Mr. Chairman, Senator Reid, and members of the Subcommittee, my name is Norm LeBlanc. I am Chairman of the Water Quality Committee of the Association of Metropolitan Sewerage Agencies (AMSA). I also have served on the front lines of the campaign to clean up our nation's waters for nearly 30 years, the last 20 years managing the environmental and Clean Water Act permitting and compliance programs for the Hampton Roads Sanitation District in Southeastern Virginia.
I greatly appreciate the opportunity to share with you today the experiences of the wastewater treatment community with regard to the Clean Water Act and, more specifically, the Total Maximum Daily Load (TMDL) program. AMSA represents the interests of more than 240 publicly-owned treatment works (POTWs). AMSA's members treat 18 billion gallons of wastewater every day and provide service to the majority of the United States' sewered population. In addition to their primary responsibility for treating the Nation's domestic and industrial wastewater, member agencies play a major role in their local communities, often leading watershed management efforts, promoting industrial/household pollution prevention and water conservation, as well as developing urban stormwater management programs.
AMSA's members hold National Pollutant Discharge Elimination System (NPDES) point source discharge permits under the Clean Water Act. Many of AMSA's members throughout the country are located on water bodies that have been listed as "water quality limited segments" under Section 303(d) of the Clean Water Act. As major point source dischargers, AMSA members have been active participants in EPA's process to develop and implement the TMDL program. An AMSA member served on EPA's Federal Advisory Committee on TMDLs. In fact, this issue is so important to us, that AMSA is now an intervenor/defendant in an important TMDL court case in California Pronsolino v. Marcus.
AMSA supports a revised TMDL program that would encompass both point and nonpoint sources of impairments to our country's water bodies. We also support requirements for implementation plans and for an open public participation process, as they are essential components of a successful TMDL program.
During the past 30 years, point sources of water pollution wastewater treatment plants, industry, and others have been meeting the challenges of the Clean Water Act to achieve our national clean water goals. The investment in wastewater treatment has revived our rivers and streams, and the nation has experienced a dramatic resurgence in water quality. Point sources are strictly controlled by the Clean Water Act. Discharges without permits are punishable by fines or imprisonment, and wastewater quality is continually monitored and reported to state and federal regulators. A combination of tough laws and regulations along with federal, state and local dollars has resulted in the water quality gains of the past 30 years. However, according to the U.S. Environmental Protection Agency (EPA) 40 percent of our waters still do not meet water quality standards due largely to nonpoint sources of pollution.
While point sources of water pollution are easily identified and highly regulated facilities, nonpoint sources are subject to only limited accountability and controls. Agriculture, according to EPA, is responsible for degrading 70 percent of the country's impaired river miles and half the impaired lake acreage. Nonpoint source pollution closes beaches, contaminates or kills fish, destroys wildlife habitat and pollutes drinking water. The current systems to control nonpoint sources include a wide variety of state and federal regulations that are largely incentive-based, voluntary programs. For the environment and the economy, we must stop the flow of nonpoint source pollution into our nation's rivers and streams by making these sources accountable for their fair share of pollution.
As veterans in the water pollution field, we are sympathetic to gaps in our economic and scientific data, lack of funding and the absence of a consistent, comprehensive mechanism for monitoring and regulating those responsible for nonpoint source pollution. However, point sources in Virginia, or Idaho or New Hampshire and around the country can no longer carry the burden alone. POTWs must be joined by others in their communities the farmers and ranchers, foresters and miners in a renewed commitment to clean up impaired waterbodies. This effort to achieve water quality goals must include fair share allocation of pollution reduction and enforceable regulations. Let me reiterate, AMSA recognizes the concerns of the nonpoint source community with respect to implementing TMDLs and we fully support the need for flexible, cost-effective and reliable management practices. We also know additional data is needed, as is increased funding to support these watershed efforts. However, true water quality gains can only be realized if nonpoint sources are held accountable for their share of water pollution. Remember that the pollutant load from each nonpoint source that is not controlled must be reallocated to every other source within the watershed.
The inclusion of nonpoint sources of pollution is even more critical considering the amount of money local governments continue to expend in order to meet tough new Clean Water Act requirements. In addition to specifying treatment requirements for domestic, commercial and industrial wastewater, the Act requires cities, towns and counties to reduce the impact of wet weather storm flows and to bring impaired waters into compliance with state and federal water quality standards. As POTWs endeavor to finance and meet the latest water quality goals aimed at reducing impairments caused by combined sewer overflows, sanitary sewer overflows and storm water events, they also face the enormous costs associated with maintaining our current wastewater infrastructure.
Although it is hoped that responsibility for attaining water quality standards and requisite pollutant loads will be equitably allocated among point and nonpoint sources of pollutants, POTWs are concerned that a revised TMDL program's additional restrictions on point source discharges are likely to be the most heavily weighted part of the TMDL equation. Failure of a waterbody to meet water quality standards, for any reason, will inhibit the ability of municipal or industrial point sources to expand and grow. If States ultimately are not authorized to develop TMDLs that require load reductions from nonpoint sources, EPA and the states will be forced to rely exclusively upon point sources to secure the pollutant load reductions necessary to meet water quality standards. Such load reductions would be achieved through the imposition of stricter effluent limitations on NPDES permit holders, including POTWs. Cities, towns, counties, and AMSA members would then be forced to find and spend enormous sums of money on additional controls that will not, in many cases, attain water quality standards.
POSITIVE ASPECTS OF EPA'S PROPOSED TMDL RULE
AMSA has identified some positive aspects of the TMDL proposal that should be retained in the final rule. These provisions include the imposition of equitable controls on both point and nonpoint sources, the requirement to include implementation plans as part of a TMDL, and the requirement for States to develop methodologies for listing and priority ranking.
The proposed TMDL rule makes it clear that the control and reduction of loadings from nonpoint sources is a critical component of the TMDL program. Specifically, AMSA recommends that proportionate share responsibilities be adopted in the allocation of pollutant loading reductions. AMSA also recommends that the TMDLs for blended waters (those waterbodies impaired by both point and nonpoint sources) make clear that compliance schedules for both point and nonpoint sources are implemented in parallel.
AMSA supports EPA's proposed requirement that States publicly develop a methodology for evaluating all existing and readily available data and information in the listing and priority ranking process. Dischargers have often questioned the reasons for listing waterbodies and the proposal will allow local stakeholders, who typically are in a good position to provide data and input into the process, to assist in the proper application of data and scientifically valid methodologies.
AMSA also supports requiring implementation plans for TMDLs. However, we believe that States should first be required to review and assess the attainability of the water quality standards for an impaired waterbody prior to developing a TMDL. Once TMDLs are established, implementation plans are critical if the TMDLs are to accomplish their objectives. Without such plans, TMDLs become mere exercises in mathematical modeling, ending up as part of the water quality planning process, and never reaching the administration and enforcement stage. If States fail to implement the plans, EPA should have the authority to enforce TMDL implementation plans on all sources.
It is also critical that sufficient data of appropriate quality and coverage be available as a basis for TMDL listing and development. Considering the implications, it is imperative that TMDLs be developed in a rigorous and scientifically sound manner. The proposed regulations do not specify minimum standards for the quality and quantity of data that is necessary to list waters or establish TMDLs, wasteload allocations (WLAs) and load allocations (LAs). We believe EPA should require that data used in the TMDL process meet certain standards. Neither EPA's current nor proposed regulations and guidance specify minimum data quality or quantity requirements for listing waterbodies as impaired or for establishing TMDLs. Currently, this lack of guidance has led to the listing of many impaired waters based upon outdated and limited data (e.g., one data point) or very poorly developed TMDLs. Minimum data requirements for the listing of impaired waterbodies and the development of TMDLs must be established.
AMSA fully supports all of the Proposed Regulation's public participation provisions, found at 130.37. The public participation provisions will open up the TMDL process to the benefit of all of the stakeholders. It will allow the public and dischargers to understand the details of how the TMDL was developed.
CONCERNS WITH EPA'S TMDL PROPOSAL
While supportive of some of EPA's proposed changes, AMSA does have major concerns with the overly broad approach EPA has chosen for listing criteria and the expansion of authority in the permit issuance process. AMSA believes EPA's proposal inappropriately expands its authority to require listing of waters under 303(d) for conditions such as: exceedences of drinking water Maximum Contaminant Levels (MCLs), threatened waters, fish advisories, antidegradation, and pollution. Listings should be limited to impairments caused by pollutants from either point or nonpoint source water discharges that are controllable under the Clean Water Act, and should recognize that a "comprehensive accounting of all water bodies" should be accomplished under 305(b) rather than 303(d) in accordance with Congressional intent. Listings must also be based on properly promulgated water quality standards with appropriate public review and comment.
We believe EPA also has expanded its statutory authority in requiring the listing of all waters impaired by either pollutants or "pollution." The TMDL language of the Clean Water Act at 303(d)(1)(A) does not authorize the listing of water bodies impaired by "pollution." Listings are authorized where effluent limitations are insufficient to achieve water quality standards. Listings should be limited to impairments caused by pollutants from point and/or nonpoint source water discharges that are controllable under the Clean Water Act.
The "comprehensive accounting of all water bodies" should be accomplished under 305(b) rather than 303(d). Section 303(d) is only one narrow tool in a much broader toolbox of remedies and/or solutions to water quality problems. The Clean Water Act intended for 305(b) to be the repository for all State water quality information. It not only requires the States to provide water quality information about all its waters but also requires them to view water quality problems from a broader, more holistic approach. It was Congress' intent that 305(b) serve as the comprehensive accounting of all water bodies that have water quality problems.
AMSA also has major concerns with the proposed changes to the NPDES Program and Antidegradation Policy. Dischargers wishing to increase loadings to TMDL listed segments should not be bound to a 1.5 to 1 offset as proposed in 131.12. The "reasonable further progress" concept helps to improve the waterbody pending TMDL completion; the offset requirement conflicts with that goal. Reasonable further progress should be encouraged and should remain as flexible as possible. Further, the decision as to what constitutes "reasonable further progress" should be determined by the states. States should have the flexibility to decide what action to take; if there is little impact from the increased discharge on the waterbody, studies or additional monitoring may be appropriate. The offset provisions in the proposed rule also could cause special problems in suburban areas where growth pressure is the greatest. Small package treatment plants could proliferate. These small systems would be exempt and could create new and unanticipated water quality problems.
When assessing restrictions on new discharges, the regulations should recognize that additional loadings from a point source may or may not affect the impairment of uses due to the relatively low contribution from the point source. Therefore, any offset provision must be pollutant and site-specific. Furthermore, restricting offsets to only "large" POTWs or industries is arbitrary and not related to water quality. EPA should consider any increase less than 20 percent over current ambient levels to be imperceptible both analytically (within precision of methods) and environmentally; the size of the facility is irrelevant to the environment.
Existing permit limits should remain in place until a properly developed TMDL is completed and approved. Unfortunately, POTWs are facing revised permit limits as soon as the waters are placed on the 303(d) list even before the TMDL process has begun. Limits should not be revised until the TMDL is finished and the final allocation is made. Municipalities and POTW operators must have a defined, long-range plan for improvements at the treatment plant. If permit conditions are changed during permit renewal prior to the completion of the TMDL, resources will be wasted. This is due to the possible need to begin construction first for the renewed permit and then again at the completion of the TMDL. The two construction projects that typically last for a few years each may not complement each other but may actually require the removal and installation of different equipment. It is essential that POTW operators have definitive long-term plans that they can act on efficiently.
AMSA also is concerned over the lack of flexibility in implementing control measures in the proposed rules. EPA has emphasized, to the exclusion of all other mechanisms, the requirement that all control measures be implemented as NPDES permit limits. This exclusive reliance on permit limits fails to recognize that there may be more effective and less costly alternatives for implementing TMDL requirements for both point and nonpoint sources. While we concur that EPA needs the authority to impose permit limits on sources that fail to cooperate in the TMDL process, the imposition of limits should be considered the least favored option and one of last resort.
Finally, AMSA believes that all costs of the proposed rule to the federal government, to state and tribal governments, to local governments, and to point and nonpoint dischargers must be calculated by EPA. EPA's estimate of the incremental annual cost of both the TMDL and permitting regulations of $90 million ignores the costs to develop TMDLs, which could be upwards of $4 billion (40,000 TMDLs nationwide at a conservative $100,000 each). It also ignores the costs of additional controls on point and nonpoint sources. In some instances, costs may be unquantifiably high. It is essential that the Congress and the American people have an accurate accounting of the costs of the TMDL program.
VIRGINIA'S EXPERIENCE
Hampton Roads Sanitation District in Southeastern Virginia is an active partner in the Chesapeake Bay Program. This program is an excellent example of a cooperative, non-regulatory program that is successfully addressing water quality issues in a large, diverse, interstate watershed. The process has served as a model for determining the causes of water quality impairments and for providing forums on addressing those impairments. The non-regulatory approach of the Bay Program has resulted in a flexible process that allows for new scientific findings to be incorporated into management decisions. In addition, HRSD has been free to explore non-regulatory control strategies. These strategies cost less and can be implemented much sooner than if controls were implemented as NPDES permit limits.
Unfortunately, the EPA 303(d) listing of the Chesapeake Bay for TMDL development is threatening the progress that we have made to date. Some participating sources are now questioning the wisdom of signing agreements with the States to build new infrastructure under the current non-regulatory Chesapeake Bay Program. These sources question whether the expenditure of their resources now will satisfy a TMDL in the years to come. EPA must include in their revised TMDL rule a mechanism for recognizing existing, successful programs like the one that is restoring the waters of the Chesapeake Bay. If the current Program is not allowed under a new TMDL rule, it will delay the implementation of timely, cost-effective controls and could lead to delays in enforceable NPDES permit limits as sources may challenge the basis for the permit requirements.
I want to emphasize that EPA should have the ability to impose NPDES permit requirements on all contributors to water quality impairment, both point and nonpoint sources. The Bay's non-regulatory program works because there exists a firm understanding that all responsible parties must participate in controlling their fair share of pollutants in the Bay. The success of this effort is due, in part, to public education. However, a large part is dependent upon the regulatory backdrop against which the program operates. Currently, point sources that do not participate in the Chesapeake Bay program, who do not sign agreements or implement controls, are subject to the more costly and cumbersome NPDES permit limits. Similar requirements must be applicable to nonpoint sources as well, if the waters of the Bay are to be restored to their beneficial uses. The Chesapeake Bay cannot be restored unless all sources of pollutant loadings participate in a program. The backdrop of NPDES requirements ensures maximum cooperation from all parties.
WATER QUALITY IN THE 21ST CENTURY
EPA's TMDL proposal marks a significant change in emphasis for the national water program and accelerates an ongoing trend from technology to water quality-based approaches to water quality management.
With this shift in program emphasis to water quality-based controls, one critical aspect of the EPA proposal that is notably missing is a clear linkage between the TMDL rule revisions and water quality standards use reviews and revisions. In July 1998, EPA released its Advanced Notice of Proposed Rulemaking (ANPRM) on the Water Quality Standards (WQS) Regulation and solicited comment on the need for regulatory or policy changes to the water quality standards program. One of AMSA's main comments in response to that proposal was that many current water body uses were originally, and still are, inappropriately designated due to a lack of or deficient "attainability" assessments.
The entire focus of the TMDL program is to achieve a specified designated use by achieving the water quality standards necessary for that use to exist. Many uses, and criteria to protect the uses, were established in the1960s and early 1970s without much scientific analysis, with little or no policy debate and, certainly, without the regulatory consequences that exist today. They were, in essence, "wish lists." Now that those wish lists have become a reality, officials are finding out that, in many cases, the designated uses of individual water bodies don't make any sense. Before we spend billions of dollars and millions of hours nationwide on TMDLs we need to ensure that our water quality goals our designated uses are both achievable and sensible from an economic, scientific and political point of view. Further, we need to review our water quality criteria and determine their appropriateness for the designated waterbody. That is why we strongly urge EPA to revisit the water quality standards before we embark on a nationwide TMDL effort.
Unfortunately, under the current and proposed TMDL rules, EPA has made it virtually impossible to re-designate the use of a water body. The agency has set an extremely high burden that must be reached before a standard can be changed. Again, this simply makes no sense. AMSA, therefore, urges common sense - that the TMDL program start at the beginning with an unbiased, scientific look at what is achievable in order to understand the costs and benefits of reaching specific water quality goals. EPA has indicated that it will be releasing proposed changes to the water quality standards regulation in September 2000. However, EPA has also indicated that designated use reviews and modifications will not be included in these regulation changes. AMSA has proposed to EPA that final promulgation of the TMDL regulations move forward only when revisions to the WQS program, which include an emphasis on reviewing and refining designated uses, are completed.
CONCLUSION
As we look ahead to future revisions in the water quality standards programs, our focus must shift to a more comprehensive approach to clean water goals. Addressing the control of costly, more complex and diverse sources of pollution will require both creativity and flexibility. Many of those involved in water policy issues believe that continued water quality improvements can only be met by changing the way water programs are managed. Comprehensive watershed management has been identified as the most cost-effective, environmentally sound approach to address the remaining sources of water quality impairment without breaking the bank. Its consistent national application will allow stakeholders to work together to tailor solutions to the problems at each site. Simply put, watershed management targets resources to the highest priorities.
In conclusion, AMSA's member wastewater treatment agencies have consistently and persistently worked to achieve full compliance with the goals of the Clean Water Act. We have learned from experience that the only way to continue to improve water quality is to address the needs of the watershed as a whole, make all sources of pollution accountable for their loadings, and to fully fund the activities necessary to achieve our latest clean water goals.
As a further resource on POTWs and TMDLs, I invite you to contact AMSA's Washington office to get a copy of AMSA's TMDL "survival guide" for wastewater agencies, entitled: Evaluating TMDLs...Protecting the Rights of POTWs. On behalf of my municipal wastewater treatment colleagues, I thank you for the opportunity to speak before this Subcommittee.