In January of this year, Maine's Commissioner of Environmental Protection and I submitted joint comments on EPA's proposed TMDL/NPDES rules. At the same time State Forester Thomas Doak submitted comments, as did Maine's Department of Agriculture. Our concerns were substantial:
-- Resources to implement EPA's proposal are inadequate. TMDL development and implementation as proposed, within the given timetable, would require at least a doubling of state resources. We consider EPA's own oversight capability of this process inadequate.
Inclusion of "threatened" waters is unnecessary and burdensome, especially in light of the public review process that EPA proposed. The definition EPA provides leaves open virtually any water body, and the adjacent landowners, to entanglement in this complex and potentially costly process, in a divisive and potentially litigious public forum.
The proposal will not advance us any faster toward achievement of clean water goals. Application of TMDLs and NPDES permits to nonpoint sources such as forestry would be highly impractical, costly, and burdensome to private landowners, businesses, and the state agencies. No new, on-the-ground measures for achieving better protection of waters from pollution are proposed. Resources for this regulatory program would be better spent on improving technical assistance and education.
EPA's new authority under the proposal would be too broad and inflexible. At the same time, protocols for the exercise of that authority are vague. As an example, applying NPDES permits to silviculture is left to the states, but with oversight unpredictably exercised by EPA.
Forests typically provide the cleanest water of all land uses. Increased regulations, or even the perception of such an increase, act as a disincentive to manage land as forest, and as an incentive to convert land to other uses with higher water quality impacts.
EPA received tens of thousands of comments on its proposal. In the months since the end of the comment period in January, EPA has somewhat confusingly restated its position.
In "Achieving Cleaner Waters", released in March, EPA acknowledged that forests are essential to maintaining clean water for wildlife and for human use in many parts of the country. However, EPA provided no further insight into how costly TMDLs and the threat of NPDES permits would enhance state efforts to apply a combination of voluntary and regulatory approaches to the forestry water quality problems that do occur. Instead, EPA lamely justified its sweeping change in how forestry is addressed as "backstopping the states".
EPA Assistant Administrator Charles Fox's April letter to the Transportation Committee included a list of "Key Elements of the Expected Final Regulation." The letter indicates some new resources available for TMDL implementation and for voluntary and incentive-based polluted run-off programs. The "Key Elements" included more time for polluted waters lists and TMDL development, and appeared to reaffirm EPA's commitment to voluntary approaches with respect to nonpoint pollution sources. In fact, EPA dropped major components of their original proposal, including threatened waters, offsets for new pollution, the public petition process, and the potential for federal permits to be applied to forestry operations. However, the letter supplied few details about how the remaining program would address nonpoint sources, and pointedly made reference to a federal lawsuit in California which in EPA's words affirms "the statutory basis for including these sources in the TMDL process". In that case the court did not rule on the manner in which California implemented EPA's TMDL, however. In effect, implementation of TMDLs for nonpoint sources remains a black box lacking substantive guidance by EPA, testing by the states, or interpretation by the courts. Indeed, the court suggested that the plaintiffs could seek redress by appealing California's restrictions, while simultaneously acknowledging that easing or failing to implement restrictions might lead to loss of funding to California from EPA.
Earlier this week EPA and USDA issued a joint statement which reiterated some of the same modifications to the original EPA proposal, including threatened waters, offsets, and timelines for development of TMDLs. Removing the public petition component, as articulated in April, is not mentioned in this most recent document. In addition, under the joint proposal, no NPDES permits for forestry would be required, but only for five years. Thereafter, forestry would be exempt from NPDES permits, but only if states were implementing a forestry Best Management Practices Program approved by EPA. So-called "guidance" for such state programs would be developed by EPA within the same time frame. The letter also references increases in conservation funding, but identifies no new resources for developing and implementing BMP programs. This proposal, in our view, would effectively leave EPA with direct oversight over state efforts.
Maine has little confidence that EPA's efforts to finalize a rule by the end of June will result in a practical mechanism to apply the best analytic tools and the best remedies to the issue of clean water. Further, we are concerned with a seeming reluctance on EPA's part to recognize that state, rather than federal approaches, particularly in the area of nonpoint pollution sources, have proven most successful in recent years. At the same time federal resources have not matched the need for water quality monitoring, and voluntary and incentive-based pollution prevention.
Maine's water quality efforts, administered through several agencies, combines water quality laws, incentives to landowners, and best management practices. While not perfect, we have made impressive progress, in partnership with numerous stakeholders.
In our view, Senate Bill 2417 presents a much preferred alternative. The bill recognizes that the single most effective way to improve water quality and reduce nonpoint pollution is to increase funding to state programs that reach landowners directly, and improve practices on the ground. The bill supports innovative state approaches that develop and build on watershed management efforts. Finally, S. 2417 provides critical resources both for monitoring to develop the water quality data needed to make informed decisions, and to develop a better understanding of how and where TMDLs can be a useful tool - and where they may not be.
Thank you for the opportunity to comment today.
Senator Robert Smith
Committee on the Environment and Public Works
Dear Senator Smith. After reviewing the Proposed Revisions to the Water Quality Planning and Management Regulation, 40 CFR Part 130, the Maine Department of Agriculture, Food and Rural Resources offers the following comments:
1. Identifying threatened or impaired waters on the basis of "Evaluated Data" - This is the issue of greatest concern to our department, for a number of reasons. First, is the fact that it is not based upon hard facts but deductive reasoning or assumptions. It requires one to reach out on the basis of such factors as "Historical Adjacent Land Uses or "Location of Sources" to make a determination that a waterbody is being impaired or threatened. Therefore, if a farm is located next to a waterbody that appears to have symptoms of water quality problems, it is likely to be considered as the or a source. That is akin to being convicted before being proven guilty. Second, is the minimum elements that are required, once a TMDL is developed for a waterbody, including the requirements for:
a. Load Allocation - A load allocation is to be assigned to all sources and if possible, to specific sources, based upon "reasonably accurate estimates". If supporting data is not present to make a definite determination that water quality is impaired or threatened, it stands to reason that the source or sources can not have been identified either or how much of a load is being contributed by those sources. Assumptions must be made again, as to the suspected sources which without data or documentation is kind of like "Guilt -by-Association". In other words, because an activity is a possible source, it therefore is a source and must reduce its guestimated contributing pollutant load. This can be an unfair burden to be placed upon farmers.
b. Margin of Safety - Requiring a margin of safety for a TMDL that was developed upon the basis of Evaluated Data amounts to adding insult to injury for the suspected, potential sources, such as farmers. Farmers will be required to implement even greater measures in order to achieve reductions in assumed pollutant load levels.
In summary, the Maine Department of Agriculture, Food and Rural Resources is concerned about the impact that the proposed regulations will have on farmers and recommends that you re-consider some of your proposed requirements. We are particularly concerned with the proposal to require TMDL's for waterbodies assumed to be threatened or impaired on the basis of "Evaluated Data" and when the sources of suspected pollutants are non-point. It is our recommendation that TMDL's only be required for those waters which have strong supporting data; whether the sources of pollutants is point or non-point. We do however feel that the implementation plan for such TMDL's should be adjusted to reflect the source of pollutant. If it is from a point source or sources, the implementation plan proposed is appropriate. If however, the source or sources are non-point, where an unknown amount of load is coming from a number of suspected sources, more flexibility should be allowed for the implementation plan requirements. For waters which are assumed to be threatened or impaired from non-point sources on the basis of evaluated data, we recommend an entirely voluntary program which focuses on education and information. Data gathering should take place on these waters during this time so that an accurate determination of water quality becomes available for future decision making. This would be a much more defendable approach and one which would not unfairly burden a potential pollutant source (farmers) in the watershed of a waterbody in which a water quality problem is assumed.
Thank you for your consideration of our comments and concerns. discuss any of the issues raised, if you should have a question.
We would be glad to discuss any of the issues raised.
Sincerely,
Peter N. Mosher, Director
Office of Agricultural, Natural and Rural Resources
Ms. Carol Browner, Administrator c/o Comment Clerk for the TMDL/NPDES Program Rule Water Docket (W-98-31) Water Docket (\N-99-04) Environmental Protection Agency 401 M Street, SW Washington, DC 20460
Dear Ms. Browner:
The Environmental Protection Agency's proposed changes to the TMDL and NPDES programs are a source of concern to our agencies, our customers in the broad communities we serve, and the citizens of Maine. As Commissioners of two of Maine's major natural resource agencies, we submit the following comments regarding the Proposed Revisions to the Water Quality Planning and Management Regulation: Proposed Rule, 40 CFR Part 130. Our comments address specific issues important to Maine. In addition, the Maine Department of Environmental Protection (MEDEP) has communicated other issues jointly with other New England states in the consensus comments submitted by the New England Interstate Water Pollution Control Commission, dated December 9, 1999.
Staff Resources Will Not Be Sufficient
While we commend EPA's effort to expand the scope of and accelerate the schedule for the TMDL process, we, like many other states, are concerned about the resources available to do the job. We expect that the effort as proposed would require, at a minimum,.double the staff resources currently available for Maine's TMDL work. We also question whether US EPA will have the staff available to review the states' TMDL submissions on a timely and meaningful basis.
Maine has been at the forefront in using TMDLs as a key aspect of our regulatory process. We have been moving forward with the TMDL process as quickly as any other state. Maine recently completed a TMDL for the Salmon Falls River, which forms a portion of the boundary between Maine and New Hampshire. Getting approval of the TMDL was not easy. Maine DEP submitted the TMDL in May 1999, and it was approved after revision in November 1999.
Maine is also concerned that the current science and available data behind the TMDL process, particularly in the case of non-point source pollutants, may not be ready to support the program as prescribed in the proposed rule. We like the idea of developing a market-based system for trading offsets to reduce pollution loads, and we hope that practical methods to do so will be developed in the coming years.
Maine also submits that the states should have more latitude in setting its own criteria and priorities for TMDL development, based not only on the nature and severity of impairment, but also on how quickly a water body might be restored to attainment. We believe we should direct our resources to provide a balance between the difficult and the achievable cases. Added requirements to the TMDL process and the NPDES program without significant additional resources will detract from the state's overall ability to address water quality issues.
The Proposed Rules May Not Add Real Leverage in Addressing Non-Point Source Pollution
Regarding non-point source issues, particularly for silviculture and agriculture, we question whether the proposed rule will really advance us any faster toward our clean water goals. Maine is working hard within both the agriculture and forestry communities to develop and implement Best Management Practices (BMPs). In recent years, Maine has passed both a Forest Practices Act and a Nutrient Management Law. MDEP includes non-point source pollution in our TMDL process to the maximum extent possible within the constraints of available data and science.
And we already have enforcement authority for specific instances of discharges into the State's waters.
EPA's treatment of and requirements for ''reasonable assurance" for non-point sources is open-ended and nonspecific, but includes most of the very same mechanisms that the state already implements under its 319 program and through its water quality laws. At the same time, protocols by which NPDES permits would be applied to non-point sources are left to the states to develop with federal oversight and opportunities for public.challenge. The proposed definition of "threatened waterbodies" in the TMDL leaves open the possibility that NPDES permit issues may be raised before a TMDL can be completed for a watersheds, thus spawning procedural debate that could actually delay implementation of efforts to reduce pollution.
Maine is concerned that the proposed TMDL process may turn out to be a circuitous, costly, and contentious route to get us to where we are today: quantifying non-point source loads when data and resources are available, prescribing BMPs for non-point sources, providing technical and financial assistance when possible! and taking enforcement action when appropriate.
Why the need to remove the categorical exclusion for silviculture?
While water pollution from silviculture may be a major cause of impaired waters in other regions, silviculture has not been identified as a major source for water bodies on Maine's 303(d) list. Instances of water pollution from logging operations do occur, and nonpoint source pollution issues are taken very seriously in Maine. Effective state water quality laws and programs encourage use of Best Management Practices. In August, Maine delivered its "Nonpoint Source Control Program: Program Upgrade and 1 5-Year Strategy", including a substantial forestry component, in accordance with its mandate under the Clean Water Act Section 319 and CZARA Section 6217. EPA's own review described Maine's nonpoint source program as "exemplary...one of the best in the nation".
While EPA's representation of the change in silviculture's status is that of a "backstop'' that will come into force only in very rare instances, the proposed rules for treating forestry operations as point sources are vague; they provide broad authority without clear guidelines for the exercise of that authority. As stated above, we suggest that providing the authority for NPDES permitting of forestry activities, even as a backstop, will politicize the entire TMDL process, from the 303(d) listing and the reasons for impairment, to the TMDL itself, to the implementation plan. The proposed rules for requiring an NPDES permits would require extensive analysis, and could cause administrative delays and contentious implementation. The state's efforts to implement the provisions of the proposed rules (or defend its application of them) could divert scarce resources away from direct, effective mechanisms including enforcement of pollution laws, monitoring and training in use of Best Management Practices (BMPs). Finally, the proposed process could provide an inappropriate and inefficient forum for debate or litigation of state forestry and water quality policy.
EPA's estimates of additional costs and burdens to the state due to the proposed changes may dramatically underestimate the landowners and state's actual costs of administering the program, especially given the importance and widespread nature of forest management in Maine's economy. The costs to Maine's economy and to forest management are even more uncertain. In the worst case, the proposed rules could increase regulatory overhead for many responsible forest operators without a substantial change in actual practice.
Taken as a whole, the proposed rules magnify the complexity of an already underfunded water quality assessment, planning and permitting system. We hope you will consider our comments and concerns.
Thank you for this opportunity to provide comments on this important matter.
Sincerely,
Martha G. Kirkpatrick, Commissioner
Maine Department of Environmental Protection
Ronald Lovaglio, Commissioner,
Maine Department of Conservation
Ms. Carol Browner, Administrator
c/o Comment Clerk Water Docket (W-99-04, NPDES/WQS)
Environmental Protection Agency
401 M Street, S.W.
Washington, DC 20460
Ms. Browner,
The Environmental Protection Agency's proposed changes to the TMDL and NPDES programs are a source of great concern to the Maine Forest Service, the broad communities we serve, and ultimately to the citizens of Maine. We are writing to register the Maine Forest Service's strong opposition to the changes as proposed.
The proposed rules increase requirements of the TMDL and NPDES programs, and substantially increase the burden to state agencies, without a commensurate benefit to water quality. Of greatest concern is extending these programs to nonpoint sources, particularly with the proposed removal of the categorical exclusion of silviculture from the definition of "point source". This single change would severely hamper forestry practice and collaborative development of forest policy in Maine.
EPA's representation of the change in silviculture's status is that of a "backstop" that will come into force only in very rare instances. The proposed rules, taken in their entirety, are vague in their implementation; provide broad authority without clear guidelines for the exercise of that authority; and finally, effectively impose on states a new mechanism for federal oversight and public participation (including litigation) in forest policy and regulation based on hypothetical water quality impacts.
Why the need for additional federal regulation?
The highest quality water in Maine and nationwide comes from forested watersheds, and millions of dollars are spent in other states to restore forest cover in impaired watersheds. Maine's own "enforceable authorities" relating to nonpoint source pollution, including that from forestry, were deemed adequate by a recent EPA study. Simply stated, the "gap in regulatory coverage" that EPA seeks to close by removing the categorical exclusion of silviculture is largely theoretical, or at best a regional issue. From the Maine Forest Service's perspective, EPA's proposal is unnecessary and does not ensure significant, real changes in "on the ground" forestry practices to protect water quality.
Instances of water pollution from logging operations do occur, and nonpoint source pollution issues are taken very seriously in Maine. Effective state water quality laws and programs encourage use of Best Management Practices. In August, Maine delivered its "Nonpoint Source Control Program: Program Upgrade and 15-Year Strategy", including a substantial forestry component, in accordance with its mandate under the Clean Water Act Section 319 and CZARA Section 6217. EPA's own review described Maine's nonpoint source program as "exemplary...one of the best in the nation".
Will EPA's changes help?
EPA's proposed rules ignore the nature of nonpoint pollution sources and Best Management Practices. Protocols for treating forestry operations as point sources are vague, but likely would require extensive analysis, administrative delays, contentious implementation plans (potentially mandating specific BMPs), and burdensome permits. The state's efforts to implement the provisions of the proposed rules (or defend its application of them) will divert scarce resources away from direct, effective mechanisms including enforcement of pollution laws, and monitoring and training in use of Best Management Practices (BMPs).
The proposed rules include numerous requirements for states to "enhance" implementation of the TMDL/NPDES programs, including new requirements for preparation of 303(d) lists of impaired or threatened waters, submission to EPA of a methodology for listing and requirements for setting priorities; and required elements of a TMDL and implementation plans. These requirements alone will place a substantial burden on the state. EPA's treatment of and requirements for "reasonable assurance" for nonpoint sources includes most of the very same mechanisms that the state already implements under its 319 program and through its water quality laws; in effect, preparation of a particular watershed TMDL will likely be a longer, more circuitous, more costly, and potentially contentious route to many of the same measures already being directed toward nonpoint sources.
EPA's analysis indicating small economic impacts to small entities is predicated on the simple assumption that few silvicultural operations will be designated point sources. However, EPA and the analysts who prepared the study agree that the frequency of such designation is "highly uncertain." The uncertainty of economic impacts further underscore that the rules would increase regulatory overhead without substantial change in actual practice.
When would the proposed rules apply, and what would they contribute?
EPA contends that it will require silvicultural sources to obtain a NPDES permit only in "limited" circumstances. Our concern and responsibility is for a consistent, progressive policy addressing forestry water quality issues for the long term. There are numerous avenues for the proposed rules to become a future battleground for contentious forestry issues, even before any specific TMDLs identify forestry as a significant pollutant source in a given watershed. The proposed definition of "threatened waterbodies" in the TMDL rules establishes grounds for including waterbodies or watersheds currently meeting water quality standards, and with the opportunity for citizen petitions to establish a TMDL, leaves open virtually any waterbody to examination. NPDES permit applications and attached conditions are open to public challenge and subject to "discretion" and interpretations of EPA regional administrators. Any application of EPA permits to forestry will likely invoke review and consultation under provisions of National Marine Fisheries Service's new designations of Essential Fish Habitat, and the Endangered Species Act. With proposed listing of Atlantic salmon as endangered in Maine, NPDES permit issues may well be raised before a TMDL can be completed on any of the watersheds, spawning needless debate and detracting from current conservation efforts.
Taken as a whole, these regulatory mechanisms make the prospects for "limited" application of NPDES permits seem remote, and magnify the complexity of an already confusing federal permitting system. EPA characterizes the likelihood of exercising its authority under the silviculture provision as "unpredictable." Not recognizing that there will be future attempts to debate or litigate state forestry and water quality policy via the proposed rules suggests a lack of long-term vision beyond the first years of the proposed rules' implementation.
Finally, EPA's assertion that new or significantly expanding dischargers might be granted NPDES permits by obtaining offsets in pollutant from nonpoint sources such as silviculture is highly impractical, and sends the wrong message to forestry operators who are already being required virtually to eliminate any discharges through use of Best Management Practices. Based on current Maine law which prohibits unlicensed discharges of pollutants from any source, forestry will likely not be eligible for offsets as proposed by EPA.
Maine is seeking delegation to administer EPA's NPDES program. Maine has what EPA has characterized an "exemplary" nonpoint source program and silvicultural policies. The proposed rules will add pressure, including court actions, both to EPA and the state, to expand our 303(d) list, as well as to address silviculture as a point source and require individual NPDES permits if the categorical exemption is removed. EPA's estimates of additional costs and burdens to the state due to the proposed changes may dramatically underestimate the landowners and state's actual costs of administering the program. The unknown costs and increased burdens of the proposed rule is clearly not warranted by current impacts of silviculture to water quality.
Sincerely,
Thomas C. Doak Director,
Maine Forest Service