December 20, 1999
Julie Hamilton
State Clearing House Coordinator
Office of Federal Lands Policy
Herschler Building
Cheyenne, WY 82002
Re: WDEQ's comments on proposed EPA revised rules for the TMDL program (See F.R., August 23, 1999, pgs 46012 - 46089) and Draft Guidance Document
Dear Ms. Hamilton:
The following comments are from the Wyoming Department of Environmental Quality (WDEQ) on the Environmental Protection Agency's (EPA) proposed revisions to its Water Quality Planning, Management and NPDES regulations to address Total Maximum Daily Load (TMDL) requirements under the Clean Water Act (CWA). The WDEQ has delegated authority to implement the water quality standards, management plans and NPDES program of the Clean Water Act. Following the filing of a lawsuit against EPA claiming that EPA and the state had failed to meet the requirements of Section 303d of the Clean Water Act, the State of Wyoming made major commitments in 1997 to address its TMDL program. During calendar year 1997, the state redefined its program schedule for listing impaired waters and for developing TMDLs. The state's workplan and schedule were accepted by EPA in August 1998. During the later months of 1997, the state implemented its listing procedures and methods that resulted in the filing of an FY 98 303d list on April 1, 1998. This filing was approved by EPA in June 1998 without change. Additionally, the state has developed and implemented a five- year comprehensive monitoring program to develop credible and scientifically sound data to support listing/delisting decisions. In the interim, the state has acknowledged and implemented several policy directives from EPA, in particular, from Mr. Perciasepe's memo of August 8, 1997 concerning schedule and implementation of TMDLs The sum of these efforts has resulted in a well-defined program in Wyoming that has gained the acceptance of local stakeholders, has received additional financial support from the state legislature, has been accepted by EPA, and has hopefully met the concerns of the lawsuit. Our comments on the proposed revisions to the federal rules will focus on the adverse affects these rules may have on a program that is achieving the intended results and is working efficiently.
General Comments:
1. On page 46013 of the federal register, the purpose of the revised rule is described which is to clarify and strengthen how TMDLs are developed. Further review of the proposed changes reveals that the proposed rules are complex, detailed and prescriptive. They mandate many processes that are resource intensive and may hinder or adversely affect ongoing effective state programs. We would strongly recommend that EPA add a functional equivalency section to the regulations that will allow a state to demonstrate an alternative process, method, or approach not specifically recognized nor described in the regulations, that could be approved if it achieves the results intended by the rules. This type of provision would not only allow for current state practices that have proven effective but would allow for future innovations that make operation of the program efficient as well.
2. From the TMDL Federal Advisory Committee Act (FACA) Committee recommendations, we had expected EPA to propose nonintrusive strategic changes to the existing rules. We were surprised by EPA's decision to do major surgery on the rules, with a total rewrite that is overly prescriptive and invades the traditional roles of the state in administration of their delegated programs. We view these proposed rules as unnecessarily disruptive to existing programs and will unnecessarily aggravate current resource shortages. As discussed below, we ask EPA to rethink the prescriptive nature of the rules and to be cost conscious about the requirements they impose.
Specific Comments on Water Quality Planning and Management Regulations:
3. §130.2(p). Reasonable assurance definition. Refer to our comments on Part 130.33
4. §130.10 & 130.22 Use of SDWA Source Water Assessments. EPA suggests in their rule that section130.10 was formerly Section 130.4 and remains unchanged. However, the reference to the new requirements for "source water assessments" under the Safe Drinking Water Act (SDWA) has been added to this rule. EPA, in the preamble and at part 130.22, expects data from source water assessments to be considered as existing and readily available information. We would suggest however, that the extent of independent "monitored data" or compliance data developed through the susceptibility assessments may be very limited. Therefore, SWAP assessments will not be a major contributor to the data source available and considered by states for listing decisions. As written, these rules seem to be creating additional expectations or requirements for SWAPs beyond those necessary to meet the requirements of the SDWA. We hope this is not the case. If assessments provide applicable information, they may be useful in developing 305b assessments and supporting 303d listings.
5. §130.22. What data and information must you assemble to identify and list impaired or threatened waterbodies? In the preamble, EPA discusses the use of "monitoring data" and "evaluated data and information" as components of the existing and readily available data and information considered for listing. We hope this rule provides sufficient flexibility that a state can specify in its methodology under Part 130.23 that only "monitoring data" will be used for making listing decisions, removing evaluated data as the principal mechanism for making listing decisions. We agree with the conclusions of the preamble that the more scientifically sound "monitoring data" should be used as the primary mechanism to make decisions on impairment of waterbodies. We also suggest that EPA not set minimum national thresholds that define what must be listed. We have found in Wyoming that minimum thresholds should be established in each suggested state with their respective stakeholders, as has been in your proposed rule on methodologies for listing.
6. §130.23 & 130.24. Documenting your methodology and submittal to EPA. The requirements of these two sections add considerable process and burden to a state's TMDL listing process. We do not disagree with the concept of Section 130.23, that a state's methodology for listing decisions should be articulated to the public for comment. However, the rule should not specify the process and time periods a state must follow. Each state has its own administrative procedures and federal rule should not be preempting these established processes.
Part 130.24 creates an unnecessary additional process and burden on the state. Where EPA exercises no approval authority over the state's methodology, the only requirement should be for the state to submit the methodology with its 303d list including evidence that opportunity for public comment was provided under the requirements of Part 130.23. Also, it makes no sense to have a requirement that the state's methodologies must go through full public notice every two years. In most cases, these methodologies will be adopted as policy or rule and there is no need to subject them to public review unless substantive changes are made. This point can be handled through the state's administrative procedures.
7. §130.23(d). Process to resolve jurisdictional disagreements. EPA is proposing a rule that would require states/tribes to develop dispute resolution mechanisms to adjudicate disagreements on TMDL issues at jurisdictional boundaries. We suggest that this is an unnecessary requirement in that most states already have informal or formal mechanisms to handle interstate water issues. Let's not create new and additional processes and mechanisms. If CWA issues between jurisdictions cannot be resolved through existing or new mechanisms, they will ultimately go to EPA as the final arbitrator.
8. §130.25 & 130.27. Scope and format of list of impaired or threatened waterbodies. EPA is proposing a segregated list that will attempt to distinguish between impairments caused by a "pollutant" versus those caused by "pollution." We believe the proposal to create different lists based on these two hard-to-understand definitions, one of which requires a TMDL and one of which requires no action, will result in confusion, deception and arguments between the state and EPA. We would suggest that EPA reconsider their proposal and go back to a single list, which is a list of impaired waterbodies that require corrective action to attain water quality standards. We suggest that EPA eliminate Parts 2 and 4 of the list and handle waters that would have been put into these parts in the following manner:
A. For those waterbodies which you cannot clearly define the pollutant of concern or may show trends of being at risk, (threatened) we suggest that EPA handles these through a separate tracking mechanism, such as a "to be monitored list." The state should acknowledge that these are the waterbodies that fall into the gray area, much like the category for pollution. For example, the state may conclude from biological data that there is evidence of impairment, but has no idea as to what is causing the impairment, or in the case of threatened there is a lack of certainty that a TMDL must be written. The mechanism for tracking these waterbodies could be developed in the state's methodology under Part 130.23 or in the 305b reporting.
B. For those waterbodies for which the state cannot write a TMDL, such as flow restricted or flow impaired, we suggest that there be no requirement to list them. Listing waterbodies for which nothing can be done will only create undue anxiety and expectations of the public, landowners and people who hold water rights. Each state has the option of reporting these conditions in their 305b report and those states who feel strongly that they can implement corrective actions would have the option of listing these waterbodies.
C. For those waterbodies where the state may or may not be able to write a TMDL, such as channelized, rip rap, or flood control works that result in a lack of complete habitat components or the effects of major highway culverts, the decision to list and write a TMDL must be left to the discretion of the state. Once again these conditions can be reported in the 305b report for tracking and public disclosure or can be listed if the state feels a TMDL can be written.
It seems that EPA's desire to have a "comprehensive public accounting" of impaired waterbodies can be achieved through several mechanisms, rather than one comprehensive list consisting of many confusing parts. The 303d list should be focused on those waterbodies which are impaired and corrective actions can be taken to remedy the problems.
Finally, it is appropriate to bring up another issue that has hopefully been addressed in these proposed rules. Currently we must list waterbodies where NPDES permits will be renewed over the next listing cycle. The state is required to do this not because we know that they are impaired, but because we must write a TMDL when the permit is renewed. This practice is most unfortunate, in that it leads the public to believe these waterbodies are impaired, when in fact this is not the case. We hope the revised rules eliminate this current requirement of EPA.
9. §130.27 Maintaining a list of impaired or threatened waterbodies. Proposed Part 3 will contain those waterbodies for which EPA has approved or established a TMDL and water quality standards have not yet been attained. We have found in Wyoming that we can motivate our citizens to get involved in developing action plans to remove the impairments if this activity and deliverables will lead to removing the listed water from the national list. We fear that changing the current practice may lead to apathy by many stakeholders and an unwillingness to participate in watershed improvement projects if it looks like the waterbody in question is going to continue to be "on the list" for years or decades. Remember, for incentive-based actions there must be a reward. Part of that reward can be getting the stream off the national list of impaired waters. We would suggest that EPA retains the current incentive. As an alternative we could track the progress on approved TMDLs in the 305b report.
10. §130.28, 130.31 & 130.32. Prioritizing the list and scheduling the development of TMDLs. EPA proposes to require a state to prioritize their list for development of TMDLs, including some specific criteria for prioritization and suggests that TMDLs should be developed as expeditiously as practical but not greater than 15 years after listing. We support the 5-year goal for high priority waterbodies and the maximum 15 year time period as reasonable for development of TMDLs, with the following exception. In Wyoming's current TMDL program, we assigned a low priority to any listed waterbody where a local stakeholder group has committed to or is developing a watershed management plan that will address the water quality problems. This includes those waterbodies that may otherwise be listed as high priority under current criteria. If this plan is developed and implemented and is achieving the desired results, we may never adopt a TMDL unless commitment to the plan begins to fail. Essentially, the accepted watershed management plan functions in place of a TMDL to resolve the water quality problem. We have found this option to be more palatable to local stakeholders, as they feel they have more ownership in how their water quality problems are addressed and they avoid the legal connotation that comes with a state developed TMDL. This alternative advocates the goal of local solutions by local folks. We certainly hope that the final rules for prioritization and schedule will recognize this unique state alternative or allow through a functional equivalency test for it to be continued. There will be many local stakeholder groups very disappointed if the federal rules no longer allow for this opportunity.
The second concern has to do with the suggested criteria that the presence of endangered species in a listed waterbody should give this waterbody a high ranking. We suggest an exception. For those cases where a recovery plan has been developed which will address the water quality concern, the TMDL may be given a low ranking to allow the recovery plan to achieve the desired results.
11. §130.29. When can you remove a waterbody from your list? As has been previously recommended, this comment supports the elimination of Part 2 from the 303(d) list. It is clear that Part 2 waterbodies can only be removed from the list when water quality standards are attained or if new data or information indicate that the waterbody has attained water quality standards. Many of the "pollution" impaired waters are a fact of life and will not be removed from the list because there is no mandatory duty to correct the situation. Therefore, the viable alternative for removing a water from the Part 2 list would be to remove the use at issue and thereby establish new standards that are attainable. Part 2 listings may encourage interest groups to petition for the removal of designated uses that cannot be attained. This has the potential to be a technical and administrative nightmare, and in fact, could result in lowered protection. For example, a use such as coldwater fisheries might be removed from a specific segment of a waterbody where irrigation withdrawals cause the channel to cease flowing for several weeks during the year. A lowered designated use may result in relaxed limits on discharge permits which could have a negative affect on flows through the system for the remainder of the year when these flows are important to fish migration, spawning, and food sources. The removal of a use, such as coldwater fisheries, from a segment of the waterbody could also negatively impact the interests of persons that may want to secure water rights to maintain minimum flows, where socially important to do so.
12. §130.30. Submittal of the list and EPA's action on the list. EPA is requesting comments on how frequently lists should be submitted (currently every two years), proposes a process for disapproval of a list, and articulates EPA's authority to adopt a list for a state. First, it seems important to tie the 303d list to the 305b report, for some of the reasons previously suggested in these comments. By law, the 305b report must be submitted every two years. Therefore, it seems logical that the 303d list should complement the 305b reporting cycle and be submitted at two-year or four-year intervals. We would suggest that the reporting cycles for the 305b report and the 303d list be offset by one year to help equalize the workload. This would allow the state to focus on producing the 305b report one year and then the following year, extract from the assessment the proposed 303d list.
EPA also proposes a rule whereupon the disapproval of all or a portion of the state's list, EPA would develop a list for the state, or if the state asks for or fails to create a list, EPA can also develop the list. We have no concerns with EPA developing the list where they are invited to perform the function reserved to the states. We also realize that ultimately EPA must perform if a state fails to act. However, where a state performs in good faith and EPA disapproves their action, disputes and questions of due process are raised. We would like assurance in the rule that a state, upon denial of its list is provided with: (1) a clear statement of the reasons for the denial; and (2) has the opportunity to engage in a meaningful administrative review process before the Administrator if we feel the decision of EPA was unjust or unfounded. During the review process, EPA should not issue a list.
13. §130.33. Elements of an approvable TMDL. Following the recommendations of the FACA, EPA is proposing to expand the number of elements that must be submitted for a TMDL to be approved. Included in this proposal is an implementation plan to illustrate that the TMDL is established "at a level necessary to implement the water quality standards." We are concerned that EPA has created such a high expectation that it will result in a substantial delay and reduction of TMDL submittals or increase the opportunity for TMDL disapproval under Part 130.35. We believe the added burden envisioned by this rule will further complicate many obligations already established under TMDL litigation. We suggest EPA reconsider their proposal. We suggest that subparts (b) (9) and (10) be severed from the requirements of a TMDL and be incorporated into separate water quality management plans under Part 130.51. We suggest that a TMDL consist of an identification of the affected waterbody, the pollutant of concern, the load reduction that needs to be achieved to meet water quality standards, and some general ideas on how to allocate responsibility (short of a detailed implementation plan). We believe this level of detail is sufficient to demonstrate that a TMDL can achieve the water quality standards, if implemented. We suggest this alternative for these reasons. Before one engages in the detailed commitments of an implementation plan, the goals and general approach for a TMDL should be subject to public comment and approved by EPA. Thereafter, we can develop the details of a TMDL implementation plan and garner the necessary commitments. This approach would also minimize the impact to current for development and approval of TMDLs.
We agree with the proposal to list source categories or subcategories while allocating responsibilities for nonpoint sources. This mechanism will help to avoid "pointing the finger" at individual sources where such action may be destructive to achieving long term goals and incentives for voluntary compliance.
We agree that states, through their authorities and planning, should develop implementation plans which provide reasonable assurance that the state can achieve the goal of the approved TMDL, and includes (if applicable) consideration of"future growth." Any consideration for future growth could be factored into the plan, if this consideration has merit, but should not be a requirement for every TMDL and implementation plan.
Finally, EPA asserts that it has the authority under the Clean Water Act to require an implementation plan as an element of a TMDL. EPA further states that it has found that the Clean Water Act is silent or ambiguous on the issue. We believe that the statute is contrary to EPA's view and does not provide EPA the authority to require an implementation plan.
14. §130.33(b)(10). Requirements of an implementation plan. EPA has proposed requirements for what must be in an implementation plan to assure its success. We believe the proposed rule to require too much written assurance and envision too much certainty. We agree that an appropriate level of planning is necessary and that we put into writing the critical components of a plan. However, we should not lose site of the goal, which is implementation on the ground, not the creation of large written documents. We must also realize that many implementation plans will involve voluntary or incentive-based controls to achieve reductions in nonpoint sources. Any plan that involves non-mandatory responsibilities must recognize a certain degree of uncertainty and flexibility. Equally, many of the Best Management Practices (BMPs) and controls that will be implemented may be phased in on a trial and error basis to discover what works and what does not. All of these uncertainties must be acceptable in an implementation plan. Otherwise, it will not be approvable. We ask EPA to rethink its rule on contents and requirements of an implementation plan. We must recognize that many of these plans will rely on good faith commitments with trial and error. If through monitoring we realize failures, the rules must not require that we replace voluntary approaches with regulatory approaches, rather we reevaluate our options and look for opportunities to achieve our goals. Finally, we suggest that EPA softens the affirmative demonstrations envisioned in the definition of "reasonable assurance." We cannot assure that voluntary controls and measures will be fully supported by adequate funding. EPA seems to recognize this limitation in the guidance document.
It is also clear from the preamble that EPA will look to regulatory solutions to deal with nonpoint sources of pollution. We must discourage these suggestions and encourage EPA to recognize and honor voluntary approaches as an effective way to deal with nonpoint sources of pollution.
15. §130.34. How are TMDLs expressed. It appears from the proposal that some form of quantification is assumed to be possible in response to an identified impairment and that quantification is appropriately expressed in terms of pollutant loading to a waterbody. Since numeric water quality standards are generally expressed as concentrations of pollutants present in a waterbody, and since impairment of such criteria are assessed based on concentrations of pollutants, it seems inconsistent to require the expression of TMDLs in terms of "loading." It is possible to reduce the concentration of a pollutant in a stream while increasing the pollutant loading. While it is apparent that loading to a system is of concern for pollutants that are bioaccumulated or biomagnified a system, it is not apparent how this same concept is appropriately applied where this is not the case. In addition, it is not apparent how a pollutant loading to a system might be evaluated to determine if an excessive loading to the system is occurring, or how meaningful relationships between pollutant loadings and pollutant concentrations can be drawn. Also, it is unclear how a quantitative TMDL can be constructed to address impairment of some narrative water quality criteria. For these reasons, we would suggest that the options for expressing TMDLs be expanded to address potential reductions in in-stream concentrations or the implementation of BMPs where it is not possible to develop meaningful load-based TMDLs.
16. §130.35. Disapproval of state's TMDL. EPA proposes a rule whereupon the disapproval of the state's TMDL, EPA would develop the TMDL for the state and require the state to incorporate the EPA TMDL into its water quality management plans. We realize that ultimately EPA must perform if a state fails to act. However, when a state and its citizens perform in good faith to develop a TMDL and EPA disapproves their action, there is certain to be adverse feelings, disputes and a need for due process. The proposed rules and preamble are silent on any type of appeal process available to the state. We would like assurance in the rule that a state, upon denial of a TMDL, is at a minimum provided with: (1 ) a clear statement of the reasons for the denial; and (2) has the opportunity to engage in a meaningful administrative review before the Administrator if the state feels the decision of EPA was unjust or unfounded. During the review process no action should be taken by EPA to impose a TMDL.
17. §130.36. EPA establishes the TMDL. EPA proposes to clarify its authority to establish a TMDL when a state asks EPA to do so, when a state fails to act or in the case of interstate TMDLs, or if EPA determines it should set a TMDL. We believe the CWA clearly places the states in the lead role of developing TMDLs. We must object to any rule that allows SPA to sidestep this important concept. In the case of interstate TMDLs, we would support a rule that requires interstate coordination on TMDLs, rather than having EPA sidestep the affected states and develop an interstate TMDL.
18. §130.37. Solicitation and response to public comment. EPA proposes to prescribe who should be solicited to comment on a list or TMDL and how the state must analyze the public comments. We agree that public participation is important, but once again it should be handled through the state's normal administrative procedures, rather than through federal mandates that prescribe schedules and how a state will respond to comments. EPA also suggests that a state should initiate an early consultation process with U.S. Fish and Wildlife Service with respect to threatened and endangered species concerns. A state may choose to include USF&W in their notice and solicitation of public comments. But requirements to fulfill consultation requirements of the Endangered Species Act should remain with EPA, not be passed to the state by EPA rules.
19. §13Q.51. Water quality management plans. It is unclear from the wording of this section whether it is the intent of EPA to have states revise and rewrite their 208 Water Quality Management Plans. This would be an extremely time consuming, redundant and unnecessary effort. Many of these requirements are now handled through other standalone programs which have been established subsequent to the 208 planning of the 1970s. These include programs such as the Clean Water State Revolving Fund, NPDES Stormwater Permitting, Source Water Protection Plans, and the 319 Nonpoint Source Program. While there may be sound reasons for consolidating these efforts into a single planning document, the state simply does not have the resources to undertake this type of massive effort. States and regional planning agencies received millions of dollars in EPA grants to develop the 208 plans in the 1970s. It would take a similar amount of resources today to update and rewrite the 208 plans.
20. §130.62. Program management. This section discusses 106, 205(j) and 205(g) grants which are available to states for planning, assessment, permit administration, and 305(b) reporting. It should be noted that 205(g) has not been funded for several years, and that 106 and 205(j) grant levels are insufficient to support even base-level efforts for these activities.
21. §130.65. Petitions to EPA to undertake actions of Section 303(d). This proposed rule would allow interested persons to go directly to EPA to list impaired water bodies or develop TMDLs. This rule seems to be in direct conflict with the requirements of the CWA and provides an easy mechanism for persons to sidestep the state process and go directly to EPA. This section should be deleted. EPA should rely on the proposed rules in Parts 130.30 & 36 for its authority to list or develop TMDLs only in those cases where a state has failed in its duties under the CWA.
Specific comments on NPDES and Antidegradation regulations:
22. §122.2. Definition for "significant expansion." EPA is proposing that any existing discharger that is proposing a significant expansion (measured by increase in load of pollutants) would have to meet the offset requirements of Part 131.12. EPA suggested that a significant expansion would be measured by a 20 percent increase in loadings under the current permit limits for the pollutant(s) of concern. If the state has an impaired waterbody and an existing discharger suggests that they want to increase the loading, but not the concentration, this should be acceptable (see our comments on how you express TMDLs). However, if this expansion results in any increase in concentration of the pollutant of concern, we have trouble understanding why any increase in the pollutant of concern would be acceptable until a TMDL is established. Our preference would be that new or expanded discharges which result in increased in-stream concentrations of pollutants associated with the impairment not be allowed until a TMDL is developed.
23. §122.4 & 131.12. Offsets required for new and existing sources. EPA is proposing that prior to a TMDL being developed, new dischargers or existing sources that would increase their discharge (which are not small entities) would have to provide a pollution offset of 1.5:1 to receive a permit. Although well intended, we believe the proposed rule is narrow in scope and may work as a disincentive toward the ultimate goal to reduce the pollutant load to the necessary level. We would suggest that "reasonable further progress" be measured by incentive-based approaches, such as participation in the development of the TMDL or many of the alternatives identified in the preamble to the rule. We agree, as stated above, the minimum requirement should be no increase in concentration or a 1:1 ratio with the additional requirements that the discharger assist in some manner with the development of a long term solution that will assure the waterbody is returned to water quality standards.
24. §122.23 Silviculture and animal feeding operations to be regulated. EPA is revising the current rules to clarify EPA's authority to designate certain silviculture activities and confined animal feeding operations as point source in watersheds where EPA has developed a TMDL. This authority would only be exercised where EPA must implement a TMDL because the state fails to develop an approvable TMDL. This rule change would give EPA regulatory tools to control these activities and achieve the TMDL. We have no comments on this proposed rule as it would not affect the state's operation of the program.
25. Draft Guidance for the TMDL Process. The draft guidance document provides good insight and interpretation as to how EPA would implement the draft rules. However, we expect considerable changes to the final rules. Based upon the final rules, we would request that EPA redraft this document and allow for public comment on it before it is finalized
I appreciate this opportunity to comment on these proposed rules. I hope you find these comments helpful as you prepare the Governor's comments. If you need any further assistance, please feel welcome to contact Gary Beach at 307-777-7072.
Sincerely,
Dennis Hemmer
Director
DH/GB/pjb
93186.doc
cc: Gary Beach, Department of Environmental Quality
Ron Micheli, Wyoming Department of Agriculture
Jeff Fassett, State Engineer
Maggie Allely, Attorney General Assistant