New Federal Water Rules Threaten To Swamp State EPAs
By John Nagy, Staff Writer
New rules touted by the Clinton administration as the best way to get states on the fast-track toward eliminating non-point source pollution and cleaning up U.S. waterways will strain states environmental protection resources - some possibly to the breaking point - state analysts say. But federal officials counter that the rules are needed to help states, the vanguard of national environmental protection efforts, meet the goals of the federal Clean Water Act.
Under the 1972 act and later amendments, state agencies are charged with identifying contaminated rivers, streams, lakes and coastal areas and setting acceptable "pollution budgets" or total maximum daily loads (TMDLs) for each. In recent years, control efforts have shifted from major polluters to substances that enter all waterways from hard-to-trace sources like lawns, farms, and heavily developed areas aggravated by sprawl.
The work is costly and incredibly time consuming and states are outspending the federal government nearly 2 to 1, according to the most recent estimates available from the Environmental Council of the States (ECOS) , a non-partisan association of environmental commissioners representing 52 of the 55 states and territories.
Several states, under pressure from lawsuits charging the U.S. EPA with failing to keep states on a tighter schedule, "are already working aggressively" on the identification and cleanup of non-point pollution, said Christophe Tulou, deputy director of intergovernmental relations for ECOS.
The new rules, which do relax the states' reporting schedule from two to four years, also set a more rigorous long-term implementation deadline, requiring a full inventory of polluted waters, completed TMDLs and clear plans for enforcing them within 15 years.
"It is burdensome. No matter how you hash this thing, it's an expensive proposition," Tulou said.
"We certainly understand that some not all states have concerns about that. One of the most important things for us through this whole process was intense dialogue with the states to make sure we heard all their concerns," said EPA assessment and watershed protection division director Elizabeth Fellows.
"States do most of the traditional environmental work in this country," ECOS executive director Robert E. Roberts told reporters at Governing magazine's Outlook 2000 conference in February. But state observers worry that the EPA rules constitute a significant federal challenge to what had been a steadily growing trend toward increasing reliance on states to provide environmental protection.
"It's an enormous new unfunded federal mandate. That is clear," said Diane Shea, who directs natural resources policy for the National Governors' Association (NGA) .
The U.S. Environmental Protection Agency (EPA) released the rules July 11, putatively cutting short discussions with governors and state water pollution officials in a move jeered by Congress including several Democrats as a transparent attempt to shore up the administration's environmental legacy.
Congress had moved to delay a rules change in a spending bill rider on its way to Clinton's desk. The action effectively ducked that tactic with its announcement, but the agency will have to wait until October 2001 for the authority and funding needed to launch the program, the Washington Post reported on July 12.
The new rules also turn state control in setting particular TMDLs over to federal authorities within a year of missed deadlines, which some state officials see as something not unlike a whip-handle held over their heads.
Not so, says Fellows. "If the state came in and said, we're ready now, we want to take it back, they can do that" under the plan. "They are in the driver's seat and we hope they stay there. But we do need to be a backstop if they can't."
State environmental protection agencies now have until April 2002 to submit preliminary lists of polluted waters under the plan, which is subject to congressional review.
"States that have very little in the way of resources to get these things done or are not interested in having heavy EPA oversight, are obviously not very happy with it," Shea said.
Although it is too early to precisely calculate the impact on state resources, the governors projected additional environmental protection costs of $1 billion to $2 billion in a July 6 letter to President Clinton, a figure they base on estimates from state water managers. "It will also depend on whether or not some states will simply say that meeting EPA deadlines is just not a reasonable thing to expect and will say to EPA, take the program back. We can't get things done in the time frame you've given us'," Shea said.
In the letter signed by Nevada Gov. Kenny Guinn (R) and Iowa Gov. Tom Vilsack (D), who co-chair NGA's natural resources committee, the governors reasserted "that the primary responsibility for managing the national's vital water resources is properly vested with the states" as specified by the Clean Water Act.
"Given the costs of collecting data for each pollutant in each waterbody, calculating the contribution from each discharger for each pollutant, and devising methods for reducing each contributor's share, it becomes clear that the states simply do not have the enormous resources necessary to accomplish such a task," they wrote.
The EPA's Atlas of America's Polluted Waters lists 20,000 bodies of water that did not meet water quality standards based on the most recent round of state surveys, completed in 1998. "The overwhelming majority of Americans over 218 million live within ten miles of a polluted waterbody," the atlas's compilers wrote.