Description of Conservation Law Foundation:
By way of background, let me describe CLF. The Conservation Law Foundation ("CLF") works to solve the environmental problems that threaten the people, natural resources, and communities of New England. CLF maintains an advocacy staff including over 25 lawyers and scientists. CLF's advocates use law, economics, and science to design and implement strategies that conserve natural resources, protect public health, and promote vital communities in our region. Founded in 1966, CLF is a non-profit, member-supported organization with over 10,000 members. CLF maintains advocacy center offices in Maine, New Hampshire, Vermont, and Massachusetts. CLF advocates focus on issues of national, regional or statewide significance that affect these states as well as Connecticut, Rhode Island, and New York. We firmly believe that EPA's proposed regulatory revisions will significantly affect efforts throughout New England, and nationally, to correct major water pollution problems and clean-up watersheds.
Water Pollution In New England:
New England, like many other regions, continues to have significant water pollution problems. Each of the New England states has identified waters that fail to meet state water quality standards. These pollution problems include: nutrient pollution that imperils recreational use and aquatic habitat in our lakes, ponds and coastal areas, sedimentation that harms important fisheries, disruption of natural river flows, and toxic pollution and pathogens that threaten public health. EPA and the States must enhance their efforts to document and correct these critical pollution problems.
Support for TMDL Program:
As an important component of the approach to clean-up New England's polluted waters, CLF strongly supports the Clean Water Act's TMDL provisions set forth at 33 U.S.C. 1313(d). Over a quarter-century ago, Congress enacted the 1972 Clean Water Act, which established detailed provisions, designed to ensure prompt cleanup of the nation's waters. Indeed, water-quality-based effluent limitations were to be achieved over twenty-two years ago (by July 1, 1977), 301(b)(1)(C), water quality suitable for fish, wildlife, and recreation was to be attained over sixteen years ago (by July 1, 1983), 101(a)(2), and discharges were to be eliminated over fourteen years ago (by 1985). 101(a)(1).
Central to achievement of these timelines, 303(d) of the 1972 Act mandated the total maximum daily load (TMDL) program, which is designed to ensure prompt identification of impaired and threatened waters, and the setting of maximum daily pollutant loads for those waters. Under the timeline intended by Congress, pollutants suitable for load calculation were to be identified by October 1973, states were to identify impaired waters and submit TMDLs for those waters by April 1974, EPA was to approve or disapprove that identification and those TMDLs by May 1974 and (in the event of disapproval) was to establish TMDLs by June 1974. Thus, TMDLs (whether EPA-approved or EPA-established) for all impaired waters were to be in place twenty-five years ago.
This clear congressional intent remained unfulfilled, and remains unfulfilled to this day. The cause is not far to seek: the states and EPA have massively failed to comply with their statutory obligations. Alaska Center for the Environment v. Reilly, 796 F. Supp. 1374, 1379 (W.D. Wash. 1992), aff'd, 20 F.3d 981 (9th Cir. 1994) ("The only 'consistently held interpretation' that the EPA has demonstrated with respect to the CWA's TMDL requirements has been to ignore them."). Only recently, in response to numerous lawsuits filed across the nation challenging the inaction of EPA and the States, have initial steps been taken to implement the TMDL provisions of the CWA. Only with significant additional funding and effort devoted to implementation will the TMDL provisions of the CWA achieve their initial purpose and promise. The proposed regulatory provisions will simply confuse and undermine implementation efforts.
Opposition to Regulatory Revisions:
The TMDL requirement is one of the cornerstones of the CWA. In order to assure that remaining water pollution problems are effectively addressed, it is critically important that the TMDL program not be undermined or weakened. Instead, the program should be strengthened and fully implemented. The first major step taken in actually implementing these long-ignored provisions of the CWA should not be to substantially revise existing regulatory requirements.
CLF's Comments to EPA raised several important substantive issues including that the rule revisions would:
Ø unlawfully delay development of TMDLs;
Ø unlawfully abdicate EPA's responsibility to develop TMDL's when states fail to;
Ø undermine public participation in TMDL development;
Ø unlawfully add factors for determining whether agricultural and silvicultural activities fall within the CWA's definition of point source discharge of a pollutant;
Ø create an inadequate and unlawful "offset" or "trading" program that would allow polluting discharges to continue without meeting water quality standards; and,
Ø exempt existing discharges from compliance with water quality standards even if they expand their discharge up to 20%.
Each of these concerns address facial violations of specific statutory requirements of the Clean Water Act. Unless each of them is addressed, and EPA's approach substantially revised, the proposed regulatory revisions would cause endless legal challenges and interminable delay in correcting critical water pollution problems.
Need for More Public Comment on the Rules:
Due to the complexity of the proposed regulatory revisions, their broad scope, and their fundamental flaws, EPA should revisit its approach and provide an additional opportunity for public comment. Indeed, each of the provisions of the proposed revisions could warrant an independent rulemaking. As a result, CLF has requested, and continues to hope for an EPA withdrawal of the proposed revisions with a fresh look at needed improvements in the TMDL program.
CLF is very concerned with recent written and oral EPA statements to members of Congress, including Senator Smith, highlighting potentially major changes to the initial rule proposal without providing any detail or specificity regarding possible changes. Given the likely major revisions that will occur in a final rule, CLF believes that the rule revisions should be noticed for additional public review and comment. Without an additional opportunity for public comment, we are concerned that all interested parties will be deprived of an opportunity to meaningfully to express their views.
Conclusion:
In conclusion, CLF continues to oppose EPA's proposed regulatory revisions. Without substantial changes, the proposed revisions will violate specific requirements of the Clean Water Act, cause major confusion and unnecessary controversy, and massively delay clean-up of polluted waters. The TMDL program should be implemented not weakened. Adoption of the proposed revisions without substantial changes would represent a major setback for efforts to clean-up polluted waters across the nation.
Respectfully submitted,
Nancy L. Girard, Vice President & Director New Hampshire Advocacy Center Director 5/4/00