Clean Water Advocacy - Newsroom - AMSA in the News
No. 157
Wednesday, August 14, 2002 Page A-10
ISSN 1521-9402
News
Water Pollution
Some Reforms of TMDL Program May Be Done in Guidance, Says Official
Environmental Protection Agency officials are still weighing myriad issues in
a rulemaking to revise the impaired waters program, including how much can be
accomplished through guidance, a top water official told BNA Aug. 13.
Meanwhile, environmental organizations have given up hope that the agency can
craft a plan that will improve upon the 1992 rule implementing the total maximum
daily loads program and have asked the agency to scrap the rulemaking
altogether.
Benjamin Grumbles, EPA deputy assistant administrator for water, said one option
that has always been available for any rulemaking is to take no action at all.
However, he said EPA Administrator Christine Todd Whitman has directed the
office to continue developing a new rule.
In that process, however, agency officials "are giving serious consideration to
whether we can accomplish various reforms through guidance," Grumbles said. "We
believe the needed reforms and improvements justify our continuing to work on a
rule and not just guidance."
Grumbles said the agency does not have a schedule for when the draft proposal
will be sent to the White House Office of Management and Budget for review.
However, once a rule is proposed, it may seek comment on whether various issues
should be addressed through guidance or in the actual rule, he said.
The process of developing a new rule to revise the TMDL program has been ongoing
for more than five years. The process included meetings of a federal advisory
committee that recommended numerous changes. In addition, the National Academy
of Sciences issued a report in June 2001 containing numerous recommendations on
ways to improve the program, including a suggestion for an adaptive management
approach.
Grumbles said the agency wants to incorporate many of the NAS recommendations
into the draft rule.
Meeting With Environmental Groups
Representatives of environmental groups met with EPA officials Aug. 7 and said
the agency should focus its resources on implementing the 1992 TMDL rule.
"We've seen enough briefings on what EPA has in mind," Nancy Stoner, senior
attorney for the Natural Resources Defense Council, told BNA Aug. 13. "Nothing
in this is going to change anything or speed up the process or improve water
quality."
Rather, the plan EPA is drafting will only result in more delay, Stoner said.
The rule currently under consideration--dubbed the Watershed Rule by EPA
officials--would have as its central component a continuous planning process
called for in Section 303(e) of the Clean Water Act (139 DEN A-6, 7/19/02 ). The
CPPs, as they are called, would be developed by the states and would contain
plans for addressing pollution problems on a watershed basis, according to
Charles Sutfin, director of the Assessment and Watershed Protection Division in
the EPA Office of Wetlands Oceans and Watersheds. These watershed plans would
incorporate the requirements of the National Pollutant Discharge Elimination
System permit program and the Clean Water Act Section 319 program, which
provides funding to implement best management practices for controlling nonpoint
sources.
Although many states already use CPPs, the agency wants to use them as the
umbrella for other watershed management tools and the main driver for a more
workable TMDL program. The new draft would remove some of the agency's oversight
functions and give states more flexibility, EPA said.
New Draft Weaker
Stoner said the new draft proposal significantly weakens the rule issued by the
Clinton administration in 2000 but never implemented. NRDC was among several
environmental groups that opposed that rule for various reasons.
The latest draft, she said, would weaken water quality standards instead of
finding ways to meet them, would provide ways for states not to list waters, and
would extend compliance schedules.
"So it's all bad," she said.
Mostly environmental groups are concerned that EPA would no longer be required
to step in and develop TMDLs if states fail to, she said.
"They're saying they'll have nothing to do with the TMDL if a state fails to do
it," Stoner said.
Rather, EPA would review the state's CPP every five years to see if it is
meeting water quality objectives, Sutfin said in July.
State Support
State officials, gathered at the annual meeting of the Association of State and
Interstate Water Pollution Control Administrators, said Aug. 12 that they plan
to meet with OMB officials after their conference adjourns Aug. 14 to indicate
their support for the agency's decision to move forward with the rulemaking.
"While we do not agree with each and every provision of the drafted regulation,
we are convinced it is time to move it through the governmental system to give
the public the opportunity to review it and then to modify it as necessary and
promulgate," Tom Morrissey, ASIWPCA president who heads Connecticut's water
programs, said.
Karen Smith, director of the water quality division at the Arizona Department of
Environmental Quality, said that states have had a difficult time reaching
consensus on how the new rule should look. However, she said, the agency needs
to move forward to establish a new national policy.
Municipal officials from the Association of Metropolitan Sewerage Agencies said
in an Aug. 7 letter they were stunned to hear that environmental groups were no
longer supporting revisions to the TMDL program.
"These same organizations coordinated the filing of over 30 lawsuits against EPA
and the states for failure to develop and implement TMDLs under the 1992 rule,
leaving no question about their position on the 1992 rule's effectiveness," Ken
Kirk, AMSA's executive director, said in the Aug. 7 letter.
AMSA urged the agency to propose the new rule "as soon as possible."
To back away from drafting a new rule after the hundreds of hours of meetings
with interest groups and the public listening sessions the agency conducted in
2001 would be "the most anti-environmental result possible," Kirk said.
By Susan Bruninga