[Congressional Record Volume 146, Number 97 (Monday, July 24, 2000)]
[Extensions of Remarks]
[Pages E1310-E1311]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 INTRODUCTION OF H.R. 4922, THE TMDL REGULATORY ACCOUNTABILITY ACT OF 
                                  2000

                                 ______
                                 

                       HON. SHERWOOD L. BOEHLERT

                              of new york

                    in the house of representatives

                         Monday, July 24, 2000

  Mr. BOEHLERT. Mr. Speaker, I am very pleased to be an original 
cosponsor of H.R. 4922, The TMDL Regulatory Accountability Act of 2000.
  TMDL stands for ``Total Maximum Daily Loads.'' TMDLs are useful tools 
provided by the Clean Water Act to bring water bodies into compliance 
with water quality standards. I support the Clean Water Act's TMDL 
program. I am pleased that EPA, States, and Congress are finally 
turning their attention to this program and are providing more 
resources for States to move ahead and develop and implement TMDLs 
under existing regulations.
  However, like many, I have concerns about EPA's proposed changes to 
the TMDL program. I have expressed my concerns about these proposed 
changes, and the process used by EPA to make these changes, at 
hearings, in letters and phone calls to EPA Administrator Browner and 
the Director of OMB, Jacob Lew, and in public statements.
  I have not been alone in expressing concerns. Many Members of 
Congress, the National Governor's Association and individual governors, 
the Association of State and Interstate Water Pollution Control 
Administrators and individual state agencies, EarthJustice Legal 
Defense Fund, Friends of the Earth, the Conservation Law Foundation, 
California Association of Sewerage Agencies, the National Federation of 
Independent Business, the U.S. Chamber of Commerce, the American Forest 
and Paper Association, the American Farm Bureau Federation, PACE 
International Union, and the United Brotherhood of Carpenters and 
Joiners of America all have expressed serious concerns about EPA's 
proposals.
  I find it significant that the National Governors' Association, the 
State Water Pollution Control Administrators, EarthJustice Legal 
Defense Fund, Friends of the Earth, and the Conservation Law Foundation 
all share the view that EPA's new TMDL regulations will actually hinder 
progress in improving water quality and will slow down implementation 
of the TMDL program.
  These State organizations and environmental organizations have 
different reasons for holding this view.
  On July 6, 2000, NGA wrote to President Clinton that--
  ``The TMDL rules have the potential to cause major financial burdens 
on our state environmental agencies and severe economic impacts on our 
states.''
  ``The restrictive language of the regulation will virtually eliminate 
the flexibility of states to offer opportunities to reduce overall 
pollution between waterbodies.''
  ``The `one-size-fits-all' approach proposed by the regulations will 
inevitably fail, resulting in mountains of paperwork and no appreciable 
improvement in water quality.''
  The Association of State and Interstate Water Pollution Control 
Administrators wrote to Administrator Browner that--
  ``It is the view of the majority of the state water quality program 
managers responsible for the day to day implementation of the clean 
water programs, that this set of rules is technically, scientifically 
and fiscally unworkable.''
  On May 19, 2000, six environmental organizations wrote to 
Administrator Browner that--
  ``Due to the problems we outline below, we are asking you to withdraw 
the current version of the proposed rule, which is so fundamentally 
flawed that it would weaken the existing TMDL program. In addition, we 
are concerned that if the Administration attempts to finalize this 
rule, the overwhelming opposition it faces in Congress could result in 
a weakening of the Clean Water Act itself.''
  ``Our organizations have many objections to the August 23 proposal, 
the most serious of which include the unjustifiably long timeline of up 
to 15 years to states to prepare TMDLs, the lack of requirements for 
EPA to step in and do the job if states fail to submit TMDLs or miss 
other regulatory deadlines, the omission of deadlines for meeting water 
quality standards, and the overall unenforceability of the new 
program.''
  Of the six groups that signed the May 19 letter, three (Friends of 
the Earth, EarthJustice Legal Defense Fund, and the Conservation Law 
Foundation) continue to oppose the TMDL rule.
  The state organizations and environmental organizations I quoted from 
have very different views on how to improve the TMDL program. However, 
they all share the goal of improving the TMDL program so that it is a 
more effective tool for improving water quality. Given this shared 
goal, I believe that we should be able to develop program improvements 
that can be embraced by both the National Governors' Association and 
environmental groups. And, given the difficulties in addressing 
nonpoint source pollution, it is critical to have the support and 
cooperation of the nonpoint source community. Rushing a regulation 
through that threatens lawsuits and withholding funds to achieve 
compliance will not result in improved water quality. It will only 
undermine public support for Clean Water Act programs.
  EPA has failed to demonstrate leadership on this issue. As a result, 
EPA's new TMDL regulations, signed by Administrator Browner on July 11, 
do not have public support. In fact, aside from some in the 
environmental community, EPA can point to only two or three states and 
one organization representing the regulated community--the Association 
of Metropolitan Sewerage Agencies--that support the final rule. And 
even with in AMSA there is not agreement. The California Association of 
Sewerage Agencies, representing 95 California municipal sewerage 
agencies, shares the view held by most organizations representing point 
sources--that ``the administration's apparent decision to rush to 
publication of an important rule will only promote litigation and years 
of delays in responding to actual threats to our nation's lakes, rivers 
and coastal waters.''
  I am not suggesting that all persons must agree with regulations, but 
EPA has made no attempt to engage in the public discourse that must 
take place to unite stakeholders behind the common goal of improving 
water quality, despite numerous requests from stakeholders asking EPA 
to allow additional public comment and seeking additional information 
from EPA on the impacts of the new TMDL regulations.
  Fortunately, EPA's new TMDL regulations will not become effective 
until fiscal year 2002 and we have the opportunity for additional 
comment and analysis that many stakeholders and many members of 
Congress had asked EPA to undertake before finalizing its new TMDL 
rule.
  First, we need to engage the public on this issue. EPA dismissed the 
criticism of its new TMDL rule as ``misunderstanding'' of EPA's intent. 
The final rule and EPA's preamble explaining intent were published in 
the Federal Register on July 13, 2000.
  H.R. 4922 requires EPA to solicit and respond to public comment on 
EPA's changes to the TMDL program.
  Second, we need to understand the scope of the problem. In her July 
11, 2000 press release announcing the signing of the new TMDL 
regulations, Administrator Browner states that ``40 percent of 
America's waters are still too polluted.'' However, EPA's estimate of 
the costs of developing and implementing TMDLs is based on 20,000 
impaired waterbodies--representing only 10 percent of the Nation's 
waters. What is the scope of the problem? 40 percent impairment or 10 
percent? The General Accounting Office pointed out in a recent report 
that only 6 states have sufficient data to identify the scope of water 
quality impairments in the State. As a result, neither EPA nor the 
public knows the actual scope of the water quality problem.
  H.R. 4922 requires EPA to come up with a plan to fill these data 
gaps, and create a budget for implementing that plan.
  Third, we need an understanding of what methods should be used to 
address these matters. Too often, EPA's new TMDL regulations simply 
assume away difficult water quality problems. For example, the new 
regulations consider the sun a source of pollution--heat--but do not 
explain how to go about regulating the sun, stating that: ``What needs 
to be done to mitigate heat load from solar input will be addressed by 
a State, Territory, or authorized Tribe when it establishes the TMDL.'' 
The final rule similarly has no answers for how to address pollution 
from atmospheric deposition, or legacy pollution.
  H.R. 4922 includes a study by the National Academy of Sciences to 
improve our ability to identify sources of pollution and allocate 
loadings among them.
  Fourth, we need an understanding of what kind of sacrifices the 
public must make to solve our remaining water quality problems, and the 
benefits that will be achieved if we dedicate resources to this effort. 
Again, EPA has failed to provide this information. EPA estimates that 
the total cost of the TMDL rule will be less than $23 million a year. 
EPA did not

[[Page E1311]]

provide any estimate of the benefits of the rule. However, as the 
General Accounting Office pointed out in another recent report, EPA's 
cost estimate assumes that States already have all the data they need 
to develop TMDLs, an assumption that has no basis in reality. In 
addition, EPA fails to inform the public of the costs to the regulated 
community from implementation of the rule, including costs to small 
businesses and small farming or forestry operations. Instead, EPA would 
have the public believe that improving water quality is all gain and no 
pain. I am very concerned about a backlash against Clean Water Act 
programs when EPA tries to implement the new regulation and the cost is 
more than the public is prepared to pay.
  H.R. 4922 requires EPA to conduct a complete analysis of the costs 
and benefits of its TMDL rule in a manner that addresses the 
Comptroller General's criticisms of the EPA's earlier cost estimate. In 
addition, H.R. 4922 requires EPA to quantify the effects of the rules 
on small entities, including small businesses small organizations, and 
small governmental organizations.
  H.R 4922 does not affect EPA's existing TMDL program. I strongly 
encourage States to proceed with TMDL development and implementation 
under existing regulations as expeditiously as possible. Fortunately, 
the House-passed VAHUD appropriations bill provides significant new 
resources for States to do so.
  H.R. 4922 also does not affect EPA's new TMDL regulations. However, 
after considering the additional public input and additional 
information developed under this legislation, I hope that EPA will 
conclude that its new TMDL regulations should be changed before they 
become effective in fiscal year 2002.

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