Alliance for a Living Ocean
2007 Long Beach Boulevard
North Beach Haven, New Jersey 08008
Mail: PO Box 95, Ship Bottom, NJ 08008
(609) 492-0222
Alliance
for a Living Ocean
2007 Long Beach Boulevard
North Beach Haven, New Jersey 08008
Mail: PO Box 95, Ship Bottom, NJ 08008
(609) 492-0222
Letter from the Clean Water Network
September 10, 2001
W-98-31-III TMDL Comments Clerk Water Docket (MC-4101) U.S. Environmental Protection Agency 1200 Pennsylvania Ave., N.W. Washington, DC 20460
RE: Delay of Effective Date of Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System Program in Support of Revisions to the Water Quality Planning and Management Regulations; and Revision of the Date for State Submission of the 2002 List of Impaired Waters; 66 F.R. 41817-41822
On behalf of the undersigned organizations and our millions of members and supporters, we oppose the proposed delay of the effective date of the July 2000 Total Maximum Daily Load (TMDL) regulations because this is the first step in the administration's effort to weaken all aspects of the TMDL program. Weakening the Clean Water Act's primary program for cleaning up our nation's polluted waters would be a major environmental and public health setback for the American people, similar to recent administration actions to raise the amount of arsenic allowed in drinking water and rolling back protections for our national forests.
We also oppose the administration's proposal to delay the due date of the next 303(d) impaired waters lists from April 1 to October 1, 2002. This is an unnecessary and counter-productive proposal that will also slow our nation's progress toward achieving clean water.
Delaying the regulations
By the Environmental Protection Agency's (EPA) own admission, the proposal for delaying implementation of the July 2000 revisions to the TMDL regulations has been undertaken in order to give the administration time to reopen and weaken many aspects of this important water clean-up program. The implementation of the TMDL program is finally getting underway in most states - decades overdue. We are concerned that delaying the effective date of the July 2000 regulations is the first step toward weakening the entire TMDL program to appease industry interests and delay further state progress to cleaning up pollution from point and nonpoint sources.
The TMDL program was a critical part of the original 1972 Clean Water Act and today provides our best hope for cleaning up more than 20,000 polluted waterbodies identified by states. These waterbodies are listed as polluted because they do not meet the most basic goal of the Clean Water Act - safe waters for human recreation and wildlife. Any steps to weaken the TMDL program are actions that will condemn current and future generations to dirty water and unsanitary conditions.
Reopening key aspects of the TMDL regulation will lead to further confusion about the future of the TMDL program and will likely contribute to further delays in developing clean-up plans for our nation's most polluted waters. After more nearly 30 years of ignoring their legal obligation to develop cleanup plans, many states are just beginning to tackle cleanups that will result in cleaner, safer water for swimming, aquatic life, and other important uses we make of our waters. The federal register delay already threatens to stall this progress in some states.
The proposed delay in the June 2000 rule and administration's proposal to reexamine the entire TMDL program will only lead to confusion, delay and continued litigation over states' and EPA's failure to implement the clear requirements of section 303(d) of the Clean Water Act.
Of even greater concern, the health and welfare of the millions of people -- over 200 million by EPA's estimates -- who live near polluted rivers, lakes, and coastal waters will be endangered. The very agency charged with protecting our communities' health is causing more delay while children swim in polluted waters, people eat fish contaminated with pollutants, and businesses such as commercial fishing enterprises suffer from reduced returns.
Delaying the listing cycle
The Federal Register notice also announces EPA's proposal to delay the 2002 TMDL 303(d) list submittals. This proposal is unnecessary and counterproductive. EPA claims a six-month delay of the April 2002 listing cycle is needed in order to allow the agency to issue listing guidance. We believe this is not the case because:
1. Regulations and guidance already exist. Every single state submitted lists in 1998 and several submitted lists again in 2000. While the EPA may wish to produce additional guidance on certain issues for future lists, existing regulations and guidance provide the basic structure the states need in order to create their 2002 lists. The 2002 listing cycle should not be delayed based on the agency's speculation - in advance of any public comment - that they may make changes in the listing guidance.
2. Guidance cannot be inconsistent with regulations. The EPA has stated that its new guidance will be based on some of the recent recommendations contained in the National Research Council's (NRC) report on TMDLs. The NRC Report did not recommend delaying the TMDL program. In fact the report specifically recommends that despite scientific uncertainty, "the states and EPA should move forward with decision-making and implementation of the TMDL program. . ." (p. 4) Despite this overall conclusion, the NRC report did make some suggestions for possible changes to the TMDL listing methodologies. However, even with six additional months to create new guidance, the EPA cannot incorporate many of the NRC studies' recommendations or other proposals the agency has discussed without changing existing regulations or, in some cases, without Congress amending the Clean Water Act itself. These types of changes - many of which would be vigorously opposed by our organizations - would take much longer than six months to effectuate, if they ever could be approved. EPA's speculative plans to change listing methodologies should not be used as an excuse to delay the 2002 listing.
3. There is no reason why states cannot use the existing regulations to create their lists. EPA claims that there is confusion in the states as to which regulation lists should be developed under. EPA claims this confusion will lead to inconsistencies. This argument is hollow. If states created their 2002 list under the 2000 regulations, that list would comply with the 1992 regulations as well. If a state had planned to use the 1992 regulations, the pending implementation of the old regulations is well known and has allowed plenty of time for states to change their plans.
4. EPA has already delayed listing once by making the 2000 list optional. Additional delay is a disservice to the American public. EPA has a legal responsibility under the Clean Water Act to ensure that 303(d) lists are created and submitted regularly in order to ensure the identification of polluted waterways and their timely cleanup. This responsibility was already deferred for the 2000 lists - doubling the time between listing. Additional delay, even of six months, leaves our waterways and communities with less protection.
5. Some states have completed their listing methodology or are near completion - EPA's proposed delay undermines these states' hard work. The question of listing methodology is moot in some states. Some states have made a good faith effort to move forward with listing - creating listing methodologies this year in light of the April 2002 listing requirement. If EPA changes the game plan now by delaying the 2002 listing in order to create new rules through guidance, they have wasted the time, resources and effort of these states, as well as hundreds of citizens and community groups that have worked with states on the 2002 lists.
Conclusion
Reopening the TMDL regulations in order to weaken this critical Clean Water Act program - as the administration clearly plans to do -- will make matters worse for communities across the country living with polluted waters. Delaying the next 303(d) lists will also handicap efforts for cleanup. Cleaning up the country's polluted lakes, rivers,streams and coasts is what the Clean Water Act requires and what the public wants. It is time to move forward.
We urge you to reconsider your decision to reopen the TMDL regulations, and ask that EPA not delay or weaken the Clean Water Act's program for cleaning up the nation's polluted waters.
Sincerely,
Clean Water Network
Alliance for a Living Ocean Index
ALO Homepage * Headquarters * History * Trustees * Membership * Events * Featured Articles * Ask Aloysius *
Legislation * ALO Photos * Gift Shop * Related Sites * What's Hot * Email ALO
Visit the rest of Long Beach Island on LBInet
Who is glad to host the Alliance for a Living Ocean Website
The Website maintained by the Alliance for a Living Ocean.
