January 19, 2000
Comment Clerk for the TMDL Program Rule
Water Docket (W-98-31)
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
RE: Proposed Revisions to the Water Quality Planning and Management Regulation and Proposed Supporting Revisions
Dear Comment Clerk for the TMDL Program Rule:
The Western States Water Council is an organization of representatives appointed by the governors of sixteen western states. The governors have appointed heads of state water resources and water quality agencies and others, so that we are able to address a broad spectrum of water policy issues that affect the West. In this capacity, we are concerned with several provisions of the Proposed Revisions to the Water Quality Planning and Management Regulation and Proposed Supporting Regulations. The attached comments address these concerns.
These comments make clear that the Council supports efforts to improve the quality of impaired water bodies, and appreciates EPA's efforts to provide national leadership toward this goal. For these efforts to be successful, however, the national TMDL program should be based upon realistic requirements that are achievable with available resources; are supported by applicable law; and allow sufficient flexibility on the part of states in implementing the program to deal with the variety of characteristics and circumstances that exist in the respective states. The Council is concerned that the TMDL program as now proposed by EPA constitutes a complex and resource-intensive effort which may hinder the success of many ongoing state programs.
In response to this concern, the Council recommends the following:
Thank you for the opportunity to comment on the important issues raised by EPA's TMDL program rule proposal. The Council believes the enclosed comments will help EPA develop rules that are realistic and achievable, and which will therefore expedite future efforts to improve the quality of impaired water bodies.
Sincerely,
Francis Schwindt, Chair
Western States Water Council F:\BRUCE\TMDL-LTR1.WPD
Enclosure
Detailed Comments
by the Western States Water Council
on Proposed TMDL Rule
Introduction
The Council supports efforts to improve the quality of impaired water bodies, and appreciates EPA's efforts to provide national leadership toward this goal. In order for these efforts to be successful, it is important for the national TMDL program to be based upon realistic requirements that are achievable with available resources; are supported by applicable law; and allow sufficient flexibility on the part of states in implementing the program to deal with the variety of characteristics and circumstances that exist in the respective states. The Council is concerned that the TMDL program as now proposed by EPA constitutes a complex and resources-intensive effort which may hinder the success of many ongoing state programs.
The proposed TMDL program revisions, which were portrayed as an incremental refinement of the existing program, would result in a substantial new resource burden. Water quality monitoring and assessment needs would experience a tremendous increase, in an effort to support defensible decisions to list (or not list) particular water bodies and to develop appropriate and defensible TMDLs. The time and expense associated with developing a more complex Section 303(d) list, in the face of heightened concerns regarding the implications of listing decisions, would also increase. Further, the costs of developing TMDLs that satisfy the rigorous expectations of the proposed rule would be substantially greater than is the case at present, particularly in view of EPA's expectation that a detailed implementation plan be developed as part of each TMDL.
By expanding the functions of Section 303(d), including requirements for implementation plans accompanied by "reasonable assurances", the proposed rules would leave states with the burden of implementing a controversial program in ways that Congress has not explicitly sanctioned. The Council supports implementation as a component of the TMDL program, but in the absence of such action by Congress, the Council urges caution in formulating revisions to EPA's TMDL program. Western states have established explicit statutory frameworks for the TMDL program. These programs vary because of local characteristics and circumstances, but have been developed with the involvement and support of affected stakeholders and elected officials. The Council therefore urges EPA to allow states maximum flexibility in administering and implementing the program. To this end, the Council proposes that EPA adopt a functional equivalency provision in the rules that will allow states to demonstrate that a process, method or approach, although not fully recognized in the regulations, is acceptable if it achieves the same desired results.
Listing Requirements - Threatened Waters
Section 303(d)(1)(A) of the Clean Water Act does not establish authority to require the listing of threatened waters. The reference to water bodies for which existing controls "are not stringent enough to implement any water quality standard applicable to such water bodies" is most logically read to refer to water bodies not currently attaining water quality standards. This interpretation is particularly appropriate when the practical and resource implications of EPA's alternative interpretation are considered.
While some states have chosen to list "threatened waters", others have not. For the latter, the new rules would, therefore, be especially burdensome. In light of naturally occurring variations in water quality as a result of seasonal and annual variations in hydrologic conditions, substantial data would be needed to ascertain that a "declining trend" that will result in nonattainment of standards exists. Despite EPA references to "existing and readily available data and information", the expansion of the listing requirement to include threatened waters could lead to numerous debates about what constitutes adequate data to reach a conclusion that a water body is threatened. Such questions suggest that addressing issues regarding the listing of threatened waters would require substantial resources. These decisions are best left to individual states. The Council does not believe it is wise to mandate the listing and development of TMDLs for threatened waters.
Water Bodies Impaired by "Pollution"
Water bodies impaired by "pollution" are to be included on Part 2 of the list. While such water bodies are then exempted from TMDLs for such "pollution", the listing itself clearly implies that water diversions and other hydromodifications represent a polluting activity. Thus, even though TMDLs are met for pollutants, a water body would remain listed if determined to be impaired by "pollution." State laws and regulations provide the appropriate basis, for addressing water quality impacts from water development. As competition for various water uses becomes more intense, including those related to instream uses, states are increasing their capacity and efforts to protect water quality associated with these instream uses. EPA, on the other hand, is ill-equipped to deal with the legal and institutional interrelationships between water quantity and water quality. Nevertheless, according to the proposed rules, flow impairment activities would be considered to be pollution and affected impaired waters would be listed. Thus, the question of how to adjust the loading in order to meet water quality standards would clearly be before the agency.
Such a measure would only sharpen the debate, undoubtedly lead to additional litigation, and thus be counterproductive to the overall goals of the Clean Water Act. With respect to the controversial issues associated with quantity and quality interrelationships in the West, public policy should respect the accommodation contemplated by the Clean Water Act, Section 101(g).
Furthermore, the Council believes that having more than one list of impaired waters will be inherently confusing and inimical to the involvement of affected stakeholders. For the program to be successful, public acceptance and engagement is vital. Having multiple lists with many of the same water bodies on each list would be contrary to this goal. Further, the one list should not be segregated into parts.
EPA's regulatory proposal should not mandate the listing of waters impaired solely by "pollution." States can address this matter based on state specific policies. This is not to suggest nor to prevent states from reporting the conditions of these water bodies in their 305(b) assessments nor to prevent a state from deciding for valid reasons to list these water bodies on its 303(d) list.
Atmospheric Deposition
EPA should make clear that waters impaired primarily by air deposition do not currently require TMDL development, due to the technical difficulties presented. The absence of appropriate data and analytical models for determining and allocating loads in such circumstances present major barriers to TMDL development at present. Until such capabilities advance, it would be an inefficient use of limited resources to develop technically weak TMDLs for these water bodies.
Listing Methodology
EPA's proposal would require that states "develop a methodology that explains how you will consider and evaluate all existing and readily available data and information" to develop a Section 303(d) list and determine priority rankings. The Council believes such a demonstration is appropriate and reflects the degree of flexibility for states that the Council feels is critical. EPA then proposes to require the submission of this methodology to EPA eight months prior to submission of the Section 303(d) list. The Council believes that it would be an inefficient use of resources to mandate a totally separate process and submission deadline for the listing methodology. It is appropriate for EPA to require that a listing methodology be developed with public input. However, establishing a separate submission requirement with a separate deadline would necessitate an additional administrative process that will detract from efforts to develop and submit Section 303(d) lists in a timely manner. Instead, EPA should merely require that states identify the listing methodology as part of the Section 303(d) list submission.
States agree that consistent criteria are essential for determining whether water bodies should be listed (or de-listed) pursuant to the requirements of Section 303(d) of the Clean Water Act. Moreover, these criteria should be consistent with the guidance for preparing state 305(b) reports. However, listing decisions must be based, in part, upon the available data (which are often limited) and in part on the policy judgements of public officials responsible for such decisions. The critical issue is that listing decisions be made in public proceedings where input from all interested parties is both welcomed and encouraged. Inevitably, there will be differences in the listing decisions made among the states using similar criteria in different circumstances.
EPA should engage in the 303(d) listing process in each state and provide continuous input as states proceed during the development of their list. The 303(d) list along with all pertinent supporting information, including listing methodology and response to public input, should be submitted for approval in one package after EPA's input has been fully factored into the state's decision-making process.
How TMDLs Are Expressed
The proposed rules will significantly reduce states' flexibility with regard to how approvable TMDLs may be expressed and their effectiveness evaluated. The potential consequences include significantly increased monitoring costs, reduced public acceptance of TMDL program requirements, and an overall decrease in states' abilities to effectively address water quality impairment problems. The existing rules accommodate TMDL expression in terms of pollutant loads or other appropriate measures. This provision has allowed many western states to define impairment problems, and to establish restoration goals and implementation plans, in terms that are not only understandable by stakeholders, but which are also more cost effective relative to states' abilities to monitor for TMDL effectiveness. These are key issues with many western states. Our experience has shown the need for flexibility and innovation in order to stretch available budgets, and to accommodate the needs and secure the participation of the many, varied stakeholders that must be engaged in resolution of the prevailing nonpoint source pollution problems. Surrogate measures of TMDL effectiveness, in lieu of actual pollutant loading data, have become the norm for many states as their TMDL effectiveness monitoring responsibilities increase relative to the available monitoring budgets.
A rigorous requirement that all TMDLs must include an expression of the pollutant load or load reduction is, in our view, impractical, expensive to implement, and discouraging to the many current western efforts to develop, implement and evaluate TMDL plans for nonpoint pollution problems. The Council encourages you to carefully consider the implications of Sections 130.2, 130.33 and 130.34, as proposed, and to retain a considerable degree of latitude in how TMDLs may be expressed.
Functional Equivalency Provision
In adopting these new rules, EPA must also recognize that many states have already developed processes, methods and approaches to meet court, legislative or stakeholder demands for their existing TMDL programs. In many cases, these new substantive rules may be disruptive to programs that have already developed effective TMDL programs that have been endorsed by their stakeholders and elected officials. Existing processes and approaches that either meet court decrees or provide positive and beneficial results should not be set-aside 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. The Council encourages EPA to add a "functional equivalent" provision to the regulations that will allow states to demonstrate that a process, method or approach not fully recognized in the regulations can be approved in a state program on the basis that it achieves the same desired results as envisioned by the 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, such as adaptive management and use of bottom up watershed management planning.
Listing Cycle
The Council supports the establishment of a five-year listing cycle under Section 303(d), instead of the current two-year cycle. The Council agrees with EPA's suggestions that a shorter listing cycle tends to "over-emphasize the listing of water bodies as opposed to establishing and implementing TMDLs" and that a shorter cycle is "inefficient because states...generally do not find significant changes in water quality over such a short period of time." The shorter cycle disproportionately skews resources toward listing efforts and away from TMDL development efforts, preventing a more optimal allocation of limited resources in making progress in improving water quality.
EPA also proposes to change the year 2000 list submission deadline to October 1, and to require that the year 2000 lists be based upon the new requirements. The Council believes it is unrealistic to expect the year 2000 lists be based upon the anticipated new regulations. Indeed mandating that year 2000 lists be based upon major revisions to the regulations with little lead time will simply encourage confusion, controversy and challenges to the next round of listing and will not advance efforts to improve water quality. Many states have already begun the process of working with the public toward the development of the year 2000 Section 303(d) list. In view of the time required for EPA to review and react to the many comments it will receive on this major regulatory proposal and to finalize revisions to the regulation, and in view of the substantial lead time required to implement any major changes to the current system, EPA should provide that year 2000 lists be based on the existing regulations, with the next list thereafter to be based upon the new requirements. Alternatively, EPA could move immediately to a five-year listing cycle, so that the next list (after the 1998 list) is due in 2003, based upon the new regulations.
Prioritization and Scheduling
EPA unwisely equates priority ranking of listed water bodies with the development of a schedule for TMDL development. The proposal would require that "TMDLs for high-priority water bodies and pollutant combinations should be established before medium and low-priority water body and pollutant combinations." This absolute requirement ignores the fact that TMDL development for some high priority water bodies can be complex and time-consuming. On the other hand, the development of TMDLs for some lower priority water bodies may be relatively simple and easy to accomplish. It is very inefficient to require that all TMDL development for lower priority water bodies be delayed -- potentially for many years -- until all of the complex TMDLs needed for higher priority water bodies are completed.
Consistent with our proposal for a functional equivalency provision, the Council also believes that states should be allowed to develop their own prioritization process. Many states have such a process in place. As long as equivalent results can be realized, a state should be free to pursue a process geared to its circumstances and needs.
Encouraging, but not mandating, that water bodies where threatened or endangered species are impacted by impaired water quality be given a high priority is appropriate. However, EPA's proposed mechanism for achieving this goal is inappropriately based on requiring states to prove a negative. Instead, the rules should require states to consider the effects on endangered and threatened species in establishing priorities and schedules.
Schedule Modifications
It is unrealistic to expect that a comprehensive schedule for the development of all TMDLs needed in a state (over, e.g., a 15-year time frame) can be maintained without 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 where a rationale is provided by the state that demonstrates 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.
Transitional TMDLs
EPA is proposing that it will 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 Council strongly supports this proposal. TMDL processes are often lengthy and many TMDL development efforts are currently underway. Without a provision in the amended rule such as that proposed to address transitional TMDLs, there would be a need to stop and re-evaluate or revise pending TMDL development efforts to assure that the new requirements were met. This result would be an inefficient use of resources and would hinder the progress of efforts toward water quality improvement.
Implementation Plans
EPA proposes than an implementation plan be developed and submitted to EPA for approval as part of each TMDL. The new provisions add confusion and controversy to an already burdened process. The Council supports implementation of TMDL's, however suggests that EPA should utilize the established function of water quality management plans under current regulatory provisions of Section 130.6(b) or even under Section 319 of the Act rather than adding new requirements under Section 303(d) with no statutory basis.
Public Petition Process
In Section 130.65, EPA proposes a new public petition process, by which any person can petition EPA "to carry out the actions that states are directed to perform under CWA Section 303(d)." While we recognize that public participation is an essential element of any successful water quality management program, we are not convinced that this proposal is legal or necessary.
The new rule proposes additional mechanisms to ensure full public participation in listing of impaired waters and development of TMDLs. However, the language of Section 303(d) provides no explicit authority for EPA to "carry out the actions that states are directed to perform." In any case, the existing language creates an incentive for petitioners to circumvent state efforts.
If the process is to remain in the rule, it should be revamped to have petitioners demonstrate that they have made a good faith effort to have the relevant state take the requested action and that the state has declined to do so. Further, petitioners should be required to submit any available information as to why a state has declined to take the requested action. EPA's process should explicitly provide an opportunity for states to submit any comments they may have on a public petition before EPA develops a response to the petition. Any action that EPA might take should be predicated on a finding that the state has failed to perform its duties as required under the Act.
These proposed modifications to a public petition process are necessary to recognize states' primary role in implementing Section 303(d) and to support, rather than hinder, the viability of states' efforts. EPA should encourage states' efforts by explicitly discouraging efforts to circumvent states' Section 303(d) processes.
Silviculture
The Council is also concerned about EPA's proposal to recognize silvicultural activities as point sources. This proposed rule changes more than two decades of consistent and intentional Congressional and agency recognition of silvicultural activities as nonpoint sources not subject to NPDES permit requirements. The character of most silvicultural activities as nonpoint and the policy determination to manage those activities through planning and management techniques rather than permits is firmly rooted in the CWA and its legislative history. In many cases state programs are built around the differences between point and nonpoint source discharges and the responsibilities are split between state agencies. Subjecting these activities to permitting or Section 401 certification will only add duplication of effort by various state agencies, particularly in those states with mandatory best management practices for silviculture activities. EPA itself expressed the statutory basis for identifying most silvicultural sources as nonpoint in its original proposal for the regulatory definition of nonpoint silvicultural activities:
"Taking [public] comments, as well as the legislative history, the statutory language, the NRDC v. Train decision, and the technical data available on silvicultural activities into consideration [i]t has been determined that most water pollution related to silvicultural activities is nonpoint in nature. The potential risk and the cost of litigation over forcing this issue may well be out of proportion to any possible benefits."
Pollutant Offsets
The proposed regulations would require pollutant load offsets for new or significantly expanding discharges in impaired waters. Absent new Congressional authority, the Council believes it is premature to impose such requirements. The complexity of administering such a pollution offset program should not be minimized. There has not been sufficient work and discussion to properly address the many significant implementation issues that would immediately surface. Resources would be inappropriately drawn to the many legal disputes this would cause. The Council believes that the issue of pollutant offsets must be delayed until more thorough proposals for implementation are developed including obtaining additional Congressional authority.
Resources
As the foregoing comments should make clear, the Council foresees that the TMDL program will necessitate significant expansions to existing programs for water quality assessment, TMDL development and implementation, leading to a substantial increase in water program costs. At the least, it will be critical to maximize available funding toward actual achievement of Clean Water Act goals and to avoid administrative overhead. Unfortunately, the proposed rules would lead us in the opposite direction.
Conclusion
Thank you for the opportunity to comment on the important issues raised by EPA's TMDL program rule proposal. The Council believes these comments will help EPA develop rules that are realistic and achievable, and which will therefore expedite future efforts to improve the quality of impaired water bodies.