Mr. Chairman and members of the Subcommittee, I appear before you today on of the California Association of Sanitation Agencies (CASA), an organization representing 92 POTWs throughout the State of California. Thank you for the opportunity to present our views on the TMDL rulemakingprocess, issues of concern in California and our recommendations to address these concerns. CASA agencies provide clean water services to more than25 million Californians. I also appear before you as a representative of the Los Angeles County Sanitation Districts that providetreatment to more than 5 million citizens in 78 cities within Los Angeles County. In this capacity, I have first hand experience with theTMDLprocess and water quality standards
With the enactment of what is commonly called the Clean Water Act (CWA) in 1972, Congress supplemented previous water quality control practices, which were solely based on a water quality standards approach, with a new technology-based program applying specific limitations to industrial and POTW dischargers. Municipal dischargers were required to implement "secondary treatment," while industrial dischargers were required to implement "Best Available Technology." While there were other sections of the Act that were intended to address other sources of pollution (section 208), it is clear that Congress wanted first to have these so-called point sources controlled. Any remaining pollution after implementation of technology-based practices would be addressed by implementation of practices such as section 303(d) etc. Later, additional sections were added to the Act to address these other nonpoint sources of pollution (section 319). These technology standards made huge strides in improving water quality by preventing billions of pounds of pollutants from flowing into our nation's waters from POTWs and industries each year. This is no small feat considering that the number of Americans served by POTWs has more than doubled nationwide.
Section 303(d) of the CWA was virtually ignored by states and by the EPA until fairly recently. Due primarily to the numerous lawsuits filed and won by environmental organizations, much attention has been focused lately on the TMDL provisions of Section 303(d). TMDLs have become very controversial because EPA estimates that within the next 15 years 40,000 TMDLs must be adopted, each of which will result in more stringent controls on pollutant sources.
Although it is hoped that responsibility for attaining water quality standards and requisite pollutant loads will be equitably allocated among point and non-point sources of pollutants, POTWs have become concerned over the TMDL program as additional restrictions on point source discharges are likely to be the most heavily weighted part of the TMDL equation. This concern stems primarily from the potential permitting ramifications and the costs associated with having to install additional control technologies, beyond secondary treatment or even tertiary treatment, to meet wasteload allocations assigned under a TMDL adopted as a result of a 303(d) listing. POTWs also fear that "if nonpoint source tradeoffs are not available or the controls developed as a result of a 'tradeoff' fail to achieve water quality standards, the NPDES permit becomes the ultimate method of achieving standards."
With this background, CASA appreciates the opportunity to provide Congress with the following comments:
POSITIVE ASPECTS OF EPA'S PROPOSED TMDL PROGRAM
We support requiring States to adopt a listing methodology pursuant to State law. States should adopt an explicit listing methodology that specifies the type and quality of data to be used and the minimum number of exceedances of a water quality standard required to demonstrate impairment. This methodology should go through public review and comment prior to finalization. However, there should be no requirement for States to submit listing methodology to EPA for approval.
We support requiring an implementation plan for TMDLs. It will be difficult to determine whether a TMDL will reasonably be achieved and attain water quality standards until the details of implementation are identified. Thus, TMDL allocations, allowances, and implementation plans are needed to make sure a TMDL will result in the attainment of water quality standards. Without these implementation measures, it is likely that either (1) little action would be taken to go beyond the establishment of a TMDL, or (2) limited public resources would be spent on litigation forcing the process to move forward instead of actually moving forward toward the attainment of water quality standards. However, TMDL allocations, allowances, and implementation plans should be done by States pursuant to CWA's Continuing Planning Process requirements under Section 303(e), not required as part of the TMDL that must be approved by EPA.
We support the use of good data in decision-making processes. In particular, we support the collection, analysis and use of quality assurance and control programs to assure scientifically valid data. While we understand the impatience of many over not having all our nation's waters achieve their water quality standards; it is foolish to move forward without good data. EPA should establish minimum data quality requirements to be used at every level of the TMDL process, from listing waters as impaired to calculating the appropriate loads to apportioning the allocations among sources. If minimum data quality is not required, the States' and EPA's limited resources would be wasted on waters that later are determined not to be impaired.
We support EPA's public participation requirements. These requirements mandate that States provide no less than 30 days of public review and comment on 303(d) lists, priority rankings, TMDL schedules, and the TMDLs themselves. States must also provide EPA with a summary of all comments as well as the State's response to comments, and must indicate how the public's comments were considered in the State's final decision.
PROBLEMMATIC ASPECTS OF EPA'S PROPOSED TMDL PROGRAM
We do not support a regulatory program that overrides the watershed approach. The watershed approach to water pollution control involves consideration of all pollutant sources in a particular watershed to optimize the solutions and ensure water quality standards are attained; thus, a watershed approach prevents some sources from falling through the cracks. EPA has been advocating a watershed approach for several years now, and has acknowledged that this approach will result in cost-effective and equitable solutions. However, EPA's proposed TMDL program backs away from its commitment to a cooperative local watershed approach in favor of a command-and-control approach where EPA possesses greater authority and the ability to trump locally devised water quality control programs.
We believe TMDLs should be viewed as merely one tool for controlling water pollutants and meeting water quality standards. Instead of considering TMDLs to be one of the many tools provided to EPA and the States under the CWA for protecting and maintaining water quality, the proposed program elevates TMDLs to the ultimate weapon in EPA's arsenal for meeting standards. CASA believes that this result was unintended by Congress. Below, CASA provides other alternative mechanisms that EPA could utilize to accomplish the same result, potentially in a more reasonable, equitable, and cost-effective manner.
We advocate conducting in-depth water quality standards reviews on a regular basis nationwide. Generally applied water quality standards, although meeting the minimum requirements of the CWA and EPA regulation, may be inappropriate (either over- or under-protective) for a specific water body that has not had an in-depth standards analysis. Even if an in-depth standards analysis has been done in the past, changes in the uses of the water body since that time may make different standards more appropriate. Furthermore, site-specific criteria may be appropriate because of specific local environmental conditions. Congress recognized this need by requiring triennial reviews of water quality standards under Section 303(c). However, in-depth review rarely if ever occurs, and adjustment of uses and criteria to properly fit existing or attainable conditions is even more rare. Since TMDLs are triggered by a failure to attain water quality standards, EPA should be required to delay final promulgation of these TMDL regulations until they promulgate its promised water quality standards regulations to ensure appropriate standards result in appropriate control measures.
We believe EPA has exceeded its statutory authority in its proposed regulations. For example, in requiring "pollution," endangered species and drinking water issues, threatened waters, and antidegradation concerns as part of the 303(d) listing process, it appears that EPA has exceeded the authority granted the agency under the plain language of the CWA.
We question the accuracy of EPA's cost estimates. We believe that EPA seriously underestimated the costs of adopting and implementing TMDLs by incrementalizing the process and only looking at one small increment. EPA narrowed its analysis to only those costs associated with the States (and Tribes) responsibilities in listing waters and adopting TMDLs and implementation plans. EPA failed to estimate the larger increment of costs incurred by the sources allocated a limited load under the TMDL (e.g., POTWs, industries, storm water dischargers, and landowners). Congress should encourage EPA to look at the total cost of the proposed program from listing to attainment of water quality standards.
EXPLANATION OF CALIFORNIA'S SITUATION
One of the reasons CASA was asked to testify in these TMDL hearings was to explain the unique factual and legal issues present in California. California is home to the Pronsolino case, where the timber and agricultural communities sued EPA over whether or not EPA has the authority to regulate non-point sources under CWA Section 303(d). Numerous environmental organizations, most recently the San Francisco and San Diego BayKeepers, have sued EPA to establish schedules for adopting and implementing TMDLs in California.
In addition, CASA and a companion organization, the Southern California Alliance of POTWs (or SCAP), have sued the State and EPA over Clean Water Act issues, including section 303(d). A copy of our federal complaint is attached to this testimony. These lawsuits were filed, in part, because of POTW frustration with the 303(d) listing process and the permitting implications of discharging into a waterbody deemed to be impaired. EPA Region IX has issued draft guidance for issuing permits in the absence of TMDLs. The guidance directs the State to impose a number of onerous requirements on POTWs before TMDLs are completed, including immediately enforceable mass limitations with significant impacts on local community growth and economic development. In addition, the guidance calls for "no net loading" of certain pollutants, which will require POTWs to offset 100% of their discharges, without regard to their proportional contributions.
As a case study, one could look at the Sacramento Regional County Sanitation District, a CASA member agency. The Sacramento regional plant discharges treated wastewater into the Sacramento River, which flows into the Sacramento/San Francisco Bay Delta and San Francisco Bay, both of which are on California's 303(d) list for mercury. Most of the mercury loading to these waterbodies is from historic, and now abandoned, mining operations, and some comes from atmospheric deposition. The Sacramento regional plant discharges less than 1% of the total mass loading of mercury to the Bay Delta. Despite this fact, Sacramento has been instrumental in spearheading, and securing congressional funding for, a stakeholder driven watershed program to address water quality issues such as mercury. Sacramento has spent large amounts of staff time and over $500,000 annually since 1995 on the watershed program and on collecting ambient water quality monitoring data, which can be used to calculate and implement a TMDL.
Although Sacramento should be rewarded for its efforts, it is currently facing severe discharge restrictions in the interim before the TMDL is done. If other recent permitting proposals overseen by EPA Region IX are any indication, these discharge restrictions potentially could include the imposition of interim mass limits thereby imposing corresponding growth limits on the surrounding community. Regulators may also propose the elimination of dilution and mixing zones, or impose zero discharge requirements, which could require Sacramento to install expensive control technologies. All this is prior to the adoption of (and may well presuppose the outcome of) a TMDL that is supposed to equitably allocate the total loading to all sources. Moreover, even if Sacramento spent its sewer ratepayers' money to build additional treatment facilities that would be needed to comply with these discharge restrictions, in the absence of a fully implemented TMDL, the water quality benefits of removing less than 1% of the loading would be negligible and the water quality standards would still not be attained.
CASA wants to be certain that the TMDL regulations, or even worse the permit-by-permit policymaking, do not impose treatment requirements for treatment's sake. Limited financial resources should be utilized to solve the water quality problems in an equitable manner taking into account technical and economic constraints. We think this can be done within the confines of the existing CWA language, or through congressional directives given to the EPA, as follows:
POTENTIAL APPROACHES TO ATTAIN WATER QUALITY STANDARDS
When read in its entirety, the CWA sets out a logical stepwise process for addressing water quality. Unfortunately, the implementation of the Act's mandates by States and EPA has been less than comprehensive and, thus, the inherent logic of the Act has been lost. This result could have been different had EPA and the States properly followed the statutory mandates per the explicit legislative intent of the Clean Water Act. However, we believe that it is not too late to refocus the water quality regulatory processes and we suggest the following:
Re-energize the Section 208 planning processes. We believe that Section 208 was intended to be the primary planning procedure under the CWA. Section 208, under the areawide waste treatment management planning process, required the establishment of a regulatory plan to deal with many of the currently pressing pollution problems at issue under TMDLs, such as agricultural return flows, animal manure disposal, mine-related pollution, land use planning, construction activity runoff, and dredge and fill materials. States were also charged with identifying measures necessary to carry out the plan, the costs of doing so, and the economic, social, and environmental impacts. Unfortunately, most States adopted plans, saw the price tag, and shelved them. Congress required annual updates and certifications that are not being performed. A simple directive to EPA could reinvigorate the 208 process.
Recognize the importance of the 305(b) Reports. Section 305(b) requires States to biennially produce a report providing a broad assessment of all waterbodies, the types of impairments, and the available and practicable options for meeting statutory objectives along with the resultant costs, benefits, and environmental impacts of each option. If properly done, Congress and the public would have been made aware of the significance and cost of meeting water quality standards and remedying impaired waters as reflected in the 305(b) Report. However, no State has ever attempted to describe the full extent of economic and social benefits and costs associated with progress in improving and protecting water quality conditions in 305(b) Reports. A simple directive to EPA could encourage additional oversight over State 305(b) submittals to ensure compliance with statutory requirements.
Discourage overly stringent permit restrictions prior to TMDL implementation. The U.S. Supreme Court has determined that nothing in the CWA suggests that Congress intended to prohibit discharges to impaired waters. Instead, the Act contains provisions, namely Section 303(d), designed to remedy water quality impairments and allocate the burden of attaining standards between existing sources. A simple directive to EPA to discourage the imposition of effluent limitations under Section 301(b)(1)(C) prior to the adoption of a TMDL to implement a water quality standard could remedy the current adversarial permitting situation, particularly in California. CASA has prepared draft language to amend the Act to deal with this short-term problem and I would like to submit this language for the record as part of this testimony.
Encourage an economic analysis component within water quality standards adoption and revision. In addition to urging EPA to uphold the triennial review process and to promulgate water quality standards regulations alongside the proposed TMDL regulations, a simple directive to EPA urging inclusion of a social and economic component to the consideration of "use and value" required under the Section 303(c)(2)(A) standards revision and adoption processes could encourage the adoption of more appropriate, site specific water quality standards. Such an analysis would be particularly valuable for dischargers in Western states that discharge into water dominated by or dependent upon treated wastewater to maintain flow.
In conclusion, CASA believe that to achieve full compliance with the goals of the Clean Water Act, there must be a realization that considerably more time and money will have to be expended than has already been spent to date. In a sense the easy part has been done (i.e. implementation of technology-based standards). A broader, more holistic approach must now be taken. Many of the tools to do this already exist in the Act. However, there may be the need to make some revisions to the Act that will ensure that cost-effective solutions are reached. CASA stands ready to assist you in that effort. Thank you for the opportunity to share our views with you today.