We believe that the Subcommittee members share with the vast majority of the American people a strong desire to see the promises of the Clean Water Act fulfilled, to achieve fishable, swimmable waters throughout the nation and to restore and maintain the integrity of the nation's waters. Although we have come far toward these goals, we have a long way to go, and getting a grip on nonpoint source pollution is surely our greatest~ water quality challenge.
TU has put much effort into working with landowners and local, state and federal agencies to prevent nonpoint source pollution to restore trout and salmon resources and the watersheds on which they depend. From the Blackfoot River in Montana, to the Kickapoo in Wisconsin, to the Beaverkill in New York, and Kettle Creek in Pennsylvania, we and our chapters have raised hundreds of thousands of dollars and spent thousands of hours working with agencies and other stakeholders to protect and restore great trout and salmon rivers. We understand the water quality challenges that lie before us because we are out there on the ground right now trying to address them.
Therefore, we support aggressive implementation of the TMDL program, and the EPA proposal, because we think the proposal will help improve implementation of the TMDL program and help it do what it was supposed to do, clean up the nation's polluted waters. The proposed regulations do not create a new program; rather. they represent an effort to provide a more manageable and effective framework for the implementation of a program that has been in the Clean Water Act since 1972. The proposed regulations do not impose any significant new burdens on the states or create any new regulatory mandates. Rather, the new regulations:
-- create a locally driven process for the attainment of state water quality standards;
-- provide for lengthy and flexible time deadlines for the publication of lists of impaired waters, for the drafting of TMDL plans, and for the actual attainment of water quality standards; and
-- create no new regulatory requirements, but instead provide an effective framework for marshalling existing programs under the Clean Water Act, the Farm Bill conservation programs, and federal land watershed programs, in order to make progress towards attaining water quality standards.
S. 2417 provides two specific justifications for delaying implementation of the new regulations: the burden on states in complying with the regulations and the lack of adequate data for effectively implementing the TMDL program. Neither of these concerns justifies delaying the new regulations.
I. The TMDL Regulations Place No New Burdens on States.
Section 2 of S. 2417 points to the claims made by numerous states that they do not have the resources to implement the proposed regulations, and sections 4 and 6 would delay implementation of the new regulations until completion of a study that would, among other things, examine the cost of and alternatives to the TMDL program.
At the outset it is critical to note that there is nothing "new" about any burdens imposed by the TMDL program. The statutory requirements for TMDLs were included in the original Clean Water Act when it was passed in 1972. Congress included the TMDL provisions largely at the request of the states to serve as a backstop when the Act's technology-based programs might prove inadequate to achieve the Act's goals of fishable and swimmable waters. The new regulations in fact only build on existing regulations that implement a statutory requirement that is more than 25 years old.
The current impression of a "rush" to complete section 303(d) lists and TMDLs is in part a product of the fact that the states ignored the requirements of section 303(d) until quite recently. The fact that the TMDL program has not been adequately implemented in the past is no reason not to move ahead and implement it now. In fact, the unfortunate truth is that over 25 years of inaction has brought us to this point:
20,000 water body segments are impaired and are in need of a TMDL pollution budget; of the 2O,OOO impaired waters, hundreds are in Idaho and dozens are in New Hampshire; and, in large part because of habitat loss, 35 species of trout and salmon are on the federal Endangered Species Act list and many aquatic species populations are in decline in all regions of the nation.
EPA's proposed changes do add some specificity to the TMDL program, including the requirement that each TMDL have an implementation plan. This additional specificity will lead to some additional resource needs. EPA has proposed increasing the annual appropriations available to states to administer and implement the TMDL and other Clean Water Act programs to $410 million in the Administration's 2001 budget. It has also proposed increasing funding to the states for nonpoint source programs from $200 to $250 million in FY 2001. Some states, such as Oregon, have already stepped forward and committed additional resources to the restoration of water quality through the TMDL program. We urge you to help states get the additional funds they need by supporting the Administration's proposals in the appropriations process.
It is also important to note the extensive time cushions built in to the new regulations. Currently, EPA requires states to submit lists of impaired waters under section 303(d) of the Act every two years; EPA has now proposed extending that to every four years. The new regulations give states 15 years just to develop the TMDLs for their impaired waters, but this is the deadline for the draf ing of TMDLs only. EPA imposes no deadline whatsoever for TMDL implementation, that is, for when any given TMDL must actually result in attainment of water quality standards. The states thus have the maximum amount of flexibility in assessing when it is realistic and feasible to achieve water quality standards in any given water body.
In addition, the new regulations impose no new substantive regulations. The development of a TMDL is fundamentally a locally driven process designed to marshal existing programs in a way that will restore a particular water body. First, each state develops its own water quality standards and, under general EPA guidelines, assesses which water bodies are not meeting those standards. Then, the states, working with localities and affected parties, collect and analyze water quality data, models, and other information to arrive at the most efficient way of reducing pollution. Indeed, the type of program that appears contemplated by the bill's "Watershed Management Pilot Program" could take- place under the TMDL program as envisioned by the new rules.
The new regulations do include the requirement that every TMDL have an implementation plan. This plan must include a description of how existing state and federal programs will be used to reduce pollution for the affected water body, and a timetable for achieving water quality standards. The regulations do not, however, require any specific timetable, but leave that decision up to the state and others participating in the drafting process. Although the drafting of an implementation plan for each TMDL may impose some additional burden, most TMDLs will be useless in achieving water quality standards without some meaningful effort to describe how the TMDL will be implemented. The implementation plan is a critical step that will move the TMDL from being a paperwork requirement to being a program that actually improves water quality. Indeed, we question how a state can be committed to cleaning up its waters, yet be opposed to deciding and planning how it will accomplish that with respect to each impaired water.
II. More and Better Data Is Not Needed To Start on TMDLs.
In principle, TU supports improving the amount and quality of water quality data collected by the state and by federal agencies. Indeed, we believe that more and better data would uncover additional water quality problems that current programs are missing. A recent GAO report, for example, found that, while data gaps are a problem, existing data do serve to identify the country's biggest problems, and that additional monitoring would likely turn up more problems, not less. Specifically, the report found that "[e]ven though the state officials we interviewed are confident that they have identified their most serious pollution problems, they nonetheless acknowledge that more thorough monitoring would likely reveal additional waters that do not meet standards." (GAO, March 2000).
More importantly, disputes about data do not justify further delay. The TMDL process is intrinsically adaptive to new data. Section 303(d) lists are not written in stone; every four years each state will have the opportunity to add and remove water bodies from its list as some waters achieve water quality standards, as others violate them, and as new data demonstrates that certain waters should be added or removed.
Improvements in data collection and analysis will allow lists to improve in accuracy, and will also inform the drafting of TMDLs as that process unfolds over the next 15 years. For example, many states are already investing in improved data and monitoring methodologies that include biological and physical criteria in addition to the chemical criteria that are currently used. The scientific basis of biological and physical criteria is well supported by peer-reviewed research. Any additional study of these methodologies would be merely duplicative effort. There is absolutely no reason to further delay these new regulations for more than 18 months to study improved data collection and analysis.
III. EPA 's TMDL Program Has Already Been Subject To Exhaustive Study.
Section 4 of S. ~2417 directs EPA to contract with the National Academy of Sciences to study the scientific and regulatory underpinnings of the Clean Water Act's TMDL provisions. S. 2417 authorizes $5 million for this study. The irony of this directive is that the TMDL portion of the Clean Water Act has been one of the most studied, written about, talked about, and litigated provisions of any environmental law--and it has not yet even been implemented on anything more than a trial basis in any state.
The TMDL provisions of the Clean Water Act have already been the subject of an exhaustive two-year study. In November of 1996, EPA established a Federal Advisory Committee Act Committee (FACA Committee) to provide recommendations on improving the EPA's TMDL regulations. The FACA Committee was charged with examining new policy and regulatory directives for TMDLs, including an examination of the science and tools needed to support establishment of TMDLs. In other words, the FACA Committee was given a directive nearly identical to the one S. 2417 gives to a National Academy of Sciences study. In July 1998, the blue-ribbon, 20-member FACA Committee completed its deliberations and issued a final report that contains over 160 specific recommendations for improving government efforts to identify impaired waters and establish TMDLs. Although not all of the FACA Committee recommendations were adopted, their final report informed the EPA's promulgation of its proposed TMDL rule.
Conclusion
The TMDL program, including the EPA's new, proposed regulations, provides a large degree of flexibility and a considerable time cushion to the states. In addition, it sets up a process that is fundamentally locally driven, and imposes no new substantive regulations on pollution. Taking the position that these regulations are too burdensome is, in TU's views, equivalent to saying that cleaning up our waters is too burdensome, too expensive, or not worth the effort. Of course, we believe that cleaning up impaired waters is not only worth the effort, it is imperative. Instead of delaying the new TMDL program, TU urges you to help the states get the resources they need to restore their impaired waters.
Thank you for the opportunity to testify today.