KANSAS
DEPARTMENT OF HEALTH & ENVIRONMENT
BILL GRAVES, GOVERNOR
Clyde D. Graeber, Secretary
January 20, 2000
Mr. J. Charles Fox
Assistant Administrator
Office of Water
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
Dear Administrator Fox:
The Kansas Department of Health and Environment, on behalf of the State of Kansas, offers the following comments regarding the proposed rule pertaining to Section 303(d), as published in the Federal Register on August 23, 1999. Kansas is under a Court Decree to establish TMDLs across the state over an eight-year period, 1999 - 2006. The state has enthusiastically applied its 15-year investment in water quality and hydrologic data to analyze the impaired water situation in the state, and its water planning process to establish the TMDLs on a priority basis to guide their implementation. Kansas believes it has adopted a meaningful process to implement Section 303(d) and restore the water quality of previously identified impaired waters of the state. In short, Kansas has accepted its responsibility to work toward clean water.
Much of the philosophy promoted within the proposed regulations has been embraced, in principle, by the state's development of TMDLs this past year. We are very concerned about the underlying intent of the proposed regulations. These concerns stem from perceived differences about the respective roles of the federal government and the state in implementing the Clean Water Act. Furthermore, Kansas views the TMDL process as a planning process for setting appropriate long-range strategies in water quality restoration on a priority watershed basis. We, therefore, resist the use of the TMDL authority as a regulatory mandate to bring about water quality improvements.
While there is sufficient authority to implement wasteload allocations through NPDES permit limits, there is clear evidence that much of the pollutant impairment seen in Kansas waters is non-point in nature. There is no legal foundation under the Clean Water Act to attach regulatory requirements of TMDLs to nonpoint source pollution. Furthermore, it has been our experience that the geographic and hydrologic extent of nonpoint source pollution defy a regulatory approach. Watershed management for water quality is the appropriate mechanism to address this pervasive problem. Unfortunately, the proposed regulations reject this philosophy and attempt to impose a federal mandate on states and by extension, point sources, to fix nonpoint issues. This approach is doomed to failure, legally, logistically and pragmatically.
Kansas believes it has found a practical means to address the impairment issues, relying on adaptive management, iterative solutions, aggressive monitoring and strong social interaction with the interest groups and individuals having a stake in this process, particularly at the local level. We need federal regulations and guidance which provide maximum flexibility to the states to carry out the responsibilities of Section 303(d) and resist formulation of a single national template to address water quality impairment. The proposed regulations fall short of our expectations, at best, and could invite dispute and litigation, at worst. The degree and detail of the prescribed remedies suggested by these proposed regulations will negate effective TMDL establishment and implementation. If watershed management is the appropriate vehicle for TMDL implementation, then, by definition, the unique characteristics of the water quality and activities within watersheds must be incorporated in any effective management plan. The proposed regulations place a barrier to this management approach and realized water quality benefits.
The following points summarize Kansas concerns regarding the proposed regulations:
1. Listing
A. It seems redundant to conduct dual public processes regarding the listing methodology and the 303(d) list itself. The methodology and its application in drafting each list should be subject to public input and incorporated within the Continuing Planning Process under Section 303(e).
B. Part two would list waters impaired by pollution, but would not result in a TMDL. This requirement diverts attention and resources away from the critical issues which do need TMDL analysis. EPA must not view TMDL as a cover all approach to address all impacts to the stream environment, particularly habitat issues. Alternative approaches are readily available under state authority to address such issues. State discretion to employ appropriate techniques to correct these impacts should be encouraged, but not through Section 303(d). Kansas fears the creation of this list which does not provide for follow-up action creates a potential for future litigation, all the while diverting attention from the pollutant impairments cited under Section 303(d). Part two involves issues which lie beyond the authority of EPA under the Clean Water Act, therefore this part should not be included under Section 303(d). The water quality assessment provided by Section 305b is more appropriate for this type of issue.
C. Kansas supports the use of Parts one, three and four as subsets of the TMDL process. Additionally, EPA should consider another part describing complex pollutant impairment issues which defy the typical approach to pollution reduction. Issues regarding large interstate waters, atmospheric deposition and naturally-occurring and historical pollutants would be listed in this part.
D. A five-year cycle would seem most fitting for managing the TMDL process on a continuing basis. Such a cycle would accommodate the triennial review of water quality standards and five year NPDES permit cycle as well as provide sufficient time to put implementation on the ground and detect trends in water quality. TMDL establishment and implementation should be viewed as cyclical, with sufficient time between listing, development and implementation.
2. Development
A. Kansas supports, in concept, the primary components of a TMDL. In fact, our first attempts of developing TMDLs (90 TMDLs submitted for the streams and lakes in the Kansas-Lower Republican Basin in June 1999) used a format which followed the general pattern described in the proposal. However, we do not agree on the level of detail necessary to place in such a TMDL, including prescribing specific corrective actions or allocating loads. TMDLs should be used to establish a relative level of responsibility in pollution reduction, but not craft hard and fast numeric levels which are to be allocated between point and nonpoint sources, or among subcategories of sources. Allocation should be allowed to be a qualitative effort, depending on the available information.
B. The proposed rules should allow TMDLs to be expressed in an appropriate manner to indicate water quality improvement. The associated allocations to wasteloads and load should similarly be flexible in their expression. Nonpoint source allocations are dynamic since they change with flow conditions. Point source allocations are fixed by the wasteload allocation computation procedures holding to a critical low flow. Melding the two processes is not a straight-forward procedure, nor a meaningful path to achieve water quality. EPA needs to recognize that the critical endpoint of any TMDL is the attainment of the water quality standards, not the loads or the allocations. As such, any process which evaluates the relative contributions of sources in a watershed setting and direct resources and attention to reducing the significant contributors should be acceptable, with or without numeric allocations. In many cases, the detailed information required to accomplish the desires of the proposed rules will be limited by time constraints produced by Court Decrees regarding scheduled submission of TMDLs. Flexible expression of TMDLs should be encouraged, especially as narrative water quality standards become subject to Section 303(d) proceedings.
C. Any TMDL developed in Kansas should be adaptive and iterative with modifications forthcoming with additional information. In this context, every TMDL is "phased." To assume that any given TMDL will describe an immediate solution to an impaired situation is erroneous. The TMDL process must establish a process for obtaining and incorporating local information to make adjustments to original expectations of the TMDL. Once again, any process which works toward eventual attainment of water quality standards is acceptable. Crafting solutions from a desktop miles away from the impaired watershed to satisfy a menu of regulatory requirements is a doomed venture.
3. Implementation
A. The expectation of EPA for reasonable assurances to implement and achieve TMDL endpoints relies on a clairvoyance never seen in water quality management. A more effective expectation would be a robust process which establishes initial goals, but allows adjustment in the face of additional information. A prescriptive approach, particularly in light of differing authorities to deal with pollutant sources, leads to disputes over the relative responsibilities of activities present in the watershed. EPA has the right and duty to expect TMDLs to be developed for water quality limited waters. However, its right to describe the specific details within the TMDL must be limited. Effective implementation is a state and local role in directing resources on a priority basis to certain geographic areas and activities. In other words, the TMDL process is a targeting procedure, dealing with state-defined priority issues. The federal role under Section 303(d) should involve approval of state developed TMDLs, consistent with the Clean Water Act, provision of resources for implementation, facilitation of complex impairment issues beyond the scope of state responsibility and monitoring of the status of impaired waters through the listing and delisting processes. Implementation at the local level, where impacts are most keenly felt, is not appropriately managed by the federal government.
B. While Kansas believes that TMDLs should be tied to implementation planning, the mechanism for that implementation is better served through Section 303(e); the Continuing Planning Process, its associated Water Quality Management Plans and the Kansas Water Plan. Section 303(d), strictly read, pertains only to point source impairment. While the state acknowledges the strong presence of nonpoint sources, federal authority does not extend to such sources and any attempt to backdoor such authority through TMDLs should be avoided. Once again, the state is better positioned to utilize the information provided through the TMDL analysis and select the appropriate implementation vehicle to achieve the endpoints of the TMDL. Particularly with nonpoint source pollution, this should be at the state's discretion not under a federal mandate.
To close, Kansas believes in the TMDL process to accomplish water quality restoration. The TMDL process should be viewed as one tool to accomplish the goals of the Clean Water Act and not as a overarching mechanism to address all possible impairments to the state waters. An approach which emphasizes flexible program management, strong local public participation and a solid data foundation should be supported by the proposed regulations. Any process which is promoted with a strong suite of prescriptive requirements and standardized approaches will not succeed in the diverse landscape of Kansas, let alone the nation. EPA should revise the proposed rules to further support the position of the states to accomplish the objectives of the Clean Water Act as expressed by Congress. The flexible, pragmatic approach already undertaken by the state will garner tremendous success over the next decade in water quality improvement. We hope that the revision to existing regulations under this proposal will support this effort and not create a divisive atmosphere, thereby making water quality restoration on a watershed basis problematic.
Thank you for your consideration of these remarks.
Sincerely yours,
Ronald F. Hammerschmidt, Ph.D.
Director, Division of Environment