Lucy, Ethel, and the Chocolate Factory – Reflections on EPA’s Draft Vision Statement for the Clean Water Act 303(d) Program

Posted on September 11, 2012 by Allan Gates

EPA recently issued a new draft vision statement for the Clean Water Act 303(d) program, the program under which impaired water bodies are identified and TMDLs performed.i   It is fitting that this draft vision statement coincides with the 60th anniversary of the classic episode of I Love Lucy in which Lucy and Ethel struggle mightily to wrap chocolate bonbons as they proceed down a conveyor belt.ii  At first all goes well.  Then the conveyor belt speeds up.  Lucy and Ethel are soon frantically pulling candies off the conveyor belt, stuffing them into their hats, their mouths, and even down the front of their uniforms in order to keep pace with the conveyor belt.

The CWA 303(d) program started off quietly.  States occasionally sent EPA lists of impaired water bodies (the so-called 303(d) lists), and EPA dutifully filed most of them away.  Even a few TMDLs – the studies intended to describe how impaired water bodies should be restored – got performed.  Then came the TMDL litigation.  Dozens of lawsuits in the 1990’s led EPA and the states to begin serious periodic assessments of state water bodies for compliance with water quality standards; and quotas were set by judicial decree or regulatory fiat for the issuance of TMDLs for all of the water bodies found to be impaired.  Soon TMDLs were flying down the conveyor belt at a speed never previously experienced.  EPA reports that we are very close to reaching the milestone of 50,000 TMDLs.

With two decades of experience issuing thousands of TMDLs per year it is reasonable to step back and consider the water quality results obtained.  The simple truth is that restoration of impaired water bodies has not come anywhere close to keeping up with the pace at which TMDLs have been rolling off the bureaucratic assembly line.  There are a variety of reasons for this paucity of results in restoring impaired water bodies.  Frequently the principal causes of impairment identified in a TMDL are non-point source contributions that are largely beyond the direct reach of regulatory programs.  Load reductions prescribed by TMDLs usually require significant expenditures, but funding is rarely available.  Public buy-in for the changes prescribed by TMDLs is often lacking, frequently because the TMDLs are viewed as products of obscure regulatory processes that are not responsive to stakeholder sentiment.  Although the problems addressed by TMDLs are commonly quite complex, the quality of the analysis in some TMDLs is indefensibly poor.  Sometimes the water quality standards that triggered the TMDL are unrealistically ambitious to begin with.  Even when the relevant standards are appropriate, the process of identifying impaired water bodies is commonly mired in bureaucratic minutiae and delay.  States are frequently late in sending in their biennial 303(d) lists to EPA; and EPA is equally delinquent in meeting the 30-day time limit set in its own regulations for completing federal review and approval of state 303(d) submissions.

Given the litany of issues that have limited the success in achieving most TMDL load reductions, it is interesting to read EPA’s new draft vision statement:

“The Clean Water Act Section 303(d) Program provides effective integration for implementation of activities to restore and protect the nation’s aquatic resources, where the nation’s waters have been assessed, restoration and protection objectives have been systematically prioritized, and Total Maximum Daily Load and alternative approaches are being adaptively implemented to achieve water quality goals with the collaboration of States, federal agencies, tribes, stakeholders, and the public.”

In fairness to EPA’s draft, almost all vision statements are insufferably stuffy and meaningless to everyone except those few who were in the room and argued vigorously for the addition or deletion of a particular word or phrase when the inscrutable language was crafted.  Moreover, EPA’s new draft vision statement is accompanied by “goals statements” that offer somewhat more concrete prospects for program improvements at the margin, such as protection of unimpaired waters, increased focus on prioritization, and more flexible approaches to TMDL implementation.  If we want to achieve major improvements in water quality, however, we need visionary leaders not a new vision statement.  We need to spend a lot of money, and we need to spend it in a smart way.  We need new programs that fix the regulatory limitations of the current laws, not repackaged versions of the status quo.  And we need a broad public commitment to achieve change.  In the early 1970s political leaders managed to do these things on a bipartisan basis for the sake of improving the nation’s water quality.  Unfortunately, the current state of partisan gridlock offers little hope for major change in the foreseeable future.

Maybe a new vision statement is the best we can hope for given the strong anti-regulatory sentiment in the current public discourse.  Against this background, one cannot help but reflect on the end of the iconic scene in the chocolate factory.  The supervisor comes into the room, pleased that Lucy and Ethel have not allowed a single bonbon to make it past their work station unwrapped.  She announces “Why you girls are doing splendidly,” and then yells to the conveyor belt operator, “Speed it up a little!”

i A Long-Term Vision for Assessment, Restoration, and Protection under the Clean Water Act Section 303(d) Program, FINAL DRAFT FOR STATE/EPA REVIEW (1 August 2012).  An earlier version of the same document, a Stakeholder Review Draft dated June 2012, is accessible here.
ii I Love Lucy, Season 2, Episode 4, broadcast on September 15, 1952, accessible here. Copies of the chocolate factory scene are accessible on YouTube.



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