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Water Pollution
Supporters of New TMDL Rulemaking
Seek Help From Congress, EPA Meeting
Representatives from state water pollution agencies, agriculture,
municipalities, and industrial dischargers are launching efforts to get the
Environmental Protection Agency to move forward on its rulemaking to revise the
total maximum daily loads program, a representative from one of the groups said
Feb. 7.
One option being considered is to persuade Congress to attach a rider to EPA's
fiscal year 2004 appropriations bill requiring the agency to move forward with
the rulemaking to revise the TMDL program, the official told BNA.
The organizations also have asked for a meeting with the White House Office of
Management and Budget as well as with top EPA officials to persuade them to
propose the TMDL rule, also known as the Watershed Rule. No meeting had been
scheduled. In addition, these groups have been meeting with members of Congress
and their staffs to put pressure on the Bush administration to propose the rule,
a state official said.
EPA has drafted a proposed Watershed Rule, but no decisions have been made about
its fate. Many in the regulated community as well as state water officials said
the agency needs to propose the rule and get it out for public debate. Some
environmental groups do not want a new rule, fearing it will weaken the existing
TMDL program.
The groups involved in the effort to get EPA to propose a new rule include the
Association of State and Interstate Water Pollution Control Administrators, the
Association of Metropolitan Sewerage Agencies, the American Farm Bureau
Federation, the Federal Water Quality Coalition, and the Clean Water Industries
Coalition. The latter groups represent manufacturers and other industrial
dischargers as well as some industry associations.
Proposal to Withdraw
The comment period closed at the end of January on a proposal to withdraw the
July 2000 final rule that would have significantly revised the TMDL program. The
rule, issued by EPA under President Clinton, never took effect and was withdrawn
for an 18-month review by the Bush administration after Congress prohibited its
implementation. EPA decided to formally withdraw the rule after concluding it
was too flawed. The July 2000 rule would take effect in April if EPA did not
withdraw it through formal rulemaking (20 DEN A-10, 1/30/03 ).
Comments showed overwhelming support for its withdrawal, but many commenters
also said the agency should move forward with a new rule, the details of which
were made public by EPA in 2002 (139 DEN A-6, 7/19/02 ).
However, some national environmental groups, such as the Natural Resources
Defense Council, support withdrawing the 2000 regulation, but oppose the new
rule, saying EPA should focus on implementing the existing program, which
operates under regulations issued in 1992. They are supported by some Senate
Democrats and Sen. James Jeffords (I-Vt.), the ranking member of the Senate
Environment and Public Works Committee.
Democratic Support
Jeffords and Sen. Bob Graham (D-Fla.), ranking member of the Subcommittee on
Fisheries, Wildlife, and Water, said in a Jan. 27 letter supporting the
withdrawal of the 2000 rule that the agency should not propose changes to the
current TMDL program.
"We believe that the agency's new proposal could slow needed progress by
additional decades by relaxing schedules for setting TMDLs, reducing EPA's
oversight role, allowing states to reclassify polluted waters as clean, and
adopting other weakening changes to the current program," the letter from
Jeffords and Graham said.
Other groups, such as the National Association of Homebuilders and several
regional environmental groups, said the 2000 rule should not be withdrawn but
should be revised slightly.
EPA's inability to stake out a position one way or another poses its own set of
problems, NAHB said.
"Since the outset, NAHB has found it difficult to shape our position on EPA's
withdrawal due to the conditions of the proposal and the varied past of prior
attempts to modify the TMDL rule," Marolyn Parson, an NAHB vice president, said
in a Jan. 27 comment.
Ben Grumbles, EPA deputy assistant administrator for water, said Jan. 31 that
the agency was working aggressively on the rule, and that the internal
discussions also involved officials with the U.S. Department of Agriculture. An
area of dispute involves the allocation of nonpoint source loads and how much
control federal regulators would have over their control.
He said no decision has been made on whether the final rule to withdraw the 2000
regulation would accompany a proposal on new revisions.
"We are continuing to review the draft regulatory proposal, and we have no
specific timeframe" for when it would be sent to OMB for review or be proposed,
Grumbles said. He said the option exists for no new rulemaking to be initiated
at all.
Sources familiar with the discussions told BNA the talks involve officials
within the EPA administrator's office and others within the EPA Office of Water
who do not want the new rule to go forward, preferring instead to operate under
the existing program and perhaps issuing guidance to fine tune it. Those within
the agency opposed to releasing the proposal are using the argument that the
rulemaking could be a political liability for the administration in the 2004
election season, several sources inside and outside EPA have said.
NRDC and other environmental groups even went so far as to tell EPA
Administrator Christine Todd Whitman that if she did not propose a new rule,
they would release a letter praising her efforts to protect America's waters
(240 DEN A-10, 12/13/03 ).
One state official said she did not understand why the environmental groups and
the Democrats do not want the rule to be proposed where it can be debated and
reworked in public.
"If you manage it through guidance, the public has no input," Roberta Savage,
executive director of ASIWPCA, said. "That doesn't mean that when it comes out
at the other end, we'll support it. We just want them to put it through the
public process."
NAHB shared this concern in its Jan. 27 comments.
"Despite an opportunity to participate in the process via today's proposal and
request for comment, the agency is clearly working on a number of initiatives
that have the effect of mandates, yet preclude any public input," NAHB said.
By Susan Bruninga