In the 1972 Clean Water Act, Congress gave the States the lead role to develop and implement the water quality program. States support the Act's goal to restore and maintain the nation's water quality and we believe the establishment of total maximum daily loads (TMDLs) is one of many important mechanisms to be used to achieve cleaner water.
The States have been in a continuing dialogue with USEPA concerning the proposed regulation. As co-regulators, we met to address State issues and consider options for addressing those concerns. In addition, ASIWPCA has sponsored a series of State/EPA conference calls on the regulations and has been a co-sponsor with the Western Governors Association of a series of workshops. These forums have allowed significant discussion that, we are hopeful, will ultimately bear fruit. USEPA appears to be receptive to a number of State recommendations to modify and streamline the current proposal and build upon existing program authorities.
Because of constraints placed on USEPA in the rulemaking process, the Agency has not been able to make any commitments to the States. For this reason, Mr. Chairman, my comments will address the regulation as proposed.
States have invested significant staff resources in analyzing the proposed rule and have spent many hours in joint consideration of the anticipated impacts on our existing programs. What we see here is an effort by USEPA to move the water quality programs forward, which is of course laudable. We are concerned however, that the rule, as proposed, will have serious, if perhaps unintended, consequences on State programs. For details, we refer you to the attached written comments developed jointly by ASIWPCA, the Environmental Council of the States (ECOS) and the Coastal States Organization (CSO) which were shared with USEPA in the spirit of partnership as co-regulators.
States are mindful that the proposed wholesale modification to the TMDL regulation is being put forth in the context of existing statutory authorities and current funding levels. We caution that State program budgets and staffing levels are not sufficient to implement the current regulation. Those levels will not likely to grow to meet an ambitious waterbody restoration agenda merely because an arcane Federal regulation is changed.
Section 303(d)
The provisions of Section 303 (d)(1)(A) are fairly limited. States must:
1) identify waters that do not meet State water quality standards (WQS) after application of basic point source control requirements,
2) prioritize those waters and
3) determine the total waste load the water body is able to receive and still meet WQS (with a margin of safety).
USEPA has 30 days to take approval action on a State submittal. If USEPA disapproves a State list or TMDL, they have 30 days to finalize one.
Historical Perspective
The Clean Water Program is complex and, as the attached diagram illustrates, TMDLs were envisioned as one component of a broad Clean Water Act program.
Since 1972, States have allocated the limited funds available to address the ambitious Clean Water Act agenda. They established water quality standards, built and managed permitting and enforcement programs, financed municipal wastewater treatment facilities and developed nonpoint source (NPS) and watershed management programs. Since TMDLs were expensive and time consuming and the data and state-of the-art was limited -- other Clean Water Act and State authorities were generally more useful.
USEPA's priorities varied and did not, until recently, include TMDLs. Due to the failure of States and USEPA to achieve Section 303(d) there have been numerous court cases. States agree that TMDLs should be a meaningful and fundamental component of State water quality management programs. To bring this about, the Association believes that three fundamental challenges must be addressed:
1. The significant lack of funding and adequate initiatives to address nonpoint source and other water quality problems in the current program,
2. Major gaps in available data, research and monitoring, and
3. Insufficient attention to multi-media and multi-jurisdictional water problems.
Guiding Principles
In moving forward to improve the TMDL program, State water quality and environmental program managers emphasize:
1. The States' lead role in the nation's clean water program must be maintained.
2. TMDL requirements need be flexible and consistent with a) existing statutory authority, b) available resources and c) State water quality agency jurisdiction.
3. Existing initiatives should be used, wherever possible, to achieve objectives.
4. Expectations need to be clearly focused on desired environmental outcomes.
5. The iterative approach is crucial to success, particularly for nonpoint sources.
The magnitude of the task is formidable.
Assuming an even distribution and no additional TMDLs, one TMDL would need to be approved each workday for the next 15 years by each of the 10 USEPA Regional Offices to complete all of them. Assuming (optimistically) that an "80% savings" could be achieved (taking advantage of lessons learned, economies of scale, and delisting inappropriate waters), States would have to produce (and USEPA approve) one TMDL per week per USEPA region for the next 15 years. This does not consider the need to plan for implementation, conduct additional monitoring, or actually implement the TMDL. Unless additional funds are provided, State would have to divert resources from other worthwhile water quality activities to keep on schedule.
State experience demonstrates that cost estimates developed by USEPA are inadequate and incomplete (see attachments). USEPA states that TMDLs will cost $25,000 each. But, a mid-range is more likely to be $300,000 - $1,000,000, depending on complexity (in Long Island Sound, $20,000,000 has been spent thus far on a nutrient TMDL). Annual costs for a decent effort at the State level could be in the range of $670 Million - $1.2 Billion.
Concerns Regarding USEPA's Proposed Regulation
The Association has read a significant number of the comments submitted to USEPA on their proposal. Commenters share a common interest in the overall goal to improve water quality and further develop and implement TMDLs. But, they differ greatly regarding:
1) How much of a burden can legally and realistically be placed on Section 303(d) to carry out the Clean Water Act and
2) The appropriate role of Federal, State, and Local governments.
The primary State concerns are that:
-- The proposal broadly expands the Federal role in water quality management and permitting, which would seriously undermine USEPA's relationship with State government.
-- The role of Section 303(d) is greatly enlarged, beyond what the Act envisioned. It is not clear to the States, for example, that USEPA has statutory authority to:
1. Cover waters that are: a) impaired solely by nonpoint sources, b) are not violating WQS or c) have solutions underway using other authorities;
2. Require that implementation plans: a) be part of TMDLs and b) include explicit assurances that the plan will be fully implemented, fully funded, adequately monitored, and fully compliant with the WQS; and
3. Intervene in a State's TMDL development or administration of the delegated point source permit program (to permit NPS or issue expired permits).
-- The proposal is too prescriptive. States should be able to take alternative approaches that achieve the intended environmental outcome (functionally equivalency) particularly with regard to nonpoint and wet weather sources.
-- The proposal adds burdensome new layers to the existing program. The additional lists, implementation plans, reporting, etc., confuse an already complex situation and waste scarce resources.
-- The proposed regulations would significantly restrict State ability to take "adaptive management approaches" to TMDL development and implementation.
-- State water quality program officials cannot unilaterally develop TMDLs and implementation plans for problems that are beyond their jurisdiction. Impairments to interstate and international waters also present unique challenges.
-- USEPA does not acknowledge the significant funding increases needed.
Bottom Line
The likely outcome of USEPA's proposal (unless refinements are made) would be less environmental progress and more litigation and delay. While the proposal is premised on the need for a major significant shift away from the historic point source focus toward watershed-based restoration, they reflect a pervasive top-down approach. This is unworkable where NPS management is the primary challenge and locally led initiatives are essential.
NPSs need to be treated differently and with less analytical rigor than point sources. USEPA's proposal does not go far enough in recognizing that it is often impossible, given the data and resources available and the timeframes envisioned, to precisely quantify pollutant loadings from NPS runoff or to predict with certainty specific load reductions that will result from a given management practice. Achieving WQS requires an iterative process in which management practices are applied in watersheds, progress is made and evaluated, programs are adjusted and necessary additional funding is secured.
It is not fair or realistic to expect that States could successfully implement a program that is beyond the plain reading of the Clean Water Act. States should not be used as surrogates to impose requirements that USEPA would have no authority to apply. Unless the broad array of stakeholders are willing to support the approach, partnerships States have worked very hard to achieve in the NPS arena will start to unravel and momentum will be lost.
Unintended consequences are also a concern. USEPA's proposal imposes significant barriers to environmentally beneficial projects and community revitalization as well as encourages urban sprawl -- since new or significantly expanding sources could not locate in impaired watersheds. States would be required to make decisions based on information that they cannot scientifically or legally defend. RCRA and Superfund program experience indicates that once a water body is on a 303(d) list, a stigma attaches that makes it difficult to cooperatively solve problems. There are too many unanswered questions:
-- What is USEPA prepared to do to assure they have the resources to administer the approach proposed?
-- What sort of TMDL is approvable; will an approved 319, estuary or coastal zone management, habitat conservation or species recovery plan be acceptable?
-- How can States control transboundary air deposition; what is USEPA willing to do under the Clean Air Act? Can a TMDL be approvable for abandoned mine drainage, when there is inadequate and unpredictable funding? What are Federal agencies willing to do for re-mining of abandoned mine lands?
-- How will USEPA streamline its process to meet the deadlines? How will the 135 day Section 7 consultation under the Endangered Species Act be reconciled with a USEPA 30 day deadline to act on lists and TMDLs? What happens if USEPA does not act within their deadline?
-- Will USEPA decisions be held to the same high standards as States? What will USEPA do if a State cannot provide reasonable assurance re: funding?
-- Will affected Federal Agencies commit to complete their implementation plan responsibilities by the scheduled deadlines? What if they do not?
-- How will TMDLs on interstate and regional waters be addressed? What happens when TMDL development cannot be synchronized with related activities (revision/consistency of WQS, USEPA nutrient criteria development, etc.)?
-- What happens if a State's best efforts cannot bring a stream into compliance?
State Recommendations to Improve USEPA's Proposed TMDL Regulations:
The plain reading of the statute leads the Association to conclude that:
TMDLs should be limited to a credible technical analysis which identifies the maximum allowable pollutant load (or other conditions) necessary to attain WQS for the pollutant(s) of concern.
Section 303(d) should apply only to impaired waters where TMDLs can make a meaningful contribution to solving the problem.
Resources: Funding for Section 106 (State water quality management) and Section 319 (nonpoint source control) must triple -- with increases targeted to impaired waters. Major increases are also needed in the U.S. Department of Agriculture programs to provide needed technical assistance and support conservation practices in impaired watersheds.
Monitoring, Listing and Delisting:
-- List Cycle: USEPA should establish a five-year listing cycle and provide at least 2 years lead time after promulgation before the next list must meet new requirements.
-- Methodology and Use of Data: States (not USEPA) should to determine what data are credible and appropriate for use in the listing process. Decisions must be based on credible and appropriate data (not anecdotal evidence or evaluated data) that indicate exceedance of State WQS. The mere presence of a listed species under the Endangered Species Act or exceedance of a maximum contaminant level (MCL) threshold under the Safe Drinking Water Act is inadequate.
-- Delisting: States should be able to delist waterbodies using the same procedures and methodologies that apply to listings at any time when sufficient new data is available that indicates WQS are attained or a TMDL is approved by USEPA.
Scheduling and Priorities: USEPA should not mandate priorities or schedules. States should have discretion to set them, in consultation with the public, based on all relevant considerations. They should be able to adjust schedules beyond the 15-year deadline for good cause.
Implementation/Reasonable Assurance: States should be able to reference and if necessary update water quality management plans at the same time or following submission of a TMDL -- implementation plans should not be a required TMDL element. For NPS, States should be able to implement a variety of controls as expeditiously as possible, as described in their upgraded NPS management programs or other recognized mechanisms (existing water resource management programs such as. estuary plans, 6217 programs, forest management plans, Federal land management plans and other effective programs in the States).
Public Involvement: The proposal needs to recognize the enormous effort, time and resources required throughout the process to achieve meaningful consultation and involvement. The public petition process proposed undermines that effort. Petitioners should be required to demonstrate to USEPA that they have exhausted their administrative remedies at the State level.
usepa Action: It is the States' responsibility, in the first instance according to the Clean Water Act, to develop and propose TMDLs. USEPA has no authority to do so (absent their disapproval of a State's TMDL). USEPA should describe its methodology and approval process and use the State listing methodology when taking action. If USEPA does not act in 30 days, a State submittal should be deemed approved.
Changes to the npdes Permit and Water Quality Standards Programs:
-- USEPA Actions in Delegated States: Problems with State permit programs should be addressed under NPDES delegation agreements and current regulations. USEPA has no authority under the Act to issue an expired permit or to permit NPSs. Based on USEPA's track record, it does not seem realistic to assume that their proposal would ever work.
-- Interim Period Before TMDL Development and Approval/Offsets: States should develop site-specific and/or watershed approaches that are consistent with current anti-degradation regulations and continued progress toward water quality goals. USEPA should delete the proposed offset provision.
-- General Permits: Alternative sets of requirements should be allowable, depending on whether the discharge would be to a waterbody that is meeting WQS or impaired, with the goal of no-net increase in impaired waters. The TMDL program should not make the general permit process as resource intensive as issuing individual permits.
Summary: The Association, in conjunction with the Environmental Council of the States and the Coastal States Organization, has commented to USEPA that existing statutory authorities do not provide for the level and kind of requirements outlined in the proposed regulation. This is particularly true for the nonpoint sources of pollution. We have serious concerns that the proposed regulation inherently limits the policymaking discretion of the States.
We are convinced that this proposal is a significant rulemaking under Unfunded Mandates Reform Act which requires USEPA to hold the cost to States of new mandates as low as possible and to seek funds from Congress in the next fiscal year to offset those costs. It is also subject to the President's Executive Order 13132, issued in August 1999 which states: "Where there are significant uncertainties as to whether national action is authorized or appropriate, agencies shall consult with appropriate State and local officials to determine whether Federal objectives can be attained by other means."
Congress has a critically important role in clarifying its intent and in contributing to the creation of an appropriate framework under which we all may proceed. We asked that the Committee support State efforts to identify and further explore with the USEPA, other means to attain our collective water quality objectives, as envisioned in the above referenced authorities.
Congress will also have a significant role in determining the amount and kind of funding resources to be made available to the States, to local governments and to the USEPA and USDA for implementation of the overall TMDL program. We would like to enter into discussions with you and with the appropriating committees to secure the funds necessary to create, develop and implement a successful TMDL program.
The States would also like to enter into discussions with the Congress and the USEPA relative to the reauthorization of the Clean Water Act. Because several of the issues addressed in the proposed rule can be considered as statutory in nature, we ask that the Congress be a leader in future dialogues relating to Clean Water Act authorities and any necessary amendments to achieve our overall water quality goals.
Mr. Chairman, we thank you for the opportunity to present the perspectives and recommendations of the State Environmental, Water Quality and Coastal program officials. We appreciate the leadership role the Committee is demonstrating on TMDLS and the work of your staffs to assure that Congressional intent and interests are being incorporated into USEPA's rulemaking. We look forward to having the opportunity to continue to work together toward the achievement of cleaner water for all Americans.
Attachments: Comments on the USEPA proposed regulations
(Joint letter by the ASIWPCA/ECOS/CSO)
Fact Sheet: State TMDL Resource Needs
Summary USEPA Cost Estimates
Excerpts of State Comments
ASIWPCA CONTACT: ROBBI SAVAGE, EXECUTIVE DIRECTOR
750 FIRST ST. NE SUITE 1010
WASHINGTON, DC 20002
202-898-0917 r.savage@asiwpca.org
Association of State and Interstate
Water Pollution Control Administrators
Testimony on
Total Maximum Daily Loads:
Proposed Changes in USEPA Regulations
Before the
Senate Subcommittee on Fisheries, Wildlife and Water
March 1, 2000
Attachments: Comments on the USEPA proposed regulations
(Joint letter by the ASIWPCA/ECOS/CSO)
Fact Sheet: State TMDL Resource Needs
Summary USEPA Cost Estimates
Excerpts of State Comments