Mr. Chairman and Members of the Committee:
My name is David Mabe and I am the Administrator of Water Quality Programs at the Idaho Department of Environmental Quality in Boise, Idaho. I bring greetings to you, Mr. Chairman, from Governor Kempthorne and Director, Steve Allred.
I am testifying to share with you the perspectives of Idaho regarding the challenges that we face implementing the Clean Water Act and the need for regulatory or statutory changes to the program. Status of Our Program
As background for what I am about to present, I would like to give a very brief overview of the status of Idaho’s water quality program. We have completed four hundred eighty four TMDLs (Total Maximum Daily Loads) primarily involving sediment, nutrients and temperature; but we have also written TMDLs for metals, oil and grease, and other pollutants. Next month we will submit to the Environmental Protection Agency (“EPA”) a revised 303(d) list done in the integrated report form. It is set up in accordance with the EPA’s new guidance regarding a five-part list. The call for data, public comment and review was accomplished electronically. Our 305(b) report was submitted in electronic format.
Our monitoring program is designed to cover the state in a five-year period using a probabilistic approach. This involves development of a random list of sites, and then refines the areas based on each year’s monitoring results until we are focused in the areas having the highest chance of impairment in the fifth year to do more detailed monitoring. Other types of monitoring are done to assess progress in impaired waters, effectiveness of Best Management Practices, or to determine progress of TMDLs in improving water quality.
We are making the Clean Water Act TMDL process work in Idaho, but I believe that there are some fairly simple changes to be made that will lower costs of compliance for all parties involved, make more sense on the ground, and provide better environmental protection.
Suggested Changes to the Listing and De-listing Process
The water quality reporting/listing process under section 303(d) for impaired waters and under 305(b) for all waters needs to occur on a longer schedule. I suggest a five-year time frame for mandatory reporting using an integrated reporting format. It is very difficult and expensive to do meaningful reporting with public involvement on a shorter time frame. Simply put, we do not have the budget to accomplish a “statewide” monitoring program on a time frame less than five years. In addition, many of the improvements in impaired waters will not be apparent in two years. To report on a shorter timeframe is not meaningful. For example, using a two-year reporting schedule Idaho would show very little change in the first two reporting periods (the first four yeas), then the meaningful information we complete in year five would be delayed until the third reporting period (year six) before it becomes public. Valuable staff time and resources are diverted to make two reports in which we have little to say and the public begins to pay less attention to our reporting.
In recent rule making and guidance efforts, the EPA has supported a very important concept in differentiating between pollutants and pollution. This allowed creation of a section of the 303(d) list where the waters are not fully supporting the uses, but a TMDL will not fix the problem. Issues like water diversion are identified in the new format, but there is not an expectation that a TMDL will fix an underlying problem that is not water quality based. The new format does allow other agencies, the Idaho Department of Water Resources using the water diversion example, to be put on notice that there is a problem.
Suggested Changes to the TMDL Process
Another concept that is very important is to allow more flexibility in how pollutant loads are allocated. The current rules envision that loads will be allocated on a daily basis to attain numeric goals. Unfortunately, the real world does not function in this simple fashion. The vast majority of Idaho’s TMDLs are to correct problems caused by nutrients or sediments that violate narrative standards. These pollutants are frequently not loaded on a daily basis. Often the majority of the loading occurs in only a few days of runoff over the course of the entire year. A very important concept that has been discussed in recent EPA rule makings is to allow additional flexibility in pollutant loading and recognize that daily numeric loads will not work in all cases. A TMDL needs to become a Pollutant Control Plan (PCP) with the flexibility to allow for numeric allocations for those pollutants where this situation fits, or to allow for a problem assessment and identification of specific water quality goals to be achieved when a daily load does not fit. Trying to describe and quantify what needs to happen is desirable, trying to allocate loads daily between sources for some pollutants, is not possible.
Finally, the approval process we go through for our water quality reports, our standards, and our TMDLs desperately needs to be revisited. The Clean Water Act requires that each of these actions be approved by EPA within a 30 or 60 day time frame. If they do not act, they are subject to legal action. The fact that they must take affirmative action also makes each of these actions subject to consultation. This system creates a tremendous workload for all parties involved. It favors those who wish to litigate, and it creates a situation where different standards may be in place at the state and federal level simultaneously. I believe the solution is simple, change the requirement for the federal agencies to affirmatively approve each plan, standard or water quality report to a system where they have discretion to reject items they do not believe meet the goals of the Clean Water Act.
This change will place the burden of defending a work product on the agency that created it. It will limit the number of venues where a challenge can be made. Currently, a challenge that we were overly protective is made in state court against the state, and a challenge that we were under protective is made in federal court against EPA. This causes both agencies to create separate administrative records to defend the same work product and if NOAA Fisheries or Fish and Wildlife Service are involved there can be as many as four separate administrative records created. This will result in less duplication between agencies and allow each agency to focus on their priorities rather than try to be a generalist defending everything.
Support for Pollutant Trading
Idaho has two watersheds set up to pursue pollutant trading. The first is the Lower Boise River Drainage, the most populous area of our state. The second is in the Mid Snake River, which supports a very large aquaculture industry. In both areas we have designed programs in conjunction with active watershed advisory groups over a multiyear period that should result in dynamic trading for nutrients. In order to begin in the Mid Snake River we need the final NPDES permit language from EPA Region 10 for issuing NPDES permits in the state of Idaho. In the Lower Boise River, the state has just finished the final nutrient allocation for Hells Canyon TMDL, which now must be translated into waste load allocation in the lower Boise Watershed. I have trading partners waiting to begin in both cases. EPA has been an excellent partner in establishing both of these trading areas.
Thank you, Mr. Chairman and Members of the Committee, for this opportunity to comment on this important issue to Idaho and all of the stakeholders participating in Idaho’s TMDL process.