BOARD02415

• Board Meeting Date: 3/20/2000
• Description: Directors' Reports
• Board Meetings - Doc Type: Memo

programs and approaches to protect water quality.... The States are concerned that the proposed
regulations represent a major significant shift away from historic voluntary and collaborative .-~
efforts.... These collaborative watershed strategies are the basis for voluntary, incentive-based
solutions to control nonpoint source pollution."

Lugar unveiled a Congressional Research Service (CRS) memo that states the EP A does not
appear to have the authority to regulate nonpoint sources under the CW A. The CW A defines
point sources, but not nonpoint sources. Only Section 319 addresses nonpoint Source
management, but nowhere does section 319 suggest, "any regulatory authority over nonpoint
sources on the Part ofEP A. Rather the section is directed to the creation of a state program, with
only modest federal guidance."

The memo says Section 303( d) appears to be the only CW A provision that supports an
argument in favor of EP A regulatory authority Over nonpoint sources. However, the report
concludes, "It is difficult to argue that a Congress that took such care to minimize the federal role
in the CW A sections that explicitly address nonpoint source pollution could haYe intended the
possibility of direct federal regulation...through a provision such as section 303(d) that makes no
mention of non point sources.

At an earlier TMDL hearing held by the House Transportation and Infrastll.lcture's
Subcommittee on Water Resources and Envirorunent, David Holm, Director of the Colorado
Water Quality Control Division and President of the Association of State and Interstate Water
Pollution Contr()l Administrators (ASIWPCA), testified that states have been in a "continuing
dialogue" with EPA through a series of conference calls and TMDL workshops.

Holm said the proposed rules broadly expand the federal role and undermine EP A's .
relationship with states and that the role of Section 303( d) is enlarged beyond what the CW A
envisioned. He said the proposal is too prescriptive, adds new administrative layers, restricts
states' ability to use adaptive management, and mandates TMDL development and
implementation plans for problems beyond the jurisdiction of state water quality programs,
including interstate and inter-national waters. Be identified the fundamental obstacles to making
TMDLs a meaningful component ofa state's Water quality management program: (1) the
significant lack of funding and authority to address non-point source and other water quality
problems under the current program; (2) major gaps in available data, research and monitoring;
and (3) insufficient attention to multi-media and multi-jurisdictional water problems.

Holm listed five guiding principles needed to move forward and improve the TMDL
program:

. The states' lead role in the nation's clean water program must be maintained.
. TMDL requirements need to be flexible and consistent with existing statutory authority,
available resources and State water quality agency jurisdiction.
. Existing initiatives should be used, wherever possible, to achieve water quality objectives.
. Expectations need to be clearly focused on desired environmental outcomes.
. The iterative approach is crucial to success, particularly for nonpoint sources.

Holm warned that unless the proposed rules are refined the likely outcome would be
litigation and delay, and less not more environmental progress.

This testimony is available at http://www.house.gov/transportation/ctisub5.html.

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