Good afternoon, Mr. Chairman and Members of the Subcommittee. My name is Rick Parrish. I am an attorney with the Southern Environmental Law Center, a non-profit environmental advocacy group that works to protect public health and the environment in a six-state portion of the Southeast. I appreciate the opportunity to discuss with you today EPA's recent efforts to revitalize the Clean Water Act's watershed restoration or "Total Maximum Daily Load" (TMDL) program, especially the impacts and costs of proposed rules on state and local governments and communities.
EPA's proposed TMDL rules will certainly have an impact on state and local governments and communities. There will undoubtedly be some additional costs imposed upon state and local governments by the proposed rules, but I believe the vast majority of costs attributed to these rules would more accurately be assigned to the TMDL rules that have been in place for the last 15 years and almost universally ignored by state and local governments, which raises the interesting question whether we have learned anything from that history of conscious disregard of the TMDL program. More importantly from my point of view, the proposed rules would have an enormous beneficial impact on communities across the country, financial and otherwise, as we begin to take the steps that are necessary to restore the worst polluted waters in the nation. Before looking at some of the costs and benefits of the proposed rule, I would like to highlight the following fundamental areas of general agreement about the TMDL program.
· Clean water and healthy aquatic ecosystems are of vital concern to the American public, now as in 1972 when the Clean Water Act was passed.
· Almost 28 years after passage of the Clean Water Act, nearly 40 percent of the waters that are assessed nationwide remain impaired, that is, too polluted for fishing, swimming, and other designated or actual uses, including aquatic habitat.
· States and EPA estimate that more than 20,000 water body segments are impaired, often by more than one pollutant, with the result that 40,000 TMDL-based clean-up plans will be required.
· State monitoring programs cover only about one-third of our nation's waters. Even though new or better data will likely show that some currently listed waters do not, in fact, need TMDLs, the number of impaired waters nationwide is likely to increase as water quality monitoring programs expand in coverage.
· The watershed approach to water quality planning and management is generally recognized as the most equitable and efficient method of protecting and restoring water quality, and the TMDL process is generally considered the technical backbone of that watershed approach.
· The TMDL program as currently designed is not succeeding in restoring water quality in impaired waters.
· We cannot afford to wait for perfect data and a perfect understanding of the interaction between pollutants and the aquatic ecosystem before taking steps to correct serious water pollution problems.
· The states and EPA generally agree that non-point source activities are responsible for a majority of the impaired waters nationwide.
· There is general agreement that additional funding will be required at the local, state, and federal level for the TMDL program to succeed nationwide. At the same time, there will likely be added costs if cleanups are delayed further, both in terms of the eventual expense of restoring water quality and the opportunity costs associated with reduced use, enjoyment and productivity of polluted waters.
The overriding goal of the Clean Water Act was "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." While much progress has been made, especially with regard to the discharge of pollution from pipes and other point sources, the sad truth is that 40% of our nation's waters are still considered too polluted to be used for their intended purposes, including fishing, swimming, drinking, or as aquatic habitat. Section 303(d) of the Clean Water Act contains the one program specifically designed to deal with these impaired waters, the TMDL program. Section 303(d) requires states to identify their worst polluted waters and develop cleanup plans based on the calculation of the Total Maximum Daily Loads of particular pollutants that the water can accommodate. If states fail in these tasks, the duties revert to EPA. Designed to give states the primary role in cleaning up polluted waters, the TMDL program was largely ignored by states and EPA alike for over 20 years. In recent years, partly as a result of a wave of lawsuits filed by environmental groups, EPA has begun taking steps to implement the TMDL program to clean up the worst polluted waters in the country.
In my view, the single most significant step EPA has taken to revitalize the TMDL program is the proposal of rules that, for the most part, clarify and strengthen the requirements of the TMDL program. I believe that the heart of the proposed rules, the requirement that an implementation plan be developed as part of the TMDL itself, has the best chance of converting this watershed restoration initiative from a program marked by neglect and wasted effort to one marked by productivity and accomplishment over the years to come.
EARLY FAILURE OF TMDL PROGRAM
The TMDL program lay dormant until the late 1980s when environmentalists starting filing citizen suits against EPA for allowing states to ignore their obligations to prepare lists of impaired waters and TMDL-based watershed recovery plans under .303(d). An Illinois case, Scott v. City of Hammond, established the principle that the state's failure to submit lists and TMDLs triggered EPA's mandatory duty to step into the void. At this point, EPA has been sued in over half the states in the country for allowing the TMDL program to languish. In all but one such case (Minnesota), environmentalists have either won in court or negotiated a favorable settlement.
At the same time the litigation was occurring, state and federal regulators were moving towards a watershed approach to water quality planning and management. EPA had issued TMDL regulations in 1985, modified them in 1992 to require state submittal of 303(d) lists every other year, and produced a series of programmatic guidance documents and policy statements throughout the 1990s to clarify how states should compile their 303(d) lists and develop their TMDL programs. Finally, in 1996, EPA convened a formal advisory committee to recommend ways to strengthen the TMDL program generally.
ADVISORY COMMITTEE RECOMMENDATIONS
In 1996, EPA formed an advisory committee under the Federal Advisory Committee Act (FACA) composed of 20 members representing point source and non-point source industries, state, local, and tribal governments, the environmental community and others. This TMDL advisory committee, on which I served, issued a report in the summer of 1998 containing over 150 recommendations on ways to strengthen and improve the TMDL program. Most of those recommendations were based on consensus agreement among the members of the committee, but others did not receive the support of the full committee, and there were several important issues on which the committee could not agree at all.
Foremost among the issues with the full support of the advisory committee was the notion that implementation was the key to the eventual success of the TMDL-based watershed restoration program. The advisory committee was unanimous in the sense that without implementation, TMDLs were hardly worth the time and effort.
I believe the most important lesson to be derived from the efforts of EPA's TMDL advisory committee was that representatives of the various constituencies most affected by and concerned with the TMDL program agreed, for the most part, on a series of recommendations for strengthening that program. No single member agreed with all recommendations, and there were important issues left unresolved. But this was an important demonstration of how government, industry, environmentalists and others could work together to develop better ways of solving long-standing and important environmental problems.
SOME COSTS AND BENEFITS OF THE PROPOSED RULES
In August of last year, EPA finally published in the Federal Register proposed rules intended to clarify and strengthen the TMDL program. The proposed rules retain the fundamental approaches of the TMDL program -- especially the primary role reserved to the states -- but add significant detail about how states should manage the program. The one change that has brought the most attention is the proposed requirement of an implementation plan as part of the TMDL-based watershed recovery plan that states submit to EPA for review and approval. While the environmental community is not of one mind about the merits of the proposed rules, I believe the inclusion of an implementation plan alone could have the effect of converting what has largely been a paper exercise to one that has some chance of actually succeeding in cleaning up the nation's worst polluted waters.
In light of intense criticism from virtually all quarters, I think it's safe to say that no constituency is satisfied with EPA's proposed rules. Indeed, some consider that a sign that EPA has struck a reasonable balance among competing interests, though the only real measure of these rules is whether they would speed the clean-up our nation's polluted waters. Environmentalists generally are concerned that the schedules are too long and contain no deadlines; that the offset provision, despite some strengths, contains loopholes that could render it meaningless and ineffective; that the failure to require TMDLs for waters impaired only by "pollution," such as conditions of reduced instream flow, condemns such waters to continued degradation; and that the petition process is unnecessary and destructive of what little trust has been earned on this issue. State governments, even those with sincere commitments to cleaning up polluted waters, are concerned about the resources necessary to develop and implement TMDLs, including for increased monitoring and other data collection. Point source industries and municipalities are concerned that they will have to shoulder an unfair burden by reducing their discharges even further than they have already, and with the potential impact that limiting new or additional discharges might have on economic growth and development. Non-point sources fear the introduction of federal regulatory controls, though EPA has gone to great lengths to explain that no such additional controls are proposed, with the possible exception for previously unregulated point source discharges from forestry operations.
It is understandable that state and local governments are concerned with the cost of complying with EPA's proposed rules. Yet, if states had taken seriously their responsibility to restore polluted waters under the TMDL program over the past 15-20 years, they would not be facing the burden of developing and implementing cleanup plans for all such waters over the coming 10-15 years. Even now, the problem may be more an issue of priorities than availability of funding. Indeed, if states paid as much attention to restoring polluted waters as they do to permitting additional discharges, we would be significantly farther down the path to cleanup.
Despite this resistance from most states, EPA is proposing significant increases in federal funding for state TMDL programs (additional $45 million) and state non-point source pollution control programs (additional $50 million) in its fiscal year 2001 budget primarily to meet these new obligations. This is a considerable boost to a program that would still allow up to 15 years for states to develop watershed recovery plans.
While the cost of restoring polluted waters may be high, the cost of further inaction and additional delay -- cost to the economy, cost to the resource -- will be even higher. And we should not ignore the equally real, if more difficult to determine, benefits of cleaning up polluted waters -- again, benefits to the economy and to the resource. In the end, however, we are left with many more questions than answers about the fiscal impact of water pollution and the proposed TMDL rules, questions such as the following..
What is the cost to state and local governments of restricting development on polluted waterways
What are the costs of polluted waters to the tourism and recreation industries?
What is the cost to the multi-billion dollar sport fishing industry in the upper Midwest of fisheries contaminated by mercury and other pollutants?
What is the cost in terms of public health of drinking water contaminated with cryptosporidium, swimming in waters contaminated with fecal coliform bacteria, or consuming fish contaminated with persistent bioaccumulative chemicals?
What is the value of an endangered salmon species in the northwest, or an endangered freshwater mussel in the southeast, that might be saved through steps taken partly as a result of the TMDL program?
What is clean water worth?
Virtually all parties, including EPA, are concerned about having the resources to develop and implement TMDLs across the nation. Proposed increases in EPA's TMDL budget and other federal funds for non-point source programs will certainly help. I believe, however, that Congress will have to recognize that the restoration of water quality across this country, so strongly supported by the American people, is unlikely to be achieved without this additional funding and perhaps more.
We can be absolutely certain of one thing, however. If we wait until adequate resources are identified and committed to the task of restoring our worst polluted waters, we will never succeed. And that, Mr. Chairman, is simply unacceptable to the vast majority of Americans who still want our dirtiest waters cleaned up and maintained as clean, healthy rivers, lakes and streams.
CONCLUSION
I believe that EPA's proposed rules represent the best chance of moving this program forward. Without implementation plans, TMDLs have proven largely to be a waste of taxpayer money. More importantly, they have been largely ineffective in restoring our most polluted waters to healthy condition. Our best hope for attaining the lofty goals of the 1972 Clean Water Act, restoring the chemical, physical, and biological integrity of our nation's waters, is in moving forward with a TMDL program that has some chance of actually succeeding. EPA's proposed rules represent a significant step in that direction.