Congress Not Expected to Block TMDL Rule

Sept. 1, 2000
The U.S. Congress appears unlikely to overturn the Clinton Administration's preemptive decision to issue total maximum daily load (TMDL) regulations limiting polluted water runoff.

The U.S. Congress appears unlikely to overturn the Clinton Administration's preemptive decision to issue total maximum daily load (TMDL) regulations limiting polluted water runoff.

The Environmental Protection Agency issued the rule July 13 despite widespread opposition. In a spending bill, Congress had banned issuance of the rule during this fiscal year, which ends Sept. 30.

EPA issued its rule before that legislation could take effect. The TMDL rule won't take effect until Oct. 1, 2001 but now Congress would have to overturn the rule with a two thirds majority vote.

Rep. Bud Schuster (R-Pa.), the House Transportation and Infrastructure Committee chairman, said, "EPA arrogance under this administration has risen to new heights. EPA is taking this action in the face of overwhelming opposition from the National Governors' Association, small businesses, farmers, and other landowners across America, and in direct defiance of a directive by Congress to forego finalizing or implementing these new rules."

Sen. Bob Smith (R-N.H.), the Senate Environment and Public Works Committee chairman, said the administration "rushed the final TMDL rule out the door, bypassing proper administrative review by their own Office of Management and Budget, completely circumventing congressional requests, and ultimately legislative action to withhold the final rule.

"There was a process in place, and we were making progress through ongoing negotiations with the administration, members of Congress, and various stakeholders.

"A few more months, and I think we could have crafted a balanced and environmentally sound program. However, all of that effort has been wasted because of petty politics," Smith said.

The Rule

Carol Browner, EPA administrator, said her agency made substantive changes in response to the public comments it received.

"Americans want and deserve clean beaches and safe waters in which to swim and fish. Yet, 40 percent of America's waters are still too polluted. Some 20,000 river segments, lakes and estuaries across America do not meet water quality goals for protecting health. More than 90 percent of all Americans live within 10 miles of a polluted body of water.

"This program is designed to control the greatest remaining threat to America's waters — polluted runoff. The time has come to move forward and live up to the promise of the Clean Water Act by making our waters fishable and swimmable once again."

EPA said changes in the rule give states more flexibility in implementing the program. They included: dropping provisions that could have required new permits for forestry, livestock, and aquaculture operations; significantly enhancing state flexibility; giving states four years instead of two to update inventories of polluted waters; and allowing states to establish their own schedules for when polluted waters will achieve health standards, not to exceed 15 years.

EPA said it upgraded the regulation to "major rule" status under the Congressional Review Act, allowing Congress ample time to review it.

Under the TMDL program, EPA said it will work with state and local governments to develop flexible solutions for cleaning waterways that presently do not meet the goals for public-health protection.

It said, "When the rule takes effect, water pollution problems will be addressed comprehensively on a state-by-state, river-by-river basis, for the first time ever."

EPA said the program would be modeled after successful cleanup plans for the Great Lakes and Chesapeake Bay, using measurable targets to achieve real reductions in water pollution. It will use a credit trading system like that used in the acid rain program to ensure cost-effectiveness.

The Senate Environment and Public Works Committee considered but did not pass legislation to prevent EPA from completing the rulemaking. It did approve measures for studies of TMDL issues by the National Academy of Sciences and the National Academy of Public Administration.

Justification

Before issuing the rule, EPA had released a 1998 study that concluded 40 percent of the nation's assessed waterways remain too polluted for fishing and swimming.

It said the 40 percent figure is generally consistent with findings of the last decade. Runoff from agricultural lands and urban areas remains the primary source of the leading pollutants: siltation, bacteria, the nutrients phosphorus and nitrogen, and metals.

EPA Assistant Administrator for Water, J. Charles Fox, said, "It's paramount that we clean up the nation's remaining water pollution. Millions of Americans spend billions of dollars every year at their favorite waterways. Although most of our waterways are cleaner because of controls on direct discharges, the remaining polluted waters will only be cleaned up by addressing polluted runoff — a mix of contaminants that can include chemicals, metals, fertilizers and oily wastes."

He said the 1998 figures reflect the states' assessment of a third of the nation's waterways. Among the states' findings, over 290,000 miles of 840,000 miles of assessed rivers and streams do not meet water quality standards.

States also assessed nearly half of all lakes, reservoirs and ponds, finding nearly half polluted. Of the Great Lakes, 90 percent of their shoreline miles were assessed; of those, 96 percent of the shoreline miles indicated pollution exceeding water quality standards to protect human health.

Although threats remain, states found that ground water quality generally remains good and can support many different uses.

MTBE Phaseout

Sen. Smith plans to mark up legislation before the Environment and Public Works Committee in September to phase out use of methyl tertiary butyl ether (MTBE) in gasoline in four years.

EPA had urged Congress to phase out MTBE, a gasoline additive that has been found to contaminate water supplies following underground tank leaks.

Unlike the Clinton administration's proposal, Smith's bill does not mandate a larger role for ethanol as a gasoline oxygenate.

The legislation would allocate $200 million from the Leaking Underground Storage Tank fund for MTBE cleanup activities. And it would allow states to waive the current federal requirement that RFG contain 2 percent oxygen by weight.

Under the legislation, EPA would set toxicity standards for gasoline, in order to preserve air quality gains from using MTBE. And it would require a study of those standards within 5 years.

Smith offered a separate amendment to his bill that would require alternative fuels to supply 0.6 percent of total U.S. fuels by 2002, increasing to 1.5 percent in 2011.

He said, "Up to 6,000 private drinking water wells have been affected in my home state alone. It is critical for Congress to act this year to eliminate this threat to our communities.""

Smith expressed hope legislation could be passed during September, but Congress is due to adjourn Oct. 6 and the bill will be opposed by farm state senators who want to mandate more ethanol use.

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