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Great Lakes Article:

EPA Mulls New Water Cleanup Rule

By Michael Grunwald
Washington Post Staff Writer
Saturday, July 13, 2002; Page A01

The Bush administration is considering a plan to reduce federal oversight of a key Clean Water Act anti-pollution program and instead "trust states" to clean up more than 20,000 dirty rivers, lakes and estuaries, internal Environmental Protection Agency documents show.

The proposal would reverse a July 2000 Clinton administration rule requiring EPA approval of states' efforts to restore "impaired water bodies," a designation applying to about 300,000 miles of rivers and shorelines and 5 million acres of lakes.

The rule was supported by many environmentalists, but it has been criticized by farm groups, timber firms and municipalities that fear they could face onerous new restrictions on polluted runoff.

EPA Administrator Christine Todd Whitman has not decided whether to adopt the "watershed protection strategy." Her spokesman said that she hoped to make a decision within a few weeks, and that a July 2 EPA presentation of the strategy to Whitman -- provided to The Washington Post by a critic who believes the proposal will weaken watershed protection -- was only an option.

Still, Whitman has vowed to change the controversial rule, and her staff's presentation reflects her emphasis on flexibility and environmental results over command-and-control federal regulation and strict enforcement.

It describes the Clinton rule as "too inflexible, too much EPA control" and proposes that "EPA will not review, approve or backstop" states' plans to comply with water-quality standards. Instead, the proposal would "trust states to do planning and implementation," in order to "achieve steady reasonable progress towards achieving water quality standards."

"This makes a lot more sense," said David Salmonsen, a lobbyist for the American Farm Bureau. "You don't want to force people out of business with ineffective regulations."

John Podesta, who was chief of staff to President Bill Clinton, said "the whole point" of the rule -- adopted in response to citizens' lawsuits in 34 states -- was to beef up EPA enforcement of a program that state officials largely ignored. This program, known as Total Maximum Daily Load, or TMDL, is a priority among conservation activists.

"The Bush EPA must be suffering from collective amnesia," said Daniel Rosenberg, an attorney for the Natural Resources Defense Council. "The states had three decades to implement this program and failed. Now EPA thinks the states can suddenly do the job."

The TMDL program was never the main thrust of the Clean Water Act, which was passed in 1972 after the Cuyahoga River caught fire in Cleveland. The overall act focused heavily on forcing factories and sewage plants to upgrade their anti-pollution technology, which has led to tremendous improvements in water quality for rivers fouled by industry.

The TMDL program was seen as a kind of backup, focusing on standards for entire water bodies instead of individual polluters. It required states to address pollutants in diffuse runoff from lawns, streets and farms as well as concentrated pollution from smokestacks and drainpipes.

But those standards were rarely enforced, which led to the litigation boom. Today, 44 percent of the nation's water bodies are still "impaired" by sediments, nutrients and microorganisms that elude the rest of the Clean Water Act's pollution controls. Much of the pollutants are produced by agriculture.

To address the problem, the Clinton rule directed states to determine the maximum pollution load each water body can handle, then develop broad regulatory plans over 10 to 15 years to meet those targets, subject to EPA approval. Whitman's predecessor, Carole M. Browner, once called the rule "the single most important program we can adopt to address the remaining water pollution problems in this country."

Congress did not agree. As the Clinton administration was preparing the rule, critics attached to an unrelated spending bill a moratorium barring the EPA from spending any money on it.

Last year, a National Academy of Sciences study raised new questions about the TMDL program, concluding, "Considerable uncertainty exists about whether some of these waters violate pollution standards." Whitman then announced she would extend the moratorium until 2003 and change the rules before putting them into effect.

Now Whitman is considering the new proposal, which would emphasize states' planning for entire watersheds instead of individual water bodies, and would provide states with greater flexibility to "downgrade" water quality standards for specific rivers and lakes.

She is also deciding whether to propose changes through a new or amended rule, which would require a two-year public process, or through internal guidance, which would not.

"It's not a question of whether or not to improve the process," said Whitman's spokesman, Joe Martyak. "It's a question of how we go about it. Her principal focus is going to be results."

According to the July 2 presentation, state water quality directors have indicated "widespread state support for EPA's general direction" on the TMDL issue. But Democrats and environmentalists are eager to portray the Bush administration as hostile to nature, and they have exploited controversies at EPA ranging from arsenic standards for drinking water to regulation of carbon dioxide emissions.

Whitman has also been criticized over one rule change removing obstacles to mountaintop-removal coal mining in Appalachia, and another making it easier for coal-fired power plants to renovate without upgrading their air pollution controls.

These water quality rules could be next.

"We tried to put teeth into the program so it couldn't just drift anymore," Podesta said. "I guess now the program is going to the dentist to get its teeth removed."

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