Clean Water Advocacy - Newsroom - AMSA in the News
Proposal to Withdraw EPA Regulation
On Impaired Waters Gets Broad Support
A proposal to withdraw a final rule issued in July 2000 to significantly
revise the Environmental Protection Agency's total maximum daily loads program
received overwhelming support from industrial dischargers and states in comments
submitted Jan. 27.
About 50 comment letters had been submitted, an EPA official told BNA Jan. 29,
with most of them supporting the withdrawal.
Several groups indicated that EPA should not only withdraw the 2000 rule, but
should move forward with a new proposal to revise the TMDL program. Agency
officials told BNA a draft proposed rule is under review by Administrator
Christine Todd Whitman.
In July 2000, EPA published a comprehensive rule revising the TMDL program, but
its implementation was barred by Congress under pressure from numerous interest
groups who sued the agency over the rule (65 Fed. Reg. 43,586; 134 DEN AA-1,
7/12/00).
TMDL s essentially are allocations of pollutant amounts among dischargers, which
include a wide range of sources such as industrial facilities, wastewater
treatment plants, and farm and forestry operations. The purpose of these
allocations is to reduce pollution to levels that can be assimilated without
violating water quality standards.
The rule set ambitious schedules for states to complete some 40,000 TMDLs,
required implementation plans, and contained nonpoint source provisions, which
some said were illegal.
Lawsuits from about a dozen interest groups were filed within months, and
Congress ultimately blocked the rule's implementation.
In supporting the withdrawal of the rule, the Federal Water Quality Coalition,
which represents industrial and municipal dischargers, agricultural groups, and
some trade associations, said the rule had several legal flaws that would have
forced EPA to amend or withdraw it, including the provisions relating to
nonpoint source controls.
The National Research Council issued a report in 2001 recommending changes that
should be incorporated into the TMDL program. EPA officials have said the draft
of the latest proposal attempts to incorporate some of those changes. Among the
NRC recommendations was a call for an adaptive implementation management
approach and better monitoring and assessment tactics.
The American Forest and Paper Association questioned EPA's cost estimates of
$900 million to $4.3 billion annually to implement the TMDL program, but said
those figures demonstrate the need for a more flexible, cost-effective approach
regulation.
The Natural Resources Defense Council, Sierra Club, and the Ocean Conservancy
urged EPA to withdraw the 2000 rule but to proceed with the existing program
last revised in 1992.
The environmental organizations said that close to 8,000 TMDLs have been
developed, showing that progress is finally being made in the program.
"A new rulemaking would be disruptive and would only derail state momentum to
clean up our waterways," the groups said. "In lieu of squandering agency
resources on rulemaking, keeping the program in regulatory uncertainty,
generating new controversy, and delaying continued progress towards cleaning up
the nation's waters, we urge the agency to devote its efforts and financial
resources to assist the states in implementing the existing TMDL program."
The Association of State and Interstate Water Pollution Control Administrators
called on EPA to propose a "workable replacement rule as soon as possible" that
would offer an integrated approach that considers both point source and nonpoint
source pollution, has a four-year listing cycle for impaired waters instead of
the current two years, allows states to evaluate contributions from all sources
and make allocations of loads accordingly, and provides an EPA oversight role.
The Association of Metropolitan Sewerage Agencies, which had generally supported
the 2000 rule because of its increased emphasis on nonpoint source control,
agreed that the regulation should be withdrawn because it has become
"distracting and the focus of elimination."AMSA also said the new rulemaking
should move forward quickly.
Two regional environmental organizations, the Southern Environmental Law Center
and Northeast Environmental Advocates, said they still support the 2000 rule,
saying it offers the best chance for cleaning up impaired waters, but did not
submit comments.
Several officials in the EPA Office of Water told BNA they do not know the
status of the draft proposed rule. Tracy Mehan, EPA assistant administrator for
water, told BNA in early January that he hoped to send a draft of the proposed
rule to the White House Office of Management and Budget for review as of Jan.
15.
That still has not happened, and agency officials said the draft proposal is
being reviewed by Whitman.
The proposal to withdraw the TMDL rule must become final before April 2003 or
the 2000 regulation will become effective.
By Susan Bruninga