MICHAEL R. LOZEAU, ESQ.
Before The Senate Environment And Public Works
Subcommittee On Fisheries, Wildlife, And Water (September 16, 2003)
Good morning Chairman Crapo, Ranking Member Graham and members of the subcommittee. My name is Michael Lozeau. I am an attorney with Earthjustice, a nonprofit environmental law firm with offices located throughout the country. I am employed at the Earthjustice Environmental Law Clinic at Stanford, a joint project between Earthjustice and Stanford Law School that provides students with a real world experience in environmental litigation and advocacy before administrative agencies on behalf of non-profit environmental advocacy organizations. I also am a Lecturer at Stanford Law School. It is an honor to have the opportunity to share with you today some of my and Earthjustice’s concerns regarding several recent actions by the Environmental Protection Agency that have or will undermine the implementation of the Clean Water Act and allow substantially more pollution to enter our Nation’s waters and prevent the clean-up of the vast number of waters, estimated at about 45% of all of the country’s rivers, lakes, streams, and coastal waters, that are too polluted for fishing, swimming and the myriad other uses made of those waters by the American public.
The Clean Water Act was enacted in 1972 because the water quality laws that came before it did not work. Those laws were limited in scope, often based on voluntary programs, and sought to enforce the few available ambient water quality standards directly without pollution control permits or clear requirements applicable to individual sources of pollution. Those laws did not work. As recognized by many members of Congress thirty years ago, our Nation’s waters were treated as little more than open sewers for industrial and municipal wastes.
In 1972, the Congress solved this problem by enacting the Clean Water Act – creating a comprehensive legislative program that, as written, addresses almost every water pollution problem facing the country. In particular, the Act’s National Pollutant Discharge Elimination System (“NPDES”) permitting program, where applied, has been heralded as a great success in reducing pollution from sewage plants and many industrial dischargers. In the last decade, this Clean Water Act program has begun to have similar positive impacts on reducing storm water pollution from municipal storm systems, many industrial storm water pollution sources and construction sites.
Juxtaposed with the success of the Act’s permitting program is the notable absence of progress for pollution sources that have not been brought into the NPDES program. Many of these include point source discharges that EPA has simply failed to address or affirmatively attempted to exempt from the NPDES program. Examples include point source discharges associated with the logging industry. Likewise, discharges exempted from the NPDES program created by Congress also have grown worse over the years, despite Congress’ provision of funds and voluntary programs. The
widespread toxicity of the rivers flowing into San Francisco Bay in California’s Central Valley by pesticides, nutrients and other farming-related pollution is a depressing testament to the ineffectiveness of Clean Water Act programs, outside of the standardsetting and NPDES program, to clean up pollution.
One very important reason no discernable progress has been made to reduce pollution outside of the NPDES program is EPA’s historic failure to implement a common sense and core requirement established by Congress in 1972 – the Total Maximum Daily Load (“TMDL”) program. Over the last five years, both EPA and the States have gone through, and are continuing to go through, a steep learning curve, starting a program essentially from scratch after 25 years of neglect. During those 25 years, rather than heading off well-documented water quality problems, numerous pollution problems in our rivers and lakes that were left unregulated by the permitting program have in many cases steadily increased or become more intractable. The current efforts need to be given time to determine their effectiveness at cleaning up pollution. Implementation of the current TMDL rules should be given a chance to work before they’re abruptly changed.
Instead of aggressively implementing the TMDL program, closing existing loopholes, and faithfully implementing and enforcing the statute, this administration has instead taken a series of action to weaken the tools available to protect our Nation’s waters. While I will not cover most of these today, the administration’s actions in many ways are attacking Clean Water Act safeguards that most people would assume are firmly protected by law. For example, the administration repealed a 25-year old regulation to authorize waste dumps in waters of the United States; eliminated Clean Water Act protections for as many as 20 million acres of wetlands; allowed factory farms to write their own pollution control standards; and withdrew a regulatory proposal to control sewer overflows and notify the public of overflows that could make them sick.
Pending policy decisions are potentially even more damaging, including the decision on whether to eliminate federal jurisdiction over more than 60% of the stream miles and millions more acres of wetlands and ponds that are currently protected by the Clean Water Act. These rollbacks often involve this administration doling out favors to various industries to exempt them from other Clean Water Act requirements instead of protecting the public interest. This includes the oil industry, which has been given exceptions from storm water regulations that apply to almost every other industrial activity in the country and with which EPA is now engaged in private back room discussions regarding the Act’s application to preventing oil spills into tributaries and other waters.
Earthjustice encourages the Committee to dissuade EPA from reversing thirty years of efforts undertaken by this country to implement the Clean Water Act and restore and preserve the integrity of the Nation’s waters. The American public feels very strongly about the health of their rivers, streams, lakes and shorelines. Neither a weak TMDL program nor questionable legal positions that simply invite litigation will clean up or protect the Nation’s waters; nor will these policies provide any certainty to businesses
that must comply with clean water laws. If the agency’s administrators continue down these and other paths aimed at weakening the Clean Water Act and its implementation, they ultimately will not be able to convince the American public that EPA is serving the public’s rather than corporate interests.
WERE EPA TO PROMULGATE ITS DRAFT TMDL RULE THE RESULTS
WOULD BE DEVASTATING TO CLEAN-UP EFFORTS AROUND THE
COUNTRY AND UNDERMINE CONGRESS’
CLEAN WATER ACT MANDATES
Of particular concern is the Bush administration’s draft plan to drastically amend the regulations that currently guide the development of water quality protection plans known as Total Maximum Daily Loads – so-called TMDLs. For the last 18 months, the EPA has been working on a proposal to rewrite the rules that implement the TMDL program – rules that were put in place by the Reagan and previous Bush administrations. A draft of their rewrite of the rules was made available to the public earlier this year. The draft is currently being considered by the Office of Management and Budget under “informal” review.
This proposal, if promulgated by the administration, would significantly weaken – if not completely derail – one of the Clean Water Act’s most important programs.
When enacted in 1972, the Clean Water Act required municipal and industrial dischargers to comply with two levels of pollution control treatment technology back in the late 1970’s and 1980’s. Industry was required to comply with “best practicable treatment technology” (BPT) by July 1, 1977. Cities were required to apply secondary treatment to their sewage by that same date. Congress recognized from the start that in many cases, those initial technology requirements were not going to be sufficient to implement water quality standards in many waterbodies throughout the country. Water quality standards are set by the States and specify how clean a waterbody needs to be in order to be usable, for example, for swimming, aquatic habitat, or as a drinking water source. So Congress created the TMDL requirement to supplement the BPT and secondary requirements. In short, this section of the law – Section 303(d) – requires States to identify all waters where BPT and/or secondary treatment – the lowest pollution control technology requirements – are not by themselves sufficient to implement water quality standards. For each of those identified waters, the States, and if they fail to do so, EPA, must prepare a TMDL.
A TMDL is just what it says, a total, maximum, daily load of a given pollutant that assures implementation of all water quality standards applicable to that pollutant. The current regulations define a TMDL as “the sum of the individual WLAs [waste load allocations] for point sources and LAs [load allocations] for nonpoint sources and natural background.” 40 C.F.R. § 130.2(i). Together, the waste load and load allocations add up to a water body’s “loading capacity” which is defined as “[t]he greatest amount of loading that a water can receive without violating water quality standards.” 40 C.F.R. § 130.2(e). That safe level of pollutant loading, assuming there is any safe level, is then
allocated to each of the sources discharging that pollutant and, using the NPDES permitting program and other pollution control tools established by the Act or State laws, those allocations are implemented in order to assure attainment of the TMDL.
In 1972, Congress envisioned TMDLs as an integral component of the Act’s comprehensive regulatory scheme, applied early on in the Act’s lifespan to any waters that were not fully protected or would not be fully protected by the application of BPT and/or secondary treatment. Wherever BPT and/or secondary treatment, by themselves, could not assure the implementation of all water quality standards, a waterbody had to be listed and a TMDL prepared and implemented.
That is still the law today. Historically, however, instead of implementing Congress’ clear and logical vision for ensuring all waters were safe for fishing, swimming and other uses, EPA has served as a barrier to implementing the TMDL program. EPA wrote and finalized regulations for the program in 1985 and amended them in 1992, but for over two decades EPA and the States literally did nothing to make the program work as a tool to reduce water pollution, instead, letting it languish on the books. During that time, waters that would have been protected or cleaned up at much less expense by an early application of the TMDL program were instead allowed to get dirtier and dirtier.
The 1992 EPA regulations were an attempt to get the TMDL program on track. Although flawed, and only after encouragement by numerous citizen enforcement efforts and provision of additional funding from Congress and individual States, EPA has finally begun to make progress implementing those 1992 regulations. The number of TMDLs approved or established annually has steadily increased in the last four years, jumping from 500 in 1999 to nearly 3,000 in 2002. In 2001 and 2002 combined, more than 5,000 TMDLs were approved or established under the current TMDL rule. Granted, the quality of those TMDLs may vary substantially at this point. But they’re in place and, with improvements that can be made under existing legal authority, these TMDLs should over time provide an effective framework to address both polluted waters and waters threatened by pollution, achieving the rational and comprehensive pollution control program that Congress envisioned to clean up dirty waters and protect our rivers, lakes, and shorelines for generations to come. Progress is certainly being made. However, much work remains to be done.
The adverse effects of EPA’s years of neglect of this critical component of the Clean Water Act are still being felt throughout the country. Lists of impaired waters continue to expand – irrefutable testimony of the need for EPA and the States to aggressively implement the TMDL program. For example, California started with a list of 18 impaired waters in 1978-79. That list has steadily grown to 28 waters by 1986, 77 waters in 1988, 245 impaired waters by 1991, 276 in 1992, 388 waters by 1996, 509 waters by 1998 and most recently a new high of 684 impaired waters. In short, pollution problems are growing in the absence of TMDLs. This fact is confirmed by the most recent National Water Quality Inventory, which shows – for the first time in many years
– that overall water quality of the Nation’s rivers, lakes, estuaries and coastal waters is getting worse.
Instead of responding to these water pollution problems by doubling its efforts to implement the TMDL program, EPA’s current managers are considering and perhaps poised to adopt a proposal that would reverse the progress made to date. The EPA’s proposal would abruptly limit the scope of the TMDL program and, for those lucky waters where the TMDL program might still apply at all, turn Congress’ pollution control mechanism into a paper exercise whose only relevance to a waterbody’s water pollution control efforts is to legitimate less stringent controls on existing discharges without any corresponding pollution reductions by other sources. That vision of the TMDL program’s purpose directly contravenes Congress’ vision.
I would like to highlight six of the key problems I find in EPA’s draft proposal to rewrite the existing TMDL regulations.
EPA’s Draft Rule Illegally Truncates The Universe Of Waters Congress
To Protect Or Clean-Up Through The Implementation Of TMDLs
First is the use of listing criteria that, if implemented, would illegally and illogically restrict the use of TMDLs to a relatively small number of waterbodies, ignoring thousands of waters that Congress envisioned would be protected and/or cleaned up through a TMDL. Listing decisions are critically important because whether a water is listed and scheduled to get a TMDL is the gateway into the entire clean-up program. If a water is not listed (or is on some list other than the list of waters requiring a TMDL) then that water will not benefit from the program. Therefore, it is important for the Committee to understand the ways in which EPA is trying to close the gateway into the TMDL program to thousands of waters across the country that Congress required be included in the TMDL program.
EPA’s draft rule completely ignores the express terms of Section 303(d)(1), the requirements put in place by Congress. Under the statute, the only question relevant to listing a waterbody under section 303(d)(1) is “were BPT and secondary treatment sufficient to implement all applicable water quality standards?” If a waterbody is impaired or has ever been impaired since the implementation of BPT and secondary treatment requirements, the answer to that question is obviously “no.” If a waterbody has no point source discharges to which either BPT or secondary applied, the answer also must be “no.” It is as simple as that.
In contrast, EPA’s draft rule proposes a complicated set of five categories of waters, only one of which is apparently identified as a list required by Section 303(d). None of the five categories tracks the listing criteria established by Congress in that section. Indeed, the criteria identified by EPA to establish the categories, in most instances, include waters that Congress’ Section 303(d)(1) criteria mandate including on the Section 303(d) list and the preparation of a TMDL.
Going through each of the categories described in the draft, the draft rule places in its Category 1 waters those waters that currently are attaining all designated uses. Although some of these waters may not have to be listed for a TMDL under the statute, such currently clean waters do need to be listed and a TMDL prepared if attainment with the standards is not the result of BPT or secondary treatment. The draft rule’s Category 2 waters include those waters where only some designated uses are attained but there is insufficient data to determine whether other uses are being achieved. According to the statute, all of these waters must be listed because, especially at this late date almost 30 years after implementation of BPT and secondary treatment requirements, it is certain that BPT and secondary treatment were not stringent enough to implement these waters’ standards. EPA’s Category 3 waters include those waters where there is insufficient information to determine whether or not compliance with standards is achieved. These also must be listed, again, to the extent that BPT and/or secondary treatment were not sufficient to implement standards. Category 4A is a list of those waters, impaired or otherwise, for which TMDLs already have been established. Congress did not intend for waters to be removed from the 303(d) list just because a TMDL was prepared. Obviously, they may no longer need a TMDL but they must remain on the list in order to implement Section 303(d)(4) and to assure the TMDL remains intact and up to date into the future. Indeed, Section 303(d)(4) invokes the antidegradation policy “[f]or waters identified under paragraph [303(d)(1)(A)] where the quality of such waters equals or exceeds levels necessary to protect the designated use for such waters or required by applicable water quality standards,” underscoring the fact that the criteria for listing waters under section 303(d)(1)(A) encompasses waters that are not yet impaired and, hopefully, will never be impaired.
Perhaps of greatest concern is Category 4B waters where it is known that standards are not being attained but other “enforceable” pollutant control mechanisms are alleged to be in place and purportedly designed to attain water quality standards within a reasonable time frame. These waters by definition must be listed under 303(d)(1)(A) and TMDLs completed for them. EPA has no authority to substitute other pollutant control mechanisms as listing and TMDL criteria to replace those selected by Congress, i.e. BPT and secondary treatment. The agency cannot keep a water off the 303(d) list because standards were achieved by implementation of best available technology. Nor can EPA refuse to list waters where a non-TMDL based water quality-based effluent limit achieved standards. And the agency certainly cannot eliminate waters from States’ 303(d) lists based on some future, unnamed trading programs or other untested programs.
The agency’s Category 4C waters include impaired waters where the impairment is not caused by a pollutant. Although it’s difficult to imagine what impaired waters would fit this description, this category is apparently an effort by the agency to eliminate waters from the list that are impaired by low flows or otherwise sensitized to pollution discharges by disturbances other than pollution discharges. I cannot imagine a source of impairment that does not involve either point or nonpoint sources of pollution. Even streamside tree canopy removal that reduces shade along a stream resulting in temperature pollution amounts to nonpoint source pollution and can be readily addressed through a TMDL.
The last and final category – Category 5 – is the only section 303(d) list proposed by EPA’s draft rule. The list is limited to waters that are currently impaired and that do not fit into any of the other categories. Nothing in the statute suggests that such a truncated list satisfies the conditions established by Congress.
Notably, EPA rejects any category, whether under section 303(d) or not, for threatened waters. Again, by definition, waters whose standards are threatened with exceedances are directly addressed by Congress’ listing criteria for Section 303(d). If a waterbody’s standards are threatened now in 2003, then it is clear that the pollution control technology applied back in the late 1970’s does not have much chance of assuring the implementation of the threatened standards today. Likewise, ignoring threatened waters will in almost every case violate the Clean Water Act’s antidegradation requirements. EPA, apparently aware of this contradiction, simply proposes to eliminate consideration of the federal and State antidegradation standards when implementing section 303(d), a cynical and underhanded proposal addressed further below.
To summarize the listing concerns, it is clear that the draft proposal bears little if any relationship to Congress’ Section 303(d) criteria. EPA’s truncated list will prevent thousands of critical but currently clean waterbodies from being protected by the TMDL program, assuring a continuous supply of new impaired waters for future agencies’ to have to contend with cleaning up. In a very real way, by truncating the list, EPA also may very well undermine the States’ ability to establish their own priorities for establishing TMDLs by not allowing them, for example, to put a critical but threatened water supply on the list and perhaps ahead of an impaired but less important water.
EPA’s Draft Rule Will Result In
Ineffective TMDLs That Will Undermine Any
Potential For Effective Pollution Trading Schemes
The other five concerns address aspects of EPA’s proposals to rewrite the rules that, if implemented, would render TMDLs ineffective at protecting water quality.
The first of these is the untenable assertion by EPA that the agency is not required to review and approve the States’ allocation of a TMDL for a given pollutant to the various sources discharging that pollutant as part of EPA’s obligation to approve or disapprove TMDLs. That approach entirely undermines the agency’s duty, assigned to it by Congress, to review States’ TMDLs and to make sure that they are established at a level necessary to implement the applicable water quality standards. EPA must review the “load established” by each State. 33 U.S.C. § 1313(d)(2). That established load to be reviewed by EPA “shall be established at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account lack of knowledge concerning the relationship between effluent limitations and water quality.” 33 U.S.C. § 1313(d)(1)(C). Hence, EPA is obliged to review any TMDL based on that standard and based on resulting effluent limitations. As a rational and scientific matter, EPA cannot make a finding that a TMDL will implement standards throughout a watershed without reviewing and approving the allocations. In addition,
allocations are expressly referenced in the Act. See section 303(d)(4), 33 U.S.C. § 1313(d)(4). EPA is wrong that allocations are not required by section 303(d).
Second is a related problem, which is the general theme throughout EPA’s proposal – moving away from allocating pollution reductions needed to implement a TMDL to specific, individual sources and, instead, allocating larger portions of a TMDL to many sources, albeit perhaps similar in nature. Hence, the proposal includes the concept of establishing gross allocations of a TMDL to entire categories of dischargers throughout a watershed, including, for example, all logging, all farming, all grazing, all non-NPDES storm water, all marinas, all dredging and all dams. Similarly, the proposal floats the idea of a gross allocation for all future growth within a watershed, regardless of location or localized pollution impacts or similarity of pollution sources. Simply allocating a single load to, for example, all logging dischargers in a watershed will not implement standards throughout that watershed. Nor would EPA be able to find that a TMDL allocated in such a manner will implement such standards throughout the watershed. The agency will have no ability to determine where the categorical logging load will be discharged and hence whether the upstream waters will be protected. I also would think that the agency would be concerned about not requiring a TMDL to be allocated to specific individual sources if it hopes to ever create functional pollution trading opportunities from this program. Lump sum allocations as described in the draft will doom any such trading schemes from the start because nobody will know how much loading (i.e. how many pollution shares) they control and must reduce.
A third problem stemming from EPA’s incorrect assertion that the agency does not have to review a State’s allocations in approving a TMDL is EPA’s proposal that States be allowed to reallocate its TMDL after EPA approves it. The notion that EPA believes it can review a TMDL and determine that it will assure implementation of water quality standards without reviewing the TMDL’s allocations in the first place and allowing a State agency to alter those allocations however it wants is irrational and a complete abandonment of science as well as the law.
Fourth, the draft proposal allows existing NPDES dischargers to increase their loadings of pollutants that are still impairing a waterbody immediately after a TMDL is drafted, even when there have been no reductions whatsoever from other sources and no guarantee that such reductions will ever occur. That, of course, is a recipe for further impairment, not clean-up. Such a TMDL scheme would not implement applicable water quality standards. Instead, for a possibly indefinite amount of time, it would simply provide an unwarranted excuse for existing point source discharges to expand their contribution to a waterbody’s impairment or degradation while absolutely no pollution reductions are realized from nonpoint or other sources. In order for Congress’ goals for the Act and the TMDL program to be realized, it is clear that existing point source pollution must be further controlled as long as no progress is made in reducing pollution from nonpoint sources into a waterbody that is impaired or being degraded.
The fifth and last concern I will discuss today is EPA’s suggestion that the agency can simply ignore the federal and state antidegradation policies from consideration when
establishing or reviewing TMDLs. EPA’s contemplated slashing of that core principle, a principle embodied by every word of the Clean Water Act, strikes at the heart of Congress’ intent in creating the TMDL program and best exemplifies EPA’s underhanded effort to distort the purpose of the TMDL program from a regulatory mandate to protect and restore water quality to a regulatory shield providing dischargers cover while they continue to pollute and degrade the Nation’s waters. Every State in the country is required to have an antidegradation policy established as one of the three mandated components of its water quality standards. The entire scheme of the Clean Water Act hinges on the concept that waters become less polluted until all uses are fully protected and, indeed, all pollution is eliminated. By thinking about removing antidegradation requirements from the ambit of the TMDL program, EPA sentences the nation’s waters to further spoliation and sentences the States – and the American public – to ever expanding lists of impaired waters.
This is not an exhaustive list of concerns. Other significant problems exist in the EPA draft, including the agency’s refusal to acknowledge the “daily” loads required by Congress; the excessive length of schedules proposed for establishing the truncated list of TMDLs; the proposal to allow less frequent 305(b) reports despite the Act’s mandate that such reports be submitted by the State every two years and, hence, the fictional assertion that allowing integrated 303(d) and 305(b) reports every four years will amount to significant cost savings by the States; the questionable reading of the thermal list required by section 303(d)(1)(B); the incorrect notion that EPA or the States have authority to delist waters under section 303(d), and; last but perhaps not least, the bizarre notion that “natural background’ could include pesticides in sediments are all significant concerns. The above concerns will be further addressed by the environmental community should EPA’s proposal ever see the light of day.
Taken together, the proposals in EPA’s rewrite of the TMDL program will virtually guarantee that this important Clean Water Act program will be rendered entirely ineffective at protecting and cleaning up the Nation’s waters. This rewrite of the rules will condemn the over 215 million Americans who currently live within 10 miles of a polluted waterbody to a least another generation of unsafe waters and will add many more Americans around the country to that group as their community’s waters get more polluted from point and nonpoint sources. Therefore, we urge the Committee to encourage EPA to withdraw the draft proposal before expending its limited resources on a blatantly illegal proposal.
EPA’S ARBITRARY STORM WATER EXEMPTION
FOR THE OIL AND GAS INDUSTRY
While working on rulemaking that would dismantle the TMDL program, EPA also has been busy doling out favors in the form of special exemptions to Clean Water Act requirements for certain industries, including the oil and gas industry. In particular, I would like to state Earthjustice’s objection to the agency’s rulemaking this past March delaying for at least two years the Phase II storm water permitting rules that otherwise would have gone into effect on March 10, 2003 for construction activities by the oil and
gas industry at their exploration and production sites. EPA’s special exemption for the
oil and gas industry was based on undocumented and last minute claims by the industry’s lobbyists that somehow that industries’ construction activities were qualitatively different from every other construction activity in the country. Whether a 2.4 acre or 105,000 square foot site is cleared and graded by a housing developer, an office building developer, or an oil and gas drilling operation does not make the dirt and sediments any less erosive or any less capable of polluting. Who builds a road also will not alter its potential for pollution. Indeed, the pollution threats from drilling sites go well beyond those posed by sediment discharges and the many dischargers who are now subject to the Phase II regulations. Storm water from drilling activities contains not only sediments and silts, but also oil and grease, drilling compounds and other construction related materials. The cumulative threat of 30,000 industrial construction sites cannot be ignored if Congress’ mandate that all storm water discharges be controlled through the NPDES program and the resulting environmental benefits are to ever be attained.
Industry argues that oil and gas exploration and production, including pre-drilling construction activities, are exempt from NPDES permitting pursuant to section 402(l)(2) of the Act, 33 U.S.C. § 1342(l)(2). The express language of that section does not support industry’s argument. By its terms, Section 402(l)(2) does not include any storm water runoff that has either been “contaminated by contact with, or do[es] not come into contact with, any overburden, raw material, intermediate products, finished product, byproduct, or waste products, located on the site of such operations.” The disturbed soils around drilling wells are both overburden and waste products. See Sen. Rep. No. 99-50 at 44 (May 14, 1985) (“[e]xamples of contamination include suspended or dissolved solids from . . . disturbed soils”). Hence, any storm water contacting the disturbed areas of a drilling site, if discharged, is not exempt from the Act’s permitting requirements.
The legislative history makes even clearer the limited scope of the exemption set forth at Section 402(l)(2). The final conference report for the Water Quality Act of 1987 makes it clear that Section 402(l)(2) “provides that permits are not required where stormwater runoff is diverted around mining operations or oil and gas operations and does not come in contact with overburden, raw material, product, or process wastes. In addition, where stormwater runoff is not contaminated by contact with such materials. . . .” H.Rep. Conf. Rep. No. 99-1004 at p. 152 (Oct. 15, 1986). See also H.R. Rep. No. 99189 at p. 37 (July 2, 1985) (“The subsection was developed by the Committee in recognition of the fact that there are numerous situations in the mining and oil and gas industries where stormwater is channeled around plants and operations through a series of ditches and similar devices in order to prevent pollution contamination of the stormwater”).
Nothing in EPA’s administrative record, including the numerous industry comments, suggests that storm water is routed around such drilling sites. Nor do any of those comments suggest that storm water falling on or flowing through these sites are then free of sediment and other pollutants. Indeed, the opposite appears to be true. See Letter from Warren County Conservation District (Jan. 23, 2003) (EPA Docket Item
OW-2002-0068-0023); Letter from California State Water Resources Control Board (Jan. 31, 2003) (EPA Docket Item OW-2002-0068-0082).
In California, I had the opportunity to work on the implementation of the Phase I industrial and construction storm water permit and have been involved in the past in numerous actions enforcing those general permits. Compliance with the storm water requirements is not complicated, relying in large part on the implementation of best management practices, many of which have been available for years. The oil and gas industry need merely pick the appropriate measures off of the shelf, articulate those in a storm water management plan that, in many cases, would be easily transferable to nearby drilling sites, and monitor to assure compliance. This is no more than what is expected of much smaller businesses who have been implementing the storm water requirement for the past decade, including thousands of mom-and-pop businesses with much fewer resources than the oil and gas industry.
Ironically, EPA’s abdication of its duties may result in less certainty for the oil and gas industry. EPA’s duty to establish regulations is separate and distinct from the Act’s mandate that all storm water point sources obtain NPDES permits. Right now, it is certain that thousands of oil and gas drilling sites are in violation of the Act by discharging pollutants without a permit. Rather than assure an orderly process for issuing permits to that industrial sector, as intended by Congress, EPA has simply ceded it to private citizens and the courts to enforce the law. I would think the oil and gas industry would prefer the certainty of EPA regulations to the uncertainty of an illegal interpretation of the Clean Water Act that exposes them to lawsuits.
NEGOTIATION REGARDING LIMITING THE WATERS
OF THE UNITED STATES PROTECTED BY THE CLEAN WATER ACT
I also want to highlight a strong concern regarding legal maneuverings that appear to be occurring in the context of litigation filed by the American Petroleum Institute and other oil industry representatives challenging rules promulgated by EPA in July 2002 addressing oil spill prevention and response requirements for businesses that store large quantities of oil (greater than 1320 gallons). These rules are generally referred to as the Spill Prevention Control and Countermeasures (“SPCC”) rules. As part of that rulemaking, EPA updated and clarified the definition of “waters of the United States” included in the SPCC rules to be consistent with the regulatory definitions of “waters of the United States” included elsewhere in the Clean Water Act regulations. The definition EPA adopted for the SPCC rule is essentially the same definition already promulgated throughout the Clean Water Act regulations, including at 40 C.F.R. §§ 122.2, 230.3(s) and 33 C.F.R. § 328.3(a).
The main thrust of the oil industry’s challenge is an allegation that EPA’s definition of waters of the United States goes beyond those waters protected by the Clean Water Act. Industry argues that the requirements of the Clean Water Act are limited to discharges of pollutants to traditionally navigable waters and wetlands adjacent to such traditionally navigable waters. In essence, the oil industry would like to exempt tens of
thousands of facilities from the SPCC rules if, for example, any potential oil spill would flow to a small creek or ephemeral stream, despite those waters’ clear connections to downstream waters and the potentially devastating effects of an oil spill, especially one beginning in the headwaters of a watershed and adversely affecting all downstream waters.
Industry’s primary basis for its assertion is an exaggerated reading of the Supreme Court’s 2001 decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, the so-called “SWANCC” decision. Industry’s expansive view of SWANCC is inconsistent with that decision’s express terms. SWANCC simply ruled that the Corps could not use the "Migratory Bird Rule" – a portion of a 1986 Federal Register preamble – as a sole basis to regulate waters used by migratory birds. The decision does not suggest that intrastate waters that are used in or affected by interstate commerce, for example, by a group of anglers or a power plant feeding electricity to a multi-State grid that uses a lake’s waters for cooling, would not be subject to the Clean Water Act.
Industry’s wish that SWANCC was a more expansive ruling also is inconsistent with over two dozen federal court briefs filed on behalf of EPA and the Army Corps by the Department of Justice and emphasizing the limited ruling in SWANCC and the necessity of EPA’s existing definition of water of the United States in order to implement the Clean Water Act consistent with Congress’ mandate. Lastly, virtually every court that has considered the scope of the holding in SWANCC has ruled that the holding is limited to the facts and express ruling in that case and has no effect on EPA’s or the Corps’ existing regulatory definitions.
According to the industry plaintiffs, settlement discussions are ongoing on the appeals of the SPCC rule. NRDC and the Sierra Club, represented by Earthjustice, have sought to intervene in the case. While awaiting the court’s ruling on that request, the groups have asked to participate in the settlement discussions but this request has been denied. We are very concerned that the discussions going on now behind closed doors will lead to some tacit acknowledgement by EPA that industry’s strained reading of SWANCC has some merit and that EPA may withdraw regulations embodying a definition that the agency has stood by for almost three decades.
I hope that EPA will vigorously defend the broad jurisdiction of the Clean Water Act established by Congress, and not cave to the wishes of the oil industry to create another special standard for that industry. EPA should not resort to a cowardly retreat from decades of clear, regulatory direction assuring broad coverage of the Act and accompanying certainty to businesses by hiding its complicity with the oil industry to undermine one of our country’s most important environmental laws behind closed-door settlement negotiations. If the agency retreats from its long-established definition of waters of the United States this would, at best, set the agency and the regulated community on a path of uncertainty that would be easily avoided if EPA were to simply defend its long-standing definition of waters of the United States.
It is important to keep in mind that EPA’s above-described activities are a few of many efforts by the agency that do not bode well for the Clean Water Act and the future health of America’s rivers, lakes, streams, wetlands, and coastal waters. The above proposals are the most recent examples of an expanding pattern by the agency to cut back the protections of the Clean Water Act. The thousands of polluted lakes, rivers, and ocean waters around the country will not be cleaned by EPA walking away from the problems, and the States taking the agency’s cue and following close behind. The gains that have been made in protecting many of the country’s waters will be lost if EPA continues on its current path. We are the children left with cleaning up the rivers polluted by our parents’ and grandparents’ generations. If we are to avoid leaving our sons and daughters with a lot more polluted rivers and lakes, EPA must abandon its efforts to dismantle the current TMDL program, take more aggressive steps to implement the current regulations, and assure that every industry, including the oil and gas industry, abide by Congress’ clear directives to protect and clean up our Nation’s waters.
I hope my comments assist the Committee in its oversight of EPA’s current implementation of the Clean Water Act. Thank you again for this opportunity to appear before the Committee.