Office of Federal Land Policy

122 West 25th Street Herschler Bldg., 1 West Cheyenne, WY 82002-0600. Phone: 307-777-7331. Fax: 307-777-3524.

January 20, 2000

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

Re: Proposed Revisions to the Water Quality Planning and Management Regulations as published in the Federal Register on August 23, 1999

Dear Sir or Madam:

On behalf of the State of Wyoming, we have reviewed the referenced proposed regulations. In addition, we provided notice to all affected Wyoming state agencies for their review and asked for their comments. Enclosed you will find letters from the Department of Agriculture, the Game and Fish Department, the State Engineer's Office and the Department of Environmental Quality which resulted from their reviews. State agency comments are specific to their respective agency missions. While the State defers to their respective technical expertise in developing the State's position, the responsibility to ultimately articulate the official state policies and positions lies with the Governor or the Office of Federal Land Policy. However, in this instance, the Office of Federal Land Policy believes that the comments of the Department of Environmental Quality be given the utmost consideration. The DEQ administers the TMDL program in the State of Wyoming and they speak to this issue with expertise and experience.

Of course the State of Wyoming supports improved water quality and those efforts aimed at improving impaired water bodies. However, the program now proposed by EPA regarding Water Quality Planning, specifically the Total Maximum Daily Load (TMDL) program, is extraordinarily complex and will require additional resources in terms of funding and personnel that are not realistic. These proposed regulations will not have the intended effect of improving the program, much less the water quality, but they may in fact negate the progress we've made to date and could hinder future improvements to water quality.

For more than one hundred years, the State has administered flow and water quantity. Why is the EPA inserting themselves into this arena which has been strictly the western states' purview?

We strongly suggest, in concert with the recommendations of the Wyoming DEQ as well as the Western States Water Council, that EPA adopt a functional equivalency element to the rules that would allow states to utilize a program, method or process which may not be explicitly recognized in the regulations but if achieving desired results would be acceptable. Flexibility for each state to tailor programs best suited to their particular needs is essential. A national set of rules is not realistic, nor would a national program be functional. General guidelines, with opportunity to tailor them, would be sufficient.

Regarding the public petition process, we suggest that this provision be deleted. At a minimum, the language should be revised to clearly state that a member of the public may petition EPA ONLY after they have exhausted state mechanisms and ONLY if the state clearly has failed to meet their obligations under the Clean Water Act.

We disagree with EPA's claim that small entities will not be severely impacted by these proposed revisions. In this state, numerous small towns and municipalities as well as small businesses will be impacted and we believe that the provisions of the Regulatory Flexibility Act most certainly do apply. Further, we request that EPA prove that the national aggregate financial impact will be less than $100 million before summarily dismissing the Unfunded Mandates Reform Act. Please respond to this request for documentation. Finally, we disagree with your interpretations of congressional intent and believe that you have exceeded your authority under the Clean Water Act. Congress intended the States to have the right to develop programs with flexibility and specifics tailored to meet their particular needs while "consulting" with EPA. The Clean Water Act states, ""It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter."

As well, key to this discussion must be NEPA and our efforts to implement the Act's stated purpose of "recognizing the profound impact of man's activity on the interrelations of all components of the natural environment." Further on in the Purpose Clause, the Act declares that "it is the policy of the Federal Government, in cooperation with state and local governments and other concerned public and private organizations... to create and maintain conditions under which man and nature can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations." We recognize the impact of man relative to the environment and in this case, specifically to water quality, but we do not believe that EPA has met its obligation to fully involve state and local governments nor do the proposed regulations pave the way for state and local involvement in any manner other than answering to EPA's broad authorities. You have seemingly set aside the purpose and intent of the National Environmental Policy Act.

Finally, our state agencies have provided detailed and very thoughtful comments. In light of this, I would urge EPA to consider all comments, incorporate them into the proposed regulations and republish them for public consumption PRIOR to issuing any final rule. Given the large scope of the regulations and the numerous effects, it would be unethical for EPA to simply move ahead with a final rule. You must provide the public an opportunity to assess your incorporation of their comments and to determine whether or not they were heard.

Thank you for the opportunity to comment.

Sincerely,

Art Reese
Director

AR:jh
Enclosures (4)
cc:        Governor Jim Geringer
            Bill Yellowtail
            Senator Thomas
            Senator Enzi
            Representative Cubin
            Western States Water Council
            Western Governor's Association
            Natural Resources Sub-Cabinet
            Comment Clerk for the TMDL Rule
            Comment Clerk for the NPDES/WQS