January 20, 2000

Water Docket (W-98-31)
Comment Clerk for the TMDL Program Rule
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460

W-99-04, NPDES/WQS
Comment Clerk, Water Docket<>
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460

Dear Sir or Madam:

On behalf of the National Governors’ Association (NGA), we are writing to comment on the U.S. Environmental Protection Agency’s proposed regulations on total maximum daily loads as published in the Federal Register on August 23, 1999 (40 CFR 122, 123, 124, 130, and 131). We are pleased to provide comments to you on these proposed regulations, because the nation’s Governors are committed to cleaning up the waters of the United States in an effective and fair manner.

States have always supported the Clean Water Act’s goals to restore and maintain the quality of the nation’s waters. Water resources are central to the nation’s economic and environmental well-being. As noted in NGA’s Policy on Water Resource Management (attached), "the primary responsibility for managing the nation’s vital water resources is properly vested with the states." We are concerned that the proposed regulations will lead to a shift in the traditional relationship between states and the federal government beyond what was intended by Congress in the Clean Water Act. We also believe that the proposed regulations fail to properly respect President Clinton’s new Executive Order on Federalism, which notes that prescriptive, inflexible approaches to public policy problems "can inhibit the creation of effective solutions."

The most significant role the federal government can play is to assist states by providing funds needed to achieve water quality goals. Resource needs for improving and maintaining the quality of the nation’s waters are a shared responsibility between the federal government and the states. Historically, federal funding for state implementation of water quality goals has been extremely limited, and when adjusted for inflation, dramatically reduced during the last twenty years. We are concerned that the proposed regulations impose costly new requirements on states. The Administration and EPA must address the unfunded mandate implications of the proposed regulations before they are finalized.

States must also be afforded significant flexibility in the management of water resources. Governors are committed to managing the quality of the nation’s waters through holistic, community-based watershed plans that are designed to meet water quality standards. Requiring a "one-size-fits-all" approach to the management of water quality is inappropriate, and we fear such an approach will be unworkable. Distinctive water quality problems in every state necessitate the application of tailored approaches to addressing those problems. While TMDLs can be valuable tools used to achieve the goals we all share, they should not be the primary tools. The proposed regulations reflect a pervasive top-down, command-and-control approach to water quality and are not viable as a national approach.

Given the great diversity of water resources among states and regions in the nature of water resources a uniform national approach is incompatible with attaining state water quality standards. There simply must be more than one acceptable method with which to improve water quality. Section 3.2 of NGA’s Water Resource Management policy presents one such approach; other alternative, functionally equivalent state plans should also be allowed under the proposed regulations. The Governors believe that the failure of the regulations to provide sufficient flexibility to recognize alternative programs that can achieve water quality standards is a significant flaw. The TMDL program should focus on results, not process.

Other provisions of the proposed regulations diminish the flexibility that is necessary to ensure a successful water-quality based program. Some of the more troublesome provisions include:

• Redefinition of federal/state roles and responsibilities. Examples of how the state-federal roles are being redefined include EPA’s proposed regulatory proposal to require that implementation plans be submitted as part of TMDLs; require that threatened waters be listed on the 303(d) list; designate traditional nonpoint sources as being subject to NPDES requirements; and allow EPA to implement a TMDL within an NPDES delegated state. In the final regulations, EPA must provide states maximum flexibility and deference to ensure that states’ efforts toward achieving water quality goals are met.

• Timelines. To ensure the achievement of water quality standards, EPA should tailor the pace or process of the program commensurate with federal funding allocations for the appropriate federal share of the workload.

• Offsets. This provision appears to be patterned after similar provisions crafted by Congress in the Clean Air Act. While apparently intended to provide a process to allow for beneficial growth in impaired watersheds, we are concerned that the stringency of the offset requirement could have unintended negative impacts on growth and abatement of existing sources of impairment. We urge you to consider removing this provision or, at a minimum, allow for flexible and market-based alternatives, such as state developed water quality trading programs, to achieve the reductions necessary most cost effectively.

Water quality problems generally, and nonpoint source problems in particular, vary greatly from state to state, and from watershed to watershed. A "one-size-fits-all"

approach will inevitably fail. For EPA to complement state efforts to attain clean water, the proposed regulations must be more flexible, consider the lack of funds that accompany these requirements, and accommodate alternative approaches to achieving the goals of the Clean Water Act. Thank you for the opportunity to comment.

Sincerely,

Governor Kenny C. Guinn
Chairman
Committee on Natural Resources

Governor Thomas J. Vilsack
Vice Chairman
Committee on Natural Resources