From "Inside EPA," a trade publication in D.C.
EPA PREPARING TO CEDE MORE IMPAIRED WATERS RESPONSIBILITY TO STATES
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Date: June 29, 2001 -
EPA is considering turning over responsibility for the bulk of the
nation's impaired waters program to state water officials as part of a
raft of larger changes to its controversial Clean Water Act total maximum
daily loads (TMDLs) rule, sources close to the issue say.
The agency reportedly floated the proposals as part of ongoing
settlement talks with litigants over the rule earlier this month in
Washington, DC.
The changes EPA is eyeing would essentially reign in the agency's control
over the states' TMDL programs, including alteration of the review
process for TMDL implementation plans, in order to bypass EPA review and
eliminate TMDLs set for particular point or non-point source dischargers
in exchange for pollutant discharge levels on entire water bodies.
Agency officials told the closed meeting of industry and environmental
leaders who have filed legal challenges to the TMDL rule that after an
extensive internal review, EPA has identified over half a dozen aspects
of the rule it is considering changing. Those legal challenges, from both
industry and environmentalists, have been consolidated in American Farm
Bureau Federation et al v. Whitman.
The agency's TMDL program sets pollution discharge limits for the
nation's waters that are impaired. The TMDL rule, passed last year by the
Clinton administration but not yet in effect, would require states to
compile new lists of impaired waters every four years and implement
pollution limits for those waters over the next 15 years. EPA officials
said at the time the rule was signed that it would also act as a guide
for states to limit pollution from so-called nonpoint sources of
pollution. The rule also calls for states to develop implementation plans
outlining exactly how they would put the TMDLs into effect.
But EPA officials earlier this month told the litigants that they were
considering reopening the rule for public review and asked the parties to
suspend the filing of briefing schedules for the lawsuit until the agency
could make a final determination on whether it was going to reopen the
rule. It is still unclear whether the litigants will move forward with
their suits.
Although EPA has yet to publicly announce whether they are reopening the
TMDL rule, sources say agency officials have also drafted over half a
dozen options for changing the rule.
According to sources, EPA officials are considering shifting the
authority under which TMDL implementation plans are reviewed. The shift
would move the agency's oversight of state implementation plans from
section 303(d) of the Clean Water Act to section 303(e), essentially
throwing to state officials the responsibility for reviewing
implementation plans, rather than EPA. Section 303(d) is the authority
under which EPA operates its TMDL program, giving all aspects of that
authority under the agency's purview, while section 303(e) lays out the
operation of the states' TMDL planning processes.
The agency is also considering making further clarification to the
definition of "reasonable assurance." The rule's "reasonable assurance"
clause requires states to provide the agency with explicit information
showing their TMDL implementation plans will meet water quality
standards.
In addition, EPA is considering reducing the amount of assurance states
must provide to reduce the burden on states, who have long complained
that the requirement is unrealistic since state TMDL plans will not be
completed before the reasonable assurance requirements kick in.
Other changes include lifting a requirement that TMDL discharge limits be
set for certain point and nonpoint source dischargers, and instead
allowing states to set TMDL discharge limits for entire water bodies. The
move would essentially alleviate the individual accountability of
particular discharger s for controlling discharges.
Setting TMDLs for point and nonpoint dischargers became a bone of
contention with critics of the existing TMDL rule since it was intended
as a guide for states to set TMDLs for non-point sources -- an assertion
of authority that industry questioned EPA had under the Clean Water Act.
There is also talk that the agency will make changes to the amount of
data and the quality of data that is required before a water body is
listed or de-listed as impaired -- the concern being that water bodies
are placed on the list without sufficient science to support or reject
the need for regulating discharges into the water body.
Sources say the Bush administration will likely opt for stricter
standards for putting water bodies on the impaired waters lists,
considering the administration's emphasis on science-based policies.
EPA is reportedly mulling whether to narrow the types of water bodies
included on the impaired water body lists to those that need TMDLs,
rather than those that just need to be monitored. Impaired water body
lists are the basis from which EPA and the states target regulatory
action, and the rule has been attacked for including water bodies on
those lists that do not necessarily need TMDLs.
EPA is also eyeing changes to a provision in the rule that allowed EPA in
limited circumstances to reissue discharge permits that states had been
slow to re-issue after the permits had expired. Sources say the agency is
considering pulling back that authority because states balked at the
agency's intrusion into their permitting authority and because EPA
officials likewise do not want to assume that responsibility.
Finally, sources say agency officials are also considering options not
included in the existing rule, such as a method by which the agency could
encourage state monitoring programs, possibly by giving grant money to
states to run those programs.
EPA's proposed changes are aimed at making the TMDL program "more
palatable to the states," one source says, while other sources argue that
the Bush administration is pulling back its authoritative arm over the
states programs because it overstepped its capabilities, in light of
budgetary cutbacks and limited staff.
Source: Inside EPA via InsideEPA.com
Date: June 29, 2001
Issue: Vol. 22, No. 26
(C) Inside Washington Publishers
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