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Water Pollution
EPA's Planned Changes to TMDL Program Said to Weaken Nonpoint Source Provisions
PORTLAND, Ore.--Proposed revisions to the impaired waters program being
considered by the Environmental Protection Agency take a step backwards from the
rule published in 2000 because they weaken provisions addressing nonpoint
sources, an environmental activist and a state official said July 19.
EPA is drafting a new proposal to upgrade the total maximum daily loads program,
which is designed to clean up waters that do not meet standards under existing
controls. The new plan being considered centers on resurrecting a little-used
provision of the Clean Water Act that calls for states to develop "continuing
planning processes" that would include watershed plans (139 DEN A-6, 07/19/02 ).
Charles Sutfin, director of the Assessment and Watershed Protection Division in
the EPA Office of Wetlands Oceans and Watersheds, outlined the draft proposal,
which is undergoing agency review, at a meeting of the Association of
Metropolitan Sewerage Agencies.
One of the keys to bringing nonpoint sources into the program under the draft
proposal is a stipulation linking federal funding for best management practices
under Section 319 of the Clean Water Act to states having an approved watershed
plan that address both the National Pollutant Discharge Elimination System
program and nonpoint source controls.
The draft proposal is scheduled to be published in November after it undergoes
review by the White House Office of Management and Budget.
Reaction from Oregon Administrator
Mike Llewelyn, administrator of the water quality division at the Oregon
Department of Environmental Quality, said the Section 319 link was not adequate
to force nonpoint source dischargers, such as farmers and the logging industry,
to take steps to reduce their effect on water quality.
"My visceral reaction is that this is a step backwards," he said at the AMSA
conference.
For one thing, he told BNA, Oregon only receives about $2 million annually in
Section 319 funding, not enough to put more pressure on nonpoint source
dischargers. Money under this program usually is used as incentives for best
management practices. The funding comes through the EPA budget, and in the
current fiscal year amounted to about $238 million to be dispersed among the
states.
Criticism from Environmental Advocate
Nina Bell, executive director of the Northwest Environmental Advocates and a
member of a federal advisory committee that developed recommendations for the
new TMDL rule, likewise criticized the new iteration as being "not worth the
paper it's written on."
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.
Bell called the new proposal "a mushy, vague planning process that removes the
details of the 2000 rule."
The 2000 rule addressed nonpoint sources by allowing point source permits to
reflect reductions in nonpoint sources of pollution by providing "reasonable
assurance" that these reductions would be achieved. Sutfin said these provisions
put an added burden on point sources, such as industrial dischargers and waste
water treatment plants, because nonpoint source reductions cannot be mandated
under the Clean Water Act and are largely voluntary.
Bell said the idea of putting so much emphasis on the continuous planning
process needs more study and was never discussed in the FACA negotiations.
"This a potentially huge program without sufficient study," she said. "EPA has
no idea how states will work the [continuous planning process] into their water
quality plans."
Llewelyn said the continuous planning process has "no linkage or teeth to drive
the TMDLs."
Implementation Plans for TMDLs
Another difference in the 2000 rule and what the agency is currently considering
is a requirement that TMDLs contain implementation plans that would be approved
by EPA. The 2000 rule required this; the draft proposal does not.
Llewelyn said the implementation plans are critical to ensuring the elements of
the TMDL actually are imposed. However, not all states agree with him, and the
Association of State and Interstate Water Pollution Control Administrators
opposed the implementation plan requirement.
The draft proposal would try to impose accountability through mandated five-year
reviews by EPA to determine whether state watershed plans are meeting their
performance targets. In addition, the new program would rely heavily on
monitoring and assessing streams to improve the information going into the TMDL.
However, Bell was skeptical of this plan because funding for monitoring
programs, particularly at the federal level, has been on the decline in recent
years, she said.
"Right now, it's not realistic no matter how desirable it may be," she said. "It
relies on vast comprehensive monitoring that right now just does not exist."
Sutfin said the new proposal would retain the listing categories that had been
contemplated by the agency for a year. This would be part of integrating the
Section 05(b) water quality reports with the Section 303(d) impaired waters
lists, which would come out every four years instead of every two years.
Five Categories to Classify Bodies of Water
While threatened waters would no longer be required for listing, water bodies
would be classified in one of five categories depending on the amount of data
available for them:
waters attaining standards for all designated uses;
waters attaining standards for some designated uses but for which more
monitoring data is needed;
waters for which insufficient data is available to determine whether any uses
are being met;
waters impaired but needing a TMDL because one has already been developed, the
standard will be met, or other factors;
and waters impaired and needing a TMDL.
Llewelyn said that most waters would probably fall into the category of meeting
standards for some uses but needing more data. This is a fear of the
environmental community also. He said this may mean waters will be placed in
"limbo and be monitored forever," which would delay actions to clean them up.
Support from California Agencies
Roberta Larson, director of legal and regulatory affairs for the California
Association of Sanitation Agencies, was more supportive of the rule and of the
integrated listing process.
"I like the multi-part list because we have used the TMDL list as a catch-all,"
she said. "This give us a chance to track where we are with our waters and where
we need monitoring."
In addition, she said, the continuous planning processes may lead to the
potential for better implementation of water quality programs.
She said a key to a successful program is for states to do more to address water
quality standards. Some waters have uses, which are simply "ridiculous," she
said, citing streams that have less than an inch of water but are designated for
contact recreation.
Bell cautioned that the move toward revising standards could hamper efforts to
improve water quality by being resigned to the status quo.
"Going from designated uses to actual uses takes the aspirational quality of
designated uses out of the picture," she said.
By Susan Bruninga