations and a margin of safety which takes
into account any lack of knowledge concerning the relationship between
effluent limitations and water quality. 40 C.F.R. 130.7(c)(1).
• Determinations of TMDLs shall take into account critical conditions (e.g., 7
Q10 conditions) for stream flow, loading, and water quality parameters. Id.
• TMDLs may be established using a pollutant-by-pollutant or biomonitoring
approach. In many cases both techniques may be needed. Site-specific
information should be used wherever possible. 40 C.F.R. 130.7(c)(1)(i).
• TMDLs shall be established for all pollutants preventing or expected to
prevent attainment of water quality standards as identified [on the state’s
303(d) List]. Calculations to establish TMDLs shall be subject to public review
as defined in the State CPP. 40 C.F.R. 130.7(c)(1)(ii).

11. Minimum Elements of a TMDL
The EPA provides a ten-item TMDL Review Checklist of the minimum recommended
elements that should be present in a TMDL document:
• Required Elements:*
• Applicable WQS and Numeric Water Quality Target
• Loading Capacity
• Load Allocations (LAs) and Waste Load Allocations (WLAs)
• Margin of Safety
• Consideration of Seasonal Variation
• Recommended Elements:
• Identification of Waterbody, Pollutant of Concern, Pollutant Sources and Priority Ranking
• Reasonable Assurance for LAs/WLAs
• Implementation Plan – BUT must have implementation plan under 40 CFR 130.6 (b), (c) (as part of TN
State Water Quality Management Plan – Does it contain this element?)
• Monitoring Plan to Track TMDL Effectiveness
• Public Participation
* Required by 40 CFR Part 130

12. Issues with Most TMDLs?
• Don’t Have Necessary Elements for Success
2013 GAO STUDY:*
• “[R]epresentative sample [shows]… pollutant…[reductions], but few
impaired water bodies have fully attained water quality standards.”
• TMDLs “seldom contained all features key to attaining water quality
standards.” …. [and lack such elements as]
• identifying pollution-causing stressors
• showing how addressing them would help attain such standards
• specifying how and by whom TMDLs will be implemented
• ensuring periodic revisions as needed.
* GAO, CLEAN WATER ACT Changes Needed If Key EPA Program Is to Help Fulfill the Nation’s Water Quality Goals (Dec. 2013) (https://www.gao.gov/assets/660/659496.pdf)

13. Proper Allocations Between Sources Required
• “[W]here a state reduces the WLAs in a TMDL based upon anticipated
future reductions in nonpoint source loading, the state should
provide specific assurances that the reductions will in fact occur.
Absent such assurances, the state must allocate the entire load
reduction necessary to attain water quality standards to point
sources.”*
*Mark A. Ryan, Editor, THE CLEAN WATER ACT HANDBOOK (3rd EDITION) (American Bar Ass’n, 2011), Ch. 11 citing EPA, GUIDANCE FOR WATER QUALITY–BASED DECISIONS: THE
TMDL PROCESS, ch. 1 at 2, ch. 2 at 8, ch. 3 at 5 (Apr. 1991), available at http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/dec1c.cfm.

14. Tennessee’s Record on Nutrient Pollution
Decades of Delay, Mississippi River Collaborative, November 2016:
• “Nitrogen and phosphorus pollution remain a problem in Tennessee’s waters, and it is a problem
that is getting worse.”
• “Tennessee is failing to take the necessary steps to control for nutrient pollution.”
• “…not a single permit contains a water quality based effluent limit derived from Tennessee’s
numeric nutrient translator.”
• “Tennessee’s [Nutrient Reduction] Strategy is incomplete and lacks many elements specified in
EPA’s Framework memo.”
• “Tennessee has developed just five nutrient-related TMDLs, none over the past 6 years. … Three
of the 5 TMDLs … ignor[e] any downstream reaches with wastewater treatment plant discharges.
As a result, Tennessee has never developed a wasteload allocation for these facilities.”
http://www.msrivercollab.org/wp-content/uploads/Decades-of-Delay-MRC-Nov-2016.pdf (pps. 61, 62, 64, emphasis added)

15. Solutions? Stakeholder-led TMDL –
“Privatize” the TMDL Process
•Utilize a Stakeholder-led TMDL process
• See https://www.epa.gov/tmdl/third-party-tmdl-development-
toolkit.
•Benefits?
•Requirements?

16. What is a Stakeholder-led TMDL?
• Concept promoted by USEPA
• “Denotes a TMDL in which an organization or group other than the lead
water quality agency takes responsibility for developing the TMDL
document and supporting analysis.” (Third-party TMDL)
• “A third party can be a watershed group, municipal wastewater or
stormwater discharger organization, industrial discharger entity, other unit
of government (such as a county, city, municipality, or land management
agency), or nonpoint source organization (such as a farm bureau, irrigation
and drainage district, or landowner).”
• “Other than the third party taking the lead role for developing the TMDL
document and supporting analysis, there is nothing different about a third-
party TMDL. State agencies, rather than third parties, ultimately adopt
TMDLs and submit them for approval to EPA.”
• From WEF, “Third-Party TMDL Development,” (2007), https://www.wef.org/globalassets/assets-wef/3---resources/topics/o-
z/watershed/technical-resources/toolkitwebversion.pdf and https://www.epa.gov/tmdl/resources-tmdl-stakeholders

17. Benefits of Stakeholder-led TMDLs
• Stretches TDEC’s scarce resources
• Allows private sector expertise to be brought to bear
• Technical issues
• “Voluntary” process
• TMDL is a “deal” – allows parties to start getting into “deal mode”
sooner
• Thinking about allocations and implementation
• Potential to Actually Achieve Restoration

18. Stakeholder-led TMDL Development
• Typical steps in developing a TMDL:
• State sets water quality standards, assesses water body, and determines if water
quality is impaired
• State develops total maximum daily load (TMDL) for impaired water body, taking
public comment on the draft TMDL before submitting a finalized version to EPA
• EPA reviews TMDL
• EPA rejects or approves TMDL; if rejected, EPA itself develops TMDL within 30 days
• State implements TMDL
• For point sources of pollution:
• State or EPA incorporates limits from TMDLs into discharge permits
• State monitors point sources for compliance with permits
• For nonpoint sources of pollution:
• State uses federal and nonfederal funding to help landowners and other stakeholders take
actions prescribed by TMDL
• Landowners or other stakeholders take (voluntary) action

19. Stakeholder-led TMDL Development (cont’d)
• While the responsibility for developing TMDLs in Tennessee ultimately
rests with the Tennessee Department of Environmental Conservation
(TDEC) and the EPA is responsible for reviewing and approving (or
rejecting and replacing) any finalized TMDL.
• The vast majority of the 70,000 approved TMDLs in the United States
only allow for substantive public participation through the notice and
comment procedure once the TMDLs are drafted.
• The Harpeth River TMDL offers a rare opportunity, as TDEC and the
EPA have engaged a group of stakeholders to collaborate on the
development of the TMDL per the USEPA-promoted stakeholder-led /
third party TMDL process.

20. Examples of Stakeholder-led TMDLs
• Similar Structures
• Stakeholder-led TMDLs – CASE STUDIES
• Lots of Lessons Can Be Learned from Others’ Efforts
• If Implemented Well, Could Have Better Chance of Success in Achieving Goal
of Removing River from 303(d) List

21. Similar Structures – Watershed Management
Structures
• At Least 3 Different Types –Government-, Citizen-Directed, Hybrid*
• Government
• Upper Occoquan Service Authority
• Citizen – Charles River Watershed Ass’n
• Hybrid
• Neuse River Compliance Association and Lower Neuse Basin Association
• Spokane River Forum
* See Schueler & Holland, eds., The Practice of Watershed Protection (2000), Article 128.

22. Stakeholder-led TMDLs – CASE STUDIES
Participants in the following stakeholder-led TMDLs were contacted in
preparing these recommendations (No central database, so data-gathering
& analysis more difficult.):
• Ballona Creek & LA River, California
• North Buffalo Creek, North Carolina
• Little Miami River, Ohio
• Lake Pepin, MN

23. Lake Pepin TMDL Organizational Structure
Stakeholder Advisory
Committee
• Help design TMDL
work plan
• Provide advice on
solutions and mouth
of watershed goals
• Coordinate
communications
MCPA
• Steering
• Support
• Leadership
• Education
• Draft TMDL Report
River Basin Teams
• Minnesota River
• Upper Mississippi River
• St. Croix River
• Lower Mississippi
• Metro Region
Public
Review
EPA Approval
Scientific Advisory Panel
• Review TMDL Documents
• Help to resolve technical issues
• Provide expert opinion on scientific questions

24. Requirements for Stakeholder-led TMDLs?
TDEC Must Set Outside Bounds for Privatization Process
Sierra Club v. McLerran, U.S.D.C. (W. Dist. WA, 2015)*
• River long on 303(d) list for PCBs; WA Dept’ of Ecology takes several desultory steps
toward cleanup, including organizing a group of permittees into a “Regional Task
Force”
• “… the Court sets aside the EPA’s decision and remands …. Specifically, the EPA shall
work with [WA Dep’t of] Ecology to create a definite schedule with concrete goals,
including:
• clear statements on how the Task Force will assist in creating a PCB TMDL in the Spokane River
by reducing scientific uncertainty;
• quantifiable metrics to measure progress toward that goal;
• regular checkpoints at which Ecology and the EPA will evaluate progress;
• a reasonable end date, at which time Ecology will finalize and submit the TMDL for the EPA’s
approval or disapproval; and
• firm commitments to reducing PCB production from known sources in the interim.” (Emphasis
added).
* MEMORANDUM ORDER REMANDING MATTER FOR FURTHER CONSIDERATION, Docket No. 120, Case No. 11-CV-1759-BJR; Appeal dismissed, 9th Cir, April 5, 2016.

25. Preparation of TMDL Does Not Excuse Violation of
WQS In the Interim
• “… TMDLs take time and resources to develop and have proven to be difficult to
get just right; thus, under EPA regulations, permitting authorities must adopt
interim measures to bring water bodies into compliance with water quality
standards. Id. § 1313(e)(3); 40 C.F.R. § 122.44(d); see also, e.g., 43 Fed. Reg.
60,662, 60,665 (Dec. 28, 1978) ("EPA recognizes that State development of
TMDL's and wasteload allocations for all water quality limited segments will be a
lengthy process. Water quality standards will continue to be enforced during this
process. Development of TMDL's . . . is not a necessary prerequisite to adoption
or enforcement of water quality standards . . . .").”
• “The District also alleges that the EPA was required to demonstrate … that the
phosphorus limit "would have a substantial impact on the cultural eutrophication
of the Blackstone River“…. We thus reject the notion that in order to strengthen
the District's discharge limits, the EPA must show that the new limits, in and of
themselves, will cure any water quality problems.
• Upper Blackstone Water Pollution Abatement District v. U.S. EPA, 690 F.3d 9 (1st Cir. 2012); Accord, City of Taunton Dept. of Public Works, 17 EAB __ (Env. Appeals
Board 5/3/2016); Prairie Rivers Network v. Illinois Pollution Control Board, 2016 IL App (1st) 150971 ¶¶29-33, 38 (Ill. App. Ct. 2016); Ala. Dept. of Env. Mgt. v. Ala.
Rivers Alliance, Inc. 14 So. 3d 853, 866-68 (Ala. Civ. App. 2007).

26. What Are We Proposing?
• Stakeholder-led TMDL
• “Steering Committee”
• Elected representatives from around the Harpeth system
• Permittees
• Environmental Interests (Harpeth Conservancy, etc.)
• Community Business Leaders
• Technical Advisory Committee
• Representatives from Steering Committee members
• Independent Stakeholders Can Participate
• Stakeholders Work Out Details, Subject to TDEC Supervision
• Schedules / Milestones / Deliverables – subject to TDEC approval
• Data Needs -- Sampling / Monitoring, etc.
• Waste- and Load-Allocations
• Implementation Plans
• Post-Effectiveness Monitoring

27. Steering / Executive Committee
• Need to Discuss and Settle on Composition, Charter, Reporting
Relationships, etc.
• Composition?
• Elected representatives from around the Harpeth system
• Permittees
• Environmental Interests (Harpeth Conservancy, etc.)
• Community Business Leaders
• Other Interests?
• Charter?
• Frequency of Meetings? Help Resolve Issues re Status, Progress, WLAs, LAs, etc.?
• Reporting Relationships?
• TAC reports to Steering / Executive Committee?

28. TDEC Says We Need a Technical Advisory
Committee
• “The Harpeth River Watershed Association (HRWA) [now, Harpeth Conservancy] developed
and on February 10, 2013 distributed to the permittees (Franklin STP TN0028827, Berry Chapel
Utility STP TN0029718, and Cartwright Creek – Grasslands STP TN0027278), EPA, USGS, the
division, and others a very comprehensive historical Harpeth River data summary, its proposed
instream monitoring program, and suggested that a Technical Advisory Committee (TAC) an
oversight organization, be assembled for assisting with the receiving stream investigations, data
application assessments, and considerations/suggestions for NPDES permit
modifications/renewals. The division concurs with HRWA, regarding the need for more
comprehensive instream data collection and the translation into viable Harpeth River upgrades.
HRWA’s documents are in the permit file and available upon request. The new permit provides
reopener provisions for modifications pursuant to the permittee’s participation in the TAC.”
TDEC, Draft of NPDES Permit No. TN0028827, April 23, 2013, Pages R-2 to R-3 (and
accompanying letter of the same date from Vojin Janjić, Manager, Permit Section, TDEC to Mr.
Mark S. Hilty, P.E., Franklin Water Management Department.) (Emphasis added). (The actual
re-opener clause is contained in Section 1.5, page 11 of the 2013 Draft Permit.)

29. Potential for Legislative Involvement /
Encouragement
• Legislative Involvement / Encouragement Could Facilitate the Process
• Utilize “Group of Five” Already Engaged (Sens. Dickerson, Johnson; Reps.
Clemmons, Mitchell, Whitson)
• Bring in Additional Elected Officials? Nashville Mayor Office?, Metro Council Members?,
Downstream State and Local Elected Officials?
• Oversee Process? Engage More Business / Community Leaders?
• Mandate Approach?
• Potential for Statewide Program
• Pilot Program to Begin?

30. Similar to USEPA Region 4’s “5R” Approach
• What is USEPA Region 4’s 5R Approach?
• What is the 5R Approach? – Alternative to / pre-TMDL
• “Process to engage local stakeholders in the watershed restoration process in advance of TMDL
development … by allowing public and private stakeholders to drive the watershed restoration
process.”
• “…stakeholders, in conjunction with their State, prepare a watershed plan that includes a broad
scope of water quality restoration activities that, when implemented, can improve water quality
…. The watershed plan should follow a continuous adaptive management approach ….”
• Six (6) year pilot program
• Why Use a 5R Process?
• Traditional TMDLs Not Working: “As of August 2011, over 44,000 TMDLs have been established
throughout the Nation. However, the National Water Quality Inventory to Congress for the 2004
Reporting Cycle reported that 44% of assessed stream miles, 64% of assessed lake acres and …
remain impaired.”
• TMDLs Not Being Implemented: “…an estimated 80% of the TMDLs established in Region 5 were
at least partially implemented; however, full implementation was uncommon….”

31. 5R Approach (cont’d)
• Elements of a 5R Process?:
• The identification of the point and nonpoint sources
• The point source and nonpoint source water quality restoration activities that
are expected to result in water quality improvements and restoration.
• Cost estimates and funding commitments to implement the water quality
restoration activities.
• An anticipated schedule for implementing the water quality restoration
activities, including the anticipated completion date and the estimated
pollutant load reductions necessary to meet water quality standards.
• A water quality monitoring component to evaluate and track the effectiveness
of the scheduled water quality restoration activities at each 303(d) listing
cycle.
• An anticipated date for achieving water quality standards.

32. Why Do We Think It Might Work Here?
• Uniqueness of Harpeth River
• One of Most Heavily Recreated in State
• Contact recreation – water play, fishing, paddling
• PUBLIC HEALTH ISSUE
• REAL NEED
• Public Interest and Oversight – Already Significant Community Interest & Involvement
• Principal Issues Appear More Controllable
• Principal Sources Seem to be Point Sources
• Sewer plants
• Municipal Stormwater systems
• Not Nonpoint Sources

33. Conclusions
• Harpeth Conservancy Proposes a Stakeholder-led TMDL Process
• “Privatizes” Process – Engages Community
• Stretches TDEC Resources – Better Preserve & Restore TN with Less
Government Involvement, Dollars – Utilizes Community Expertise & Energy
• Addresses Issues with Many TMDLs – Has Structure to Implement, Monitor
Progress
• Similar to Approaches Used Across the Country
• More Likely to Achieve the Ultimate Goal –
• GET THE RIVER OFF THE 303(d) IMPAIRED LIST

34. We are the river.
United we are the solution..
34