A Revolt Against EPA Water Quality Rules
States, Courts And Congress Claim The EPA Lacks The Detailed Water Quality Data To Set Water Quality Regulations
July 10, 2001
by Dennis T. Avery
CHURCHVILLE, Va.--Last year the Environmental Protection Agency issued one of the most hotly debated water quality regulations in U.S. history, setting Total Maximum Daily Loads (TMDLs) of pollutants for streams. Some 21,000 streams are on the "impaired" lists of the various states.
The agency's TMDL approach could potentially shut down many industries and farms while forcing widespread changes in people's lifestyles. For example, an early TMDL for Sussex Count in Delaware would ultimately ban all effluents from industries, sewage plants and septic tanks, displace farms and force a sharp reduction in driving (to reduce the amount of nitrous oxide reaching streams from auto exhaust.)
In October, the furor grew so heated that Congress suspended the TMDL rule and asked the National Research Council to evaluate it. In the meantime, state governments, courts and scientific bodies have been in increasingly open revolt, claiming the EPA lacks the detailed water quality data to set the limits.
Florida adopted a rule setting scientific requirements for determining whether or not a water body is impaired by pollution. The effect will be to remove many Florida streams from the "impaired" list, at least until the current water quality in the streams has been adequately monitored to established where problems exist.
Montana and Wyoming are setting new criteria for impaired listings that will have the effect of taking streams off the impaired list until and unless monitoring data verify the impairment. Many other states are expected to follow suit.
The EPA itself has not required strict adherence to numerical biological standards. EPA's critics say the agency has not only failed to require the collection of such data, but also avoided doing so to expand the agency's regulatory latitude.
Reports from the Government Accounting Office indicate that only one has enough water monitoring date to scientifically assess the quality of its waters. (The state isn't identified.)
A West Virginia judge agrees with the EPA's critics. Kanawha Circuit Judge Paul Zakaib ordered the state of West Virginia to take 98 streams off its "impaired" list and not to re-list them until state officials have enough objective data to justify the listings.
Zakaib ruled that West Virginia acted on a draft EPA rule that was based on erroneous modeling. He concluded there is evidence that the Upper Blackwater River is not in violation of the water quality standard for dissolved oxygen, and told the state to verify that all of the water bodies listed as impaired are listed on the basis of on scientifically-sound information.
The judge specifically barred the state's Office of Water Resources from relying on narrative information in listing waters as biologically impaired.
The West Virginia judge set a precedent by concluding the state's department of environmental protection can have the EPA develop TMDLs, but is not obligated to accept the EPA's work.
This article appearedin the Bridge News on June 29, 2001.
Dennis T. Avery is based in Churchville, VA, and is director of the Hudson Institute's Center for Global Food Issues.