Bay Journal

EPA issues rules to ‘finish the job’ of cleaning U.S. waters

  • By Karl Blankenship on September 01, 2000

The EPA has adopted controversial new rules that will require states to complete — and implement — cleanup plans for thousands of polluted rivers, lakes and streams across the nation.

To comply with the rules, states would have to crack down on hard-to-control runoff from agricultural and urban lands, which are the main cause of pollution in most waterways, including the Chesapeake Bay.

EPA Administrator Carol Browner called it “the single most important action in a generation for cleaning up America’s polluted rivers, lakes and shorelines.”

The rules, which outline how cleanup plans known as Total Maximum Daily Loads should be developed and implemented, angered many critics, including members of Congress. In June, Congress attached a “rider” to a separate piece of legislation prohibiting the EPA from implementing the rule.

Defying Congress, the agency finalized the rule July 11 — two days before President Clinton signed the bill with the rider. The rider still prohibits EPA from spending money to implement the rules before Oct. 1, 2001, but states will have to begin planning to abide by them. Technically, Congress could act to block rules by mid-September, but that is considered unlikely.

Both supporters and critics described the rules as sweeping in scope. About 40 percent of the nation’s waterways fail to meet their water quality standards, mostly because of runoff. The EPA’s new rules would require concrete cleanup schedules to halt polluted runoff from farms, streets and suburbs — pollution sources that have received far less attention than wastes from discharge pipes.

“This action is geared to finish the job of restoring the quality of America’s waters,” Browner said. “The time has come to live up to the promise of the Clean Water Act and make our waters fishable and swimmable once again.”

For the first time, the new rules set a specific time-frame for writing TMDLs, require states to prove the plans will be implemented and promise that the EPA will step in and write plans if the states fail to do so.

The new rules have been the subject of intense criticism since they were released for comment last August. States fear the job of writing the more detailed plans required under the new rules — which the EPA says will cost $23 million a year — will become a bureaucratic nightmare draining hundreds of millions of dollars from other programs. The cost for businesses, farmers and local governments to actually achieve reductions spelled out by a TMDL could reach billions of dollars, some say.

Right now, there is an estimated backlog of 40,000 TMDLs awaiting development nationwide, including hundreds in each of the Bay states. The Chesapeake Bay will also need a TMDL unless it is cleaned up enough to meet water quality standards by 2010.

Agricultural groups have been particularly hostile to the rules, fearing that they will lead to more stringent controls on the nation’s farmers.

American Farm Bureau Federation President Bob Stallman said the new rules “would cripple farms, ranches and forestry operations at a time when producers can least afford new regulations.” Stallman said farmers were making progress through voluntary programs, and said the rules would only “result in much litigation and further delays in improving water quality.”

Many industries and wastewater plants worried that they, too, would face tougher restrictions — especially if efforts to control runoff fall short. “EPA’s willful contempt of Congress in issuing regulations that have been specifically prohibited will not go unchallenged,” said Thomas Donohue, president of the U.S. Chamber of Commerce. “For months, the EPA has ignored industry concerns and now they’re ignoring Congress as well. The EPA’s end run around congressional authority is a clear example of an agency out of control.”

Some environmentalists welcomed the new rules as a significant effort to force states to address water quality problems that often have lingered for decades. “The EPA has made some substantial steps toward improving the TMDL program through this new rule, and most importantly it highlights that the states should be dedicating resources toward TMDLs for their impaired water bodies as promptly and as carefully as possible,” said David Anderson of the Chesapeake Bay Foundation.

Still, some criticized the EPA for giving states too much time to clean up waterways that remain polluted 28 years after the Clean Water Act was passed. Under the rules, it could take another 25 years before TMDLs are written and implemented, and water quality standards are achieved. “It puts off for a generation the clean water that was due a generation ago,” said Joan Mulhern, a lobbyist with Earthjustice Legal Defense Fund.

Under the Clean Water Act, states are to identify and report “impaired” waterways that fail to meet water quality standards to the EPA every two years, then develop a TMDL for every pollutant in each impaired waterbody.

Total Maximum Daily Loads are essentially a “pollution budget” for a waterway. It is an estimate of the maximum amount of a pollutant that a body of water can receive and still meet its water quality standards with a margin of safety. Once the maximum load is calculated, it is allocated among different pollution sources.

Because a TMDL is required for each pollutant, about 40,000 TMDLs are needed nationwide for about 20,000 impaired waterbodies. But existing water quality monitoring programs are not comprehensive, and both state and federal officials acknowledge that far more TMDLs will eventually be needed.

Although the TMDL requirement has been on the books since 1972, the plans were not routinely developed until the past decade when suits by environmental groups began.

But the old TMDL rules were so vague they didn’t even spell out a time line for writing the cleanup plans or say whether the plans had to be implemented. In testimony before Congress, EPA Assistant Administrator for Water Charles Fox said the old rules “failed to adequately respond to water pollution problems” resulting in citizen suits that left TMDL decisions in the hands of federal courts instead of the states. That spurred a nearly four-year process to develop the new rules.

“The new TMDL regulations substantively improve and strengthen the current regulations, offering a balanced, common sense approach to fixing water pollution problems that leaves management of the program where Congress intended it — in the hands of the states, with support and backup from the EPA,” Fox said.

The rules call for TMDLs to be completed within 10 years, although that can be extended to 15 years in some cases.

For the first time, the rules require an implementation time line, with measurable milestones, as part of the TMDL. Generally, the EPA expects that all pollution control measures needed to meet water quality standards should be in place within five years of the time a TMDL is written. It says water quality standards should be attained within 10 years of TMDL development “whenever practicable.”

To ensure that happens, the new rules require states to provide “reasonable assurance” that the plans will be implemented. For point sources such as industrial dischargers and wastewater treatment plants, that would generally mean making modifications to discharge permits.

But in areas where runoff from farms, suburbs or cities is the main cause of the problem, states would have to show they have adequately funded programs in place to implement runoff control practices, and monitor their success. Where there are both point sources and runoff sources, the EPA “encourages” that reductions be equitably allocated among all sources.

All TMDLs must be submitted to the EPA for approval. If the states fail to submit plans, or the EPA rejects plans as inadequate, the new rules pledge the agency will step in as a “backstop,” writing and implementing a plan of its own.

If the EPA does a TMDL, it too, must provide reasonable assurance that the plan will be carried out. The EPA acknowledged that it cannot order states to pass laws or regulations to control runoff, but the agency said it can steer Clean Water Act funding to specific programs in targeted watersheds. It said it could also use other grants as leverage to get programs implemented.

In a significant change from its earlier plan, though, the EPA dropped a controversial proposal that would have expanded its ability to regulate animal feedlots. While large feedlots already need permits, the EPA had proposed that in instances where it took over TMDL development, it would require permits for smaller, previously unregulated animal feedlots. Similarly, it had said it would require permits for certain forestry programs. After a storm of criticism, the agency dropped both those items from its final rules.

Also dropped in the final rules was a proposal to require new, or significantly expanding, dischargers to find ways to “offset” any new pollution loads to impaired waterways while a TMDL was under development. The intent was to keep waterways from getting worse in the decade it could take to write a cleanup plan. But the offset requirement would have established a pollution trading program many considered unworkable. Although it dropped the offset provision, the EPA said that states were still expected to make progress toward the attainment of water quality standards in polluted waterways while a TMDL was being developed.

The rules keep an earlier proposal that allows the EPA to issue new permits for dischargers on impaired waterways where states have allowed the old permits to expire and not issued new ones.

In a change intended to ease the burden on states, the EPA rules require states to report waterbodies that fail to meet standards every four years, instead of every two as is presently required. As a result, the next “dirty waters” list is due in April 2002, instead of this year.

The EPA plans to phase in the new rules to keep them from slowing the development of TMDLs already under way. Only TMDLs sent to the EPA starting in 2002 and thereafter would have to contain implementation timetables and provide the “reasonable assurance” required in the new rule.

While substantial progress has been made in reducing discharges from industries and wastewater treatment plants, runoff still degrades many of the nation’s waterways and is considered to be the largest source of water pollution today.

Supporters of the rules say they will finally address that problem. And in doing so, the cleanups will move toward holistic stream restoration. For example, fixing some problems such as sediment — the leading source of pollution — will require addressing riparian and aquatic habitat, channel conditions and biological conditions of waterways, according to the EPA.

Critics charge that under the rules, the EPA is effectively seeking to control land use, something it has no authority to do. The agency contends the rules leave those decisions up to the states — in consultation with local governments and the public — as to how they reduce runoff.

Even if the EPA were to take over the TMDL writing and implementation program, it cannot force the state to take action to control most sources of runoff. In the worst case scenario, if the state chooses to do nothing, the EPA could only withhold water grant money from the state.

 

Revised TMDL Rules vs. Original TMDL Rules

Implementation Plans

New rules: require that a TMDL include an implementation plan that defines steps to be taken to restore polluted waters on a specific schedule.

Old rules: do not require implementation plans or time lines.

Runoff Pollution

New rules: require that implementation plans provide “reasonable assurance” that measures to reduce pollution from nonpoint sources will be implemented.

Old rules: do not require specific commitments to reduce nonpoint pollution and do not include requirements that plans demonstrate “reasonable assurance” of implementation.

EPA Backstop Of State Lists Of Polluted Waters & Schedules

New rules: The EPA must establish lists of polluted waters and schedules for TMDL development where the EPA disapproves the list and schedules submitted by a state, or where a state does not submit a list/schedule by April 1, 2002, and every 4 years thereafter.

Old rules: The EPA is only required to establish a list of polluted waters where a state list is submitted and the EPA rejects the list.

EPA Backstop Of TMDLs

New rules: The EPA must develop TMDLs where a plan submitted to the agency is not approved or when states fail to make substantial progress toward TMDL development.

Old rules: The EPA must develop TMDLs only where a TMDL submitted to the agency is not approved.

Schedules For Implementing Controls On Nonpoint Source Pollution

New rules: require a schedule to be set to implement controls within five years of TMDL development when practical.

Old rules: do not address schedules for nonpoint source controls.

Schedules For Attainment

New rules: Implementation plans must identify a date by which the state expects to meet water quality standards. The goal is to attain standards within 10 years of the establishment of a TMDL whenever practicable.

Old rules: do not address attainment schedules.

Schedules For Developing TMDLs

New rules: States must develop TMDLs as expeditiously as possible, but within 10 years of being listed on a state’s list of impaired waters. If that is not practical for a given waterbody, states may have an additional 5 years.

Old rules: States identify those TMDLs they expect to develop only during the next two years.

Priority For Drinking Water & Threatened/Endangered Species

New rules: require that states identify waters where the problem pollutant is causing, or threatens to cause, a drinking water system to violate a drinking water standard or where the waterbody supports threatened or endangered species, and requires that those waters be given a higher priority for TMDL development unless the state explains why a different priority is appropriate.

Old rules: do not address drinking water or threatened and endangered species.

Expanded Public Involvement

New rules: require for the first time that states provide the public with an opportunity to review and comment on lists of polluted waters (as well as methodologies for establishing the lists) and modifications to these lists; also requires an opportunity for comment on TMDLs.

Old rules: only requires notice on TMDLs in accordance with state procedures; requires the EPA to provide notice when the EPA establishes lists and TMDLs.

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About Karl Blankenship

Karl Blankenship is editor of the Bay Journal and Executive Director of Chesapeake Media Service. He has served as editor of the Bay Journal since its inception in 1991. .(JavaScript must be enabled to view this email address).

Read more articles by Karl Blankenship

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