I greatly appreciate the invitation to share my thoughts regarding the Clean Water Act and specifically Total Maximum Daily Load (TMDL). This is of great importance to our state, both to our people and the resources we cherish.
We are pleased this committee is taking an active role in reviewing the Environmental Protection Agency's (EPA) proposed revisions to the agency's water quality regulations, 40 CFR Part 130, published in the Federal Register on August 23, 1999.
Before I begin, I want to mention to the subcommittee members that I have attached to my testimony the formal comments I submitted on behalf of the State of Montana to EPA on this proposed rule. Our state's natural resource agencies worked together to analyze the proposed rule and to develop the consensus comments attached.
The State of Montana is very committed to achieving the clean water goals set forth in Section 303(d) of the Clean Water Act (CWA). This is especially demonstrated through our 1997 passage of state legislation pertaining to the Total Maximum Daily Load (TMDL) process.
Our TMDL amendments to the Montana Water Quality Act successfully address many of the same issues that are now the focus of EPA's proposed rules. Our comprehensive state law establishes 303(d) listing methodologies and criteria, specifies a public involvement plan, sets a 10-year schedule for statewide TMDL development, addresses TMDL implementation and monitoring, and authorizes pollution offsets.
As well, our state TMDL program funding appropriation provides new state revenues for accelerated water quality problem solving. Indeed, we are currently achieving at the State level what EPA hopes to accomplish nationally with the proposed rules.
EPA's presumption that solutions to long-standing national TMDL issues must be prescribed within the context of new federal regulations is at the core of Montana's concerns over the proposals. We fear that the program changes envisioned by EPA will add unnecessary and inappropriate specificity that will ultimately hinder the success of our current program.
The proposed changes could seriously compromise our state program goals and strategy, undermine recent intensive implementation efforts and public trust, and reduce our overall progress in achieving the water quality restoration goals of the federal Clean Water Act.
Mr. Chairman, I would like to mention briefly the process which lead up to enactment of our state law. And, I must confess, we are very proud of the work we have accomplished to date.
A dialogue was begun late in 1996 between Montana natural resource agencies, businesses and industries, and conservation groups to gage interest in developing state TMDL legislation which would address these concerns. A briefing paper was developed and distributed and a broad range of interests were invited to participate on a work group to draft legislation.
Over several weeks, the group met regularly to revise drafts of a bill and to try to achieve consensus on bill content. While complete agreement was not achieved prior to the deadline for submitting the bill, remarkable progress was made in coming together on many of the issues. This effort paid off in strong support for passage of the bill in both houses of Montana's legislation and few amendments in the legislative process. House Bill 546 was passed into law in the State of Montana and became immediately effective with my signature on May 5, 1997. Funding totaling nearly $1.4 million for the biennium was also provided by the Montana legislature.
At the heart of Montana's program is the TMDL Advisory Council. The Council is made up of representatives from agriculture, industry, environmental groups, state and federal agencies, and recreationists. The group provides input and advice to state decision makers and professional staff, and helps insure that the development and implementation of measures to improve water quality are truly grass roots approaches. We believe that those landowners and users who are asked to host and support on-the-ground measures should have a say in their development.
Although EPA's stated objective in developing the proposed rules was to strengthen the efficiency and effectiveness of the Clean Water Act's TMDL program, the rules do little to accomplish this objective. Instead, the new regulations would add unnecessary complexity to Montana's ability to develop TMDLs in a timely fashion. The new regulations appear to focus on list-keeping and technical reporting to EPA, rather than effective assessment, implementation, and resolution of water quality problems. The rules also create a regulatory framework that is inherently inconsistent with section 303(d) of the CWA.
Specifically, the rules create a presumption that a state's entire TMDL program, including its process and methodology of identifying impaired waters, prioritizing those waters, developing TMDLs for those waters, and addressing nonpoint sources in its TMDL process, are all subject to EPA's approval. In effect, the rules provide EPA with a "veto" power over a state's entire TMDL program. This is not a power envisioned by Congress when it granted EPA a limited oversight role to review a state's submission of lists and TMDLs under section 303(d). The State of Montana objects to the imposition of regulations establishing regulatory requirements over every component of a state's TMDL program when Congress has not sanctioned that approach.
One of the primary drawbacks of EPA's proposed regulations is that they impose numerous regulatory details to address prior inefficiencies in TMDL development that have already been addressed by many states. Montana has already accomplished what EPA is attempting to achieve through the proposed rules. Montana is already more than two years into the process of making comprehensive changes to its 303(d) listing methodology and creating a publicly supported approach to development of TMDLs. We have a TMDL development schedule, new listing methods and decision criteria, a new publicly accessible database to support listing decisions, a new TMDL prioritization process, and we have been working with local groups to ensure that TMDLs will be implemented over the long term with reasonable assurance.
Also, Montana's monitoring provisions require that after five years, TMDL plans will be evaluated to determine if implementing organizations are making satisfactory progress. While we recognize the need for consistent guidance to states and the public regarding TMDLs, the new regulations do not give those states already implementing programs of their own enough latitude to determine appropriate management measures, especially for land use-related nonpoint source problems.
In its finalization of the rules, EPA must acknowledge that Montana and many other states have already developed processes, methods and approaches to meet court, legislative or stakeholder demands for their existing TMDL programs. In many cases, EPA's proposed new substantive rules might be disruptive and expensive to states that have already developed effective TMDL programs endorsed by stakeholders and elected officials. This issue is at the forefront of Montana's concerns with the rules as currently proposed.
Existing processes and approaches that meet court decrees and/or provide positive and beneficial results should not be compromised or superseded by these new rules. At the same time, states should be encouraged to be innovative in developing new processes and approaches that achieve the results envisioned by these rules in a more efficient manner.
With this in mind, the State of Montana encourages EPA to apply a "functional equivalency" test to state TMDL programs prior to the imposition of any new program requirements. The test would provide a demonstration that a state process, method or approach achieves the same desired results intended to be achieved by the proposed rules. There are numerous examples of these cases, including how states prioritize their lists, incentives that states have built into their programs to achieve correction of impaired conditions in lieu of a TMDL, and recognition of various approaches to implementing TMDLs.
Frankly, Mr. Chairman, we strongly believe EPA must recognize that "one size does not fit all" and the TMDL rules must remain open to alternative methods of doing business that achieve comparable results.
We are also seriously concerned about the fiscal implications of the proposed changes. By all indications, the proposed program and its increased scientific rigor and reporting burden would cost substantially more to administer while achieving fewer water quality improvement results. The State of Montana operates its current TMDL program on a limited budget but achieves a high degree of efficiency through local leadership and volunteerism and by minimizing administrative overhead costs. Increasing program administrative costs would translate directly to less money available for local, on-the-ground implementation of water quality improvement measures.
The State of Montana is very concerned that the new TMDL rules would result in significant additional costs to states over current law. According to EPA's Water Quality Workload Model, Montana currently has minimal resources to run a TMDL program under the rules as they now stand. Currently, the Montana Department of Environmental Quality (DEQ) has about 13 FTE (full time employees) committed to water quality standards activities,
including monitoring, reporting and TMDL activities, with a budget of about $1.35 million. EPA's Water Quality Workload Model: Draft Module 2, when calibrated to Montana's parameters, suggests that 58 FTE and a total budget of about $4.9 million would be needed to implement TMDLs on time under the rules as they now stand.
It follows then that the new and more complicated rules proposed by EPA would set back the staff and unduly slow the TMDL process unless additional resources were obtained. In addition, the new rules undo much of the work and fiscal investments already put into Montana's current TMDL program. By our most conservative estimate, DEQ would need at least twice the current resources to comply with the proposed rules in a timely fashion. Our best guess is that between 22 and 24 additional FTE over the 13.5 currently employed would be needed to comply with the new TMDL rules, along with several tens of thousand of dollars in new equipment.
Again, Mr. Chairman, for the new regulations to be successful in achieving national clean water goals, they must accommodate a degree of flexibility on the part of the states that are charged with primary responsibility to implement the TMDL program. The rules must acknowledge that individual states are in the best position to formulate the most effective and efficient water quality improvement strategies for their regions.
The rules must also recognize that states have primary responsibility for achieving water quality improvements through state authorized and funded programs. EPA also needs to carefully consider the water quality consequences of proposed program changes toward more intensive agency list keeping, administrative oversight and analytical rigor, and less focus on community based water quality problem solving.
The top-down, prescriptive complexion of the proposed rule is contrary to the Clean Water Act and contrary to Montana's grassroots approach to TMDL development. Lastly, but no less importantly, EPA must remain sensitive to the need for additional state resources if national clean water goals are to be further expedited. In accordance with these basic tenants, the State of Montana recommends the following changes to the proposed rule:
1. We support the need for a consistent, technically sound and well-documented listing methodology as the foundation for state TMDL programs. EPA should provide non-regulatory guidance to aid states in developing sound methods, should accommodate flexibility in adopting these methods, and should accept methods documentation on the same schedule as the 303(d) List submittal.
2. EPA should require the submittal of a one-part 303(d) List of water quality-limited segments and should retain an optional provision for listing threatened waters and those impacted solely by "pollution". A tracking mechanism is needed for water quality-limited segments with approved TMDLs, but decisions to retain or de-list water bodies following TMDL approval and pending water quality standards attainment are best left to the states.
3. We support changes that would require less frequent mandatory reporting. EPA should adopt a five-year 303(d) reporting cycle and retain current provisions for interim list modifications.
4. The State of Montana supports the proposed 8 to 15 year TMDL scheduling requirement, but recommends the inclusion of provisions for periodic adjustments during subsequent listing cycles. We urge EPA to continue to accommodate state flexibility in establishing TMDL prioritization criteria and in targeting water bodies for TMDL development. Specifically, endangered species and drinking water issues should be considered in state TMDL priority setting, but should not necessarily take precedence over all other possible state concerns and priorities.
5. We support the need for timely implementation of TMDLs, including the need for accountability and reasonable assurance of water quality improvement. These concepts are an important part of Montana's program and implementation plans are a standard component. However, we propose that EPA's minimum required TMDL elements be provided in the form of guidance to states, not regulations. Allowances for future growth, however, are a local issue that should not be addressed within the guidance.
6. We encourage EPA to retain states' discretion to use alternative expressions of TMDL water quality improvement targets in lieu of actual load reductions, in cases where this is appropriate. This is consistent with EPA's current TMDL development guidance and would ensure the needed state flexibility to select the most appropriate and cost-effective units of TMDL expression for each water quality improvement project.
7. We fully endorse the need for public involvement in all phases of the TMDL process and this is at the cornerstone of Montana's program. However, additional EPA specificity in this regard, achieved through rule revisions, is unnecessary and unwarranted.
8. EPA should recognize the states' primary role in implementing Section 303(d) and should not create a petition process that encourages EPA intervention in state TMDL programs. If this concept is to be retained in the rule, specific requirements should be added which require petitioners to demonstrate a good faith effort to resolve their issues with the state and to submit relevant supporting information. States should also be granted an opportunity within the rule to respond to petitions prior to any intervention on the part of EPA.
9. EPA should approve any state TMDL submitted within 12 months of the final rule changes as long as it meets pre-amendment or post-amendment requirements.
10. The required inclusion of atmospheric deposition in non-point source pollution load allocations is premature, given the state of the available science. States should be delegated the authority to decide how and when, on a case-by-case basis, state air quality management issues should be coupled with the TMDL process.
11. Montana supports the concept of giving special consideration to threatened and endangered species during the TMDL process. Montana does not agree, however, that the rules should require states to engage in the consultation procedures applicable to federal agencies under Sec. 7 of the Endangered Species Act. Instead, the rules should simply require states to informally involve the assistance of the U.S. Fish and Wildlife Service during TMDL development.
12. Considering that the new TMDL rule would result in significant additional costs to the State of Montana, we recommend that EPA more accurately quantify these costs and address solutions to the anticipated state fiscal shortfalls before finalizing the rule package.
Finally, Mr. Chairman, we are concerned that, despite receiving several tens of thousands of comments on the proposed rulemaking, EPA intends to "fast track" the proposed rules into adoption this summer. We ask that the agency consider carefully the concerns expressed by various states and stakeholders, and reserve to those states the discretion to continue to administer the TMDL programs in which we have invested so much effort and are receiving such good results.
Again, Mr. Chairman and Senator Reid, thank you for the invitation to join you today and for considering our thoughts on this important issue.
The Honorable Carol M. Browner
Administrator
U.S. Environmental Protection Agency
401 M Street, S.W. Washington, D.C. 20460
Attn: Water Docket (W-98-31 )
Re: Proposed Revisions to the Water Quality Planning and Management Regulations
Dear Administrator Browner:
I am writing to you on behalf of the State of Montana concerning the Environmental Protection Agency's proposed revisions to the agency's water quality regulations, 40 CFR Part 130, published in the Federal Register on August 23, 1999. We appreciate the opportunity to comment on the proposed rule. Our state natural resource agencies have worked together to analyze the proposed rule and to develop consensus comments.
The State of Montana is very committed to achieving the clean water goals set forth in Section 303(d) of the Clean Water Act (CWA), as demonstrated through our 1997 passage of state legislation pertaining to the Total Maximum Daily Load (TMDL) process. Our TMDL amendments to the Montana Water Quality Act successfully address many of the same issues that are now the focus of EPA's proposed rules. Our comprehensive state law establishes 303(d) listing methodologies and criteria, specifies a public involvement plan, sets a 10-year schedule for statewide TMDL development, addresses TMDL implementation and monitoring, and authorizes pollution offsets. As well, our state TMDL program funding appropriation provides new state revenues for accelerated water quality problem solving. Indeed, we are currently achieving at the State level what EPA hopes to accomplish nationally with the proposed rules.
EPA's presumption that solutions to long-standing national TMDL issues must be prescribed within the context of new federal regulations is at the core of Montana's concerns over the proposals. We fear that the program changes envisioned by EPA will add unnecessary and inappropriate specificity that will ultimately hinder the success of our current program. We encourage the application of a "functional equivalency test" to state TMDL programs prior to considering the need for more federal oversight. Montana would very likely pass such a test.
For the new regulations to be successful in achieving national clean water goals, they must accommodate a degree of flexibility on the part of the states that are charged with primary responsibility to implement the TMDL program. The rules must acknowledge that individual states are in the best position to formulate the most effective and efficient water quality improvement strategies for their regions. The rules must also recognize that 'hates have primary responsibility for achieving water quality improvements through state authorized and funded programs. EPA also needs to carefully consider the water quality consequences of proposed program changes toward more intensive agency list keeping, administrative oversight and analytical rigor, and less focus on community based water quality problem solving. The top-down, prescriptive complexion of the proposed rule is contrary to the CWA. and contrary to Montana's grassroots approach to TMDL development. Lastly, but no less importantly, EPA must remain sensitive to the need for additional state resources if national clean water goals are to be further expedited. In accordance with these basic tenants, the State of Montana recommends the following changes to the proposed rule:
1. We support the need for a consistent, technically sound and well-documented listing methodology as the foundation for state TMDL programs. EPA should provide non- regulatory guidance to aid states in developing sound methods, should accommodate flexibility in adopting these methods, and should accept methods documentation on the same schedule as the 303(d) List submittal.
2. EPA should require the submittal of a one-part 303(d) List of water quality-limited segments and should retain an optional provision for listing threatened waters and those impacted solely by "pollution". A tracking mechanism is needed for water quality-limited segments with approved TMDLs, but decisions to retain or de-list water bodies following TMDL approval and pending water quality standards attainment are best left to the states.
3. We support changes that would require less frequent mandatory reporting. EPA should adopt a five-year 303(d) reporting cycle and retain current provisions for interim list modifications.
4. The State of Montana supports the proposed 8-15 year TMDL scheduling requirement, but recommends the inclusion of provisions for periodic adjustments during subsequent listing cycles. We urge EPA to continue to accommodate state flexibility in establishing TMDL prioritization criteria and in targeting water bodies for TMDL development. Specifically, endangered species and drinking water issues should be considered in state TMDL priority setting, but should not necessarily take precedence over all other possible state concerns and priorities.
5. We support the need for timely implementation of TMDLs, including the need for accountability and reasonable assurance of water quality improvement. These concepts are an important part of Montana's program and implementation plans are a standard component. However, we propose that EPA's minimum required TMDL elements be provided in the form of guidance to states, not regulations. Allowances for future growth, however, are a local issue that should not be addressed within the guidance.
6. We encourage EPA to retain states' discretion to use alternative expressions of TMDL water quality improvement targets in lieu of actual load reductions, in cases where this is appropriate. This is consistent with EPA's current TMDL development guidance and would ensure the needed state flexibility to select the most appropriate and cost-effective units of TMDL expression for each water quality improvement project.
7. We fully endorse the need for public involvement in all phases of the TMDL process and this is at the cornerstone of Montana's program. However, additional EPA specificity in this regard, achieved through rule revisions, is unnecessary and unwarranted.
8. EPA should recognize the states' primary role in implementing Section 303(d) and should not create a petition process that encourages EPA intervention in state TMDL programs. If this concept is to be retained in the rule, specific requirements should be added which require petitioners to demonstrate a good faith effort to resolve their issues with the state and to submit relevant supporting information. States should also be granted an opportunity within the rule to respond to petitions prior to any intervention on the part of EPA.
9. EPA should approve any state TMDL submitted within 12 months of the final rule changes as long as it meets pre-amendment or post-amendment requirements.
10. The required inclusion of atmospheric deposition in non-point source pollution load allocations is premature, given the state of the available science. States should be delegated the authority to decide how and when, on a case-by-case basis, state air quality management issues should be coupled with the TMDL process.
11. Montana supports the concept of giving special consideration to threatened and endangered species during the TMDL process. Montana does not agree, however, that the rules should require states to engage in the consultation procedures applicable to federal agencies under Sec. 7 of the Endangered Species Act. Instead, the rules should simply require states to informally involve the assistance of the U.S. Fish and Wildlife Service during TMDL development.
12. Considering that the new TMDL rule would result in significant additional costs to the State of Montana, we recommend that EPA more accurately quantify these costs and address solutions to the anticipated state fiscal shortfalls before finalizing the rule package.
Attached is our compendium of detailed comments and analyses that support these recommendations. Thank you again for the opportunity to comment on these very important regulations. We look forward to working with EPA to develop a final rules package that will support and enhance our mutual clean water objectives.
Sincerely,
MARC RACICOT
Governor
Introduction
The State of Montana provides the following comments regarding EPA's efforts to improve the quality of the nation's waters through the water quality-based management approach outlined in Section 303(d) of the Clean Water Act (CWA). Our commitment to this process is perhaps best demonstrated through our recent passage of legislation to implement comprehensive state water quality assessment and TMDL development. These 1997 amendments to the Montana Water Quality Act provide specific state authority to implement the provisions of Section 303(d) and outline the methodologies, framework and schedule for assessing water quality statewide, and for developing and implementing TMDLs for threatened and impaired stream segments and lakes. Our primary concerns over proposed changes to the federal TMDL regulations stem from anticipated conflicts with our existing state program. The proposed changes could seriously compromise our state program goals and strategy, destroy recent intensive implementation efforts and public trust, and reduce our overall progress in achieving the water quality restoration goals of the federal CWA.
Although EPA's stated objective in developing the proposed rules was to strengthen the efficiency and effectiveness of the CWA's TMDL program, the rules do little to accomplish this objective. Instead, the new regulations would add unnecessary complexity to Montana's ability to develop TMDLs in a timely fashion. The new regulations appear to focus on list-keeping and technical reporting to EPA, rather than effective assessment, implementation, and resolution of water quality problems. The rules also create a regulatory framework that is inherently inconsistent with Sec. 303(d) of the CWA. Specifically, the rules create a presumption that a state's entire TMDL program, including its process and methodology of identifying impaired waters, prioritizing those waters, developing TMDLs for those waters, and addressing nonpoint sources in its TMDL process, are all subject to EPA's approval. In effect, the rules provide EPA with a "veto" power over a state's entire TMDL program. This is not a power envisioned by Congress when it granted EPA a limited oversight role to review a state's submission of lists and TMDLS under Sec. 303(d). The State of Montana objects to the imposition of regulations establishing regulatory requirements over every component of a state's TMDL program when Congress has not sanctioned that approach.
One of the primary drawbacks of EPA's proposed regulations is that they impose numerous regulatory details to address prior inefficiencies in TMDL development that have already been addressed by many states. From Montana's perspective, EPA is attempting to do too much too late in the process. Montana is already more than two years into the process of making comprehensive changes to its 303(d) listing methodology and creating a publicly supported approach to development of TMDLs. Montana is addressing the same issues that EPA is proposing to address in its new regulations. We have a TMDL development schedule, new listing methods and decision criteria, a new publicly accessible database to support listing decisions, a new TMDL prioritization process, and we have been working with local groups to ensure that TMDLs will be implemented over the long term with reasonable assurance. Finally, Montana has a monitoring requirement that after five years TMDL plans will be evaluated to determine if implementing organizations are making satisfactory progress. While we recognize the need for consistent guidance to states and the public regarding TMDLs, the new regulations do not give those states already implementing programs of their own enough latitude to determine appropriate management measures, especially for land use-related nonpoint source problems.
The proposed regulations also take a highly technical approach to developing TMDLs involving water quality modeling, quantifying actual loading rates, and generally providing for an unrealistic degree of scientific certainty in establishing TMDLs. This approach would push most of the TMDL work toward highly specialized water quality professionals in state government and away from community-based watershed groups and local governments. If the regulations were written to recognize the importance of local leadership and public involvement, they would encourage more flexible approaches to resolving water quality concerns.
EPA's FACA (Federal Advisory Committee Act) group recognized the need for flexibility in the TMDL process. In the draft regulation, EPA appears to have ignored key recommendations of the group in developing the proposed regulations. These recommendations include the ability for states to include, in some instances, "surrogate measures and measures other than daily loads" and "taking an iterative approach to TMDL development and implementation [to] assure progress toward water quality standards attainment.. These issues are directly addressed in the guidance document that accompanied the draft regulations. This document allows more flexibility than the draft regulation on these issues. A question might arise as to which applies if the regulations are not adjusted to provide some allowance for these approaches.
We are also concerned about the proposed definitional focus on pollutants and not pollution. This aspect of the rules makes it appear that EPA is retreating from the broader Clean Water Act goals (chemical, physical and biological integrity) and focusing on just one type of water quality problem -- those that can be calculated in terms of load. This approach ignores current new understandings in water quality science relating to roles of changes in hydrology, habitat quality and biological indicators relating to water quality. It also seems to ignore the fact that about 90 percent of Montana's (and many other western states') water quality problems stem from nonpoint source pollution and related habitat degradation. The proposed TMDL program would require us to focus on a relatively small subset of our state's water quality problems and would slow our pace at achieving comprehensive statewide water quality improvements. The proposed regulations do not appear to support the CWA's "clean water" bottom line in this regard.
The State of Montana is concerned about proposed changes to the 303(d) List and supports the retention of one List, to include water bodies impaired, or threatened, as a result of habitat degradation, flow alteration, and non-point pollution. Our current program focuses on comprehensive water quality problem solving, including development of water quality improvement strategies for all listed water bodies, within a reasonable (10-year) timeframe. At the same time, we must reserve the right to be flexible in how we address our problems. For example, our experience has shown that water quantity issues can be addressed creatively among willing players and within the confines of existing law. In this regard Montana's TMDL program is stronger than EPA's proposal, which chooses not to require TMDLs for impairments resulting from "pollution," including habitat and flow alterations. The principles of innovation and creative, but comprehensive, problem solving are at the core of our state TMDL law and the proposed rules would eliminate much of this current flexibility.
In its finalization of the rules, EPA must acknowledge that Montana and many other states have already developed processes, methods and approaches to meet court, legislative or stakeholder demands for their existing TMDL programs. In many cases, EPA's proposed new substantive ruses might be disruptive and expensive to states that have already developed effective TMDL programs endorsed by stakeholders and elected officials. This issue is at the forefront of Montana's concerns with the rules as currently proposed. Existing processes and approaches that meet court decrees and/or provide positive and beneficial results should not be compromised or superseded by these new rules. At the same time, states would be encouraged to be innovative in developing new processes and approaches that achieve the results envisioned by these rules in a more efficient manner. The State of Montana encourages EPA to apply a "functional equivalency test to state TMDL programs prior to the imposition of any new program requirements. The test would provide a demonstration that a state process, method or approach achieves the same desired results intended to be achieved by the proposed rules. There are numerous examples of these cases, including how states prioritize their lists, incentives that states have built into their programs to achieve correction of impaired conditions in lieu of a TMDL, and recognition of various approaches to implementing TMDLs. EPA must recognize that "one size does not fit all" and the TMDL rules must remain open to alternative methods of doing business that achieve comparable results.
As we've said previously, we're also seriously concerned about the fiscal implications of the proposed changes. By all indications, the proposed program and its increased scientific rigor and reporting burden would cost substantially more to administer while achieving fewer water quality improvement results. The State of Montana operates its current TMDL program on a limited budget but achieves a high degree of efficiency through local leadership and volunteerism and by minimizing administrative overhead costs. Increasing program administrative costs would translate directly to less money available for local, on-the-ground implementation of water quality improvement measures.
In the following pages we are providing you with more detailed comments and analyses of these and other aspects of the proposed regulations.
303(d) List Development
It is Montana's position that a consistent, technically-sound, well-documented listing methodology is a critical component of any TMDL program. Montana's state TMDL law establishes standards for data quantity and quality, and the Department of Environmental Quality (with comments from the public and EPA) has developed detailed criteria for making beneficial use support determinations.
We are committed to a high-quality listing process, but we see EPA's proposed process for submitting state listing methodologies to EPA as being unworkable. In Montana, with state law requiring a 60-day public comment period on a draft 303(d) List, the state must start updating the list nearly a year before its due date, so our methodology must be essentially final at that time. Under the proposed process, a state would not receive EPA's comments on its methodology until three or four months (or even a few weeks) before the List submittal is due. At that point it would be impossible for the state to make any significant changes to its methodology in response to EPA comments.
States occasionally may make major changes to their methodology, but most changes between editions of their list will be fine-tuning. Experience gained or the availability of new methods will create opportunities to make small improvements. If such fine-tuning can only be done at the cost of going through the cumbersome proposed process, states will likely choose to lock-in their existing methodology and forego making improvements.
The list of factors [identified in .130.23(c) and (d) of the proposed regulations] which must be addressed in the methodology submission also is unacceptable. This listing obviously is not a comprehensive statement of the elements that a methodology would need to address, and some of the factors listed would not be relevant for all methodologies in all jurisdictions.
Based on the concerns expressed in the preceding paragraphs, the State of Montana recommends adoption of an alternative approach, as follows:
1. Retain the existing regulatory requirement that documentation of the methodology used to develop the List be submitted with the List. Include a requirement that the methodology address the factors to be considered in deciding what data and information to use, or not use, in making assessment decisions.
2. Provide non-regulatory guidance, assistance and examples to aid states in developing sound methodologies. This would give the states the flexibility they need to develop methodologies suited to their specific needs.
3. If a state submits a list based on an unacceptable methodology, disapprove the list if warranted, or identify concerns and put the state on notice that the next submittal will be disapproved if the deficiencies are not corrected.
303(d) List Format
The State of Montana is adamantly opposed to the proposed 303(d) List formatting scheme which would split the list into four separate parts. This proposal would hinder state efforts to improve the water quality of impaired waters by increasing the administrative workload and would complicate efforts to obtain public understanding and support for state TMDL programs. Montana requests that the single list format be retained with an optional provision for displaying pollutant/pollution data when available. A separate mechanism should be used to track water bodies that have not ye attained standards though they are covered by a TMDL plan.
The need for separating waters impacted by "pollutants" from those impacted by "pollution" is an artifact of the attempt to define the term TMDL as a plan rather than a load and of the legal hair-splitting made necessary by that definition. In practice, making this distinction would require an amount and specificity of data that is almost never available when listing decisions are made. Even if a tremendous increase in the available funding were to give us the data needed for list partitioning, separating the list into separate parts would draw agency and public attention away from the program goal of correcting water quality impairment--regardless of its cause.
Montana strongly agrees with the need to have an accounting mechanism for water quality-limited segments for which TMDLs have been approved but in which standards have not yet been attained, because this provides a continuing incentive to implement TMDLs and a recognition of where implementation is occurring. However, a separate tracking mechanism is needed and a number of alternatives are available to accomplish this goal, including the 305(b) statewide water quality assessment report, or the inclusion of separate appendices within the 303(d) List. The proposed requirement to retain these water bodies on the actual 303(d) List until water quality standards are attained is in direct conflict with the Montana TMDL law. Our law, patterned after the current EPA protocol, provides for Relisting following TMDL development and approval. The current delisting provision has been a powerful motivator for participation in TMDL development and implementation by some landowners and local groups. We feel that discretion to delist or retain water bodies following TMDL approval by EPA legitimately belongs to individual states.
303(d) List Frequency and Timing
The State of Montana supports the adoption of a five-year reporting cycle, with provisions for list modifications during the interim period. As Montana has worked to provide more information and better coverage of state waters in the 303(d) list and has developed a listing methodology considering chemical, physical, biological and habitat factors, the amount of effort and information required to compile the List has expanded tremendously. We have reached a point where the effort required to prepare biennial lists is taking resources away from water body monitoring and working with local watershed groups on developing TMDL plans. A change to a five-year cycle would definitely reduce these problems.
While we support changes that would require less frequent mandatory 303(d) reporting, we urge EPA to accommodate interim additions and deletions to the state lists, based upon specific state requests and EPA review and approval. This would accommodate Montana's 303(d) petition process and would allow for timely de- listing of water bodies as TMDLs are approved or water quality standards are attained.
Montana urges that April 1 be retained as the due date for the 303(d) List. This schedule allows state staff to focus on data collection during the late spring and early summer field season, to compile a draft list during the fall, and to obtain public comment and finalize the list during the winter for April 1 submission. An October 1 due date would make it impossible to incorporate data from the most recent field season into the list assessments,- and would place the timing of the office work and public consultation effort needed for list compilation squarely in conflict with the field season.
We understand that some states object to having the 303(d) List and the 305(b) Report due on the same date. Montana recommends that conflict with the 305(b) Report schedule can be avoided by encouraging states to submit only the minimal electronic version of the 305(b) Report in years when a 303(d) List is due.
TMDL Schedules, Prioritization and Timing
Montana is concerned with EPA's proposal to require a high priority ranking for any waters where threatened or endangered species are present and for waters that are listed due to violations of the Safe Drinking Water Act's maximum contaminant levels (MCL). While the State agrees that protecting public health and endangered species is important, the State does not agree that it is EPA's responsibility to impose national priorities over State priorities. Given that EPA's approval authority extends only to the "identification" of impaired waters in the states' 303(d) Lists, Congress clearly intended that the prioritization of those waters should be left to the states. EPA should not go forward with this proposal, because states are in the best position to evaluate the truly significant water quality problems, including problems that are not related to endangered species and MCL violations, and to develop solutions for those problems according to local policies and priorities.
The practical problems arising from EPA's proposal illustrate that states are better equipped to establish their priorities and assign resources to address those priorities in an effective and efficient manner. For example, if Montana were to assign high priority for all waters where threatened and endangered species are present, then a significant percentage of the State's current list of approximately 900 impaired waters would immediately become-high priority. This is due primarily to the wide range of bull trout (Salvelinus confluentis) in streams west of the Continental Divide in Montana, and other listed species within the state. Developing TMDLs for potentially hundreds of high-priority streams within five years, as proposed by EPA, would not be feasible and would defeat the purpose of listing streams that require immediate attention.
In order to avoid the high priority ranking of potentially hundreds of stream segments, Montana would be required to undertake the onerous task of proving to EPA that the impaired quality of those streams did "not affect" the listed species. Montana believes that this would not be an efficient and effective use of state resources. States should be allowed the flexibility to establish realistic lists of priorities that can be addressed within a reasonable period of time. Establishing unrealistic timeframes for federally mandated "high-priority waters without regard to state resources only invites failure from states that cannot comply with these requirements.
TMDL development for some high priority water bodies can be complex and time consuming. States should be able to list as "high priority" impaired waters that are relatively simple to correct, particularly if the water segment is important to the local community and restoration efforts receive their full support. Efficiency at addressing water quality problems within a watershed context is another important consideration. A state's ability to develop TMDLs for separate listed segments within the same watershed and to bundle TMDLs must be accommodated. The states should be given the flexibility to address as "high priority" impaired waters other than those associated with endangered species and MCL violations.
The proposed scheduling requirement for establishing all TMDLs no later than 15 years from the date of initial listing is consistent with Montana's TMDL law, which establishes a 10-year schedule for completion of all TMDLs listed as of 1996. However, it is unreasonable to expect that a comprehensive schedule for the development of all TMDLs will not require modification over time. To help avoid unrealistic expectations and an illusion of certainty regarding the initial schedules submitted, EPA should explicitly recognize the potential need for modifications of schedules during subsequent listing cycles and establish some parameters for such modifications. For example, modifications should be allowed if states can provide a rationale demonstrating that substantial efforts have been undertaken and that new information or unanticipated difficulties make the previous schedule unrealistic or make a revised schedule more effective in making overall progress toward water quality improvement. In order to evaluate the need for such modifications, a review should be performed periodically, perhaps every five years. Alternatively, EPA may wish to consider requiring states to set more definitive, shorter-term TMDL development goals. This option would be especially compatible with our proposed five-year reporting cycle and would allow greater assurances of compliance on the part of states.
TMDL Elements
The draft regulations propose that any TMDL submitted to EPA for approval must contain 10 specific elements. Some of the elements are: quantification of the current pollutant loads, deviation from acceptable rates of loading, a detailed Implementation plane, and allowances for future growth which account for foreseeable increases in pollutant loads. Our specific concerns and recommendations on these selected minimum elements for TMDL approval are outlined below.
Identifying the pollutant load
The State of Montana recommends that EPA revise 40 CFR 130.34 (b) to clearly specify that TMDLs may be expressed in terms of a numerical pollutant load or other appropriate surrogate measures. More discussion on this aspect of the proposed rules may be found in our comments under the heading How TMDLs are Expressed."
Identify the deviation from pollutant load
In accordance with our comments on identifying the pollutant load, EPA should revise 40 CFR 130.33 (b)(3) or alternative TMDL guidance to authorize the use of surrogate water quality targets in lieu of specific pollutant loads.
Allowance for Future Growth
EPA proposes that each TMDL must provide an allowance for future growth, which accounts for any reasonably foreseeable increase in pollutant loads. Providing for future growth during the development of a TMDL is sound state and local policy and ensures that resulting water quality improvements can be maintained into the future. In fact, provisions for future growth have been addressed within some Montana TMDLs. However, EPA should not propose a requirement that is not supported by the CWA. Under the CWA, TMDLS must be established at the level necessary to achieve applicable water quality standards. In order to provide for future growth, states would now be required to establish TMDLs that result in water quality that is better than the standards in order to accommodate future increases of pollutant loads. Since the CWA does not require TMDLs to restore waters to a level better than the standards, EPA's rules should not. Clearly, the issue of providing for "future growth" in the development of TMDLs is a local issue that Congress has left for the states to decide. EPA should not go forward with this proposal.
Implementation plans
Montana agrees that TMDL implementation is an important and necessary component of a successful water quality restoration program. In fact, Montana has routinely submitted implementation plans to EPA in support of nonpoint source TMDLs. There is an important distinction, however, between a state's voluntary submittal of a plan in support of a TMDL and a requirement that a state submit a detailed plan subject to EPA's review and approval. The consequences of establishing regulatory requirements governing a state's submission of an implementation plan rather than a voluntary submittal are fairly obvious. If EPA adopts a regulatory approach to the state's submission of implementation plans, the perception (or reality) will be that the approved implementation plan will have legal effect. In that event, a state's failure to ensure strict compliance with the details of an approved implementation plan will invite lawsuits challenging the state and EPA's failure to strictly enforce the terms of the plan. If EPA wishes to encourage states to develop implementation plans in support of TMDLs, it should establish nonbinding guidance that may be used by the states rather than embark on a regulatory approach that has no support under the CWA.
EPA's suggestion that it has authority to impose an implementation requirement because Congress neglected to do so is contrary to the CWA's separate and distinct treatment of point and nonpoint sources. Contrary to EPA's contention, Congress has addressed the issue of developing and implementing control strategies for nonpoint sources by placing sole responsibility over nonpoint sources with the states under . 101(b), . 319 and . 208 of the CWA. In regard to point sources, there is simply no need for"implementation plans," since those sources implement TMDLs by achieving the required waste load allocations imposed in their NODES permits. The proposal to subject a state's implementation plans to EPA's approval is simply an attempt to vest EPA with "veto" power over the state's plans or programs to control nonpoint sources via the TMDL review process.
EPA's proposal is contrary to the long-standing practice of many states that use a voluntary, Incentive-based approach to address nonpoint sources. This voluntary approach has been successful in Montana and has been adopted into Montana's Water Quality Act as a means of addressing nonpoint sources during TMDL development and implementation. EPA's proposed emphasis on "requiring" federal approval of a plan that establishes drop-dead timelines, milestones, reasonable assurance, and a recitation of the State's regulatory controls over nonpoint sources would defeat the voluntary approach that most states rely upon.
Montana further questions EPA's ability to develop an implementation plan within 30 days after it disapproves a TMDL. It is unlikely that EPA will have the resources to develop a plan for nonpoint sources that includes "reasonable assurance" that the TMDL will be developed. More importantly, a plan developed within 30 days would not allow for sufficient public comment or be supported by the individuals or entities responsible for implementing the TMDL.
Although Montana currently includes many of EPA's proposed elements for implementation plans into the State's plans for nonpoint TMDLs, Montana does not believe that the proposed implementation plan elements discussed below are necessary or warranted for effective TMDL development.
Reciting legal authorities
Generally, listing legal authorities is not necessary when promoting community- based partnerships. Watershed project participants for nonpoint TMDLs are interested in improving water quality for their own use, as well as for the benefit of the community and local economy. Since these groups are being asked to develop watershed plans voluntarily, it makes no sense to list the State's authority to enforce water quality standards, which may be viewed by project participants as an implied threat of an enforcement action. A listing of this nature serves no purpose. and would likely be counter-productive.
Developing monitoring milestones and re-evaluating plans
Establishing specific time frames within which water quality standards will be achieved is not relevant in practical terms and not realistic in terms of establishing achievable milestones for nonpoint sources. Most water quality improvement projects for nonpoint sources, especially for agriculture lands in Montana, balance the need to achieve immediate water quality improvements against the need to implement projects that are practical, supported by the community, and based upon resource considerations. For these reasons, Montana frequently takes an adaptive management approach that develops best management practices (BMPs) for specific nonpoint sources and then uses monitoring as a feedback mechanism to adjust management measures as needed. Although water quality models may make it possible to estimate water quality response prior to implementation, use of an iterative management approach allows water improvements to proceed while the effectiveness of BMPs is being evaluated. By contrast, modeling or predicting the effectiveness of a nonpoint source project takes time and resources and ultimately does not provide a reliable method of establishing specific time frames for water quality improvements.
It has been Montana's experience that evaluations conducted after an initial period of implementing nonpoint source projects provide a better framework for determining improvements achieved by the project. Persons with technical expertise within local watershed groups, such as state and federal specialists, are important in implementing successful watershed projects in Montana. They advise the groups as to whether monitoring results show the projects are being effective. Their on-site evaluations provide "best professional judgments which watershed groups rely upon to modify or improve projects. Since projects are routinely evaluated on the basis of monitoring data and analysis, a reevaluation plan and monitoring milestones are not necessary to achieve successful TMDL implementation in Montana. The proposed requirements focus too much attention on predictive planning and, in Montana's experience, this emphasis would reduce the time available for local groups to actually implement and monitor water quality improvement projects.
Reasonable assurance
Montana supports the concept of providing reasonable assurance that a TMDL will be implemented. It has been Montana's experience that "reasonable assurance" is best achieved through the State's efforts at providing the technical, educational, and financial assistance necessary to ensure the successful implementation of a TMDL. For nonpoint source TMDLs, Montana typically develops a plan that identifies specific tasks, provides an estimated schedule for completing target goals, identifies the project participants, identifies initial funding sources, identifies monitoring requirements, and is supported by a contract whenever the project is funded by . 319. In at least one instance, Montana has also provided "reasonable assurance" for a point source TMDL by developing a cooperative agreement for voluntary reductions of nutrients in the Clark Fork of the Columbia River. Although Montana supports the concept and, in fact, currently provides "reasonable assurance" for TMDL implementation within the State, Montana objects to EPA's proposal to require approval of a state's methods for providing "reasonable assurance" for nonpoint source TMDLs. This is particularly true in relation to EPA's statement that it may require the states to adopt a regulatory approach to achieving "reasonable assurance," if a state's voluntary approach is ineffective. EPA has no authority to require regulatory controls over nonpoint sources and should not consider a proposal that coerces states into abandoning their voluntary programs. EPA's suggestion that it may veto NPDES permits, redirect . 319 funding, or designate certain silvicultural or animal feeding operations as point sources in the event the states do not provide adequate "reasonable assurance' is indicative of the coercive approach EPA is proposing.
EPA's proposal would do little to ensure that TMDLs for nonpoint sources are actually implemented. Instead, the proposal would divert state resources away from education and technical assistance for nonpoint sources to engaging in a paper exercise of predicting precise timeframes, schedules and funding, even though predicting those factors may not be feasible during the initiation of a project. For example, requiring states to identify adequate funding at the time a TMDL is submitted is both unrealistic and counterproductive. In many cases, adequate funding for nonpoint source TMDLs is not identified until a project is two or three years underway. It has been Montana's experience that funding needs rarely are fully known when goals for restoring streams impaired by nonpoint sources are initially established. Requiring the identification of funding prior to submitting a TMDL may discourage states from submitting TMDL projects and defeats efforts to restore impaired streams in a timely fashion. The same objection can be made to the requirement that states identify specific delivery mechanisms such as contracts, local ordinances, and cost-share agreements for nonpoint source TMDLs. Although . 319 source projects will likely be supported by a contract, there are other nonpoint source projects in Montana that will not. EPA's proposal to adopt a requirement for the identification of funding and a specific delivery mechanism for every nonpoint source TMDL would invite lawsuits from groups that do not believe a state, such as Montana, has provided adequate assurance that the TMDL will be implemented. EPA should not adopt binding regulations governing a state's ability to provide "reasonable assurance," but rather should provide the states with guidance that will assist in the effective implementation of TMDLs.
Endangered Species
Montana supports the concept of addressing federally listed threatened or endangered species during the TMDL process. The State is concerned, however, with EPA's proposal to require states to engage in the rigorous and time consuming consultation process prescribed under Section 7 of the Endangered Species Act (ESA). Under EPA's proposal, states will now be required to ensure that their TMDLs will not likely jeopardize the continued existence of threatened and endangered species or destroy their critical habitat. Although Sec. 7 was enacted to ensure that no federal activity would contribute to the extinction of an endangered species, EPA's rule proposal would subject the states' water quality restoration projects to the federal consultation process. The time and resources generally required to conclude consultation under Sec. 7 would severely impact the states' ability to develop TMDLs in a timely manner. Moreover, since TMDLs are designed to restore impaired waters, the State questions why a requirement ensuring TMDLs do not jeopardize a listed species is necessary. By adopting this proposal, states may be challenged by individuals who do not believe that a particular TMDL goes far enough to restore listed species or their habitat. EPA should not go forward with its proposal to require a "no jeopardy" finding as a required TMDL element. Instead,
EPA should adopt a rule that simply requires states to consider native or endangered species in their development of TMDLs and to informally involve the U.S. Fish & Wildlife Service during the TMDL process. This approach is consistent with Montana's process of including the protection of native fish in its criteria for ranking TMDLs as high priority and informally consulting with the U.S. Fish & Wildlife Service during its development of Sec. 303(d) Lists and TMDLs.
How TMDLs are Expressed
According to 40 CFR 130.33 and 130.34, TMDLs must contain a load reduction that ensures the water body will attain and maintain water quality standards, including aquatic or riparian habitat, biological, channel, geomorphologic, or other appropriate conditions that represent attainment or maintenance of the water quality standard. For example, for a stream impaired by sediment deposits, reduced sediment loading is required. The proposed regulations appear to require that all TMDLs be expressed in terms of loading. Even in Part 130.34, which indicates that EPA recognizes the importance of habitat quality, biological measures and geomorphology, it appears that a loading must be calculated in relation to these water quality characteristics.
The vast majority of the water quality problems in Montana are due to nonpoint sources and many of those problems are due to irrigation and riparian management problems that cause habitat degradation. Calculation of specific pollutant loads is simply not a suitable method to describe these problems, much less lead to practical solutions. There are cases where it would be possible to measure and calculate sediment loads that would relate to the problem, but this is rarely practical due to the expense and technical and practical difficulties that would be involved, as follows:
1. The extremely variable nature of sediment data collected in such systems often requires many years of extensive data collection and analysis to produce conclusive information.
2. Spring ice breakup or peak-flow seasons are often the key times to collect sediment data, but traveling and working in many parts of Montana during that time often is not practical or possible.
The new TMDL guidance document, "Draft Guidance for Water Quality-Based Decisions: The TMDL Process (Second Edition)," that was published in draft with the new regulations, however, allows for TMDLs to be expressed in terms other than load. This guidance says on page 3-10:
Are surrogate targets appropriate or necessary? In some situations, there are no numeric water quality criteri[a] or quantifiable pollutant load that can be used to define the allowable pollutant load and express the TMDL. In these situations, surrogate targets that have a quantifiable with the water quality criteri[a] or pollutant load can be used to provide numeric indicators of quantifiable measures to express the TMDL. The relationship between a surrogate measure, the water quality standard and the pollutant load should be clearly described.
The draft regulations should be modified to be consistent with this guidance. We believe the statements in the draft guidance are absolutely true; in some cases there is no quantifiable load. The bulk of the loading of many streams is carried by the streams at times and quantities that are nearly impossible to quantify. We believe that indicators such as biological health indices and measures of changes in eroded or deposited sediments are scientifically justifiable and make good economic sense. EPA has promoted rapid bioassessment methods for years, understanding their utility for water quality management. It is inconceivable to us that EPA would ignore this type of monitoring and focus solely on an engineering- based loading calculation for all pollutants.
There are practical ramifications from narrowing the scope of what constitutes a load under the proposed rules. We are concerned that the proposed rules will significantly reduce our flexibility in how TMDLs may be expressed and evaluated. We see the potential for adverse consequences such as significantly increased monitoring costs, reduced public acceptance of our programs, and a concomitant decrease in overall improved water quality due to being forced to direct our limited resources more intensively on water quality research. Rather than focus on actual loads in ail situations, we support giving the states discretion to apply cost-effective and easily understood surrogate measures where appropriate. EPA's existing rules allow broad use of surrogate measures of loading to address a broad range of habitat and other problems common in Montana. In contrast to what we foresee under the proposed regulations, our current approach has proven to be cost- effective, efficient to implement, and palatable to the public.
Public Participation
The State of Montana is strongly committed to public involvement and community- based environmental protection and restoration. We wholeheartedly support this concept in the proposed regulations and have adopted these principles as the cornerstone of our state TMDL laws. However, as with our other concerns on the proposed rules, we take exception to the proposed specificity with which states would be required to engage their citizens in the TMDL process. A close look at the Montana approach will demonstrate our sincerity in meeting this obligation. We have established a requirement for a 60-day public comment period on the 303(d) List. We have also established a requirement to involve local watershed advisory groups, conservation districts and various other interest groups in development of the draft rankings and priorities for TMDL development in Montana. We are currently planning 17 public hearings this winter on our year 2000 303(d) List, including listing methodologies, TMDL priority designations, and water body assessment schedules. Public involvement is a standard practice for TMDL development in Montana because of our strong link to local watershed groups. We have routinely reported on the level of public involvement associated with each TMDL submitted to EPA for approval. Establishment of a Statewide TMDL Advisory Group, representing 14 stakeholder groups, is required by Montana TMDL law. The group's formal role is to assist in TMDL priority development and to advise the State of Montana government on other TMDL related issues. .We have also included a public petition process within our state TMDL program whereby any person can request that a water body be added to, or deleted from, the 303(d) List by providing the data and information necessary to support the requested change. This provision provides an extra measure of public involvement in our water quality approach by allowing for public input on the 303(d) List at any time, not just during the intermittent (currently biennial) reporting cycles. All elements of Montana's TMDL public participation program are a result of intensive, broad-based discussion and deliberation, followed by legislation. Additional EPA specificity dictated through rules revisions is unnecessary and undesirable.
We already routinely incorporate endangered species concerns into our watershed management approach, as previously discussed, and encourage USFWS and our Department of Fish, Wildlife and Parks and Natural Heritage Program to be involved throughout the process of watershed management and nonpoint source pollution control. However, it is the State of Montana's firm position that TMDL development by the State is not a federal action, and therefore, formal consultation is not required under the Endangered Species Act.
Petition Process
EPA's proposal to create a public petition process, by which any person could petition EPA to develop lists and TMDLs in the event a state fails to "substantially" meet its schedule, is problematic. The State views this as another instance in the rules where EPA is expanding its limited authority to review lists and TMDLs to now include EPA's authority over the states' pace of TMDL development. While we agree that states should make every effort to meet their schedules for TMDL development, EPA's proposal may unnecessarily encourage public requests that EPA intervene in a state's TMDL program. States should be allowed to develop ambitious schedules without fear that EPA may elect to "take over" their TMDL program, if a citizens group is not satisfied with the state's progress in TMDL development.
It is important that EPA's regulations encourage effective public participation in state programs, and not establish a system whereby citizens are implicitly encouraged to bypass the state. EPA should establish specific requirements for these petitions.
In particular, petitioners should be required to demonstrate that: (1) they have requested the state to take action; and (2) the state either refused or was unable to take the requested action. Petitioners should be required to submit any available information as to why the state has declined to take the requested action and the process should provide an opportunity for states to respond before EPA determines an appropriate response. Our suggested modifications to the petition process are necessary to recognize the states' primary role in implementing Section 303(d) and to support, rather than hinder, the viability of state efforts.
Transitional TMDLs
Under its new proposal, EPA would approve any TMDL submitted within 12 months of the final rule changes if it meets either the pre-amendment requirements or the post-amendment requirements. The State of Montana strongly supports this proposal. TMDL processes are often lengthy and more than 100 Montana water quality improvement strategies are currently under development. Without a provision in the amended rule to address transitional TMDLs, it would be necessary to stop and reevaluate or revise pending TMDL development efforts to ensure that the new requirements were met. This would be an inefficient use of resources and would hinder the progress of Montana's efforts toward water quality improvement.
Atmospheric Deposition
The proposed definition of load allocation would include atmospheric deposition as a non-point source of pollutants. The State of Montana has voluntarily considered the importance of atmospheric deposition in its development of pollution allocations for some lakes. However, the technical difficulties and absence of appropriate data and analytical models present significant barriers to widespread development of water quality improvement strategies that include atmospheric deposition. Until such capabilities advance, it would be an inefficient use of limited state resources to develop technically weak TMDLs for these water bodies. Potential relationships to other Montana program goals would also need to be evaluated, for example, the Montana Smoke Management Program and Hazard Reduction Law pertaining to logging slash disposal (burning). In the interim, we recommend that states should be delegated the authority to decide how and when, on a case by case basis, state air quality management issues should be coupled with the TMDL process.
Legal Issues Concerning Endangered Species Act (ESA)
EPA's new rule proposal would require states to ensure that their TMDLs will not likely threaten the continued existence of threatened and endangered species or destroy their critical habitat. (See 40 CFR . 130.33(d)). In support of this proposal,
EPA simply suggests that endangered species are an important component of the ecosystem and it wishes to "integrate" the CWA with the Endangered Species Act (ESA). In effect, EPA is proposing that states fulfill the obligations imposed under Sec. 7 of the ESA, which was enacted by Congress to ensure that no federal activity will contribute to the extinction of an endangered species. Although Sec. 7 refers exclusively to "federal action," EPA's rule proposal would subject state actions, such as the development and implementation of TMDLs and lists, to the consultation requirements that apply only to federal actions. In addition, states will now be required to give "high priority" to waters where a threatened or endangered species may be present and to submit their lists and TMDLs to the U.S. Fish & Wildlife Service and the National Marine Fisheries Service (Services). (See 40 CFR .130.28 and 130.37). None of these requirements are supported by law and their implementation would blur the clear distinction between the state's primary authority over TMDL development and EPA's limited role in overseeing the states' activities. As a result, the primary authority of the states to prioritize their lists and develop TMDLs for the purpose of achieving applicable water quality standards will become secondary to protecting federally listed species and their habitat. If EPA's proposal to address endangered species is adopted, EPA's statutory "oversight" role under Sec. 303(d) will be significantly expanded to become the driving force behind the development of TMDLs. The following comments address each of EPA's rule proposals that require states to ensure that endangered species are not jeopardized.
Priority Ranking for endangered species
Under Sec. 303(d) of the CWA, states are to prioritize their lists of impaired waters "...taking into account the severity of the pollution and the uses to be made of such waters." Under EPA's current guidance, states may expand upon the statutory list to consider additional factors in setting priorities. In Montana's view, EPA's current approach is appropriate, because the guidance does not compel states to ignore the statutory factors in favor of a single factor that has never been endorsed by Congress. Under EPA's rule proposal, states would be required to give "high priority" status to any threatened or impaired stream where an endangered species may be present. This requirement not only ignores the statutory factors under the CWA, but eliminates the states' discretion to consider other "high priority" factors, such as the importance of a particular water body for recreational or aesthetic purposes, the vulnerability of a water body as an aquatic habitat, and the state's immediate programmatic needs. All of these factors are recognized under EPA's current guidance and are consistent with the CWA's directive to establish priorities based upon beneficial uses and the severity of pollution. Under the rule proposal, states would be compelled to prioritize their waters in favor of restoring endangered species to the detriment of restoring severely polluted waters. This requirement has no basis under the CWA and directly conflicts with the statutory factors enacted by Congress. Since the CWA does not require states to consider federally listed species during the state's development of TMDLs, EPA should not proceed with this proposal until clearly authorized by Congress.
Soliciting comments to ensure the protection of endangered species
EPA is proposing rules that would establish various requirements for public participation (See 40 CFR .130.37). Among those requirements is a provision "encouraging" states to establish processes with both the Services that will provide for the early identification and resolution of threatened and endangered species as they relate to lists of impaired or threatened water bodies, priority rankings, schedules and TMDLs. Accordingly, the rule would require states to submit their draft lists and TMDLs to the Services at the time that public comment commences, unless the state requests EPA to do the submittal. In order to facilitate early consideration of endangered species during the stalest listing and TMDL process, EPA will request the Services to provide their comments to both the states and EPA. The state then would be required to consider the Services' comments and document the basis of its response. Prior to EPA's approval of a list, priority ranking, TMDL or schedule, EPA will review the sufficiency with which the state "addressed" the Services' comments.
On its face, the rule appears only to require a state to consider the comments of the Services without imposition of additional federal requirements to ensure the continued existence of endangered species. When read in conjunction with the proposed new rule requiring that TMDLs must not be likely to jeopardize endangered species or their habitat, it is clear that the consultation requirements applicable to "federal actions under Sec. 7 will now apply to the states. These requirements are spelled out in rules adopted by the Services and generally would result in intensive data collection, resources, and delay.'
1. EPA estimates that consultation on a state's water quality standards takes "approximately eighteen months." 64 Fed. Reg. 2742 (Jan. 15,1999). In Montana, Sec. 7 consultation on the State's revised water quality standards began in 1994 and has yet to be concluded.
Under EPA's proposal, the federal agency's responsibility to collect the necessary data and to engage in consultation will be shifted from EPA to the states. In effect, the rules unconstitutionally "commandeer" the states to implement a federal program. See New York v. U.S., 505 U.S. 144 (1992); Prinz v. U.S., 521 U.S. 898 (1997).
Although EPA's rule proposal does not elaborate upon the deference given the Services' comments on lists and TMDLs, it is clear from the rules implementing Sec. 7 that the Services would have a major role in determining whether a TMDL or list may be approved by EPA. If a biological opinion is required as a result of the Services' review, EPA will have little choice but to require the states to adhere to the conditions in the biological opinion. In some instances, the state may be unable to follow the conditions of the opinion due to lack of regulatory controls over nonpoint sources. Montana urges EPA not to adopt these proposals, but rather consider addressing the issue of endangered species in guidance.
Fiscal Impacts of Proposed Rules
The State of Montana is very concerned that the new TMDL rules would result in significant additional costs to states over current law. Our Department of Environmental Quality (DEQ) has primary responsibility for implementing the provisions of 303(d). Given the formidable workloads of DEQ TMDL staff, the new rules would likely significantly raise the costs per TMDL, greatly slow the entire process and lead to an overall decrease in water quality from present conditions. They also would require that additional staff and resources to be devoted to the TMDL process and that local water groups, technical advisers and consultants be educated on new program requirements.
According to EPA's Water Quality Workload Model, Montana currently has minimal resources to run a TMDL program under the rules as they now stand. Currently, DEQ has 13.5 FTE (full time employees) committed to water quality standards activities, including monitoring, reporting and TMDL activities, with a budget of about $1.35 million. EPA's Water Quality Workload Model: Draft Module 2, when calibrated to Montana's parameters, suggests that 58 FTE and a total budget of about $4,896,000 would be needed to implement TMDLs on time under the rules as they now stand. Despite this discrepancy with EPA's modeled numbers, DEQ staff has been highly effective in implementation and in-as gained valuable assistance from local watershed groups and other outside groups.
While the DEQ staff has been effective, the previous paragraph demonstrates that they have a challenging task to meet TMDLs on time given their current resources. It follows then that the new and more complicated rules proposed by EPA would set back the staff and unduly slow the TMDL process unless additional resources were obtained. In addition, the new rules undo much of the work and fiscal investments already put into Montana's current TMDL program. By our most conservative estimate, DEQ would need at least twice the current resources to comply with the proposed rules in a timely fashion. Our best guess is that between 22 and 24 additional FTE over the 13.5 currently employed would be needed to comply with the new TMDL rules, along with several tens of thousand of dollars in new equipment. These figures are further explained in the paragraphs that follow.
Given that an additional FTE in standards activities costs about $65,000 a year (including benefits and operating expenses), the additional staff would cost an estimated $1,448,000. These figures suggest that EPA probably is not correct that the rules would cost less than $100 million annually for all the states. This would be less than $2 million per state on average in additional costs. It is likely that average costs per state will be much greater. Costs for Montana could be much higher than the conservative estimate of about. $1.4 million, due to uncertainties about the consequences of the new rules. Montana is a small state with respect to population and polluting sources. Many states' current costs are much greater and the potential cumulative increase in costs under the new rules would likely be greater than what EPA has estimated.
The following four paragraphs explain in more detail the estimated 22-24 extra FTE and extra equipment needed under the new rules. If all TMDLs in Montana were required to focus mainly on specific pollutants as stated in the new rules, it is estimated that at least 4 additional FTE would be needed for modeling, monitoring and sampling. These new staff would also need several thousand dollars in new sampling equipment, as a conservative estimate. The additional FTE would be needed in part to continually monitor and model pollutant loads for certain water bodies for which current law applies more effective and less expensive surrogate measures to achieve desired levels of water quality. The more comprehensive listing for impaired waters in the new rules would require additional labor hours in both the office and field including additional travel to selected water bodies and increased monitoring, sampling, data collection and administrative work. We estimate that about 0.25 additional FTE would be needed just to administer the more complicated listing method EPA has proposed.
Under the new rules, states would assign a "high" priority to certain impaired waters identified by EPA and would complete these TMDLs within five years. Montana already has a system of prioritization that considers but does not necessarily give highest priority to drinking water or waters harboring endangered species. DEQ estimates that a full 60-70 percent of Montana's current TMDL list would have to be listed as high priority (just from the drinking water and endangered species concerns) and thus would require completion within five years. The result would be a significant increase in workload within a relatively short time period, requiring additional FTE and resources. Conservative estimates suggest that 18 additional employees would be needed to complete high priority TMDLs within 5 years. This number constitutes three times the current personnel (six FTE total), four dedicated to regulatory monitoring, one to TMDL methods, and one to involvement with the 303(d) List.
An expedited TMDL process (due to having to complete high priority TMDLs in five years) would impose significant additional costs upon DEQ. For one, we would have to quickly hire new FTE and hastily train them. We might also be forced to neglect other parts of TMDL implementation, or implementation in areas of the state with no high priority waters. Such costs are difficult to quantify.
Other additional costs from the new rules include meeting the 10 specific elements and providing 'reasonable assurance' that goals are met. The most conservative estimate would put the costs of meeting these elements at $5,000 (for additional monitoring equipment, modeling software and computers) with any additional labor hours included in the additional 18 FTE mentioned above. This proposal also would allow EPA to demand or revise a TMDL if petitioned to do so. This could lead to occasional litigation and additional costs to the State of Montana. These costs have not been included in this analysis. The costs of requiring a public review of TMDLs every two years are estimated to be 1 FTE the first year and 0.5 FTE in subsequent years.
In conclusion, it is apparent despite our conservative calculations that the proposed rule changes would have a significant fiscal impact on the State of Montana, and one EPA has not accurately quantified or addressed. The impacts could be sufficient to upset our entire TMDL process and program. Few aspects of the proposed rules can be seriously considered in the absence of a more detailed fiscal analysis and a federal funding package.
The Honorable Carol M. Browner
Administrator, U.S. Environmental Protection Agency
401 M Street, S.W. Washington, D.C. 20460
Attn: Water Docket (W-99-04)
Re: Proposed Revisions to the National Pollutant Discharge Elimination System (NPDES) Program and the Federal Antidegradation Policy.
Dear Ms. Browner;
I am writing on behalf of the State of Montana concerning the U.S. Environmental Protection Agency's (EPA) proposed revisions to the HPDES nobles and federal antidegradation requirements, 40 CFR Pans 122, 123, 124, and 131, published in the Federal Register on August 23, 1999. The enclosed comments are the combined effort of our state natural resource agencies who have worked together to analyze the rules and to develop consensus continents. The State appreciates the opportunity to comment ore the proposed rules and supports EPA's efforts to address the Clean Water Act (CWA) goals of restoring and improving the nation's waters.
Montana wishes to emphasize that it shares with EPA the common goal of protecting and improving water quality and we remain dedicated to meeting that objective. Although we share a common goal, Montana does not agree with EPA's approach to achieving water quality improvements by imposing federal regulatory controls over nonpoint sources. Montana continues to believe that nonpoint source pollution is best controlled at the State level through programs based on land management practices and land use decisions. We feel that EPA's emphasis on obtaining federal regulatory control over nonpoint sources is not warranted and may be counterproductive to achieving cleaner water. Montana's program of best management practices for forestry activities has continued to improve over the years and the program has demonstrated its effectiveness in protecting water quality through State-sponsored audits. From the State's perspective, adding a federal permit requirement to address nonpoint source forestry activities is duplicative of state programs and adds little in terms of actual water quality improvement.
In general, we think the existing CWA program to restore impaired waters through the development of TMDLs is adequate and that EPA's proposal to require "reasonable progress" in restoring impaired waters to TMDL development is not justified by the additional costs. Implementation of EPA's offset proposal would divert limited State resources away from the core activities of developing and implementing TMDLs, which produce the most benefit in terms of restoring water quality.
Attached are Montana's detailed comments on the proposed rule revisions. We look forward to working with EPA to ensure that our mutual objectives in protecting and restoring waters are reasonably and effectively achieved.
Sincerely,
Mark A. Simonich
Director
Introduction
The State of Montana has long supported the goals of the Clean Water Act (CWA) to restore and maintain the quality of the nation's waters. Montana also recognizes the need to continually evaluate and, if necessary, improve the methods by which states address nonpoint sources. Although EPA's Nile proposal attempts to address the issue of "progress" in improving water quality, we cannot identify any additional realistic benefits that would fiber the CWA's goals and that are justified by the added regulatory burdens and costs. Instead, the new rules add unnecessary complexity to the states permitting process.
The State is concerned with EPA's attempt to redefine activities traditionally considered as nonpoint sources as point sources and require permitting and regulatory controls for Rose sources. The State believes That the move to redefine nonpoint sources might negate much of the cooperative approach that the Montana forestry best management practice (BMP) process has engendered and cause unnecessary disruptions to Me State's process for managing nonpoint sources through reasonable and effective land management practices. The State is also concerned that the imposition of offsets for new or increased point sources will overburden State resources in administering an already cumbersome permitting process and unfairly single out certain point sources to demonstrate reef progress in restoring impaired waters prior to the development of a TMDL.
In general, Montana believes that the existing regulatory framework implementing the CWA's NPDES program and the federal antidegradation policy is adequate. The State also disagrees with EPA's efforts lo address the issue of nonpoint sources and lack of TMDL progress by adopting rules that are not supported by the CWA. For these reasons, Month objects to EPA's proposals to modify the existing requirements and urges EPA to address these issues, if necessary, in guidance.
Antidegradation Changes -- Offsets for New or Expanded Sources
EPA is proposing changes to its antidegradation rules to require any new or existing discharger undergoing significant expansion in an impaired water body to obtain a 1.5:1 offset. The purpose of the rule is to promote "reasonable progress" in restoring impaired waters prior to the development of a TMDL. The choice of a 1.5:1 offset ratio appears lo be entirely arbitrary and is also a serious deterrence. This proposal is not supported by the CWA and clearly goes beyond what Congress has expressly sanctioned as the appropriate method for states to restore impaired waters. The TMDL process established under Sec. 303(d) of the CWA requires states to identify pollution sources in an impaired water and develop wasteload and load allocations for point and nonpoint sources, respectively, that will bring the water body into compliance with water quality standards. A rule requiring restoration limits for a particular discharger prior to TMDL development may needlessly interfere with the TMDL process which requires a comprehensive and equitable pollution allocation process. We also believe that, regardless of the stands of a discharge as "new" or "expanded", the imposition of offsets prior to TMDL development may be disruptive for a discharger whose permit limits may require changes after a TMDL has been developed by the State.
While we appreciate EPA's concerns regarding the slow pace of TMDL development nationally, the State of Montana and other states have taken effective measures to strengthen their programs. We should not be penalized by the imposition of the proposed additional and unnecessary NPDES requirements that significantly impact our State permitting program. States should be allowed to focus their efforts and resources on addressing impaired waters under the TILL process, not through additional permit requirements. The limited environmental gain from imposing offset requirements ore a single point source within an Impaired watershed does not justify the adoption of these requirements.
Although EPA admits there is no authority in the CWA to support its proposal, it relies on the antidegradation policy as a vehicle to impose the offset requirements. EPA's proposal goes beyond the primary objective of the federal antidegradation policy, the stated purpose of which has been to protect and maintain existing water quality. While the State does not disagree with the historical concept of EPA's antidegradation policy as a means of maintaining existing water quality, we do object to a proposal that would require states to restore impaired waters outside of the TMDL process. EPA's proposal needlessly intrudes upon the states' primary responsibility to ensure compliance with their water quality standards through state-issued permits and state programs for nonpoint sources prior to TMDL development. The heavy- handed approach of EPA's proposed rule would require states to divert their limited resources away from the CWA's goals of developing TMDLs and towards administration of an increasingly complex permitting program. For example, if an offset is obtained from a nonpoint source, state resources would be diverted to ensure that a net improvement from a particular landowner is achieved. Rather than impose "regulatory" requirements over a single landowner, states should be given the flexibility to use the* resources in a manner more suited to controlling land practices within the entire watershed. This proposal is simply another attempt by EPA to encourage states to "regulate" nonpoint sources through the imposition of offset requirements that ultimately result in enforceable load reductions for nonpoint sources.
Establishing an administrative process to establish, track and enforce offsets would: (1) require significant new resources for permitting programs, (2) retard the permitting process and contribute to an increased permit backlog, and (3) create burdensome regulatory requirements for nonpoint sources that are best managed through improved land practices. In Montana, about 90 percent of the streams and 80 percent of the lakes identified on our Sec. 303(d) List are impaired due lo a variety of nonpolar pollution problems The process of establishing; and monitoring offset requirements for impaired water bodies with multiple nonpoint Sources would be difficult, if not impossible. to effectively administer and enforce. The proposed regulation may force the State into simulations where it is unable to effectively administer or enforce its own permit requirements.
Finally, EPA's proposal might, in certain circumstances, hinder water quality improvement because the proposal focuses solely on reducing the load of the pollutant, rather than the concentration of the pollutant. This approach is not necessarily consistent with TMDLs, where an objective may be to reduce the in-stream concentration of a particular pollutant. An example is a stream impaired due to high metals levels. If a facility proposed to discharge effluent containing lower metals concentrations than the receiving stream, the net elect would be to lower the in-stream metals concentrations. Under EPA's proposal, the discharger would be required to offset the load of metals us the discharge, regardless of the effect of that discharge on the beneficial uses that have been determined to be impaired. If EPA goes forward with this proposal, offsets should be applied in Do situations: 1) where the load, and not the concentration, is perceived to be the problem (such as phosphorus accumulations in a lake), or 2) where a discharge is proposed in pollutant concentrations greater than those of the receiving water.
Point Source Designation for Certain Operations
EPA is proposing amendments that will allow it to designate certain animal and aquatic feeding operations and silviculture activities as point sources. EPA is proposing to make this designation in instances where EPA has promulgated a TMDL for the state. According to EPA, the designation would provide EPA with "reasonable assurance" that the federal TMDL will be implemented by requiring designated sources to obtain an NPDES permit. In order to designate timber harvest activities as point sources, EPA is also proposing to remove an exemption that has been in effect for more than two decades. EPA's proposal to designate what could be all silvicultural activities as point sources ignores the directive of Congress to address nonpoint sources through state-administered programs under . 319 and . 208 of the CWA. Further, since EPA is proposing to designate point sources based upon "other" considerations that are not typically relied upon by the states, EPA's approach would 'have many operators subject to what they perceive as an arbitrary designation process.
Montana is concerned with EPA's attempt to change the regulatory setting of more than two decades of consistent and intentional Congressional recognition of silvicultural activities as nonpoint sources that are not subject to NPDES permit requirements. The character of most silviculture activities as nonpoint sources, and the policy determination to manage these activities through planning and management techniques rather than permits, is firmly rooted in the CWA and its legislative history. The control of nonpoint sources under . 319 specifically leaves the development of control programs, including the consideration of a regulatory approach, with the states. This means that Congress has concluded that additional processes, such as federal permits to control nonpoint sources, are duplicative and not needed to achieve the goals of the CWA. Since all states have either voluntary or regulatory programs for nonpoint source pollution EPA's proposal seems to ignore the congressional intent that the choice of nonpoint source control approaches is left to the states. By imposing NPDES permits on nonpoint sources, EPA's proposal will effectively preempt state programs that use a voluntary approach to control these activities.
If adopted, EPA's proposal will disrupt the functions that are split Belong state agencies. In many cases, state programs are built around the differences between point and nonpoint source discharges and the responsibilities for administering regulatory programs and land management programs are vested in different agencies Subjecting traditional nonpoint source activities to permitting requirements or Section 401 certification will only add duplication of effort by these agencies, particularly in states with mandatory or well-developed best management practices.
EPA's proposal ignores the success of Montana's nonpoint source pollution control program, which relies upon innovative and effective land management practices that have demonstrated significant improvements in water quality without regulatory controls. In Montana, a combination of voluntary BMPs and statutory requirements for "streamside management zones" provides protection to Montana water quality during timber harvest operations. The BMPs were developed over the last decade through a cooperative effort between Montana agencies and forest industries. As a result of this cooperative effort, the State's forest industries voluntarily implement these BMPs as a matter of properly doing business.
During the past 10 years, Montana has documented the success of its voluntary nonpoint source program by conducting biannual audits to monitor the implementation and effectiveness of BMPs in protecting water quality. Formal audit reports have been issued every two years for the past eight years. These audits demonstrate steady improvement in both the application and the effectiveness of forestry BMPs in protecting water quality. For example, the percentage of forestry practices that meet or surpass BMP requirements has increased from 78 percent in 1990 to 94 percent in 1998. From the State's perspective, the success of Me voluntary program results from educational programs and continuing cooperation bestrewn the State and the forest industry. EPA has recognized the success of Montana's voluntary BLIP program and the She's program received EPA's nonpoint pollution prevention award. The entire voluntary program has been at a minimum expense to the State of Montana Based upon Montana's and other states' experience, EPA should recognize that voluntary programs are often more effective and less costly than adopting a regulatory approach to control forestry activities. States should be allowed to continue with their efforts to improve their voluntary programs without needless interference or additional regulatory controls.
EPA's proposed rules would have a profound affect on TMDL implementation in Montana and would disrupt our successful efforts at implementing voluntary BMPs. The new rules, if implemented, would negate much of the cooperative approach that the forestry BMP process has engendered. Designation of certain silviculture activities as point sources that would require an ESPIES Storm water permit would provide little additional benefit towards achieving compliance with water quality standards. The storm water permits issued by me State mill ultimately rely on the BMPs that have already been developed by the State and which are currently implemented voluntarily. A requirement for a federal NPDES permit is unnecessary and duplicative of state efforts.
The only possible benefit resulting from designating a silviculture activity a point source would be the Great of enforcement. A regulatory threat over timber activities In impaired watersheds may provide a strong disincentive for road maintenance and improvement projects, revegetation projects, and other activities that are now routinely done by forest landowners as part of their commitment to BMP implementation. The reluctance to undertake activities that ultimately reduce nonpoint source runoff would be exactly the opposite result of the CWA's objective to restore and improve the nation's waters. The State opposes EPA's proposal because it would impose a federal "top down" approach that may impede the state efforts at achieving actual water quality improvements through a demonstrably effective voluntary approach. Moreover, EPA's proposal to designate point sources using "over" criteria that are typically not used by the states will leave EPA's designation open to challenges resulting from arbitrary and capricious decisions.
We feel that the resulting Costs of the new rules to small entities, point source dischargers and to states would greatly outweigh the benefits and that, in this regard, the new rules are not economically justifiable.
Offsets
EPA claims that because the proposed offset provisions in the rules would require a new or increased discharger to obtain offsets only from large entities, there would be no impact on small entices. This seems plausible. There would, however, be potential costs to state agencies from enforcing offsets, sewing up monitoring programs and guidelines for offsets to be included in permits, process and issue new permits, and modify any existing permits involved in offset contracts. There also would be state- incurred costs in determining and enforcing "reasonable further progress" toward attainment of water quality standards. Because Montana's permitting system is fended entirely by fees collected from permit holders, any added costs must be passed along to all the Remittees in the system. Most importantly, the benefits resulting from the new rules are uncertain, unclear and at best do not seem to justify the extra program costs.
Offsets could prove to be a major bureaucratic burden to states while providing lime or no gain in water quality improvement. For one, dischargers would have to locate and bargain with each other to establish offsets. This would require some assistance by states and would require additional resources. Offsets would also impose transaction costs on the dischargers. Further, the cost of establishing and administering offsets would depend upon the particular state and the geographical distribution of large dischargers. Facilitating pollution offsets may be more difficult in a state such as Montana where a given water body is affected by only a few discharges.
EPA's proposed requirement that all conditions necessary to ensure the load reduction must be included permits would require reworking and restructuring permits to include all relevant offset information. Information within the permit would have to specify all details of the offset including the stipulations between discharging parties and the effects upon the water body. This mold slow the permuting process and would cause more work for those involved with water quality enforcement. Almost certainly, additional staff end funding would be needed to prevent an increase in the backlog of cases if this requirement were made law.
Additional costs would result from EPA's suggested point and non-point source trading option. This would be difficult to accomplish in practice and raises a number of questions. If states failed to quantitatively confirm non-point loading reductions that were needed to offset point sources, they Bright be liable for costly citizen lawsuits or EPA intervention. Given that Montana's water quality problems are largely due to nonpoint sources, isolating load reductions from nonpoint source controls through monitoring can be difficult ant expensive. Again, it seems that the costs of administering these complex regulations outweigh the small gains in net progress.
Designating Certain Activities as Point Sources
EPA maintains that the effect of eliminating the current categorical silvicultural exclusion would be limited. EPA says that this provision would not impose significant new costs on a substantial number of small entities and that it can predict with a high degree of confidence that it would need to exercise the proposed new designation authority on only a few occasions. We disagree with these assertions.
Many small timber operations in Montana not subject to permitting under current law would be brought into the process under the near rules. In high priority TMDL areas, timber companies receiving permits under this proposal would immediately begin to develop a pollution prevention plan, which may involve modeling future allowable harvests. The main costs to newly regulated timber companies would come from preparing and putting in place a detailed pollution prevention plan, paying permit fees and monitoring the effectiveness of their best management practices. The preparation of a pollution prevention plan can be a complex and overwhelming task, even for a relatively minor timber project. Clearly this is beyond the capabilities of many small operators and could easily cripple their business activities.
Animal Feeding Operations (AFO) and Aquatic Animal Production Facilities (AAPF) that are designated as point sources to be permitted under the new rules would incur costs associated with a pollution control plan and consultation with either the state or a consultant for technical intonation. Further, permitting could greatly affect decisions that AFO and AAPF managers make, such as the need to apply for loans or purchase new equipment. As a result, production within these facilities could be delayed or greatly modified Many capital expenditures for both production and pollution control take years to resolve and permits may make some of those investments obsolete, inefficient or very uncertain. Permits, when they do become effective may also alter production patterns for these types or operations. Such changes could result in less product being; available when prices and markets are at their peak. Uncertainty as to whether operation would be permitted may result in additional company expenditures on research, equipment, and consultations with the state. While we do not necessarily disagree with permitting such operations, it is clear that EPA is wrong in saying that permitting would carry no substantial costs.
EPA's Assertions as to the Effects of the Rules on States.
According to EPA, the total costs to state, local and tribal governments as a result of the new rules would not exceed $96 million in any one year, with a majority of these costs borne by state government. While the total costs to states may be less than $100 million annually, the State of Montana asserts that EPA's total cost projections of less than $1 million is not correct. Further, we question why states should incur any additional costs considering the limited environmental benefits.
EPA indicates that other costs would be home by the private sector. Because of Me way Montana has set up their discharge permitting program, all additional costs would be passed along to Me permit holders. However, we again question why any additional costs can be justified if water quality benefits accruing from the proposal would be limited or non-existent.