My name is Nina Bell. I am the Executive Director of Northwest Environmental Advocates, a 31-year old organization working in Oregon and Washington on issues related to energy and the environment. We have been working since 1987 to promote implementation of the Clean Water Act's water quality-based approach to protecting public waters. To this end, we have actively participated in the review and development of state water quality standards and state water quality rules, state policies for Total Maximum Daily Load (TMDL) programs and individual TMDLs, U.S. Environmental Protection Agency (EPA) rules on water quality standards and TMDLs, individual and general discharge permits, and state nonpoint source programs. We also have been engaged in litigation regarding the inadequate TMDL programs of Washington and Oregon, since 1991 and 1994 respectively, as well as citizens suits seeking enforcement of discharge permits. At the state level we have participated in a wide range of advisory committees in Oregon and Washington, including triennial reviews of water quality standards, state rules and policies for water quality management, and programs focused on data collection such as the Lower Columbia River Bi-State Water Quality Committee of which I was a Co-Chair. I was a member of EPA's Federal Advisory Committee on TMDLs\1\ and prepared extensive comments on EPA's proposed TMDL rule\2\.
\1\ Widespread litigation by citizens groups to enforce the mandatory provisions of the Clean Water Act's TMDL program led EPA to seek ways to strengthen this water quality clean-up program. CWA . 303(d), 33 U.S.C. . 1313(d). The agency has worked to improve technical support to States and has issued a number of policy memoranda. See, fig., Memorandum dated August 8, 1997 from Robert Perciasepe, Assistant Administrator [for Water], U.S. Environmental Protection Agency, to Regional Administrators and Regional Water Division Directors, New Policies for Establishing and Implementing Total Maximum Daily Loads. In 1996, EPA established a subcommittee of its National Advisory Council for Environmental Policy and Technology (NACEPT) to develop recommendations to strengthen the TMDL program. At the conclusion of nearly two years of weekly conference calls and six full committee meetings, the FACA Committee issued over 150 specific recommendations to EPA. U.S. Environmental Protection Agency, Report of the Federal Advisory Committee on the TMDL Program, EPA 100-R-98-006 (July 1998).
\2\ Letter to EPA Comment Clerk for the TMDL Program Rule Re: Proposed Revisions to the Water Quality Planning and Management Regulation, 40 C.F.R. Part 130, 64 Fed. Reg. 46012 (August 23, 1999), from Nina Bell, Northwest Environmental Advocates, dated January 20, 1999.
Introduction
The benefits to be derived from the Clean Water Act's water quality-based approach, and the TMDL program in particular, are clear: each pollution source must take responsibility for keeping its share of the cumulative impacts on the human, fish, and wildlife uses of a given waterbody to a "safe" level. That is what it means for a waterbody to meet water quality standards, which is the interim goal of the Act and the goal of every TMDL. This rule of law protects all waters, regardless of how big or small their flow, and therefore their capacity to dilute pollution. It applies regardless of how many other point and nonpoint sources discharge or generate polluted runoff to it. Key to meeting water quality standards in waters that have become impaired is the TMDL, a scientifically-based method of evaluating the cumulative impacts of multiple pollution sources in order to allocate responsibility to each source. The TMDL is simply a process by which the government, with public assistance, establishes how much pollution a waterbody can tolerate, determines what must be done to reduce pollution inputs so that level is not exceeded, and ensures to the extent possible that those responsible will carry out needed actions. As I will discuss below, the "extent possible" is limited by the nature of nonpoint source programs in place in each State, because the TMDL program itself does not create any new regulatory authority over otherwise non-federally regulated sources.
By marrying the inputs of point and nonpoint sources with natural contributions and changes in seasonal flows, the TMDL can integrate the legal requirements of the National Pollutant Discharge Elimination System (NPDES) program with the multiplicity of nonpoint source programs that exist. These programs range from voluntary to regulatory, from local to federal, from user-friendly to relatively useless, and vary widely between States.\3\ The end result of a TMDL should be a fair, measurable, scientifically-based plan for how to bring impaired water back to attainment of water quality standards - how to reduce pollution loads to safe levels. This goal is consistent with the interim goal Congress sought for polluted waters in 1972 and with the desires of the American public in the year 2000.
\3\ For example, Oregon has an agricultural management planning law, Senate Bill 1010, that mandates agricultural plans for waters requiring TMDLs. No other state has a comparable law. Likewise, while many Westem States have forest practices acts, many Southeastern States do not.
TMDLs play a critical role in the efficacy of the NPDES program. In the absence of TMDLs, States and EPA cannot properly establish the pollution controls necessary for either point or nonpoint sources, as I will discuss below. The control of nonpoint source polluted run-off itself is central to the regulation of point sources. In the absence of reliable nonpoint source control programs, measurable goals for reducing nonpoint source contributions to impaired waters, and commitments by nonpoint sources to significantly reduce pollution inputs to streams, States cannot properly establish discharge levels for point sources that meet legal requirements and are fair. Point Source Regulation
The development of effluent limitations for NPDES point sources over the last 25 plus years should have been based on the concurrent application of the two prongs of the Clean Water Act: the technology-based approach and the water quality-based approach. I have frequently heard a different interpretation, namely the view that when Congress passed the Act in 1972, it "essentially abandoned the water quality-based approach."\4\ That could not be farther from the truth. Instead, in its wisdom, Congress fashioned the two-pronged regulatory scheme, one to assure each point source would use a minimum of pollution prevention technology and the other to ensure the use of what ever additional pollution controls were necessary for the protection of public health and the environment. Rather than abandon the water quality-based approach, Congress embraced it in the 1972 Act and in subsequent amendments.\5\
\4\ EPA's failures to implement the water quality-based approach, including TMDLs, are not testimony to Congressional intent. As discussed below, one could make the exact same argument about the technology-based approach, based on EPA's failure to implement that aspect of the Act.
\5\ See, en., CWA Secs. 302, 303(d), 303(c), 402, 304(1)
The water quality-based approach of the Clean Water Act creates explicit restrictions for NPDES-permitted sources, restrictions that are tied to the quality of the water receiving the discharge. NPDES permits, which are first required to meet technology-based requirements, also must contain "any more stringent limitation, including those necessary to meet water quality standards * * * or required to implement any applicable water quality standard established pursuant to this chapter."\6\ Likewise, the Act requires that where a permitting authority determines that "discharges of a pollutant from a point source * * * would interfere with the attainment or maintenance of [applicable] water quality standards, * * * effluent limitations (including alternative effluent control strategies) for such point source * * * shall be established which can reasonably be expected to contribute to the attainment or maintenance of such water quality."\7\
\6\ CWA Sec. 301(b)(1)(C). The statute includes two distinct requirements: what is necessary to meet standards and what is required to implement standards. A TMDL is necessary to determine what is needed to implement standards, a more complicated and cumulative analysis.
\7\ CWA Sec. 302(a)
EPA's implementing regulations mirror these statutory restrictions. In general, the issuance of permits is prohibited "when the conditions of the permit do not provide for compliance with the applicable requirements of CWA, or regulations promulgated under CWA."\8\ This includes "[w]hen the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected states."\9\ The regulations spell out the implications for existing NPDES sources that are discharging into impaired streams. When NPDES permits are issued or reissued, EPA regulations require that the effluent limitations incorporated therein "include conditions meeting [w]ater quality standards and State requirements."\10\ Specifically, permits must contain "any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under [other sections of the CWA] necessary to: (1) Achieve water quality standards established under section 303 of the CWA, including State narrative criteria for water quality."\11\
\8\ 40 CFR Sec. 122.4(a).
\9\ 40 CFR Sec. 122.4(d).
\10\ 40 CFR Sec. 122.44(d).
\11\ 40 CFR Sec. 122.44(d)(1).
\12\ "Limitations must control all pollutants or pollutant parameters (either conventional, nonconventional or toxic pollutants) which the Director determines are or may be discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any State water quality standard, including State narrative criteria for water quality." 40 CFR Sec. 122.44(d)(1)(i).
\13\ 40 CFR Sec. 1 22.44(d)( 1 )(ii). In addition, EPA's regulations specifically address the issuance of permits for new sources or increased loads from existing sources that propose to discharge into impaired streams. These new loads are prohibited if they would "cause or contribute to the violation of water quality standards."\14\ In contrast to its own regulations which are soundly rooted in the statute, EPA has stated that new discharges can meet the terms of this restriction - in other words be deemed to meet water quality standards - if a so-called pseudo-TMDL, otherwise known as a wasteload allocation, has been developed.\15\
\14\ "[An applicant] proposing to discharge into a water segment which does not meet applicable water quality standards or is not expected to meet those standards even after the application ofthe effluent limitations required by sections 301(b)(1)(A) and 301(b)(1)(B) of CWA, and for which the State or interstate agency has performed a pollutants load allocation for the pollutant to be discharged, must demonstrate, before the close of the public comment period, that: (1) There are sufficient remaining pollutant load allocations to allow for the discharge; and (2) The existing dischargers into that segment are subject to compliance schedules designed to bring that segment into compliance with applicable water quality standards." 40 CFR . 122.4(i).
\15\ In practice, EPA and the States have almost entirely ignored the prohibition on the addition of new loads to already impaired waters, despite its statutory basis and that to ignore it makes clean-up of waters pursuant to a TMDL more difficult and expensive.
In fact, for both new and existing sources, EPA has long clung to the view that such wasteload allocations, developed outside the context of TMDLs, are a sufficient regulatory basis upon which to develop water quality-based effluent limits for NPDES permits.\16\ However, terming a wasteload allocation a "pseudo-TMDL" is extremely misleading. EPA's reference is to an evaluation of how an individual discharge will impact a waterbody, a far cry from the TMDL analysis that considers the cumulative impacts of multiple sources, including that individual discharge. EPA has repeatedly countered environmental advocates' complaints about the failure of NPDES permits to meet water quality-based requirements by noting that States have been developing wasteload allocations since 1972. Only very recently has the agency admitted that permit writers preparing these wasteload allocations "neglected" to factor upstream pollution into their models and calculations. In other words, EPA has now tacitly conceded that wasteload allocations to meet legal requirements cannot be developed without a TMDL for impaired waters.
\16\ EPA has even defended lawsuits alleging the agency's failure to meet its mandatory duty to promulgate TMDLs by stating that wasteload allocations are the equivalent of TMDLs. Presumably, with EPA's recent recognition that their calculations are deficient, it will no longer be asserting that claim.
Despite the clear legal requirements for issuing NPDES permits for discharges into impaired waters, EPA and the States have issued thousands of individual and general permits that do not meet these criteria and thus cause or contribute to water quality standards violations. The reason is that NPDES permit writers have failed to take into account the two fundamental ways in which a point source discharge can affect the water quality in a stream. First, the source can cause violations of water quality standards at or near the point of discharge simply by overwhelming a stream. The common way to evaluate this potential is a dilution analysis calculation. The results of modeling demonstrate how wide and long the plume of pollution will be after it leaves the discharge pipe and before it thoroughly mixes with the water in the stream. The phrase "mixing zone" is often applied to this analysis, referring to an area at and around the point of discharge in which EPA's regulations allow for the suspension of water quality standards. This permitted violation of water quality standards is further regulated by state rules, many if not most of which are exceedingly vague and therefore subject to abuse.\17\
\17\ State regulations can be as vague as the circular mandate to make the mixing zone "as small as practicable." Other States have restrictions on the width, depth, and/or length of the discharge plume relative to the dimensions of the waterbody, e.g., 50 percent of the stream width. Vague restrictions on mixing zones result in abuses such as a 1 3-mile long mixing zone in an Oregon stream, which required a citizens lawsuit to remedy. States often fail to consider the rationale for mixing zones, namely that the beneficial uses of a waterbody can avoid the plume of unsafe water. Thus, mixing zones that extend from bank to bank prevent fish passage and should not be allowed. Likewise, mixing zones for pollutants that threaten public health (e.g., human pathogens in raw sewage) should not be allowed because people do not have the ability to detect and avoid exposure to them.
Problems arise from EPA's having restricted its analysis of point source discharges on water quality to this dilution analysis, thereby ignoring the second way in which point sources affect water quality, namely in combination with the discharges of other point sources along with contributions from nonpoint sources and natural background. This cumulative analysis of multiple sources is the product of the TMDL, without which a water quality-based permit that meets federal requirements cannot be properly issued. In the absence of a TMDL, determining acceptable point sources loadings is a guessing game, albeit one that has gone on for over a quarter of a decade. Both the localized and the cumulative analyses must be done in order to determine the most restrictive effluent limitations required.
Seen another way, the dilution analysis has been treated as an academic exercise to analyze where a discharge will cause a violation of standards in a hypothetical unpolluted stream of a certain flow. Instead, permit writers should be analyzing the effects of a proposed or existing discharge on a real stream with all of its existing or projected impairments. The conclusion that a discharge hypothetically would dissipate if the stream were clean is the substitution of wishful thinking for accurate analysis and therefore is not an appropriate basis for issuance of an NPDES permit. Reliance on this fiction is exactly why so many permits, contrary to statute and regulations, do currently cause and/or contribute to violations of standards throughout the country. That means that TMDLs will result in changes to NPDES permits; it also means that the degree of reductions required for point sources will depend upon the level of pollution controls exercised by nonpoint sources.
What are these effects of TMDLs and nonpoint source controls on point sources? There are three general scenarios. First, there are impaired waters whose pollution is predominately from nonpoint sources, such that if all point source discharges were removed from the waterbody, nonpoint sources would continue to cause violations of water quality standards. A State could choose not to curtail the nonpoint sources, in which case point sources would continue to contribute to standards violations, remaining vulnerable to NPDES permit challenges and third party lawsuits. Over regulation of these point sources is costly and ultimately ineffective. Second, there are impaired waters where the pollution from point sources so predominate water quality that if the discharges were removed completely, the water would attain standards. In this situation, dramatic reductions in point source discharges are unavoidable. Third, point and nonpoint sources are both substantial contributors to impairment. Attainment of standards might or might not be able to be achieved by reducing discharges or removing point sources entirely, depending on the degree of impairment. However, by expecting point sources to bear the brunt of pollution controls, socioeconomic costs could potentially be much higher than requiring nonpoint sources to reduce their contribution. However, without a TMDL to quantify the expected reduction by nonpoint sources, States have no basis upon which to determine what level of point source reduction is appropriate. Moreover, not adequately addressing nonpoint sources in this context may well result in failure to achieve the desired environmental protection leading eventually to an increased and inequitable burden on the point sources. In all three scenarios, TMDLs represent a science-based approach to determine who should do what, subject to full public participation and scrutiny. This public process creates the greatest likelihood of achieving both equity and environmental protection.
Benefits of a TMDL Program
Simply put, the law that governs NPDES point sources makes no sense without the development of TMDLs. While the most absurd and inequitable scenario results in severe reductions in or elimination of point source discharges that fail to result in attainment of standards because nonpoint sources are not required to reduce loadings, other bad policy results may occur over the long term. For example, if the allocations in a TMDL are set based on nonpoint source controls that are not implemented because of insufficient incentives and/or pressure, years later point sources will be required to retrofit yet again, even if placing the burden on them makes little economic or environmental sense. In the interim, the benefits of clean water to the public and public resources have been forgone.
TMDLs should also provide a benefit to States that are attempting to regulate nonpoint sources or tailor their incentive programs to meet the needs of impaired waters. State regulatory agencies whose mandate in some States is to establish Best Management Practices (BMPs) that are sufficient to attain water quality standards need the site-specific analysis provided by TMDLs. In other states where there are no such mandates, the voluntary and incentive programs are operating in the dark. Insufficiently protective non-constructed solutions, such as buffers, are not cost effective for taxpayer supported incentive programs. Lack of a TMDL poses a particular problem to sources that must reduce pollution by building structures, such as waste lagoons for animal feeding operations. Likewise, commitments to using buffers - whether for urban streams or logging - should be based on long-term needs. It is far easier to leave a buffer in place than try to grow it back again and it is less damaging to water quality. For example, buffers on streams in the Pacific Northwest that are needed to restore stream temperatures for the protection of threatened and endangered salmon, will take decades to grow. Multiple retrofits are not good for business, whether point or nonpoint, or for the environment and public health.
The development of a TMDL also creates an environment in which all sources are working in the same time frame to achieve the same end. This is far preferable to having the permits for certain point sources come up for renewal, without a clear picture of what will happen with other point sources.\18\ In this way, point sources can have a sound technical basis for their effluent limits and understand the policy decisions that give them greater or less responsibility for cleaning up a waterbody relative to other point and nonpoint sources. Clean-up programs that rely on tax- and rate-payer support and public cooperation, such as urban stormwater, are more likely to be sustained and successful if all sources are working to achieve the same goal, and that goal is attainment, not just reductions.
\18\ An example of the benefits of looking simultaneously at all point sources contributing a pollutant is EPA's Columbia River Basin Dioxin TMDL. There, EPA made allocations to all bleached kraft pulp mills in the basin based on an equitable formula.
EPA's Proposed Rules
In my opinion, EPA's proposed rules attempt to a limited extent to address the fundamental inequity between point and nonpoint sources that arises from the highly federally regulated status of point sources in contrast with the Act's emphasis on State programs for nonpoint sources. The agency's proposal does not go beyond what the statute allows and create a federal nonpoint program, despite the various allegations made by nonpoint source representatives. Instead, EPA's proposed rules are consistent with the Clean Water Act, with much of the FACA recommendations,\19\ and with sound public policy. Although much of the rule merely memorializes EPA's current policies and guidance, the salient feature of the proposal is the incorporation of TMDL Implementation Plans in the definition of a TMDL. It is worth noting that, although the FACA Committee did not agree on the convention for Implementation Plans, it did agree unanimously to recommend that EPA require Implementation Plans, as key to a worthwhile TMDL program.\20\ The Committee also agreed unanimously on the content of Implementation Plans, submitting over four pages of detailed recommendations on what such a Plan should include.
\19\ EPA's rules are inconsistent with the FACA Committee recommendations only in that they fail to address issues upon which the Committee made recommendations (not all of which were amenable to rulemaking) and issues on which the Committee failed to come to agreement.
\20\ Although the Committee's report addresses a myriad of issues related to TMDLs, it has one overarching theme: if the nation is to embark on a serious effort to meet the requirements of section 303(d), it should ensure the program makes real progress towards meeting States' water quality standards. Thus, despite the majority representation by industry, land owner, municipal, and state governments, the Committee underscored the critical nature of implementing pollution controls, not just generating paperwork.
It was well understood then as now that TMDL Implementation Plans are necessary primarily to coordinate and align the multiplicity and diversity of nonpoint source programs. However, Implementation Plans will also help States to set out clearly when NPDES permits will be revised in order to incorporate new load restrictions determined by the TMDL and the timeframe in which load reductions will be obtained.\21\ For States that are suffering from a backlog of unrenewed permits, it is particularly necessary and appropriate that a TMDL Implementation Plan demonstrate to the public and to other pollution sources when NPDES permits will be revised and point sources meet their allocated loads. Nothing slows clean-up efforts programs more - especially those that are non-regulatory and/or require sustained efforts over long periods of time - than providing one or more pollution source with the opportunity to point to other sources that aren't doing their fair share. This can come in the form of downstream sources complaining that the benefits of their pollution reductions will be overridden by the unstemmed pollution coming from upstream, as well as upstream sources arguing that the benefits of their activities will be negated by the pollution produced by downstream sources.\22\ In addition, the TMDL Implementation Plans are the right place to begin the public discussion about permits that address storm-driven loads, such as those for urban stormwater and animal feeding operations, that incorporate many attributes of nonpoint source type controls such as Best Management Practices (BMPs) and post-BMP monitoring for adaptive management.
\21\ The public process for issuing NPDES permits addresses how loads are incorporated into effluent limits.
\22\ An example of this debate is demonstrated by tensions between agricultural interests upstream of the City of Portland in the Willamette River Basin and the City with its Combined Sewage Overflows (CSOs) and stormwater discharges. The City argues that removing its raw sewage discharges from the Willamette River will not make a substantial difference to the river's water quality because the river is already so polluted by the time it runs through Portland. Agricultural interests, on the other hand, argue that the City's interest in lessening its commitment to reducing raw sewage discharges means rural sources are expected to reduce pollution inputs while big city interests exercise their political clout
However, it is the wide array of voluntary, incentive-driven, quasi-regulatory, and regulatory programs that may be used to obtain or mandate nonpoint source controls that require an Implementation Plan. There are several reasons. First, although TMDLs will set clear loading goals for nonpoint sources, because the causality between control/restoration actions and water quality improvements is not well known, the clarity to nonpoint sources will be lost without an Implementation Plan. The Plan, in contrast to the TMDL, will spell out more easily understood expectations for nonpoint sources. Second, the Implementation Plan will include solutions to this lack of understanding, such as monitoring, setting out the process by which adaptive management techniques will employ monitoring results to improve controls if necessary, how and when enforcement actions will be taken pursuant to state or local programs, use of incentive programs, and the time frame in which nonpoint sources will be expected to take various actions. Last, the development of Implementation Plans will increase the certainty that needed nonpoint source controls will occur, thereby reducing the likelihood that the burden for pollution reductions will fall entirely on point sources.
Of course, the inclusion of an Implementation Plan does not make a TMDL directly enforceable by EPA, States, or third parties. An Implementation Plan does not mean that EPA has created a federal nonpoint source program. It simply means that there will be heightened scrutiny by all agencies and the public to the issue of whether nonpoint source reductions called for by the TMDL are sufficient, likely to occur, and equitable.
EPA's proposal to include Implementation Plans in the TMDL achieves the very important end of ensuring that TMDLs and TMDL Implementation Plans are both prepared and submitted to the public and EPA for review concurrently. Some argue that by decoupling the two, States could develop TMDLs faster than if they are slowed by the process of determining how the TMDLs will be implemented. While this is no doubt true, the real purpose of TMDLs is to achieve standards by sharing the load between sources. TMDLs without Implementation Plans will lead to greater burdens placed on point sources, both initially and in the future. Although the primary value of a TMDL with regard to point sources are the wasteload allocations that must be incorporated into NPDES permits, those allocations are highly dependent upon the load allocations made to nonpoint sources. Moreover, the long term value of those wasteload allocations will stem from the certainty that load reductions will be achieved by nonpoint sources. Therefore, by increasing the likelihood of nonpoint source load reductions, through concurrent submission of TMDLs and their Implementation Plans, EPA enhances the value that TMDLs offer point sources. This value Is an equitable sharing of the load and a greater degree of certainty for the future.
Concurrent submission of TMDLs and Implementation Plans is also important to the public and to a wide variety of reviewing agencies (such as State Departments of Agriculture and Forestry, the National Marine Fisheries and U.S. Fish and Wildlife Services, and local governments) in order to assure appropriate nonpoint source reductions will take place. I had the good fortune to review a draft TMDL prepared by EPA that, while not meeting the definitions of the proposed rules, included some level of implementation planning. This was the South Steens TMDL for grazing in Oregon.\23\ I learned firsthand about the benefits of evaluating a TMDL with an Implementation Plan, as well as evaluating an Implementation Plan with a TMDL in hand. If the two are not side-by-side, it will be virtually impossible for any party, including EPA, to determine that either one has been done appropriately. Both the public and EPA benefit from the closest possible connection between the scientific analysis of the TMDL and actions set out in Implementation Plans, providing better assurance to the public that its tax dollars funding the TMDL program will be productive. Without concurrent submission, it is virtually impossible to evaluate whether the TMDL's analysis and load allocations to nonpoint sources is correct and will be meaningful in the real world.
\23\ South Steens Water Quality Management Plan, dated June 22, 1998, and Total Maximum Daily Load, Public Notice Dated: July 10, 1998.
The reasons are obvious. If a TMDL is reviewed by EPA prior to the State's having analyzed the proposed solutions to implement load allocations to nonpoint sources, EPA will be forced to take approval/disapproval action without the benefit of that information. Likewise, members of the public, including point and nonpoint sources, cannot judge the fairness and economic impact of a TMDL's relative allocations without having in hand the practical ramifications for nonpoint sources that will be spelled out in the Implementation Plan.
The technical analysis for assessing the necessary levels of nonpoint source control actions is difficult and in its infancy. That makes difficult drawing a bright line between analysis of problems of the TMDL and proposals for solutions contained in the Implementation Plan. That is why Implementation Plans will include monitoring and measures that will be taken to respond to the results of monitoring, if existing and proposed controls for nonpoint sources do not prove to be sufficient. Implementation Plans will need to evaluate the efficacy of previous and current attempts to remedy identified problems to better understand what is needed. To address the universally recognized problem of determining what constitutes adequate controls for nonpoint sources, Implementation Plans should include three types of monitoring: I ) Implementation monitoring to evaluate whether actions are taking place; 2) Effectiveness monitoring to see if controls are meeting allocations; and 3) Validation monitoring to determine if TMDL goals have been met.
The point of tying TMDLs and Implementation Plans together is to ensure that the analysis of the TMDL is translated into the changes that are necessary to control sources. Analysis by itself does not lead to appropriate control actions. That is what we will get if we have TMDLs and no Implementation Plans. Control actions proposed without analysis is what we have already; politically-wrangled determinations of how much some land owner/user is willing to do regardless of whether it is sufficient. Neither one of these options is desirable if the TMDL program is to meet the goals of the Clean Water Act and be worth the significant taxpayer and private resources that will need to be invested. Neither option supports the needs of point sources.
Habitat Conservation Plans
In discussing the effectiveness of nonpoint source programs to achieve attainment of standards, many point to existing programs. One type of ostensible nonpoint source program is Habitat Conservation Plans (HCP) prepared pursuant to the Endangered Species Act. While there may well be some HCPs that could meet the requirements of a TMDL, for the most part HCPs do not perform the same function as a TMDL. The vast majority of HCPs do not fully address Clean Water Act issues, including whether and when they will lead to attainment of water quality standards. The FACA Committee specifically discussed the idea of "TMDL substitutes" and rejected the concept, noting that if HCPs or other nonpoint source programs constituted the equivalent of a TMDL they could be submitted as such to EPA. One particular limitation of HCPs is the "no surprises" policy that locks in maximum required controls for 50 or even 75 years. This alone renders HCPs absolutely incompatible with TMDLs and the Clean Water Act in general. Everybody knows that the initial controls for nonpoint sources will likely be insufficient and require adjustment. That is why nonpoint sources have talked for years about the need to use the "iterative approach" and "adaptive management." In contrast, HCPs do not require that nonpoint sources follow up insufficiently effective programs with increasingly stringent controls.
Data Issues
Another complaint is that there simply are not enough data to support the TMDL program. States are under pressure from citizens who are concerned that data deficiencies will lead to polluted waters not being listed and TMDLs that are not adequately protective, as well as industries that fear being "over regulated." There is no question but that there are insufficient data; the issue is what to do about it. The implication of some point and nonpoint sources appears to be that because the system is not perfect, EPA and the States should take no action to reduce pollution. However, in the face of water pollution problems that make people sick and bypass drinking water treatment facilities, that contribute to the imminent extinction of aquatic species, and that cause reproductive failure in birds and mammals, we cannot afford to take no action because we do not have sufficient data. Instead, we must collect more data and use the data we do have in a sensible, scientific manner. We must also keep in mind that no amount of scientific information will answer all questions to the satisfaction of all parties. The TMDL program rests on science to the extent possible, but counts on public policy to fill in the gaps. In 1972, Congress gave States and EPA direction on how to address the lack of knowledge: use a margin of safety.\24\ Many point sources understand that they can benefit from a reduced margin of safety and by choosing to collect data to assist States in developing TMDLs.
\24\ CWA Sec. 303(d)(1)(C)
States do not collect adequate data on pollutants and their effect on people, fish, and wildlife and monitoring budgets for all agencies have steadily decreased over the last ten years. The data States do collect are neither comprehensive in geographic scope nor in sufficient depth on individual waterbodies to develop TMDLs and to improve water quality standards. Many States have access to additional data but, despite federal requirements, choose to ignore other sources such as federal and state agencies, tribes, academic institutions, and private citizens.
Differences in the effort expended by States to seek out "all readily available" data and information from other sources is one reason that States have extremely inconsistent section 303(d)(1) listings.\25\ Differences between States naturally also reflect differences between their water quality standards and listing criteria (methodology). There are a number of regions where there are stark contrasts between States, including between Oregon and Washington, according to EPA's analysis that cannot be attributed solely to differences in standards.\26\ The new rule has some measures to improve consistency between States.
\25\"Percent Impaired Waters in 1998," a colored map prepared by EPA in 1999.
\26\ When Oregon prepared its 1994/96 section 303(d)(1) list, under the terms of a consent decree with us, the State actually visited the field of rices of agencies such as the U.S. Forest Service, thus obtaining data that would otherwise not have been made available. Washington, on the other hand, merely sends out a notice saying it will accept data. By taking this approach, Washington avoids using data that are readily available, thereby not listing streams that are impaired, not listing waters for all impairments for which data exist, and avoiding building relationships with other agencies that could support the TMDL program by better understanding their role with it.
EPA's current regulations address the issue of whether data are sufficient to determine standards violations by establishing a listing process that takes place every two years. This schedule allows citizens and government bodies to both identify previously unidentified impaired waters and to demonstrate that listed impaired waters are not impaired. In other words, it meets the needs of all interest groups. That is why the FACA Committee did not recommend a change to the frequency of the listing cycle.
There are also complaints about States' water quality standards that are applied to the data collected to generate section 303(d)(1) lists. Congress addressed the issue of whether state water quality standards are set correctly by requiring their review and revision every three years. This three-year cycle is an appropriate time period in which to address changes in scientific understanding of the effects of pollution and incorporate those changes in States' standards.
Technology-Based Point Source Regulation
In evaluating the TMDL program, EPA's proposed rules, and the regulation of point sources, the Committee should recall that EPA also has a long history of failing to implement the technology-based prong of the Clean Water Act. The technology-based approach is sheer pollution prevention, designed to meet the zero discharge goal of the Act by requiring the use of ever-improving clean-up technologies. The water quality-based approach, by requiring more pollution controls or prevention strategies than current technology-based requirements for streams with insufficient dilution capacity to accommodate all sources is technology-forcing. In this way, the water quality-based approach supports the technology-based approach, just the way that pollution control technology advances in other countries support meeting the zero discharge goal of the Clean Water Act. However, EPA has resisted full implementation of this approach, just as it has TMDLs. As a result, numerous lawsuits were filed by environmental organizations to force EPA to develop the technology-based approach\27\ as has been the case with TMDL program.\28\
\27\ NRDC v. Reilly, Civ No. 89-2980 (D.C.D.C.); EDF v. Thomas, Civ No. 85-0973 (D.C.D.C.); NRDC v. Thomas, Civ No. 79-3442 (D.C.D.C.).
\28\ NEDC v. Thomas, Civ No. 86-1578-BU
Solutions and Next Steps
The Committee has welcomed recommendations on solutions and next steps for EPA's TMDL rule. EPA should be encouraged to continue evaluating the many public comments it received and promulgate a final rule. There is no need for Congress to intervene. EPA has not overstepped its statutory authority. It has proposed rules that seek some modicum of consistency between State programs and some modicum of equity between point and nonpoint sources. EPA has demonstrated some interest in using the TMDL program to achieve attainment of water quality standards. Even so, in my opinion the proposal leaves a lot to be desired in all three of these areas. However, given the constraints of the statute and EPA's desire to give States substantial flexibility to design their own TMDL programs, the proposal represents a tolerable compromise. The need for the improved clarity in the TMDL program is very great, considering the ever increasing number of consent orders and consent decrees signed by federal courts mandating the timely development of TMDLs. Delay of TMDL development and/or delay of EPA's proposed rule also will have a negative effect on point sources, for which NPDES permits must continue to be issued. In sum, to delay promulgation of the rule is to create an inferior program in which the stark differences between the states remain accentuated and unresolved. It will also postpone the development of TMDLs that effect both equitable apportionment of responsibility and environmental protection.
Conclusion
We cannot restore our impaired and over polluted waters without maintaining current statutory and regulatory restrictions on point sources. However, in order to apply these restrictions meaningfully, we need to complement the point source restrictions with significant improvements in nonpoint source controls, and timely development of TMDLs to assess relative responsibilities for clean-up. To retain current restrictions on point sources without a viable TMDL program that encourages States to maximize nonpoint source controls is to saddle EPA and the States with a system that is broken at the outset. To retain NPDES restrictions without effective and adequate nonpoint source programs is inequitable, costly, and often will not meet environmental goals. Congress clearly chose to place responsibility for establishing nonpoint source programs in the hands of the States, to be supported by federal subsidy, data collection, and incentive programs, but it did not envision States doing nothing to control nonpoint sources. TMDLs are the mechanism by which States can allocate responsibilities between sources and act to clean up impaired waters.
The alternative is to completely abandon the water quality-based approach of the Clean Water Act in favor of solely pollution prevention. The predictable outcome will be a marked increase in human health problems, endangered species, shellfish bed closures, reproductive failures in birds and mammals, and loss of livelihood of commercial and recreational fishing interests. The Clean Water Act will no longer offer hope to the American people that rivers, lakes, streams, and estuaries ever will be safe for fishing and swimming, for fish and wildlife.
There is no doubt that EPA has postponed the TMDL program as long as it could. Propelled by citizens suits, it finally has acted to improve the program. Its actions are generally consistent with the recommendations of its FACA Committee, having applied its own judgment where the Committee reached no agreement or failed to address an issue. Given the restrictions of the Clean Water Act - namely that it does not create federal regulatory programs for nonpoint sources - EPA has done its best to fashion a program that will provide clean water through a fair means. The agency should be encouraged in this mission.
Thank you for providing me with the opportunity to testify before you today on the future of the Nation's water quality programs. I will be happy to answer any questions you may have.