Panel Debates How to Fix Holes in the Clean Water Act

By J.R. Pegg

September 16, 2003 (ENS) - The Clean Water Act is considered one of the nation's landmark environmental laws but after three decades many believe the regulatory framework of the law has significant leaks. More than 40 percent of assessed waters in the United States do not meet water quality standards and attempts to remedy this situation are hindered by the competing jurisdictions - and interests - of federal and state regulators.

How the federal government and states should balance responsibility for this condition took center stage at today's hearing on the Clean Water Act, held by the Senate Environment and Public Works Subcommittee on Fisheries, Wildlife, and Water.

The Clean Water Act is a classic example of "environmental federalism," EPA Assistant Administrator of Water G. Tracey Mehan III told the subcommittee.

"The states are in the driver's seat," Mehan said, noting that 45 states have been delegated pollutant permitting authority under the Clean Water Act by the EPA. wetland

Some in Congress are not pleased with the requirements the Clean Water Act places on state governments. (Photo courtesy EPA)
Most states currently monitor only a portion of their waters, Mehan said, and "because state standards and assessment methods vary across state lines, we find we cannot add up the data."

This is one reason there is a lack of comprehensive national data about the state of the nation's waters, he said, and it means the EPA "can not yet systematically document whether or not our pollution programs are effectively improving water quality on a national scale," Mehan said.

States - and the EPA - must improve their water quality monitoring and assessment programs, Mehan said, in order to fill in the information gaps the state of the nation's waters.

But many believe what the EPA does know about the nation's water quality is cause for concern. The EPA's finding that 40 percent of assessed waters are impaired covers some 300,000 miles of rivers and shorelines and approximately 5 million acres of lakes. Some 218 million live within 10 miles of the impaired waters.

Subcommittee Chairman Michael Crapo, an Idaho Republican, voiced strong concerns that the federalism Mehan espoused has been compromised by burdensome federal rules.

Crapo cited the Clean Water Act's requirement that states list impaired waters and then set maximum pollution budgets - known as Total Maximum Daily Loads (TMDL) - to ensure their impaired waters meet water quality standards. The TMDL, which must be approved by the EPA, allocates pollutant loadings among point and nonpoint sources

In developing TMDLs, Crapo said, "state decisions should be respected on which water bodies should be listed and in what order the list should be acted upon."

"The federal program should accept responsibility for showing that an inadequacy exists instead of fixating on levels of effort," Crapo said. "By confusing effort with results, we can waste valuable resources and gravely delay progress."

Although written into the 1972 Clean Water Act, the TMDL program was a forgotten part of the law for two decades, when public interest groups began to sue in the EPA to move forward with the program.

And this latest interest in the TMDL program comes in part from the Bush administration's decision in March 2003 to withdraw a rule finalized in 2000 by the Clinton administration to speed up and clarify the regulations that govern the program.

At the core of the issue is whether states or the EPA is granted authority to decide how the TMDL is divided among local sources of pollution.

The Bush administration believed the Clinton rule put undue burdens on state governments and shifted the balance of power unjustly to the EPA, by giving the agency greater authority over how TMDLs were devised and implemented.

Mehan said the TMDL program is integral to the EPA's shift toward addressing water quality problems on a watershed basis and said 8,000 TMDLS have established. The EPA official added that he does not know when the Bush administration will put forth its revisions, but there was no shortage of individuals telling him what they would like to see the administration propose. waste

Controlling runoff from agriculture has proven to be one of the greatest challenges for environmental officials. (Photo courtesy
"My message on TMDLs is this: we need a new rule but it must be a rule that outright prohibits any EPA role in local land use decisions," said Oklahoma Republican Senator James Inhofe. "Give the EPA authority to approve just the TMDL number itself, not how states decide to distribute it."

This sentiment was supported by lobbyists for agricultural and oil interests who testified at the hearing, as well as by David Mabe, the administrator of water quality programs with the Idaho Department of Environmental Quality.

"I believe the solution is simple," Mabe said. "Change the requirement for the federal agencies to affirmatively approve each plan, standard or water quality report, to a system where they have discretion to reject items they do not believe meet the goals of the Clean Water Act."

Others fear that the Bush administration, which has repeatedly drawn the ire of many for its environmental policies, will roll out a TMDL rule that lets states slide on cleaning up impaired waters.

"The administration has chosen to go backward on Clean Water protections rather than forward," said Vermont Independent Senator James Jeffords.

Jeffords read a long list of revisions to the nation's clean water regulations enacted or proposed by the Bush administration and said he is "dumbfounded at the casual attitude of this administration toward the future of our country."

"History will demonstrate that the changes I mentioned, taken as a group, will have been the largest step backwards in clean water protection in our nation's history," Jeffords said.

A draft of the Bush administration's TMDL rule indicates it is pursuing a path that will make it impossible for states to set enforceable limits for individual sources of pollution, said Mike Louzeau, an attorney with the nonprofit environmental law firm Earthjustice.

The Bush proposal limits the scope of the program and legitimizes less stringent controls on existing discharges without any corresponding pollution reductions by other sources, Louzeau said.

"The current efforts need to be given time to determine their effectiveness at cleaning up pollution," he said, noting that the EPA and states are in effect only five years into starting a program from scratch after "25 years of neglect."

"Implementation of the current TMDL rules should be given a chance to work before they are abruptly changed," he said. "This program is currently the best hope to achieve the current unachieved goals of the Clean Water Act."

The administration's draft TMDL proposal undermines its much touted water pollution trading program, added Rena Steinzor, a University of Maryland law professor who testified on behalf of the Center for Progressive Regulation.

"If the only total burden that is calculated is done on a watershed wide basis as opposed to an individual facility basis, a trading program becomes virtually impossible," Steinzor said. "It would seem as if EPA is on a course that is completely inconsistent." basin

Federal and state regulators are tasked with cooperating to protect the nation's waters, whether for drinking, recreation or environmental health. (Photo courtesy Virginia Department of Health )
The TMDL debate is only one of many surrounding the federal/state oversight of clean water regulations. Another discussed today was a rule regulating storm water discharges for communities with populations under 100,000.

This rule came into effect on March 10, 2003 and the subcommittee was presented with two examples of how it is impacting the communities it is designed to protect.

Juli Beth Hoover, director of planning and zoning for the city of South Burlington, Vermont, told the subcommittee that her community has found ways to implement the regulation that have resulted in multiple benefits.

The community centers around Lake Champlain, Hoover explained, and the new regulation forced local and state officials to face the simple fact the Champlain Water District "will charge us to remove from the Lake whatever pollutants we put into it."

Hoover explained that officials have embraced distributed storm water treatment systems using constructed and natural wetlands to filter pollutants storm water runoff. But these projects need funding, she said, and she urged the subcommittee to send local communities a "predictable, steady funding stream."

A local official from Hamilton, Ohio, would like more than funding - he wants the rule delayed.

The regulation has added $1.6 million to the $800,000 spent annually by the city of 60,000 on storm water treatment, explained Michael Samulviski, city manager for Hamilton.

"This federally unfunded mandate is being imposed upon local communities at a time when our economies are stagnant, and our nation is facing huge deficits as forecast by public financial officers," Samulviski said. "The time for implementation of this [regulation] is not now."

The implementation costs will have to be absorbed by local residents and businesses, Samulviski said, note that it will cost the local high school $1,338 a month and a local church some $374 a month.

Samulviski asked for a five year moratorium on the rule, which is not due for full implementation until 2008. Mehan said the agency is sympathetic to the financial woes of local and state budgets and will keep these considerations in mind.

"We ask this not because the City of Hamilton is seeking to avoid serving as a good steward of its river and receiving waters," Samulviski added, "but because we are concerned public officials seeking to strike a reasonable balance between the stark reality of our current depressed local economy and continuing environmental improvement."