Agency's `fish-eye' view

ON THE BAY

TDMLs: The EPA proposes to create enforceable overall limits on water pollutants, giving regulatory teeth to cleanup efforts.

August 20, 1999|By Tom Horton | Tom Horton,SUN STAFF

WHAT WOULD our water quality laws look like if written by the creatures that have to live in the water?

Maybe like a 27-year-old, never-enforced regulation that should have been the backbone of pollution control for the Chesapeake Bay and some 21,000 other still-polluted water bodies.

In 1972, the federal Clean Water Act required the Environmental Protection Agency and the states to enforce "TMDLs" (Total Maximum Daily Loads) for each pollutant of each river, lake, stream and bay.

It never happened. The nation never did set firm, overall limits on how much a river could take before it said "ouch," even though many reductions have been made in water pollution from this or that specific source.

This produced some ironies. On the Chesapeake Bay, where excessive nitrogen and phosphorus have for years been acknowledged as leading causes of the estuary's decline, no one can violate the limit for bay waters because there is none.

Lots of sources of nitrogen and phosphorus have been cleaned up. Lots haven't. Lack of a bottom line on pollution has been hell on oysters, grass beds and other things that grow on the bay's bottom.

Last week, the EPA officially reacted to environmental lawsuits in 35 states that have been saying what aquatic life has been telling us for years -- ENOUGH!

The agency released for public comment a TMDL proposal to set comprehensive, enforceable limits on water pollutants for the first time.

President Clinton led off his weekly radio address Saturday with the proposal, probably the first time a chief executive has mouthed the phrase "total maximum daily loads."

Most of the news of his talk focused on the parts where he bashed Republicans, which proves what's taken for news often isn't what's important (if he didn't bash the GOP, that would be news).

TMDLs, by contrast, are real news, because they go directly to what's at the heart of this nation's, and the world's, environmental crisis -- the lack of recognition of limits.

"If you're a fish, and there's too much pollution, you don't care where it's coming from, you want it stopped," says Michael Haire, a former Maryland environmental manager who works on the EPA's new TMDL regulations.

Such a "fish-eye" view, Haire explains, is "the philosophy of TMDLs." Pollution limits "evolve from the water, and you work back toward specific sources from air and land."

By contrast, the way we have gone at pollution reduction has been to require sources such as factories and sewage treatment plants to use better and better technology, while virtually ignoring so-called "nonpoint" sources such as farm manure and urban storm-water runoff, and deposits to water from polluted air, Haire and other water quality experts say.

TMDLs constitute "a huge conceptual shift that forces us to look at what it actually takes to clean up our water," says Mike Hirshfield, senior scientist for the Chesapeake Bay Foundation, one of the parties that sued the EPA for nonenforcement of the regulation.

"It is now one of our biggest priorities, the way to take water pollution control to the next level," says Bob Hoyt, assistant secretary of the Maryland Department of Environment.

TMDLs will be no instant cure, not with 21,000 different water bodies across the United States affected. The EPA will probably spend the next year weighing public comments, and there almost certainly will be legal challenges, both from those who think the proposal too strict, and those who think it's not strict enough.

The proposed time frames give states up to 15 years to begin implementing the required reductions, though nothing prevents them from moving faster.

Hirshfield and Hoyt both say that the EPA proposal has created a substantial debate among parties involved in the Chesapeake Bay restoration effort.

The subject of last week's column was how that effort is also moving rapidly toward recognition, and how there has to be an ultimate limit on how much pollution goes in the water, regardless of future growth.

It talked about the latest policy guideline, a report called "Holding the Line," which says nitrogen and phosphorus must not only continue to be reduced, but must then be capped from any further increase, "raising the long-term issue of limits to growth in all sectors."

The thinking behind the bay cleanup is "amazingly similar," Haire says, to the concept of TMDLs. But there is one big difference.

The bay commitment to reducing and capping pollutants is largely voluntary, while TMDLs have regulatory teeth. There are those who argue that pursuing the latter will take the spirit of cooperation away from the former.

"A voluntary approach is preferable," Hoyt says, "but TMDLs provide a safety net."

Speaking for all the fish I know, I'd say it's clear that any measure limiting growth as we know it, as both voluntary and regulatory approaches do, will need all conceivable help.

The voluntary approach we've pursued so far should give the bay region a big leg up in implementing TMDLs, which in turn will help make sure the spirit of voluntarism doesn't lapse.

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