January 19, 2000

Comment Clerk for the TMDL Program Rule
Water Docket (W-98-31)
U.S. Environmental Protection Agency
401 M Street, SW
Washington, D.C. 20460

Re: Proposed Revisions to the Water Quality Planning and Management Regulation Concerning the Total Maximum Daily Load Program

Dear Sir or Madam:

The Association of California Water Agencies (ACWA) appreciates the opportunity to submit comments on the Environmental Protection Agency's proposed rule to revise regulations implementing the Total Maximum Daily Load (TMDL) program under the Clean Water Act (CWA). The proposed rule was recently published in the Federal Register. See 64 Fed. Reg. 46,012 (August 23, 1999).

ACWA represents over 440 public water agencies in California. Our members supply over 90% of the water delivered in California for domestic, agricultural and industrial uses. Many of ACWA's member agencies provide their customers with treated drinking water, and are keenly aware of the need to protect and restore water quality. Significant population growth in California will likely result in further degradation in water quality, particularly for drinking water uses, unless actions are taken to limit the loads of contaminants being discharged into California's surface and groundwater.

Many of our member agencies also supply irrigation water to sustain agriculture over large areas of the state. Some of our member agencies operate publicly owned treatment works (POTWs) that discharge treated wastewater, either directly back into surface waters or by percolation to recharge groundwater basins. ACWA members are integrally involved in watershed management throughout the state to ensure that water supply needs are adequately addressed and positive environmental effects are optimized in a balanced manner.

The activities of some ACWA member agencies are directly regulated under the National Pollutant Discharge Elimination System (NPDES) program, administered in California by the State Water Resources Control Board and the Regional Water Quality Control Boards. EPA is concurrently proposing revisions to the NPDES program that would implement the TMDL rule. Although this NPDES rulemaking is likely to impact many of our member agencies, the scope of these comments will be limited to the TMDL process proposal.

General Comments

ACWA supports the objectives of the federal CWA to protect and restore water quality where the result is source water protection that helps assure safe drinking water. However, we believe that many problems with the CWA can and should be remedied by Congress as part of a comprehensive reauthorization that is long overdue. ACWA is also generally supportive of EPA's efforts to promote the "watershed approach" to water quality and supply problems, based on collaborative and holistic efforts by local and state public and private stakeholder groups. These efforts generally tend to be less regulatory in nature, more incentive-based, and more reliant on local initiative and authorities. The watershed approach also promises to be less expensive overall and more sustainable than the present proposal by EPA, which we view as a "top down/command and control" program that would be imposed on the states by EPA.

ACWA believes it is unclear whether EPA has the authority for it's broad regulatory expansion of the TMDL program under section 303(d), particularly as it relates to the regulation of nonpoint sources of pollution, expansion of the program to include "threatened waters", and the mandate to prepare implementation plans. These issues will be addressed in greater detail in the following section of this letter. Our concern is that EPA's proposal appears to be inconsistent with the intent and existing scope of the CWA Section 303 (d) (1) and Section 319 (nonpoint source program). These provisions already require the states to develop water quality plans and to develop nonpoint source management plans and identify those waters that are not expected to attain or maintain applicable water quality standards. In both cases, these provisions clearly designate responsibility for these programs and their outcomes to the states. In contrast, EPA's proposed rule circumscribes states' the flexibility and responsibility to achieve water quality goals with prescriptive requirements and additional layers of planning, implementation, and oversight. To the extent that additional regulatory authority is needed to ensure compliance with water quality standards, we believe that the states, not the federal government, should exercise such authority.

In fact, ACWA believes that, with regulatory improvements and clarifications that will be identified below, the existing balance of authority and responsibility between federal and state regulations is already working to improve water quality. For example, in California, the State Water Resources Control Board and Regional Water Quality Control Boards have been implementing nonpoint source pollution control measures under provisions of the state's Porter-Cologne Water Quality Control Act, relying on voluntary actions and state regulatory authority to impose case-by-case waste discharge requirements to protect water quality. Since the primary responsibility for standards compliance rests with the state and regional water boards, ACWA believes that it should be left to the state to determine what additional regulatory authority is needed by those responsible agencies to meet water quality goals.

ACWA believes that the TMDL process was intended to be one of technical water quality accounting, management and monitoring tools available under the CWA, and was designed to be used to supplement other statutory requirements, such as the NPDES program. ACWA supports EPA's objective to clarify the TMDL process in accordance with the findings of the Federal Advisory Committee (FACA Committee) and case law. However, we are concerned that EPA's proposal goes far beyond this objective and represents a scheme to "reinvent" the TMDL process into an excessively burdensome and costly command-and-control regulatory program.

ACWA believes that the 303(d) listing process was intended to focus attention (including TMDL analysis) on the states' highest priority impaired waters. We are concerned with practicality and costs associated with collecting the monitoring data needed to do a credible job of calculating and monitoring TMDLs for all the pollutants on the over 1500 water bodies/pollutants listed as impaired in California. We are concerned that there will be insufficient federal money made available to state and local governments to undertake and sustain such a sweeping new regulatory program.

The EPA proposal may have understated the enormous scale of this program by undervaluing the total cost at $25 million in any one year nationwide, and claims that it would not trigger the provisions of the Unfunded Mandates Reform Act or the Regulatory Reform Act. EPA's own estimates suggest that TMDLs may cost up to one million dollars each. With over 40,000 impaired water body/pollutant combinations nationwide, TMDLs could cost several billion dollars over the proposed 15-year period. This estimate does not include the cost of actually implementing the TMDLs. Any estimate of the cost of the TMDL proposal should also include the costs associated with legal challenges and revisions to inadequate TMDLs, the long-term economic impacts associated with new pollution controls, and the costs and economic disruption resulting from the associated land use and water use controls that will likely be necessary to implement all of the TMDLs.

ACWA believes that this rulemaking process needs to be supported by a comprehensive and objective cost analysis and concrete proposals to address its funding requirements. If this regulatory program is to be a new federalization of nonpoint source pollution control, then Congress should explicitly authorize and provide suitable federal funding for this effort. It is likely that federal funding for TMDLs will need to be provided to the states on at least the scale of the federal expenditures for the municipal wastewater construction grants program of the 1970's and 1980's.

ACWA's mission is centered on clean water, protection and enhancement of existing water quality, and specifically, safe drinking water. ACWA is supportive of collaborative efforts involving all levels of government and the private-sector to address water quality problems using existing legal authorities. ACWA member agencies exercise certain authorities that are incorporated into voluntary partnerships with federal, state, and other local governments to advance many of the objectives behind EPA's proposal. If necessary, some of these authorities may need to be enhanced by changes in federal or state statutes. However, we believe that EPA's proposal goes beyond the original congressional intent of the CWA, and that EPA's authority for many of its regulatory proposals is lacking in the CWA. We believe that the proper context for addressing these authority questions is during congressional reauthorization of the CWA.

Specific Comments

The proposed TMDL rule requires the listing of all water bodies that are impaired or threatened by pollutants or pollution (Section 130.25). Pollution is defined as "the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water". Consistent with section 303(d) of the CWA, the proposed rule only requires TMDLs for water bodies impaired/threatened by pollutants. Requiring the listing of water bodies impaired/threatened by pollution when there is no statutory requirement for a TMDL, diverts limited resources from problem solving (i.e., TMDL development) to an informational exercise. ACWA encourages EPA to further clarify that the mere listing of water bodies on the proposed 303(d) list is not to be construed as a requirement for TMDL development. ACWA strongly urges that the 303(d) list include only those water bodies that are impaired, and in limited cases, threatened by pollutants. ACWA supports the proposed requirement for an explicit methodology for the 303(d) listing process (Section 130.23). The rule should more clearly emphasize that the methodology must be founded on "good science", and be subject to peer review as well as public comment. We support the requirement (Section 130.24) that the methodology be subject to EPA's review and comments (but not approval or disapproval) before the listing process is initiated. We believe that this may help improve the integrity and objectivity of the listing process and ensure that limited public resources are directed to preparation of TMDLs where they will do the most good.

ACWA is concerned about the scope of EPA's proposal requiring preparation of TMDLs for all "threatened" water bodies (Section 130.25). EPA notes that proactively addressing pollutants in "threatened" water bodies may be less costly than trying to restore water quality to impaired water bodies. ACWA concurs that early identification of water quality problems prior to actual impairment of a water body offers an opportunity to reduce the cost of eventual TMDL preparation and implementation on NPDES permit holders, non-point source polluters, and water users. However, we are concerned that the inclusion of threatened water bodies (as that term is defined in the proposed rule) will divert limited resources away from TMDLs for impaired water bodies. As recommended by the FACA Committee, ACWA believes that EPA should, in the first instance, encourage incentive-based programs to be developed by the states using a watershed approach to address declining water quality trends proactively to avoid the need to list and prepare TMDLs for these waters. ACWA urges that EPA request new federal funding from Congress to support state-led incentive-based programs for such water bodies.

Additionally, we recommend narrowing the definition of threatened water bodies to drinking water sources that will be "clearly" impaired by the next listing cycle (based on monitored data) as opposed to those that are "likely" to become impaired. By narrowing the definition, limited resources can be more effectively utilized in TMDL development. An example is where a new drinking water MCL has been promulgated as a water quality standard where none currently exists. If the effective date of the new water quality standard is in the future but before the next listing cycle and the current concentration of the contaminant is above the new standard, the waterbody will "clearly" become impaired by the next listing cycle even though it is not impaired at present. There are likely other examples that would fall under this narrower definition, and EPA should establish appropriate guidance.

ACWA is concerned with the proposed use of "interpreted data" to support the listing of water bodies under the proposed 303(d) listing process. ACWA believes listing decisions should be based on "good science," specifically "monitored data," that has been quality assured and peer reviewed.

ACWA appreciates EPA's recognition of the importance of protecting drinking water supplies by requiring the utilization of information developed under the Safe Drinking Water Act's (SDWA) Source Water Assessment Program (Section 130.22(b)(4)). We also support the assignment of "high priority" to preparation of TMDLs for existing drinking water sources that are impaired and contributing to a violation of a drinking water Maximum Contaminant Level (MCL) (Section 130.28(b)(1)). However, we do not believe that this "high priority" assignment should be made to water sources for which a potential (but not actual) beneficial use is drinking water supply.
ACWA is supportive of EPA's attempt to coordinate SDWA and CWA regulations. However, EPA's proposal needs to clearly define how water treatment issues like total organic carbon (TOC) for disinfection byproduct (DBP) control, and eutrophication and nutrient issues associated with color, taste and odor, and DBPs in drinking water systems will be addressed where there are no existing water quality standards.

ACWA supports EPA's proposed requirement for preparation of TMDLs for waters that are impaired only by atmospheric deposition (Section 130.25(b)(2)). However, this section needs to emphasize that any listing must be supported by a rigorous scientific and peer-reviewed assessment. We recommend that the rule explicitly address situations in which the data do not currently support preparation of a TMDL for water bodies impaired only by atmospheric deposition. In such cases, EPA should recommend that incentive-based programs be developed by the states to address adverse declining trends proactively. This would avoid the need to list and prepare TMDLs for these waters. EPA should take a leadership role in addressing multi-media impacts such as air sources contributing to water quality impacts. The MTBE problem in California provides adequate precedent for the need for such coordination.

ACWA believes the listing cycle (Section 130.30(a)) needs to be lengthened to five (5) years to help focus limited federal, state, and local resources on actual preparation and monitoring of TMDLs instead of the listing process itself, as is the case under the current 2 year cycle.

However, there should be some mechanism for removing waters from the list in the interim time period for waters that meet delisting criteria.

ACWA is concerned that mandating year 2000 lists to be based on the new regulations will cause confusion and controversy and will do little to improve water quality. EPA's proposal to require that year 2000 lists be based on the new regulations is unrealistic given the time needed for EPA to review the many comments they will likely receive and the time needed to implement any changes. ACWA recommends that the year 2000 lists be based on the existing regulations and the next list after that be based on the new regulations.

ACWA is troubled by the implications of EPA's proposal to link TMDLs with the federal Endangered Species Act, potentially requiring the preparation of Biological Assessments and prolonged consultation processes with the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service. EPA itself indicates that TMDLs are not likely to jeopardize the continued existence of listed species, but this requirement is likely to lead to time-consuming and unproductive attempts to prove the negative concerning impacts to myriad listed species that may occur in or adjacent to impaired waters.

ACWA is concerned that the required 15-year schedule for all TMDLs (Section 130.31(a)(1)) and the recommended five-year schedule for high priority TMDLs may be unrealistic for many states (especially California) considering the limited funding resources available, the technical complexity of many TMDLs, the proposed enhanced public participation requirements, and the potential legal conflicts that may arise. EPA should develop a procedure that would enable EPA to grant an exception to these 15-year and five-year limits on a case-by-case basis where warranted. For example, this might apply to TMDLs for ubiquitous and difficult-to-control pollutants (e.g., mercury and dioxin) that will likely take longer than 15 years.

ACWA generally supports the need for an implementation plan for each TMDL, but believes that this responsibility should continue to reside with the states. The requirement to make the implementation plan part of the required TMDL and subject to review and approval by EPA (Section 130.33(b)(10)) is not supported by the CWA and needs to be reconsidered. ACWA believes that if implementation plans are included as part of TMDLs, EPA would be inappropriately involved in determining specific details of local implementation with which it has little experience and little direct authority to implement direct controls on land use or water use. We believe that this would upset the balance of partnership between the levels of government and result in EPA implementation plans that are infeasible and unimplementable.

In the spirit of the public participation and petition processes proposed in the rule, ACWA recommends that EPA develop an incentive-based voluntary program that would provide significant federal matching funds to states that submit complete implementation plans with submittal of a TMDL. EPA's recommended contents and standards for such an implementation plan could be proposed as part of its TMDL guidance document. The guidance could encourage incorporation of clear performance standards and milestones to

enable objective and on going implementation monitoring, but should avoid prescribing implementation measures or funding levels to the states. This incentive-based program
would need to be sufficiently attractive to encourage its extensive use by the states; as such it may be necessary for EPA to request adequate new appropriations by Congress.

ACWA supports the clarifications that different TMDLs may be appropriately expressed as daily, monthly, seasonal, annual averages, according to the nature of the pollutant, as proposed by EPA (Section 130.34), but we believe that the CWA itself needs to be amended to support this provision.

ACWA supports the public participation provisions proposed by EPA (Section 130.37). We believe that these provisions will tend to provide needed integrity to the TMDL process, but good faith compliance is likely to require significant commitment of time and funding that must be anticipated by all stakeholders. The final TMDL approval process needs to provide for a collaborative incorporation of needed changes to the TMDL to adequately respond to public comments. This may require that Congress amend the CWA to increase EPA's 30-day statutory review period.

ACWA generally supports the idea of the petition process to provide an administrative alternative to court action (Section 130.65). However we recommend that petitions be limited to specific TMDLs (not state listing processes or entire programs), and that the petitioner be required to give the state advance notice of intent to petition EPA. This will provide for potential resolution of the complaint before it goes to EPA. To provide for a more balanced process, the petition process should also be offered as a method for requesting delisting between listing cycles.

Conclusion

ACWA recognizes that the problems of water pollution are complex and need to be effectively addressed to preserve the quality of our water and the health of our people. However, we also see a lot of untapped potential in the voluntary, collaborative, and interest-based watershed approach. We are actively working with our member agencies to make progress in addressing water pollution on a collaborative basis in watersheds throughout California. We are concerned that the overall direction of the TMDL process could threaten that potential by diverting scarce resources to a complex and overly bureaucratic program. We respectfully request that EPA withdraw the proposed rule and substantially revise it to adequately address the concerns we have identified in this letter. If you have any questions regarding these comments, please contact David Bolland at 916-441-4545.

Sincerely,

STEPHEN K. HALL
Executive Director