In addition to my statement, Mr. Chairman, I ask that you accept into the hearing record a brief set of written comments from VAMWA and MAMWA, on Chesapeake Bay Program issues raised in the proposed TMDL rules. These written comments provide a detailed discussion, with specific recommendations, on several Chesapeake Bay Program issues that I will cover only generally this morning.
I should also mention that I serve on the Westmoreland County Board of Supervisors and as Chairman of the Montross, Virginia Water and Sewer Authority. Finally, I work for the Virginia Department of Health in the State's Shellfish Sanitation program. Thus, I work daily to address water quality issues at the local and regional levels. As with many of your constituents, EPA's proposed changes to the national TMDL program will affect me in each of the capacities in which I serve the public.
VAMWA and MAMWA comprise almost 60 local governments that own and operate public wastewater treatment facilities in Virginia, Maryland, and the District of Columbia. Their members are major stakeholders in the Chesapeake Bay Program - which stands as a highly successful alternative to the traditional Clean Water Act command-and-control approach.
The Chesapeake Bay Program is unique in many ways, not the least of which is the inclusive, cooperative relationship that exists between its many partners, including the Bay Program signatories (the Commonwealths of Virginia and Pennsylvania, the State of Maryland, the District of Columbia, the Chesapeake Bay Commission, and U.S. EPA), environmental advocacy groups, local governments, agriculture, industry, and others with a stake in the future of the Chesapeake Bay.
The essence of a partnership such as the Bay program, and the element that makes it work, is its reliance principally on agreement, rather than mandate, to achieve its goals.
That said, the Bay Program shares several key similarities with the TMDL program. For example, each Bay Signatory jurisdiction is implementing a tributary strategy process geared toward identifying and achieving stakeholder-developed restoration goals. Toward that end, the tributary strategies account for all loading sources and are blueprints for achieving and maintaining desired pollutant reductions from a wide array of point and non-point sources. However, while the Bay Program will achieve the same endpoints as would a properly implemented TMDL program, it will do so without resort to a federal mandate. That means greater flexibility to develop and implement the most cost-effective controls - at a much faster pace - than would be possible under the TMDL program as we know it.
The Rappahannock River Basin Commission is a forum in which local governments, state legislators and citizens can work cooperatively to address issues affecting the Basin's water quality and quantity. The membership consists of one member of each County and City governing body within the Basin, and all state Delegates or Senators whose district incorporates any part of the Basin, and one member from each Soil and Water Conservation District in the Basin. Our mission is to provide guidance and foster cooperation in the stewardship and enhancement of the water quality and natural resources of the Rappahannock River Basin.
EPA's proposed TMDL rules raise many significant issues. However, there is one overriding opportunity - and challenge - before us all. EPA's response to this issue may well affect the continuing viability of efforts like the Bay Program and the River Basin Commission.
As we seek to maintain and accelerate the water quality improvements that we have achieved since the Clean Water Act was passed almost 30 years ago, our challenges are increasingly complex and difficult. While the command and control point source programs under the CWA have been effective - not necessarily cost-effective, mind you, but effective nonetheless - in addressing point sources of pollution, a substantial majority of the remaining impairments are attributable to nonpoint sources or a combination of point and nonpoint sources.
The societal investments necessary to address these water quality impairments will dwarf our investments over the last 30 years. Accordingly, one thing is certain: implementation of CWA programs by EPA and its State partners, must evolve toward a performance-based system rather than continuing the long-standing command-and-control approach. A performance-based approach will stimulate innovation and stakeholder-initiated water quality solutions that will accelerate the protection and restoration of water quality nationwide. This is exactly what we have been doing through the Bay Program for more than a decade.
However, in order to move toward a performance-based system, EPA's TMDL rules must accept and encourage non-traditional, stakeholder-initiated efforts such as efforts under the Chesapeake Bay Program and those of the Rappahannock River Basin Commission. These innovative, stakeholder-led programs are the CWA's present and future success stories. These are the only programs that can bring together the resources and the political will that it will take to address and eliminate the difficult water quality challenges that lie ahead.
Fortunately, examples like our highly successful and nonregulatory Chesapeake Bay Program and the efforts of the Rappahannock River Basin Commission exist in every State. However, their ongoing viability is threatened by EPA's proposed TMDL rules.
While the existing TMDL rules acknowledge and afford some stature to what it terms "alternate pollution control programs," EPA's proposed rules inexplicably would eliminate this provision. Doing so will effectively deny recognition of non-command and control approaches to addressing water quality impairments. In our judgment, this is the single most important - and counterproductive - change that EPA proposes.
Rather than running the TMDL program out of Washington, EPA should use the opportunity of updating the TMDL program to expressly empower State and local governments as well as other stakeholders nationwide engaged in water quality restoration efforts. It has been my experience in Virginia, that community-based, cooperative programs can be highly successful in achieving significant water quality improvements.
I hope every member of this Subcommittee agrees that EPA's final TMDL rule should clearly accommodate and encourage the development of non-traditional water quality initiatives. These initiatives are vitally important to your constituents as they seek to address water quality impairments in their watersheds. These programs augment efforts by EPA and the States and will surely accelerate water quality protection and restoration nationwide. EPA's proposed rule should (1) recognize the vital role that alternative programs, like the CBP, play today in our water quality restoration efforts, (2) promote an even greater role for existing and similar initiatives going forward, and (3) ensure that the States will have the flexibility to integrate effective, non-traditional approaches into the TMDL program.
In response to concerns about the impact of the TMDL program on the CBP, last summer, the signatories to the Bay Agreement agreed to embark on the unprecedented process of integrating the TMDL program into the Bay Program.
By committing to this integration process, the Bay Program partners have agreed, in essence, to give the CBP a chance to remove the impairments before establishing one or more TMDLs for the Bay. In so doing, they have charted a course that will not only avoid the waste, confusion, and delay of overlapping and conflicting programs, but also provide the opportunity to obviate the need for a Bay TMDL by removing the impairments before a TMDL would be established. Avoiding TMDL establishment is a powerful incentive for the expeditious implementation of water quality controls under the Bay Program.
The CBP/TMDL integration process is federalism and innovation in action. In concept, this process reflects one of the best approaches to water quality management that EPA and the states have to offer.
We commend EPA Region III and EPA's Bay Program Office for their participation and leadership to date in this integration effort. However, we ask this Subcommittee, and the full Environment and Public Works Committee, to join us in encouraging EPA Headquarters to ensure that the final TMDL rule allows the seamless integration of the Chesapeake Bay program - and the stakeholder-based programs in your states - with the TMDL program.
Two particular obstacles to this integration effort deserve mention. First, for integration to succeed, EPA and the States must not be required to use NPDES permits as the sole mechanism for implementing TMDLs for point sources.
This is not to say that the Bay Program, for example, relies entirely on voluntary pollution control measures or that sources of pollution may do as they please. Rather, it means that the individual Bay states have retained considerable discretion to choose the appropriate means of achieving the goals established by the Bay Program's Executive Council. Not surprisingly, a wide variety of mechanisms have been successfully employed to achieve the Bay Program's nutrient reduction goals - some are regulatory in nature, some are not, but none are federal mandates. Examples include, state and local sediment control statutes and ordinances, state and local stormwater management programs, phosphate detergent bans, agricultural cost share programs, and state point and non-point source grant funding. NPDES permit limits have been employed, but only at the states' discretion, in special circumstances.
Both Maryland and Virginia have utilized grant agreements as the mechanism to implement biological nutrient removal ("BNR") at POTWs in accordance with their approved Chesapeake Bay tributary strategies. To date, dozens of POTWs in Virginia and Maryland have signed such agreements (which provide 50-percent grant funding), and have either installed, or are in the process of installing, BNR at costs totaling hundreds of millions of dollars. Not one POTW in either state has refused to execute a grant agreement when offered the opportunity to participate. Other POTWs have installed BNR voluntarily with the expectation that they will be reimbursed in the future for 50 percent of the cost.
The point source grant agreement programs in Virginia and Maryland are remarkable, not only for the millions of pounds of nutrient reductions they have achieved to date, but also for the speed and efficiency with which they are administered. For example, in 1998, some 14 agreements calling for the installation of over 3100 million in nutrient controls were negotiated and executed in a matter of weeks in Virginia. It would have taken months, if not years, and countless public resources, to issue NPDES mandating similar reductions.
The proposed TMDL rules threaten to replace the cooperative point source grant agreement programs in Virginia and Maryland with NPDES permit limits for nitrogen and phosphorous for all point sources in the Chesapeake Bay watershed. This would fundamentally alter the
Chesapeake Bay Program by imposing, for the first time, a broad federal mandate that would effectively override alternative state approaches to implementing nutrient controls.
The integration process is about giving the Bay Program - and similar programs nationwide - an opportunity to remove the impairments before a TMDL is established. The Bay Program has little meaning if one of its most accepted and successful implementation mechanisms is replaced with federally mandated permit limits. The effect will be to slow the pace of nutrient reduction, drive up costs, and waste federal, state, and local resources, which could be far more effectively utilized elsewhere.
For these reasons, VAMWA and MAMWA urge EPA to improve on its draft proposal by restoring the Bay states' discretion to continue to utilize grant agreements as the primary mechanism for implementing point source nutrient controls. We want to emphasize that we are not proposing that the states be precluded from utilizing nutrient limits in appropriate cases, only that their discretion to use grant agreements or other mechanisms be preserved. In fact, we believe there may well be instances where nutrient limits in NPDES permits are appropriate, such as those rare cases where sources refuse to install nutrient controls called for in a final tributary strategy.
The second noteworthy obstacle to the integration process is EPA's proposed offset requirement. The offset proposal is unnecessary in the context of the Chesapeake Bay/TMDL integration process because the signatories to the Bay Agreement are developing an "interim cap" strategy that has the same goal as EPA's offset proposal; namely, to avoid increased loadings of pollutants contributing to the Bay's impairment until loading capacities for the Bay and its tidal tributaries are identified and allocated. Significantly, the Bay Programs loading cap will apply to far more sources than would be possible under EPA's TMDL program.
In addition to being unnecessary, EPA's offset proposal also threatens to bring a halt to continued voluntary point source nutrient reductions. POTWs in the Bay watershed have, and continue to, voluntarily install nutrient controls based on federal and state assurances that they will not be penalized for their efforts. Unfortunately, EPA's offset proposal suggests that their reliance on these assurances may have been misplaced, and that POTWs voluntarily installing nutrient controls risk losing offsets from these upgrades that they may need for future growth. Although EPA's proposal does not say that voluntary reductions now may not be applied as future offsets, it also does not say they can be used for this purpose. Consequently, the resulting uncertainty is sure to slow, if not halt, continued commitments by point sources to voluntarily reduce their discharge of nutrients. The integration process has no chance of working unless this problem is clearly addressed in the final rule.
It is also worth noting that EPA's proposed offset requirement is wholly inconsistent with the promising concept of "smart growth." The reality today is that most urban waters do not consistently, and will never, meet the very stringent water quality standards currently in place. That means the offset requirement will provide a strong disincentive or prohibition to renewal projects in typical smart growth areas. The offset requirement will have the counterproductive result of driving new development to green field areas and, thereby, promote sprawl and the degradation of more healthy and productive watersheds EPA should eliminate the offset requirement until the Agency develops a more integrated policy that takes into account competing programs such as smart growth.
Finally, Mr. Chairman, we urge you and your colleagues to require EPA to hold a second public comment period on the Agency's proposed revisions to the TMDL rules. A second opportunity for comment is warranted given the sheer number of comments that EPA received as well as the number of open-ended questions on which EPA sought and received public input. Providing a brief second public comment period, hopefully, on a more focused proposal from EPA, is a matter of fundamental fairness in these circumstances.
Thank you.
The Virginia Association of Municipal Wastewater Agencies, Inc. ("VAMWA") and the Maryland Association of Municipal Wastewater Agencies, Inc. ("MAMWA"), whose municipal members serve the vast majority of the sewered population in Virginia, Maryland, and the District of Columbia, appreciate the opportunity to submit these comments on the captioned proposals as they relate to and affect the ongoing process for integrating the Chesapeake Bay Program into the Total Maximum Daily Load ("TMDL") program.
These comments supplement comments submitted today by VAMWA and MAMWA on all aspects of the captioned proposals.
I. Background
On May 3, 1999, EPA, Region III, over the objections of the Commonwealth of Virginia, VAMWA, and others, listed the Virginia portion of the Chesapeake Bay and its tidal tributaries as impaired for dissolved oxygen ("D.O.") and aquatic life pursuant to section 303(d) of the Clean Water Act, 33 U.S.C. 1313(d). Excessive nutrients were identified by EPA as the cause of the impairments.\1\ Among their objections to the listing decision, the Commonwealth and VAMWA expressed grave concerns over the impact of the listing decision on the Chesapeake Bay Program's long-standing nutrient and sediment reduction initiatives. Specifically, Virginia, VAMWA, and others pointed to the redundancy, waste, confusion and delay that would result from overlapping and conflicting programs directed at the same water quality issues.
\1\ Maryland had previously listed its portion of Chesapeake Bay and tidal tributaries as impaired for D.O. caused by excessive nutrients as part of that state's 303(d) list.
In response to these concerns, the Chesapeake Bay Agreement signatories\2\ agreed during the summer of 1999 to embark upon a process of integrating the Chesapeake Bay Program into the TMDL program. The goal of this process is to remove the impairments that are the basis for the listing decisions in both Virginia and Maryland utilizing the Chesapeake Bay Program rather than TMDLs. To achieve this goal, the impairments must be removed and the Bay and its tidal tributaries delisted prior to May 2011, which is the court ordered deadline for the establishment of TMDLs for all currently listed Virginia water segments: otherwise, they would be subject to TMDL establishment.
\2\ The Bay Agreement signatories include EPA, the states of Virginia, Maryland, Pennsylvania, the District of Columbia, and the Chesapeake Bay Commission.
Although the details of the integration process are still under development, its basic elements have been identified. The process begins with development of scientifically-based, ambient water quality endpoints (use designations and criteria to support the designations), which, when achieved, will eliminate the impairments identified by EPA and provide the basis for delisting. Once the endpoints are developed, the individual Bay states will revise their water quality standards to incorporate the endpoints. The existing Chesapeake Bay Program tributaries strategies processes will then be used to identify and allocate the nutrient and sediment load reductions required to meet the revised water quality standards. A Bay-wide ambient monitoring program will track progress toward attainment of the revised standards, and, as the standards are attained, the Bay or segments of the Bay, as appropriate, will be delisted. Bay TMDLs will be established only to the extent the Bay or segments of the Bay have failed to attain one or more of the revised standards by May 2011.
While the endpoint development process is underway, EPA and its Bay Program state partners will develop and implement an "interim cap" strategy to maintain the Chesapeake Bay Program's long-standing year 2000 forty-percent nutrient reduction goal until permanent caps are developed based on the endpoints discussed above.
By committing to this integration process, the Bay Program partners have agreed, in essence, to give the Chesapeake Bay Program a chance to remove the impairments before establishing one or more TMDLs for the Bay. In so doing, they have charted a course that will not only avoid the waste, confusion, and delay of overlapping and conflicting programs, but also provide the substantial benefit of providing an opportunity to obviate the need for a Bay TMDL by removing the impairments before a TMDL would be established. Avoiding TMDL establishment is a powerful incentive for the expeditious implementation of nutrient and sediment controls.
In summary, the Chesapeake Bay Program integration process is federalism and innovation in action. In concept, this process reflects one of the best approaches to water quality management that EPA and the states have to offer. EPA should do everything possible in this rulemaking to promote the integration process and remove any obstacles to its successful implementation. Indeed, EPA will have failed to follow through on its commitment to the integration process unless it clears the way for this process in this rulemaking.
II. Impact of the Proposed Rules on the Integration Process
Unfortunately, in their present form, the proposed rules are a potentially serious obstacle to successful implementation of the integration process, both for what they do and what they do not do in two critical areas. A. If the Integration Process is Going to Work, the Bay States Must have the Discretion, Not the Mandate, to Require Nutrient Limits in NPDES Permits Prior to TMDL Establishment
The Chesapeake Bay Program is unique in many ways, not the least of which is the inclusive, cooperative relationship that exists between its many partners, including the Bay Program signatories, environmental advocacy groups, local governments, agriculture, industry, and others with a stake in the future of the Chesapeake Bay. The essence of a partnership such as the Bay program, and the element that makes it work, is its reliance principally on agreement, rather than mandate, to achieve its goals.
This is not to say that the Bay Program relies entirely on voluntary pollution control measures or that sources of pollution may do as they please. Rather, it means that the individual Bay states are given considerable discretion to choose the appropriate means of achieving the goals established by the Bay Program's Executive Council. To date, a wide variety of mechanisms have been successfully employed to achieve the Bay Program's nutrient reduction goals - some are regulatory in nature, some are not, but none are federal mandates. Examples include, state and local sediment control statutes and ordinances, state and local stormwater management programs, phosphate detergent bans, agricultural cost share programs, and state point and non-point source grant funding. NPDES permit limits have been employed, but only at the states' discretion in two instances within the framework of the Chesapeake Bay Program's nutrient reduction initiatives. First, phosphorous limits have been imposed on selected dischargers to certain water segments identified as nutrient enriched in the state water quality standards. Second, the tributaries strategies process has used the threat of NPDES nutrient limits for those point sources unwilling to voluntarily implement the nutrient controls called for in the tributary strategies.
Both Maryland and Virginia have utilized grant agreements as the mechanism for implementing biological nutrient removal ("BNR") at POTWs in accordance with their approved Chesapeake Bay tributary strategies. To date, dozens of POTWs in Virginia and Maryland have signed such agreements (which provide 50-percent grant funding), and have either installed, or are in the process of installing, BNR at costs totaling hundreds of millions of dollars. Not one POTW in either state has refused to execute a grant agreement when offered the opportunity to participate, while many other POTWs have proceeded to install BNR voluntarily with the expectation that they will be reimbursed in the future for 50 percent of the cost. The point source grant agreement programs in Virginia and Maryland are remarkable, not only for the millions of pounds of nutrient reductions they have achieved to date, but also for the speed and efficiency with which they are administered. For example, in 1998, some 14 agreements calling for the installation of over $100 million in nutrient controls were negotiated and executed in a matter of weeks in Virginia It would have taken months, if not years, and countless public resources, to issue NPDES mandating similar reductions.
As currently proposed, EPA's new rules threaten to wipe away the cooperative point source grant agreement programs in Virginia and Maryland presently used for achieving nutrient load reductions in Maryland and Virginia, and in their place, require nitrogen and phosphorous limits for all point sources in the Chesapeake Bay watershed. Combined with the listing decisions, it could fundamentally alter the Chesapeake Bay Program by imposing, for the first time, a broad federal mandate that would effectively override state decisions regarding the appropriate mechanisms governing the implementation of nutrient controls.
The integration process is about giving the Bay Program an opportunity to remove the impairments before a TMDL is established. The Bay Program has little meaning if one of the Bay Program's most accepted and successful implementation mechanisms is replaced with federally mandated permit limits. The effect will be to slow the pace of nutrient reduction, drive up costs, and waste federal, state, and local resources, which could be far more effectively utilized elsewhere.
For these reasons, VAMWA and MAMWA urge EPA revise its proposal to preserve the Bay states' discretion to continue to utilize grant agreements as the primary mechanism for implementing point source nutrient controls. We want to emphasize that we are not proposing that the states be precluded from utilizing nutrient limits in appropriate cases, only that their discretion to use grant agreements or other mechanisms be preserved. In fact, we believe there may well be instances where nutrient limits in NPDES permits are appropriate, such as those rare cases where sources refuse to install nutrient controls called for in a final tributary strategy.
Although there are several ways that the states' discretion could be preserved in the final rule, we believe the best approach would be to revise 40 C.F.R. 122.44(d)(1)(ii), which identifies the factors to be considered by the permitting authority in making reasonable potential determinations, to read, in relevant part, as follows:
(ii) When determining whether a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above a narrative or numeric criteria within a state water quality standard, the permitting authority shall use procedures which account for ... planned controls on the discharge where the installation and performance of such controls is required and enforceable by the permitting authority utilizing an appropriate implementation mechanism... B. EPA's Offset Proposal Is Unnecessary and Threatens to Halt Continued Voluntary Point Source Nutrient Reductions.The offset proposal is unnecessary in the context of the Chesapeake Bay/TMDL integration process given the "interim cap" strategy discussed above. Its goal is the same as the goal of EPA's offset proposal; namely, to avoid increased loadings of pollutants contributing to the impairment until loading capacities of the Bay and its tidal tributaries are identified and allocated.
In addition to being unnecessary, EPA's offset proposal also threatens to bring a halt to continued voluntary point source nutrient reductions. POTWs in the Bay watershed have voluntarily committed, and continue to commit, to the installation of nutrient controls based on federal and state assurances that they will not be penalized for their efforts. Unfortunately, EPA's offset proposal suggests that their reliance on these assurances may have been misplaced, and that POTWs voluntarily installing nutrient controls risk losing offsets that they may need for future growth. Although EPA's proposal does not say that voluntary reductions may not be applied as future offsets, it also does not say they can be used for this purpose. Consequently, the resulting uncertainty is sure to slow, if not halt, continued commitments by point sources to voluntarily controls on the discharge of nutrients. The integration process has no chance of working unless this problem is clearly addressed in the final Nile. Therefore, we propose that the proposed definition of "reasonable further progress: in the antidegradation rule be revised as follows:
[T]o authorize a new discharger or an existing discharger undergoing a significant expansion . . . reasonable further progress shall be made toward attaining the water quality standard. Reasonable further progress for these dischargers means, at a minimum, that any increase in mass loadings of the pollutant(s) causing the nonattainment will be offset by pollutant(s) load reductions of the pollutant(s) causing the nonattainment by a ratio of at least equal to 1.5:1. In the case of any increase in mass loadings of any pollutant(s) causing the nonattainment of any water quality standard applicable to the Chesapeake Bay any of its tributaries. reasonable further progress may be made by the discharger agreeing to install controls on the new discharge or significantly expanded discharge and any existing discharge of such pollutant(s) in accordance with a tributary strategy developed pursuant to the Chesapeake Bay Program where the installation and performance of such controls is required by and enforceable by the permitting authority utilizing an appropriate implementation mechanism.
Again, thank you for the opportunity to submit these comments. If you have any questions, please do not hesitate to contact James T. Canaday (VAMWA) at 703-549-3381 or email jcanaday~alexsan.com or Cy Jones (MAMWA) at 301-20~8831 or smallcjones1@wssc.dst.md.us.