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Suits seek cleanup plans for waterways
EPA issues rules to 'finish the job' of cleaning U.S. waters
TMDLs are coming, like it or not
To some, the EPA — at long last — is on the verge of cleaning up the lengthy list of rivers, lakes and streams which, nearly three decades after the Clean Water Act was passed, remain polluted.
To others, the EPA is on the verge of illegally inflicting massive land use controls over vast areas of the nation at a cost of billions of dollars.
Those are strikingly different verdicts about the agency’s proposed new rules to guide the cleanups of “impaired” waterbodies, including the Chesapeake Bay. But the rules, which some describe as the most sweeping ever put forth by the EPA, are at the center of what could become one of the biggest environmental fights of the year.
The rules direct how cleanup plans known as Total Maximum Daily Loads should be written and implemented. Environmentalists are hailing the rules as the “best chance” to finally deal with runoff pollution — the nation’s largest water quality problem.
But many others, including states, industries and farmers, say the EPA has overstepped its authority. One state official described the rules as “mission creep, with a huge price tag.” In some cases, critics say the rules could be counterproductive and work against “smart growth” programs that seek to consolidate development and revitalize urban areas.
Since the original 1972 Clean Water Act, TMDLs have been required for all impaired waterbodies — those that don’t meet state water quality criteria — which states must report biennially in what is commonly called the “dirty waters” list. TMDL development was largely neglected until a series of lawsuits by environmental groups began forcing the EPA to require the cleanup plans.
The EPA’s proposed new rules would make the once-obscure provision a powerful tool in the nation’s unfinished business of cleaning up waterways. In particular, they would force states to not only write TMDLs — a calculation of how much pollution a particular waterbody can receive and still meet water quality standards — but also to develop detailed plans showing how the pollution reductions would be achieved.
The EPA’s ideas about changing and clarifying the rules sparked more than 10,000 responses during a five-month comment period that ended Jan. 20. Congressional committees began holding hearings on the rules in February, and more are planned as many lawmakers express reservations about the legality of the proposal.
Because the Chesapeake is considered impaired as the result of nutrient pollution, the Bay states in their Chesapeake 2000 Agreement have pledged to clean up the Bay by 2010 — a year before a TMDL would be required under a recent court order.
But some aspects of the new rules could still greatly affect the watershed — especially a provision that would require all major new sources of pollution to find ways to offset additional nutrient discharges by 150 percent before they could begin operation.
Besides the Bay, the rules would affect how TMDLs are written for hundreds of other sections of rivers and streams in the Bay watershed that are considered impaired.
Nationwide, states have to develop more than 40,000 TMDLs, a job they estimate will cost between $670 million and $1.17 billion annually over the next 15 years. And, that is only the cost of writing plans — not implementing them.
That, in fact, is likely an underestimate. A recent survey by the U.S. General Accounting Office, the investigative arm of Congress, found that only six states had enough data to fully evaluate their waters.
While state officials often feel confident they have identified rivers and streams with serious problems, that is not always the case, Peter Guerrero of the GAO said at a recent congressional hearing on the TMDL rules.
“States tend to focus their monitoring on waters with suspected pollution problems in order to direct scarce resources to areas that could pose the greatest risk,” Guerrero said. “However, studies that have more thoroughly monitored water quality conditions — either through monitoring previously untested waters or conducting different types of monitoring tests — have identified additional pollution problems.”
In Maine, for example, officials found widespread elevated levels of mercury in lakes that had been presumed to be clean. And when Ohio began using new monitoring methods, officials suddenly found significant problems in many waters that other tests had indicated were meeting standards.
In general, the GAO found, states have the best monitoring information for “point source” dischargers — industries and wastewater treatment plants that have historically been the focus of pollution control efforts.
But information is poorer for nonpoint pollution — runoff from from farms, forests subdivisions and other land uses. In part, that’s because runoff has not been the focus of regulatory programs and it is more difficult to monitor. Instead of coming from pipes, it’s dispersed across the landscape and its impacts on waterways vary with natural conditions such as rainfall.
The question of how to deal with runoff is one of the most controversial parts of the EPA’s proposed rules. Because most runoff comes from private property, states have historically sought to deal with it through voluntary efforts, such as cost-share programs that help farmers install buffers.
The EPA’s new rules require states to provide “reasonable assurance” that such efforts will accomplish the job. That means states have to prove voluntary programs are adequately funded and — if necessary — back them up with new regulatory programs. If the EPA doesn’t think the plans are adequate, it can reject the TMDL.
Critics charge that the EPA is doing little more than using states as surrogates to impose its views about land use — an area where the federal government has no jurisdiction.
“The EPA, without the benefit of law, will be telling farmers and ranchers how and when they can harvest their crops and use their land,” predicted John Barrett, of the American Farm Bureau Federation. “Cities can regulate land use, some counties can regulate land use, states can do it within limits, but the federal government needs unambiguous statutory authority to regulate land use. By this, I mean Congress passing a law, not the EPA administrator passing a regulation.”
States also expressed concern that the EPA was intruding on their traditional responsibilities.
In addition, the new rules call for an implementation plan and timetable to be submitted as part of a TMDL. The EPA would have the authority to reject it and could — under some circumstances — write and implement its own plan.
Under existing law, the EPA can regulate point sources, but not nonpoint sources. As a result, the EPA said if it had to write a TMDL in an area where the state failed to do so, it would designate certain nonpoint sources — such as large animal feedlots and certain forestry operations — as point sources and require discharge permits, just as it would for an industry.
Barrett, of the Farm Bureau, characterized that proposal as an “unjustifiable expansion of the agency’s authority” as well as a “significant federal intrusion into private activities [which] overrides state and private control of land-use decisions.” The forestry industry has expressed the same concerns.
Farmers aren’t the only ones who feel threatened. Wastewater treatment plant operators and industries worry that states, finding the task of writing TMDLs for runoff onerous, will instead force sharper reductions from point sources, which have discharge permits that are easier to enforce.
They also object to provisions in the new rules that would prohibit a major new discharge source in an impaired waterbody unless it offsets the new pollution by 150 percent through reductions at other plants or from nonpoint sources.
The National League of Cities said that caused “significant concerns.” Instead of choosing to locate in cities — which are more likely to have impaired waters — the offset requirement would encourage industries to locate in pristine areas. Not only could the TMDL rules thereby promote sprawl, the league argues, they would provide a disincentive to otherwise sound environmental decisions. For example, officials may chose not to extend sewers into areas with aging septic systems because it would increase treatment plant discharge.
The EPA’s rules would also require additional waterways to be listed as “dirty waters.” States would not only have to list impaired waters, but also those “threatened” with impairment before the next listing cycle. Right now, the EPA requires a dirty waters list from states every two years; it proposed changing that to every five years.
And critics say some changes that sound minor have far-reaching implications. For example, the EPA is proposing that water can be impaired not only by “pollutants” — as is the case now — but also “pollution.” The difference: pollutants are a substance. But pollution is any man-induced alteration to the chemical, physical or biological integrity of the waterbody, including such things as low flows or degraded aquatic or riparian habitat.
The EPA would not require a TMDL for a waterbody listed only for “pollution” — such as low flows — but the offset rule would still affect any major new development that would add to the problem.
The EPA also calls for states to list waters that are impaired or threatened by atmospheric deposition. But it’s unclear how any TMDL written for waters impaired by air pollution could be implemented because pollutants could originate in other states — or even countries.
Critics say the EPA is overreaching and using rules to deal with issues never envisioned in the Clean Water Act. Said Dale Givens, secretary of the Louisiana Department of Environmental Quality and co-chair of the Environmental Council of the States’ water committee: “Not only is EPA attempting to impose new requirements upon the states without congressional authority, it is at odds with the Unfunded Mandates Act which provides that no new requirements can be placed on the states absent commensurate federal funding.”
In doing so, it is pushing a huge burden on the states, he said. Gathering enough monitoring information and writing an average TMDL, critics contend, is between $300,000 and $1 million — far more than the $25,000 estimated by the EPA. It’s a concern widely echoed by states — including all the Bay states in their comments — who say the federal government needs to provide more help if it wants the TMDL rule carried out.
Indeed, in its survey, the GAO found that states “overwhelmingly cited shortages in funding and staff” as the major impediment to TMDL development. But the lack of staffing and resources is often the result of state decisions — not the EPA’s demands, according to the GAO.
Many states are operating under self-imposed staffing ceilings, and have shortages in lab funding to analyze samples. “EPA officials told us that, overall, less resources are being devoted to monitoring and assessment at the state level than ever before,” testified the GAO’s Guerrero.
State concerns are getting little sympathy from environmentalists who contend states have been lax in enforcing the law, often taking action only when forced to do so by lawsuit. In its comments, the Chesapeake Bay Foundation summed up the “legacy” of the Clean Water Act as “20 years of governmental inactivity followed by 15 years of citizen-inspired litigation.”
Environmental groups cite their own faults with the EPA’s proposal. For example, they say the EPA gives states too much discretion over deciding how to monitor a waterbody and make dirty waters listing decisions.
They are also troubled by the EPA’s proposal to give states up to 15 years to write TMDLs for places currently on the list. “Add this to the 21 years since the original TMDL development deadline, and you’re telling the public that they can wait 36 years for TMDLs,” said Douglas Haines, executive director of Georgia Legal Watch.
The CBF argued in its comments that the EPA’s rules also use “bureaucratic red tape” to stifle citizen suits over TMDLs through such tactics as requiring people to petition the EPA if it fails to act on TMDLs before they can seek judicial redress.
Environmentalists — and EPA officials — dispute claims that the agency is dramatically expanding the scope of its authority. Rather, they say, the agency is taking the needed next steps to accomplish the Clean Water Act’s still-unattained goal “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
Concerns about the EPA writing discharge permits for forestry or feedlot operations are overstated, they say. Under the rules, that could only take place when those pollution sources are significant, and when state agencies fail to deal with them in a TMDL. Such instances, said Richard Parrish, an attorney with the Southern Environmental Law Center, should only be a “rare exception” to the rule.
The charge that the EPA is extending regulatory authority over nonpoint sources “is simply not the case,” Parrish said. States have the flexibility of using whatever methods they wish to achieve nonpoint reductions, he said. “As long as the state’s chosen approach actually succeeds in restoring and maintaining water quality, there need be no further debate about federal intrusion because the state will be allowed to implement its chosen approach,” he said. “When a state’s preferred approach falls short, however, then EPA will be justified in requiring more from that state.”
EPA Assistant Administrator for Water Charles Fox called the TMDL program a “safety net” for waterbodies that were not protected by the Clean Water Act’s other, broad pollution control efforts such as the discharge permit program.
At a congressional hearing, he also disputed criticisms that the new TMDL program was a heavy-handed “one-size fits all” approach to pollution control: “The regulations are guided by a vision of a dramatically new approach to clean water programs.” The TMDL program, he said, “focuses attention on pollution sources in proven problem areas, rather than at all sources.”
The need for the program, Fox said, is illustrated by the fact that the “overwhelming majority” of Americans — 218 million — still live within 10 miles of a polluted waterbody. Those include more than 300,000 miles of rivers and shorelines, and 5 million acres of lakes. “Some who have commented on the proposed regulations have suggested that we are asking the country to take too great a step toward cleaner water and that we should set aside these proposals,” Fox said. “I respectfully and strongly disagree.”
U.S. Rep. Sherwood Boehlert, R-NY, chairman of a House subcommittee that held two days of hearings on the rules, said Fox “made a forceful case for the need to strengthen current efforts.” But he said the EPA needed to carefully consider the concerns raised by others before issuing its final rule — something officials have said could happen before summer.
Many believe the rules will not end the TMDL controversy. Recently, a new round of suits involving TMDLs has begun, this time by the regulated community affected by the cleanup plans.
Until Congress updates the Clean Water Act — something last done 12 years ago — the EPA’s new rules will likely spawn yet another new wave of suits challenging the extent of the agency’s authority. “The likely outcome of EPA’s proposal,” predicted David Holm president of the Association of State and Interstate Water Pollution Control Administrators, “would be less environmental progress and more litigation and delay.
It’s a point that has not been lost on state and federal officials involved with the Bay Program. By pursuing efforts to clean the Bay before a TMDL would be required — in 2011, according to a court order — they hope to make progress without spawning lawsuits.
The Background Behind EPA’s Proposed New Rules for TMDLs
When Congress approved the Clean Water Act in 1972, it required states to monitor their waterways and “from time to time” submit lists of areas that did not meet water quality standards to the EPA. For those “impaired” waterways, the states were to identify the pollutant (or pollutants) that caused the impairment and determine the Total Maximum Daily Load.
A TMDL is a calculation of how much pollution a given area of water can receive and still meet its water quality goal with a margin of safety factored in. A TMDL is required for each pollutant that contributes to the impairment in a given body of water. Therefore, while 20,000 water bodies, or segments of water bodies, are impaired nationwide, about 40,000 TMDLs are needed to address the pollutants.
Although the TMDL rule was on the books, the EPA and states focused their efforts on other areas — such as forcing pollution reductions from factories, wastewater treatment plants and other “point sources” — for years.
Beginning in 1986, and accelerating in recent years, environmental groups began filing lawsuits against the EPA for failing to force states to list all of their impaired waters and develop TMDLs.
As a result, for 17 states — including Pennsylvania, Virginia, Delaware and West Virginia — courts have set timetables for all waterways to be monitored and TMDLs developed. Cases are pending in many other states, including Maryland.
Existing TMDL regulations are often frustratingly vague. How long it should take to develop a TMDL — and whether it had to be implemented — is not spelled out. At the same time, existing rules prohibit any new discharges of the impairing pollutants in any waterbody that is not meeting the water quality standard for those pollutants.
To clarify the issue, the EPA proposed broad new rules last fall and took comments until Jan. 20. The new rules seek to guarantee that TMDLs will be implemented, regardless of where the pollution was coming from. In the past, it was a straightforward calculation to determine the amount of reductions that might be needed from a regulated point source to achieve water quality criteria. But it was unclear what to do when most of the pollution comes from unregulated runoff, or “nonpoint” sources, and few TMDLs involving nonpoint sources have been implemented
Under the proposed new rules, states must develop an implementation plan for a TMDL which includes a “reasonable assurance” that the pollution reductions will be achieved from point sources and nonpoint sources.
For point sources, that means permits would have to be revised to meet TMDL requirements. For nonpoint sources, voluntary actions or local ordinances and zoning requirements may be acceptable, but states would have to show that adequate funding or other mechanisms are in place to achieve the results on a predictable timetable.
If monitoring shows that the goal is not being achieved, the proposed rule says states “may need to establish a regulatory approach” to control runoff. That could mean requiring sources of runoff to have permits, just like factories.
If states don’t take enough actions to control runoff pollution, the rules give the EPA authority to designate certain operations, such as animal feedlots, aquaculture facilities and certain forestry activities as point sources and require discharge permits.
Under the new rules, states would have 15 years to complete TMDLs. The rule calls for an implementation timetable for each new TMDL, but does not set a specific deadline for completing the cleanup.
Until TMDLs are developed, the new rules seek to prevent the further degradation of a waterbody by requiring that any large new — or significantly expanded — discharge source offset its pollution. Offsets may be achieved from either point sources of from nonpoint sources. Generally, the rule proposes that the offsets be 1.5 times greater than the amount of the new discharge.
