Background: On October 18, 1997, the 25th Anniversary of the Clean Water Act, Vice President Al Gore issued a memorandum calling for a "comprehensive approach to water quality at all levels of government," and directed U.S. Department of Agriculture (USDA) Secretary Dan Glickman and EPA Administrator Carol Browner, in consultation with all other affected agencies, to develop a "comprehensive Action Plan." The Plan is to provide "enhanced protection from public health threats posed by water pollution; more effective control of polluted runoff; and, promotion of water quality protection on a watershed basis" as its three major goals.

Status: EPA and state water quality officials met in Atlanta on March 25 to discuss one of the most pressing Action Items from the Administration’s recently released Clean Water Action Plan (see Regulatory Alerts RA 98-3 and RA 98-5) -- the identification of priority watersheds by October 1998. State environmental agencies and state conservationists are taking a lead to identify these priority watersheds through unified assessments which can highlight those watersheds in most need of restoration or protection. Priority watersheds, once identified, will be targeted for the development of "watershed restoration action strategies" and for new federal resources of $568 million proposed for FY 1999. Issues such as: 1) integration with existing programs; 2) resources needed and short time frame to perform assessments; 3) stakeholder involvement; 4) flexibility to modify priority lists; and, 5) coordination with other federal and state agencies were discussed. EPA has organized an ad-hoc group of federal agency and state representatives to develop a guidance for states in performing unified watershed assessments and in priority-setting. The guidance is expected to be released in early May 1998. Also, as part of an interagency effort to perform outreach and build momentum for Clean Water Action Plan implementation, the assistant administrators/secretaries from EPA, USDA, the National Oceanic and Atmospheric Administration, Department of the Interior, and the Army Corps of Engineers, will be holding six regional public meetings and press conferences in mid-April. The purpose of the meetings will be to ensure broad understanding of the Action Plan’s content and to hold an open dialogue concerning the direction and implementation of the Plan’s key Action Items. Meetings are scheduled to be held on April 14, San Francisco; April 15, Portland, Oregon; April 16, Denver; April 23, Atlanta; April 24, Boston; May 12, Dallas; and May 13, Chicago. CONTACT: John Meagher, EPA 202/260-1917 or Mark Hoeke, AMSA 202/833-9106.

Background: Due to lawsuits filed in over 30 states by environmental groups against EPA concerning TMDL program oversight requirements under CWA Section 303, EPA continues to develop a broad strategy to reinvent the TMDL process. Under CWA Section 303(d), states are required to identify waters in which technology-based effluent limitations are not sufficient to meet water quality-based standards, and requires states to develop TMDLs for these waters which will ensure that applicable water quality standards are met. Under Section 303, EPA must develop TMDLs when states fail to do so. EPA has formed a federal advisory committee of stakeholder interests to develop recommendations concerning needed changes to the agency’s TMDL program implementation strategy, as well as TMDL-related policies, guidance, regulations and priorities. Cheryl Creson of California’s Sacramento Regional County represents AMSA on the TMDL Committee. Twenty other representatives from states, municipalities, environmental groups, academia, industry, agriculture, and forestry interests make up the TMDL advisory group that is drafting a report which it hopes to finalize and submit to EPA in June 1998. EPA plans to propose revisions to its Total Maximum Daily Loads (TMDL) program regulations and accompanying guidance in November 1998 and will finalize these revisions in October 1999.

Status: EPA’s TMDL federal advisory committee met for the fourth time in a series of five meetings on January 21-23, 1998 in Salt Lake City, Utah. During the meeting, consensus was reached on several outstanding issues that had been left unresolved in the Committee’s latest January 15 draft committee report, such as two-year listing/delisting cycles, federal land management agency roles and responsibilities, provisions for "equivalent" TMDLs, and a seven-step hierarchy approach to TMDL development. The Committee disagreed on several other issues, however, such as developing candidate lists for waters needing more data, and whether waters expected to meet water quality standards through point source controls should be listed. One notable issue raised in the Committee's current report, and which was discussed during the meeting, was EPA and state's rarely used regulations concerning new source prohibitions for impaired waters. EPA is concerned that it may be vulnerable to litigation on this issue and wants the issue addressed in the Committee’s final report. Current EPA regulations at 40 CFR 122.4(I) provide that "no new permit may be issues to a new source or a new discharger, if the discharge from its construction, or operation will cause or contribute to the violation of water quality standards." In the interim period between listing and TMDL development, the Committee has tentatively agreed that such a prohibition should be applied. However, the Committee has also recommended that the regulations be modified such that stakeholders are given flexibility to develop stabilization plans that include trading or offset activities. This flexibility would allow for prohibition exemptions when overall loadings decrease. The Advisory Committee released a revised version of its report on March 2 (distributed for comment via Regulatory Alert RA 98-4). Based upon comments received from AMSA members and the California Association of Sanitation Agencies (CASA), Cheryl Creson, AMSA’s representative on the Committee, developed and submitted a mark-up of the draft Committee report to the entire Committee. Two issues which were highlighted as "stopper" issues for municipal interests, included the draft report language on the prohibition of new or expanded discharges while a TMDL is being developed, and the discussion of equitable allocation of pollution loadings based on enforceability. Other changes which were strongly recommended to be included in the draft were additional language requiring definitive targets for TMDLs, minimum data requirements for listing, and an iterative approach to TMDL development which includes the review of water quality standards. A final meeting of the Committee is scheduled for May 4-6, 1998 in Atlanta, Georgia. CONTACT: Mark Hoeke, AMSA 202/833-9106 or Don Brady, EPA 202/260-5368.

Background: On March 12, EPA and the National Oceanic and Atmospheric Administration (NOAA) published a notice concerning proposed administrative changes to the Coastal Nonpoint Pollution Control Program Guidance (Administrative Changes), developed under section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA). CZARA requires states and territories to develop and implement coastal zone management programs which include state-enforceable policies and mechanisms for controlling nonpoint sources of pollution. In January 1993, subsequent to enactment of CZARA in 1990, EPA and NOAA published two guidances to guide the development of States' (and Territories') coastal nonpoint pollution control programs: Guidance Specifying Management Measures for Sources of Nonpoint Pollution in Coastal Waters and Program Development and Approval Guidance. These provided both technical and programmatic guidance on program development. EPA and NOAA then provided further program clarification in a January 6, 1995 letter and a March 16, 1995 document entitled Flexibility for State Coastal Nonpoint Programs. These actions provided greater flexibility to States in prioritizing their activities; extended the implementation period from three years to five years; and clarified the range of enforceable policies and mechanisms that could be used by States to implement their programs. The letters also established the principle that, in recognition of the complexity of the program, States could be granted conditional approval for programs that are not yet fully approval, thereby affording more time for States to fully develop their programs. As of March 1998, NOAA and EPA have provided conditional approval to 22 States and are working rapidly to approve or conditionally approve all of the remainder of the 29 coastal States that submitted programs for approval. In April, 1997, NOAA, EPA, the States and other interested parties began discussions regarding the progress made to date in developing and implementing CZARA programs and the significant impediments to further progress. Both the States and Federal agencies recognized that while the goals of the CZARA program remain valid, the program and schedules originally conceived by NOAA and EPA were extremely ambitious, and additional flexibility would be needed to enable the States to successfully implement their programs. Based on this understanding, the parties proceeded to discuss in detail the specific aspects of the program that would require modification while maintaining the overall objective that States implement management measures needed to protect coastal waters.

Status: In response to coastal states' concerns over the ability to target the program, enforceable policies and mechanisms, timeframes, and resources to implement coastal nonpoint programs, NOAA and EPA are now in the process of refining the proposed administrative changes and are making them available for public comment prior to producing final guidance. NOAA and EPA are soliciting comments on the level of detail that should be required of states in describing the process that links the implementing and enforcement agencies, (e.g., should states be required to establish clear criteria to determine where voluntary efforts have been unsuccessful and that enforcement actions are necessary?). Also, NOAA and EPA are proposing extending the timeframe for program implementation that has been established administratively (Section 6217 does not specifically establish timeframes for program implementation) to fifteen years from the date of first program approval action, (i.e., conditional approval). NOAA and EPA request comments on whether the proposed timeframe of fifteen years is appropriate or whether a shorter timeframe, e.g., twelve years, is feasible. The proposed Administrative Changes provide guidance to the States on how NOAA and EPA intend to exercise their discretion in implementing the Coastal Nonpoint Pollution Control Program. As such, these proposed Administrative Changes, as well as the previously issued guidance they modify, are not regulations. AMSA is currently reviewing the proposal. CONTACT: Mark Hoeke, AMSA 202/833-9106.

Background: During this year’s February 5th State of the Union address, President Clinton announced an initiative to designate American Heritage Rivers to help communities alongside them revitalize their waterfronts, and clean up pollution. Each community supporting a American Heritage River will be given resources to catalyze their community’s work on behalf of a restored, revitalized river. The President has committed to designating 10 American Heritage Rivers this year. Over 125 nominations were received for American Heritage Rivers designation.

Status: In February 1998, four House Republicans, Helen Chenoweth (R-ID), Richard Pombo (R-CA), Bob Schaffer (R-CO), and Don Young (R-AL), sued President Clinton over the American Heritage Rivers Initiative. The group argued that the President has overstepped his executive power in issuing the program, which lawmakers fear would place thousands of miles of rivers and communities under federal control and undermine private property rights. U.S. District Court for the District of Columbia ruled on March 2, 1998, that the group of GOP legislators lacked the legal standing to sue Clinton and the injuries claimed by the lawmakers were too vague. An appeal to the decision is expected. Designation of the first 10 rivers is expected in April 1998. CONTACT: Karen Hobbs, Council of Environmental Quality 202/395-5750.

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