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February 20, 1998 Carol Browner Subject: Advisory Committee on Total Maximum Daily Loads Dear Administrator Browner: The Western Governors have worked since passage of the Clean Water Act to ensure that the states have the necessary policy framework, funding and tools to implement all of the programs called for in the Act. We have supported the Act's fundamental goals and the critical role of the states in implementing its programs. These programs include non-point source pollution programs and those establishing total maximum daily loads (TMDLs) for waters of the states. Significant attention has recently been focused upon state leadership and capacity to implement the TMDL program in a timely manner. Numerous lawsuits have been filed that seek to accelerate state implementation of TMDL-related actions. In response, the Western Governors' Association recently held a TMDL forum in Jackson, Wyoming that was attended by over 60 senior state and federal representatives. At that forum, the states determined that it would be valuable to inform you and the Federal Advisory Committee on TMDLs of western state views as you both work towards new TMDL program guidance. Attached are recommendations from the state representatives that represent the consensus view of western states on a number of important TMDL issues. We urge you and the committee members to consider them closely as you move forward. We are pleased that the President's proposed budget for FY 1999 includes substantial additional funds to address non-point sources. EPA has an excellent opportunity to provide the funds, framework and vision to ensure that the TMDL program is flexible and adaptable. We look forward to working with you to create a TMDL program that completes the job of cleaning up our nation's waters. Sincerely, John Kitzhaber, M.D. Jim Geringer cc: TMDL Advisory Committee Members Attachment 2 Western Governors' Association Recommendations to the Environmental Protection Agency and Federal Advisory Committee on Total Maximum Daily Loads February 1998 1. FUNDING - States have committed significant resources to develop and manage the point source programs called for in the Act. A major shift is now occurring that will move program direction from a past focus on regulating point sources, to a watershed approach that seeks to integrate non-point and point sources. We support this shift in overall program vision. Western states are very concerned about both state capacity and the federal regulatory or policy framework needed to implement the new approach. Sufficient funding to address this new watershed focus is not presently available. As the WGA stated in a recent letter to OMB Director Raines (attachment 2), increased TMDL funding for states is critical if the goals of the Act are to be achieved in a timely manner. EPA should provide funding to support the states' priorities and remove the caps presently limiting certain program funds. In addition to funding state programs, EPA should increase technical assistance to states, including assignment of federal employees to work directly with the states in priority programs and projects. We recognize that some of the funding issues may be beyond the scope of the committee's charge, but we believe it is important to note the interrelationship of properly funded programs with the success of those programs. Limits in available funds will require that states have flexibility to ensure that individual state priorities are addressed. The Federal Advisory Committee should note this issue and its relationship to future EPA guidance. 2. FLEXIBILITY - Experience has demonstrated that as states implement TMDL programs, flexibility and adaptability are key elements to successful state programs. The unique climate conditions, habitat alterations, hydro modifications, streamflow alterations, water temperature problems, etc., in the West require that states use, and in some cases create, a wide variety of tools to develop and implement a comprehensive TMDL program. Program guidance from the EPA should recognize regional and site-specific considerations and should avoid an approach with specific prescriptions for states to follow. 3. ADAPTIVE MANAGEMENT AND VOLUNTARY MEASURES - In the West, many of the TMDLs that are developed will address non-point sources. The Clean Water Act should be interpreted to allow for an adaptive interactive approach for state implementation of non-point sources and the attendant TMDLs. In many cases it will not be possible to be certain in advance that initial measures implemented for non-point sources will achieve water quality standards. TMDLs should be approved if they contain measures and commitments designed to achieve water quality standards over time, with a commitment to monitor and measure effectiveness and revise or replace measures which are insufficient. Experience has shown that successful implementation of the watershed approach, involving numerous stakeholders to reach consensus on measures, has greater up-front cost and time constraints when compared to the typical command and control regulatory management model. However, we believe the cost is justified because the watershed approach will yield an overall higher level of citizen commitment, therefore, resulting in more effective TMDLs and water quality improvement. If the TMDL program is to be an effective means of ensuring clean water, it needs to include local participation and buy-in. A voluntary incentive-based program, in conjunction with any state specific approaches, and strong commitments to improving water quality will ensure that the program is an effective management method. 4. DATA ACQUISITION AND MANAGEMENT - State implementation of the watershed approach for addressing TMDLs will require a significant increase in the data gathering, analysis, modeling and time required to address the variety of TMDL issues. A high level of local stakeholder involvement and confidence in the overall data management (including monitoring of the results of implementation) will be essential for successful implementation. EPA can play a significant role in supporting TMDL implementation by: 1) increasing funding support and technical assistance to the states for data acquisition, management and modeling, and 2) serving as a TMDL 'library' for states to rapidly share innovations. 5. FEDERAL PROGRAM COORDINATION - Many of the states in the West have significant portions of their land managed by federal agencies (Nevada is 90% federal land, Utah 70%, etc.). Successful TMDL implementation by the states will require the development and implementation of partnerships with a number of federal agencies (Bureau of Land Management, Forest Service, Bureau of Reclamation, National Park Service, Defense Department, etc.). In addition, the relationship between activities under federal land management programs such as the Endangered Species Act (listing and recovery actions) and the Clean Water Act must be addressed through a facilitated process with significant input from the states. On private land, the Natural Resource Conservation Service (NRCS) can have a key role in planning and implementation as a result of their unique relationships with local Soil and Water Conservation Districts and the agricultural community. NRCS also administers or provides assistance on a number of water quality related programs. Each of these programs can provide substantial assistance to private landowners in performing appropriate projects and measures on private land. The federal agencies must become committed partners with the states, and coordinate, and/or provide resources to assist states with data management and monitoring and implementation of TMDL plans including best management practices and other actions to achieve an approvable TMDL. State TMDL priorities and program guidance must be followed by the federal agencies. Funding to the federal agencies must also be provided by the President and Congress so that the agencies will have the resources necessary to be active participants with the states. Greater attention and a higher priority needs to be provided to ensure federal agency participation in the entire spectrum of TMDL activities. Where informal cooperative efforts by states have not been adequate and individual states feel that a more formal arrangement is needed, states could then develop appropriate agreements or MOUs with individual or groups of federal agencies. When EPA approves a state TMDL plan, the federal land managing agencies must be deemed responsible for being in compliance with the state plan and EPA should ensure that compliance. 6. STATE MANAGEMENT OF 303(d) PROCESS - The priorities established by the states to manage the 303(d) listing process must be respected. This is one of the key tools that states have in the TMDL process. Stakeholders and citizens need to have a real opportunity for input into this process so that it truly reflects the needs of the state. The Act clearly provides for the state management of this process and national and regional guidance and practice should continue to respect the state's role. 7. INTERSTATE/INTERNATIONAL WATERSHEDS - States and EPA will need to develop new tools to improve the coordination of watersheds which traverse state and EPA regional boundaries. In most cases these watersheds will involve only one other state, however, in some cases they may involve multiple states and/or Canada or Mexico. TMDL implementation could be improved through the development of a regional process for the West for coordinating TMDL planning and management activities among states. The WGA can provide the leadership necessary to develop a regional process for the West. In coordination with the states, EPA will need to develop the necessary processes to address international coordination of watershed plans. 8. WATER QUALITY/WATER QUANTITY INTERRELATIONSHIPS - The allocation of water is the primary jurisdiction of the states. Western states recognize that with the implementation of TMDLs, conflicts could arise between water quality and water quantity. Through the WGA and the Western States Water Council, western states are currently considering how state processes to address quality/quantity conflicts can be improved. The Federal Advisory Committee must respect the historical deference to states regarding water allocation as called for by section 101(g) of the Clean Water Act. |
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Page last updated 10/15/1999 |