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SCIENCE, POLICY, AND STAKEHOLDER PARTICIPATION IN WATER QUALITY REGULATION: THE EMERGENCE OF OHIO’S TMDL PROGRAM

DISSERTATION

Presented in Partial Fulfillment of the Requirements for

the Degree Doctor of Philosophy in the Graduate

School o f The Ohio State University

By

Tara A. Maddock, M.A.

The Ohio State University

2002

Dissertation Committee:

Dr. Paul Robbins, Adviser ^>proved By

Dr. Larry A. Brown

Dr. Eugene McCann Adviser Dr. Dale White Geography Department UMI Number 3039500

UMI

UMI Microform 3039500 Copyright 2002 by ProQuest Information and Learning Company. All rights reserved. This microform edition is protected against unauthorized copying under Title 17, United States Code.

ProQuest Information and Learning Company 300 North Zeeb Road P.O. Box 1346 Ann Arbor. Ml 48106-1346 ABSTRACT

Water quality regulation in the United States is shifting from national scale policies to an increased role for state and local governments. Persistent water quality problems are forcing local governments to provide solutions to conflicts between environmental protection, urban growth and economic development. At the same time, stakeholders have increasing opportunities to shape the structure of policy formation and influence scientific practices. These changes in environmental policy are resulting in significant changes in the science of water quality management, yet little research exists on these changes in local environmental policy formation and the role of science. I trace the emergence of Total Maximum Daily Load (TMDL) policy in the context of political and economic restructuring in Ohio. Why is TMDL policy emerging now, nearly thirty years after it was written into law? What role does science play in the formation of policy and regulation? How are coalitions of stakeholders changing under TMDL policy implementation?

I trace the formation o f TMDL policy through national and local contexts, debates over scientific practices, and increased stakeholder participation in influencing policy and scientific outcomes. Data collected through participant observation, qualitative in-depth interviews and quantitative surveys of stakeholders, managers and scientists are used to elucidate the interaction of state and non-state actors in policy and scientific practice formation. Employing discourse analysis and social constructions of

science, I examine the formation and fragmentation o f stakeholder coalitions over policy

and scientific practices under the TMDL approach.

The research contributes an understanding of how a changing economy and rising environmental agenda are shifting power relations among stakeholders. In turn, the research offers an accounting of how shifting coalitions of stakeholders are emerging

from the TMDL policy and scientific narratives. Outcomes of the research include; 1) the social and economic context for the emergence of TMDL policy in Ohio; 2) an explicit accounting of the role of science in policy and regulation; 3) stakeholder narratives of science and responsibility under TMDL policy, and 4) shifting stakeholder coalitions that emerged from TMDL policy that impacts the economic regime.

lU For my husband, Kevin...

His continued understanding and patience with my academic pressures, deadlines, schedules, and several job relocations far exceeded my highest expectations. My special thanks to him for his unwavering love and belief in me.

*****

For my parents...

To my father, who first inspired me to be a teacher fi-om the time when I was four years old and visited his classroom. He always encouraged me to set my goals high and to reach them by simply expecting me to, "do the best that you can."

To my mother, who gave me confidence to pursue my dream of becoming a professor and researcher. She instilled in me a desire to do interesting, relevant research, and to combine rigorous academic inquiry with a social conscience. On intellectual, professional, and political levels, she is my close personal confident and fnend.

*****

IV ACKNOWLEDGMENTS

Many thanks to my advisor, Paul Robbins, for his energetic and unending encouragement to strive for rigorous academic research and excellence in teaching. Also, thank you to my committee members, Larry Brown, Eugene McCann, and Dale White.

Thank you to all my graduate student colleagues, in particular Janek Mandel, Fernando Bosco, and Jon Moore who provided encouragement, support, humor, and a stimulating intellectual environment for education and research.

I am grateful to all of the research participants who openly gave of their time to help me understand the nuances of the TMDL program. I am indebted to the staff at Ohio EPA who welcomed me into their meetings and offices, and fostered the early development o f this research topic. VITA

October 16, 1969 ...... Bom - Tennessee, USA

1994 ...... B.A. Geography, University of Hawaii at Manoa

1996 ...... M.A. Geography, University of Georgia

1996-2001 ...... Graduate Teaching and Research Associate, The Ohio State University

Fall, 2001...... Visiting Assistant Professor, Ohio University

PUBLICATIONS

1. Robbins, P. and Maddock, T. 2000. Interrogating Land Cover Categories: Metaphor and Method In Remote Sensing. Cartography and Geographic Information Science. 27(4): 295-309.

FIELDS OF STUDY

Major Field: Geography

VI TABLE OF CONTENTS

Abstract ...... ü

Dedication ...... iv

Acknowledgments ...... v

Vita...... vi

List of Tables ...... xii

List of Figures ...... xiii

List of Maps ...... xiv

Chapters:

1. Introduction ...... 1

1.1 Introduction ...... 1 1.2 Total Maximiun Daily Load Policy ...... 3 1.2.1 Significance of TMDL Policy ...... 4 1.2.2 Overview of TMDL Policy Emergence in Ohio ...... 6 1.3 Outline of Dissertation ...... 7

2. Theoretical Approaches to Environmental Regulation, Science and Stakeholders.... 13

2.1 Introduction ...... 13 2.2 Political Ecology ...... 16 2.2.1 Critiques and Expansion of Political Ecology Approaches ...... 18 2.3 Policy Formation and Environmental Regulation ...... 20 2.3.1 Geography o f Regulation ...... 21 2.3.2 Role of the State ...... 22 2.3.3 Urban Regime and Regulation Theory ...... 23 2.3.4 Application to Water Resource Investigations ...... 25 2.4 Science, Scientific Practice, and Society ...... 26 2.4.1 Definitions of Science in Regulatory Contexts ...... 27 vii 2.4.2 Public Distrust of Science ...... 29 2.4.3 Social Constructions of Science ...... 30 2.5 Discourse Coalitions over Policy and Science ...... 33 2.5.1 Stakeholder Research in Geography...... 33 2.5.2 Discourse Analysis ...... 35 2.6 Research Questions ...... 37

3. Methodology ...... 40 3.1 Introduction ...... 40 3.2 Water Resource Policy Formation...... 41 3.2.1 Scientific Practice ...... 41 3.2.2 Public Participation and Mobilizing of Discourse Coalitions ...... 41 3.3 Methods ...... 42 3.3.1 Participant Observation ...... 43 3.3.2 Survey Data Collection ...... 44 3.3.3 Interviews ...... 45 3.3.4 Q-Method ...... 47 3.4 Grounded Theory and the Extended Case Method ...... 48

4. The Origins of Total Maximum Daily Load Policy: The Clean Water Act and Litigation ...... 50

4.1 Introduction ...... 50 4.2 Clean Water Act: Historical Background ...... 52 4.2.1 Federal Water Quality Legislation ...... 52 4.2.2 1972 Clean Water Act ...... 54 4.2.3 Origins of Section 303 ...... 56 4.3 US EPA Inaction and Early TMDL Litigation ...... 61 4.3.1 TMDL Litigation: Constructive Submission Theory ...... 63 4.3.2 Litigation over TMDL Quality and Timelines for Development ...... 66 4.4 US EPA Action: Federal Advisory Committee and Guidelines ...... 70 4.4.1 Federal Advisory Committee on TMDLs ...... 72 4.5 Conclusions ...... 75

5. Evolution of Ohio's TMDL Program: Role of Stakeholder Participation in Policy Formation ...... 78

5.1 Introduction ...... 78 5.2 Policy Entrepreneurs: Ohio EPA's Internal TMDL Team ...... 80 5.2.1 Restating the Team’s Mission ...... 81

viii 5.2.2 DSW’s Internal Team Report on TMDL Development ...... 82 5.2.3 Policy Entrepreneurs at Work: TMDL Projects ...... 83 5.3 Great Lakes Initiative (GLI) External Advisory Group ...... 85 5.4 Notice of Intent to Sue ...... 87 5.4.1 Outside Encouragement for Ohio EPA’s TMDL Advisory Group 88 5.5 Ohio TMDL External Advisory Group: Formation and Representation ...... 89 5.5.1 Representation: How were stakeholders chosen for the TMDL EAG?...... 91 5.6 Who are the Major Players? The Stakeholder Groups in the TMDL EAG ...... 94 5 .6.1 Demographic Profile of the TMDL EAG ...... 94 5.6.2 Major Stakeholder Groups in the TMDL EAG ...... 95 5.6.3 Government Agency Policy Entrepreneurs ...... 97 5.6.4 Environmental Community ...... 97 5.6.5 Industry and Municipal Wastewater Treatment Plants ...... 99 5.6.6 Development and Construction Industry ...... 99 5.6.7 Agriculture Community ...... 100 5.7 Impact on the TMDL External Advisory Group ...... 100 5.8 Conclusion ...... 101

6. Ohio’s Water Quality Regulation: Science, Water Quality Standards, and TMDL Development ...... 104

6.1 Introduction ...... 104 6.2 Specific Requirements of TMDL Development ...... 105 6.2.1 Current TMDL Development ...... 107 6.2.2 Ohio EPA’s 12-Step Process and Discretionary Moments ...... 109 6.3 Ohio’s Water Quality Standards ...... 112 6.4 Biological Monitoring ...... 117 6.4.1 Ecoregions ...... 118 6.4.2 Nonpoint Source Modeling ...... 122 6.4.3 Rotating Basin Monitoring ...... 122 6.5 Ohio’s Water Quality Status ...... 123 6.5.1 Determining Causes and Sources of Impairment ...... 124 6.6 Conclusions ...... 130

IX 7. Science of Ohio’s Water Quality Regulation; Methods of TMDL Development... 131

7.1 Introduction ...... 131 7.2 Contested Issues in TMDL Science ...... 133 7.2.1 Public Participation ...... 134 7.2.2 Model Selection ...... 137 7.2.3 Allocation of Responsibility for Pollutant Loads ...... 139 7.2.4 Adaptive Implementation of TMDLs ...... 141 7.2.5 Authority over Nonpoint Source Pollution ...... 142 7.3 Mill Creek Watershed TMDL ...... 145 7.3.1 Mill Creek Causes and Sources of Pollution ...... 146 7.3.2 Mill Creek TMDL Modeling ...... 149 7.3.3 Stakeholder Reactions to the Draft Mill Creek TMDL Report ...... 152 7.4 Conclusions ...... 156

8. Stakeholder Narratives on the Role of Science and Public Participation ...... 158

8.1 Introduction ...... 158 8.2 Narratives and Discourse Coalitions ...... 159 8.2.1 Stakeholder Differences over Science in Water Quality Regulation ...... 161 8.3 Q-Method ...... 162 8.3.1 Q-Method Respondent Sample and Statements ...... 163 8.3.2 Q-Method Analysis ...... 164 8.4 Narratives of Science, Participation, and Responsibility ...... 167 8.4.1 Factor A: Technocratic ...... 169 8.4.2 Factor B: Science is Uncertain ...... 172 8.4.3 Factor C: Science is Uncertain and Limited Participation ...... 174 8.4.4 Factor D: Science is Political and Participatory Democracy ...... 177 8.4.5 Conclusion ...... 180

9. Stakeholder Narratives on Sources of Water Pollution and Who Should be Regulated ...... 182

9.1 Introduction ...... 182 9.2 Stakeholder Views on Water Quality ...... 183 9.2.1 Nonpoint Source Pollution ...... 183 9.2.2 Regulation ...... 185 9.3 Ranking Sources of Water Pollution and Regulatory Priorities ...... 185 9.3.1 How do Stakeholder Groups Differ over Sources of Water Pollution? ...... 187 9.4 How do Stakeholders Differ over Who Should Be Regulated? ...... 189 9.4.1 Fragmenting Pro-Growth Regime ...... 190 9.5 Conclusion ...... 193

10. Conclusions: Discourse Coalitions and Emergent Policy And Science of Total Maximum Daily Loads...... 195

10.1 Introduction ...... 195 10.2 Discourse Coalitions of Science and Regulation ...... 197 10.3 Conceptual Map of Stakeholder Positions ...... 200 10.4 Technocratic Science and Regulation of Agriculture ...... 201 10.5 Science is Uncertain and Political: Regulation of Suburban and Urban Nonpoint Sources ...... 206 10.6 Emergent Discourse Coalitions ...... 208 10.7 Conclusion ...... 209

Appendix A: Interview Questions ...... 213

Appendix B: Survey Instrument ...... 214

Appendix C: Q Method Statements and Factor Scores ...... 220

Bibliography ...... 223

XI LIST OF TABLES

Table Page

3.1 Interviews by Major Stakeholder Group ...... 46

4.1 Summary of TMDL Litigation by State ...... 70

5.1 Major Stakeholder Groups in Ohio’s TMDL EAG ...... 92

6.1 Ohio’s Water Quality Use Designations ...... 115

6.2 Causes of Impairment ...... 125

6.3 Sources of Impairment ...... 126

7.1 Dissolved Nitrogen Loadings (kg/yr) for 5 sub-basins of the Mill Creek...... 151

8.1 Survey Responses on Science in Water Quality Regulation ...... 161

8.2 Factor Statistics ...... 166

8.3 Respondents’ Factor Loadings on each Factor Group ...... 168

8.4 Description of Factors ...... 170

9.1 Responses to Survey Questions on Water Quality ...... 184

9.2 Composite Ranking of Sources of Pollution and Regulatory Priorities.... 187

9.3 Sources of Water Pollution ...... 189

9.4 Priority for Regulatory Programs ...... 191

10.1 Scientific Discourse Coalitions in TMDL Policy ...... 199

10.2 Sources of Pollution and Regulatory Targets ...... 200

xii LIST OF FIGURES

Figure Page

1.1 TMDL Policy and Science Flow Diagram ...... 8

2.1 Conceptual Framework ...... 15

6.1 Ohio’s TMDL Development Process ...... I ll

6.2 Causes of Water Quality Impairment in 1988, 1996, and 2000 ...... 128

6.3 Sources of Water Quality Impairment ...... 129

8.1 Structure Given to Respondents for Sorting Statements in Q-Method 165

10.1 Stakeholder Positions on Science and Regulatory Priorities ...... 202

X lll LIST OF MAPS

Map Page

6.1 Ohio’s Watersheds in the TMDL Priority List ...... 108

6.2 Ohio’s Ecoregions and Biological Criteria Water Quality Standards ...... 119

7.1 Mill Creek Watershed ...... 147

XIV CHAPTER 1

INTRODUCTION

1.1 Introduction Streams and rivers across the United States remain polluted despite considerable efforts to protect water quality. The most toxic point source effluents from factories and municipal wastewater treatment plants have been reduced, yet water pollution persists. Diffuse surface runoff, called nonpoint source pollution, stemming from agriculture fields, suburban lawns, and urban stormwater runoff from roads and impervious surfaces now pose the largest threat to water quality. This nonpoint source pollution accounts for 60 percent of degraded waters across the United States (Ohio EPA 1998). Total Maximum Daily Load (TMDL) policy is a watershed-based, ambient water quality approach to cleaning up waters that remain polluted after the application of point source permits under the 1972 Clean Water Act. TMDLs have come to the forefront of US water policy as a result of growing concern over continued water quality problems and the rise in nonpoint sources of pollution. Significant changes in environmental regulation and economic context are influencing the emergence of TMDL policy. Political and economic restructuring is leading to a decentralization of environmental regulation from federal to state and local governments. Economic change is leading to a post-industrial economy in central Ohio fostering increased service sector activities, rapid suburbanization, and decentralized manufacturing operations. Changes in land use and economic sector activity are shifting the causes and sources of water pollution from point source industrial and municipal sewage effluent to diffuse nonpoint source pollution. In addition, water quality management increasingly relies on local governments, increased stakeholder participation, and new scientific methods to address nonpoint source pollution. These

1 changes are altering the way water quality is assessed and managed, and policy is formed. Within this new context of economic and environmental regulation, TMDL policy is emerging across the United States. Yet, little research exists on these significant shifts in water quality, political and economic context, and environmental regulation (National Research Council 2000). In this research I trace the emergence of Total Maximum Daily Load (TMDL) policy in the context of a changing regime of environmental and economic management. Research questions focus on the emergence of TMDL policy, the role of science in policy and regulation, and the role of stakeholders: 1. Why is Total Maximum Daily Load (TMDL) policy emerging now, nearly 30 years after it was written into the Clean Water Act?

2. What role does science play in the formation of policy and regulations?

3. How are narratives of science and responsibility used by stakeholders to influence policy and regulation?

4. How are coalitions of stakeholders changing under TMDL policy implementation?

This study is an explication of how stakeholders align themselves into new, emergent coalitions through mobilizing discourses of science, participation and responsibility, as well as, economic and social power. Under TMDL policy, the regulation of water quality has critical ties to development and economic policy, and discourses of science are used to combine the concerns of economic growth policies and environmental regulation. Environmental regulation has often been dismissed as an "extra-economic" factor that does not enter into economic policy arena. Under TMDL policy, the coalition of pro-growth interests (industry, construction/development, and farmers) allied around promoting economic development and protecting private property rights are fragmenting over water quality regulation. New alliances between the environmental community and government "policy entrepreneurs" are forming around increased water quality regulation that targets suburban construction and urban stormwater sources. The emergent discourse coalitions differ from previous alliances that traditionally dominated policy 2 formation in Ohio. The results of this study show how stakeholders utilize narratives of science and responsibility in order to influence regulation and economic policy outcomes. The findings link the economic interests of point sources and development/construction industry, through scientific practices, to their ability to influence environmental regulation. However, this alliance is also experiencing fragmentation as point sources tire of their regulatory responsibility while construction and home builders face little regulatory oversight. The rise in power of the environmental community is supported by successful litigation over TMDL policy in other states and its alliance with government policy entrepreneurs. The environmental community has garnered regional and national allies in their quest to implement TMDL policy in Ohio and thus, address nonpoint source pollution. They have allied with government policy entrepreneurs, and by extension agriculture, by employing narratives of science and responsibility that target commonly identified sources of pollution, the nonpoint source impacts from urban and suburban development.

1.2 Total Maximum Daily Load Policy Total Maximum Daily Load (TMDL) policy originated in Section 303(d) of the 1972 Clean Water Act. TMDL is a provision for cleaning up waters that remain polluted after the regulation of point source pollution. Under the TMDL policy, a watershed scale approach is taken in which both point and nonpoint sources are required to reduce pollution reaching waterways. As the focus of water quality problems shifts to nonpoint source pollution, water management is becoming more difficult. It is no longer a matter of monitoring the quality of end-of-pipe effluents, but requires examining impacts from diverse land use activities across an entire watershed. Not widely known or implemented for the first 20 years of the Clean Water Act, it is only since the early 1990's that TMDLs have moved to the forefront of water policy. Successful litigation, largely brought by environmental interest groups, has required state water quality agencies to implement TMDL policy. Nonpoint sources such as agriculture, logging, suburban sprawl, and construction activities that have been largely unregulated to date oppose TMDL implementation. The litigation has ignited a nationwide controversy over how TMDL policy will be implemented, which scientific practices will be employed and what constituencies will face increased regulation (Houck 1997). The Total Maximum Daily Load policy as outlined in Section 303(d) of the 1972 Clean Water Act employs a logical process to clean up polluted waters. Similar to regulations for toxic pollutants, it requires identification of polluted waters, quantitative modeling to determine an allowable pollution load, and division of that pollutant load between sources in the watershed. Specifically, a TMDL is defined as the maximum amount of a single pollutant that can be assimilated by a body of water without degrading water quality below state standards. The TMDL for each pollutant is determined by adding together contributions from waste load allocations (point sources) and load allocations (nonpoint sources). Once the maximum allowable pollutant load is determined, the reductions needed to bring the water into attainment with water quality standards (allowable discharge load) can be divided between all sources, point and nonpoint, in the watershed. The process is straightforward and relies on quantitative numerical standards and goals (keys to success in past regulation), however, TMDLs are complicated by the politically charged atmosphere of regulating nonpoint source pollution.

1.2.1 Significance of TMDL Policy This section addresses the contested issues emerging under TMDL policy. Significant changes are occurring in water quality regulation, including: 1) new regime of water quality regulation; 2) regulatory attention for nonpoint sources; 3) changing scientific practices; and 4) increasing stakeholder participation in science and policy. First, TMDL policy represents a shift in the goals of water quality regulation. Point sources have been addressed since the 1972 Clean Water Act (CWA) focused regulation on applying the best available technology to mitigate pollution from industrial and municipal sewage treatment. However, the gains made in point source pollution control are being eroded away by polluted runoff stemming from agriculture, timber operations, urban streets and suburban lawns. TMDLs change the goal of water quality regulation from point source permits ensuring the application of the best available technology toward requiring waterways come into compliance with ambient water quality goals. The process is logical; list polluted waters, calculate allowable pollutant loads that the stream can absorb while meeting state water quality standards, require pollution reductions from both point and nonpoint sources of pollution. Second, the process of TMDL calculation is straightforward, however, it is complicated by the politically charged atmosphere of regulating nonpoint sources of pollution. TMDLs are causing concern among powerful constituencies from agriculture and the American Farm Bureau, forestry and timber operations, and construction and development. These are the largely unregulated nonpoint source pollution contributors. Within TMDLs, a watershed approach is advocated in which all sources of pollution, point source and nonpoint source are considered. For the first time, nonpoint source stakeholders, including agriculture and forestry, oppose regulatory measures possible under TMDL policy. Suburban development and construction activities are facing increased regulatory oversight for their impacts on stormwater and surface runoff. Point source stakeholders, the industrial and municipal wastewater treatment plants are concerned that TMDLs will simply mean stricter effluent permits because nonpoint source pollution is technically and politically difficult to regulate. Third, implementation of TMDL policy has ignited a nationwide controversy involving scientific methods for monitoring and modeling water quality, particularly for nonpoint source pollution. The science of water quality regulation is shifting toward complex fate and transport models and use of Geographic Information Systems to link the diffuse landscape sources o f pollution to in-stream water quality. Debates are being conducted over collection of data, rigor of models, and levels of acceptable risk in modeling nonpoint water pollution sources. Stakeholders enter into debates over the best methods and employ narratives of the role of science to influence scientific practices. Fourth, competing stakeholders are increasingly involved in determining the science of water quality modeling and in shaping the structure of policy formation. Many states faced with increasing financial and regulatory responsibility are turning to educational and voluntary-based regulation involving local governments, private firms, and environmental and citizen groups. State agencies are promoting public participation in policy formation and rule making to gamer financial and political support for programs. TMDL policy in Ohio exemplifies this trend, not only by involving stakeholders in authoring policy but also in the use of private, citizen-based organizations to implement water protection strategies. The stakeholder groups most capable of representing their interests in policy struggles are best situated to settle controversies in line with their objectives and ultimately determine the science o f water quality regulation. Through this process they employ causal narratives of science and responsibility in order to influence scientific practice and thus who is held responsible for water pollution. Under Total Maximum Daily Loads (TMDL) there is a continued expansion of the role of stakeholders. In the Ohio Environmental Protection Agency's (EPA) development of TMDL policy, stakeholders were invited to participate in policy formation from a very early stage, before Ohio EPA had finalized its process, science, or implementation strategies. This changed the policy formation structure at Ohio EPA. The rising influence of a local environmental agenda, backed by success in other states, began to compete with development/real estate interests, along with the traditional power brokers in industry and agriculture.

1.2.2 Overview of TMDL Policy and Science Emergence An overview of TMDL policy emergence in Ohio is outlined in Figure 1.1. The emergence of TMDL policy in Ohio is influenced by initial contextual factors: the political and social context, stakeholder actions and participation in policy formation, and scientific practices utilized in water quality regulation. As these forces interact, and are altered by stakeholders engaged in the policy formation process, narratives of science and responsibility emerge that have power to unite diverse stakeholder interests under a common narrative of causality and definitions of science in TMDL calculations. The narratives of science are employed and are resulting in fragmenting of the pro-growth stakeholder interests and the coalescing of environmental and government stakeholders under a narrative of regulating nonpoint source pollution despite uncertainties and contested issues of scientific practice. The resultant TMDL policy and science is infiuenced by physical, scientific, and social factors. It turn the policy and science will determine the type of water pollution in Ohio, who is held responsible for pollution and who pays, and it alters the coalitions operating in economic circles. Environmental concerns can no longer be considered an “extra-economic” in economic and political arenas, but stakeholder alliances are Augmenting and forming over the politics of water quality regulation (Figure 1.1)

1.3 Outline of Dissertation In the following chapters I trace TMDL policy through three arenas of policy and regulation; 1) Policy Formation; 2) Scientific Practice; and 3) Stakeholder Narratives and Emergent Coalitions. This section gives an overview of each chapter that follows. In Chapter Two, I outline my theoretical and conceptual framework. Based in a broadly defined Political Ecology that focuses on the interaction of the state, science and society in issues of envirorunental management, I draw on theories of social construction of science, stakeholder interactions, discourse analysis and urban regime theory to operationalize my approach to the emergence of TMDL policy. Researchers working in society-environment interactions call for a social science research that can aid in understanding human degradation o f natural resources. They recognize the dialectical, complex social and natural processes interacting in environmental change and degradation. In the quest for understanding this relationship, some call for a shift from physical and natural science investigations to an analysis of the social origins o f ecological degradation (Brulle 2000; Cronon 1996). Beck (1995) calls for development of social theory showing that processes of ecological degradation are based on cultural beliefs and social institutions, and thus inform political practice. I trace the coalescing and fragmenting stakeholder coalitions in a new context of policy regime and regulation in order to investigate the social infiuences on science and policy formation. Chapter three outlines the methodology linking specific techniques of data collection to theoretical approaches outlined in Chapter two. In this chapter, I outline the Economic and Political .4 _^ Stakeholder Actions < > Scientific Practices C n n tM t ^------

TMDL Policy Formation Process: Ohio's TMDL External Advisory Group; Stakeholder access to Ohio EPA policy and scientific nrocesses

Stakeholder Narratives of Science, Participation, and Responsibility: Language usedI to define the Changing stakeholder Coalitions: Fragmenting pro-growth regime and coalescing environmental and government group over

TMDL Science and Policy / \

1 r Water Quality and Who is held Alters political types of pollution responsible for context of water nnlliitinn f*ronnmir

Figure 1.1. TMDL Policy and Science Flow Diagram.

8 mix of quantitative (survey data, Q Method) and qualitative (interview, participant observation) methods employed to address the research questions. The extended case method approach is used to expand the findings fi'om this case study to larger theorizations about interest groups and scientific discourses in economic and environmental regulation. The context of TMDL policy formation at the national level and in Ohio is established in Chapters Four and Five. Chapter Four addresses the history of the Clean Water Act and TMDL litigation in order to answer, why has TMDL policy emerged now? In the 1950s and 1960s states fought hard to retain state authority in water quality regulation arguing they were the best entity to determine state water quality standards and implementation. During that time waters in the United States continued to be polluted and no major progress was made to clean up toxic pollution. State rights were usurped by federal standards and oversight in the 1972 Clean Water Act; however. Section 303(d) Total Maximum Daily Loads retained the states' ability to enforce ambient water quality based regulation. Effectively ignored by states and US EPA for nearly 30 years, it was litigation brought by environmental groups that revived the TMDL approach to water quality management. States are now fighting to avoid the very TMDL provisions they fought so hard to retain. What changed to alter the states position? Why are they now being forced through litigation to implement state-based ambient water quality approach? The chapter explores the changing context of regulation, and the shifting scales of water quality regulation. Chapter Five focuses on TMDL policy formation in the state of Ohio. It deals with three intersecting processes that lead to Ohio’s TMDL program and provisions for addressing nonpoint source pollution; 1) Environmental stakeholder pressure through the Great Lakes Initiative External Advisory Group; 2) Environmental coalition filing a Notice of Intent to Sue Ohio EPA and US EPA over TMDLs; and 3) Ohio EPA establishment of an internal TMDL team and external stakeholder advisory group. These processes opened up the scientific and policy formation processes of Ohio EPA to the public and allowed for unprecedented opportunity for interested parties to influence the formation of Ohio EPA's TMDL program. In Chapter Five, the role of policy entrepreneurs at Ohio EPA and other government agencies is explored. These individuals have been instrumental in shaping Ohio's TMDL program and have proven to be key stakeholders advocating for nonpoint source pollution control in Ohio. Chapters Six and Seven outline the scientific practices conducted by Ohio EPA to monitor water quality and to conduct the required steps of TMDL calculation. The chapters identify the contested and uncertain moments of science that are open to stakeholder critique and influence. Chapter Six answers the question, how does Ohio EPA conduct the science of water quality analysis? The scientific practices of setting standards and identifying polluted waters are important because they form the basis for determining which waters are not meeting water quality standards, and thus require TMDL development. The data collected from water quality monitoring and modeling does not automatically translate into the information required for policy and regulation. The information must be analyzed, compiled, and translated into information required to make decisions regarding difficult economic and political decisions. This process of analyzing and interpreting data creates the discretionary moments where science is uncertain and open to social and political influence. Chapter Seven addresses the specific uncertain and transparent moments in TMDL calculation. Recognizing the unique place of regulatory science operating in both scientific and political spheres at the same time, the chapter points to the moments when stakeholders enter the TMDL scientific process in order to mobilize discourses of science and responsibility in attempts to influence regulatory outcomes. A case study of the Mill Creek Watershed (Cincinnati) TMDL is used to illustrate how actors utilize critiques of science and/or appeals to values or fairness in order to avoid regulation under TMDLs, and to point the finger at other parties. The case study illustrates how the process o f allocating responsibility among sources is a subjective judgment that tries to translate quantitative numbers in to difficult political regulatory decisions. The chapter reveals that point source fears may be valid that they will face stricter regulation in order to mitigate their impacts on water quality. Chapters Eight, Nine and Ten address stakeholder coalitions and the mobilization of discourses of science, participation and responsibility in order to influence the

10 regulation of water pollution sources under the TMDL program. The stakeholders have high economic and political stakes in how the TMDL program is implemented. Chapter Eight addresses the questions how do stakeholders define science in the TMDL process? The chapter explores the range scientific discourses that are operating in the TMDL process. The results fi-om survey data and Q Method data revel four narratives of science ranging fi'om technocratic faith in science and its strict separation from the politics of regulation to a strong critique of the ability of science to identify who is polluting the water and by how much. This latter group believes Ohio EPA science is modified to fit the politics of the situation, and they strongly advocate full participation by the public in determining TMDL policy and scientific processes. Narratives of science are employed by stakeholders in order to gamer allies to influence the policy and scientific outcomes. Chapter Nine addresses differences between stakeholders on sources of pollution. The chapter analyzes the results to two questions: How do stakeholders differ over who is causing water pollution? And which sources do stakeholders target for regulation? The results reveal the alliances between divergent interests over who is causing water pollution, but more importantly, over who should be held responsible for water pollution under TMDL policy. The differences and similarities point to the emergent coalitions that TMDL policy has fostered. The results indicate that stakeholders create conditions of coherence out o f what sometimes seems like intractable policy positions. Chapter Ten focuses on elucidating the fragmenting and newly emergent coalitions of stakeholders that are forming under TMDL policy. The chapter addresses the research question, how are coalitions of stakeholders changing over discourses of science and regulatory targets under TMDL policy? The chapter points to the firagmenting coalition between the pro-growth interests allied around promoting economic development and protecting private property rights to limit regulation of agriculture and construction/development activities. TMDL policy has fostered the alliance of environmental community with government staff over regulating nonpoint sources of pollution from urban and suburban runoff. This focus on proceeding despite scientific uncertainty (or because of a strong critique of regulatory science to be factual and impartial) has allied these groups in a coalition that also includes agriculture because

11 of the focus on non-agricultural sources of nonpoint pollution. These alliances utilize narratives of science in order to shape environmental regulation, and by extension, economic policies. This study focuses on the intersection of policy, science and stakeholders in the emergence of Ohio's TMDL program. I focus on how stakeholders employ narratives of science and responsibility that incorporate both economic and environmental regulation concerns. These narratives are used to fragment existing stakeholder coalitions allied over economic growth and private property rights and create new coalitions focused on increased regulation of nonpoint source pollution. The case of TMDL policy portrays how environmental policy formation has critical ties to politics of development and economic policies. TMDLs illustrate how science, through discourse, is defined and deployed in order to effect policy and regulatory outcomes.

12 CHAPTER 2

THEORETICAL APPROACHES TO ENVIRONMENTAL REGULATION, SCIENCE AND STAKEHOLDERS

2.1 Introduction Total Maximum Daily Load policy is emerging across the United States under a new regime of environmental regulation. Political and economic restructuring is leading to a decentralization of environmental regulation from federal to state and local governments. Economic change is leading to a post-industrial economy in central Ohio fostering increased service sector activities, rapid suburbanization, and decentralized manufacturing operations. These changes in land use and economic sector activity are shifting the causes and sources of water pollution from point source industrial and municipal sewage effluent toward diffuse nonpoint source pollution. In addition, water quality management increasingly relies on local governments, increased stakeholder participation, and new scientific methods to address persistent water quality problems. These changes are altering the way water quality is assessed and managed and policy is formed. In this research I trace the emergence of Total Maximum Daily Load (TMDL) policy in the context of a changing regime of environmental management and changing scientific practice. In order to explain the emergence of TMDL policy and resultant changes, I examine the intersecting arenas of policy formation, scientific practice, and stakeholder actions in water quality management. Based in a broadly defined political ecology, I investigate three areas o f TMDL Policy:

13 1 ) Policy Formation. I employ theories of stakeholder participation, role of the state and urban regime and regulation theory to explicate the emergence o f TMDL policy.

2) Science. Social studies of science and technology point to the social and political embeddedness of scientific practices and lead to investigation of the uncertain and transparent moments in science.

3) Stakeholder Coalitions over Policy and Science. I employ discourse analysis to investigate how stakeholder's employ narratives of science and responsibility to form and fragment coalitions. I return to urban regime theory as a tool to help explain shifting stakeholder alliances.

The chapter begins with the main concepts of a political ecology framework and how this study is influenced by new approaches within political ecology to address the role of the state, actors, and economy in an emerging regime of environmental management (Figure 2.1). Next, I turn to regulation and regime theory to examine the local context of stakeholder coalitions, ties between politics and economic regulation, and linkages to larger political economic change. I trace the network of decision-making in TMDL policy through national legislation, litigation, Ohio EPA and stakeholders to reveal the differential power relations and influence of these elements on TMDL policy and science outcomes. Next, I look at the role of science in regulation, employing approaches from the social studies of science and technology to trace the emergence of new scientific practices and how stakeholders struggle over, represent and deploy narratives of science. I analyze the increased participation of stakeholders in policy formation, using discourse analysis to reveal how groups employ narratives of science and causality to influence policy outcomes. I examine stakeholder perceptions of what is causing water quality problems and who should be held responsible in regulation. These narratives of causality and blame are used by stakeholders to create conditions of coherence out of complex problems, and often lead to new, unexpected coalitions among diverse interest groups. 1 draw on theories of discourse coalitions and social studies of science (Jasanoff 1990; Hajer 1995)

14 Political Ecology Framework: Actors and the struggle over access to natural resources Local economic, social, and political context Influence of larger political and economic structures Critical examination o f science and regulation

I z iz Iz I z

Stakeholder Urban Regime Social Studies of Narratives of Participation and Regulation Science Science and — — Theory Responsibility

MWBMMi HBRHH ■mtiiiiiii -Increased stake­ -Stakeholder -Social and -Definition and holder regimes political deployment of involvement in coalescing or influence on science in policy policy and fragmenting over scientific formation to scientific environmental practices influence processes. regulation and (upstream regulatory economic influence). outcomes (down­ -Ability o f stake­ policies. stream holders to -Regulatory influence). critique scientific -Changing science is practices. regime of uncertain and -Narratives have environmental contested, falls power to unite regulation. between politics divergent SH and interests under a

i z I z I z I z Environmental Policy and Science Outcomes The four theoretical approaches lead to a unified explication of emergent policy and science outcomes as a product of the social and economic context. Increased stakeholder influence on policy and science formation, through narratives defining science and responsibility, illustrate how science is utilized to alter stakeholder coalitions and to influence environmental regulation and economic policy outcomes.

Figure 2.1. Conceptual Framework 15 to examine these narratives on causality as well as scientific discourse and the ways in which science, under conditions of uncertainty, is represented and negotiated through stakeholder narratives. The deployment of scientific narratives position powerful stakeholder coalitions to influence methods of scientific practice. Figure 2.1 illustrates the conceptual framework that forms the basis for this chapter. The political ecology framework is a starting point for investigating TMDL policy. The emergent conceptual framework draws on more specific theorizations about stakeholders, science and its social construction, discourse analysis and regime and regulation theory to place TMDL policy in a social and economic context and to explicate the emergence of TMDL policy in the 1990s. Out of the four theoretical approaches, a coherent conceptual framework captures the critical driving forces operating under TMDL policy.

2.2 Political Ecology Influenced by the popular environmental movement of the 1960s and 1970s, social scientists began to examine a variety of social causes leading to environmental degradation. Research in cultural and political ecology criticized the prominent research coming from natural hazards and environmental management for a pre-occupation with problem-solving, technocratic and positivist methods and a focus on individual decision­ making to the detriment of historical, economic and social causal factors (Watts 1983; Bryant and Wilson 1998; Johnston, et al. 2000). Drawing on a political ecology framework, this study analyzes the emergence of TMDL policy and the social and political forces driving the emergence of new scientific practices. In this section, 1 review the main tenets of political ecology and how it informs the research questions posed in this study. Political ecology is an interdisciplinary approach that combines ecology and social science to address causes of environmental degradation. It first emerged in the 1970s (Wolf 1972) out of human and cultural ecology in geography, anthropology and related disciplines. Political ecology employs a Marxist-inspired political economic

16 approach to investigating the cultural, social and economic dimensions of environmental degradation. In Blaikie and Brookfield's (1987) seminal work Land Degradation and Society. they describe political ecology as ”combin[ing] the concerns of ecology and a broadly defined political economy.. .[that] encompasses the constantly shifting dialectic between society and land-based resources (Blaikie, 1987: 17)." The authors outlined three main tenets of political ecology research: 1) marginaiity, either political, economic, or ecological, that is both cause and effect in land degradation; 2) social relations that mediate the environmental pressure from production activities; and 3) recognition that facts of environmental degradation are contested, thus requiring multiple perceptions and multiple explanations. These central concerns of political ecology were formed out of a critique of population growth as the primary causal factor in producing environmental problems. In the I970's and 1980's social scientists influenced by political economy and critical development theory began to ask questions regarding how communities, local resource management and environmental sustainability were being transformed by the global capitalist economy (Peet and Watts 1996). Political ecology recognizes that a group’s (or individual’s) ability to act or respond to changes in the environment is influenced by their economic, social and political relations at local, regional and global scales (Emel and Peet 1989; Zimmerer 1996a). Incorporating a structuralist perspective from political economy and informed by Marxism, political ecology places local human- environment interactions, often starting with individual land manager, in the context of regional and global economic processes and capitalist structures (Watts 1983; Black 1990; Peluso 1992). Political ecology is concerned with competing actors and unequal power relationships in access and control of natural resources in a place, but linking these relations to larger structures in political economy. Political ecology sees society- environment interactions as dynamic relations that must be ‘^understood by analysis o f specific issues in defined regions within which the linkages between societal and

17 environmental factors over time and space are explicitly examined (Campbell and Olson 1990).” Political ecology encompasses a wide variety of themes in human-environment interactions. Investigations using a political ecology framework combine these themes in different ways and to different degrees in any specific study, thus fostering the diversity and plurality of what is considered to be political ecology (Blaikie 1994). Because o f this plurality of subject matter and causal mechanisms, political ecology is often characterized as a common approach rather than a coherent theoretical framework. This study incorporates additional theoretical frameworks to inform the investigation of TMDL policy.

2.2.1 Critiques and Expansion of Political Ecology Approaches Liberation Ecologies, a collection of case studies edited by Peet and Watts (1996), broadened the political ecology approach by incorporating theories from the post­ structuralist movement in the social sciences. The book includes chapters on the discourses o f soil loss in Bolivia (Zimmerer 1996b); Marxist approaches in political ecology in Zimbabwe (Moore 1996); and indigenous organizations and agriculture in Ecuador (Bebbington 1996). In the introduction, Peet and Watts (1996) outlined three limits to political ecology theory (p. 7-9): 1) Emphasis on household level poverty as cause of environmental degradation to the exclusion of multiple explanations such as global economic structures, economic development, or power relations.

2) Bias toward the rural, agrarian third world setting, and focus on land degradation at the expense of other environmental problems.

3) Lack of serious treatment of how access to and control of resources is defined in political arenas at the household, workplace and state levels.

Despite these critiques outlining the limits of political ecology approaches, Peet and Watts (1996) did not broaden political ecology case studies outside of less developed settings or land-based degradation. However, the book did bring discomse analysis, a

18 more complex treatment of the state, and feminist approaches (Camey 1996) to a political ecology framework. Political ecology is criticized for its concern with poverty as cause of environmental degradation at the expense of examining larger structures of economic change and power. In addition there is an overwhelming emphasis on issues of land degradation in less developed contexts, and an under-theorized approach to the role of the state in mediating access to natural resources (for exceptions to the latter see Bryant, 1992). Several studies have recognized the contributions of political ecology and poststructuralist critique to understanding the issues of gender and ecological justice. Rochelau, Thomas-Slayter, and Wangari (1996), editors of Feminist Political Ecology. applied feminist theory and critique to human-environment interactions. The book addresses a wide diversity of topics in both industrialized and less developed contexts. The book included studies on environmental racism in New York City (Miller, Hallstein et al. 1996), political activism against hazardous waste in the United States (Seager 1996), women’s responses to industrial waste in Spain (Bru-Bistuer 1996) and deforestation in Brazil (Campbell 1996). This work expanded the scope of traditional political ecological investigations beyond third world land-based degradation and contributed to theory by addressing non governmental organizations and interest group influence on state policies and issues of gender in environmental degradation. Recent work in political ecology has responded to critiques and delved into the politics of resistance and struggles over access and control of natural resources, Marxist and political economic approaches; and gender and feminist theories (Peet and Watts 1996; Rochelau, Thomas-Slayter et al. 1996). In addition, studies in political ecology began to use discourse theory and social studies of science, often in industrialized contexts, involving ecological modernization, risk and governance (Johnston, Gregory et al. 2000). The theoretical framework employed in this study resembles this latest area of emphasis within a political ecology approach. Political ecology has largely focused on land-based issues of soil erosion, agricultural practices, and deforestation in the third world (Vayda 1983; Blaikie 1985;

19 Blaikie and Brookfield 1987; Hecht and Cockbum 1989; Peluso 1993; Fairhead and Leach 1994). Until recently there has been very little work done in water resources or industrialized contexts from an explicit political ecology framework. In a less developed setting. Felling (1999) recently used political ecology employing the concepts of risk and vulnerability to study flood hazard in urban, coastal Guyana. He investigated the "institutional structures and cultural norms that shape negotiations between political actors for control over urban development resources, and the geography of vulnerability that is produced (Felling 1999: 250)." Swyngedouw (1996 and 1999) has employed political ecology to the historical development of water resources in Spain and Ecuador, focusing on the economic and power dimensions of water resources development and urban expansion. This study of the emergence of TMDL policy draws on several themes in political ecology. A political ecology approach leads us to start with the local context of environmental degradation, but also to link the causes to larger scales of governance and economic structures. However, political ecology does not address explicit theorizations of how to address power struggles between actors, nor does it theorize how to link the local context to a larger political economy. In addition, it leaves the role of the state in an under-theorized position. To incorporate these elements that are central for understanding the emergence of TMDL policy and science, I turn to social studies of science and technology to theorize the emergence of TMDL scientific practices. Next, I employ discourse analysis to examine the formation and fragmentation of coalitions over policy, employing regulation and urban regime analysis to link to the larger economic context for policy and scientific change under TMDLs.

2.3 Folicy Formation and Environmental Regulation Water quality regulation in the United States is shifting from national scale policies to an increased role for state and local governments in determining environmental management (Wise and R. O'Leary 1997; Helland 1998). This devolution of environmental regulation is requiring local governments to provide solutions to conflicts between environmental protection, urban growth and economic development

20 (Gibbs and Jonas 2000). Stakeholders have increasing opportunities to shape the structure of policy formation and influence decision-making structures in local environmental management (Kraft and Scheberle 1998). In addition, the culmination of influence from local and regional environmental groups is impacting federal rules and regulations. As a result, the science and policy of water quality management is undergoing significant change, yet, there is not adequate research on the economic and scientific changes in water quality regulation (Houck 1997b; National Research Council 2000).

2.3.1 Geography of Regulation The local regulation o f the environment is a combination o f intersecting forces operating at multiple spatial scales from the local to regional and national scale processes of social and political governance (Cox 1997). Local places with unique physical characteristics, economic activities, and coalitions of power are the site where federal environmental regulations are interpreted, negotiated, and implemented (Manion and Flowerdew 1982; Ringquist 1994). The impact of policy stems more from the "manner in which it has been implemented than from its content" (Robbins 1998), iterating the importance of examining local level implementation of federal policies (Bryant 1992). Regulatory institutions will vary from place to place and site-specific combinations of political, economic and social relations give rise to spatially differentiated regulatory practices (Emel and Roberts, 1995; Cocklin and Blunden, 1998; Gandy, 1997). Many scholars are concerned that a devolution, or ecological modernization in environmental regulation will undermine environmental protection efforts as local pro­ growth regimes dominate policy formation processes (Fischer and Hajer 1999). Environmental policy is increasingly formed and implemented within local regimes of power allied around economic growth and development. Environmental policy is also subject to the growing influence of an environmental ethic that brings social and cultura power of environmental protection into the local policy process. The focus in this

21 research is on the local site of environmental policy formation and implementation, and the stakeholders involved in defining scientific regulatory practice.

2.3.2 Role o f the State How can we theorize the role of the state in regulating society-environment interactions? While political ecology has focused on the interactions between individuals (or groups) and the environment placed within larger social, political and economic contexts, there has been a noticeable lack of critical examination of the role of the state (Kirby 1993; Peet and Watts 1996). In traditional political ecology research the state was seen as a monolithic power implementing federal environmental policy without regard for local knowledge, power relations, or historical context (Blaikie and Brookfield 1987). The role of the state in environmental management is more complicated than this approach considers. In liberal views of the state, government institutions intervene in environmental conflicts in a rational maimer using scientific evidence to justify its actions in rising above competing interests to conserve the environment for all, including future generations (Blaikie 1994). In this view, the state's role is based on enforcing policy on competing interest groups in the name of creating equity, efficiency, and environmentally sustainable development (Grimble and Wellard 1997). But this is rarely what happens in environmental policy formation. There is an inherent conflict in the role of the state as developer of the economy (dependent on natural resource use) and as protector and steward of natural resources as common goods (Walker 1989; Bryant 1992). These conflicting responsibilities can lead to divergent goals and actions among institutions of the state. In examination of political institutions it is important to consider who gets what, when and where' (Manion and Flowerdew 1982). This allocation of goods is determined by the rules, priorities and policies of government institutions. The various institutions of government for tax, trade, and industrial policies as well as protection of natural resources have competing goals. Government agencies may have a preconceived bias toward an interest group causing an institution to favor one

22 outcome over another. For example the Ohio Department of Agriculture has had a traditional role of promoting and protecting the agricultural economy. They have long been seen as voice for the agricultural community and actively oppose increased regulations and lessened financial subsidies to agricultiure in Ohio’s political arena. Their role as protector of agriculture has been complicated by their request to Ohio’s General Assembly to move the regulation of large animal feedlots from Ohio EPA to Ohio Department of Agriculture (also at the request of the Ohio Farm Bureau). This illustrates the ’uneasy mix of politics’ that occurs in a liberal democracy and administrative state creating difficulties for government institutions to deal with complex and variable environmental problems (Dryzek 1994). This theoretical approach recognizes the conflicting goals of state agencies in environmental management and defines the role of the state as dynamic and variable between different government agencies. I use this dynamic view of the state in conjunction with urban regime theory to understand the relationship between state and non-state actors in a local environmental policy context. But, how do we link the local context of Ohio’s TMDL development to larger political economic shifts? A reconstructed regime and regulation theory approach helps us to place a concrete, empirical investigation of local environmental policy in the context of transition to a post-industrial society. Regulation theory tells us that under changing economic conditions we should expect to see shifts in governance and environmental regulation, such as those evident in the emergence of TMDL policy. In the next section, I outline the approach of urban regime and regulation theory to understanding local environmental policy.

2.3.3 Urban Regime and Regulation Theory

Studies in urban regime and regulation theory have analyzed the after-Fordist devolution of governance and economic development (Amin 1994; Lauria 1997) but only a few studies have addressed shifting regimes of regulation in local environmental policy (see Ward 1995; Gandy 1997; Cocklin and Blunden 1998). Regime and regulation

23 theories have been applied to studying the changing economic activities and governance under a shift to a post-industrial society. Regime theory is a conceptual approach to understanding the politics of local economic development. It is an "institutional approach to the politics of urban development in the U.S., focusing on the strategic capacities of private and public-sector players to shape land-use and development policies" (Feldman and Jonas 2000: 258). It is useful for environmental policy in specifying actors, political alliances, and tracing how coalitions of actors are mobilized around issues of environmental protection (Cox 1997). Gibbs and Jonas (2000) define policy regimes as "institutional structures through which economic and extra-economic power is wielded locally (p. 301).” In the case of environmental policy both economic and the ‘extra-economic’ power of environmental protection are important driving forces. Regime theory is criticized for an over emphasis on business interests in policy formation at the expense of a variety of local practices and interests engaged in policy formation (Painter 1997). Regime theory has also been criticized for lacking connections to larger institutional structures of political economy operating in environmental management. This study employs regime theory to analyze the fragmentation of a pro-growth and economic development coalition of stakeholders and the rise of an alliance between environmentalists and government policy entrepreneurs' focused on improving water quality and regulating nonpoint source pollution through TMDL programs. Regulation theory has been used to provide macro-level generalizations about the regulation of the economy within a capitalist mode of production. It has been used to analyze changing regimes of regulation under economic restructuring, such as is occurring in central Ohio. Regulation of the economy occurs through social, cultural and political support for regimes of accumulation within capitalism, despite contradictions that threaten its success. Regulation theory has been used to trace the history of capitalist development, for example it has been utilized to study the economic crisis of the 1930's and the economic growth of the 1950’s and 1960’s (Goodwin and Painter 1997). Yet, too ofren regulation theory is applied in the abstract, producing few conclusions about its

24 impact on policy formation processes and impacts on policy implementation (Gandy 1997). Regulation and regime theories are criticized for lacking theoretically and historically grounded approaches to regulation in the context of shifting relations between state, capital and society (Gandy 1997). Gibbs and Jonas (2000) advocate a combination of regulation and regime theory to approach local environmental policy. They call for concrete, empirical investigations into the way the environment is utilized, interpreted and fought over in local policy formation. Regulation theory is then used to understand local policy formation in the context o f larger shifts in the political economy. Cocklin and Blunden (1998) employed regulation theory to examine the specific institutions that govern environmental management in New Zealand. Their approach, called 'real regulation' addresses the specific actions of the state in administering access to resources, as well as recognizing other social agents that influence environmental management. This study employs both urban regime analysis and regulation theory to trace the local emergence of TMDL policy, the role o f the state and non-state actors, to link it to larger national shifts in economy and environmental regulation.

2.3.4 Application to Water Resource Investigations Regime analysis and political economic approaches have been used to study water resources development and management. Walker and Williams (1982) employed political economy of regional growth to delineate institutions of water development that ensure expansion of agriculture and urbanization in the Santa Clara Valley, California. Karen Bakker's (2000) study revealed the emergence of discourses of drought and environmental regulation under privatized water management in Yorkshire, England. In addition, studies of water in the United States have focused on the extraction of water resources from peripheral regions to support urban development (Gottlieb and FitzSimmons 1991; Gandy 1997; Steinberg and Clark 1999; Swyngedouw 1999). Several studies in western water management and development, while not using regime or regulation theory, have employed similar institutional approaches. In studying the development of water resource in conjunction with western expansion in agriculture

25 and urbanization, studies have included the role of state in water management institutions and property regimes (Gottlieb and Fitzsimmons 1991; Emel and Roberts 1995); definitions of nature and questioning the artificial distinction between social realm of cities and the natural world (Cronon 1991), and power regimes in water development and urbanization (Ingram 1990; Worster 1985). The search in these studies for meso-scale processes coincides with work in resource geography and environmental history that examines the linkages between environmental regulation and political economic govemance (Gibbs 1996; Bridge and McManus 2000). In the next section I turn to social studies o f science and technology and definitions of science in the regulatory context that inform my conceptual approach to the uncertain and discretionary moments in TMDL science. Stakeholders hold very different views of the role of science in regulation. In order to investigate the discourse coalitions formed over policy formation and scientific practice under TMDLs, I employ Hajer's discourse analysis and social studies of science and technology. These frameworks bring specific approaches to investigating stakeholder actions under a changing regime of environmental management. I use the approach to explain the fragmentation of stakeholder coalitions and employ a combined regime analysis and regulation theory to link to these changes to the political economy of environmental regulation and economic development policies.

2.4 Science, Scientific Practice and Society How water quality is monitored and modeled has direct impacts on what is identified as a cause of pollution and who is held responsible. The technology-based chemical monitoring practiced under the Clean Water Act is no longer sufficient. New methods and scientific practices in water quality regulation are emerging influenced by the decentralization of state regulatory control, increased role for stakeholders and the new emphasis on nonpoint sources of pollution. This section addresses theoretical approaches to the science of water quality management and the social and political embeddedness of scientific practice.

26 Conventional studies of policy have relied on two views of the role of science in regulatory decisions, technocratic and democratic. The technocratic view is that better science leads to better regulation. The failure to make the 'right* regulatory decision is a result of incompetent bureaucracy or inadequate science (Jasanoff 1990). The technocratic view on environmental policy advocates collecting more data and conducting more research until the problem can be solved. Technocratic problem-solving approaches dominate the field of environmental management (Bryant and Wilson 1998). This approach is criticized, however, for widespread failure to mitigate the impacts of pollution. Moreover the technocratic approach of environmental management fails to recognize the growing importance of non-state actors and the cultural beliefs and social institutions that are both cause and effect in ecological degradation (Cronon 1996; Brulle 2000). The democratic view supports open decision-making by involving environmental and consumer groups in regulatory decisions. These groups are critical of government agencies that they view as incapable of incorporating the social values that are necessary to make decisions involving complex choices and uncertain data (Jasanoff 1990). In light of scientific uncertainty and/or politically difGcult issues, government agencies are criticized for not being capable of taking steps to protect citizen health, promote equitable distribution of environmental risk by protecting vulnerable neighborhoods from toxins (and other issues in environmental justice), or protect natural, wild, and scenic areas from development threats. However, neither the technocratic nor democratic view is adequate for addressing what is at stake in environmental regulation. These conventional views of the role of science do not recognize the mutual social construction o f science, society and knowledge.

2.4.1 Definitions of Science in Regulatory Contexts Regulatory science exists at the boundary between science and politics. A division is created that maintains a strict division between fact and scientific method and politics and values. At this boundary, actors engage both political and scientific

27 justifications to influence the outcome of scientific practice and regulatory events. This is what Jasanoff (1990) refers to as "boundary work', the mix of science and politics in the regulatory context. The artificial separation between scientists, experts and facts on one hand; and values, subjectivity and political influence from stakeholder groups on the other does not capture the complexity of regulatory science. In TMDL policy development, stakeholders are actually determining the boundaries of the problem and the scientific methods that will be used to assess water quality. Stakeholders in the policy process will at one point advocate strict adherence to quantitative model outputs to determine pollution sources. At another point in time, the same stakeholder may attack the use of science through questioning the validity of data or model output in order to settle a disputed event in their favor. Alternatively, a stakeholder may ask that decisions be based on social values, fairness or justice, criteria far away from scientific data or models. Science is used in a variety of ways to legitimate policy actions or to exclude solutions from policy alternatives. But more than that, science is a social activity that is constructed, translated, and modified by those who use it. Examining the social context of science and the sociology of producing science is necessary in order to trace the definition and deployment of scientific practices (Latour 1987). Scientific methods for TMDL water quality monitoring, models employed, and implementation strategies are contested issues. Additionally, there is debate among stakeholders over what constitutes data and who will be targeted under TMDL policy. Specific controversies include, (1) what are the primary sources of water pollution and who should be held responsible, (2) challenges to Ohio EPA's regulatory authority over nonpoint source pollution such as farming and the construction industry; and (3) debate between regulated commimity, environmental groups and Ohio EPA staff over what constitutes data quality and level of rigor in models of water pollution. The structure of TMDL science is emerging as controversies are settled over what constitutes science, how science is translated into policy prescriptions determining who is responsible for water pollution, whose data is acceptable, and which models are employed. How TMDL

28 science and policy become structured in scientific and regulatory outcomes depends on which stakeholders are able to form coalitions, influence negotiations and settle controversies to their advantage. In this study I employ a broad definition of science incorporating all information that can be used in assessing risks of pollution to human health, welfare and environment (Powell 1999). In a study entitled. Science at EPA, Powell (1999) outlines four uses of science in environmental policy (p. 5-6): 1) Reality definition: Science is used to see the 'reality* of pollution because it is no longer visible in the form of smokestacks or burning rivers; 2) Agenda setting: Science is used to promote an environmental problem on a agency’s agenda, and it is also used by environmental organizations to draw public attention to specific problems; 3) Setting the terms of the debate: Science is used to define a problem and to narrow the set of alternatives. Framing a problem as scientific rather than an issue of justice or values, or in terms of costs/benefits, effectively delimits the potential policy conflicts and acts to exclude those who are not scientific experts; and 4) Political weapon: Science is used to legitimate or undermine policy choices. Actors use science (or alternatively turn to legal, environmental justice, or values) as the basis for decision-making, often switching between justifications to reach a desired outcome.

2.4.2 Public Distrust of Science The public dissatisfaction with the use of science by government institutions is influencing policy formation and environmental management. Policymakers' continuous call for sound science* is based on the assumption that scientific information has the power to legitimate societal decisions with high economic and political costs. At the same time, the public has lost faith in science’s ability to 'speak truth to power* (Jasanoff 1992). Scientists and citizens increasingly recognize the intertwining of values, justice, and politics with scientific methods and findings. Beck's (1992) theory of an emerging risk society addresses the simultaneous focus on environmental and health risks and the loss o f faith in government and science's ability to alleviate those risks. Beck argues that society has shifted from an industrial society where political conflict occurred over distribution of goods to a risk society in

29 which political conflict centers on the distribution of'bads' - risks and hazards. Industrial society, caught up in the discourses of progress and modernization, ignored the health impacts and environmental degradation from industrialization. The current risk society recognizes the limits of science to mitigate negative health and environmental impacts of development. Risk has become the pivot point of social organization in which knowledge is key and the stakeholders struggle to define risk is crucial (Beck 1992; Ward 1996). Ward (1996) studied the emergence of a 'new politics of pollution' in the UK. The case study illustrates how a more open regime of policy and available scientific information has resulted in new groups of political actors. A recently formed organization of surfers was able to use scientific information to pressure government into protecting their health and the quality of coastal waters against sewage pollution. The case study illustrates the critical reflexivity* concept in practice, in which citizens are less constrained by institutions that shape the process of modernization and are critical of the traditional expert systems used to form policy. Critical reflexivity allows the public to question the assumptions o f science and expert systems (Beck 1992; Ward 1996; Demeritt 1998). This critical reflexive approach opens up the black box of scientific practices and questions the application and interpretation of science for policy decisions. In this study, I trace the opening up of science through the TMDL policy formation process and stakeholders debates over science and regulation. The creation of the TMDL External Advisory Group allowed stakeholders unprecedented access to Ohio EPA's policy formation process and scientific practices. Stakeholder groups have utilized this opening up of the process to critique and shape the scientific practices used by Ohio EPA.

2.4.3 Social Constructions of Science Scientists and the public have become increasingly aware of the "socially constructed nature of scientific reality and the intermingling of facts and values in disputes arising at the frontiers of science" (Jasanoff, 1990: vii). To examine the social and political embeddedness of what is perceived to be 'science-based regulations', it is necessary to make the process of scientific investigation transparent. Scientists have

30 delved into the deconstruction o f the scientific process to observe the moment when controversies are resolved and methods are woven into a normalized regulatory process (Hajer 1995; Kuhn 1962; Latour 1987). In order to study interactions between science, technology and society, it is necessary to observe scientists in action. In this case, 'science in action' examined in this study is the process o f TMDL policy formation, stakeholder participation and negotiations with Ohio EPA, and the settling of controversies over data and models that lead to a finalized science for TMDL regulation. Conventional views of science see it as a "progressively more accurate explanation of a real, independent, and pre-existing natural world (Demeritt 1998: 174)." Social studies of science focus on the social validation of scientific methods and findings rather than its measure against an independent reality. Social studies of science (and social construction of nature) theories have been criticized on the basis that social constructivists deny the existence of material reaUty. This is a spurious characterization that glosses over the critical contributions of social constructivism approaches. Social constructivism is concerned with the close relations between science, social power and legitimacy. While a renewed interest in constructivism approaches has been taken in social science, the constructivist accounts of science are not new. In addition to his well-known paradigm shift model in The Structure o f Scientific Revolutions (1962), Kuhn made notable contributions to understanding the epistemology and sociology of science. First, Kuhn criticized the positivist science that advocated the separation of facts from values. Second, like popular social constructions of science, Kuhn rejected the idea that science is progressing toward a more accurate representation of truth as it goes through paradigm shifts. He claimed that scientific knowledge is constitutive of the scientific community and vice versa, recognizing that facts and theories cannot be separated from their social production (Kuhn 1962). Social construction of science asks relevant questions about the public trust and scientific credibility: "What makes some knowledge scientific? Why is science preferred over other ways o f knowing and relating to nature? (Demeritt 1998: 175)." It is concerned about the role of science in society: How is the work of producing.

31 stabilizing and using scientific knowledge connected to society’s efforts to create and maintain civility, order and rule of law (Jasanoff 1999b)? Social constructivism as used in this study explores how nature, the material reality 'out there', is configured and represented by science and to what effect. I combine the content of science with the social context in which science is produced, and actively used (Latour 1987). The availability of scientific information, such as water quality monitoring data, has opened up the scientific process used by Ohio EPA. Actors engaged in policy processes have access to how scientific information is collected and used in regulatory decisions. Discursive representations of science are used by stakeholder groups to refute scientific claims made by Ohio EPA, this is what Demeritt (2001) calls the "downstream" social influence on science. In addition I am concerned with how actors (or stakeholders) define science that is used in water policy and management decisions and how they use discursive renderings of science to influence regulation. Stakeholders engaged in the TMDL process are influencing science at the "upstream" end as well. This is the place where politics, cultural understandings, social commitments, and power relations are built into technical practices of science (Demeritt 2001: 309). Schneider (2001), in a critic of Demeritt's article on the social construction of global warming science calls for detailed, empirical investigations into the manner in which science is socially and politically determined. He challenges social constructivists to go beyond "platitudes about values embedded in science" to address how the social and political influence resulted in science that is different than it would have been otherwise (Schneider 2001: 343). This study of the social construction of scientific practices under TMDL policy attempts to meet the demands of Schneider's challenge to express the exact moments when the scientific practices of measuring and modeling water quality are socially and politically shaped. The assumptions, values, and framing of water quality problems by stakeholders translate into the scientific techniques employed to measure water quality. These socially and politically determined scientific practices lead to what pollution is identified, who is targeted as a source of that pollution, and how regulation is implemented.

32 Under conditions of uncertain facts and contested regulatory targets, social studies of science and technology point to important policy coalitions formed over scientific practices. Stakeholders create narratives over the role of science in order to influence water quality modeling and who is regulated. These theoretical approaches recognize that scientific practice is constituted by the social context in which it emerges. Different forms of science may emerge from different social and economic conditions. The creation of scientific discourses brings diverse stakeholders into coalitions that mobilize power to influence the methods and models of TMDL development. At stake in the science of TMDL development is which data and models are employed in water quality assessment. The decisions made over data impact model outputs, which are in turn used to determine who is responsible for water pollution.

2.5 Discourse Coalitions over Policy and Science In analyzing the use o f discourse narratives and the formation and fragmentation of stakeholder coalitions over water quality regulation under TMDL policy, I employ discourse analysis to elucidate the ways in which stakeholder groups are drawn into coalitions over what is causing water pollution and who should be regulated. In addition, stakeholders employ different narratives about the role o f science in regulation in order to influence policy formation and regulatory outcomes.

2.5.1 Stakeholder Research in Geography In this study, the terms stakeholder, actor, and interest group are used interchangeably to refer to the individuals or groups active in Ohio’s water quality management and policy formation. These groups include industrial and municipal point sources, construction and homebuilders, environmental groups, agriculture and forestry representatives, and representatives from government agencies involved in environmental management, including Ohio EPA. However, this terminology is not unproblematic. The terms have been criticized because they imply that each group has equal access to the policy formation process. The term stakeholder may gloss over the differential power

33 held by interested parties involved in policy formation and environmental management decisions. In geography, research investigating stakeholder perspectives, attitudes, and actions on complex issues of environmental protection and regulation date back to Gilbert White and his work on water resource development in the 1960s. I review the major contributions o f White's work and how this study draws on his contributions and additional theoretical frameworks to investigate stakeholder differences and influence on policy formation and scientific practice. The human-environment tradition in geography was strongly influenced by human ecology or natural hazards research in the discipline. In the 1950's and I960's Gilbert White at the University of Chicago researched stakeholder actions and their influence on policy. His research focused on human reaction to floods, and other natural hazard events (Kates and Burton 1986; Zimmerer 1996a). His work in environmental management and river basin development had a large impact on studies of water management and human-environment interactions. Empirical observations by White showed that people behave rationally but within the constraints of their situation, and subject to socialization and cultural influences (Johnston, Gregory et al. 2000). This approach formed the basis for behavioral geography’s reaction against the rational, profit- maximizing decision-maker that was the basis of many geographic and economic investigations (Emel and Peet 1989). From the tradition of hazards research, studies of human-environment relations have examined the social context of individual's use and control of natural resources. In 1966, White wrote a seminal piece on environmental perception concerning the relation between attitudes, values and behavior and the relation between individual and public actions in managing natural resources (Kates and Burton 1986). White asked several questions about the attitudes of actors in the decision making process. He recognized that the perceptions and attitudes of policy actors were influential in framing issues in particular ways and used to influence public decisions. White advised researchers to describe networks of decision-making in environmental management to reveal power

34 relations at work. This approach is evident today in work by Latour (1993) and other scientists studying the social and power dimensions of scientific practice. White cautioned researchers on several aspects of studying human perceptions of the environment. First White advised against a standard definition of environmental quality "there can be no thoroughly objective perception of the environment, only degrees of distortion which are minimized in rigorous scientific description (Kates and Burton 1986: 225)." Second, he suggested doing away with the natural-social distinction ".. .it is important to remember that what commonly is called natural environment has meaning solely in a social setting.. .(225)". Thirdly, White advised against the convenient dichotomy between rational and irrational behavior to explain human use of the environment. Degradation of natural resources cannot be explained by the irrational behavior of individuals. He suggested abandoning early claims to rationality and "look at the way in which living people behave (226)." Recently, geographers working in the area of regulation and regime theory have examined the role of interest (stakeholder) groups in influencing political and environmental regulatory outcomes (Steinberg and Clark 1999; Feldman and Jonas 2000; Bridge and McManus 2000). These studies address stakeholder actions through a reconstructed urban regime theory approach, incorporating stakeholder actions into urban regime politics and discursive practices surrounding regulation (Bakker 2000; McCann 2001). The emergence of new coalitions of actors are not neutral outcomes, some groups will benefit while others will lose (Flynn and Marsden 1995). These coalitions exert influence on policy formation and scientific practice and produce direct impacts on water quality outcomes.

2.5.2 Discourse Analysis Environmental problems are inter-discursive problems, meaning they are comprised of elements fi’om different discourse positions, both physical and social science. To understand environmental problems, one must draw on ecological principles, social contributions to the problem, and the impact of the problem on social, political and economic factors. In resolving controversy within inter-discursive problems, it is

35 necessary for actors to employ narratives that combine elements from different discourse domains (Hajer 1995). Discourse is defined as "a specific ensemble o f ideas, concepts, and categorizations that are produced, reproduced and transformed in a particular set of practices and through which meaning is given to physical and social reality (Hajer 1995: 44)." Discourse analysis is an effective means of studying power structures through the rules and conventions that govern society are constantly reproduced and reconfirmed through actions. Discourse analysis looks for politics in new locations, at the activity of the actor (Latour 1993; Hajer 1995). It is at the level o f language, policy action, and the interaction between actors that political coalitions are formed. The political conflict within environmental policy is centered around the struggle over access to natural resources. In the political arena there are various definitions and perceptions of what the problem 'really is’. The definition given to a problem renders some aspects of social and physical reality as valid, while other aspects are dismissed. Discourse analysis examines how problems are represented, differences are struggled over and resolved and how coalitions emerge over specific meanings. In this study I trace how each stakeholder coalition comes to a specific understanding of the causes of water quality problems. These narratives or discourses gain dominance among specific actors and are seen as authoritative, while other understandings of the problem are 'discredited' (Hajer 1995). Building on this work, a reconstructed regime approach reveals the causal links between formation and fragmentation of coalitions of actors and larger structures of social and economic processes at work in regulation (Lauria 1997; Feldman and Jonas 2000). A common focus in both theories is on the emergence and decline of systems of governance and the role of coalitions, social practices and norms in economic and environmental regulation (Lauria 1997). Using regime and regulation theory aids in understanding the economic and regulatory conditions under which stakeholder discourse coalitions fragment and coalesce under TMDL policy.

36 2.6 Research Questions How can we theorize the intersecting roles of state, stakeholders and scientific practice under TMDL policy? Under a broadly conceptualized political ecology framework, I employ regulation and regime theory, social studies of science, and discourse coalitions to guide my investigation of the emerging Total Maximum Daily Load policy. Drawing on regulation and urban regime approaches as an entry point, I trace the emergence of a local environmental policy in the context of a new regulatory regime for water quality management. This approach uses multiples lines of evidence to trace linkages between social, political and physical processes. I am concerned here with the new structure of policy formation and delineating scientific practices under a changing political economy, and the outcomes of these changes on actors and water quality in Ohio. The emergence of TMDL policy is not a natural progression from having addressed the most toxic and obvious sources of pollution and now turning to the less visible nonpoint sources of pollution. TMDLs are not solely a product of science progressing in geographic information systems and the ability to model complex nonpoint source pollution. Likewise, changes in policy cannot be wholly attributed to the rise of a powerful environmental community that is dominating policy formation. All of these have influenced the present policy and science context, but are not sufficient to explain TMDL emergence. Rather, TMDL policy is a product of decentralizing environmental regulation under conditions of a restructuring political economy. The restructuring creates new political conditions that have altered the power of interest groups. These stakeholders utilize narratives of cause and responsibility to forge new coalitions to influence policy and scientific practice. A changing regime of environmental management is producing new roles for stakeholders and science in environmental policy. Employing regime and regulation theory to TMDL policy leads to an examination of environmental policy formation in the context of shifting economies. It extends the approach of traditional policy studies that focused on elite actors or pluralistic stakeholder processes to include a larger range of

37 interest groups and spatial scales and recognize the differential power relations between actors. Under regime theory, I examine the state and non-state actors engaged in policy formation and the economic and environmental power that they bring to the policy arena. From this approach, I ask the following research questions: 1. What is significant about TMDL policy? Why has it emerged in the 1990's, nearly years after it was written in the Clean Water Act? What is the social, political, and economic context of TMDL policy emergence? What has led to TMDL implementation in Ohio?

To understand the complexity of stakeholder actions, particularly in how coherence is created through discourse and coalitions, it is necessary to examine the use of narratives and how they are deployed by powerful actors to define a problem and its solutions. This is employed by analyzing the ways individuals and groups represent problems, how differences are negotiated and resolved, and coalitions on specific meanings emerge. Emergent discourses that define environmental policy problems may alter how individuals perceive the problem and its solutions, creating space for the formation of new, unexpected political coalitions (Hajer 1995). In examining the role of stakeholders in TMDL policy formation and scientific practice, I am concerned with the following research questions:

2. What role does science play in the formation of policy and regulation? What are the uncertain and discretionary moments in water quality science?

3. How do stakeholder groups differ over what is causing water pollution and who should be held responsible? What are the scientific narratives deployed by stakeholders to influence regulatory outcomes?

4. Are new coalitions of stakeholders formed around discursive representations of policy and science? How do these groups differ from existing coalitions on issues of development and economic growth? How do they influence policy formation? How do they influence scientific practices?

Political economic restructuring is leading to shifting power relations among actors in the policy process resulting in new, emergent coalitions of actors over science, policy, and regulation. In turn, changes in the political economy and shifting relations of 38 power among stakeholders are leading to new methods of water quaUty assessment and scientific practice. A broadly defined political ecology framework is used as the basis for investigating policy formation, scientific practices, and stakeholder coalitions engaged in the regulation of water quality. The study draws on recent emergent themes in political ecology focused on political economic approaches, critical social studies of science, and discourse analysis of narratives of science and policy. I focus on TMDL policy formation in the context of a changing regime of environmental regulation and governance to elucidate the manner in which stakeholder coalitions are fragmenting and coalescing over economic and environmental regulation. In the next chapter I address the methodology and techniques of data collection that were used to address the research questions posed in this study.

39 CHAPTERS

METHODOLOGY

3.1 Introduction I trace Total Maximum Daily Load (TMDL) through three areas of policy and management: 1) Policy Formation, 2) Scientific Practice, and 3) Stakeholder Coalitions and Participation. Chapter two outlined the theoretical approach and questions that guide this research. This chapter focuses on the specific techniques employed to answer the primary research questions: Why have TMDLs emerged now, nearly thirty years after they were written into the Clean Water Act? How do stakeholders influence policy formation? How is scientific practice being altered by stakeholders? How are coalitions of stakeholders fragmenting and coalescing over the economic and political issues of water quality regulation? The decentralization of regulation from federal to state and local governments has prompted the emergence of Total Maximum Daily Load policy that approaches management from a watershed-scale, water quality-based approach to cleaning up polluted waters. Economic shifts from industrial manufacturing toward service sector activities and suburban development are shifting the sources of pollution from point sources to nonpoint sources. The science of water quality regulation is shifting to meet the challenges o f monitoring and modeling these diffrise pollution sources. In addition the management process increasingly incorporates public involvement in policy formation and regulation. This research addresses all of these changes: economic, scientific and political, that are altering the regulation of water quality and economic development in Ohio. First, I address each policy and science arena, outlining approaches, questions and how methods were employed to answer those questions. Next I turn to each of the four

40 specific methodologies in more detail: participant observation, formal survey, interviews, and Q method. In conclusion I discuss the use of the extended case method to translate the specifics of this case to broader conclusions about economics, environmental regulation and the role of stakeholders in policy formation.

3.2 Water Resource Policy Formation TMDL policy has its origins in Section 303(d) of the 1972 Clean Water Act (CWA), although TMDL policy has only emerged recently as a result of litigation by environmental interest groups. These groups have shifted their focus from industrial point source pollution toward nonpoint source pollution and see the TMDL component of the CWA as a mechanism for regulating nonpoint sources. What has facilitated the emergence of TMDL policy in Ohio and across the United States? In order to trace the emergence of TMDL policy, I employed secondary sources of congressional records and legislative histories to outline the origins of the TMDL policy in the CWA. Second, I analyzed court cases where litigation has been brought over non-enforcement of Section 303(d) of the CWA. Third, I rely on data gathered from key informant interviews to explicate the influence of stakeholders and to trace the emergence of TMDL policy. The data gathered from these primary and secondary sources provided information on historical and national scale background, and the local context necessary for examining the emergence of TMDL policy in Ohio. Critical to shaping TMDL policy in Ohio was the creation of the Ohio EPA Internal TMDL development group and the TMDL External Advisory Group, a group of stakeholders convened to advise Ohio EPA on implementation of their TMDL program. In order to trace changes in Ohio’s water resource policy, I conducted in-depth interviews with key informants involved in water resource policy decisions in Ohio, both government agency employees and members of the commimity. The open-ended, semi­ structured interviews focused on collecting information about changes in Ohio’s water policy since the 1972 Clean Water Act as well as questions about the process of policy formation, and the role of interest groups in shaping that policy. The information gathered has been used to outline the emergence TMDL policy, and trace the history of ambient water quality based approaches to regulation. 40 3.2.1 Scientific Practice The methods used in water quality assessment influence: the type o f pollution identified (e.g. point source versus nonpoint source); who is targeted as the source of that pollution (industrial point source or agricultural runoff); and where and how that regulation is put into practice. The hypothesis driving this inquiry into scientific practice is that stakeholders help determine the methods of measurement and modeling of water quality, and thus influence regulation outcomes. The research findings fi-om this study indicate that stakeholders enter the scientific arena at moments where the science is uncertain or discretionary. Narratives about the role of science and who should be held responsible are employed by stakeholders to be able to influence scientific practices. In order to delineate the scientific process at Ohio EPA I engaged in participant observation, consulted secondary documents and technical bulletins, and collected in- depth interviews fi-om Ohio EPA scientific staff. In addition I interviewed stakeholders who are knowledgeable about the scientific practices at Ohio EPA, including the regulated community, environmentalists, academic researchers and technical consultants. From these primary sources, and with the addition of secondary data, I was able to outline the scientific process of water quality measurement and point to the uncertain and discretionary moments in the science of TMDL implementation. An important result of this analysis is an explicit examination of the moments when interest groups shape scientific practice in order to target specific sources of pollution.

3.2.2 Public Participation and Mobilizing of Discourse Coalitions Local stakeholder interest groups influence policy formation, scientific practices and the enforcement of regulations, resulting in particular spatial configurations of regulation and water quality impacts. The post-industrial economic changes in Ohio have resulted in shifts in power relations between interest groups. The political dominance of pro-growth development and construction industry has altered the traditional power held by the agriculture and industrial community. An early hypothesis in this research was that the decline of industry, and rise in subiuban land development interests, has lead to the rise of a middle-class, consumer-based environmental movement that is targeting agricultural sources over other nonpoint sources of pollution. However, results revealed 41 that this hypothesis may not accurately capture what is happening in Ohio's political economy. Environmentalists who recognize the continued power of the agriculture lobby to avoid or compromise regulation do not always target agriculture. Data analysis reveals that there is a more complicated picture of targeting sources for regulation and that stakeholder groups have formed alliances over who should be held responsible. It is largely the regulated community comprised of point sources and development/construction who target agriculture sources, while the environmentalists, government representatives and farmers/foresters have allied around targeting suburban development and construction, and urban stormwater sources. There are five primary interest groups operating in TMDL policy in Ohio: environmental community; agriculture; industrial and manufacturing groups; government staff and managers; and land developers (real estate and homebuilders associations). These five groups have traditionally relied on lobbying and political campaign contributions to influence policy events. In the case of TMDLs, the threat of litigation from environmental groups has forced state water quality agencies to place TMDLs as a high priority and implement TMDL programs. The increased attention to nonpoint sources, the changing landscape of economic and environmental regulation has shifted how these stakeholder groups are allied into coalitions. Representatives fi’om each of the five stakeholder interest groups (agriculture, industry/business, land developers, government employees and environmental groups) were queried through both qualitative and quantitative methods (interviews, survey and Q-method) to assess: 1) the changing relations between stakeholders, 2) how stakeholders view the science and cause of water quality problems, and 3) discourses mobilized by new coalitions of stakeholders that TMDL policy is creating. The individuals were selected fi’om Ohio EPA’s External Advisory Group (EAG) on TMDLs, key informants active in Ohio's water resource management, and government staff and management.

3.3 Methods In the next section, I review each of the four major data collection methods employed in this research: participant observation, formal survey instrument, interviews and Q-method. I address sampling, data collection, and analysis for each of these 42 methods. The mix of quantitative and qualitative approaches emerged from the theoretical need to understand the emergence of TMDL policy, the new context for environmental and economic regulation, and the role o f stakeholders in shaping the science of water quality regulation in order to effect desired regulatory outcomes. The findings from the qualitative methods o f participant observation and interviews are triangulated against the quantitative methods, the survey instrument and Q method. Each type o f methodology provides a unique line of sight to explicate the situation under study. Quantitative and qualitative methods supply different types of information about a phenomenon. The quantitative data provides a numerical count using researcher defined categories and questions, while the qualitative methods explore the "meanings, concepts, definitions, characteristics, metaphors, symbols and descriptions of things (Berg 1995: 3)." Qualitative techniques are concerned with how individuals in various social settings make sense of their surroundings through symbols, social structures, and social roles (Berg 1995). Qualitative methods access the unquantifiable facts about the people and the social situation. In the results of this study the multiple methods employed provide a check on the conclusions and theorizations drawn from each single method. While the data gathered have reinforced the conclusions drawn, each method also offered a different perspective or a different insight into the context of TMDL policy.

3.3.1 Participant Observation Participant observation research was conducted during two phases of research on water quality policy and management in Ohio. The first phase took place during a 15- month internship at the Ohio EPA Division of Surface Water between April 1998 and July 1999. My responsibilities included creating a GIS and Water Resources Online Tutorial for the Geographic Information Systems Unit, creating web pages, and making maps to communicate water quality standards. During the internship, I was invited to participate in the meetings of the Internal TMDL Team charged with establishing the Division of Surface Water TMDL program (the Ohio EPA TMDL Team is discussed in Chapter 5). I was able to observe the Ohio EPA TMDL Team's meetings over the course

43 of the internship. The experience was valuable for learning many intricacies about the TMDL policy and scientific process as well as establishing trust and rapport with Ohio EPA staff and management. The second phase o f participant observation research took place during the 18- month stakeholder process, the External Advisory Group on Total Maximum Daily Loads. The group is comprised of representatives from the environmental community, industry and business, agriculture, forestry, Ohio EPA and other government agencies related to water quality. Through attendance at the TMDL EAG meetings I was able to observe interactions, conflicts, and negotiations between stakeholders. I attended the meetings of the Implementation-Regulatory subgroup concerned with regulatory authority of Ohio EPA under the TMDL program, and in particular the regulatory authority over nonpoint source pollution. The subgroup was jointly chaired by representatives from the environmental community and the construction industry, and contained a diversity of interests representing government agencies, agriculture, regulated entities, and forestry. Field notes and documents collected during these meetings contributed to this research.

3.3.2 Survey Data Collection A formal survey instrument was administered at the March 2000 TMDL External Advisory Group (EAG) meeting'. The survey instrument asked stakeholders about their views on the causes and sources of water quality problems, TMDL policy, regulation of specific groups, and the science of water quality management. The survey consisted of a variety of question styles including ranking and likert-scale questions reflecting six categories: Agree Strongly, Agree, Agree Slightly, Disagree Slightly, Disagree, and Disagree Strongly. Respondents were forced to choose between 3 levels of agreement and 3 levels of disagreement, there was no neutral category provided. In addition, respondents were asked demographic questions regarding age, sex, ethnicity, education.

' The March 2000 meetiiig was the last of the "working" meetings of the TMDL EAG and four months before the final meeting between Ohio EPA Director Chris Jones and the TMDL EAG members

44 occupation and job description, income, place of residence, housing ownership, and involvement with environmental organizations (See Appendix B for survey questions). A total of 43 surveys were collected from participants in the TMDL EAG. The 43 respondents equal 46% of the 93 participants listed on the final TMDL EAG list, and represent a majority of the active population of the group. During the 18-month process, many participants on the TMDL EAG list did not maintain active participation in one of the five subgroups (Development, Listing, Implementation-Tools, Implementation- Regulatory, and Mercury). Attendance for each subgroup meeting often fell between 1/2 to 2/3 of total number of people belonging to the subgroup (Source: interviews with TMDL EAG members). One interviewee estimated that the Listing subgroup lost 20% of the original members by the end of the 18-month process. Based on participant observation and interviews, 1 estimated the active population of the TMDL EAG to fall between 50 and 70 participants. The 43 survey responses thus represent a majority of the active population during the 18-month process.

3.3.3 Interviews In-depth oral history interviews were conducted with participants in the TMDL External Advisory Group, Ohio EPA staff and management, and key informants involved in water resource quality and management in Ohio. The 52 semi-structured interviews were based on a series of questions posed to each interviewee (See Appendix A for the list of 25 questions). During the interviews, specific topics presented by each interviewee were explored through fiirther questioning. The interviewees were broken down into major stakeholder groups (see Table 3.1). This sample reflects the make up of the TMDL EAG and is representative of the range of interest groups engaged in water management and policy formation in Ohio overall. Of the 52 total interviews, 50 were conducted in person and 2 were conducted over the phone. Forty-seven interviews were recorded on cassette tape and transcribed into text format. The majority of interviews lasted between 1 and 1 and 1/2 hours in length and produced transcripts of 15 to 30 pages of single space type, each. After transcribing the interviews, the data was compiled and analyzed using the Nvivo qualitative analysis software. Each interview was coded into major categories of data 45 Number o f Stakeholder Group Interviews 16 Regulated Community 11 Ohio EPA staff and management 10 Environmental Organizations (includes national, state and local) 6 Government Agencies (other than Ohio EPA) 5 Farming/Forestry 4 Research/T echnical Total: 52

Table 3.1. Interviews by Major Stakeholder Group

reflecting the questions posed in the interview and the topics raised by interviewees. These categories included (among others); causes and sources o f pollution in Ohio, regulation of sources, significance of TMDL policy and history/politics of its emergence, problems or roadblocks in TMDL implementation, potential outcome of the TMDL EAG, role of science and politics in policy formation, and views on scientific practices and confidence in models of TMDL calculations. The coding and analysis of the interview data allowed the interviewee defined categories and the full range of perspectives to be identified. Often, the opposing views held by interest groups leads to what seems an intractable problem, where no middle ground exists for compromise in policy decisions. In complex and contentious policy issues, areas of similarities and difference are not apparent. Narrative policy analysis provides a method to approach this problem. It makes explicit the areas of consensus and conflict in a specific policy issue (Roe 1994). The use of open-ended interviews allows the interviewee to tell his/her story, without the imposition of categories supplied by the interviewer (Lofland and Lofland 1995). However, a drawback of this method is that it produces a multiplicity of views and

46 perspectives on the TMDL process. In order to analyze the data produced by the interviews and to triangulate the conclusions drawn, I employed Q method.

3.3.4 Q-Method In this research I pose the questions how do stakeholders perceive the science of water quality problems? How does a casual narrative of science held by stakeholders impact who is targeted for regulation? Q method offers a quantitative tool to assess stakeholders’ perception of science and formation of TMDL policy. Q method is useful because it uncovers "what people make of a particular issue or topic-their opinions, judgments, understandings, and so on-which are recognized as reflecting the cultural, social, and historical contexts in which this knowledge is constructed" (Stainton Rogers 1998: 6). Q method combines the inclusiveness of qualitative methods (it relies on interview data or content analysis) with the statistical rigor of quantitative methods. The goal of employing Q method in this study is to discover the range of perspectives operating about science and participation in the TMDL process. It captures the subjectivity of a person's point of view or the framework that a person employs to make sense of the world around them. Q method captures a person's communication of his or her point of view and in this way avoids the imposition of the researcher's frame of reference (Addams and Proops 2000). The analysis in Q method consists of correlation and factoring of persons, not tests or traits, across the range of perspectives represented. From the transcribed interviews, discrete problem statements were selected that described a causal relation between components of the TMDL issue. The quotes were selected to represent the divergent views on the role of science in TMDL implementation, participation by stakeholders in policy and science, and what causes and sources of pollution were being identified. A representative set of problem statements were chosen and returned to a sub­ sample of key informants. I selected a sample of 23 statements from in-depth interviews expressing relevant perceptions of science and participation in TMDL policy. Respondents, a sub-sample of 20 from the 52 in-depth interviews, were asked to rank order the statements based on how closely those statements reflect their perceptions. They were asked to rank the problem statements according to those that they most agree 47 with and those with which they most disagree (see Chapter 8 for a complete description of data collection and analysis). Q method is less concerned with how many people believe a tested concept or perception, but "why and how they believe what they do (van Eeten 2000: 45)." The sample of key informants was chosen based on reflecting the range of stakeholder groups, and the range of opinion that exists over TMDL science and policy. The results of the rank order are correlated to reveal points-of-view and internally consistent schemes o f relational claims' about the issue tested (Robbins and Krueger 2000). The results of the statement rankings were subjected to factor analysis using PC Q Method software. The factor analysis aggregated across individuals and analyzed for commonly identified problems and a network of causal relationships. This procedure allows individuals to be grouped according to commonly held problem statements, regardless o f which interest group they are formally identified with. The method allows areas of consensus and common approaches to be identified that would otherwise remain hidden under the interest group affiliation. The combined methodology of in-depth interviews and the quantitative Q method provided the necessary information to reflect the range of perspectives operating in the TMDL policy process in Ohio. This research made evident the interactions between the policy process, science, and interest groups in forming water resource policy and science for the TMDL program.

3.4 Grounded Theory and the Extended Case Method The connection between techniques, data collection and theory was based on an iterative approach that has its origins in grounded theory. Grounded theory represents theory that is inductively derived from the phenomena under study (Strauss and Corbin 1990). One begins with an area of study and then the relevant components are allowed to emerge through data collection. However, this research began with some initial theoretical direction and assumptions, and then proceeded on an iterative basis where the data collected was used to revise initial hypotheses and to focus methods on the relevant, emergent causal factors.

48 In translating the findings of this study on the emergence of TMDL policy in Ohio to larger theoretical insights and revisions, 1 relied on the extended case method (Burawoy 1998). The extended case method explicates the link between the small-scale case study and the larger setting by situating the social setting in terms of the particular external forces that shape it (Burawoy 1991). The extended case method is able to generalize through reconstructing theory that guides research. The investigator looks outside the immediate situation to call on broader economic and political driving forces that are operating on the local situation. The emergence of TMDL policy in Ohio was contingent upon concurrent processes operating among the local level stakeholders and state agencies, and the larger context o f economic and political forces. The context of economic, political, and environmental factors at the local level is important as well as larger scale changes in the post-industrial economy and environmental regulation. This chapter outlined four methods of data collection and the methodology of linking the data to theoretical insights and generalizations through grounded theory and the extended case method. The study combines several qualitative and quantitative methods that resulted in diverse measures of the science and politics of TMDL policy. In addition, the variety of methods provided triangulation between the findings and conclusions drawn from any single data collection and analysis.

49 CHAPTER 4

ORIGINS OF TOTAL MAXIMUM DAILY LOAD POLICY: THE CLEAN WATER ACT AND LITIGATION

4.1 Introduction Total Maximum Daily Loads (TMDL) are contained in Section 303(d) of the 1972 Federal Water Pollution Control Act (commonly known as the Clean Water Act). Not widely known nor implemented for nearly twenty years, it was litigation in the 1980's and I990's that pushed TMDLs to the forefront o f United States' water resource policy. Now, state water quality agencies are struggling to implement TMDL programs under court order or consent agreements, and some states such as Georgia and Idaho have very short time schedules to comply. Other states, including Ohio, have implemented TMDL programs as a result of environmental stakeholder pressures and the threat of litigation. In tracing the evolution of TMDL policy and its emergence in the I990's, I address the following research questions. Why has TMDL policy emerged now, nearly thirty years after it was written into law? Who are the stakeholders bringing litigation over TMDL policy? What is the impact of the litigation in policy formation? And what is the impact of a return to an ambient water-quality approach on regulation and scientific practice? Water quality-based standards and an ambient water quality approach to management has had changing meanings and changing allies. Since 1972, EPA's regulation of water quality has focused on 'technology-based' effluent guidelines for industrial sectors. Regulation based on an ambient, water quality-based approach has taken secondary priority in surface water program. The ambient water quality standard is based on health or ecological criteria and dependent on state determined designated-use

50 categories for the receiving water body (see Chapter 6 for full description) (Powell, 1999). The states and industry interests strongly advocated against federal standards and best available technology (BAT) controls for point source discharges, arguing the regulation of water quality should be left to the states. In the end, they were largely defeated by the overwhelming emphasis of the Clean Water Act on federal oversight and technology-based controls. The states did retain a small modicum of state control and an ambient, water quality-based program in Section 303 of the 1972 Act. Then, over the next thirty years, states refused to implement TMDL policy. Section 303(d) was revived by numerous lawsuits suing state agencies and the US EPA for non-compliance with the Clean Water Act. The lawsuits were brought by local environmental groups, backed by resources from national environmental organizations and joined by sports and hunting groups that forced water quality agencies to implement TMDL programs and to address the remaining point and nonpoint source pollution degrading water quality. In reviewing the legislation and litigation surrounding TMDL policy, I address the question, how has the meaning of water quality-based programs changed since 1972 and who are the interests supporting it now? First, this chapter provides an overview of Federal water quality legislation tracing the origin of TMDL policy in the Clean Water Act (CWA). The history of the 1972 CWA illustrates the political battles that were fought over state versus federal control and the future direction of water quality management. TMDL policy is emerging in the context of a new regime of water quality management that is decentralized from federal to state agencies and increasingly involves stakeholders in determining policy and scientific practices. Next, I turn to the major cases of litigation over TMDL policy that has brought TMDLs to the attention of US Environmental Protection Agency (EPA) and state water quality agencies. After the onslaught of lawsuits, the EPA, in an effort to avoid further litigation began to take actions on the TMDL program including the convening of a Federal Advisory Committee on TMDLs and writing regulations to guide state implementation. In conclusion, I link the return to water-quality based management to changing goals of regulation and the resultant new methods of water quality science.

51 4.2 Clean Water Act: Historical Background The Federal Water Pollution Control Act Amendments of 1972, commonly known as the Clean Water Act, represented a new direction in water quality management and pollution abatement measures (Federal Water Pollution Control Act Amendments, FWPCA 1972). The legislation marked a turning away from state programs based on water-quality standards and a move toward increased federal guidelines and oversight guided by technology-based pollution control. However, it was not a total eclipse of water quality-based approaches. Section 303 o f the 1972 Amendments (FWPCA 1972) retained water quality-based standards and an explicit method of employing them through Total Maximum Daily Loads (TMDL). This section of the chapter includes a brief overview of the history of federal water quality legislation and the debates over the 1972 Amendments.

4.2.1 Federal Water Quality Legislation Prior to the 1972 Amendments, the federal government recognized the primacy of states rights to set water quality standards and to enforce them. Federal water resource legislation dates back to the Rivers and Harbors Act of 1899 (Rivers and Harbors Act 1899). The 1899 Act secured navigation in interstate waters by prohibiting the placement of bridges and structures in waterways and also prohibited the dumping of ‘refuse matter’ without a permit from the Army Corps o f Engineers (Evans 1994). This was the first federal legislation applied to interstate waters to protect commerce between the states. The bulk o f water quality management remained under state and local water pollution laws, often resulting in uneven quality and continued water pollution problems. The Federal Water Pollution Control Act of 1948 (FWPCA 1948) was the first federal legislation dealing directly with water quality. The 1948 law provided states with funding for state and municipal pollution control, oversight of interstate waters by the Surgeon General’s office and abatement for interstate pollution if it reached the level of public nuisance’ (Houck 1997a). Amendments to the act in 1956 (FWPCA 1956) continued state leadership, but the federal government provided funding, technical assistance to locally based programs and enforcement backup (Lieber 1975). Industrial 52 dischargers were becoming nervous over continued federal involvement in water pollution control. During the 1956 congressional debates, amendments authorizing federal water quality standards for interstate waters were rejected on the grounds that states were already using standards and that federal standards would only confuse the issue and intrude on state authority (Houck 1997a). Amendments to the FWPCA of 1965 (Water Quality Act 1965) first put water- quality based standards into federal law. States retained authority to identify water uses for recreation, drinking, wildlife, agricultiu-e and industrial purposes and set water quality-based standards to protect those uses, subject to federal approval. If states did not adopt standards, the federal government could step in and adopt standards in their place. This provision was opposed strongly in the House on the basis that it would lead to ‘federal zoning and discoiu*age state initiative’, this tension between Federal versus State rights would continue in the 1972 Amendments and beyond. Additional measures that Congress rejected included ‘keeping waters as clean as possible’ and federal ‘effluent limits’. The legislation, with backing from the industrial commimity, explicitly recognized the use of waterways for waste assimilation purposes (Houck 1997a). The measures debated by Congress set the stage for the 1972 legislation that would include technology-based effluent limits for point source discharges. From just after World War El until 1972, water pollution was addressed through each state’s water-quality based approaches, resulting in very slow progress for cleaning up polluted waterways'. The 1965 legislation was ineffective because it was difficult to determine when a discharge violated standards and was burdened by ‘cumbersome enforcement mechanisms’ (Evans 1994). The states were unable to make progress because they were ineffective in linking water quality standards to actually reducing pollution levels in rivers and streams (Evans 1994; Gallagher and Miller 1996; Houck 1997a).

' Additional amendments to the FWPCA were passed in 1961 and 1966 expanding federal funding for state programs and sewage treatment plants, and again in 1970 for expanding discharge o f pollution from vessels and shore facilities (see Lieber 1975). 53 4.2.2 1972 Clean Water Act

In October 1972 the United States Congress passed the Federal Water Pollution Control Act Amendments (FWPCA) over the veto o f President Richard Nixon (US Senate 1973). The legislation introduced sweeping changes to the way water quality had been managed. The often-quoted objective of the Clean Water Act is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” In addition, the Clean Water Act sets a goal of eliminating the discharge of pollutants, sets a goal for water quality that “provides for the protection and propagation of fish, shellfish and wildlife and provides for recreation in and on the water” and prohibits the discharge of “toxic pollutants in toxic amounts”(FWPCA 1972). These goals are not legally binding, but have been used by the US Environmental Protection Agency (US EPA) and courts to establish the intent of Congress in writing the Clean Water Act legislation (Gallagher and Miller 1996). The objective and goals are important to authorizing Total Maximum Daily Load implementation, establishing authority over nonpoint source pollution, and the application of water pollution control measures for ecosystem health goals such as the protection of habitat and aquatic life uses. The large goals of eliminating pollutant discharges, and restoring clean water, not just for human use but also for ecosystem health, outlines the comprehensive nature of the 1972 Clean Water Act to address all sources of pollution in order to attain water quality that is "fishable and swimmable". Under the 1972 Amendments, EPA was authorized to set national effluent standards, industry by industry, based on the ‘best available technology’ and financial costs (Gallagher and Miller 1996). These technology-based effluent guidelines were subject to more stringent controls in cases where they were insufficient to protect water quality. Subsequent amendments to the Clean Water Act in 1977 and 1987, promulgated by environmental organizations and challenges in court, helped to focus efforts on toxic pollutants and added Section 319 which provided funding for voluntary approaches to reducing nonpoint source pollution. The National Pollutant Discharge Elimination System (NPDES) set specific effluent limits for industrial dischargers. These programs

54 were to be administered by states only after EPA authorization of state programs^. NPDES permits were crucial to the success of the 1972 amendments in cleaning up polluted waterways because they provided a necessary enforcement mechanism, a safeguard that had not been part of previous state water quality-based management. The Clean Water Act, in its current form, contains the following important regulatory tools and mechanisms for cleaning up and protecting water quality (Gallagher and Miller 1996:6):

• A prohibition of discharges, except as in compliance with the Act (Section 301) • A permit program to authorize and regulate certain discharges (Section 402) • A system for determining the limitation to be imposed on regulated direct and indirect discharges (Sections 301, 306, 307) • A process for cooperative federal/state implementation (Sections 401, 402) • A system for preventing, reporting and responding to spills (Section 311). • A permit program governing the discharge or placement of dredged or fill material into the nation’s waters (Section 404) • Strong enforcement mechanisms: Federal enforcement by civil action and financial penalties (Section 309) and authorization of Citizen Suits (Section SOS)

Notably absent from this list (as well as other overviews of the Clean Water Act) is any mention of Section 303(d) and the retaining of water quality-based standards in the Clean Water Act. Only recently recognized as an important component of the 1972 Clean Water Act, Total Maximum Daily Loads retained a simple plan for implementing water-quality based standards. It is now at the forefront of water quality management; the object of over 40 cases of legal action [US EPA, 2000] and deemed the next major step in water pollution control (Houck 1998). How did Section 303(d) become part of the 1972 Clean Water Act? The question is important considering the overwhelming emphasis of the legislation on point source discharges and technology-based pollution control. In order to answer this question, it is necessary to examine the legislative history of the 1972 Clean Water Act and specifically examine the differences that existed between the House and Senate versions of the legislation. The next section focuses on key political actors working either to strengthen

’ 40 states and territories have authorized NPDES permitting programs (For a list, see Gallagher and Miller 1996). 55 federal involvement in water quality law, or working to retain state control and water- quality based approaches. The strong position of states, industry, and most of the House of Representatives favored leaving water quality regulation at the state level based on the ambient water quality standards approach. Now, states and industry are being forced to implement the very regulations they fought to retain in 1972. The House of Representatives now strongly opposes the return to ambient water quality approach under the TMDL policy. What has changed in the last thirty years to cause this reversal in position?

4.2.3 Origins of Section 303 The 1972 Clean Water Act became law after much effort and struggle, it had been strongly debated in both the House and Senate for over two years prior to the Congressional override of President Nixon’s veto. As evidence of the complexity of the 1972 Clean Water Act provisions and deliberations, Lieber (1975) reports the Senate held 33 days of public hearings resulting in 6,400 pages o f testimony from 170 wimesses and conducted 45 executive sessions to work on the bill's detailed provisions. The House of Representatives (House) Public Works Committee held 38 days of public hearings with 294 witnesses, and the House Committee Report took 424 pages to explain the bill. The Conference to reconcile the two versions took five months. The final bill was passed with overwhelming support in both the House of Representatives by a vote of 247-23 and in the Senate by a vote o f 52-12 (Lieber 1975:7). The 1972 Amendments requiring federal effluent guidelines for point source discharges based on the ‘best available technology’ was proposed in the Senate version of the law (Lieber 1975). Opposition to increased federal oversight was centered in the House of Representatives. There, proponents of state’s rights and water-quality based approaches included many of the Representatives, state officials including governors and agency staff, water quality engineers and technocrats (local water and power board officials), a wide-spectrum of industry and finally, high level federal government administrators, including the President (Houck 1997a).

56 By its nature the House has traditionally been less environmentally concerned and more open to the influence of states and industry representatives. This is expressed by Representative Blatnik (D-Minn.) chair of the House Public Works Committee in 1972 (quoted in Lieber 1975:59): “The committee, on the whole, has been very cooperative, but they can only be pushed so far. They are all men of good intentions, but they get beat over the head by powerful interests back home. I won’t mention any names, but say somebody is from South Carolina or Georgia, and the Georgia Power Co. gets after them.. ..You can’t find finer men, or men of more integrity. But you can only go so far; as Kennedy said, politics is the art of the possible. We’ve just go a tougher problem on the House side, frankly, than they have on the Senate side.’’

Arguments presented in defense of the water-quality approach included state water pollution control managers and state governors arguing that states are the most appropriate government venue to handle the water pollution problems presented by the unique characteristics of their waterways. A group of water pollution control managers stated (quoted in Houck, 1997a: 10333): The diversity of water quality control problems existing in the United States today poses problems that are not amenable to the simple, generalized solutions that generally flow from a centralized agency. State water quality control agencies have acquired a background of information, experience and extremities in dealing with the problems of their respective areas.

Several academics also came out in favor of state water quality-based approaches. For industrial dischargers and municipal wastewater treatment plants water quality based approach avoided redundancy in government programs and for fiscal conservatives, it could done ‘within budget’. Houck (1997a), in writing about industries’ stance concluded (10334): “.. .the industry arguments in favor of water quality standards were tied so closely to its arguments against federal oversight, citizen suits, and other implementation and enforcement requirements that it is hard not to conclude that industry, like the Senate in 1972, saw water quality standards as minimally enforceable and that it was this viewpoint—rather than considerations of federalism or state expertise— that motivated industry’s full court press to retain a state water quality standards- based program. Industry knew water quality standards did not work, and that is exactly why it wanted them.”

57 The majority of the Senate, with support from a few state Governors and Representatives, saw the need for federal standards to avoid the ‘race to the bottom’ and loss of industry to states with lower standards of water quality. The Acting Chair of the House Public Works Committee, Mr. Jones, strongly stated this view during a congressional hearing, it is more representative of the Senate’s opposition to state run water quality-based programs than the sentiments of the majority of House members (quoted in Houck 1997a: 10335): We have heard from the Chamber of Commerce from the very beginning, “Don’t pass any Federal law; just let us keep it at home in the State.” So consequently, we didn’t get anything done. We left it to the States, year after year, and we didn’t get a single thing but a bunch of nursery rhymes as to the Constitution, and we didn’t get any clean water until the Federal Government insisted upon it and made some dollars available to the State for that use.

The National Farmers Union testified to congress in favor o f increased federal involvement and enforcement, a surprising move considering the farmers history of support for local control in land use planning and regulation. Houck (1997a) explains this move as farmers seeing themselves exempt from the process, and recognizing the increased federal funding that would flow to the states as a result of the Senate's proposed legislation. Today, farmers, joined by forestry operations adamantly oppose federal regulations concerning TMDL application to nonpoint sources . The Senate was very critical of state water quality programs, and was quick to point to its slow progress in cleaning up water pollution. The Senate amendments to the Federal Water Pollution Control Act contained all the elements of the present legislation including permits, technology standards, and enforcement mechanisms, except for Total Maximum Daily Loads and water quality-standards contained in Section 303. Led by the Senate, and in particular Senator Edward Muskie (D-Me), they found state water quality standards “weak, late, widely disparate, scientifically doubtful, largely unenforced, and probably unenforceable (Houck 1997a: 10335).” The environmental community had been split between the more traditional conservationists who had been active in the 1960s, and the emerging younger, more

58 radical, activist environmental groups. The latter group formed good relations with the Senate staffers who were of the same age and philosophy advocating strong, federal water pollution control. The activist environmental community did not have to respond to the same nationwide constituency as the conservationist organizations, allowing them to be more flexible and make more immediate commitments. The conservationists supported federal funding but were wary of the national standards approach, and decided to take a wait and see position to gauge how their members would react to the legislation (Lieber 1975). In the formative stages of the Clean Water Act legislation, the environmental community was split and offered no clear mandate on which direction should be taken. The two main environmental lobbies eventually joined in a coalition of citizen, labor, and environmental organizations in order to fight opposition in the House. The coalition consisted of over 25 groups including Common Cause, Environmental Action, The Environmental Policy Center, the Sierra Club, National Wildlife Federation, Izaak Walton League, United Auto Workers, and the United Steel-workers of America (Lieber 1975). In the conference to reconcile the different versions of the House and Senate bills, the heart of the debate hinged on the Senate sponsored federal effluent guidelines, permits and technology standards versus the House insistence on state water quality standards. Faced with strong and unified public support for the Senate version, the ranking Republican member of the House committee. Rep. William Harsha (R-Ohio) fought to keep the water quality-based approach in the new legislation. The Senate recognized that it would have to compromise in order to win over the House support, that concession came in the form of Section 303. In the end, the 1972 Clean Water Act resembled the Senate bill closely, except for the inclusion of Section 303 that retained water quality-based standards and Total Maximum Daily Loads (Lieber 1975; Houck 1997a). Unfortunately for the successful implementation of Section 303, Senator Muskie did not support state water quality-based approaches like the House members. He told

59 the US EPA Administrator to give Section 303 ‘secondary priority’ in assigning financial resources and staff (US Senate 1973: 171): The Administrator should assign secondary priority to this provision to the extent limited manpower and funding may require a choice between a water quality standard process and early and effective implementation of the effluent limitation- permit program. ...the primary state effort should be devoted to effective implementation of the new program and, to the extent not inconsistent, existing water quality implementation plans rather than assigning needed personnel to the added functions required under Section 303.

The US EPA and state agencies followed Senator Muskie's advice, largely ignoring the TMDL provision for over twenty years. There was an explicit administrative decision to not implement TMDL programs at the federal level and the states followed. The preceding account of the origins of Section 303(d) in the 1972 Clean Water Act demonstrates the political battle over the more toward federal standards and best available technology controls. States and industry interests had an agenda to stop the move away from state authority and water quality-based approaches to management. Water quality regulation would be in a very different position today if the states and industry had prevailed in continuing the water quality-based approach. There would not be the enforceable regulatory mechanism of permits, the degree of federal oversight of water quality standards now in place, or the backstopping measure of citizens being able to sue federal EPA when states fail to comply with CWA requirements. The water quality would undoubtedly look different as well, the CWA has resulted in large improvements in toxic and wastewater effluent under the NPDES point source permit program. Now after the successes with toxic, point source pollution, the revival of water- quality based approaches is shifting regulatory and scientific focus back to ambient water quality and goals of protecting ecosystem health, not just monitoring industrial and municipal sewage effluent. The next section reviews EPA inaction and the momentum of lawsuits that eventually forced the states and US EPA to deal with remaining point and nonpoint source pollution under the TMDL program. The states have finally received what they fought hard to retain in 1972, but now they do not want it. What has changed in the meaning of water quality-based approaches to cause this reaction? The goals of 60 regulation are being shifted away from technology-based controls to the protection of ecosystem health, and this is impacting the way water quality is measured and modeled. The litigation is forcing states to develop TMDL policies in the absence of clear federal guidelines and adequate funding. But the litigation is also giving states the impetus to move forward in the midst of administrative and congressional stalemate on TMDL policy. Environmental organizations began to sue over the absence of TMDL programs in 1979, however, EPA largely did not act until the 1990's. The lawsuits are critical in forcing state agencies to return to ambient, water quality-based approaches. What does this return mean for policy and scientific practices? Who is bringing litigation over TMDL policy?

4.3 US EPA Inaction and Early TMDL Litigation US EPA and state water quality agencies began implementing the new technology based standards of the 1972 Clean Water Act, however, there was little attention paid to Total Maximum Daily Loads. Two early lawsuits, one on the Colorado River {Environmental Defense Fund v Castle 1981) and one on waters in South Dakota {Homestake Mining Co. v EPA 1979) challenged the lack of state TMDL programs. They were defeated in court on the basis that EPA had not finalized a list of pollutants for water quality analysis and TMDLs as required under Section 304. In 1973, EPA published a public notice of a two-volume set of pollutants for the TMDL process, but failed to finalize them into regulations. Under the 1972 Amendments, states were not required to begin the TMDL development process until 180 days after EPA’s identification of pollutants (Houck 1997b). US EPA chose to avoid TMDL development and instead argued that TMDLs were being incorporated into basin and area wide planning requirements under Clean Water Act Sections 106, 208, and 303(e). These basin planning reports proceeded slowly and were weighed down by the magnitude of requirements for these plans. They largely sat on shelves "collecting dust" because of the lack of implementation plans and lack of follow through on enforcement. EPA continued to assert that TMDLs were not a high priority because they were effectively being done through basin planning. 61 In 1978, US EPA was forced to identify pollutants for TMDL development as a result of a court order {Board o f County Commissioners v Costle1978). US EPA simply identified all pollutants were subject to TMDL development given appropriate scientific and technical backing. They stated "all pollutants, under proper technical conditions, as being suitable for the calculation of total maximum daily loads. The phrase proper technical conditions' was defined to mean the availability of analytical methods, modeling techniques and database necessary to develop a technology defensible TMDL {Pronsolino v Marcus 2000)." The identification of pollutants was published in the Federal Register on December 28, 1978, thus requiring states to act on their 303(d) lists by June 26,1979. The language of "all pollutants" used by EPA in identification of eligible pollutants would be prominent in future technical and scientific requirements characterizing TMDL development, and would play a key role in establishing Ohio's TMDL authority over both point and nonpoint source pollutants. In the 1987 amendments to the Clean Water Act a formula was written to address toxic water quality problems in Section 304. The states would be responsible for identifying and listing toxic polluted waters, identify the sources and loadings from toxic dischargers, and prepare an individual control strategy to attain standards for toxic pollution, all under a 5-year timetable (Houck 1999). This formula is nearly identical to the TMDL steps as written in Section 303(d). The 1987 amendments also addressed the growing problem of nonpoint source pollution stemming from stormwater runoff from agriculture, logging, and urban areas. Section 319 provided funding to state programs to address nonpoint source pollution through voluntary measures. Again, the strategy written for nonpoint source pollution resembled the steps outlined in Section 303(d) for TMDLs; identify waters polluted by nonpoint source pollution, identify sources and develop appropriate management plans to bring water into attainment with water quality standards. However, the 319 nonpoint source management plans failed to produce large improvements in water quality because it did not require enforceable regulations. In addition, under Section 319, the federal government would not step in if states failed to implement the nonpoint source management plans. This backstopping role o f the federal US EPA would prove critical in the successful litigation over TMDL policy.

62 States continued to move slowly, a few states submitted TMDLs to EPA, but most states submitted nothing. EPA explained their lack of action on TMDLs based on the argument that they could only approve or disapprove a TMDL submission by a state. If the state failed to act, then EPA could not act. This is the position that would be successful challenged by environmental community through litigation.

4.3.1 TMDL Litigation: Constructive Submission Theory The first two lawsuits had been dismissed because EPA had not identified pollutants eligible for TMDL development. Since EPA put into regulations that all pollutants, with sufficient technical evidence, were eligible for TMDL development, it set into motion the state requirements to identify waters not attaining water quality standards and to develop TMDLs for specific stream segments and specific pollutants. Yet the states continued to ignore Section 303(d), and did not implement TMDL programs. Critical to successful litigation against states and US EPA, was the theory of constructive submission. This legal concept is based on the idea that a state's refusal to submit a list of TMDL eligible water segments (waters with impaired water quality), means that the state is implicitly stating that no waters are impaired. The states submission of no impaired segments implies that waters are meeting water quality standards.

Scott V . City o f Hammond (1981), in Indiana was the first lawsuit to use the constructive submission theory to challenge the absence of a state’s submission of a 303(d) list of impaired waters for the TMDL requirement. The lawsuit, filed in an Illinois district court in 1981, alleged that US EPA was required under section 303(d) to create TMDLs for Lake Michigan because surrounding states failed to submit a list of impaired waters and develop TMDLs (US EPA 1999). The district court raised the possibility that the states had determined that the waters of Lake Michigan were clean, thus no list was necessary and no TMDL development required. On appeal, the Circuit Court remanded the case to the District Court for a finding of whether the states had ‘refused’ to act or if the states had actually determined that TMDLs were unnecessary. Although the case was not decided, the T*** Circuit Court of Appeals defined

63 when the use of constructive submission should apply to EPA (Scott v. City o f Hammond 1984): State inaction amounting to a refusal to act would be interpreted as a constructive submission o f no TMDL, thus triggering EPA’s duty to approve or disapprove such submission and to establish the TMDL in the event EPA disapproved.

The Court's definition of "constructive submission" was contrary to the policy EPA had been following which was that the initiation of TMDL process began when states listed waters as impaired for TMDL development. The Court's ruling required US EPA to act (by approving or disapproving) even when a state did nothing. This was based on the idea that a state's failure to list impaired waters implied that the state had determined waters were clean and there were no violations of water quality standards. On remand to the District Court, Illinois, Indiana and Michigan submitted determinations that TMDLs were not necessary, and Wisconsin identified four areas for TMDL development. US EPA approved the decision that no TMDLs were necessary from Illinois, Indiana and Michigan, and approved the four TMDL submissions by Wisconsin in 1985. In a subsequent case (National Wildlife Federation v Adamkus 1991) filed in the U.S. District court in Illinois, plaintiffs alleged that states bordering Lake Michigan had ‘insufficient activity’ on TMDLs thus it was a constructive submission of no TMDLs and that EPA was required to approve or disapprove this state action (or rather lack of action). The court rejected these arguments because US EPA had already approved the TMDLs from Wisconsin and the “no submission’’ by the other states, thus it was not a case of constructive submission. The states had acted and US EPA approved both the action of TMDL in Wisconsin and the in-action by the other states. In the District Court of Oregon the case. Northwest Environmental Defense Center et al. v EPA (1986), was successful in applying constructive submission theory to the state’s TMDL program. EPA entered into a consent decree with plaintiffs agreeing to develop TMDLs if Oregon failed to do so. The same plaintiffs filed suit in 1994 on the basis that the State of Oregon did not submit a 303(d) list for that year, thus requiring EPA to establish the list of impaired waters. Additional litigation filed in 1996 sought to require US EPA to approve/disapprove of the 1996 303(d) list, establish a timeline for

64 Oregon’s TMDL development and to revoke Oregon’s continuing planning process and NPDES program. In 2000, US EPA agreed to another consent decree to establish TMDLs if Oregon failed to do so themselves. This was an important milestone for those bringing litigation over TMDLs, the lawsuit had prompted EPA to take action and forced Oregon to move forward in implementing Total Maximum Daily Loads. The first court ordered case requiring US EPA to initiate a state's TMDL listing and development came in 1991 in the state of Alaska. In a series of cases under the name Alaska Center for the Environment v Reilly, plaintiffs were joined by other environmental organizations including Northern Alaska Environmental Center, Southern Alaska Conservation Coimcil, and Trustees for Alaska. The court found that the state of Alaska “had not attempted to develop a TMDL and had never indicated any intent to do so in the future {Alaska Center for the Environment v Reilly1991).’’ The court, based on Alaska's past performance and Alaska's future intent decided “Alaska had constructively submitted no TMDLs and therefore ordered EPA to initiate its own process of establishing TMDLs ” {Alaska Center for the Environment v Reilly 1991). The strong language of the court set a legal precedent that would inspire additional TMDL cases in other states. In other cases around the country the courts found that EPA did not have to step in to develop TMDLs if a state was merely moving slowly. In Minnesota, a 1993 case brought by the Sierra Club was also based on the theory of constructive submission. The court found that even though EPA had to step in and establish a water quality limited segments list (known as the 303(d) list) for Minnesota, the state’s progress on five TMDL segments with schedules ranging from 1993 to 2002 had precluded the use of the constructive submission theory and the court dismissed the case (Sierra Club v Browner, 1993; US EPA 1999). Up until this point, the courts had found that only a state not submitting a TMDL list, and US EPA’s disapproval of that course of action, could invoke EPA responsibility to list water quality limited segments and develop TMDLs. If US EPA approved either a listing or the submission of no list, constructive submission theory did not apply. Therefore, states listing a few water quality-limited segments or developing a few

65 TMDLs, which might not be satisfactory progress according to the environmental groups and others bringing litigation, was not enough “inaction” to trigger EPA’s duty to step in under the requirements of the Clean Water Act. The early success in Oregon and Alaska, and the award of litigation costs to successful plaintiffs, fueled continued litigation against states and US EPA. The lawsuits were isolated and provided only small steps toward implementation of Section 303(d). However, the environmental and sports groups bringing the TMDL litigation were inspired by their successes. A critical factor for their continued litigation was the Clean Water Act's Section 505 which allows citizen's to file suit over non-compliance with the Act and to recover all costs of litigation and counsel if their won the lawsuit. This meant that if the organization could front the money for an initial successful lawsuit, they could then recover their legal costs and have money to devote to the next suit. Following the initial wave of lawsuits requiring US EPA to pressure states into action on TMDL programs, the next wave of lawsuits did not only challenge the absence of TMDL lists and development but also questioned the quality and timelines for TMDL development.

4.3.2 Litigation over TMDL Quality and Timelines for Development In a 1995 court case [Dioxin/Organochlorine Center et al v C lark, 1995] environmental and paper and pulp mill industry plaintiffs challenged (from opposite positions) the ‘adequacy’ and ‘reasonableness’ of the TMDL developed for Dioxin on the Columbia River in the states of Washington, Oregon, and Idaho. Columbia River United joined the Dioxin/Organochlorine Center, and they were represented by counsel from Sierra Club Legal Defense Fund. The environmental plaintiffs argued that the levels for Dioxin set in the TMDL were not adequate to protect aquatic life and wildlife, nor were they adequate to protect the local human population who frequently relied on fish consumption from the Columbia River. In addition, the environmentalists challenged the TMDL for not considering the cumulative impacts and health risks of Dioxin in waterways. The court allowed industry plaintiffs to join the case which included Longview Fibre Company and Weyerhauser Corporation of Washington, James River II,

66 Incorporated of Virginia, and the Boise Cascade Corporation of Delaware. Industry plaintiffs did not dispute their paper mills were sources of Dioxin, but argued on the legal requirements of the Clean Water Act that the best available technology-based effluent controls must first be in place before TMDLs could legally be applied to the point source discharges. This argument attempted to find a legal loophole in the CWA stating that TMDLs should be applied where water quality impairment continued after the application of technology-based NPDES permits. The industrial plaintiffs were in effect arguing that point sources are still a problem, and have not been cleaned up under NPDES permit program. This is evidence against the argument that point source regulation has done all its capable of doing towards attaining water quality standards and any future improvements must come from nonpoint source regulation. It is also evidence to the fact the NPDES permits are not always adequately protective of water quality or evenly enforced among point source dischargers. We are not done with regulating industrial point sources, even though many across the U.S. are using this argument. TMDLs were first viewed as good for industry, because it would remove some of the regulatory burden and transfer it to the nonpoint source contributors. However, TMDL development is revealing continued impacts from point source effluent, and the regulated community is fighting increased regulation through challenging the science used by EPA and state agencies. This topic is further addressed in Chapters 6 and 7. Both the District Court and the Court of Appeals after reviewing the science of Dioxin TMDL, upheld the calculations and found it sufficiently protective o f subsistence fishers [Dioxin/Organochlorine Center et al.v Clark, 1995]. The District Court (and affirmed by the Court of Appeals) also found that as long the TMDL considered all discharges of a pollutant, the state did not need to set specific waste load allocations for all point sources and load allocations for all nonpoint sources (US EPA 1999). The Dioxin TMDL had withstood the challenge by both the environmental and industrial community, supplying a much-needed legal victory for US EPA, which was growing weary of the large niunber of TMDL lawsuits. The second case to challenge the quality of a TMDL, and also to address the timeline for TMDL development was Idaho Sportsmen’s Coalition, v etBrowner. al.

67 The environmental groups Idaho Conservation League and Clean Water for Idaho joined the Idaho Sportsmen's Coalition. Although coming from different perspectives on the purpose of protecting water quality, the joint effort between sports enthusiasts and environmentalists to force implementation of TMDL programs would carry over to other states as well. The case was also joined by Intermontane Forest Industry Association, Potlatch Corporation, Inc. and Shearer Lumber Products in opposing the lawsuit brought by the plaintiffs. Plaintiffs successfully challenged Idaho’s 303(d) list of 36 water quality-limited segments as “arbitrary and capricious (Idaho Sportsmen's Coalition et al. v Browner 1996).” The court found the list ignored water quality limited segments identified in Idaho’s 1992 305(b) report and that the agency failed to consider data from the U.S. Forest Service. The court denied the argument that Idaho’s partial TMDL list was applicable to constructive submission theory as claimed by the plaintiffs. However, the court went on to find that EPA was remiss in its duties to work with Idaho in establishing a reasonable schedule for TMDL development for the listed water segments. EPA was ordered to establish a schedule. The court rejected EPA’s initial schedule, but in 1997 accepted an 8-year schedule developed by Idaho, and submitted by EPA (US EPA 1999). In 1996 the second court case to address the issue of time was Sierra Club, et al. v Hankinson submitted to a District Court in Georgia. The Sierra Club was joined by sports interests. Trout Unlimited, and environmental organizations Orgeechee River Valley Association, Inc., Coosa River Basin Initiative, Inc. and Georgia Environmental Organizations, Inc. These plaintiffs alleged that Georgia’s failure to submit TMDLs over a long time period amounted to constructive submission of no TMDLs. The court found that constructive submission theory did not apply to Georgia because they had submitted several TMDLs, even if they were inadequate. In favor of the plaintiffs, the court concluded that US EPA's approval of the TMDL submissions was in violation of law (Sierra Club et al. v Hankinson 1996): EPA’s failure to disapprove Georgia’s inadequate TMDL submissions was arbitrary and capricious in violation of the Administrative Procedure Act and that EPA’s failure to promulgate TMDLs for Georgia violates the Clean Water Act.

68 The court took the inadequate TMDLs seriously, and ordered EPA to ensure that TMDLs were established for all listed waters within 5 years, that included mandatory revision of NPDES permits within 1 year of TMDL development. The court additionally required that if Georgia failed to comply, EPA was responsible to revise the state’s NPDES program to accommodate TMDL development. If the state continued to refuse, EPA would have to revoke certification of the state’s NPDES program, and take over administration of the permit program. The court was playing hardball, and forcing US EPA and Georgia to development TMDLs in a timely manner. The court also retained jurisdiction over the case by requiring Georgia to report annually on its TMDL progress (US EPA 1999; Houck 1997b). EPA and the states could no longer ignore the court orders and litigation. They were being forced to implement the program they had fought so hard to retain in the 1972 Clean Water Act Amendments. The same program they worked diligently to avoid for nearly thirty years. The litigation continued in more states and against US EPA over non- enforcement of TMDLs. Currently there are 33 cases over TMDLs resolved or in process (see Table 4.1), another six cases were dismissed without orders for US EPA to take action (including Scott v. City of Hammond in 1984). There are approximately seven more cases of litigation over TMDL related issues, such as Pronsolino v. Marcus (2000) brought by agriculture and silvicultiue interests challenging US EPA authority to develop TMDLs for waters solely impaired by nonpoint source pollution. In that decision, US EPA and state water quality agencies authority over nonpoint source pollution was upheld. The court's decision has been widely circulated among federal and state water quality agencies and is frequently cited in support of TMDL application to nonpoint sources of pollution. In 1998 Ohio received a Notice of Intent to Sue prompting the Ohio Environmental Protection Agency (Ohio EPA) to take action to resolve the matter. Ohio EPA had seen what states such as Georgia were facing in strict timelines and wanted to avoid that situation. Ohio EPA's development o f the TMDL program, and the pressure exerted by environmental organizations and interests is addressed in Chapter Five.

69 States in which EPA is under consent decree to establish TMDLs if states do not establish TMDLs (or CO = Court Order; SA = Settlement Agreement) 21 States and 23 Actions

Alabama 1998 Kansas 1998 Alaska 1992 CO Louisiana 1999 CO Arkansas 2000 Mississippi 1998 California (LA) 1999 Montana 2000 CO California (North Coast) 1997 New Mexico 1997 California (Newport Bay) 1997 North Carolina 1998 SA Colorado 1999 SA Oregon 2000 Delaware 1997 Pennsylvania 1997 District of Columbia 2000 Virginia 1999 Florida 1999 Washington 1998 Georgia 1999 West Virginia 1997

States in which litigation has been filed seeking EPA to establish TMDLs 9 States

California 2000 Missouri 1998 Hawaii 2000 New Jersey 1996 Idaho 2000 Tennessee 2001 Iowa 1998 Wyoming 1996 Maryland 1997

States in which Notices of Intent to Sue have 3een filed 2 States

Arizona 1999 Ohio 1998

Table 4.1. Summary of TMDL Litigation by State (US EPA 2001).

70 Facing the huge onslaught of litigation, US EPA was forced to take action by encouraging states to implement Section 303(d) of the Clean Water Act. EPA had hopes of avoiding additional litigation and beginning to take control of TMDL listing, development, and timelines. However, a large number of court cases reached settlement in the courts between 1997 and the present (Table 4.1) superseding both the US EPA's proactive attempts to get control and Congress's attempts to stall TMDL implementation. The early lawsuits were brought on an individual basis, with little knowledge or coordination with what was happening in other states and regions of the country. Once the news spread that there was successful litigation against states and US EPA, many other cases were brought as well. Essential to the success of the largely non-profit environmental and sports/himting organizations, was the ability of these organizations to receive legal costs if the court ruled in their favor. If an organization could front themoney for one successful lawsuit, they could recover expenses and proceed to the next case or continued vigilance regarding water quality protection.

4.4 US EPA Action: Federal Advisory Committee and Guidelines In early 1996, US EPA called for state 303(d) lists of water quality limited segments to be submitted by April 1, 1996. States moved slowly once again, and EPA moved the deadline forward several times that year. Finally, by early 1997, all states and territories had submitted lists, although the quality varied greatly between submissions. At this juncture, EPA became more proactive, and less reactive to court orders, consent decrees, and notices of intent to sue (Houck 1997b). TMDL listing and development has been guided by regulations finalized by US EPA in the Code of Federal Regulations in 1985 and amended in 1992 (Code of Federal Regulations 1992). EPA choose to issue additional guidance to states in the form of

71 guidelines, memorandum, and documents rather than attempting to amend the Federal Regulations under the existing conditions of political uncertainty and pending litigation. In November 1996, EPA updated the 1991 guidelines issuing a Draft TMDL Program Implementation Strategy. A year later, Robert Perciasepe issued a memorandum to state administrators outlining two critical factors in TMDL development, time schedules and inclusion of nonpoint sources in TMDL load allocations and implementation strategies (Perciasepe 1997). US EPA had always insisted that TMDLs fully included nonpoint source pollution, but agriculture and silviculture interests adamantly opposed that position. In Pronsolino v. Marcus (2000), the court upheld EPA's position on TMDL application to waters impaired solely by nonpoint sources and waters impaired by both point and nonpoint sources.

4.4.1 Federal Advisory Committee on TMDLs In the same month as the 1996 guidelines, EPA created a Federal Advisory Conunittee^ on Total Maximum Daily Loads. This Committee and its process is important to review, not only for its impacts on EPA's Final TMDL Rule, but also because of its impact on Ohio's TMDL External Advisory Group and TMDL program. The FACA Committee was convened under the National Advisory Council for Environmental Policy and Technology (NACEPT), set up in 1988 to provide recommendations and advice to EPA and its Administrator. The Conunittee consisted of twenty stakeholders representing a nearly even split between state representatives, potentially impacted point source and nonpoint sources, and environmental groups. It included state officials responsible for managing TMDL programs, local officials, and representatives from a Tribal consortium, farmers, forestry, environmental advocacy, industry, a law professor, executive director of a watershed council and an environmental consultant (Federal Advisory Committee 1998). The process was designed to cover large geographical areas of the country by holding meetings at locations around the country and inviting public participation

72 "reflecting diverse regional concerns about TMDL development and watershed management (Federal Advisory Committee 1998: 1-2)." The Committee met six times over two years in Herndon, VA; Galveston, TX; Milwaukee, WI; Portland, OR; Salt Lake City, UT; and Atlanta, G A. The process was intentionally transparent, all meetings were open to the public and notices of meetings were published in the Federal Register and announcements made to local communities where the meetings were being held. In addition, throughout the two year process, proceedings of the committee were made available online through an EPA website (US EPA 1998). The FACA Conunittee was charged with delivering "advice and consensus policy recommendations" in line with Clean Water Act requirements. The Committee was specifically requested to address (Federal Advisory Committee 1998: A-1):

■ The role of TMDLs within watershed protection and planning activities ■ The development o f lists under Section 303(d) ■ The relationship of 303(d) lists to other CWA listing requirements ■ The rate and pace o f TMDL development " The science and tools needed to implement the law and the recommendations ■ The respective roles and responsibilities of States, Tribes and EPA

Several issues were addressed relatively smoothly such as division of labor between federal agency and states and tribes, and the rate and pace of TMDL development. The FACA committee used the 8-13 year time frame established by Perciasepe’s guidance memo, this was also in line with timelines being issued in court settlements. Several issues were much more difficult for the TMDL FACA committee including, waters eligible for TMDL listing (e.g. those polluted solely by nonpoint sources), scientific uncertainty in data and models, and implementation strategies assigning specific activities to particular parties. After two years the committee submitted a report with many consensus recommendations (Federal Advisory Conunittee 1998), however they could not agree on the TMDL application to waters impaired by nonpoint source pollution (Houck 1997b). These key issues debated in the FACA

^ Commonly referred to as the FACA Committee, named for the Federal Advisory Committee Act that set up an advisory capacity for US EPA. 73 committee were also critical issues in Ohio's policy formation process and the Ohio EPA External Advisory Group on TMDLs. These include, among others, uncertainty in science and technology used in TMDL development, disagreement regarding US EPA and state authority over nonpoint source pollution, and environmental stakeholder’s insistence on an "open" policy formation process. Many of the recommendations from the FACA Committee were written into EPA's Final TMDL rule. The rules included the application of TMDLs to nonpoint source pollution and requirement that states must submit implementation plans for permit reductions and BMPs to address nonpoint sources. The Final TMDL Rule was published in the Federal Register on July 13, 2000 and would normally have been finalized 45 days later, however, a Congressional rider to a fiscal year 2000 military construction/ supplemental appropriations bill prohibits EPA from implementing the rule during the fiscal year 2000-2001. Congress also called for a scientific advisory committee to investigate the scientific basis of using TMDLs for water quality regulation. The TMDL program is currently guided by requirements specified in the Clean Water Act and the published 1992 TMDL regulations [EPA, 2000]. Once again, the TMDL program is in legal and administrative limbo between the requirements of the Clean Water Act, published regulations. Congressional stalling of the regulations and state programs. What is different at this juncture from previous decades is that US EPA and the state water quality agencies are no longer stalling the process, but congressional approval and funding has attempted to stalemate the process. Despite these roadblocks and ambiguity, states are moving ahead in TMDL implementation: submitting lists, developing TMDL allocation loadings for point and nonpoint sources, and implementing pollution mitigation strategies (BMPs and permit changes) to insure TMDL requirements are being met. Why is this happening despite published regulations that are not enforceable and under conditions of inadequate funding? State water quality agencies are prompted by a variety of motivations to implement TMDLs: coiut order or consent agreements, taking action to avoid litigation in the first place, or simply forging ahead without legal prompting believing that TMDLs are a good mechanism to address the remaining point and nonpoint source water pollution.

74 4.5 Conclusions The history of TMDL policy reveals the interaction between US EPA regulations, authorizing legislation and litigation concerning TMDL policy. Throughout the history of water quality regulation TMDLs and ambient water quality-based approaches were plagued by false starts. The states fought hard to retain water quality-based regulations and state authority in Section 303(d), and then ignored them for nearly thirty years. A return to ambient water quality regulation administered by state agencies is exactly what states wanted in the 1972 Clean Water Act. The states refusal to implement TMDL policy has been countered by environmental stakeholders forcing US EPA and state agencies to address remaining water pollution problems. Why did the states change their support of an ambient water quality-based approach? The emergence of TMDL policy is very different now, as opposed to the state programs prior to 1972. The states are faced with implementing TMDL programs under Federal oversight of standards and adequate TMDLs. The states have given up at least part of their authority to US EPA. In addition, stakeholders have taken their involvement in water resource management seriously, and question policy formation, decision making, and scientific practices of state and federal agencies. This has created a new era of water quality management in the United States, in essence, it’s a whole new ball game. Critical to the re-emergence of TMDL policy in the I990’s are the increased influence of environmental stakeholders and the power of successful litigation. The rising power of environmental organizations to influence policy is altering the status of aligned interest groups. Allied interests supporting economic growth have included manufacturing industries, development, construction and real estate interests. Often, development and construction interests would also align themselves with farmers advocating personal property rights and limited government regulation. These alliances in a pro-growth regime have been re aligned by the intersection of land development and water quality issues. Environmental interests are taking advantage of a growing national concern with environmental quality.

75 The re-emergence of TMDL policy is altering the goals o f water quality regulation and science. The standard is no longer the best-available and financially feasible technology, but the goal is to maintain the quality of water ecosystems. The new goal requires politically powerful actors such as agriculture, timber companies, construction and urban runoff sources, previously with little oversight, to come under increased scrutiny. States are reluctant to go after these contributors to nonpoint source pollution. A combination o f political hesitancy and the difficulty in changing how state agencies conduct business is causing problems for TMDL implementation. State agency staff members previously dealing with point source effluent permits are now charged with taking a watershed approach, using complicated modeling, instituting voluntary best management practices, and ensuring public "buy in" to these non-regulatory programs. The return of water quality-based standards is requiring a change in the regulatory structure and science of water resource management. Why have TMDLs emerged now? Some have postulated that TMDLs have emerged because the most obvious and toxic point sources have been cleaned up, and the next logical step is addressing less visible nonpoint source pollution. In support of that explanation people cite the progress in monitoring and modeling techniques that allow better quantification and detection of nonpoint source pollution. These technological changes have influenced water quality monitoring and TMDL modeling, however, they are only partial explanations. Point sources, as indicated by water quality monitoring in Ohio and across the US are declining, but they still have significant impacts on water quality. This fact is evidenced by the case Dioxin/Organochlorine Center v. Clark et al. 1995 in which industrial plaintiffs argued that point source discharges are causing water quality impairments that have not been addressed by NPDES permits. Point source effluent continues to cause water quality problems through permit levels that do not protect water quality or permits that are not adequately enforced (EPA 200Id). Point sources were thought to welcome TMDL policy with its focus on incorporating unregulated nonpoint sources into management and regulation. However, point sources have realized that TMDLs mean stricter effluent permits as their continued impacts are addressed under TMDLs. The point sources have responded to this with demands for

76 increased certainty in data and modeling, some say to the point of excess. These changes in science and regulation, and the increased role of stakeholders are addressed further in Chapters 6 and 7. The next chapter (Chapter 5) addresses the evolution of Ohio’s TMDL program as influenced from increased stakeholder participation in policy decisions and the threat o f litigation. One outcome of the lawsuits has been to insulate state-level TMDL programs against efforts by Congress and the new US EPA Administration to delay the implementation of TMDL policy. The "bottom-up" approach and regional nature of lawsuits has fostered TMDL development at the state level. States are proceeding, however reluctantly, to implement TMDLs because of stakeholder pressures and threats of litigation.

77 CHAPTER 5

EVOLUTION OF OHIO'S TMDL PROGRAM: ROLE OF STAKEHOLDER PARTICIPATION IN POLICY FORMATION

5.1 Introduction The evolution of Ohio's TMDL program followed a different trajectory from previous policy formation processes in Ohio. In the evolution of Ohio's TMDL program, stakeholders were instrumental in forcing Ohio Environmental Protection Agency (Ohio EPA) to act on TMDLs, and insisted that policy and scientific practices would be debated in stakeholder meetings. Previous stakeholder involvement in Ohio EPA policy had been limited to key stakeholders brought together by Ohio EPA to comment on an already approved policy or develop rules for Ohio under federal guidelines. TMDL policy formation incorporated stakeholder involvement from a very early stage, as insisted upon by tlie environmental community. This involvement would make transparent Ohio EPA's decision-making process and open its scientific practices and policy to criticism and influence from active interest groups. The previous chapter outlined the national evolution of the TMDL program, tracing its origins in the Clean Water Act, through over 40 cases of litigation, and the writing of federal regulations for the TMDL program. This chapter focuses on the events and actors that led to the development of Ohio's TMDL program. In outlining the evolution of Ohio's TMDL program, this chapter addresses the following research questions: What events led Ohio EPA to develop a TMDL program? Who are the interest groups actively involved in Ohio's water quality management? How are varied private and public interests represented in policy decisions, and who has not been represented in the TMDL process? How does increased stakeholder involvement impact Ohio's TMDL policy formation? 78 In 1998 three concurrent processes were instrumental in beginning the development of Ohio's TMDL program. Through these concurrent processes, the evolution of Ohio's TMDL program illustrates key concepts of policy formation and stakeholder involvement. First, the Ohio EPA Division of Surface Water (DSW) developed an internal TMDL Team charged with establishing the requirements of TMDLs and integrating them with DSW's existing programs and goals. The actions of Ohio EPA staff not usually engaged in policy formation, altered policy goals and practices for TMDLs. The Ohio EPA staff acted as "policy entrepreneurs ", advocating for particular policy goals and scientific practices to be adopted by Ohio EPA. In this study, Ohio EPA staff (and other government agency employees) engaged in TMDL policy are considered actors or stakeholders in the process. They have important, if limited, influence on the outcome of policy, and like other actors struggle to influence the emerging TMDL policy and science. Second, a Notice of Intent to Sue against US EPA over Ohio's lack of a TMDL program was filed by a citizen activist and joined by Ohio Environmental Council, National Wildlife Federation, and League of Ohio Sportsmen. This action forced Ohio EPA to take seriously the environmental communities demand for a participatory stakeholder process through the establishment of an external advisory group on Total Maximum Daily Load policy. The continued involvement of key environmental organizations, namely the Ohio Environmental Council and National Wildlife Federation, in the TMDL External Advisory Group illustrates the power wielded by litigation and the increasing ability of environmental interest groups to influence policies in resource management. The third process that led Ohio EPA to establish its TMDL policy and to solicit public comment came in conjunction with the first two events. The pressiue from environmental groups involved in the Great Lakes Initiative External Advisory Group prompted Ohio EPA to establish an 18-month stakeholder process on Ohio EPA's TMDL program, the TMDL External Advisory Group. The impact of three events, 1) the internal TMDL team at Ohio EPA; 2) the notice o f intent to sue; and 3) the request of

79 environmental representatives for a TMDL EAG forced Ohio EPA to develop and implement a TMDL program. These processes led to the "transparency" of policy formation and scientific practices at Ohio EPA. The opening up of the internal decision-making processes at Ohio EPA revealed uncertainty of scientific data and modeling, uncertainty that is always present, but usually hidden behind quantitative scientific methods and expert opinions. In addition, the opening up of the policy formation process revealed the politically charged and value-laden decisions of allocating responsibility to pollution dischargers, and holding certain parties responsible. These moments when the closed management and policy process is opened up reveals the socially constructed elements of science and policy. The specific points of policy formation and science that are made transparent, revealed as uncertain, and open to definition are the places where stakeholders have the opportunity to influence outcomes. This chapter analyzes the three events that led to Ohio's TMDL program and opened the policy formation process to stakeholder definitions and influence. Through this analysis important concepts regarding the power of agency 'policy entrepreneurs', interest group pressure through litigation, and the representation of the public in "open" policy formation processes are addressed. The specific moments where stakeholders are able to influence scientific practices is treated separately in Chapters 6 and 7.

5.2 Policy Entrepreneurs: Ohio EPA's Internal TMDL Team This section of the chapter addresses the role of Ohio EPA staff in taking a pro­ active stance in shaping the goals and specific practices for TMDL development in Ohio. The staff members altered the definition of TMDLs as given to them by management of Ohio EPA and further defined the goals of Ohio's TMDL program. The monumental task of developing a new approach to water quality management, one which involves new scientific practices and increasingly voluntary measures for water quality regulation fell upon staff members, not the directors and managers of Ohio EPA. Whether management at Ohio EPA intended the staff to develop policies and practices or not, the staff was able to take action and define the TMDL program. These staff members are called "policy

80 entrepreneurs". Powell (1999) uses this term to describe government agency staff that takes a lead role in developing a policy stance for an administrative agency. As expected, the staff members faced difBcult obstacles in implementing the TMDL program such as insufficient resources, short time schedules, and sorting out the roles of Ohio EPA and stakeholders in TMDL data collection, modeling, and allocation of responsibility for pollution. The policy entrepreneurs' at Ohio EPA and other state agencies, advocated strongly for increased stakeholder involvement throughout the TMDL development process. The efforts to increase stakeholder involvement early in the process has aided in revealing the Ohio EPA's internal policy and scientific decision making process to the external stakeholders. Ohio EPA established an internal work group, the Division of Surface Water (DSW) TMDL Team, consisting of eleven staff members from nine different DSW program areas (point source permitting, enforcement, modeling, watershed coordination, water quality standards, stormwater, ecological assessment, information management/GlS, nonpoint source program).

5.2.1 Restating the Team's Mission The Team decided to rewrite the mission and charter to remove perceived inconsistencies and reflect the team's views on the purpose of Ohio's TMDL program. The difference between the staffs view of the TMDL program and the original charter written by managers in the Division of Surface Water is small, but reveals notable differences that exist between management and staff approaches to water quality management. The management version o f the Charter focused on the specific legal requirements, EPA guidance, and process of TMDL calculations. The staff version of the Charter refocused the mission statement to reflect the end goal of attaining water quality standards. It was important to the group to not focus the group's work solely on the calculation of loads (seen as primarily a modeling effort), but on the whole process of the TMDL program, including public participation and use of qualitative and narrative water quality standards and methods. The changes were slight, and presented as

81 recommendations to the management, but these changes were very important to the internal team (Notes from DSW's TMDL Team Meeting Maddock 1998). The staff distrusted the motives of DSW management in creating the TMDL Team. During an interview conducted with an Ohio EPA staff member the lack of trust that some staff have for new management directives was described this way; There's this phrase, "priority of the day". People [Ohio EPA Staff] don't want to put their heart in something and see the rug pulled out from underneath them. .. ..So its hard for them to want to get involved [with TMDLs] because they don't want to feel let down, and they've been let down.

In addition the staff expressed concern that the Team's work would be 'shelved' if management did not take a significant interest in implementing the Team's findings. The TMDL Team was also concerned with the authority of Ohio EPA over nonpoint sources of pollution and the politics of watershed planning and nonpoint source controls that had been problematic in previous efforts (Ohio EPA 1998b). However, the TMDL Team completed a detailed document outlining each step of TMDL development at the watershed level.

5.2.2 DSW's Internal Team Report on TMDL Development The Team specified a number of products that would be included in the final report: 1) summary of applicable TMDL regulations and requirements, 2) outline of existing and needed regulatory and technical tools that can be used to develop and implement restoration targets, 3) a summary of how existing goals, programs and responsibilities of Division of Surface Water can be adjusted to effectively develop and implement restoration targets, and 4) the Team's recommendations on the "whole TMDL process" from listing a waterbody segment on the 303(d) list to establishing restoration targets to developing strategies to achieve and validate those targets to finally removing the waterbody segment from the 303(d) list. The Team took their responsibilities seriously, and developed a detailed 12-step program to develop and implement TMDLs at Ohio EPA (See Chapter 6) (Ohio EPA 1998a). The DSW TMDL Team met at least twice a month, often more frequently, between June 1998 and September 1999. Their final product was 142 pages long and 82 contained detailed recommendations on data collection, science of modeling TMDLs, and public participation. The Team's final report has been adopted as the defacto guidelines for developing TMDLs in Ohio. The staff members' pro-active stance resulted in detailed recommendations and discussion of serious roadblocks to successful TMDL implementation. Due to the lack of specific federal regulations and unclear guidance fi’om US EPA and Ohio EPA on what exactly constitutes TMDL development, agency staff had considerable latitude in developing TMDL policy as they saw fit. An interview with an Ohio EPA staff member working on TMDLs related that in addition, there is very little management oversight on specifics of TMDL development in watershed projects.

5.2.3 Policy Entrepreneurs at Work: TMDL Projects One TMDL Team recommendation implemented at Ohio EPA that is having a noticeable impact on DSW activities is the 'team' approach to TMDL development. A team of members from diverse segments of DSW are assigned to each watershed slated for TMDL development, including a team leader (up to this point it has been a staff from the modeling unit), and a management level team coach to work as the project's advocate in securing resources and aid in decision-making. As may be expected, this change in the organizational structure is not going completely smoothly. TMDL project leaders, to date these have been staff from the water quality-modeling unit, are forced to conduct many tasks outside o f their expertise. This includes encouraging fellow staff members to work on the TMDL, many who see assignment to the TMDL project as an additional task added to already heavy responsibilities. One project leader said, "It's fi-ustrating. It's almost taken more o f my time to work with the group internally than I've gotten benefits fi'om it. I was expecting the group to start participating as a group, that's not happening too much." The TMDL project leader not only works on the internal TMDL development (data collection, sampling, modeling, calculating loads and assigning to sources) but must also deal with administrative pressures and public outreach activities. A TMDL staff member said about the lack of time to do all three activities: modeling, organizing staff to contribute to the TMDL work, and answering stakeholder's questions and conducting

83 public meetings, "I really think those need to be separated. It should be a modeler, a project leader, and a public person. And having (those) all combined, three roles into one, there's just no time." The staff members engaged in TMDL development are working many overtime hours without additional pay or compensation from Ohio EPA because of budget restrictions: I devote a lot of my own time to the project. There's not money to pay me. I think all the project manager’s are doing work that they are not getting paid for because there is no overtime money, no comp time money, that kind of thing.. ..That's why you need somebody that takes it into their heart or else it won't get done.

Despite Ohio EPA's lack of resources, there is a strong commitment among Ohio EPA staff to make TMDLs a success, and in affecting real improvements in water quality. An Ohio EPA staff member said, "I look at whatever we can do to get the water healthy. I don't look at it like I'm an Ohio EPA employee. I look at it more as this watershed has the ability to be better and I think we should make it better." The TMDL staff at Ohio EPA are acting as policy entrepreneurs for TMDL programs. Their approach is rooted in environmental protection and making waters as clean as possible. They are implementing TMDL program in their assigned watersheds as they see fit, with little management oversight. As TMDL development has proceeded, the staff has been strongly influenced by stakeholders engaged in the TMDL watersheds, including industrial, municipal, and environmental interests. Because of the required stakeholder involvement in TMDL development and implementation strategies, stakeholders are able to influence the scientific practices of TMDL data, modeling and pollution allocation. By tracing the evolution of Ohio's TMDL implementation in watersheds, I have observed that it is the points o f TMDL development that are scientifically uncertain, and involve value judgments where stakeholders are most able to influence the process. Specific stakeholder influence on scientific process is addressed through a case study of TMDL Development in the Mill Creek Watershed (Cincinnati) in Chapter 7.

84 Up until this point, Ohio EPA had slated one or two watersheds per two-year cycle for TMDL development. Of the four developed between 1993 and 1998, only one was completed and sent to US EPA for approval. However, 1998 was a pivotal year for Ohio's TMDL program. In addition to the internal Team chartered to develop Ohio's TMDL program, several more events would push Ohio EPA to seriously consider its TMDL program. These included the environmental community’s pressure on Ohio EPA during the Great Lakes Initiative External Advisory Group (addressed in the next section); Notice of Intent to Sue, and pressure to establish the TMDL External Advisory Group. Once the 18-month TMDL EAG was underway, Ohio EPA would not be able to stop the momentum o f support for addressing nonpoint source pollution in Ohio.

5.3 Great Lakes Initiative (GLI) Extemal Advisory Group The Great Lakes Initiative (GLI) was an extemal advisory group formed by Ohio EPA to help write rules regarding bioaccumulative toxins such as Dioxin and Mercury (toxins that build up in fat tissue of species and pass through the food chain) for the Lake Erie Basin. These toxins are a particular problem in the Lake Erie Basin, but all waters in Ohio are impaired by Mercury levels above those set in the state's water quality standards. Bioaccumulative toxins are predominantly seen as a point source issue stemming from industry and power plants, but contributions from nonpoint sources (including air deposition) were continually a topic of discussion in the GLI meetings. The stakeholders assembled began to realize that they could not effectively address Mercury pollution, with out addressing its nonpoint sources in addition to the permitted industries. The representatives of the environmental community (led by National Wildlife Federation and Ohio Environmental Council) and industry (primarily power plants and paper and pulp manufacturers, many represented by trade organizations and lawyers) were the two main caucuses involved in negotiations with representatives from US EPA and Ohio EPA. The GLI EAG was at the time, one of the more open stakeholder processes conducted by Ohio EPA, and followed the national trend of involving stakeholders in developing regulations. The GLI EAG had a very specific task to

85 accomplish, write the federal GLI guidelines into rules for the state of Ohio. The agenda was clear, the topic was bounded to specific rules for Ohio and the stakeholders fell into two sides, environmental and regulated community. This clarity and structure was very different from what would follow in the TMDL EAG that was organized into committees and made decisions by consensus. The GLI EAG meetings had a very formal and rigid structure. Only recognized representatives of the two caucuses were members of the GLI EAG and allowed to sit at head tables, set with nametags. Alternates for each official representative and others who attended meetings were seated in an audience facing the head tables. Those who were not official members' were not allowed to speak or address questions specifically to any representative, unless having the item or question placed on the official agenda for the meeting. The formalized structure did have advantages that were not present in the open, causal atmosphere of the TMDL EAG. The GLI had a very specific task set before it, the members arrived at consensus recommendations on some issues, others were listed as not resolved, and the recommendations sent to Ohio EPA’s director. A regulated community representative involved in both the TMDL EAG and the GLI EAG stated. The GLI was the best one I've been with, the reason for that is it basically had a limited and well-defined objective. We had a federal rule we had to figure out how to implement it.. .those type of EAGs work best, you don't roam all over the universe, TMDL [EAG] was exactly the opposite.

Others felt that the rigid structure and clearly defined objectives of the GLI limited participation and involvement by stakeholders, and expressed relief that the TMDL EAG was structured very differently. The two primary caucuses in the GLI meetings, environmental and industry, both agreed that Ohio EPA would have to start addressing nonpoint sources, for Mercury and other toxins, but also for pollutants such as nutrients and sediment. US EPA who was conducting the GLI negotiations, said nonpoint sources had to be addressed through rules instituted at the state level. The environmental representatives involved in the GLI were quick to recognize the opportunity to address nonpoint source pollution, and that the TMDL program was a way to enforce it. Hence, the inclusion of Ohio's TMDL rules in the changes to the Administrative Code at the same time the GLI rules were put into law. 86 An interview with an environmental representative involved in the GLI describes the reaction of the major stakeholder groups to addressing nonpoint source pollution: The environmental communities said 'Yes, lets address [nonpoint sources], that's part o f the problem ' The point sources said, 'Yes, yes, yes.' Ohio EPA said, 'We've never seen anything like that, we don't do that, we just do tailpipes,' then they freaked out.

But, leadership at Ohio EPA would change the negative reaction of agency managers present at the GLI. An environmental representative interviewed characterized the leadership of Gary Martin (Assistant Chief, Division of Surface Water) at Ohio EPA who took up the challenge of addressing nonpoint source pollution: He [Gary Martin] acknowledged this [nonpoint source pollution] was a reality and he made the commitment that the Ohio EPA would deal with the nonpoint source problem down the line. I remembered it, I was never going to forget it. And the environmental community looked up to the fact that even though it was a scary thing for Ohio EPA to do, it was necessary. There was somebody that had the guts and integrity to do it, that's how Gary Martin is viewed, a real champion for that agency.

Ohio EPA's advances toward nonpoint sources and establishing their TMDL program had emerged from the GLI Extemal Advisory Group. The environmental community had worked hard to get representation o f environmental interests at the GLI meetings. They had worked closely with Gary Martin and others at Ohio EPA in the process and would be active in establishing the TMDL EAG, ensuring large numbers of participants from the environmental community, and large part in authoring the recommendations to the Ohio EPA Director.

5.4 Notice of Intent to Sue In April of 1998, just as Ohio EPA's Internal TMDL Team was getting started, a Notice of Intent to Sue was filed in Ohio. The Notice charged that US EPA was required to step in and establish TMDLs for Ohio because Ohio EPA's slow progress, approximately 1 TMDL per year, was effectively a construction submission o f no- TMDLs. A citizen activist, David Miller, from the Cincinnati area, filed the Notice of Intent to Sue. It took Ohio EPA and US EPA by surprise. In September the National

87 Wildlife Federation, Ohio Environmental Council, and League of Ohio Sportsmen filed a Notice of Intent to Sue as well, insuring that if David Miller did file suit these organizations would be involved in the case (MEMO to Ohio EPA, notice of intent letter). This was another surprise to Ohio EPA who had been working with the National Wildlife Federation and Ohio Environmental Council through the Great Lakes Initiative (GLI) Extemal Advisory Group (1995-1996). The Ohio Environmental Council had been prodding Ohio EPA to establish an Extemal Advisory Group on TMDL policy since the end of the GLI stakeholder process. By joining the Intent to Sue notice, Ohio Environmental Council made it clear to Ohio EPA management that if the TMDL Extemal Advisory Group process was not followed through by the next administration, they would be in a position to pursue litigation. This move gave the environmental community political clout in the eyes of Ohio EPA administrators. The Environmental community had been making strides in actively engaging itself with Ohio EPA policy, however, up until this point their ability to influence Ohio EPA actions had been limited. One environmental representative had this to say about the power of the litigation, “The environmental community has certainly threatened a lot of other times, they’ve had to file a lawsuit and hire a lawyer. Never before have we filed an Intent to Sue letter and something moved [at Ohio EPA].” The industrial community had closer ties to Ohio EPA staff and management, through permitting processes and upper levels of management. Backed by the resources of the National Wildlife Federation, and the successful litigation around the U.S., the environmental community had finally awakened the interest of Ohio EPA Administration. The Notice of Intent solidified Ohio EPA's need to move forward on developing its TMDL program. It also gave the environmental community a powerful bargaining chip as it participated in the TMDL Extemal Advisory Group.

5.4.1 Outside Encouragement for Ohio EPA's TMDL Advisory Group In addition to the pressure from the environmental community to open TMDL program development to a stakeholder advisory process, respected people from other state agencies such as USDA Natural Resource Conservation Service (NRCS) and Ohio

88 Department of Natural Resources encouraged Ohio EPA to begin TMDL stakeholder process. Similar to Ohio EPA staff, the people from other government agencies were acting as policy entrepreneurs to forward the TMDL process. These policy entrepreneurs were able to convince Ohio EPA to proceed with a stakeholder process to develop its TMDL program. One government agency representative stated, "Ohio EPA has a history of not involving the public in decision-making and the environmental community is very troubled by this, better to have an open dialogue than no dialogue and reinforce the pending lawsuits." This representative went on to say: I was personally rather concerned that the people who always sat around that table [negotiating with Ohio EPA] were the same-old same-old attorneys for the regulated industry, the farm bureau kids, and there was really very little others at the table. So this seemed like the ultimate opportunity to involve a broader public.. .We could actually have farmers, and Farm Bureau and EPA and Ohio Environmental Council and the greenies and brownies all sit together and it would be o.k.. Thank god for Gary Martin at EPA. Gary Martin understood that they had to do it, it was the right thing to do.

Ohio EPA had encouragement and support from well-respected individuals in other state agencies that advised the stakeholder involvement would not backfire on Ohio EPA, and could work to promote trust and confidence in Ohio EPA staff and management. The pressure from environmental groups, in particular, Ohio Environmental Council and National Wildlife Federation, was critical in pushing Ohio EPA to form the TMDL Extemal Advisory Group. But as evidenced by the previous quotes, the role of extemal policy entrepreneurs and the leadership at Ohio EPA, especially Gary Martin, were also very important. The TMDL EAG, in midst of the Notice of Intent to Sue and uncertainty in federal regulations and state requirements was put into motion. This process would provide an extraordinary opportunity for the participation of new stakeholders and the opportunity to influence and shape not only Ohio EPA's policy, but also its scientific practices.

5.5 Ohio's TMDL Extemal Advisory Group: Formation and Representation The timing o f the initiative to involve the public in forming Ohio EPA's TMDL policy was crucial to its ability to question practices at Ohio EPA. The TMDL EAG was

89 started early, while Ohio EPA’s internal team was still finalizing its document on outlining the steps of implementing the TMDL program. This timing allowed those engaged in the EAG to gain knowledge about Ohio EPA’s decision-making process, its scientific practices in determining pollutant loads and allocation to dischargers, and how it decided who would be held responsible under TMDLs. This made transparent the policy and scientific process at Ohio EPA. The stakeholders were allowed to criticize and recommend practices for the TMDL program. Scientific practice always contains uncertainty; there is never a scientific decision that does not contain value judgments or best professional judgments. For particular issues in the TMDL process, the uncertainty was made transparent to stakeholders, and they were given a forum to debate the policy and scientific practices. Stakeholders questioned the science of TMDL development and influenced the policy formation process at Ohio EPA. Issues addressed in the TMDL EAG included four main areas of TMDL policy and scientific practice that were uncertain and open to public debate: 1. Authority of Ohio EPA over nonpoint source pollution. 2. Data sources and quality assurance of data and modeling procedures for listing water segments, TMDL calculation, and verification procedures. 3. Scientific practice determining how pollutant loads are calculated and how those loads are distributed between point and nonpoint contributors. 4. The role of stakeholders in developing pollutant loads and implementation of mitigation measures under TMDLs.

The ability of citizens and interest groups to question the science of TMDL development illustrates that society is engaged in the determination of environmental problems and their solutions. Citizens and interest groups question the ability of science to legitimate decisions with high economic and political costs (Beck 1992). The traditional trust in expert knowledge of scientists and the government has been eroded. The public has demanded a more active role not only in policy and implementation, but also in the determination of scientific practices. This ‘critical reflexive' approach of the public describes the current TMDL situation where citizens are less constrained by

90 institutions promoting economic development and reliance on government decision­ making, but armed with information, are critical o f policy formation processes (Ward 1996).

5.5.1 Representation: How were Stakeholders chosen for the TMDL EAG? Public forums debating policy and scientific practice do not guarantee each interest group or “stakeholder” has equal access to influence policy. The term "open stakeholder process" may be deceiving in that it does not necessarily mean a democratic process. The term "stakeholder" is criticized for its implication that each interest group or citizen has an equal voice in the process and ignores the unequal power relations that exist between interests affected by water quality management decisions. I use the term stakeholder in recognition of these problems, and use it to describe the variety of public and private actors actively engaged in water quality policy and management in Ohio. By identifying the major players in the TMDL Extemal Advisory Group, and their influence on policy formation process, this study reveals the differential and changing power relations between actors involved in TMDL policy. In October 1998, Ohio EPA held a one-day Educational Forum on TMDLs for a large number of stakeholders in Ohio. In a letter from the Director of Ohio EPA, Donald Schregardus, inviting stakeholders to the meeting, the stated goal was to have 20 to 25 individuals on a TMDL Extemal Advisory Group (Ohio EPA 1998c). At the end of the forum, Ohio EPA asked for individuals interested in serving on the TMDL Extemal Advisory Group (EAG) to sign up for the committee. The response was overwhelming fi’om the approximately 132 people that attended the Educational Forum. The first TMDL EAG meeting was held on February 17, 1999, Ohio EPA sent letters of invitation to 145 people and organizations. At the February 17, 1999 meeting, the TMDL EAG participant list included 97 people (plus two facilitators) divided into four subgroups: Listing, Development, Implementation', and Air Deposition/Mercury, each led by two co-chairs. The subgroups met monthly, or sometimes twice a month, with the full EAG meeting every couple of

91 onths over the 18-month process. The members of the Extemal Advisory Group were representatives of diverse interests including Ohio EPA and other state agencies such as Ohio Department of Natural Resources, US Geological Survey, USDA Natural Resource Conservation Service and Ohio Department of Agriculture. Additional participants were from local governments, county soil and water conservation districts, municipal wastewater treatment plants, industry, construction and real estate developers (Ohio Home Builder’s Association), farmers, Ohio Farm Bureau, state and national environmental organizations, local watershed groups and interested citizens (Ohio EPA Extemal Advisory Group on TMDLs 2000b). The selection process for the one-day Educational Fomm and the TMDL EAG was run by Ohio EPA, however, in contrast to previous EAG’s, the Ohio Environmental Council (Council) was instrumental in spreading the word and strongly encouraging participation. The Council encouraged attendance by environmental organizations, citizen consumer groups, and individuals concemed with water quality issues. Largely by their efforts they expanded the stakeholder involvement to four times what Ohio EPA had initially envisioned for the TMDL EAG. The Ohio Environmental Council was instrumental in getting the EAG process started and they continued to work hard to have high participation from the environmental community. From the beginning, the environmentalists were actively engaged and leading the TMDL EAG. In the TMDL EAG, the environmental organizations were very well represented on each of the subgroups; in fact, one of the co-chairs for each subgroup was a representative from the environmental community. This would prove to be a cmcial level of involvement when it came time to writing the draft report for the final recommendations. This was a large commitment of staff and resources, in particular Ohio Environmental Council had 6 staff members fully engaged in the TMDL EAG,

' The Implementation subgroup later split into two groups, tools (specific pollution mitigation strategies) and regulatory (existing and enabling laws, regulations and authority), to hilly address the issues. 92 along with additional board members and volunteers. One of the DEC staff characterized their involvement by stating, "It was too critical an opportunity, that at least our organization saw could not be missed. If we pushed Ohio EPA [into the TMDL EAG], we needed to make the commitment to Ohio EPA that we were going to do our part also." Ohio EPA and the Steering Committee for the TMDL EAG developed a charter for the TMDL Extemal Advisory Group stating the mission of the group (Ohio EPA 1998c): The purpose of the TMDL Extemal Advisory Group (EAG) is to facilitate an open, dynamic, multi-stakeholder process to provide input, advice and recommendations to the Ohio EPA in the development of effective strategies to complete and implement TMDLs as a tool in the restoration of Ohio's impaired watersheds.

The EAG was charged with making consensus recommendations to the Director of Ohio EPA by June 30, 2000. The groups were to work in conjunction with Ohio EPA staff, and review the intemal team’s work and provide comment on it. As the two processes were happening mostly concurrent to each other, this last objective was not a large part of the TMDL EAG final report. The TMDL EAG report provided recommendations for Ohio's TMDL program using the format of the FACA committee. For each issue addressed there is a problem statement, discussion of the issue, and specific recommendations. When the subgroup could not meet consensus a minority report is included. The Steering Committee consisted of representation to mirror the make-up of the TMDL EAG. This was very different from previous EAGs in the Great Lakes Initiative Rulemaking and Anti-degradation group. In these previous EAGs conducted by Ohio EPA the stakeholders had been divided between two interest groups or caucuses, one environmental (representatives of state and local environmental groups) and the other the regulated community (representatives of industries and municipalities subject to Ohio EPA permitting processes). The TMDL EAG was much too broad for working with the two usual caucuses, so the group formed a steering committee with representatives from numerous interest groups, including municipalities, industry, utilities, environmental organizations, federal government, Ohio Department of Natural Resources, Ohio EPA,

93 the Nature Conservancy, Ohio Farm Bureau, County Commissioners Association and the development community, in addition to one chair from each subgroup (Ohio EPA Extemal Advisory Group on TMDLs 2000b).

5.6 Who are the Major Players? The Stakeholder Groups in the TMDL EAG The participation in the TMDL EAG was diverse compared to previous Ohio EPA extemal advisory groups. Besides the large number of environmental participants, the TMDL EAG included representatives from local government, other government agencies, and a larger number of interested “experts” from academia and technical backgrounds. This representation however, did not mirror the general public. The group was highly educated and most were employed in ‘professional' occupations relating to water quality research, management, or advocacy.

5.6.1 Demographic Profile of the TMDL EAG

The demographic profile of the TMDL Extemal Advisory Group reflects a specialized segment of the Ohio's population. Respondents to the formal survey instrument were all residents of the state of Ohio, and 42% lived in Columbus or surrounding suburbs. The remaining respondents were from greater Cleveland and Cincinnati areas, Athens County, and rural or suburban townships across Ohio. The TMDL EAG survey respondents were 74% male and 26% female (the entire EAG TMDL had exactly the same ratio between males and females). The youngest was 26 years old at the time of the survey, and the oldest was 75 years old, with an average age of 48 years old. The respondents were 100% Caucasian, reflecting the makeup of the entire TMDL EAG which had very little ethnic diversity. The TMDL EAG was a highly educated group of stakeholders, reflecting the specialized and technical nature of the EAG. Of 40 survey respondents supplying their highest level o f education completed, 40% had bachelor degrees, 45% had master's degrees, 10% had law degrees, and 5% had Ph.D. degrees. All participants engaged in the TMDL EAG are believed to have completed at least some college education.

94 The average income for TMDL EAG fell between $70,000 and $80,000 for total household income in 1998 (the last tax year prior to the survey date). This income statistic includes the presence o f two-income households. The range of responses was very large, one respondent had less than $20,000 per year in income and three respondents had total household incomes exceeding $150,000 per year. However, a large group, 41% of the respondents, fell between $50,000 and $80,000 in total household income for 1998. The membership of the TMDL EAG was very supportive of environmental organizations; 78% of the respondents had contributed money to environmental organizations and 83% participated in other ways such as attending meetings and volunteering time. The financial contributions included donations to national environmental organizations such as The Nature Conservancy, National Wildlife Federation, and American Rivers. In addition, donations were given to Ohio organizations such as Ohio Environmental Council, Ohio Citizen Action, Green Environmental Coalition, Friends of the Lower Olentangy, and Friends of Blacklick Creek. Several of the respondents served as board members or technical advisors to either the statewide organizations or watershed-based organizations.

5.6.2 Major Stakeholder Groups in the TMDL EAG The members of the TMDL EAG were classified into five major stakeholder groups based on their identification of occupation and description of job responsibilities (see Table 9.1). The first group. Regulated Community, includes industrial and manufacturing operations, electric utilities, municipal wastewater treatment plants, construction industry and lawyers representing these interests. Representatives from forestry operations, farming, and Ohio Farm Bureau comprise the second group. Farming and Forestry. The Government stakeholder group includes staff from Ohio EPA and other government agencies including USDA Natural Resource Conservation Service, Ohio Department of Agriculture, and Ohio Department of Health. The fourth group. Environment, consists of non-profit environmental organizations ranging from local watershed and issue-oriented groups to well-established statewide umbrella

95 organizations. The final group. Research and Technical, includes university researchers (e.g. Ohio State Extension) and hydrologie modeling consultants and specialists.

Stakeholder Group Members 1. Regulated Community Electric and other utilities, Industry and Manufacturers, Municipal Wastewater Treatment Plants (WWTP), Construction Industry 2. Farming/Forestry Farmers, farming organization (Ohio Farm Bureau), large timber operations 3. Government Ohio EPA, Department of Natural Resources, Department of Agriculture and Ohio Department of Health 4. Environment Local watershed groups, statewide umbrella organizations, local chapters of national groups 5. Research/Technical University professors, modeling consultants

Table 5.1. Major Stakeholder Groups in Ohio's TMDL EAG.

There were only a small group o f citizens and individual farmers represented in the EAG. Some stakeholder groups recognized the potential of TMDLs to alter how water quality is managed. In particular, the environmental groups, with an alliance from government policy entrepreneurs, strongly advocated for TMDLs as a way to address remaining nonpoint source pollution. Farmers and the Ohio Farm Bureau, who potentially could face significant impacts, continued on as if largely exempt from any regulatory oversight. The next sections address the motivation of each of the major interest groups engaged in the TMDL EAG.

5.6.3 Government Agency Policy Entrepreneurs A large number of state agencies and local governments were represented on the TMDL EAG. These representatives were invited to the EAG in recognition that implementation of the TMDL program would require the coordination of expertise and

96 authority from state agencies other than Ohio EPA. The existing authorities to address nonpoint source pollution are spread through several agencies including: Ohio Department of Agriculture (agriculture and specifically pesticide management, silviculture and now CAFO, see below), including the Natural Resource Conservation Service (nonpoint source pollution management); Ohio Department of Health (on-site sewage treatment); Ohio Department of Natural Resources and its Division of Soil and Water Conservation (agriculture pollution abatement, riparian corridor protection); and Ohio EPA 401 water quality certification (impacts from development projects). Ohio EPA saw the TMDL EAG as an opportunity to not only get stakeholder input on the TMDL process developed by the intemal DSW TMDL Team, but also to help develop strategies for the TMDL program. Ohio EPA hoped the EAG would fill in the gaps of the implementation phase of TMDLs. In addition the EAG was seen as a way to educate stakeholders on the capabilities and limits of Ohio EPA in the TMDL program. Evan more importantly, Ohio EPA wanted the EAG to serve in building a base of support for Ohio EPA's program. This base of stakeholder support would be used by Ohio EPA in approaching Ohio's General Assembly to ask for financial and staff resources to implement TMDLs (Interview with Ohio EPA Manager). The involvement of government agency “policy entrepreneurs” would also prove influential. The non­ government stakeholder groups represented on the TMDL EAG had different visions of the purpose of the TMDL EAG, and what it should accomplish during its process.

5.6.4 Environmental Community The environmental community viewed the TMDL EAG as an opportunity to address the previously unregulated nonpoint source pollution. The environmental community had been instrumental in the GLI process, and used that momentum to begin the TMDL program. The rise in power of the environmental groups, at least in the TMDL EAG, was partially due to the national success of TMDL litigation. With the Notice o f Intent to Sue filed, the environmental community had a powerful bargaining chip it could wield if the public participation process did not go forward, or if Ohio EPA failed to follow through

97 on TMDL development. The successful litigation across the United States over inadequate TMDL programs provided legal mandate to the environmental community, power that had not been present in previous negotiations with Ohio EPA and industry. Another factor influencing the power of the environmental community in Ohio is the interpersonal relations between the environmental community, and in particular Ohio Environmental Council, and Ohio EPA. Traditionally, the permitted point sources had close relations with agency staff afforded by the working relationships established during permit writing (these working relations remain important today). In addition, political relationships were often established at higher levels of management at Ohio EPA with industry, local governments and municipal wastewater treatment plants. The environmental community, in the past, had been working from the outside. But, with a rise in environmental awareness throughout the 1990s, a connection developed between Ohio EPA staff (in particular among watershed and nonpoint source units) and the members of the environmental organizations. Part of this connection can again be contributed to Ohio Environmental Council, whose staff members developed close working with Ohio EPA. Adopting the industry model, OEC staff members began to visit Ohio EPA staff, in person, to discuss issues such as challenges to industry or construction permits and the formation of public comment/public participation meetings. The two staff groups often shared a common philosophical stance of wanting to clean up water pollution, and in particular recognition of nonpoint source problems. Many of the younger Ohio EPA staff has bachelors and master's degrees in environmental related fields, very similar educational backgrounds as the environmental community representatives. The environmental and regulatory staff members received an education steeped in ecosystem concepts of interconnections between biological, physical and chemical aspects of water resources, and the importance of public participation in environmental management. These concepts are central in TMDL program development.

5.6.5 Industry and Municipal Wastewater Treatment Plants The industry and municipal wastewater treatment plant representatives were concemed about what TMDL implementation could mean to their operations. In the

98 GLI, industrial representatives recognized the need to address nonpoint source pollution, however, the TMDL program made industry nervous. Yet, in previous workings with Ohio EPA, point sources did not get involved until it was time to apply for NPDES permits. A lawyer representing diverse permitted industries and facilities encouraged the point source community to get involved early with TMDL policy formation. The lawyer advised that waiting until the permitting is underway would be too late; the TMDL program would be in place. Industry came to the TMDL EAG because of fears that if TMDLs failed to adequately control nonpoint source pollution the reductions required by TMDLs would be secured through reducing effluent discharge under NPDES permits. The industrial community has expressed the feeling that they are regulated to the maximum extent, and that further water quality improvements will have to come from nonpoint sources. In the previous chapter the claim that point source impacts were already cleaned up was disputed by industry itself in the case Dioxin/Organochlorine Center, et al. v. Clark.

5.6.6 Development and Construction Industry The development, construction and home building industry, like the point source dischargers, were also nervous over the TMDL program. Although they consider themselves part of the regulated community because there are subject to Ohio EPA administered CWA Section 401 Water Quality Certification, the nature of pollution produced from construction is closely allied with nonpoint sources. In addition there is not good enforcement of Best Management Practices (BMPs) prescribed in 401 permits, therefore the construction industry is viewed by others to have major contributions to water pollution problems and very little regulatory oversight (Interview with Ohio EPA Manager). This has become a point of tension between construction/development community and the remaining industrial and WWTP facilities. These latter groups are tiring of their heavy regulatory burden and fees, while construction industry continues on with little regulation. Under TMDL policy, there is a rift beginning to form in the pro­ growth alliance between point source industry and construction/development community.

99 5.6.7 Agriculture Community Many stakeholders interviewed in this study expressed concern that the agriculture community seemed not to realize the extent to which TMDLs may impact their operations. This was the reason largely attributed to the large absence of Agriculture representatives at the TMDL EAG. On the national level there has been significant resistance to TMDL application to nonpoint sources from agriculture and silviculture operations on the FACA Committee and in a California court case Pronsolino V Marcus 2000. The TMDL EAG had minimal representation from Ohio Farm Bureau and soil and water conservation districts. As one TMDL EAG member put it, the Ohio Farm Bureau sent a representative to "hold down the fort', but did not take the process seriously. In fact, near the end of the TMDL, the agricultural community did an end run around Ohio EPA authority over nonpoint soince pollution. When agriculture was directly threatened with regulation of large Confined Animal Feeding Operations (CAFO), the Farm Bureau went to their allies in the state legislature and were successful in passing legislation to move the CAFO regulation from Ohio EPA to Ohio Department of Agriculture. Thus farmers were able to remove themselves from Ohio EPA’s regulatory oversight, and splinter the farm pollution regulatory effort between Ohio EPA nonpoint management programs and Ohio Department of Agriculture oversight on large animal feeding operations. This move illustrates the continued power of the agricultural community in the state legislature. Although it remains to be seen how ODA will regulate the CAFO industry, the move could seriously hinder the ability of TMDLs to mitigate impacts from CAFO operations.

5.7 Impact of the TMDL Extemal Advisory Group It is difficult to ascertain the exact moments of influence from the TMDL EAG on the scientific processes and policy formed at Ohio EPA. The final report of the EAG was presented as recommendations to the Director of Ohio EPA, Chris Jones, and was not directly assessed for incorporation into the Division of Surface Water's TMDL program. The four TMDL projects nearing completion in 2001 were largely under way during the

100 TMDL EAG meetings and therefore, were not largely impacted by the final recommendations. Interviews with members of the TMDL EAG indicate that the exact influence is not yet visible. Some of the TMDL EAG members expressed fimstration with the TMDL EAG Report as more of a "wish list" of changes to Ohio EPA's entire water quality management and regulation, rather than specific recommendations for the TMDL program. Many of the interviewees identified that the primary contribution of the TMDL EAG was bringing diverse interests together to debate contested issues of addressing nonpoint source pollution and reducing water quality impacts. No doubt that the Ohio EPA staff who were actively involved in the TMDL EAG, were influenced by the debates, negotiations, and recommendations. The TMDL EAG did identify the uncertain moments in scientific modeling and contested issues that are being debated by stakeholders in specific TMDL watershed projects. The tracing of stakeholder influence on TMDL scientific practices is observable through the stakeholder influence at the individual watershed level and this process is addressed through the Ohio EPA water quality science and the Mill Creek Watershed TMDL in Chapters 6 and 7.

5.8 Conclusion This chapter reviewed several events leading to development of Ohio EPA's TMDL program including the Division of Surface Water's TMDL Team, Great Lakes Initiative Extemal Advisory Group, and the Notice of Intent to Sue. A consistent theme throughout these three events was pressure from the environmental community for Ohio EPA to address remaining nonpoint source pollution. From DSW’s intemal TMDL team, it became clear that Ohio EPA staff acting as policy entrepreneurs have actively shaped the goals and methods of TMDL development. In addition, Ohio EPA was influenced by the TMDL EAG, over an 18-month process stakeholders were actively debating the goals, purpose and specific methods of TMDL implementation. The opening up of the policy formation process revealed the specific areas o f scientific uncertainty and policy that allowed stakeholders to criticize and influence policy and scientific outcomes. Stakeholders are no longer content with accepting the policies determined by experts or government agencies. They recognize

101 that science is unable to solve disputes regarding equity, and issues with high economic and political costs. The environmental community insisted that the TMDL process be opened up to a public policy formation and that is what took place in the establishment of the TMDL EAG. Key to the environmental community’s success was the power of the litigation occurring across the United States. Armed with the backing of court orders and resources of the National Wildlife Federation, Ohio EPA was forced into creating a TMDL program, opening it to stakeholder comments, and implementing TMDLs in specific watersheds. The active participation by the environmental community throughout the TMDL EAG and especially in drafting the recommendations allowed them considerable influence on the report submitted to Director of Ohio EPA Chris Jones in June 2000. The outcome of the Ohio's TMDL program is still being fought over, negotiated, and debated by stakeholders and Ohio EPA. The ability of Ohio EPA to address nonpoint sources, and hold off litigation by the point source community, hinges on the adoption of federal regulations for TMDL policy. These regulations are now being held in limbo by a congressional ban on finalizing the rules or providing funding for TMDL implementation until 2003. US EPA Administrator, Christine Todd Whitman, supported the delay in congress in order to end lawsuits brought by the agriculture and construction industries opposing the TMDL regulation of nonpoint sources [Pianin, 2001]. This delay may prove to be costly. The organizations who filed the 1998 Notice of Intent to Sue over Ohio EPA's TMDL program, filed suit in US District Court in Columbus in October, 2001. They are seeking to force Ohio lawmakers to fund TMDL implementation in Ohio. National Wildlife Federation, Ohio Environmental Council and the League of Ohio Sportsmen are reacting to state budget cuts given to Ohio EPA and Ohio EPA's announcement that TMDL implementation in all watersheds would not be complete until 2023, 10 years past the deadline set by US EPA, and 17 years past the deadline sought by environmental groups [Hawthorne, 2001]. The struggle to get adequate funding for Ohio's TMDL program is now entering the courts. The lawsuit is evidence that the environmental community will not allow Ohio EPA to delay implementing TMDL programs. The cry

102 o f Ohio EPA has always been an unfunded mandate from US EPA. Now, environmentalists are suing to secure that funding for Ohio EPA. The chapter ended with a summary of the major stakeholder groups involved in Ohio's TMDL EAG and their motivation for participating in the process. While the stakeholders engaged in the TMDL EAG are diverse compared to the previous stakeholder processes at Ohio EPA, there were interests under-represented. Analyzing the motivations of major stakeholder groups illustrated that the power of the environmental conununity had a lot o f influence on the TMDL EAG, while the Farm Bureau was able to influence the process through the Ohio Legislature. The next two chapters on the Science of Ohio's Water Quality Program will describe Ohio's water quality standards, the science of TMDL development, contested scientific issues and delve into specific points of stakeholder influence on scientific practices of TMDL implementation.

103 CHAPTER 6

OHIO’S WATER QUALITY REGULATION: SCIENCE, WATER QUALITY STANDARDS AND TMDL DEVELOPMENT

6.1 Introduction How does Ohio EPA conduct the science of water quality analysis? This chapter addresses the establishment of water quality standards and methods of water quality analysis for TMDL development. I address several key scientific practices: setting water use designations and applicable water quality standard, and Ohio EPA's use of biocriteria in addition to chemical water quality analysis. These practices are important because they form the basis for determining which waters are not meeting water quality standards and thus subject to TMDL development. In addition this chapter addresses the following questions: What are the steps of TMDL development? What is causing water pollution in Ohio and what are the sources of the most common pollutants? How does Ohio EPA identify these pollutants and their sources? Within science and regulatory practice certain moments are discretionary, meaning they involve best professional Judgment of scientists. Data collected from water chemistry samples and biological monitoring does not automatically translate into information needed for policy and regulation. The data must be interpreted and analyzed to produce information required to make informed decisions. This analysis is what is termed the science’ of water quality regulation, "knowing what data are needed and turning those data into information constitutes, in large part, the science behind a water quality management program (National Research Council 2001).’’ The process of interpreting and analyzing data creates discretionary moments where the science is uncertain and open to social and political influence.

104 Throughout the scientific process of monitoring water quality and modeling pollutant loads, best professional judgment and assumptions are made that influence the regulatory outcomes. The process o f allocating responsibility for pollution explicitly moves beyond data or scientific modeling to require best professional judgment and decisions involving equity and fairness. The science of water quality lies in the interpretation of data and the identification of causes and sources of pollution. It is at these discretionary moments where science is uncertain, open to debate and stakeholders are able to question scientific practice and influence regulatory outcomes. While reviewing the practice of science, this chapter points to the discretionary moments in the science of water quality regulation to reveal the social and political embeddedness of scientific practice. I begin the chapter with the required steps of TMDL development and the current watersheds undergoing the TMDL process. Following this, 1 turn to how Ohio EPA sets water quality standards, the use of biological criteria, and identification of causes and sources of water pollution. This chapter focuses on the scientific practices surrounding water quality regulation and the discretionary moments in the science of water quality management.

6.2 Specific Requirements of TMDL Development Total Maximum Daily Load (TMDL) policy is an ambient water quality-based program that is intended to clean up waterways that remain polluted after the application of point source technology-based controls under the 1972 Clean Water Act (Houck 1997a). The TMDL policy was designed to bring waters into attainment with water quality standards. Specifically, Total Maximum Daily Load is defined as the maximum load of any single pollutant that can be assimilated by a body of water and still allow the water to meet water quality standards. The TMDL process consists of five steps as outlined by US EPA guidance and Section 303(d) (US EPA 1991): 1. Compile a list of all streams, rivers and lakes (within a state or territory) with impaired or threatened water quality. 2. Prioritize the listed streams for TNflDL development. 3. Develop the Total Maximum Daily Load for specific pollutants in each water listed; allocate allowable pollutant loadings to all sources, both point and nonpoint.

105 4. Implement TMDL programs to reduce pollutant loadings to the stream. 5. Validate that the water quality is meeting state water quality standards, and if so, remove stream segments from the 303(d) list.

For each water body listed as a water quality limited segment (not meeting water quality standards), states are required to develop a Total Maximum Daily Load for each pollutant in excess of state standards. Once the maximum allowable pollutant load is determined allowable discharge amounts can be divided between all sources, both point and nonpoint, in the watershed. Advocating a basin or watershed approach to identification of all discharges is a central element of TMDL development and implementation. Although 303(d) lists are compiled by river or stream segments, calculation of the pollutant loading and implementation of mitigation strategies are required to address all discharges of a pollutant, thus implicitly requiring a watershed approach. Many state agencies have adopted the watershed approach in implementing TMDLs. US EPA has defined TMDL development in the following equation (US EPA 1991): TMDL = WLA + LA + MOS Where: WLA = waste load allocations (point sources) LA = load allocations (all other sources and background levels) MOS = margin of safety, including a margin for future population growth and development

Waste load allocations (WLA) refer to pollutant loadings from point source discharges, the industrial and municipal wastewater treatment plants regulated under the National Pollution Discharge Elimination System (NPDES) permits. The load allocations (LA) refer to all other sources of a pollutant, including ambient (background) loadings and nonpoint sources of pollution. Nonpoint source pollution refers to the diffuse runoff that comes from agricultural fields, timber (silviculture) operations, and urban and suburban land use including lawns, golf courses roads, parking lots, and other impervious surfaces in a watershed. These include all sources not regulated under the

106 NPDES system and those covered under the Clean Water Act Section 319 nonpoint source management programs. The margin of safety (MOS) is not specifically defined for the calculation of pollutant loadings but is included to account for uncertainty in data, models and load allocations. US EPA has also recommended that the margin of safety account for future land use development and population growth in the watershed. For example, under TMDL development, some modelers have added 20% of the total loading to account for the margin of safety and future growth. In other cases, modelers have simply relied on conservative estimates for all the parameters of the model in order to account for uncertainty, error and future growth (US EPA 1991).

6.2.1 Current TMDL Development During the 1990's Ohio EPA developed several watershed restoration plans that were approved as TMDLs by US EPA. The first watersheds scheduled for TMDL development were for the 1993-1994 state fiscal year and included Bokes Creek and Black River. The Bokes Creek TMDL work became the basis for a Watershed Management Plan to address excess nitrogen in the stream, but few implementation activities took place in the watershed. The Black River modeling work was started but not completed do to insufficient resources. In the fiscal year 1995-1996, the Lower Mahoning River was slated for TMDL development. Models indicated that it was not permitted point sources causing impairment, but possibly unknown sources or nonpoint sources were responsible for the excess metals causing aquatic life impairment. The Lower Mahoning TMDL also did not go into implementation. Ohio EPA's first approved TMDL was the Middle Cuyahoga River completed in 1999 and approved by US EPA in October 2000 [Ohio EPA, 1998e] (See Map 6.1). For fiscal year 1999-2000, Ohio EPA increased the pace of TMDL development after an agreement was signed with US EPA Region 5 requiring a 15-year schedule for completion of TMDLs. This timeline was seen by Ohio EPA management as unrealistic given the existing financial and staff resources at Ohio EPA. Ohio EPA has listed 881

107 ifKhBriit with Ittinaimri n r T h fa H in a d W atars ------a J ^ USGS Hydrologie Unit InvM irment/Thraat Rank = 1 to 6 ' (First 8 (ggits of W aterofied ID) InipainnenVTIveat Rank « 7 to 11 r — 1 W atershed Unit Impaimnant/TIveat Rank = 12 to 16 ISelected for TMOL Development in FFY 1999-2000 (Last 3 digits of W atershed ID)

I 1 No impairment or threat iivticatad. other than the statewide fish consum ption advisory for mercury.

Map 6.1 Ohio’s Watersheds in the TMDL Priority List (Source Ohio EPA 1998). Low impairment rank indicates a more serious impairment/threat

108 segments having impaired water quality. Under the timeline agreed to, Ohio EPA would have to complete approximately 18 TMDLs each year to finish by the year 2013. To date, there have been only a handful of TMDL projects under development. For completion in 2000, Ohio EPA listed four watersheds. Mill Creek (Tributary to Ohio River), Upper Little Miami River, Rocky River and Sugar Creek (Tuscarawas River). As of mid-2001, all four TMDL draft reports were complete and undergoing public review processes. They are expected to reach completion by the end o f2001 and be sent to US EPA for approval (Ohio EPA 1998d). In 2001, the next watersheds slated for TMDL development include Upper Stillwater River, Bokes Creek, Mill Creek (Marysville) and Raccoon Creek. In 2002 TMDL work is scheduled for Upper Auglaize River, Upper Cuyahoga River, Lower Cuyahoga River, Duck Creek (tributary to Ohio River) and Big Walnut Creek. Watersheds are slated for TMDL development based on a priority system ranking level of impairment in conjunction with Ohio EPA's 5-year basin monitoring schedule. Following this priority system several of the most impaired watersheds in the state have been addressed first (Middle Cuyahoga, Sugar Creek and Mill Creek Cincinnati) (see Map 6.1).

6.2.2 Ohio EPA's 12-Step Process and Discretionary Moments in Science Information reported in the 305(b) Report, called Ohio’s Water Resource Inventory, are the basis for listing waters on the 303(d) TMDL list and the prioritization of watersheds for TMDL development. However, the data is not sufficient for determining the allowable load of pollutants for rivers and streams. TMDL development requires collecting additional data and employing modeling to determine pollutant loading, necessary reductions to achieve water quality standards, and the allocation of allowable pollutant loads between the point and nonpoint sources in the watershed. These tasks require data analysis and modeling in addition to best professional judgment of the modeler. Ohio EPA developed an intemal TMDL charter group in 1998 to outline the necessary requirements for a TMDL program in Ohio (See Chapter 5 on Evolution of Ohio’s TMDL Program). One result of the TMDL group was a 12-step process outlining

109 TMDL development (Figure 6.1), which has been utilized in producing the four TMDL projects for fiscal year 1999-2000 (Mill Creek, Sugar Creek, Rocky River and Upper Little Miami River). The 12-step TMDL development process is centered around several major activities: 1) data collection from within Ohio EPA, other state agencies, and academic or stakeholder data (e.g. water quality studies done by WWTP or local governments), and conducting additional water quality monitoring as needed; 2) Calculation (ranges from simple mathematical computations to complex modeling) to determine causes of concern, sources of pollutants, pollutant loads and needed reductions to meet water quality standards; 3) Development of restoration scenarios in concert with stakeholders and producing an implementation plan' ; 4) Implement TMDL restoration scenarios inside Ohio EPA (e.g. revised permits for point sources) and outside Ohio EPA through stakeholder efforts (e.g. installing best management practices such as buffer strips in riparian corridor or fencing to prohibit cattle access to streams); and 5) Validation o f improved water quality and effectiveness of restoration activities; includes decisions to de-list stream segments if water quality standards are met or to re­ open the TMDL for additional modeling or restoration activities. Throughout the 12-step development process there are discretionary moments where the science is uncertain, methods are debated, and stakeholders are sought out to provide comment and input to TMDL process. The discretionary moments include determining specific causes and sources of pollution (Steps 3 and 4), determining the existing load and identify needed reduction (Step 5), selection of restoration activities (Step 6). Public participation is explicitly requested in Step 4 to collect data from stakeholder sources and identify stakeholder involvement throughout the process. In Step 6, stakeholders are involved in developing scenarios for restoration activities and identify ways to meet target pollutant loadings. In Step 8, stakeholders are given the opportunity

' Assumes that federal rules will be finalized to require implementation plans included in the TMDL report submitted to US EPA for approval. 110 I D esig n C o llect Identify D evelop S e le c t ! W atefshed W a ta r T a rg e t Restoration Restoration I S u rv ey Q uality D a ta C o n d itio n s T arg ets S c e n a rio

Examine CoSactand Discuss iteam el eempae xoenarloeW infonneden by designated itaieirulUeii: OmamaOtDT ottwr Examine causes and s a u n a s of impainnenla o r C em pM e •tudypian design ssr suppod

P re p a re S u b m it Im plem ent Im p le m e n t A nnual H a v e W Q S Im p lem e n t­ TMDL TMDL TMDL V aM ab o n B e e n a tio n P lan R e p o rt (MdaOEPA) auWdeOEPA) ActM Oes Achieved?

Provide Wb Vediymanm^plan TMOLropett IbrWQMP OhtoEPA

Idenaiy legal adlonaWo authodUaa OdM^Mcr __ * I

Figure 6.1. Ohio EPA’s TMDL Development Process (Source Ohio EPA 1999).

Ill for formal comment period on the TMDL report and Ohio EPA is required to respond to comments. And finally in Step 10, specific parties are identified to implement restoration scenarios developed jointly by Ohio EPA and stakeholders fi-om the watershed. The discretionary moments in water quality analysis and TMDL development are addressed in this chapter and Chapter 7. The following sections address the scientific practices of Ohio's water quality standards, methods o f assessment and identification of causes and sources of pollution. These tasks represent the science necessary to conduct TMDL development. Chapter 7 focuses on model selection, authority over nonpoint sources, phased implementation, and allocation of responsibility among sources in the watershed. These discretionary moments are where stakeholders enter the scientific process to challenge, debate and influence the outcomes.

6.3 Ohio's Water Quality Standards The starting point for TMDL development is the designated water use and related water quality standard. The listing of stream segments that are polluted or not attaining the applicable water quality standard triggers the TMDL process. In this section I review Ohio’s water quality standards, methods for monitoring water quality and identification of causes and sources o f impairment. Ohio's biological monitoring program uses environmental indicators such as fish and macroinvertebrate communities, and quality of habitat characteristics to determine if streams are reaching water quality standards. As the first step in the TMDL development process, having well designed water quality standards and designated uses is essential to creating a quality TMDL process. Ohio Water Quality Standards are based on four use categories; aquatic life habitat, public water supply, recreation and state resomce waters. Under each of these categories waters may be designated for one of several aquatic life habitat uses, or water supply uses (see Table 6.1 for description). Use Attainability Analysis (UAA) considers the physical, chemical, biological and economic factors impacting waters and assigns a specific use designation for each waterbody.

112 Interested parties in the watershed may dispute the designated use category. In areas of extreme modifications and severe water quality problems some industrial and commercial stakeholders have argued that water use designations should be lowered to reflect the condition of the stream and its inability to attain the water quality criteria associated with its designated use. This lowering of the standard would allow the stream to be listed as "in attainment" with water quality standards. However, one may suspect ulterior motives on the industrial side, as their wastewater effluent restrictions may not be set as strict in a lower use designation. Use designation is not based solely on the physical characteristics of the stream, but may also take socio-economic factors, historical land use and public comments into consideration. Ohio EPA reviews use designations as data and information become available. As illustrated by this example, stakeholders can influence the designation process. Another example of stakeholders debating the designated use is in the Mill Creek Watershed (see case study in Chapter 7) where environmental stakeholders challenged Ohio EPA's assigned use designation along one segment. Ohio EPA lists most of the Mill Creek as Modified Warmwater Habitat (MWH), indicating that the stream has been subject to irreversible physical modifications including channelization. However, the lower portions of the Mill Creek Watershed that have not been channelized are beginning to return to a meandering pattern, riparian vegetation grows along the banks, and wildlife and birds have been seen in the area. Some of the environmental community in the Mill Creek Watershed have tried to get Ohio EPA to assign a Warmwater Habitat (WWH) use designation reflecting the existing conditions, and thus providing a higher standard for water quality protection (Source: Interview with Mill Creek Stakeholder). In the mid and upper portions of the Mill Creek, some have argued for an even lower use designation (Limited Resource Water) to reflect the modifications and the irreversible urban and industrial impacts to the water quality. However, to date, Ohio EPA has not altered the use designation.

113 6.3.1 Narrative and Numeric Criteria Water quality standards, in narrative or numeric form, are assigned for each specific use category to assure that the designated use is protected. Narrative criteria include criteria for nutrients (such as phosphorus and nitrogen) and other pollutants under five 'free from' provisions. The 'free from' provisions apply to all state waters, "to every extent practical and possible as determined by the Director of Ohio EPA (Mullins and Vertrees 1995: 9)." The 'free from' provisions provide that waters should be free from the following substances that enter as a result of human activity (Mullins and Vertrees 1995): ■ Free from suspended solids or other substances that will form putrid or sludge deposits, or that will adversely affect aquatic life

" Free from bloating debris, oil, scum and other materials

■ Free from materials that produce color, odor, or other condition to the degree that it’s a nuisance

" Free from substances that are toxic or harmful to human, animal, or aquatic life, or that are rapidly lethal in the mixing zone

■ Free from nutrients in concentrations that create nuisance growth of aquatic weeds and algae

The 'free from' provisions are narrative standards and thus are difficult to enforce. The subjective nature of interpreting the narrative standards provides leeway to Ohio EPA in taking enforcement actions on pollution levels. Many of the free from provisions apply to nonpoint source pollution (specifically nitrogen and phosphorus), and the designation of numerical criteria for these pollutants have been opposed by powerful

114 USE SUB DESCRIPTION DESIGNATION CATEGORY Aquatic Life Waters support balanced, integrated adaptive Warmwater Habitat community of warmwater aquatic organisms Exceptional Waters support an exceptional or unusual Warmwater community of warmwater organisms Waters with irreversible modifications to Modified physical habitat that prevent support of Warmwater warmwater organisms Waters that caimot meet the Modified Limited Resource Warmwater designation due to extremely Water limited habitat conditions or acid mine impacts Waters support passage of salmonids Seasonal between October and May, recreational Salmonid fishing Waters support coldwater aquatic organisms Coldwater and plants (not always salmonids) Waters with conventional treatment suitable Public Water Water Supply for human intake and meet federal drinking Supply water standards Waters suitable for irrigation and livestock Agricultural without treatment Waters suitable for commercial and Industrial industrial use with or without treatment Recreation Use Seasonal May 1- Bathing Waters suitable fi)r swimming October 15 Waters suitable for swimming and recreation Primary Contact with minimal threat to public health Secondary Waters suitable for partial body contact, e.g. Contact wading Park systems, wetlands, wildlife State Resource Waters with exceptional recreational or areas, and scenic Waters ecological significance rivers, public lakes

Table 6.1. Ohio's Water Quality Use Designations (Source; Ohio EPA 1995)

115 constituencies because they could bring the unregulated agricultiu'e and construction industries under increased regulation. The second form of criteria is the numeric criteria where quantitative levels are written into water quality standards under state law. Numeric criteria consist of three types: chemical, whole effluent toxicity, and biological criteria. Ohio EPA develops chemical water quality criteria for the protection of aquatic life, human health and agricultural water supply. These standards are set using guidance from US EPA and Ohio Department of Health. Whole Effluent Toxicity measures the toxic effects of effluent on living organisms, including both acute (immediate, short term) and chronic (cumulative, long-term) impacts on organisms found in rivers and streams. Biological criteria are the third type of criteria that are assigned quantitative standards. Biological criteria measure the structure and function of aquatic community characteristics to determine if rivers or streams attain aquatic life habitat use designation. In considering the water quality of streams for TMDL listing and development, state water quality management agencies are required to examine the pollutants in excess of state water quality standards. The assessment can be ambiguous as some pollutants do not have numerical standards, but have a narrative standard. For example, in Ohio there are no numerical criteria for phosphorus levels, but a narrative 'free from' criteria states that phosphorus levels should not reach levels that cause excessive algae blooms. Currently, the Ecological Assessment Unit at Ohio EPA has preliminary data linking nutrient levels to aquatic communities, but these are not yet written into state water quality standards. The preliminary nutrient levels required for waters to attain aquatic life use are being used in Mill Creek TMDL development (see Chapter 7). Ohio EPA conducts water quality monitoring of chemical and biological criteria in order to assess if use designations are being met. Chemical water monitoring is focused on taking site specific water samples and testing for conventional water quality parameters such as temperature, dissolved oxygen, suspended or dissolved solids, nutrients and pH. Chemical water quality information is used primarily as the basis of point source NPDES permits. In addition, Ohio EPA has established a nationally

116 recognized biological monitoring program that when used in conjunction with chemical monitoring can produce a high quality assessment of a stream's health (Ohio EPA 2000).

6.4 Biological Monitoring Biological monitoring analyzes the fish and macroinvertebrates (insects, mollusks, crustaceans, snails, and worms) that inhabit Ohio's streams, rivers, and lakes. These aquatic organisms inhabit the water continuously, thus they can provide a constant monitor of impacts from effluent discharge (point sources) and polluted stormwater runoff (nonpoint sources). Numerical biological criteria have been written into Ohio's Water Quality Standards based on aquatic life use designations. This designation protects the ecological integrity of water resources and organisms with the most stringent requirements, therefore, it will protect the other designated uses the majority of the time. A study by Ohio EPA staff found that using biological indicators resulted in 49.8 percent of stream segments showing impaired water quality where no impairment was observed under chemical water quality criteria. In the opposite case, only 2.8 percent of the stream segments had impairment under chemical criteria but did not show impairment under biological indicators [Yoder, 1998]. The addition of chemical criteria protects drinking water supplies from toxics that may not be measured by the biological criteria. Ohio EPA lists the benefits of employing biological criteria for water quality standards: I) it has specific water quality standards for each waterbody based on stream size, and ecoregion; 2) it follows an ecosystem perspective that promotes ecological integrity; and 3) results in an extensive database o f water quality data that can be used to assess management programs (Ohio EPA 2000). Ohio EPA's program emerged in 1980 when Ohio EPA developed biological criteria for two aquatic life habitat uses, exceptional warmwater habitat and warmwater habitat (See Table 6.1). Biological criteria, often called biocriteria, are assessed by the use of three indices, the Index of Biotic Integrity (IBI) and Modified Index of Well-Being (MIWB) for fish, and Invertebrate Community Index (ICI) for macroinvertebrates (see Map 6.1 ). These indices measure species richness, trophic composition, diversity, presence of pollution-tolerant species, abundance of biomass, and the presence of disease

117 or abnormalities [Yoder, 1995]. In addition to biological and chemical criteria, Ohio EPA also collects data on physical habitat of waters and their riparian ecosystems. The Qualitative Habitat Evaluation Index (QHEl) is used to assess siltation and habitat modifications that impact aquatic life assemblages.

6.4.1 Ecoregions In 1983 and 1984 the biocriteria program was expanded by identifying five ecological regions in Ohio. Ohio EPA sets water quality standards for the biological criteria indices, IB I, ICI and MIWB, based on reference sites in each of the five major ecoregions (Map 6.2). The ecoregions are areas defined by similarities in mosaic of land use, potential natural vegetation, land surface form and soils. These factors determine the characteristics of water quality, type and composition of biological communities and the way in which pollution is exhibited in the watershed. Biological monitoring involves a large data collection program; each year Ohio EPA samples 150-250 sites covering 600- 1,000 miles of streams and rivers (Ohio EPA 2000). Biological criteria standards are set for each region by assessing the fish and macro invertebrates in relatively low-impact reference sites. For example in the Huron/Lake Erie ecoregion in northwest Ohio, IBI values for the least impacted reference sites ranged between 24 and 30. Ohio EPA established a standard that if a stream in this ecoregion m et the 25'^ percentile value, in this case 26, then it met warmwater habitat use designation. If a stream met the 75'** percentile value of the statewide data set, then it attained the exceptional warmwater habitat use (US EPA 1990). The use of relatively low-impact reference sites to set the biocriteria numerical standards is a discretionary moment in the science of water quality analysis. The low impact site in Ohio is identified as non-urban, with healthy aquatic organisms, good riparian habitat and high quality physical characteristics of the stream (Ohio EPA 2000). However, most rivers and streams in Ohio have been subjected to hundreds of years of human impacts. Is it reasonable to hold as the standard an 'ideal' reference site? Or alternatively, does the setting of biocriteria standards automatically incorporate impacts from agricultural practice, therefore effectively allowing pollution fi’om agriculture

118 Huron-Erie Lake Plain (HELP) USE SIZE IBI \Hwb ICI Erie Ontario Lake Plain (EOLP) WWH H 28 NA 34 liSE SIZE m i Mlwb J£L W 32 7.3 34 WWH H 40 NA 34 B 34 8.6 34 W 38 7.9 34 MWH-C H 20 NA 77 B 40 8.7 34 W 22 5.6 22 -VIWH-C H 24 NA 22 B 20 5.7 22 W 24 6.2 22 .vrwH-i B 30 5.7 NA B 24 5.8 22 .VIWH-I B 30 6.6 NA

H u r o n - t n e Laka Plain / Eria-Ontario (HELP) Lake Plain Eastern Com B elt Plains (ECBP) (EOLP) USE SIZE m i Mlwb I d WWH H 40 NA 36 w 40 8.3 36 E a s te rn B 42 8.5 36 C o m B elt \ W este rn MWH-C H 24 NA 22 P lain \ Allegheny (ECBP) P la te a u W 24 6.2 22 (W AP) ^ B 24 5.8 22 MWH-I B 30 6.6 NA

Western Allegheny Plateau (WAP) Interior Plateau (IP) USE SIZE m i Mlwb I d USE SIZE m i Mlwb I d WWH H 44 NA 36 WWH H 40 NA 30 W 44 8.4 36 W 40 8.1 30 B 40 8.6 36 B 38 8.7 30 MWH-C H 24 NA 22 MWH-C H 24 NA 22 W 24 6.2 22 W 24 6.2 22 B 24 5.8 22 B 24 5.8 22 MWH-A H 24 NA 30 MWH-I B 30 6.6 NA W 24 5.5 30 B 24 5.5 30 MWH-I B 30 6.6 NA Statewide: Excntioiiai Criteria USE SIZE m i Mlwb ICI EWH H 50 NA 46 W 50 9.4 46 B 48 9.6 46

Msç 6.2. Ohio's Ecoregions and Biological Criteria Water Quality Standards

119 impacts but not from urban or industrial? This discretionary moment impacts the water quality standards set by Ohio EPA, but has not been criticized by the public. In the case of the biocriteria, the program has gained the approval of well-respected scientists through publication in peer-reviewed journals. It has been solidified as "sound scientific practice" and is not open to stakeholder criticisms or infiuence. An Ohio EPA manager described the program as very strong and held up to stringent Quality Assurance/Quality Control (QA/QC) guidelines, but did identify the work still needed to link biocriteria to nonpoint source pollution:

I don't think anybody is going to argue with the biological assessment process. It has a very strong research component and it has a very strong QA/QC component. But I think there should probably be some different methodologies developed to zero in on nonpoint impacts.

In determining whether a designated aquatic life use is supported in a stream or river, the OEPA assigns full attainment if all three indices (IBI, ICI and Mlwb) meet the ecoregion's criteria. Partial attainment is assigned if one or two of the indices meet the criteria, and non-attainment is assigned if all three fall below set criteria or if one organism group (i.e. fish or macroinvertebrate) exhibits major impacts from pollution (Ohio EPA 2000). Because fish and macroinvertebrate communities vary with stream size and with sampling method, criteria have been adjusted to account for headwaters (streams with drainage area less than 20 square miles), non-headwater streams that are shallow and limited to wading and secondary body contact (drainage area 20 to 200 square miles), and larger streams and rivers sampled by boat and support bathing and primary contact (drainage area 200 to 6,000 square miles) (US EPA 1990; Ohio EPA 2000). The biological criteria program was opposed by industry when it was first introduced into Ohio's Water Quality Standards. Through the diligence of Ohio EPA staff in QA/QC checks on biological criteria in water quality standards and their success in publishing research results in respected academic journals, the scientists have stopped critique of the program and it is widely accepted. The point source community has even come to see some advantages to the biocriteria analysis:

120 The regulated community see some value to [biocriteria] in the sense that its sort of a reality check on what you are seeing from the chemical monitoring of a stream. Some instances of chemical monitoring in a stream, measuring ammonia or dissolved oxygen, where that number suggests there is a problem in the stream. And yet, there may also be biological data that is saying no, we re not seeing anything wrong with the fish and bugs or the general quality of the stream. So yes, even though that one parameter may appear to be above applicable standards, it doesn’t seem to having much of an impact so there is no need for stricter controls.

The representative from the regulated point source community goes on to describe the way biocriteria may detect nonpoint source impacts that chemical water quality analysis does not detect;

You can get some instances where the water quality chemistry looks pretty good, but the IBI and ICI scores tend to indicate that maybe there is something else going on that bears closer scrutiny. Maybe there is contaminated sediments in the stream, or physically altered by channelization or vegetation removal and those physical changes are causing the fish or insect populations to be depressed.

The use of biocriteria tends to point to long-term impacts on aquatic organisms instead of short-term release of chemicals in excess of water quality standards. The biocriteria program is still working out the statistical relationship between aquatic organisms and nutrient and sediment pollution impacts. However, as indicated above, the biocriteria will point to nonpoint source impacts that escape the traditional water chemistry analysis. The use of biocriteria has revealed increasing pollution from nonpoint source impacts over the past 13 years in Ohio (see causes of water pollution). In relation to TMDL calculation, a point source representative identified the need for a direct link between identifying a biocriteria problem, and translating that into reductions in chemical effluent discharge: A major problem for the agency is, and this was brought up a couple of times [in the TMDL EAG], how on earth are you going to change chemical loadings to have the biological criteria come into compliance, big issue, big issue. Because what you’ve got right now are apples and oranges. While most of the regulated community that I'm aware of supports biocriteria, how they translate the biocriteria, how they’re going to tweak the loadings of pollutants and chemicals to make the biocriteria come into compliance is not easy. It’s a very unique problem

121 to Ohio EPA. I think they have to have a good, or at least some cause and efTect in place, a [specific pollutant] is causing reduction in the fish IBI.

The point source representative recognized that the translation of water quality observations into regulatory practice is uncertain, and at this point, open to critique from stakeholders. This element of the biocriteria program has not been proven, and is still being shaped into an acceptable scientific practice.

6.4.2 Nonpoint Source Modeling An additional area of concern in modeling is the shift from point source water pollution to monitoring and modeling nonpoint source. A point source representative commented on this problem at Ohio EPA:

Currently we don't have a track record on how we monitor, not just monitor but how we model the impacts of stormwater and nonpoint sources on the streams. Traditionally, when we did just regulations o f point sources you model during low flow conditions where impact on the aquatic life in the stream you would expect to be the highest. Stormwater doesn't occur during low flow, by definition it comes during a high flow. The problems are very different from point sources during low flow conditions. You get large loadings of sediment, large amounts of turbidity, more rapid flow of water during rain events. All of those things impact aquatic life, but we don't have a convenient measurement for that.

This person goes on to say: We don't monitor stormwater flows for the most part today. We certainly don't monitor them on a regular basis during major storm events. We re going to need more of that kind of data. Then we'll try to crank that into a regulatory scheme for nonpoint sources.

The point source representative is expressing the inadequacy of the current Ohio EPA science program to address nonpoint source pollution.

6.4.3 Rotating Basin Monitoring Ohio EPA has developed a rotating basin monitoring schedule that focuses in- depth water quality sampling and assessment work on several watersheds each year.

122 Beginning in 1990, Ohio EPA divided the state into 25 major watersheds and each year 5 basins (one from each of Ohio EPA's districts) are scheduled for monitoring (Ohio EPA 2000). The NPDES permits and nonpoint source management programs are scheduled to be reissued or modified after this intensive monitoring has taken place. In addition, the prioritization system for the TMDL program takes the basin schedule into account so that TMDL development is scheduled to coincide with data collection activities. The 5-year basin monitoring schedule is criticized for its lack of geographic coverage over large river basins and the resultant lack of monitoring for small streams. In fact, critics estimate that only about 1/3 of Ohio's streams have been tested for water quality and these tend to be the larger streams and rivers. Ohio's 1996 Water Resource Inventory estimates that water quality assessments have taken place on 74% of rivers with drainage area greater than 1,000 square miles and 42% of all streams not considered headwaters (drainage areas greater than 20 square miles)(Ohio EPA 1996). Ohio EPA defends their sampling method based on the similarities of physical conditions within ecoregions, and the similarities of pollution sources within specific watersheds.

6.5 Ohio's Water Quality Status For assessment and reporting, Ohio EPA has divided the waters of the state into 5,000 waterbody segments. There is no set length of waterbody segments; instead segments are determined by changes in the streambed, riparian structure, human modifications (dams, channelization, bridges), or point discharges of pollutants. Ohio EPA maintains most water quality data according to the unique waterbody identification number assigned to each stream segment. For TMDL listing, waterbodies are listed as impaired based on chemical and physical indicators o f pollution and aquatic life use impairment. A total of 881 waterbody segments are listed as impaired^. To focus TMDL development on a watershed scale, the listed segments are grouped and prioritized by watershed (Ohio EPA 1998d). Ohio EPA in conjunction with other state agencies in Ohio, defined watersheds for nonpoint source planning and

^ All waterbodies in the state o f Ohio are impaired due to a fish consumption advisory for mercury. However, mercury impairment alone is not sufficient to cause a stream to be listed for TMDL development. Ohio EPA is designing separate programs to address mercury levels in collaboration with US EPA. 123 implementation by dividing the state into 326 watersheds^. These watersheds are also used as the basis for TMDL listing and development. Each watershed ranges between 60,000 to 125,000 acres, a size determined suitable for watershed action plans and TMDL implementation. Of the 326 watersheds in Ohio, 276 contain one or more impaired waterbody segments (Ohio EPA 1998d).

6.5.1 Determining Causes and Sources of Impairment Determining the cause and source of impairment is a crucial step in the TMDL process because this step is translated into the pollutants o f concern for TMDL development and the sources that will be required to reduce their pollutant contributions. Data analysis, quantitative models, and best professional judgment are used to identify sources of the TMDL pollutant and the required reduction in pollutant discharge levels. Stakeholders may contest the identification of sources or levels of reduction by challenging data quality, model rigor, and the interpretation of modeling results. A point source representative stated, "If you look at the last 303(d) list you’ll see there is a real menu of causes and there's a real menu of sources. There’s going to be imperfect information to determine what is the actual cause.” Ohio EPA reports a complete water quality assessment every two years as required under Section 305(b) of the Clean Water Act. This report, called the Ohio Water Resource Inventory, uses biological, habitat, and chemical data to indicate the status of water quality in Ohio (Ohio EPA 2000). Ohio EPA distinguishes between the cam e of pollution and the source of pollution. A cause is defined as the actual agent causing damage or impairment of aquatic life (i.e. excess nutrients or heavy metals). The source of pollution is the origin of the agent (i.e. agricultural source, sewage treatment plant discharge, or industrial discharge). The reporting is based on 26 causes of impairment (Table 6.2) and 9 major categories of sources (Table 6.3).

^ This is approximately based on the USGS 11-digit Hydrologie Unit Code (HUG).

124 OHIO EPA IDENTIFIED CAUSES OF IMPAIRMENT

Cause unknown Thermal modification Unknown toxicity Flow alteration Pesticides Habitat alteration Priority organics Pathogens Non priority organics Radiation Metals Oil and grease Ammonia Taste and odor Chlorine Suspended solids Other inorganics Noxious aquatic plants Nutrients Filling and draining pH Total toxics Siltation Turbidity Organic enrichment/Dissolved oxygen Exotic species Salinity/total dissolved solids/chloride

Table 6.2: Causes of Impairment (Ohio EPA I998d).

125 OHIO EPA IDENTIFIED SOURCES OF IMPAIRMENT

Point Source Urban RunofFStorm Construction Industrial Sewers (nonpoint Highway/road/bridge/ Municipal source) sewer line Combined Sewer Overflow Non-industrial permitted Land development/ Domestic Wastewater Industrial permitted Suburbanization Lagoon Other urban runoff Sewer Line Construction Agriculture Mining Non-irrigated crop Surface mining Hydromodification Irrigated crop Subsurface mining Channelization Specialty crop Placer mining Dredging Pasture land Dredge mining Dam construction Range land Petroleum activities Flow regulation/ Feedlots (Confined Animal Mill tailings modification Feeding Operations, Mine tailings Bridge construction CAFO) Acid Mine Drainage Removal of riparian Aquaculture vegetation Animal holding/ Land Disposal Streambank management areas Sludge modification/ Manure lagoons Wastewater destabilization Landfills Drainage/filling of Silviculture Industrial land treatment wetlands Harvesting, restoration. Onsite wastewater Marina residue management systems (septic tanks) Forest management Hazardous waste Other Road construction/ Septage disposal Atmospheric deposition Maintenance Waste storage/storage tank leaks Highway maintenance and runoff Spills Contaminated sediments Natural Recreational activities Upstream impoundment Salt storage sites

Source Unknown

Table 6.3. Sources of Impairment (Ohio EPA I998d).

126 In identifying the major causes and sources, Ohio EPA uses multiple lines of evidence from the biological criteria, chemical water quality parameters, sediment and effluents, contaminants in fish tissue, and data on the physical quality o f streams (i.e. riparian vegetation, siltation in stream bed)(Ohio EPA 2000). However, as noted in the previous quote, there is a wide range of possible causes and sources. In each watershed, a mixture o f pollutants and a variety of sources often complicates water quality impairment. The identification of causes and sources relies on observed data, but also involves the best professional judgment of the scientist. Causes and sources are often determined on what or who is believed to be the major culprit, instead of definitive quantitative linkages. Stakeholders may challenge Ohio EPA on identification of major causes and sources, disagreeing with their determinations. Causes of water quality impairment are identified by Ohio EPA (Figure 6.2) for the years 1988, 1996 and 2000. The figure lists the top seven causes by the number of impaired river miles. The figure shows the changing nature of water quality problems; a dramatic decline in organic enrichment as well as ammonia (primarily point source discharges) and rise in habitat alterations, siltation, and nutrients (primarily nonpoint sources, but point sources also contribute). The dramatic decline in organic enrichment and ammonia is largely attributed to capital improvements in wastewater treatment plants. The rise in nonpoint source impairment is attributed to increasing habitat alterations, nutrients, and siltation (excess sediment). What is the source of these water quality impacts? The top ten sources of water quality impairment are listed according to the number of impaired river miles attributed to each source (Figure 6.3). According to Ohio EPA data on monitored streams, the number one source of water quality (aquatic life use) impairment is hydromodification activities. Hydromodification accounts for the nonpoint sources that cause habitat alteration and excess sedimentation. Hydromodification occurs fi*om land use activities and disturbance of the stream ecosystem fi'om activities such as agriculture, dredging, urbanization, and riparian vegetation removal (Ohio EPA 1998e).

127 Habitat Alterations

Siltation 6‘S.7

Organic Enrichment grrz 0 1988 Nutrients □ 1996

Flow Alteration 537.3

Metals 4C.5 648.4 Ammonia

500 1000 1500 2000 2500 3000 Miles impaired

Figure 6.2. Causes o f Water Quality Impairment in 1988, 1996 and 2000. Numbers in parentheses indicate the impaired river miles (modified from Ohio EPA 2000).

Prior to the 2000 assessment, hydromodification activities were not divided between agricultural activities and urban/suburban development activities causing impairment. This resulted in the categories listing agriculture and construction separately to underestimate their water quality impacts. For the first time in the year 2000 assessment cycle, Ohio EPA divided the hydromodification category to account for specific activities, 24% is attributed to urban and suburban development and the remaining is attributed to agriculture related activities (Ohio EPA 2000). The second largest source of water quality impairment is direct impacts from agriculture accounting for surface runoff containing pollutants such as excess nutrients, sediment, and pesticides.

128 Hydromodification (1) 11 3 1 9 .Î

Agriculture (3) 11048.8

Fbint Sources (2) 1 7 7 4

M n in g (4 ) 4 5 5

O t h e r (5 ) 2 8 7 .6

Urtjan R jnoff (6) 2 7 4 .5

Unknow n (7)

l_and Disposai (8) 1 3 5 .9 Construction (9) 108.2

Silviculture (10)

300 600 900 coo eoo Miles Impaired

Figure 6.3. Sources of Water Quality Impairment (modified fi’om Ohio EPA 2000). The number in parentheses indicates the ranking of sources in the 1998 assessment cycle.

Point sources have continued to fall fi'om the number one cause of impairment in 1996, second in 1998 to third place in 2000. This continued decline in point source impacts is attributed to improvements in sewage treatment during the 1980’s, estimated at a cost of $6 billion in Ohio (Ohio EPA 1998e). Heavy metals continue to be the principal cause of impairments fi'om point sources. The fourth largest source of water quality impairment comes from mining operations. Construction impacts are ranked as the 9* largest source of water quality impairments, but Ohio EPA reports that when considering streams and rivers that are threatened by non-attainment, development and construction activities rank as the number source (Ohio EPA 2000). This chapter has reviewed Ohio's water quality monitoring process and water quality standards with specific attention to the discretionary and uncertain moments in those scientific practices. The process of setting use designations, applying numerical water quality standards, and identifying causes and sources of pollution are important as the basis for determining when water quality standards are not being met, and thus

129 triggering the listing of impaired water segments on the 303(d) list. The 303(d) list is the first step in the TMDL development process.

6.6 Conclusion This chapter reviewed the required steps of TMDL development and science of water quality regulation, and in the process identified the discretionary moments where science is uncertain or not able to supply all the needed information for regulatory decisions. The primary discretionary moments in the science of water quality regulation include: assigning a water use designation, determining numerical water quality standards, and identification of causes and sources of impairment. Stakeholders have criticized Ohio EPA scientific practices on the designated use assigned to specific stream segments. They have also questioned the use of narrative criteria for nutrients (important causes of pollution in many watersheds), pointing to the lack of cause and effect in relating biocriteria violations to specific reductions in chemical effiuents. Stakeholders have likewise recognized the imperfect science of identifying the exact causes of water pollution and relating those causes back to the responsible sources. It is at these moments where the science is more open to social and political influence from both scientists and stakeholders. Scientists and modelers engaged in translating between observed data to regulatory decisions must employ their best professional judgment and make decisions involving high political and economic costs. The uncertainty in science, and the transparency of the discretionary moments opens the scientific process up to critique and questioning. Stakeholders are able to exert influence at these discretionary moments in the scientific process, and thus reveal the social and political influence on seemingly quantitative, and numerically based decisions. The next chapter analyzes the discretionary moments in TMDL calculations where stakeholders enter the process to influence data collection, model choice, interpretation of modeling results, and allocation of pollution responsibility to sources in the watershed.

130 CHAPTER?

SCIENCE OF OHIO'S WATER QUALITY REGULATION: METHODS OF TMDL DEVELOPMENT

7.1 Introduction TMDLs are an ambient-based water quality program that focuses on the impacts of pollutants in the stream ecosystem. The development of TMDLs utilizes a numeric goal for attaining water quality standards with a logical process to get there (Houck 1999). It is similar to other processes adopted for toxic pollutants and nonpoint source pollution: identify pollution, assess the reduction required to meet water quality standards, divide allowable pollution loads between sources in the watershed, and develop mitigation strategies to achieve those reductions. TMDLs include a high level of public review that provides a check on scientific practice and decision-making. Calculation of pollutant loads is a complex science and in addition requires difficult policy decisions in allocating loads and holding stakeholders responsible. Stakeholders have very different views as to what is causing pollution and who should be held responsible under TMDL implementation. This chapter addresses two central themes of this research project, the transparent and uncertain moments in the science of TMDLs and stakeholder actions in using these discretionary points to influence the outcomes of water quality regulation. Regulatory science is seen as operating in a unique sphere of activity that incorporates both science and politics (Jasanoff 1990). It is useful to examine the unique position of regulatory science in order to understand how stakeholders use the transparency of uncertain moments to influence policy outcomes. Science conducted for regulation and the policy formation process, called regulatory science, exists at the margins of scientific credibility, and is often conducted

131 under conditions of uncertainty and short time frames. Regulatory science is contested, uncertain, and subject to multiple interpretations or applications. Because of these conditions, regulatory science readily portrays the uncertain moments revealing the socially and politically embedded nature of scientific investigations. Stakeholders ofren switch between scientific, quantitative justifications and political or social justifications to reach a desired policy outcome. This fact is illustrated in the wide range of narratives on science in TMDL development (outlined in Chapter 8). Stakeholders criticize the unscientific basis of TMDL development and advocate for quantitative modeling, and then at another point in time, employ social or political justifications and purposively avoid numerical proof. This is evident in the Agriculture community where some have joined the national criticism of the scientific basis of the TMDL program (along with development and construction industry) arguing for more rigorous modeling and quantitative proof of pollution loads and identification of sources. The Agriculture community is highly critical of the quantitative EPA science (both nationally and at Ohio EPA) that increasing targets nonpoint source pollution and identifies impacts from agriculture in particular. Stakeholders will tailor their argiunent to the issue being debated at the moment and what justification will better meet their needs. The case study of the Mill Creek Watershed illustrates the specific places in which stakeholders challenge and influence the modeling and policy decisions. TMDLs are at the frontier of water quality regulation where scientific method is uncertain, questioned, and being shaped into a finalized TMDL science. At this boundary between science and politics it is possible to trace the social and political embeddedness of scientific practice through the actions of stakeholders. In addition, the case study illustrates how policy decisions of allocating responsibility among sources is influenced by best professional judgment and value decisions made in the scientific practices of water quality modeling. First, the chapter reviews the contested issues of TMDL development from the TMDL External Advisory Group and the National Research Council's committee report on assessing the scientific basis of the TMDL program. Next, I address specific methods used in TMDL calculations as outlined by Ohio EPA's 12-step TMDL development

132 process. The Mill Creek TMDL project is used to trace modeling and pollutant reduction allocation to specific sources. In the case study, the contested issues brought to the table reveal stakeholders questioning of the scientific methods used by Ohio EPA, and their ability to influence policy and scientific practices.

7.2 Contested Issues In TMDL Science In October 2000, Congress suspended implementation of TMDL final rules and halted all money allocated for TMDL programs through a rider to a military construction bill. In addition. Congress called for the National Research Council (NRC) to form a committee to address the scientific basis of the TMDL program. An eight member committee was assembled with a four month timetable to assess; 1) Information needed to identify sources and contribution to water impairment; 2) Information required to allocate reductions among sources; 3) Data available to states for TMDL development and its reliability; and 4) If data is not available to the states, which methods should be used to get the needed information to implement TMDL policy (National Research Council 2001). The NRC corrunittee, called the "Committee to Assess the Scientific Basis of the TMDL Approach to Water Pollution Reduction", explicitly recognized the presence of risk and uncertainty in all scientific investigations, and stressed the need to proceed with TMDL implementation despite the scientific uncertainty. The report states, "calls to make policy decisions based on 'the science' or calls to wait until 'the science is complete' reflect a misimderstanding of science (National Research Council 2001: 89)." The committee went on to define the scientific process in TMDL development as a continuing process of inquiry and research based in the scientific method. Starting with limited data and information, hypotheses are formed as to cause and effect, the next step of testing those hypotheses may result in new understandings and new hypotheses. The committee recommends taking actions of limited scope based on a 'preponderance of evidence' available and to continually improve our imderstanding of a problem and its solutions while making progress toward attaining water quality standards (National Research Council 2001).

133 The explicit definitions of scientific process and recognition of uncertainty in modeling included in the report are a direct response to critiques that TMDL policy was not based on sound science'. The committee report stated, "The NRC committee feels that data and science have progressed sufficiently over the past 35 years to support the nations return to ambient-based water quality management (National Research Council 2001)." Unfortunately, US EPA Administrator Christine Todd Whitman did not agree with the committee and used the reports concern with uncertainty in modeling to call attention to the unscientific basis' of TMDL policy and to recommend that Congress further delay implementation of TMDL final rules until 2003 (Pianin 2001). This move also appeased powerful constituencies from Farm Bureau and timber interests who had sued Ohio EPA over the enforcement of TMDL regulations (Atlanta Joumal-Constitution 2001). The charge to the committee to assess the scientific basis of the TMDL approach is evidence of the contested nature of water quality-based regulations, uncertainty in the process of calculating a TMDL for a pollutant, and the politically charged potential of TMDL policy to address the largely unregulated nonpoint sources. The manner in which the report was received and used to call for delay of TMDL rules, illustrates how politics and representations of science are being used to call into question the TMDL approach and its scientific claims to legitimacy. The uncertainty inherent in modeling natural systems and use of professional judgment in TMDL calculations have exposed the process to critique and political influence. This is the place where scientific practices are questioned, examined, and reworked (Latour 1987). This is what Latour calls 'science in the making' and observing scientists in action at this point reveals the social dimensions of scientific inquiry and modeling. Who is questioning the scientific process and what practices do they bring into question? The answers to these questions reveal the social and political influences on TMDL science. After the TMDL process is finalized, accepted and widely practiced it will be validated as 'sound science' and closed into a black box where questions of what data should be used in modeling or how allocation is distributed are not debated. Science is always in the process o f being created, reworked and modified, but the value-laden,

134 political influence is hidden in the translation between observed data and information required to make policy and regulatory decisions. An environmental representative from Ohio’s TMDL External Advisory Group stated that there is always uncertainty in EPA’s regulatory process: [people] assume that there are times when the facts are not uncertain, and the modeling is not uncertain. In every scientifically driven program, including the NPDES program, that I've been aware of, the science is always disputed, there is never certainty. You look for example at issuing an NPDES permit. People fight over what mixing zones should be or what the low stream flow or whether you should be using a 10 yr or 25 yr storm event.. In the TMDL process, I think it comes down to how much uncertainty are you willing to live with. Not whether there is uncertainty, but what's the degree o f uncertainty that your willing to live with.

As pointed out in the quote, science is never absolute, it always contains discretionary moments where decisions carmot be based solely on data but must incorporate judgment and thus it is subject to political, value-laden arguments that shape the outcome of scientific practices. The following sections review the contested issues in TMDL policy and science. The issues at stake are the discretionary moments in TMDL development where science is uncertain and political, and where those discretionary moments are made visible. An Ohio EPA staff member said about these discretionary moments, "when you get into the really tough decisions, science becomes more of a judgment and less of a science." This is where stakeholders enter the scientific process to influence the regulatory outcomes. These issues addressed in this study include 1) Public participation throughout the TMDL development and implementation process; 2) Model selection; 3) Allocation of pollutant loads to point and nonpoint sources; 4) Adaptive Implementation or Phased TMDL development; 5) Authority of Ohio EPA and other agencies to address nonpoint source pollution.

7.2.1 Public Participation Public participation in TMDL development was a central concern o f Ohio EPA's internal group developing the TMDL process (Figure 7.1) and in the TMDL EAG.

135 Stakeholder involvement has become more common in environmental regulation over the past 10 years but has usually been limited to comment and approval on finalized programs and policies. In TMDLs, the participation by stakeholders is seen as critical from the very early stages of TMDL development. Stakeholders in the watershed may have data that can be incorporated into TMDL development (subject to US EPA Quality Assurance/Quality Control, QA/QC, guidelines). In addition, forming stakeholder advisory groups in the TMDL watershed early in development allows stakeholders a voice in Ohio EPA's process, and Ohio EPA staff hopes this will promote "buy in' to the final TMDL restoration scenario [Ohio EPA, 1999]. In Ohio EPA's TMDL development, public participation through the External Advisory Group and Mill Creek Watershed TMDL process has allowed stakeholders unprecedented influence on data and modeling decisions. Recognizing that many elements of TMDL implementation fall outside of the regulatory scope of the Clean Water Act (where the primary enforcement mechanism is NPDES permits for point source dischargers), Ohio EPA staff has cultivated public participation in order to foster coordinated implementation scenarios among diverse stakeholder groups. An interview with an Ohio EPA staff member revealed their approach to public participation, even putting it as a higher priority than scientific modeling:

The [TMDL process] is definitely more politically driven and what people are willing to do. If we don't have the authority to do it, that becomes a lot more important than the science. Because no matter what our science shows that doesn't mean people are going to do it. Because we don't have authority over it, it becomes more important to put your resources into people as opposed to the modeling. "

7.2.2 Model Selection TMDL implementation requires allocation of legal and financial responsibility to stakeholders in the watershed, an inherently political and value-laded endeavor. In the face of uncertainty, and the possibility of actions requiring financial input, stakeholders will often advocate the use of complex models. It is a common belief that the expected rigor and realism captured by a complex model will make up for a lack of water quality 136 monitoring data or uncertainty in capturing the physical processes. The more complex and specific models give an impression of credibility. But, this ignores the problems of highly complex models that are expensive, data intensive, require lots of time, and may compound the uncertainty of results (National Research Council 2001). With increased public participation in all stages of TMDL development it may be necessary to give more than a cursory explanation of model choice and results to stakeholders. This reinforces the NRC recommended approach to start simple and then expand data and modeling efforts as required by a problem and watershed characteristics. The NRC Committee recognized the limits of science (and progress in science) to accurately model and predict what happens in nature - there is inherent variability and uncertainty in capturing complex physical processes of hydrology. Additionally, there are limits in the ability of science to allocate observed pollution to its source. The TMDL program has advocated participation by other government agencies and local stakeholders in gathering the most reliable data sources and using the most appropriate model for the situation at hand. Many have begun to recognize the arbitrary nature (and hence its subjective and open to influence) o f choosing an appropriate level of pollution and determining how much the pollution needs to be reduced in order to attain water quality standards. This is illustrated in the following quote from an interview with a regulated point source representative: The problem that I see is people making judgments. They will not be able to say precisely that 37.3% of nitrate in the Scioto River is coming from com production. You are just not going to be able to say that. At some point there will have to be these watershed-planning meetings where people will have to carve out what are reasonable values to expect for reduction, say 25% over the next 5 years. I don't really trust EPA to go at it quite that way. So wherever they get the magic numbers from, people will be striving for it.

The point source representative recognizes the inherent uncertainty in trying to establish a quantitative value for pollution contributions from particular sources. This person recommends the reduction level be determined through public participation process. The connection between scientific modeling and the information translated into policy can be a tenuous link as related by another point source representative who stated, “1 really don't think there is much of a connection between modeling and policy.. .1 think 137 the basis for decision making, maybe the modeling will be taken into consideration a little, but 1 think common sense is also going to come into play." This quote raises the question whose "common sense" will be used to translate between quantitative model output and the implementation of policy. Certainly Ohio EPA staff, but in addition, the transparency of the process has allowed stakeholders unprecedented access to the science and they have been given the opportunity to shape what policies are derived from the modeling process. Another key issue in the selection of models for TMDL development is the lack of experience by Ohio EPA staff in working with both point and nonpoint source pollution. The modeling staff that is conducting TMDL development and leading TMDL watershed projects have extensive experience in modeling point source impacts for NPDES permitting, but many do not have as much experience with nonpoint sources. The modelers are learning as they go and many of them expressed their frustration with the learning process. One point source representative characterized the process in this way:

Ohio EPA does not have any real experience in even trying to model [nonpoint source] impacts. The water quality models that they use right now are not high flow storm event models. So the modeling group over at Ohio EPA has a whole new learning curve that they’ve got to go through. One of the recommendations that the development committee [TMDL EAG] made is they [Ohio EPA] begin to use more sophisticated water quality models that take account of nonpoint source contributions and stormwater contributions. Well that's like telling people who have only ridden bicycles all their lives that they have to ride motor scooters. Maybe they don’t want to ride motor scooters. They need to overcome that regulatory inertia and get out of their traditional pattem of doing things. Expand their minds and start to work with those notions. That’s going to be a learning curve.

In Ohio’s TMDL implementation, it became apparent that a particular stakeholder group, the point source regulated community, strongly advocated for complex, rigorous modeling. Why do they advocate for models that were deemed overly complex by Ohio EPA staff? What do they gain by this action and what effect does it have on regulatory outcomes? The point source community advocates for rigorous models to guard against

138 themselves being held responsible for nonpoint source pollution. In addition, this perspective of the point source community suggests that the use of quantitative, rigorous modeling may be beneficial to point sources. The models require a definitive quantitative link fi-om the chemical effluent to biological water quality impacts. The lack of a direct cause and effect link (see Chapter 6) may provide a sense of security for the point sources. If the link is not established, they may not be required to reduce their effluent discharge. This issue and the differences between stakeholder groups on the level of rigor in the science of water quality are addressed further in Chapter 9 analyzing stakeholder definitions o f science and sources of pollution for regulation.

7.2.3 Allocation o f Responsibility for Pollutant Loads A major challenge to TMDL success is the allocation of pollutant reductions to sources in the watershed. The NRC committee characterized allocation as "first and foremost a policy decision on how to distribute costs among different stakeholders in order to achieve a water quality goal (NRC 2001: 97, emphasis in original)." An interviewee from the regulated community commented on the allocation of pollution;

The big problem with the TMDL process is the [pollutant] contribution [it]self is so hard to quantify and then trying to allocate those contributions among the potential sources adds a whole level of difficulty. It sounds like a quantitative exercise, but it isn't. It's fundamentally an issue of judgment. Its got the appearance of science, but its really not."

The point source representative recognized the inadequacy of models to resolve the complex allocation problem. The allocation of responsibility involves value judgments, and is made in the context of politically charged issues of how to hold nonpoint sources responsible for pollution impacts under voluntary regulatory mechanisms. Quantitative modeling cannot solve the process of allocation. In the Mill Creek Watershed the allocation of responsibility fell heavily on effluent limitations for NPDES permits. The point source community strongly opposed this outcome and challenged Ohio EPA for being "arbitrary and capricious" for not holding nonpoint sources responsible.

139 A related issue to pollutant load allocation among sources is the assignment of restoration activities to meet the needed reductions. There are numerous ways to allocate restoration activities, from reducing the permitted discharge levels from point sources to encouraging stakeholders to implement best management practices (BMPs) to reduce pollution in runoff from urban areas or agricultural fields. Agricultural BMP’s include activities such as conservation tillage, leaving mulch on agricultural fields over the winter, limited application of fertilizers and pesticides to minimize transport to water resources, fencing cattle away from streambeds, and managing manure from confined animal feeding operations (CAFOs). Other BMP’s include silt fences around construction sites and maintaining riparian vegetation as buffer strips to prevent agricultural and urban mnoff from reaching streams. Maintaining the riparian vegetation allows natural processes to achieve nutrient uptake and sediment trapping. The mitigation activities required by the first few TMDL projects (and illustrated in the Mill Creek case study) focus on reducing effluent from point sources. The remaining restoration activities rely on yet to be developed implementation plans. One complaint of stakeholders in the Mill Creek project was the TMDL report left nonpoint source reductions to be decided by stakeholder plans, and did not require reasonable assurances as outlined in TMDL regulations. The point source community's concern seems to be coming true; they will bear the brunt of reductions for their impacts as well as nonpoint source pollution. Stakeholders in TMDL projects may hold very different perceptions as to what should happen under conditions of uncertainty and what required actions are equitable or fair. In addition, there is ambiguity on what state agencies need to do to attain water quality standards versus what they able to do under current regulations. As delineated by the NRC Committee, science cannot determine who should be allocated responsibility; it can only offer comparison on the effectiveness of different BMP activities. Revealing the uncertainty in the science of allocation and mitigation plans an Ohio EPA Staff member stated: I don't think it is a perfect science.. part of that is how do you divide the loads, for example. There are multiple sources for this effect (pollution). How do you decide who gets hit? There is some softness to it. We identify the causes pretty

140 clearly, but for the sources there is a bit of softness there. Do you put all your money into agricultural BMP's or do you put more money into riparian protection and [stream] bank protection? How do you divide it?

The NRC committee separated the science of water quality modeling from allocation of responsibility among sources of pollution. They stated scientific modeling cannot determine the most equitable decision, that is a policy decision, but science can be employed to determine the relative effectiveness of restoration activities [National Research Council, 2001]. The NRC committee was able to reinforce the sound' scientific basis of TMDL development by creating a boundary between the modeling process to determine pollutant loadings and the value-laden policy decisions of allocating responsibility. In addition, the allocation of responsibility is directly linked to the initial inputs to the model. As illustrated in the case study of the Mill Creek Watershed, the land use data in the model is used to distinguish between point and nonpoint, rural and urban contributions. The literature values used to estimate the runoff from these sources gives responsibility to particular types of land use activities. The value judgments and politics of data use are not recognized by the NRC committee or most practioners of water quality modeling. By effectively separating out the social context in which the original data was observed and how it is used in the model, modelers and policy-makers can claim their decisions are based on sound scientific data. This claim creates the appearance that the model is free from the social context of politics and value judgments when in fact it is closely tied to social and political influence.

7.2.4 Adaptive Implementation of TMDLs Central to the TMDL development process is the concept of phased TMDLs' or adaptive implementation' [National Research Council, 2001]. The inherent variability in natural systems and the uncertainty introduced by modeling complex processes produces results that cannot be 100% accurate. Ohio EPA and the NRC committee on TMDL Science advocate taking an iterative approach to TMDL development.

141 This approach calls for starting with available data, and the simplest models that can capture pollutant loadings to begin the TMDL calculation. Then, as the case warrants, conduct additional water quality monitoring, revise calculations or increase complexity of model, and revise restoration activities in order to bring waterbody segments into attainment of water quality standards. In addition, a phased implementation scenario recommends focusing on one or two pollutants of concern for the first phase, and returning to TMDL development to address remaining pollution problems in the watershed. TMDL calculation requires an explicit recognition of the uncertainty involved in modeling, Stakeholders have criticized US EPA and Ohio EPA for giving unclear guidelines and expectations, and taking a "we'll know it when we see it" approach to implementation plans and restoration scenarios [Federal Advisory Committee, 1998; Ohio EPA, 2001b].

7.2.5 Authority over Nonpoint Source Pollution The final area of uncertainty addressed here is the regulatory authority that applies to nonpoint source pollution. Nonpoint source pollution, surface runoff during storm events that originates from agricultural fields, and from surfaces of urban and suburban development such as roads, parking lots, lawns, and golf courses, has largely been exempt from regulation. The increasing pollution from nonpoint sources is addressed by TMDLs because they require examination of all sources of a pollutant, and allocation of reduction measures between point and nonpoint sources in a watershed. The regulation of nonpoint source water pollution is inherently more difficult than regulating the point source industry or wastewater treatment plants. The science of water quality is pointing to increases in pollution from nonpoint sources, yet there is difficulty in regulating the diffuse pollution. A regulated point source representative characterized the problem this way: Both the data and the science are telling us that the problem is with stormwater and nonpoint sources. But what the data and science don't tell you is how do you deal with it? Its much easier from a regulatory perspective to deal with a pipe that ends right at a stream and you can measure what's coming out of the pipe day in and day out.. .You don't have that nice, convenient regulatory point, that

142 compliance location, then it becomes much more difficult to administer a regulatory program.

A lawyer representing regulated point source clients in the TMDL EAG commented about the complexity and the lack of enforceable regulatory system for nonpoint sources: It is going to be a vastly complicated system. The sources that the agency has the least data on and those that will require the most controls, the nonpoint sources, are the ones without the proven control programs. The level of assurance is probably going to be lower with respect to these nonpoint sources

There is not going to be a high level of certainty that the nonpoint source control programs are effective, or that the appropriate sources are being mitigated. One way that water quality regulators have begun to address nonpoint source pollution is with the re definition of nonpoint sources as point sources so that they can be addressed under the NPDES permit system of the Clean Water Act. Regulation is responding to increased demands to reduce nonpoint source pollution. A government agency manager said describes the renaming of nonpoint sources as point source: They are going to keep re-inventing nonpoint source and point sources because they don't have any other way to approach it. CAFOs are no longer nonpoint sources, we're going to call them point sources if they get too big, so then we can regulate them through permits. Stormwater discharge is really street runoff, but it comes out of the pipe so we are going to call it point source and regulate it through permits. We tried to do that with forestry operations but we got beat back on that one. So we keep re defining nonpoint sources as permit-able point sources. That process will continue to go on because those [nonpoint] sources are out there and the pressure to do something about them will continue to build.

In response to Ohio EPA redefining Confined Animal Feeding Operations (CAFOs) as point source, the Ohio Farm Bureau was able to get legislation passed that moved the regulation permit program for CAFOs from Ohio EPA to Ohio Department of Agriculture. The CAFOs, previously not regulated because they were agricultural operations and considered nonpoint sources, have been re-defined as point source if they reach a certain size and thus subject to NPDES regulations. The Ohio Farm Bureau and allies are not familiar with Ohio EPA staff or administration. To talk directly to Ohio EPA was seen as admitting responsibility and subjecting agriculture to regulation.

143 Therefore, the agricultural community, led by Ohio Farm Bureau went to their allies in Ohio Department of Agriculture and in the state legislature to ensure that if regulations must imposed, it would be overseen by what is perceived to be a friendly party, the Ohio Department of Agriculture, and not Ohio EPA (Source: Interview with ODA manager). The possible regulation of agriculture and other nonpoint sources under TMDL has caused a wave of criticism about water quality science and how pollution is allocated. The powerful constituencies of the agricultural community have adamantly opposed TMDL application to their activities. The environmental community has strongly advocated that TMDLs are applicable to nonpoint sources. Some attribute the rise of TMDL programs across the U.S. to the environmental groups recognizing that TMDLs are a regulatory mechanism to control nonpoint source pollution, especially from commercial activities like agricultural and silviculture that have not been regulated under other Clean Water Act programs. An environmental representative characterized the resistance from the agricultural community on this issue: American Farm Bureau has already filed a lawsuit against TMDLs on the national level. They don't believe nonpoint sources should be addressed, first of all. And, the rallying cry of sound science' has now become a deafening roar out there. Plus they are really concentrated on challenging whether this stuff (TMDLs) is sound science or not. And all of that goes back to we haven't really flushed out the stakeholders' true angst yet in the process, this is still pretty new.

The nationally convened stakeholder group, FACA Committee on TMDLs, could not resolve the issue of whether TMDLs applied to nonpoint source pollution. US EPA has always maintained that TMDLs did apply to nonpoint sources, although they have had difficulty in getting this opinion widely accepted by nonpoint sources. The court case Pronsolino V. Marcus 2000 was a landmark decision that upheld TMDLs applied to waters impaired solely by nonpoint sources stemming from agriculture and silviculture. This case has been widely cited by Ohio EPA staff and other regulatory agencies in defense of nonpoint source mitigation, if not direct regulation. In the contested arena of TMDL application to nonpoint sources, the nonpoint source stakeholders (agriculture, silviculture, and construction/development interests) have entered the scientific process to challenge the sound scientific basis of the TMDL method and have garnered powerful

144 allies to stall TMDL implementation. The reluctance of these powerful constituencies to face regulatory oversight led directly to the delays in Congress on TMDL rules and funding. In these challenges, they have claimed TMDLs are 'unscientific', and requested that EPA proceed based on sound science, a claim that the NRC Committee called the wrong approach to uncertainty in science and modeling. The previous sections have outlined the discretionary moments in TMDL science and development. The next section outlines specific steps of TMDL development as outlined by Ohio EPA TMDL Team and used in the Mill Creek TMDL. Specifics of the Mill Creek TMDL are described to reveal stakeholder challenges to the science of modeling and allocation.

7.3 Mill Creek Watershed TMDL In this section I review the Mill Creek TMDL as a case study to illustrate the methods of calculating TMDLs. The specific moments contested by stakeholders in the Mill Creek Watershed are: 1) model selection for TMDL load determination; 2) the use of literature sources for load calculation instead of observed data from the watershed; 3) use of old land use data; 4) pollutants addressed in the TMDL; S) setting of levels of allowable pollutant loading; 6) degree of addressing nonpoint source pollution and inadequate attention to habitat modifications. The Mill Creek Watershed was chosen for this discussion because of its pollution problems stemming from both point and nonpoint sources, its active public participation through out the TMDL development process and well-documented challenges by stakeholders to the science of TMDL development. The sources for this discussion are the Mill Creek Watershed Draft TMDL Report, Responsiveness Summary Document that contains stakeholders comment on the draft report and Ohio EPA responses, and interviews conducted with Ohio EPA staff directly involved in the Mill Creek TMDL development and stakeholders from the Mill Creek Watershed. The TMDL was originally scheduled to be completed in mid-2000, though Ohio EPA secured an extension from US EPA. The draft report was completed in January 2001, and went

145 through a stakeholder comment period in spring and early summer, and is currently in revision.

7.3.1 Mill Creek Causes and Sources o f Pollution Mill Creek is located in Butler and Hamilton counties in southwest Ohio (Map 2) and flows through the heart of urbanized and industrial Cincinnati. The watershed, subject to more than a century of human modifications, transportation and industrial activity, has been extensively channelized and is renown as one of the most polluted rivers in Ohio. The causes of impairment read like a laundry list of pollution sources: nutrients, ammonia, several metals, unknown toxicity, oil and grease, organic enrichment, pesticides, priority organics, contaminated sediments, siltation and suspended solids. Due to extensive development of the floodplain and watershed. Mill Creek also has serious problems with flooding. The Mill Creek Valley Conservancy District and the US Army Corps of Engineers (ACOE) developed a flood control project in 1981. Over the next 11 years the ACOE planned to modify 18 miles of the Mill Creek by channelizing (concrete sides and bottom) over 4 miles and engineering modifications (riprap or grouted riprap sides) to an additional 3 miles. The project was halted in 1992, after it was about 40% complete due to concerns about the cost and environmental degradation fiom the project. In portions of the watershed that have not been channelized riparian vegetation has returned, and the stream is beginning to return to a more natural sinuosity with functional wetlands. In these areas, birds, deer and small mammals have been seen near the creek (Mill Creek Watershed Council Newsletter, July 2001).

146 0609020301 CiQID | Butler

w arran

05090203010030

Hamilton OSG9020301CP2D1

■1^05090203010040 | I 060902030 tO O «

16 Ml** A

Map 7.1. Mill Creek Watershed (Source Ohio EPA 2001a).

147 Despite its degraded water quality (advisories limit skin contact with water and fish consumption to one meal per month), or perhaps because o f it, there are strong environmental and community coalitions and stakeholders working on improving water quality in the Mill Creek Watershed. After Ohio EPA's 1992 siuwey of the watershed, the Mill Creek Watershed Council was established with the goal of protecting and restoring the Mill Creek. Additional local organizations include Rivers Unlimited, Mill Creek Restoration Project, Hamilton County Environmental Action Commission, Butler County Department of Environmental Services, Butler and Hamilton Counties Soil and Water Conservation Districts, Ohio-Kentucky-Indiana Regional Council of Governments, Greater Cincinnati Metropolitan Sewer District, Hamilton County General Health District and others. Ohio EPA has taken a phased approach to TMDL development in the Mill Creek. They have chosen to first address pollutants impacting the entire Mill Creek watershed, which are excess phosphorus and nitrogen’. The other pollutants of concern vary by location, land use and industrial activities in the watershed and will be addressed in future TMDL development. This approach has led to critiques by stakeholders who want Ohio EPA to address all pollutants causing aquatic life impairment at this point in time. The primary sources of pollution in the watershed were identified as 20 NPDES permitted facilities, 143 on-site sewage systems in Butler County and 1500 on-site sewage systems in Hamilton County. In addition, former landfills are present along the banks and over 100 combined sewer overflows discharge to the stream during high flow events. The watershed is primarily urban, although in the upper reaches of the watershed (Butler County) there are limited impacts from agriculture row crops and livestock. However, the sources of concem for excess nitrogen and phosphorus are two wastewater treatment plants that discharge nitrogen (Butler County Water Reclamation Facility and Glendale Wastewater Treatment Plant), on-site septic systems, and urban runoff including combined sewer and sanitary sewer overflows. A new interchange on Interstate 75 at Union Center Boulevard has spurred rapid commercial and residential

' Bacteria is another pollutant that impacts the entire watershed, but due to an oversight by Ohio EPA it was not listed in the 1998 303(d) list and therefore cannot be addressed until it is officially added in the next cycle of listing. 148 development in the upper portion of the watershed. Habitat alterations and stormwater runoff exacerbate excess nutrients reaching the stream (Ohio EPA 2001).

7.3.2 Mill Creek TMDL Modeling To calculate the nutrient loading and determine the needed reductions, a model. Generalized Watershed Loading Function (GWLF)^ was employed. The complexity of the model falls between a detailed process-based simulation model and more simple export coefficient models. The model provides a mechanistic, but simplified simulation of precipitation runoff and sediment delivery. The model can be used to simulate particulate and dissolved phase pollutant delivery to a stream based on pollutant concentrations in soil, runoff, and groundwater (Ohio EPA 2001). The model requires landuse to be divided between rural and urban uses, reflecting the different runoff loads of sediment and nutrients Grom pervious (allows infiltration of runoff into ground) and impervious (built environment which produces faster surface runoff to streams) land use. The discussion of the modeling will reveal where stakeholders have challenged the science o f TMDL modeling and work to influence who is targeted for pollutant reductions in the watershed. Calculation of the total maximum daily load for nitrogen and phosphorus is based on comparing the loads predicted by the model with the target conditions. The target conditions were determined by an Ohio EPA study relating effects of nutrients to biocriteria for aquatic assemblages in the Interior Plateau Ecoregion (See Figure 6.3 in Chapter 6)^. The target values selected for Mill Creek were adjusted to account for decades of extensive human activity and modification. For Nitrate-Nitrite (indicates 90% of total dissolved nitrogen) the target load is 1.3 mg/1 and for total phosphorus is 0.25 mg/1. The GWLF model (calibrated for Mill Creek) was used to estimate loadings of nitrogen and phosphorus for each sub watershed (see Map 2). The margin of safety was implicitly included in the modeling by

■ This model has been used in several Ohio TMDLs (Rocky River, Sugar Creek, and Upper Little Miami River) and is recommended by Ohio EPA for developing nutrient TMDLs. ^The TMDL report qualifies that these targets have not been codified in to law in Ohio Water Quality 149 using conservative target values for levels necessary to achieve aquatic life use standards. In addition the use of Nitrate-Nitrite for total dissolved nitrogen incorporates an addition 10% margin of safety into the modeling of nitrogen. In describing allocation of pollutant loadings I use only one o f the nutrients under TMDL development, nitrogen. The GWLF was used to estimate the current nitrogen loadings after the model calculations for water flow and nutrients were calibrated to the watershed with 1992 observed data. Due to a lack of observed data for nitrogen and phosphorus loadings in the Mill Creek, loading values for particular land use were used from literature sources (observed data from other research sites). Source categories were divided into point sources (NPDES regulated facilities), nonpoint sources (septic systems, stormwater runoff, row crop erosion) and contributions from groundwater sources (background). By comparing the loadings to the target conditions, the necessary reductions are easily calculated. The following table (Table 7.1) summarizes the loading, and needed reductions in nitrogen for each of the five sub-basins in Mill Creek watershed. The loading reductions required for nitrogen are extensive in the first two sub­ basins, and these watersheds are dominated by point source contributions. In the Mill Creek TMDL report, Ohio EPA estimates that in the first basin, if all the loadings from the point source dischargers were eliminated (not a feasible alternative) an additional 4,507 kg/yr reduction would still be needed from nonpoint sources and septic systems to meet the target concentration of 1.3 mg/1 for nitrogen (Ohio EPA 2001a). In summer low flow conditions, the majority of water in the Mill Creek is discharged effluent, primarily from industries using the water for cooling, but also from sewage treatment plants. The loading capacity determined for the watershed is just above the natural background levels received from the groundwater. Thus to be able to reach water quality standards it would be necessary to allow only very limited discharges by the existing point and nonpoint sources.

Standards and therefore there is flexibility as to how they can be used as a TMDL target condition. 150 Category Basin 1 Basin 2 Basin 3“ Basin 4 Basin 5 Point Source 58,766 60,027 - 60,027 60,009 Nonpoint 11,664 45,323 - 43,480 41,620 Source

Groundwater 17,290 29,240 - 43,480 41,620 Septic 2,607 6010 - 13,640 19,670 Systems

Total 90,390 1 1 0 , 0 0 0 - 137,660 159,820 Loading Reduction 70 55 None 23 15 (%) The West Fork Creek was found not to be in violation of target conditions when listed (based on 1992 data), therefore no TMDL is required. However, Ohio EPA recommends that reductions should be driven by the need to reduce loadings to downstream water segments.

Table 7.1. Dissolved Nitrogen Loadings (kg/yr) for 5 sub-basins of the Mill Creek (Source Ohio EPA 2001).

Basin three, West Fork Creek (Watershed ID Number 050902030 10030, on Map 7.2) was excluded from TMDL load calculations. Based on US EPA listing requirements, impaired waters are required to be listed on a segment by segment basis. If a segment is not impaired at the time o f listing, even though it contributes to segments that are impaired in the watershed, it cannot be included in TMDL calculations. This is evidence to the fact that US EPA has not fully transitioned to a watershed approach for TMDL development. This technical loophole has plagued other TMDL developments as well, such as the Middle Cuyahoga River TMDL. An additional complicating factor emerges in this watershed. There is an approved expansion o f the Butler County Upper Mill Creek Wastewater Treatment Plant.

151 If this expansion occurs at the existing permit level for nitrogen (5 mg/1) the resulting load would be an 8 8 % increase over the existing load. If the permit were reduced to 3 mg/1, this would result in a 13% increase over the existing load [Ohio EPA, 2001]. Ohio EPA determined that reductions in permit levels below 3 mg/1 were not feasible based on the large capital expenditures necessary to meet those levels. Previous to the TMDL development, Butler County had implemented a habitat enhancement project downstream of their plant in an effort to improve the habitat and biological integrity and to offset their nitrogen discharge [Ohio EPA, 2001]. The TMDL calculations for each basin indicate reductions in nitrogen are needed for Mill Creek to reach aquatic life use designation. Given the extensive development and difficult pollution problems still existing in the watershed, Ohio EPA has taken a stance equivalent to "do the best you can at this time" for each calculated TMDL in the Mill Creek Watershed [Ohio EPA, 2001b]. This approach is reminiscent of "best available technology' and economically feasible reductions that prevailed under the Clean Water Act's point source abatement. .

7.3.3 Stakeholder Reactions to the Draff Mill Creek TMDL Report The stakeholder reactions to the Mill Creek TMDL report took Ohio EPA by surprise. Ohio EPA was criticized for its lack of communication with the Mill Creek Technical Advisory Group (TAG), a group of 49 stakeholders involving representatives from federal (US EPA, US ACOE), state and local governments, private citizens, academia, industry, consulting firms and environmental interest groups. Because of its size, Ohio EPA staff and key stakeholders had developed a smaller working group that reported to the entire Mill Creek TAG. In the final preparation of the TMDL Report, Ohio EPA had given a draff copy to the smaller, working group TAG prior to releasing the draff report for stakeholder comment. As a direct result of TAG recommendations, Ohio EPA relaxed the target conditions for nitrogen (from 1.3 mg/1 to 3.0 mg/1) and phosphorus (from 0.25 mg/1 to 1 mg/1). These revised target conditions for the Mill Creek Watershed change the level that was determined necessary for bringing waters into attainment with the Modified

152 Warmwater Habitat Use Designation. Many of the environmental stakeholders were unaware of these changes until the Draft TMDL Report was issued and they were very displeased with Ohio EPA for reducing the target conditions when the draft report was released. The target conditions for nitrogen and phosphorus concentrations were derived from a preliminary study by Ohio EPA (Ohio EPA, 1999b). The direct link between nutrient levels and attainment of aquatic life use designations is not proven, and Ohio EPA has called for more study and data collection to further research these target levels. The Ohio EPA used the target conditions even though they are not scientifically sound or written into state water quality standards. Because they are not legally binding, Ohio EPA has discretion in applying them to nutrient levels for TMDL development. However, the scientific and legal uncertainty, also opens up the TMDL report to challenge by stakeholders dissatisfied with the outcome o f the Mil! Creek TMDL report. The TMDL report states the restoration goal is to "limit point source loadings as much as possible while reducing loadings from nonpoint sources to the maximum extent feasible and implement a variety of activities that will improve the habitat conditions in the streams (Ohio EPA 2001: 42)." Ohio EPA optimistically hopes that improved habitat conditions and reduced nitrogen loadings (even though reductions are not to the prescribed levels) may allow the biotic community to recover and reach attainment of water quality standards. Several stakeholders, from the TAG, environmental community and the wastewater treatment plants expressed "disappointment" with the final product and questioned the accuracy and reliability of data, models and load allocations. Critiques of the TMDL development charged the model results were arbitrary and capricious' because it used literature values for nutrient mnoff, and 'faulty land use data'. Several stakeholders criticized the TMDL for not addressing 1) all pollutants impacting water quality standards; 2 ) for not establishing target conditions sufficiently stringent to attain water quality standards; 3) for not addressing habitat modifications that exacerbate impairment; and 4) not sufficiently addressing nonpoint sources in pollution abatement strategies [Ohio EPA, 2001b].

153 Ohio EPA was criticized for not facilitating meaningful participation of the stakeholders, and specifically for excluding TAG members from model development. The Mill Creek Watershed Council wrote, "due to the lack of TAG participation, we do not have confidence in the model (Ohio EPA 2001b: 18)." The stakeholders in the Mill Creek Watershed are concemed with meaningful participation and input, and are not satisfied with being informed of Ohio EPA's decision making after the fact. The report's validity was also questioned on the presence of mathematical errors (in addition to spelling and grammar errors) that call into question the "technical accuracy of the entire report and its proposed approaches [Ohio EPA, 2001b: 20]." Butler County Department of Environmental Services, facing severe permit reductions under the TMDL allocations, commented, "the primary disappointment is that the Mill Creek TMDL establishes a command and control approach and relies on assumptions, in place of critically important, missing data (Ohio EPA 2001b: 29)." Butler County had been taken by siuprise that the previously approved permit on the Upper Mill Creek Water Reclamation Facility (wastewater treatment) would be reduced from 5 mg/1 to 3 mg/l as a result of the TMDL. Butler Coimty cited in its defense the recent $ 2 2 million upgrade and expansion of the plant and recent work in habitat enhancement. It criticized Ohio EPA calculations for what it referred to as "fatal flaws" in the modeling process. In addition, Butler County charged that the permit reductions for point sources and no guarantees on reductions in nonpoint sources were in violation of Federal TMDL guidance. On Butler Coimt/s behalf the TAG recommended that Ohio EPA suspend the permit reductions on the Water Reclamation Facility imtil further negotiations. Ohio EPA responded to nearly every comment they received on the Mill Creek TMDL Report in a 38-page responsiveness summary and published it on Ohio EPA's TMDL web page. They corrected themselves where needed in spelling and mathematical errors, revised and clarified calculations, and defended their positions on permit limits and the phased approach to TMDLs. Ohio EPA replied to Butler County's critique by stating they can only give the required reasonable assurances' for pollution reduction activities that fall under NPDES

154 permit changes and Clean Water Act Section 319 funding administered by Ohio EPA that goes toward best management practices. All other approaches can only be completed by stakeholders through an implementation plan to address nonpoint source and habitat impacts. Ohio EPA wrote, "There is no violation of the Federal TMDL guidance. The guidance clearly requires that permit limits be established for point source NPDES permit holders affecting the parameters addressed by the TMDL (Ohio EPA 2001c: 30)." Further, Ohio EPA acknowledged that the proposed limits would not bring waters into attainment with water quality standards. In addition, Ohio EPA stated that they had lowered the permit level for nitrogen, but increased the phosphorus permit level for Butler County from 0.8 mg/l to 1.0 mg/l based on stakeholder recommendations. However, in response to Butler County’s request to suspend the implementation plan and not reduce their permit level from 5 mg/l to 3 mg/l for nitrogen, Ohio EPA stated "it is unlikely that Ohio EPA will relinquish its authority under the NPDES program to allow permit limits to be developed by the local stakeholders. This actually would not be legal (Ohio EPA 2001b: 35)." Ohio EPA defended its other actions under a phased TMDL' approach. Ohio EPA decided during this first step to address pollutants impacting the entire watershed, which are excess nutrients (bacteria also falls into this category but was left off the 1998 303(d) list and therefore must wait until the next listing cycle). In response to the numerous critiques received on the draft TMDL Report, Ohio EPA agreed to hold three additional stakeholder meetings. Ohio EPA hired an independent facilitator to address issues and concems raised by stakeholders and to aid in developing an implementation plan to address nonpoint sources of nutrients. Additional changes and a more specific implementation plan will be included in the final Mill Creek TMDL Report expected to be released in 2001. The Mill Creek Watershed TMDL was used as an example of stakeholder influence on the scientific process of pollutant load determination and allocation between sources. The uncertain moments of TMDL science were revealed in the instance of the unproven link between target nutrient concentrations and Modified Warmwater Habitat standards for the Mill Creek. This uncertainty was transparent to stakeholders in the Mill

155 Creek Watershed who used the opportunity to challenge the sound scientific basis of the Mill Creek TMDL calculations. The stakeholders were successful in influencing Ohio EPA to relax the target conditions for nitrogen and phosphorus. However, to date, Butler County has not been successful in persuading Ohio EPA to relax their NPDES permit limits for nitrogen. In addition, the Mill Creek TMDL case study exemplified stakeholder opposition to phased TMDL approach, stakeholders, primarily fi'om the environmental community want all pollutants addressed at one time. Stakeholders criticized Ohio EPA for relying too heavily on point source effluent reductions and for not providing "reasonable assurances" that nonpoint source pollution would be reduced. This is a sticking point for Ohio EPA who does not have direct regulatory authority over nonpoint sources, but must rely on stakeholder implemented best management practices. A major complaint by the Mill Creek stakeholders focused on the lack of "meaningful" participation by stakeholders and the Technical Advisory Group. Stakeholders are no longer content to rely on Ohio EPA scientific decisions; they demand to have influence in data collection, model selection, interpreting modeling results, and translating model results into loadings and allocation of responsibility.

7.4 Conclusions TMDL development contains discretionary moments where the science is uncertain, and involves judgments open to political and social influence. The case study of the Mill Creek illustrates the major contested issues identified at the federal level by the National Resources Council and in Ohio's TMDL External Advisory Group: public participation in development and implementation; stakeholder involvement with data collection and modeling, transparent process of load allocation between sources, phased TMDL approach, and the authority of Ohio EPA to require nonpoint source pollution reductions. The science o f TMDL development is still being determined and finalized at Ohio EPA. Through the TMDL process, stakeholders are allowed unprecedented access to criticizing and influencing data, models and allocation. The science of TMDL

156 development is being determined through the social and political influence of powerful stakeholder interests. As illustrated in the Mill Creek TMDL, different stakeholders have different views as to how TMDLs should be developed and who should be held responsible for pollution reduction. The next two chapters examine the differences between Ohio's TMDL stakeholders on the role of science, what is causing water pollution and who should be held responsible, and views on public participation in the TMDL process.

157 CHAPTER 8

STAKEHOLDER NARRATIVES ON THE ROLE OF SCIENCE AISTD PUBLIC PARTICIPATION

8.1 Introduction Understanding the emergence of local environmental policy requires an understanding of how environmental policies are developed, the stakeholder groups and interests involved in policy formation, and how controversies are settled among competing interest groups (Gibbs and Jonas 2000). Urban regime theory points to analyzing how coalitions form, change or dissolve over issues of environmental management. The theory tells researchers that it is not sufficient to look at the instrumental logic of stakeholders, but to examine more closely the mobilizing of discourse coalitions and their ability to create conditions of coherence among diverse interest groups. This chapter analyzes the emerging discourses of science, participation and regulatory targets that are forming under TMDL policy and its potential to change regulation o f water quality. The transparency of uncertain moments in the science of water quality assessment and TMDL development were outlined in Chapters 6 and 7. Stakeholders criticized Ohio EPA’s TMDL development in the Mill Creek watershed by bringing scientific practices into question. As the Mill Creek TMDL case study illustrated stakeholders hold different perspectives about the role of scientific modeling and who should be held responsible for water pollution under the TMDL program. The point source community was displeased with the effluent permit levels and challenged the validity o f data, models and the setting of target conditions for the nutrients nitrogen and phosphorus. The environmental

158 community felt that nonpoint sources were not adequately addressed nor held responsible for their pollution contributions. This chapter focuses on how stakeholders define the role of science in TMDL development and asks, how do stakeholders view science in the TMDL process? How do stakeholders differ over the role of public participation in the science and policy formation for the TMDL program? This chapter explores differences regarding science and public participation in TMDL policy. Stakeholder’s perceptions and attitudes toward regulation and science are important because these perspectives are translated into language, actions, and narratives of causality. Stakeholders employ narratives to define the problem at hand and thus delimit the possible solutions, discredit alternative ways of viewing the problem, and attribute responsibility to particular parties. The language and actions over science and regulatory targets are used to form discourse coalitions that employ power to influence the scientific and policy outcomes. The findings presented in this chapter show that stakeholder’s views of science are a critical point of division among individuals engaged in the policy process. Included in this debate over the role of science is how water quality problems are defined, data collected, pollutant loadings determined, and water quality impacts modeled. Stakeholder definitions of scientific practices and views on the role of science in regulation are correlated with who is targeted as a source of water pollution and who should face regulatory action.

8.2 Narratives and Discourse Coalitions As outlined in the theoretical and conceptual fi^amework for this research (Chapter 2), environmental problems are inter-discursive problems. Environmental management and regulation are comprised of elements from different discourses, both physical and social science. In resolving contested issues within environmental regulation, it is necessary for actors to employ narratives that combine elements fi"om these different discourse domains, both physical and social (Hajer 1995). In water quality regulation there are various definitions and perceptions of what the problem ‘really is’. The definition given to causes of water pollution renders some aspects of social and physical reality as valid, while other aspects are dismissed. For example, hydromodification is major cause of non-attainment of water quality standards 159 in many watersheds across Ohio. Stakeholders hold very different perspectives however in attributing responsibility, some believe the construction and home building industry have the largest impacts while others blame agricultural practices. Discourse analysis examines how problems are represented, differences are struggled over and resolved and how coalitions emerge over specific meanings. In this chapter I analyze actors use of language and the interaction between actors in forming political coalitions over how science should be used in TMDL regulation. Narratives of science provide actors from diverse positions or backgrounds means for developing a common understanding of complex issues (Hajer 1995). The narrative, espoused as a story of causality, gives a relatively simple picture of a complex physical and social problem. It is used as a metaphor that participants tell about specific policy situations in which the actors relate causal stories to specific calls for action. The narrative defines a problem, but goes further to attribute specific ideas of blame, responsibility, and victimization to particular actors. Narratives are able to cluster knowledge, position actors, and create coalitions of actors. Narratives are a powerful, driving force of change within political struggles. In a specific problem domain, the struggle for discursive hegemony results in coalitions forming among actors from very different positions, but they are attracted to a specific narrative because it can be used to further an interest group’s goals (Hajer 1995). By examining the discourse coalitions present in TMDL policy, I trace how narratives are used to simplify complex issues and create conditions of coherence among stakeholders with very different interests. Stakeholders create narratives over the role of science in order to influence water quality assessment and modeling, and thus influence regulatory outcomes. Discourses over the role of science in TMDL programs bring diverse stakeholders into coalitions that mobilize power to influence the methods and models of TMDL development. How water quality is monitored and assessed has direct impacts on what is identified as a cause of pollution and who is held responsible.

160 8.2.1 Stakeholder Differences over Science in Water Quality Regulation Two questions included in the formal survey instrument given to TMDL BAG members were concerned with the science of water quality regulation. The responses (n=43) to these questions indicate that stakeholders view the role of science in the TMDL program very differently. Respondents were nearly evenly split over the ability of science to determine “exactly who is polluting the water and by how much.” 48% expressed concern with ability of science to quantify pollution sources and loads, while 52% expressed faith in science. When examining how the major stakeholder groups (see Chapter 3 methods on groups) differed on this question, those in the Regulated Community, Government, and Environmental groups were nearly evenly split between agreement and disagreement. Surprisingly, the Technical group was also evenly split, 3 agree and 2 disagree with the ability of science to quantify sources. This group might be expected to have a higher degree of faith in the science of water quality assessment based on their knowledge of modeling techniques, but this is not the case. Another surprising result was the Nonpoint Source group’s response to this question, all four of the individuals in this group disagreed with ability of science to quantify sources and pollution loads. The Nonpoint Source group, comprised of Farmers and Foresters, may be reacting to Ohio EPA’s identification of increasing impacts from nonpoint source pollution (See Chapter 6 on Ohio EPA Science). This group does not like Ohio EPA science that is increasingly identifying nonpoint source pollution impacts.

Science % Agree % Disagree

Science is able to tell us exactly who is polluting the 52 water and by how much. 48 Regulating sources of water pollution is more a political 79 21 process than a scientific one.

Table 8.1. Survey responses on science in water quality regulation.

161 Responses to the second question on science in the regulatory process elicited surprising results as well. An overwhelming majority of respondents, 79%, believe that water quality regulation is more of a political process than a scientific one (Table 8.1). Nonpoint Sources were evenly split (2 agree and 2 disagree) with the statement that regulation is more political than scientific. In each of the remaining groups, a majority of individuals believed that regulation is more political: Point Source (7 agree and 1

disagree). Government (10 agree and 2 disagree). Environment ( 8 agree and 3 disagree) and Research/Technical (4 agree and 1 disagree). Breaking down the respondents by major stakeholder group reveals interesting differences in views on science in water quality regulation. However, based on the survey data it is not possible to determine the differences within the stakeholder groupings or what it is about the science that stakeholders do not trust. The next section of this chapter analyzes how stakeholders differ over science in regulation and why, and reveals differences between stakeholders within each of the major interest groups. As might be expected, stakeholders in the environmental group for example have disparate views on the role of science. They are united in their targets of nonpoint source pollution but hold different perspectives on the role of quantitative modeling to address water quality problems. The analysis reveals four different perspectives on the role of science and participation in the TMDL process. These narratives will be combined with stakeholder identification of regulatory targets in Chapter 9 to reveal emergent coalitions over how TMDL policy should be developed, the role of science and who should be held responsible under TMDL regulation.

8.3 Q-Method Q-Method provides a technique for soliciting attitudes and perceptions of stakeholders regarding the TMDL process. The q-method, as described in Chapter 3 on methodology, correlates responses across individuals instead of survey data (termed R methods), which correlate similarities across variables or traits. Thus q-method produces factors that represent the range of different perspectives held by stakeholders. Q-method allows individuals to 'speak for themselves' to reveal unrecognized or underlying social

162 discourses that represent 'ideal' ways of seeing a problem or issue. The resultant narratives are the story-lines that stakeholders employ to create a simplified, coherent approach out of complex social and physical elements. The statements derived from the in-depth interviews reflect the stakeholders' ways of seeing a problem and the language used in talking about an issue. The narratives or discourse revealed are the patterns of subjective views and attitudes held by the TMDL stakeholders. The benefit of q-method is it allows for the openness of qualitative methods combined with the statistical rigor of quantitative analysis (Addams 2000). Factor analysis is used as a technique to systematically analyze the diversity of narratives held within the group. The q-method employed in this study elicited responses firom TMDL stakeholders regarding three issues; 1) the role o f science in TMDL development; 2) tire role of public participation in TMDL development and policy formation; and 3) perspectives of stakeholders on what and who is causing water pollution. The following sections describe the methods of sampling and analysis that was conducted to reveal the range of discourses on science in the TMDL process.

8.3.1 Q-Method Respondent Sample and Statements The Q method statements compiled for this analysis were selected directly fi*om the in-depth interviews conducted with stakeholders in the TMDL EAG and fi'om Ohio EPA staff engaged in developing TMDLs for the agency. The complete list of 23 statements along with the factor scores is given in Appendix A. The statements were selected to reflect the range of opinion that emerged from the interviews with stakeholders over three issues: 1) Science, 2) Participation and 3) Causes/sources of water pollution. In selecting the individuals to complete the q-sorting of the statements, the purposive sampling was conducted to reflect the range of stakeholder groups identified through the TMDL EAG (see Chapter 5 on TMDL EAG demographic profile), but also to reflect the diversity of perspectives held by the individuals within and between each of the major groups. Q-method is less concerned with creating a sample that represents the exact makeup of the TMDL EAG, and more concerned that the individuals selected represent the range of narratives operating in the TMDL process. The affiliations of the 20 individuals who completed q-sorts are given in Table 8.3. The 163 individuals represent the key leaders among the five major stakeholder groups, point source regulated community, construction and homebuilders, government employees (policy entrepreneurs), environment, agriculture and forestry, and research and technical. The q-sorting was conducted by placing each of the selected 23 statements on individual cards. The cards were given to the respondents with the instructions to place the cards in the following diagram (Figure 8.1) according to the statements they most agree with to those statements with which they most disagree. The respondents were given the instructions to start reading the cards and placing them in three piles: statements they agree with, statements they disagree with, and statements about which they feel neutral. This suggested approach led respondents to read through the entire 23 statements before placing them in exact positions to encourage the respondents to sort the statements on a more holistic basis. Next, the respondents were instructed to fill in the model by placing one card in each blank space. In the q-sorting process, respondents are required to make fine distinctions between statements that they agree (or disagree) with. The model shown in Figure 8 .1 forces respondents to sort statements in the following manner: two statements under each of the +3/-3 columns, three statements under the +2Z-2 column, four statements under the +1/-1 column, and five statements in the 0 or neutral column. The theoretical significance of the forced normal distribution in q-sorts is debated among practitioners, but the format is useful because it requires the respondent to make distinctions between statements about which they feel the most strongly (McKeown and Thomas 1988; Addams and Proops 2000).

8.3.2 Q-Method Analysis

The sorts of the statements were analyzed using the PQ Method software program. Each respondent's sorted statements were entered into the software program which then correlated and factor-analyzed the sorts using varimax rotation. The varimax rotation ensures that each extracted factor is significantly different from each of the other factors. It maximizes the extent to which individuals will be strongly associated with one factor and have weak associations with the other factors, and is the most commonly used

164 factor analysis in q-methodology (McKeown and Thomas 1988). In this analysis, four factors extracted from the data produced both statistically significant factors and theoretically significant factors. In deciding how many factors to extract, the process is based on the percent of the variation explained and statistical significance, set at

eigenvalues greater than 1 . 0 0 (all factors met this criteria). Although it is accepted practice to extract statistically insignificant factors if they offer theoretically distinct ways of perceiving the issue at hand (Brown 1980; McKeown and Thomas 1988; Addams 2000). For the TMDL process, four factors were extracted and analyzed (Table 8.2). In a trial analysis extracting five factors, it was determined that the fifth factor did not add a unique way of viewing the role of science and participation in the TMDL process, reduced the number of defining variables and thus increased the error o f the factors extracted. Thus it was determined that four factors covered the range of perspectives operating in TMDL policy.

Most Disai

Figure 8.1. Structure given to respondents for sorting statements in Q-Method.

The explained variance for each factor is given in Table 8.2, and vary between 12 and 18 percent. The four factors together explain 63% of the variation among the 165 respondent's q-sorts. For interpretation, each factor is analyzed to produce a factor array (based on factor score) or the ideal q-sort' for each factor. The scores reflect the q-sort model, in this case +3 to -3. The higher the individual's loading on the factor, the more closely their q-sort reflects the ideal factor array. The average relative coefflcient expresses the reliability of the factor scores and is used to identify the distinguishing statements for each factor, or those statements which are rated different (and statistically significant) in the continuum (+3 to -3) compared to the other factors. For the average

Science is Science is Uncertain; Science Technocentric Uncertain is Factor Group Limited Participation Political (A) (B) (C) (D) No. of Defining Variables (Individuals Associated with 6 6 4 4 Factors) Explained Variance (%) 17 18 15 12 Average Relative Coefficient 0.800 0.800 0.800 0.800 Composite Reliability 0.960 0.960 0.941 0.941 Standard Error of Factor 0.200 0.243 0.243 Scores 0.200

Table 8.2. Factor Statistics

relative coefficient values are expected between 0.80 and 0.90 in Q method analysis (Addams 2000). The composite reliability indicates the factor's reliability, the more persons defining a factor, the higher the factor's reliability, and the lower the standard error of the factor group. The respondents' sorts were associated with a factor group by determining a statistically significant positive association. The standard error (SE) for the factor loading is calculated by the expression I/Vn where N equals the number of statements (McKeown and Thomas 1988; Addams and Proops 2000). For the 23 statements used here, SB = 1/V23 = 0.20. Loadings in excess of 2.58(SE) or 2.58(0.20) = +/- 0.516 are significant at the 0.01 level. For the 0.05 level of significance, loadings exceeding

166 1.96(SE) = +/- 0.392 are significant. Each of the respondents' sorts were identified with a factor group based on level of significance (Table 8.3). The factor loadings are in effect correlation coefficients, meaning they indicate the degree to which an individual's q-sort is similar or dissimilar to the composite factor array (ideal sort derived from each factor A, B, C, and D). All but two respondents identified in a statistically significant positive correlation with one of the four factor groups, A-D (Table 8.3). Two respondents also had negative, but statistically significant loadings on other factor groups (Respondent #10 and #2). These respondents were grouped with a factor based on the positive association taking precedence over the negative. An additional two respondents were identified with factors C (Respondent #17) and D (Respondent #18) in a negative, but statistically significant association. These two individuals did not associate with any of the other three factors in a significant, positive association. These two individuals hold oppositional views to Factors C and D, and are theoretically significant in understanding the shifting alliances between major stakeholder groups over science and regulation in the TMDL process.

8.4 Narratives of Science, Participation, and Responsibility The following sections analyze the four emergent narratives regarding science, participation, and cause and responsibility for water pollution under the TMDL program. Using the quantitative factor groupings and employing discursive analysis, I analyze the four perspectives that represent the way in which stakeholders conceptualize these issues. The factors represent pure or ideal ways of seeing science and participation under the TMDL program. These narratives emerge from the language and descriptions used by stakeholder's in the TMDL process. They reveal the wide range of perspectives that stakeholders hold about how science should be used in TMDL development. The explication of these narratives traces the seemingly intractable positions between diverse stakeholder groups and reveals the variation of perspectives within the major stakeholder groups. Table 8.4 lists the four narratives and describes the major characteristics held by each.

167 Factors Sort Interest Group/ A B C D ID Professional Affiliation- 11 Point Source 0.87" 0.05 -0.13 0.01 9 Point Source 0.73* 0.29 0.06 0.37 12 Government 0.69* 0.38 0.37 -0.22 1 Environmental 0.59* 0.02 0.00 -0.30 8 Agriculture 0.55* -0.23 0.21 0.37 10 Government 0.41 -0.57* -0.35 -0.06 16 Forestry 0.01 0.88* -0.07 0.21 6 Government 0.15 0.81* -0.17 -0.01 20 Environmental 0.15 0.66* 0.46 0.11 19 Research/Technical 0.03 0.63* 0.28 -0.15 15 Environmental 0.48 0.56* 0.19 -0.15 2 Environmental 0.30 0.39 0.34 -0.68* 4 Government -0.03 0.08 0.89* 0.28 3 Environmental 0.36 0.16 0.74* -0.29 13 Government 0.40 -0.05 0.47 0.42 17 Point Source 0.07 -0.06 -0.78* 0.06 7 Government -0.24 -0.20 -0.12 0.57* 5 Government -0.02 0.11 0.25 0.56* 14 Agriculture 0.20 0.27 -0.05 0.52* 18 Construction Industry -0.04 -0.04 -0.02 -0.50

Notes: Bold numbers indicate significant factor loading at 0.05 level (loading above 0.392) * indicates significant factor loadings at 0.01 level (loading above 0.516). ** Affiliations same as used previously, except for Regulated Community, which has been broken down by point source and construction; and the Nonpoint source community broken down into agriculture and forestry affiliations; both to reflect notable differences.

Table 8.3. Respondents' Factor Loadings on Each Factor Group.

168 8.4.1 Factor A: Technocratic The Technocratic group (A) advocates a rigorous, scientific approach to TMDL development. They maintain a strict separation between science and politics in modeling and policy decisions. They do not advocate for participatory policy formation, but instead adhere to a legally authorized program over stakeholder input. The following are distinguishing statements for this group and ones that the respondents strongly agree with (The scores in parentheses are for Factors A, B, C, and D, respectively);

16. The knowledge, quantitative tools and models are accurate, but what we need is intense data collection to support calibration and verification of the models. (+3, -2, -2, 0)

21. We need sound science, an authorized program and a balanced approach. TMDLs should not be formed by what does everybody in the room think would make a good TMDL. (+3,+1,-1, 0)

This group follows a technocentric, positivist view of science and believes water quality models are accurate in assessing problems. The group advises all that is needed is extensive data collection and verification so that models are matched to specific physical conditions of each watershed. The group believes that more and better data are able to solve complex modeling problems of TMDL development and allocation of pollution to sources. In addition, the technocratic group advocates “sound science, an authorized program and a balanced approach” over participation of those engaged in the policy formation process. This group adheres to the letter of the law and fear certain groups may lose a regulatory advantage if regulations are created through a participatory process.

169 FACTOR SCIENCE PARTICIPATION CAUSE/ GROUP RESPONSIBILITY FOR POLLUTION Technocratic Quantitative tools and Authorized program Hydromodification; (A) models accurate, need and balanced Agriculture and more data collection approach' over Construction participatory decision-making.

Science is "Sound Science” base, Authorized program Hydromodification Uncertain but modified by and "balanced and Riparian (B) uncertainty in NPS approach" over corridor; Farmers pollution modeling participatory decision-making

Science is Take action to clean up Participation can Hydromodification Uncertain; water; TMDLs are in slow taking action; and Riparian Limited danger of getting too waiting for scientific corridor; Agriculture. Participation technical in science consensus is a Construction, and (C) decision NOT to act Point Sources Science is Critical of Ohio EPA; Solve water quality Impacts to riparian Political and Decisions were political, problems with all corridor, not toxic Full not technical; stakeholders chemicals Participation quantitative tools and working together at (D) models not accurate watershed level

Table 8.4. Description o f Factors.

170 The Technocratic group does not believe that TMDL decisions are more politically based than technically based. They believe that decisions should be based on sound science and proven methods. They do not think that science should be based on consensus scientific recommendations. They advocate limiting stakeholder participation in favor of ‘sound science’ approaches. They do not believe that too much attention is going toward creating the ‘numbers’ of TMDL pollutant loads and allocation.

2. The majority of decisions made on this TMDL were not technically based, they were politically based, they were modified to meet the politics of the situation. (-3,-1, -2, +2)

3. Stakeholders say they want to base decisions on consensus scientific recommendations, if that’s the case we are not going to do anything. That’s a decision not to act. (-3, -3, +3, -1)

17. The stakeholders don’t trust Ohio EPA. They think that Ohio EPA has made all the decisions and this TMDL process is just window dressing. (-2, 0,-1,+1)

13. If all the TMDL money is going into creating these numbers that people will argue about and take to court for years, then its another frustrating exercise in science, getting too technical in the science. (-1, 0, 3, 0)

The Technocratic group agrees that hydromodification is the number one problem. They disagree that agriculture should be regulated over the construction industry, but also feel that the construction and development community does not bear their equal share of financial and regulatory burden. The Technocratic group believes that point sources bear a large burden of the regulation and that it is time for others to take more responsibility.

4. The number one impairment is hydromodification, two-thirds caused from agriculture, one-third caused from home building. (+1, +1, +1, -3)

7. Nobody causes more erosion than farmers. So for how long can you justify

171 regulating the construction industry for example, which is about 5% of the load, and leaving farming which is 90% of the load off. (-2, +2, -3,-3)

11. Point sources want to see other polluters do their fair share. They’ve got to feel a little pain too. There are times when I don’t agree with what the construction industry says. They talk about spending money on pollution control, they don’t loiow what Üiat is. (4-2, -I, 0 , 0 )

This factor group follows the traditional model of positivist science approaches to water quality modeling and policy formation. The Technocratic group advocates for rigorous, quantitative modeling and does not value participation in science and policy decisions. They maintain a strict separation between science and politics, believing that science can be conducted without the interference of values or politically based judgments.

8.4.2 Factor B: Science is Uncertain Groups B and C are closest in their views of science in the TMDL process, however they differ in their perceptions of participation and who is responsible for water pollution problems. In this factor grouping, the belief by the Technocratic group is tempered with the recognition of uncertainty and the desire to mitigate water pollution problems. They express faith in the science, but recognize the modeling of nonpoint source pollution to be uncertain. They recognize that different stakeholder groups have their own interpretation of science, and that politics enters into regulatory decisions. However, the group agreed that TMDL development should not get ‘caught up in the numbers’ but move ahead to achieve water quality goals. In addition, they question the necessity of exact models to determine problems and solutions under TMDL policy.

1. We always hear the phrase, ‘we have to do this by sound science’. The science is in the 305b report, what we need is the political will to address the nonpoint sources. (4-2, 4-3, 4-2, -2)

14. Nonpoint source modeling is uncertain. We shouldn’t get caught up in the numbers but move ahead to achieve water quality goals. (0, 4 -3 , -4-2, 4-3)

22. Point sources have one interpretation o f the data, environmentalists and their 172 scientists have another interpretation of the data. The bottom line is, its never just science, its science and politics. (+1, +1, +1, +3)

23. I tend to be somebody who wants factual, scientific underpinning to what we’re doing. But if we have a generalized belief that stormwater and surface runoff are the problems then it makes sense to look at those sources. (+ 2 , +2 ,- 1 , 0 )

Complicating the technocratic view of science, this group disagrees with the statement that methods are accurate and all that is needed is more data. Again, while the factor grouping is concerned with taking a sound science approach to TMDLs, they are wary of an over-reliance on expensive and time intensive data collection and complex modeling. They disagree that science of TMDL development is more influenced by politics over sound science.

16. The knowledge, quantitative tools and models are accurate, but what we need is intense data collection to support calibration and verification of the models. (+3, -2, -2, 0)

19. I’m not sure how necessary exact models are to identify where the problems are coming from and what the solution should be. Through this TMDL process we’ve committed ourselves to doing that and that’s what I’m rethinking. (- 1 , + 1 , 0 , + 1 )

2. The majority of decisions made on this TMDL were not technically based, they were politically based, they were modified to meet the politics of the situation. (-3, -1, -2 ,+2)

Participation is recognized as important in developing consensus over scientific recommendations. However, respondents agreed that TMDL development needs to be based on sound, credible science, even at the expense of public participation in policy decisions.

3. Stakeholders say they want to base decisions on consensus scientific recommendations, if that’s the case we are not going to do anything. That’s a decision not to act. (-3, -3, +3, -1)

173 21. We need sound science, an authorized program and a balanced approach. TMDLs should not be formed by what does everybody in the room think would make a good TMDL. (+3, +1, -1,0)

In who is causing water pollution, the factor grouping identifies the number one impairment as hydromodification and degrading the riparian corridor and stream channel. The group targets agriculture as a source of pollution over point source and construction impacts. In this perspective they split from the other three factors. In keeping with this view, they disagreed with statements that point sources are trying to cause trouble by advocating for rigorous, complex models.

7. Nobody causes more erosion than farmers. So for how long can you justify regulating the construction industry for example, which is about 5% of the load, and leaving farming which is 90% o f the load off. (-2, +2, -3, -3)

8 . The number one cause of water quality impairment in Ohio is not toxic chemicals anymore, its screwing around with the stream channel and taking out the riparian corridor, that’s the number one problem. ( 0 , +2 , +2 , +2 )

11. Point sources want to see other polluters do their fair share. They’ve got to feel a little pain too. There are times when I don’t agree with what the construction industry says. They talk about spending money on pollution control, they don’t know what that is. (+ 2 , - 1 , 0 , 0 )

5. The models aren’t complex enough for the point sources. They want absolutely the best, the top, even though its not needed in this watershed. I think they are just trying to cause trouble by saying the models aren’t rigorous enough, even though they are very complex models. ( 0 , -2 , + 1 , + 1 )

The Science is Uncertain (B) factor group is dominated by environmentalists, and advocate sound science in order to address nonpoint source pollution. The group strongly identifies agriculture as the primary source of nonpoint source pollution. One interviewee associated with this group identified the need for better science relating nonpoint source pollution to water quality impacts. The group believes they need strong quantitative science in order to bring agriculture pollution under regulation.

8.4.3 Factor C: Science is Uncertain and Limited Participation

174 This group views the science of water quaUty monitoring as sound, but complicated by political influence. The science for TMDL development is seen as adequate, but what is needed is the political will to address nonpoint sources. In this respect they are very close to Group B's view on science, but differ with that group by: 1) suspecting point sources are trying to stall TMDL implementation by advocating for rigorous modeling; 2 ) believe in more, but limited participation, because participation can slow progress toward addressing nonpoint source pollution; and 3)do not target agriculture as the primary source o f pollution. The group recognizes the uncertainty with nonpoint source modeling, but advocates proceeding to address pressing water quality problems. The group was critical that if all TMDL development is focused on the numbers, then it is “just another exercise in science, getting too technical in the science”. The group agreed that point sources may be just trying to cause trouble by lobbying for the most rigorous models for TMDL development.

22. Point sources have one interpretation of the data, environmentalists and their scientists have another interpretation of the data. The bottom line is, its never just science, its science and politics. (+ 1 , + 1 , + l, +3)

1. We always hear the phrase, ‘we have to do this by sound science’. The science is in the 305b report, what we need is the political will to address the nonpoint sources. (+2, +3, +2, -2)

13. If all the TMDL money is going into creating these numbers that people will argue about and take to court for years, then its another frustrating exercise in science, getting too technical in the science. (-1, 0, 3, 0)

17. Nonpoint source modeling is uncertain. We shouldn’t get caught up in the numbers but move ahead to achieve water quality goals. (0, +3, +2, +3)

Participation is seen as a viable part o f the TMDL process, but tempered by the need to address existing water quality problems. The danger of seeking consensus is that it may lead to a stalemate and slow actions to improve water quality.

21. We need sound science, an authorized program and a balanced approach. TMDLs should not be formed by what does everybody in the room think would make a good TMDL. (+3,+1,-1, 0) 175 3. Stakeholders say they want to base decisions on consensus scientific recommendations, if that’s the case we are not going to do anything. That’s a decision not to act. (-3, -3, +3, -1)

Hydromodification is seen as the number one water quality problem with sources from agriculture and construction. The group strongly disagreed that farmers cause more erosion than construction. They agree that point source impacts on water quality need more attention.

4. The number one impairment is hydromodification, two-thirds caused from agriculture, one-third caused from home building. (+1, +1, +1, -3)

7. Nobody causes more erosion than farmers. So for how long can you justify regulating the construction industry for example, which is about 5% of the load, and leaving farming which is 90% of the load off. (-2, +2, -3, -3)

14. Some people in both Ohio and at the federal level would say we’ve addressed the point sources. Wait a minute, we addressed the easy ones, some of the ones that are politically difficult to regulate we haven’t addressed. (0 ,- 2 ,+ 1 ,- 1 )

A representative from the regulated point source community (Respondent #17) was associated with this factor group by a strong, negative association. This indicates that the individual's q sort was nearly opposite of Factor C. The perspective of this individual holds that the science of water quality assessment is accurate and that sound science and an authorized program should take precedence over participatory decision­ making. In this view of science the individual is closer to the Technocratic group, however differs from that grouping in identification of causes of water pollution. The individual points to both farmers and construction industry causing hydromodification pollution. The individual stated in an interview after the Q-sort, that debates over science are an issue in TMDL development, but that it is not clear what it is about the science that bothers people. This individual believes people criticize technocratic approaches to TMDL development because they do not like what the science is telling them.

1 7 6 8.4.4 Factor D: Science is Political and Participatory Democracy

The Science is Political group is highly critical of Ohio EPA and believes that Ohio EPA modifies its science to appease the most politically powerful stakeholders. This point clearly distinguishes this group from the other factors. The group disagreed that the science of water quality regulation is adequate. This is surprising given the close association of the three individuals with regulatory practices at Ohio EPA. Perhaps the group’s familiarity with the operations of Ohio EPA science and regulation have given them evidence that scientific practices are influenced by political and value-laden judgments. The group sees the decisions made by Ohio EPA as more political than technical. This group disagrees that science is accurate and that all we need is the political will to address nonpoint source pollution.

5. The majority of decisions made on this TMDL were not technically based, they were politically based, they were modified to meet the politics of the situation. (-3, -1,-2 ,+2)

15. If Ohio EPA didn’t use any models in determining pollution loads it would still come to the same implementation plan. TMDLs are based more on what people are willing to do, not on the water quality models. (- 1 , 0 , 0 , + 1 )

22. Point sources have one interpretation of the data, environmentalists and their scientists have another interpretation of the data. The bottom line is, its never just science, its science and politics. (+ 1 , +1, +1, +3)

1. We always hear the phrase, ‘we have to do this by sound science’. The science is in the 305b report, what we need is the political will to address the nonpoint sources. (+2, +3, +2, -2)

16. The knowledge, quantitative tools and models are accurate, but what we need is intense data collection to support calibration and verification of the models. (+3, -2, -2, 0)

The defining statements for this factor indicate a strong belief that public participation is crucial in TMDL development and that the most effective policy making is through full participatory democracy. In keeping with their view, the group also does not trust Ohio

177 EPA to involve the public in decisions. They are critical of US EPA interjecting itself into local water quality management. They believe that Ohio EPA is not free to operate in an unbiased maimer or to be critical of regulated and development/construction communities.

8 . The environmental and public community is growing stronger compared to the regulated community. Now, Ohio EPA feels they can operate in the middle, and have the backbone to do the right thing, even if it includes being critical of the regulated community and construction industry. ( 0 , 0 , 0 , -2 )

16. The stakeholders don’t trust Ohio EPA. They think that Ohio EPA has made all the decisions and this TMDL process is just window dressing. (-2, 0,-1,+1)

9. My biggest problem with EPA’s TMDL rule is that they make the assumption that ‘we’re going to come down from Moimt Sinai and make all these rules and regulations and we’re going to force it down your throat’. But, you can solve the problems at the watershed level with all groups, stakeholders working together given flexibility and some incentives. (+ 1 , 0 , -2 , +2 )

The group strongly disagrees that the number one impairment is hydromodification. They do not target farmers over construction impacts, although it is not clear who they target for water quality problems. They believe the primary cause of water quality problems is degradation of the stream chatmel and riparian vegetation.

4. The number one impairment is hydromodification, two-thirds caused from agriculture, one-third caused from home building. (+1, +1, +1, -3)

8 . The number one cause of water quality impairment in Ohio is not toxic chemicals anymore, its screwing around with the stream channel and taking out the riparian corridor, that’s the niunber one problem. ( 0 , +2 , +2 , +2 )

7. Nobody causes more erosion than farmers. So for how long can you justify regulating the construction industry for example, which is about 5% of the load, and leaving farming which is 90% o f the load off. (-2, +2, -3, -3)

14. Some people in both Ohio and at the federal level would say we’ve addressed the point sources. Wait a minute, we addressed the easy ones, some of the ones that are politically difficult to regulate we haven’t addressed. (0, -2,+1,-1)

178 One respondent from the development/construction industry had a strong negative association with this grouping (respondent #18). This individual agreed with statements that more closely fit with the Technocratic approach to science, however, the person does not positively associate with that factor because of recognizing that a rigorous modeling approach may not be necessary and disagreement on targets for water quality regulation. The Technocratic group pinpoints development for water quality problems, which this individual expectedly, and adamantly, opposes. This individual disagrees that the knowledge and current models in use are accurate, perhaps reflecting a dissatisfaction with Ohio EPA’s increasing identification of hydromodification impacts, a large part of which they attribute to development and construction sources. The person slightly agrees with the statement that exact models may not be necessary to identify water pollution problems and solutions, and yet also agrees that TMDLs should be based on ‘sound science, an authorized program and a balanced approach’ over participatory decision-making, thus reflecting some ambiguity in the role of science and participation in TMDL development. Disagreeing with the statement “Nonpoint source modeling is uncertain. We shouldn’t get caught up in the numbers but move ahead to achieve water quality goals’’, this individual recognizes that this approach could lead to more regulation of the construction industry because of the desire of several stakeholder groups to target construction impacts and increase fees for 401 water quality certification required of construction projects. This individual strongly agrees that hydromodification is the number one problem, and farmers as the primary source, (closely resembling Group B - Sound Science). The individual believes that the construction industry is over regulated because it is only a minor contributor to water pollution impacts. The construction industry representatives recognize the increasing identification of nonpoint source pollution by Ohio EPA monitoring, and thus strongly advocate that farmers need more regulatory attention than the construction industry in an effort to deflect regulatory action from themselves.

179 8.5 Conclusion

The narratives presented in this chapter represent the idealized perspectives on science, participation, and who should be held responsible for pollution under TMDLs. The narratives reveal the range of conflicting definitions of science in regulation that have emerged under TMDL policy. The emerging discourses of science and participation have been configured by the dialogue and interaction that took place during the 18-month TMDL EAG. Specifically, the two individuals from the point source and construction industry that had strong negative associations with factor groups possess an ambiguous perception of the role of science in TMDL implementation and who should be held responsible. From interviewing these two people it was made apparent that their perceptions o f science were not present before the TMDL EAG process. TMDL policy has altered the traditional perspectives of stakeholders engaged in environmental regulation and policy formation. The debates over the role of science have revealed a strong critique of Ohio EPA science (Group D Science is Political) as being influenced by politics and powerful interest groups, a position held by government employees closely engaged with the modeling and regulation process. The Technocratic group's separation between science and politics has long been a viewpoint in regulation, but takes on renewed power in influencing Ohio EPA policy as illustrated by the Mill Creek Watershed case study. The quantitative requirements of TMDL load calculation as outline in the 1972 Clean Water Act and EPA regulations, allows these individuals to lobby for detailed, process-based models, when Ohio EPA staff judge that simpler models would be sufficient to identify loads and sources of water pollution. Between the two extremes of the Technocratic (A) and Science is Political (D), emerged the groups B and C who recognize the political influence and scientific uncertainty present in TMDL modeling but advocate for taking action in order to achieve their objective of regulating nonpoint source pollution. The two groups split over participation in regulatory processes however, with Science is Uncertain (B) advocating for authorized programs and sound science over stakeholder participation. The Science is 180 Uncertain group, also differs from the other three factors by its identification of agriculture over other sources of pollution. The Science is Uncertain with Cautious Participation (C) recognizes the uncertainty of scientific modeling, and also recognize that stakeholder interest groups may influence regulatory process. They strongly advocate for proceeding with regulation of powerful interest groups who have not been regulated under the Clean Water Act up to this point. This group did not clearly target one source of pollution over another. In the next chapter I turn to who stakeholders target as sources of pollution and as regulatory targets in order to analyze how stakeholder coalitions are using the narratives of science outlined in this chapter to influence regulation of specific sources in TMDL development. I analyze data collected through the formal survey instrument in which respondents were asked to rank sources for causing pollution and for regulatory action. This data will elucidate the fragmenting discourse coalition previously allied around a pro-growth regime, and the emerging discourse coalitions whose alliances around science and regulation have emerged under TMDL policy. The fragmentation of the pro-growth regime is evidenced in this chapter, as well as the emerging coalition between environmentalists and government staff. The analysis of ranking data, in conjunction with narratives of science outlined in this chapter, will clearly illustrate the emergence of two coalitions that differ over science and who should be regulated.

181 CHAPTER 9

STAKEHOLDER NARRATIVES ON SOURCES OF WATER POLLUTION AND WHO SHOULD BE REGULATED

9.1 Introduction The analysis of the previous chapters revealed how stakeholders entered the scientific process at discretionary moments in order to influence regulatory outcomes in model selection, interpreting model results and assigning responsibility to particular sources. The analysis of narratives of science in water quality assessment and TMDL development (Chapter 8) illustrated how stakeholders use different narratives of the role of science and participation in water quality regulation. In this chapter I address two points of contestation in water quality analysis to further elucidate the coalescence and fi'agmentation of stakeholder coalitions under Ohio's TMDL policy. The analysis focuses on two questions: 1) How do stakeholder groups differ over who is causing water pollution? And 2) How do stakeholders differ over who should be regulated? These questions were put to the TMDL EAG members in the formal survey instrument by asking them to rank the most important sources of pollution and also to rank those same sources for regulatory action. Analysis of the quantitative ranking data reveals differences between stakeholders in who they want to target for regulation. Obviously, the stakeholders do not want to regulate themselves, but point to other sources for increased regulation under TMDL policy. The chapter begins with an overview of stakeholders views on water quality in Ohio, what they are concerned about and how they view the rising impacts fi*om nonpoint source pollution. Several questions regarding regulation and the differential power between the major stakeholder groups point to the changing regimes of policy elites in

182 central Ohio politics. Next I turn to the main focus of this chapter on analyzing the ranking data regarding sources of water pollution and who should be regulated for water quality impacts.

9.2 Stakeholder Views on Water Quality The survey administered to TMDL EAG members included likert-scale questions asking about concerns with water quality. The results have been aggregated into percentage of respondents agreeing or disagreeing with each statement. 77% believed that water pollution is a threat to their family's health, and 70% were concerned about pesticides and nutrients in drinking water. When asked if they were concerned with water quality because of its impacts on ecosystems and water pollution harming aquatic species and degrading stream habitat, 95% agreed, the remaining 5% only slightly disagreed. 64% of the respondents were not concerned with the quality of municipal drinking water because they believed it to be clean. The survey also asked respondents about nonpoint source pollution and regulation of sources of water pollution. Table 9.1 provides the question and the aggregated responses, indicating the percentage of respondents who agreed or disagreed with the statement.

9.2.1 Nonpoint Source Pollution Concerning the water quality problems stemming from nonpoint sources, 93% of respondents believe that nonpoint source pollution is the largest threat to water quality (Table 9.1) and 66% believe that industrial point sources will not tolerate stricter regulation and that water quality improvements must come from the nonpoint sources. In identifying sources of nonpoint pollution, 54% agree that agriculture is being targeted as the primary source of nonpoint source over urban and suburban sources, while 46% disagree. 86% disagreed that construction and development sources are effectively regulated. Only 19% identified Confined Animal Feeding Operations as the largest nonpoint source threat.

183 Survey Question % Agree % Disagree

Nonpoint Source Pollution We cleaned up point source pollution first because it was more toxic and easy to see. Now, nonpoint source pollution 93 7 is the biggest threat to water quality. The industrial community, targeted for point source pollution control, has faced all the regulation they will tolerate; now it is 66 34 up to nonpoint sources to reduce pollution.

Sources of Nonpoint Pollution

Agricultural runoff is being targeted as the primary nonpoint source pollution, while impacts from urban runoff and 54 46 suburban development receive little attention. Water pollution from Confined Animal Feeding Operations is the largest nonpoint source threat. 19 81 Construction activities and development projects are under regulations that effectively eliminate long-term impacts to 14 86 water quality.

Regulation

Environmental groups target industry over other sources of water pollution. 49 51 It is unfair to make farmers take the largest responsibility for water quality when many types of activities contribute to 60 40 water pollution. Industry and business lobbies are effective in blocking stricter water quality regulations on their activities. 74 26

Table 9.1. Responses to Survey Questions on Water Quality.

184 9.2.2 Regulation Respondents were nearly evenly split over the statement that environmental groups target industrial sources over other sources of water quality impacts. This statistic reinforces other sources (Q-Method and Ranking data) indicating that environmentalists are moving away from their historical focus on industrial water pollution toward nonpoint source pollution originating from agricultural or development/construction impacts. Regarding farmers responsibility, 40% believe that farmers should bear the largest responsibility for water quality improvements, even though there are many others sources of water pollution. While 60% disagreed, the 40% represents a substantial number of respondents who want to see agriculture take a large responsibility for improving water quality, despite the fact that many activities contribute to degraded water quality. 74% of the respondents believe that industry and business are able to effectively block stricter regulations on their activities. This high percentage reflects the belief that industrial sources are able to politically influence the regulatory outcome to their advantage. The survey directly asked stakeholders to rank primary sources of water pollution and to rank who should be held responsible for regulation. The analysis of the data reveals how stakeholder groups usually aligned in issues concerning economic development and environmental regulation are shifting as a result of the changing regime of water quality management and the potential of TMDL policy to address previously unregulated nonpoint source pollution.

9.3 Ranking Sources of Water Pollution and Regulatory Priority This section analyzes data regarding sources of water pollution and who should be regulated. In the formal survey instrument questions asked, 1) What are the most important contributors to water pollution? and 2) Which pollution sources should receive the highest priority for pollution reduction programs? Respondents were asked to rank seven sources of water pollution from 1 (most important) to 7 (least important), and in the second question they were asked to rank the same sources of pollution for regulatory action from 1 (high priority) to 7 (low priority). There were a total of 43 responses to the

185 survey instrument, 39 of which had complete rankings usable in this analysis. The results show significant differences in how stakeholders view the sources o f water pollution, and which of those sources are high priorities for pollution reduction programs. The seven sources of pollution were selected by identifying the top sources of pollution that impact all areas of Ohio. Regionally specific pollution problems such as acid mine drainage and contaminated sediments were not included as these are isolated to specific watersheds. Agriculture fields and Concentrated Animal Feeding Operations (CAPO) were both included reflecting the differential impacts from these agricultural sources and as a reflection of the increased regulatory scrutiny over CAFOs. Agriculture fields represent crops of com, soybeans and wheat throughout Ohio. The Concentrated Animal Feeding Operations include high-density poultry and egg production, hogs, and turkeys. A distinction was made between nonpoint source runoff from urban streets, combined sewer overflows (CSO), largely a problem with deteriorating city infrastructure, and the water quality impacts emanating from growth induced suburban development and construction. In addition, the problems stemming from on-site sewage systems has been drawing increasing attention across Ohio and was included with residential lawns to capture pollution impacts from private, non-commercial land. Industrial and manufacturing point sources along with municipal wastewater treatment plants (WWTP) have declined as the primary cause of water pollution problems largely as a result of the best available technology and large amounts of grant money funneled to WWTP operations during the 1980's. The low ranking of these sources indicates the progress made with these sources. The sources of water pollution (Table 9.2) are listed according to the composite rank order for top sources of pollution and priority for regulatory programs. These representative rank orders were derived from the frequency counts for each source in a particular rank position'. Among all respondents, the number one ranked source is Agricultural Fields, followed by Urban Runoff and Combined Sewer Overflows (CSO),

' An alternative method is to use the mean rank to position each source. One problem with the mean rank is that it may spuriously place a source in a different rank position (e.g. Rank 2 instead o f Rank 3) because of one or two high responses that skews the mean upward compared to the frequency of responses in each rank position.

186 with Suburban Development and Construction placed third. Residential Sewer Systems and Lawns were ranked 4*** by all respondents, followed by Confined Animal Feeding Operations, Industry and Manufacturing, and Municipal Wastewater Treatment Plants in positions 5, 6 and 7, respectively. In the prioritization of sources for regulation, the ranking for the first three positions is the same as the ranking of important pollution sources. However, there is movement in the lower ranks, most notably Residential Sewers and Lawns moves from rank 4 for importance to rank 7 for regulatory priority. This switch is not surprising given the history and importance of private property rights in the state of Ohio, and in the United States. There is a reluctance to regulate activities on private property and difficulty in regulating diffuse sources of pollution.

Sources RANK Regulatory Priority Agricultural Fields 1 Agricultural Fields Urban Runoff and CSO 2 Urban Runoff and CSO Suburban Suburban Development/Construction 3 Development/Construction Confined Animal Feeding Residential Sewers 4 and Lawns Operations Confined Animal Feeding Operations 5 Municipal WWTP Industrial/Manufacturing Point Industrial/Manufacturing Point Sources 6 Sources Municipal WWTP 7 Residential Sewers and Lawns

Table 9.2. Composite Ranking of Sources of Pollution and Regulatory Priorities

9.3.1 How do stakeholder groups differ over sources of water pollution? Turning to the question of how stakeholder groups differ on who is causing water pollution and who should be regulated reveal differences present between these major stakeholder groups. The sources of water pollution are listed in Table 9.3 according to respondents prioritization. The percentages in the table represent the respondents in each

187 stakeholder group who identified the source as an important source of water pollution. If the source received a rank of 1, 2, or 3 it was considered "important", while ranks of 4, 5, 6, or 7 were interpreted to mean "less important". Based on this aggregated data, 75% of the Regulated Community placed both agriculture fields and urban runoff as top sources of water pollution, while 63% identified suburban development and construction. Farmers and Foresters were tied between top sources from agriculture fields, urban runoff and development/construction. This group placed residential sewers and lawns as well as WWTPs very low as pollution sources. Among Government representatives, 92% placed urban runoff as a top source, with agriculture fields and development/construction sources both identified as important by 58% of that group. 42% of the Government group recognizes industrial and manufacturing point sources as important sources of pollution, despite improvements under the NPDES permits of the 1972 Clean Water Act. The Environmental group targeted development/construction (88%) as an important source of water pollution, which is ranked third overall by respondents. This is followed by 73% identifying urban runoff and 64% identifying agriculture fields. The Research/Technical stakeholders largely favored agriculture field sources, 100%, while placing CAFO and industry/manufacturing sources very low (no one in that group identified those sources as important). Breaking down the respondents by major stakeholder group reveals how interest groups identify different sources as important for water pollution impacts. Notably, the Environmental group targets development/construction impacts as an important source of water pollution. The Government group overwhelmingly targets urban runoff as important. By comparing between the overall ranking and the stakeholder groups, one can trace how groups are mobilizing causal narratives to identify specific sources, while not stressing the impacts from over sources. The data reveals a composite picture of who stakeholders identify as important sources of pollution.

188 Sources N Urban Ag Dev/ Industry CAFO WWTP Resi­ Groups Runoff Fields Construction dential Regulated Community 8 75% 75% 63% 13% 25% 25% 25% Farming/ Forestry 4 75% 75% 75% 50% 25% 0% 0% Government 12 92% 58% 58% 42% 25% 25% 8% Environment 11 73% 64% 88% 18% 36% 18% 27% Research/ 4 100% 50% 25% Technical 75% 40% 0% 0%

Total 39 80% 69% 62% 29% 26% 23% 18%

Table 9.3. Sources of Water Pollution (Percentages represent the number of individuals in each stakeholder group that identified the source as important).

9.4 How do stakeholders differ over who should be regulated?

Identifying the priorities for pollution reduction programs (either regulatory or non-regulatory) produces a very different picture from who the stakeholders identified as sources of water pollution. Table 9.4 lists the prioritized regulatory targets according to their composite (representative) rank order by aggregating responses into important (ranks 1, 2, or 3) and less important (ranks 4, 5, 6, or 7). The percentages in the table indicate the respondents in each stakeholder group who identified the source as a high priority for regulation. While the top three sources urban runoff, agriculture fields, and suburban development and construction had widespread support for their rankings as important sources of pollution, this does not hold for prioritizing these sources for regulatory programs. These sources remained in the top three positions, however their percentage rankings are significantly lower (Table 9.4) indicating eroding stakeholder support when it comes to regulating these sources.

189 Two groups portray the most difference from their identification of sources compared to their priorities for regulation: these are Regulated Community and Environmental stakeholders. Confined animal feeding operations (CAFO) are ranked 4th overall as a priority for regulation, but when examining the Regulated Community response there is significant variation from the overall rank order and who was identified as an important source of pollution. While only 25% of the Regulated community identified CAFOs as important sources of pollution, an overwhelming majority, 88%, placed CAFOs as a high priority in regulation. This is not surprising given the large responsibility that traditional point sources have bom for cleaning up water pollution through permitting programs. The CAFO sources are part of agriculture activities and thus largely unregulated, although 125 of the largest operations (from a total o f40,000 livestock and poultry facilities) are required to obtain permits from Ohio EPA. The Regulated Community fears they will bear a disproportionate burden for unregulated nonpoint sources. A point source representative stated, "The TMDL program is ostensibly going to clean up the nonpoint sources, but in reality its going to ratchet down the point sources." The point sources are tiring of their responsibility, and see the CAFOs as point source pollution impacts that are not effectively regulated in the state of Ohio.

9.4.1 Fragmenting Pro-Growth Regime Another point of difference within the Regulated Community occurs around suburban development and construction sources. 63% of the Regulated Community placed development/construction activities as important sources of pollution, but when it comes to regulation only 25% identified development/construction as a high priority for regulation, point sources are reluctant to point a finger at development/construction industry. Why is there this difference between this source and the CAFO? A stakeholder coalition, allied around a pro-economic development and urban growth regime, united the traditional point source industries in manufacturing, industry, and municipal services with the construction and development industries. These sources united in lobbying local and state government for pro-economic growth policies. They opposed increased regulatory

190 '^^^ources Urban Dev/ N Ag CAFO WWTP Industry Resi­ Groups Runoff Fields Construction dential Regulated Community 8 63% 63% 26% 88% 25% 25% 13% Farming/ Forestry 4 50% 50% 75% 50% 25% 25% 25% Government 12 75% 58% 50% 33% 25% 33% 33% Environment 11 64% 45% 55% 45% 45% 45% 0% Research/ Technical 4 50% 75% 50% 0% 50% 25% 25%

Total 39 64% 56% 50% 46% 35% 34% 18%

Table 9.4. Priority for Regulatory Programs (% identifying each source as a high priority for regulation)

oversight that might limit growth, and detract profits from industry and construction. This has been a powerful force in central Ohio politics for many years (Cox 1997). Agriculture is considered a distant cousin rather than a member of the immediate family in this pro-development coalition. Historically in Ohio’s policy regimes, development/construction and agriculture stakeholders have been allied together in maintaining private property rights and limiting effective regulation of their environmental impacts. The point sources have, for the most part, supported their allies in the development/construction industry, and by extension agriculture, in land use and property rights issues. On the national stage of TMDL emergence, point sources have been welcoming TMDLs as a way to remove some of the attention to their impacts and to focus water quality regulation on different sources. The point sources in Ohio are

191 tiring of their regulatory burden and point to development/construction impacts. This is supported by data collected in survey and interviews.

Point sources want to see other polluters do their fair share. They’ve got to feel a little pain too. There are times when I don’t agree with what the construction industry says. They talk about spending money on pollution control, they don’t know what that is.

However, point sources are reluctant to directly point the finger at construction. As one environmental representative stated, “The point sources are not pushing that hard for the TMDL program in Ohio because in the business community there is such a culture o f‘We stick together in environmental issues” ’ However, due to the close relations between the business community and development/ construction interests, the Regulated community is more willing to regulate CAFOs than increase regulation of development/construction activities. Likewise, the development and construction community has turned its back on agriculture. They recognize the increasing calls to address nonpoint source pollution, and therefore point the finger at agriculture, rather than take on more regulation themselves. The Environmental group strongly identified sources of pollution stemming from Suburban Development/Construction (88%), but only 55% placed it as a top regulatory priority. Among Environmentalists, urban runoff received the highest priority for regulation at 64%. 18% of Environmentalists ranked municipal wastewater treatment plants (WWTP) and industry/manufacturing as significant pollution sources, yet the group put them as a high priority for regulation, 45% put each of these sources in top 3 priorities. While 27% of the Environmental group identified residential sewer/lawns as an important source, no Environmental representative ranked it as a high priority for regulation. The reasoning behind this is probably a mixture of recognizing the difficulty in trying to regulate sources of pollution from lawns and private property, as well as reluctance in the environmental community to draw attention to the water quality impacts from suburban lawns.

192 9.5 Conclusions These data represent significant differences among stakeholders as to who is causing water pollution and who should targeted for regulation. Not surprisingly, in prioritizing sources for pollution impacts and regulation the groups are trying not to identify themselves, but point the finger at another party. Who they identify for regulation, and the impact that has on Ohio’s water quality management. The differences are evidence to the following points, 1) regulatory priorities are selected on different criteria from the most important sources of pollution; and 2) that there is an implicit recognition of the political difficulties in regulating agriculture (and residential sources), and therefore, stakeholders turn to other sources for regulation. Stakeholder groups unite with other stakeholders under generalized discourses of science and regulation in order to exert influence in the policy realms. Even though the most important sources of pollution are identified as agricultural, when it comes to regulation other sources are given priority. The next chapter on discourse coalitions brings together the narratives on science and participation outlined in Chapter 8 with the quantitative rankings of source and regulatory targets from this chapter. The groupings of stakeholders into divergent coalitions illustrates the fragmenting pro-growth regime, and points to the emerging coalition o f Environmentalists and Government policy entrepreneurs in using narratives of science and causality to influence water quality regulation. The point source community points to CAFOs as the primar>’ regulatory target because it can be more easily re-defined as a point source and regulated under NPDES permits. The construction and home building community is caught in the middle, its alliance with point sources is fragmenting and it points the finger at agriculture nonpoint source pollution to draw attention away from the sediment and stormwater impacts of construction and cumulative development in watersheds. The development community has not been able to convince the environmental community and government stakeholders that development/construction is not an important contributor to water quality problems. The agriculture community has been successful at warding off

193 potential regulation, evidence to the fact that their political power is remains strong in the state legislature. The agriculture community has largely not involved itself in the policy formation process at the Ohio EPA, but has turned to allies in the Ohio Department of Agriculture and state legislature to circumvent the looming regulation coming from Ohio EPA. They point the finger at another nonpoint source contributor, development/construction impacts, and have allied with environmentalists and government representatives over this fact. These changing coalitions have emerged from TMDL policy debate in Ohio. They involve not only concerns over water quality, but also economic development and financial responsibility, and the political potential to regulate nonpoint sources and enter into the economic realm of development and growth. The next chapter delves further into explaining these emerging coalitions and how the intersection of economic policy and environmental regulation is altering local policy regimes in Ohio. Central to stakeholders being able to influence regulation outcomes in their favor is how science is used in TMDL development. The stakeholder coalitions employ discursive narratives of science in order to influence who is regulated under the emerging TMDL policy.

194 CHAPTER 10

CONCLUSIONS: DISCOURSE COALITIONS AND EMERGENT POLICY AND SCIENCE OF TOTAL MAXIMUM DAILY LOADS

10.1 Introduction In Chapters 8 data analysis made explicit the differences in how stakeholders view the role of science in TMDL development. The four narratives of science range from technocratic faith in science and its strict separation from politics to strong criticism of water quality science and the belief that water quality regulation is political and the models are not accurate in assessing who is polluting the water. Chapter 9 outlined the stakeholders targeting o f specific sources o f pollution and led to the conclusion that stakeholders target sources based on deflecting attention from themselves and focusing on sources that are more politically expedient to regulate under Total Maximum Daily Load policy. This chapter focuses on stakeholder groups mobilizing the two extreme narratives of science in order to gamer allies and to shape who is regulated. This chapter addresses the question, How are traditional stakeholder coalitions fragmenting, and new emergent coalitions forming over science and regulatory targets of TMDL policy? Stakeholder definitions of scientific practices and views on the role of science in regulation determine who is targeted as a cause of water pollution and who should face regulatory action. The positioning of stakeholder groups around TMDL science and regulatory targets is telling because it reveals a fragmenting pro-growth economic development regime in central Ohio. At the same time there is an emerging power regime in the environmental community, allied with farmers and foresters and government agencies that is exerting influence on the science and policy of water quality management. The creation o f these stakeholder alliances mobilized by the discourses of science and regulatory targets conflates the realms of economic and environmental policy. 195 Environmental considerations have often been characterized as "extra-economic” factors that do not have large impacts on the political economy. In the case of TMDLs, environmental policy formation has critical ties to economics and politics of development, it is not simply an additional factor that can explained by powerful economic elites that are able to influence the policies of state and municipal governments. As the analysis in this chapter will show, stakeholders united under a pro-growth regime are dividing over the regulation of water quality. This fragmentation of the pro-growth regime, and the rise of a coalition united around increased water quality regulation, is changing the economic and environmental management landscape in Ohio. The emerging coalitions differ from previous coalitions that have dominated development policy and environmental regulation in central Ohio. I employ a reconstructed' urban regime approach to analyze the changing coalitions of stakeholders in shaping the science of regulation and structure of policy formation (Bridge and McManus 2000; Feldman and Jonas 2000). The discursive analysis reveal that stakeholder narratives of science are intricately tied to who stakeholders target for regulation. The two opposing coalitions each utilize a unique narrative of the role of science and causality in order to influence regulatory outcomes. Reconstructed regime theory points to examination of the state and non-state actors in local policy formation and incorporates both economic power and power of environmental protection. Approaching policy formation from regime theory points to analyzing how coalitions form, change, or dissolve over issues of environmental management and economic development. Regime theory holds that looking at the instrumental logic of stakeholders is not sufficient to explain the emergence of local environmental policy. We need to look more closely at the mobilizing of discourse coalitions and their ability to create conditions of coherence among stakeholders with divergent interests. To examine the mechanisms that promote cooperation among stakeholders, I trace the narratives of science, responsibility and blame that are used to fragment coalitions that have formed around issues of economic development as well as used to form coalitions among stakeholders over increased water quality protection. These coalitions have formed out of a fragmented pro-growth regime that historically has dominated economic development and environmental management in 196 central Ohio. There is a split between the point source and construction industry alliance previously allied around pro-growth and development and private property rights. Critical to the split of that alliance and the emergence of newly formed coalitions is the rise in power of environmental groups and their strong alliance with government's policy entrepreneurs'.

10.2 Discourse Coalitions of Science and Regulation Through the course of the TMDL EAG policy formation process and specific TMDL watershed projects, stakeholder groups have positioned themselves into two distinct coalitions representing different perspectives on how methods and modeling of water quality should be formulated and how those results should be translated into regulatory action. The juxtaposition of stakeholder views around the role of science and politics in regulation illustrates the simultaneous operation of two sides of science, defined by Latour as “jc/e/ice in the making” and "'^science ready-made (Latour ” 1987; Latour 1993). Science in the Making describes the moment when scientific process and facts are debated, uncertain and are actively re-worked and formed through the process of defining data, methods, modeling, and interpretation. On this side o f science, social and political influence is recognized in forming scientific practice as science and society are mutually constructed in the process. The scientific practices gain acceptance through social debate, and the science in turn actively shapes how society understands its physical surroundings. The proponents of this view of science, which I have named Science is Uncertain and Political (to capture the alliance between the two narratives outlined in Chapter 8) recognize the social and political influence on scientific practices (Table 10.1). Representatives from environmental community, government, and farming/forestry are allied around this view of science and advocate for proceeding with TMDL implementation and regulation of suburban/urban nonpoint source pollution despite the uncertainty and inadequacy of the science. The environmentalists and government representatives advocate regulating these sources based on political likelihood, recognizing that agriculture can exempt itself from regulation through influencing the political process in the state legislature. 197 On the other hand. Science Ready-Made relies on quantitative, proven scientific facts as the impartial judge called in to resolve disputes with existing scientific method and decisions involving uncertainty and value-laded decisions. In reality the two sides of science operate at the same time and cannot be separated. Science is always both in the process of being made and relying on ready-made facts and accepted scientific process. In TMDL development, there are accepted facts and methods such as the use of biocriteria to measure water pollution, yet the interpretation of modeling results and allocation o f pollutant loads to sources is uncertain and in the process of being shaped into an accepted scientific process. The adherents to the Technocratic view o f regulatory science attempt to maintain a factual, scientific façade for what is also inherently value­ laden and politically charged. In this manner they attempt to separate the two sides of science and only rely on the factual, impartial component of Science Ready-M ade, and ignore the social and political influence that went into creating the facts and in making them acceptable to a majority of scientists and policy stakeholders. Latour (1993) refutes the separation of social and scientific elements effectively breaking down the dichotomy between natural/factual/quantitative and social/political/value-laden. Latour suggests tracing the creation of accepted scientific facts in order to reveal the social and political elements of science. Those who view TMDL regulatory science as Science is Uncertain and Political value democratic decision-making, societal values and water quality protection goals over strict adherence to quantitative model outputs. The quotes and positions represented come from Environmental, Government and Farming/Forestry representatives (Table 10.1). In the domain of Technocratic Science, stakeholders stress sound science, facts and a clearly authorized TMDL program (Table 10.1). They are comprised of stakeholders from Point sources. Construction and Development, and Research and Technical groups. They are very cautious about proceeding under scientific uncertainty and strive to limit participation by diverse stakeholder groups (for a complete description see Chapter 8).

198 Science is Uncertain Technocratic and Political Environment, Government Point Source, Construction/Development and Farming/Forestry and Research/Technical

Political will Sound, reliable science

Let's do the right thing Clear guidelines and authorized programs

NPS modeling is uncertain; don't get caught Balanced, measured, careful approach up in the numbers, move ahead to achieve water quality We are moving to a reality of everyone is Quality-controlled data, rigorous models responsible, everyone is part of the solution and everyone has to learn to work together

Table 10.1. Scientific Discourse Coalitions in TMDL Policy

Where stakeholders place themselves around the boundary that divides these two types of science is closely related to whom they see as responsible for water pollution. Based on the quantitative ranking data analyzed in Chapter 9, Table 10.2 summaries the stakeholder groups and who they target for regulation. What is the impact of these positions on policy outcomes? 1 argue that those stakeholders who are best able to gamer allies and influence the settling of controversies will determine the structure of TMDL science. They will define the stakeholder process in policy formation and will determine who will be regulated. In this process, alliances between stakeholder groups become cmcial in influencing science. Those that are successful in garnering allies will impact water quality outcomes by dictating what type of pollution is regulated, and who bears financial responsibility for clean water.

199 GROUPS IMPORTANT SOURCES % REGULATORY PRIORITY %

Regulated Agriculture Fields 75 CAFO 88 Community Urban Runoff 75

Agriculture Fields Farmers/ 75 Dev/Construction Urban Runoff 75 Foresters 75 Dev/Construction 75

Government Urban Runoff 92 Urban Runoff 75

Dev/Construction 88 Environment Urban Runoff 64 Urban Runoff 73

Research/ Agriculture Fields 100 Agriculture Fields 75 Technical Urban Runoff 75

Table 10.2. Sources of Pollution and Regulatory Targets (% indicates the number of respondents in each group identifying the source as "important" or "high regulatory priority").

10.3 Conceptual Map of Stakeholder Group Positions A conceptual map of stakeholder positions is a tool that has been utilized in many studies considering the positioning of stakeholders around issues or conflicts (Markwick 2000). In this case a conceptual map of stakeholder positions was created by plotting stakeholder positions on axis’ relating to the definition of science (horizontal) and regulatory priorities (vertical) (Figure 10.1). The positioning of stakeholders along the horizontal access is derived from the two narratives of science and participation that are being mobilized in TMDL implementation (Table 10.2). The data for the vertical axis is derived from the quantitative data on stakeholders’ priorities for regulation summarized in Table 10.2.

200 The positioning of the stakeholders in TMDL policy in oppositional camps reveals a rising power regime among environmental, farmers/foresters, and government groups versus the traditional power of the industrial and development community. In Figure 10.1, the environmental, farming/forestry and government groups are located within "Science is Political" definitions of science and highly prioritize suburban development and construction and urban runoff over other pollution sources. In the opposite quadrant, the regulated community and research/technical groups are located in the "Technocratic Science" and point to agriculture fields and confined animal feeding operations as regulatory targets. What is the relationship between stakeholder definitions of science and who is targeted for regulation? Powerful stakeholder coalitions have the ability to define the problem and frame the issues in a particular causal narrative, and thus able to attribute blame, identify a responsible party and point to a probable course of action (Hajer 1995). Political struggle over the form of regulation and who is regulated occurs because stakeholders have different perceptions of what the problem really is and they ascribe to different causal narratives. In the case of TMDLs, stakeholders use scientific uncertainties to their advantage by discursively framing the definition of science in causal narratives that point to specific sources of pollution for regulation. While this may seem to indicate the pro-growth regime elites will dictate water quality policy, in actuality, the pro-growth and economic development regime comprised of business interests, construction and development, and agriculture is fragmenting over water quality regulation. The alliance is facing increased opposition and rising power wielded by a strong, well-organized environmental coalition witli allies in farming/forestry and government stakeholder groups.

10.4 Technocratic Science and Regulation of Agriculture The Regulated Community, dominated by point source industry, wastewater treatment plants, and the development and construction industry, and joined by

201 Priority for Regulation Suburban Development and Construction Urban Runoff

100%

Farming/Forestry ♦ • Government - 75% ❖ Environment • 50%

Science Is 0% Technocratic Political Science

• 50%

• 75% ▲ Research/ Technical ♦ Regulated Community

100%

Agriculture Fields Confined Animal Feeding Operations

Figure 10.1. Stakeholder Positions on Science and Regulatory Priorities

202 Research/Technical representatives adopt a causal narrative based on rigorous data and modeling that targets rural sources of Agricultural Fields and Confined Animal Feeding Operations. The Regulated Community (combining point sources and construction/ development representatives) repeatedly expressed the need for rigorous quantitative approaches in TMDL modeling and frequently used the phrase, “we have to do this by sound science.” Point sources strongly advocate for rigorous models and the use of quantitative numbers, and quality-controlled EPA data (as opposed to narrative standards, simple models, or water quality samples collected by citizen groups). An Ohio EPA staff member characterized the point source perspective on models in TMDL development in this way, "I'm trying not to use the word [uncertain] with the stakeholders. Of course the models aren't complex enough for the point sources. They want absolute[ly] the best, the top, even if its not needed in this watershed". Under the discourse of Technocratic science point sources have garnered allies from the construction and development industry and research/technical representatives who hold similar views o f science and participation. However, the construction and development industry is splitting with point sources over who should be held responsible for regulation. A representative from the Development and Construction group expressed opposition to the TMDL External Advisory Group process for creating TMDL policy, “...the biggest questions right now [are] 1) if the [TMDL] program is authorized and 2) what the parameters of the program are. We think that should be the starting point. The starting point shouldn't be what does everybody in the room think would be [a] good TMDL. The Regulated Community gains an advantage from demanding intensive data collection and modeling efforts. By defining TMDL science in this manner, they require Ohio EPA to definitively, with quantitative data and rigorous models prove the link between aquatic life impairment in the stream and effluent or stormwater discharges. The point sources and development/construction are regulated by permits. However the stormwater permit required of construction projects over 5 acres is largely a planning exercise with very little oversight or enforcement and minimal permit fees (source: Interview with an Ohio EPA Manager). The cumulative impacts from development 203 within a watershed, such as stormwater runoff from construction sites and impervious surfaces is seen as a nonpoint source water quality problem. By advocating for complex, rigorous models the stakeholders in this group are trying to avoid increased regulatory oversight. The members of the construction community often claim that they are over- regulated. Stakeholders' position on regulatory targets reflect their positions in the local political economy. The Regulated Community sees the alliance between Environmental Community, Farming/Forestry and Government as a threat to continued urban growth and economic development. A representative from the business community articulated that the environmental community is using water quality to interject itself "through the back door” into issues o f planning and land use policy. Two coalitions, one, the rise of an environmentally focused alliance between Envirorunental Community, Farmers/Foresters, and Government Representatives and the second, a traditional power alliance between pro-growth business interests and the development and construction industry have altered the pre-existing stakeholder regimes allied around economic growth and development. The pro-growth regime was an alliance between regulated point sources, and construction and development. This group has been influential in Ohio's economic policy advocating for increased development to ensure growth and profits from construction projects and the resulting demand for utility services from electric power and wastewater treatment. A secondary alliance existed between the construction and development community and agriculture based on protecting private property rights and limited regulation of nonpoint source impacts. A representative from the construction industry stated that they have always been allies with agriculture in lobbying state and national lawmakers over limiting regulation of land disturbing activities. The traditional alliance between Farmers and Foresters and pro-growth interests in development and construction has fragmented over the formation of TMDL policy. The development and construction industry has begun to target agriculture over other sources o f pollution. A representative from the Construction Industry stated, "Nobody causes more erosion than farmers. For how long can you justify regulating the construction industry, for example, which is about 5% of the load and leave farming which is 90% of the load o ff. The increasing 204 identification of nonpoint source impacts by Ohio EPA science has led to the split between these long time allies. The construction industry, faced with increased regulation of their water quality impacts, no longer defend agriculture but target them as the primary source of nonpoint source pollution. In addition, there is further fragmentation within the regulated community, as the traditional point source industries grow tired of their large regulatory burden and permit fees, while development and construction industry escapes with very little regulatory enforcement and low cost of permit applications. A point source representative stated:

Point sources want to see other polluters do their fair share. They’ve got to feel a little pain too. There are times when I don’t agree with what the construction industry says. They talk about spending money on pollution control, they don’t know what that is.

The controversy over the lack of enforcement on the development and construction industry came to a head at the final TMDL EAG meeting. The full TMDL EAG membership met with the Director of Ohio EPA, Chris Jones, over the EAG's recommendations on the TMDL program. In a last minute effort to change several recommendations, the construction industry publicly raised opposition to recommendations for increased fees for construction permits (consensus recommendations that had emerged from the Regulatory subgroup, but opposed by the construction industry co-chair through a written dissenting opinion). The construction industry advocate stated that the construction industry is regulated to the maximum extent possible, a very similar claim espoused by the point source industry. Gary Martin from Ohio EPA's Division o f Surface Water reacted strongly to the protest, claiming the construction industry was 'disingenuous* in claiming that they were adequately regulated. The swift and public rebuttal of the construction industry, supported by comments from Director Chris Jones, had not been previously seen in Ohio's policy arena. Environmentalists expressed shock, and relief that Ohio EPA was able to take a stand against the powerful construction industry. TMDL policy has evoked strong debates over economic development and environmental protection and responsibility among the stakeholders in Ohio. The example related above, illustrates the growing alliance between the government and 205 environmental community over further regulation of commercial activities causing water quality impacts.

10.5 Science is Uncertain and Political: Regulation of Suburban and Urban Nonpoint Sources

The environmental community with allies from farmer/foresters and government groups espouse a causal narrative that places efforts at creating numerical numbers and rigorous modeling as secondary to “doing the right thing.” The narrative targets nonpoint source pollution from suburban development/construction and urban runoff. An environmental stakeholder illustrated this discourse on the role of science when they expressed concern over the quantitative requirements of TMDL modeling, "I'm not sure how necessary exact models are to identify where the problems are coming from and what the solution should be. Through this TMDL process we've committed ourselves to doing that and that’s what I'm rethinking". The stakeholders recognize the difficulty in translating quantitative modeling into regulation. Expressing the strong critique of scientific methods to be able to translate into policy actions, An Ohio EPA staff member stated: The majority of the decisions that were made on the [watershed] were not technically based, they were politically based. Even though they were motivated by the technical issues, they got modified to meet the politics of the situation.

This group illustrates the new critique of rigorous modeling and quantitative science by environmental stakeholders. Environmentalists have historically valued quantitative numbers because these have been instrumental in the application of NPDES pennits to industrial and wastewater treatment plant sources and in effecting the large reductions from those sources. However, as expressed by the environmental representative the quantitative requirements of TMDL calculations are seen as slowing progress to regulate nonpoint source impacts. The new approach advocates proceeding with TMDL development despite the uncertainty, and to proceed with regulating nonpoint sources because they "know" these to be causing water quality impacts. This view downplays the continued impacts from point sources, and focuses on the urban and suburban nonpoint source impacts. Surprisingly, this group does not target agriculture 206 sources to the same extent. This can be explained by the reluctance of the environmental community to target "family farm" operations and the recognition that agriculture was politically able to influence regulation through the state legislature. The environmental community was able to gamer the powerful allies of the "policy entrepreneurs" from government staff. Both of these groups allied together were very effective at influencing the outcomes of the TMDL EAG and the internal policy team at Ohio EPA. The group of policy entrepreneurs (See Chapter 5) are very dedicated to implementing TMDL policy and spend considerable amounts of their personal time in order to ensure the success of TMDLs. They strongly advocate full participation in policy formation and TMDL implementation to ensure the successful implementation of TMDLs at the watershed level, and to counter the close relations between regulated entities and government managers. This relationship between point sources and managers has been instrumental in the point sources being able to deflect increased regulation. The Science is Uncertain and Political coalition fears the traditional power held by nonpoint source community (development and agriculture) will be used to effectively block attempts to regulate their water quality impacts. Interestingly, the agriculture community allies with this group over critique of the ability of science to identify pollution sources and amounts and the regulation of construction and development and urban stormwater. The agricultural community is under increased scrutiny from the construction and development group and has allied with this coalition over the critique of science and because the attention to construction and development and urban stormwater deflects attention away from agricultural impacts. Among this group, stakeholders (including Ohio EPA staff) view the point source adherence to quantitative modeling as a political tool to stall the process, and to avoid any further “ratcheting down” of their effluent discharges. In response to the Regulated Community, the Environmental and Government groups claim that the point sources are only trying to make trouble, "I think they are just trying to cause trouble by saying the models aren't rigorous enough, even though they are very complex models". While it may be expected that Environmental groups distrust the Regulated Community's insistence on strict adherence to quantitative data and modeling, it is more 207 surprising that the Government group has a strong distrust of the objectivity and utility of their own science. This group identified the need to make the hard political decisions in order to protect water quality; "We always hear the phrase we have to do this by sound science. The science is in the 305(b) report, what we need is the political will to address the nonpoint sources". The Government representatives recognize the improvements in point source pollution through NPDES permitting programs and have turned their sights toward nonpoint pollution sources, stemming not from agriculture, but from suburban development and construction and urban runoff. One of the changes in power is the rise of environmental concern among middle- class suburban consumers. These are the clients and members who support the local watershed groups and environmental organizations active in the environmental community. Influenced by a national rise in a planning and environmental elite (Morrill 1999), the environmental community has become very influential in local environmental policy formation. Their rise in power draws on the successful TMDL litigation by environmental groups across the country. By wielding the threat of litigation, the environmental community has been able to push Ohio EPA into developing a TMDL policy, conducting an 18-month stakeholder process and moving forward on implementation in specific watersheds.

10.6 Emergent Discourse Coalitions What is the outcome of these two coalitions on science and TMDL implementation? The environmentalists and government 'policy entrepreneurs' have been successful in moving forward on TMDL implementation and in drawing attention to construction and urban stormwater sources. However, the influence of point sources in their calls for technocratic science has proven effective in influencing the specific modeling practices for the Mill Creek Watershed TMDL. Point sources are being targeted for reductions under TMDL implementation because they still have effluent impacts on water quality and the regulatory authority of Ohio EPA can enforce those reductions. Ohio EPA's regulatory authority over nonpoint sources is not established at this time. The mechanisms to address nonpoint source pollution are based on voluntary measures with some incentives provided by grant money 208 from Section 319 nonpoint source management programs. However, as illustrated by the Mill Creek, environmentalists are advocating for 'reasonable assurances' that nonpoint source impacts will be addressed. Point sources are adamant that they are being over regulated, and the legal language employed to accuse Ohio EPA o f arbitrary and capricious' decisions invokes the possibility of litigation brought by the regulated community. The analysis in this chapter revealed newly formed alliances and fragmentation of existing stakeholder “regimes” over the identification of sources of water pollution for regulation and the deployment of science in water quality policy. The use of major stakeholder groups to map conceptual positions around the role of science in regulation helped to identify the major split in the coalition allied around economic growth and development and pointed to an alliance between the Government group. Environmentalists and Farmers/Foresters. Economic and political restructuring is forcing local governments to take larger roles in defining standards and methods of enforcement for local environmental policy, amidst increased stakeholder involvement in defining regulatory and scientific practice. Employing urban regime theory provided a framework for tracing the fragmentation of pro-growth coalitions and the rise in power of an environmental agenda.

10.7 Conclusions This research has focused on three intersecting arenas of environmental regulation in TMDL policy: policy formation, scientific practices, and the increased participation by stakeholders and their shifting alliances in discourse coalitions. The emergence of TMDL policy has taken place in the context of a new regime of economic and environmental regulation. Spurred by the move toward decentralizing governance and economic activity, TMDL policy contained watershed based implementation, increased stakeholder participation, and regulatory attention to nonpoint source pollution. The politics of TMDL policy and implementation has intertwined the often-separated realms of economics and environmental protection. Water quality regulation in Ohio is closely tied to the politics of economic growth and suburban development. The prospect of TMDL policy addressing the under-regulated nonpoint source community has evoked 209 adamant opposition and a fragmentation of the pro-growth stakeholder coalition between industrial sources and the construction/development community. Stakeholders engage in the formation of scientific practice and policy in order to shape regulatory outcomes. Narratives of science, participation and responsibility create conditions of coherence out of complex and divisive regulatory issues. These narratives are mobilized by stakeholders to create powerful discourse coalitions that align divergent interests under a generalized narrative of causality and responsibility. Coalitions of stakeholders have critical roles in defining the problem at hand and thus delineating the possible solutions, determining the type of science employed to measure water quality, and the ability to point to specific sources of pollution for regulation while ignoring other sources. What is the significance of stakeholder coalitions mobilizing divergent interests to influence policy and scientific practice? The findings of this research relating how stakeholders shape scientific practices in order to effect regulatory outcomes requires modification o f the traditional ways of seeing stakeholder influence on policy. Traditional approaches have viewed policy formation through pluralistic process in which all stakeholders are given equal access to knowledge, resources and the policy process. Others have advocated the agency-capture thesis in which a public agency becomes beholden to one particularly power group and is unable to operate in an unbiased manner. However these theorizations are not sufficient for explaining the process of stakeholders effecting economic regulatory change through science practices that is operating under TMDL policy emergence in Ohio. Change in science is not caused by a natural progression to better techniques and more accurate descriptions of the physical environment. Scientific practice is mutually constructed by social, political, and economic forces operating at both national and local scales. The science o f TMDL policy in Ohio is constructed by the emergence of a post­ industrial economy and the product of local influence exerted by stakeholders and the changing nature o f pollution sources. The science o f TMDL policy has been formed under post-industrial shifts to decentralized manufacturing operations, increase in service sector activities and suburban growth. TMDL policy emergence has been fostered by the decentralization in 210 environmental regulation that increasingly looks toward local and state governments and voluntary regulatory measures. Stakeholder critiques of TMDL science have been fostered by an emerging critique of government for not being able to use scientific data to solve problems with high social, political, and economic costs. The TMDL watershed based approach and incorporation of increased stakeholder participation fits this emerging model of regulation. How would TMDL science be different under different economic, social, and cultural conditions? Under different economic and political circumstances, under a different context of social influence on policy formation and scientific practices, TMDLs might be ignored as an archaic, inefficient and outdated mode of water quality regulation. The ambient water quality approach and resurgence of state authority and water quality standards might not have taken place without the particular social and economic context that has fostered its revival. Under different social and economic influence on TMDL policy and science, the regulation of water quality might have proceeded with the Clean Water Act's best available technology and the chemical-oriented sampling that has been successful with point source impacts. But this is not the trajectory of water quality science and regulation today. The social and political environment has influenced the emerging science and regulation of TMDL policy. Stakeholders have engaged in the determination of scientific practice and policy formation in order to protect economic interests and to avoid further regulation. The point source and construction/development communities advocate for technocratic science. The science has been used in the past and works well for their agenda of targeting Agriculture sources of pollution. Point sources fear that a shift in science towards less quantitative or decreased use of complex models will result in stricter effluent limits. The construction/development community also wants to proceed under the current scientific practice because they are satisfied with their level of oversight and low permit fees. Environmentalists hold that quantitative science is a necessary component of water quality regulation. However, in order to reach their goal of regulating nonpoint source pollution, environmentalists advise to proceed with regulation despite uncertainties of modeling and regulating nonpoint sources. They have been dependent on 211 quantitative, technical science to bring regulation on the point source community and are reluctant to move away from that position. Environmentalists recognize that industrial and municipal wastewater treatment plants (the focus for the past 30 years) have drastically reduced their impacts on water quality. Now environmentalists turn to the increasingly nonpoint source problems as their regulatory focus, not from agriculture sources, but from suburban development and urban infrastructure problems with combined sewer overflows. What does these results tell us about the intersection of economic and environmental regulation? The case of TMDL policy emergence in Ohio illustrated the manner in which science is used by stakeholders to influence policy and regulation outcomes. TMDL policy formation has had direct impacts on fragmenting the pro­ growth regime in central Ohio. The point source regulated community is tiring of its large regulatory burden while its allies in the pro-growth regime, construction and development interests, receive little regulatory oversight. As a result, the point source community is beginning to split with the development interests. At the same time the constmction and development interests have had an alliance with the agriculture community over fighting land use controls and increased regulation of private property. This alliance has also split as the development community is focusing blame on agriculture to deflect attention from their water quality impacts. These changes in the coalitions of stakeholders are shifting power of economic regime coalitions and they are fragmenting over environmental policy formation in Ohio. The science of water quality is being altered by a changing regime of regulation, shifting sources of pollution, and increased stakeholder participation. Ohio EPA is faced with developing new scientific methods to address the increasing threat from nonpoint source pollution. The science of nonpoint source modeling is at the frontiers of accepted scientific practices, it is uncertain and is contested for translating between the data collected and the information needed to make regulatory decisions. Stakeholders enter the scientific process at the transparent moments of uncertain and contested scientific practices conducted by Ohio EPA. It is at these uncertain moments in science where stakeholders are best able to shape and influence scientific practice, and thus influence the regulatory outcomes. 212 Appendix A: Interview Questions 1. What is your position in the ______(organization, business, agency, etc)? 2. What are your primary job responsibilities? 3. What is your education background? 4. What is your employment history? 5. In your opinion, what are the major causes of water quality problems in Ohio? 6. What is the largest source/origin of that water pollution? In the past? Now? In the future? 7. How has water quality management changed in Ohio since you began working with it? 8. Has nonpoint source pollution become more of a focus? 9. If it was there from the beginning, has it changed? 10. Who (and what) is the primary focus of water quality regulation now? 11. What is significant about TMDLs? What makes them unique? 12. What potential do TMDLs have for changing water quality management? 13. How will TMDLs change your organization or business operations? 14. Some have said that TMDLs represent a change from regulation focus on point sources to a focus on nonpoint sources; What do you think? 15. What is driving TMDL litigation? 16. How did you get involved with the TMDL EAG (or water quality issues)? 17. Do you (or your organization) have any concems about TMDL policy? 18. What is the likely outcome of the TMDL extemal advisory group? 19. In considering the science of TMDL; how confident are you in models to identify the cause of pollution?, its source?, to identify the loading in the stream? 20. Have you seen the use of science or politics swaying decisions at the TMDL EAG? In TMDL development in watersheds? 21. Do you see times when stakeholders influence the science of TMDLs? 22. Will TMDL policy change who is regulated? 23. Will agriculture come under increased regulation? Will the construction industry? 24. How effective are the different stakeholder groups at influencing policy? Point sources? Homebuilders, construction? Agriculture; Ohio Department of Agriculture; Ohio Farm Bureau? Environmental groups? 25. Who are the major stakeholders in the EAG? Who are the most active or key people I should be talking to?

213 Appendix B: Survey Instrument

Perceptions of Water Quality and Regulation In Ohio

We are conducting a study on water resource quality and management in Ohio. We are interested in your views on what is causing water pollution and the regulation of pollution sources. This research project is associated with the Geography Department at The Ohio State University. The survey will take about 15-20 minutes to complete. You may choose not to answer a question or stop the survey at any point. Your responses will be held in strict confidence. Demographic data is being collected solely for research purposes and will be kept confidential.

A. General Environment / Water Quality

1. Rank the following environmental issues in order of importance, with 1 = most important and 7 = least important. Air Quality Climate Change/Global Warming Biodiversity / Wildlife Conservation Stream Corridor Protection Soil Erosion and Degradation Water Quality Conservation of Prairie, Rainforest, and other Endangered Ecosystems

2. Do you drink bottled (or filtered) water?

Always Most of the time Some of the time Rarely or Never 1 2 3 4

2A. If you drink bottled (or filtered) water: Rank the following reasons with 1 = most important and 5 = least important. Taste Odor Free of toxic chemicals Free of excess nutrients Free of pesticides

3. I am concerned that water pollution is a threat to my family's health. Agree Agree Disagree Disagree Strongly Agree Slightly Slightly Disagree Strongly 1 2 3 4 5 6

214 4. I am not concerned about municipal drinking water quality, because it is clean. Agree Agree Disagree Disagree Strongly Agree Slightly Slightly Disagree Strongly 1 2 3 4 5 6

5. I am concerned about things in my drinking water that I don't know about, like toxins, pesticides and nutrients. Agree Agree Disagree Disagree Strongly Agree Slightly Slightly Disagree Strongly 1 2 3 4 5 6

6. I am concerned about water quality because of its impacts on the ecosystem. Water pollution is harming aquatic insects, fish and degrading the stream habitat.

Agree Agree Disagree Disagree Strongly Agree Slightly Slightly Disagree Strongly 1 2 3 4 5 6

7. In your opinion what are the major causes of water pollution? Rank the following causes with 1 = most important and 7 = least important.

Nutrients Siltation Toxins Organic enrichment / Dissolved Oxygen Habitat/ln-Stream Modification Pesticides Metals

8. What are the major contributors to water pollution? Rank the following sources with 1 = most important and 7 = least important.

Agricultural fields Concentrated Animal Feeding Operations, CAFOs (cattle, hogs, poultry) Industrial / Manufacturing Urban Areas (runoff and combined sewer overflow) Municipal/Residential Wastewater Treatment Plants Suburban Development / Construction Activity Residential Lawns

215 B. Water Quality Regulation 1. Who has been most important in bringing about federal regulations to clean up water pollution? Rank the following with 1 = most important and 7 = least important.

Agricultural Organizations Environmental Organizations (state or national) Local watershed groups Federal, State and Municipal Government University and Scientific Community Industry and Business Individual citizens

2. Up until now, who has borne the most financial responsibility for cleaning up water pollution? Rank the following with 1 = most financial responsibility and 7 = least financial responsibility

Federal Government State and Local Government Municipal Government Industry ! Manufacturing Development (real estate, construction) Agriculture Individual citizens

3. Currently, who has the most influence in shaping Ohio's water resource policies? Rank the following with 1 = most influence and 7 = least influence.

Agricultural Organizations Environmental Organizations (state or national) Local watershed groups Federal, State and Municipal Government University and Scientific Community Industry and Business Individual citizens

216 4. Which pollution source should receive the highest priority for pollution reduction programs? Rank the following with 1 = highest priority and 7 =lowest priority.

Agricultural fields Concentrated Animal Feeding Operations, CAFOs (cattle, hogs, poultry) Industrial / Manufacturing Urban Areas (runoff and combined sewer overflow) Municipal/Residential Wastewater Treatment Plants Suburban Development / Construction Activity Residential Lawns

5. We cleaned up point source pollution first because it was more toxic and easy to see. Now, nonpoint source pollution is the biggest threat to water quality.

Agree Agree Disagree Disagree Strongly Agree Slightly Slightly Disagree Strongly 1 2 3 4 5 6 6. The industrial community, targeted for point source pollution control, has faced all the regulation they will tolerate; now it is up to nonpoint sources for pollution reduction. Agree Agree Disagree Disagree Strongly Agree Slightly Slightly Disagree Strongly 1 2 3 4 5 6 7. Agricultural runoff is being targeted as the primary nonpoint source pollution, while impacts from urban runoff and suburban development receive little attention.

Agree Agree Disagree Disagree Strongly Agree Slightly Slightly Disagree Strongly 1 2 3 4 5 6

8. Construction activities and development projects are under heavy regulations that effectively reduce their contributions to water pollution.

Agree Agree Disagree Disagree Strongly Agree Slightly Slightly Disagree Strongly 1 2 3 4 5 6

9. Environmental groups target industry and development over other sources of water pollution.

Agree Agree Disagree Disagree Strongly Agree Slightly Slightly Disagree Strongly 1 2 3 4 5 6

217 10. It is unfair to make farmers pay for water quality protection when we all benefit from clean water.

Agree Agree Disagree Disagree Strongly Agree Slightly Slightly Disagree Strongly

11. Industry and business lobbies are effective in blocking stricter water quality regulations.

Agree Agree Disagree Disagree Strongly Agree Slightly Slightly Disagree Strongly 1 2 3 4 5 6

12. Science is not adequate to tell us exactly who is polluting the water and by how much, therefore regulation is more a political process than a scientific one.

Agree Agree Disagree Disagree Strongly Agree Slightly Slightly Disagree Strongly 1 2 3 4 5 6

13. W ater pollution from agricultural sources has been reduced in recent years.

Agree Agree Disagree Disagree Strongly Agree Slightly Slightly Disagree Strongly 1 2 3 4 5 6

14. If nonpoint sources of water pollution do not reduce their contributions, the already-regulated point sources will be forced to make those reductions in order to meet water qualify standards.

Agree Agree Disagree Disagree Strongly Agree Slightly Slightly Disagree Strongly 1 2 3 4 5 6

C. Demographic Questions We are asking for demographic information solely for the purpose of research and being able to compare between survey data and interview data collected from among individuals in this group. Your responses will be held in strict confidence. No respondent will be identified in any presentation of this research.

1. What is your name?

2. What year were you born?

3. Are you Male or Female? M (1 ) F (2)

218 4. What is your race or ethnicity? African American (1 ) Asian/Pacific Islander (2) ___ Caucasian (3)

Hispanic (4) ___ Native American(5) ______Other (6), Please Identify:

5. How many years of school did you complete? ______.

5a. If more than 12 years; What did you study in college? 5b. Highest degree(s) earned?

AS(1) BA/BS (2) MA/MS(3) Ph.D (4) J.D. (5)

5. City of Residence (or township): ______

6. What type of housing do you live in? (House, Townhouse, Apartment, etc.)

7. What is your occupation?

8. What are the primary activities/responsibilities in your job?

9. Do you contribute to any environmental organizations? Yes (1 ) No (2)

9a. If yes, which ones?

10. What was your total household income last year from all sources? This is the amount on your 1998 tax return before deductions.

<20,000 ___ 60,000-69,999 110,000-119,999 20,000-29,999 ___ 70,000-79,999 120,000-129,999 30,000-39,999 ___ 80,000-89,999 130,000-139,999 40,000-49,999 ___ 90,000-99,999 140,000-149,999 50,000-59,999 ___ 100,000-109,999 ___ >150,000

Thank you for answering these questions. We appreciate your time and help in responding to the survey.

219 Appendix C: Q Method Statements and Factor Scores

Statement Factor A B C

1. We always hear the phrase, we have to do this by sound +2 +3 +2 -2 science’. The science is in the 305b report, what we need is the political will to address the nonpoint sources.

2. The majority of decisions made on this TMDL were not -3 +1 -2 +2 technically based, they were politically based, they were modified to meet the politics of the situation.

3. Stakeholders say they want to base decisions on consensus -3 -3 +3 -1 scientific recommendations, if that's the case we are not going to do anything. That's a decision not to act.

4. The number one impairment is hydromodification, two-thirds +1 +1 +1 -3 caused from agriculture, one-third caused from home building.

5. The models aren’t complex enough for the point sources. 0 -2 +1 +1 They want absolutely the best, the top, even though its not Needed in this watershed. I think they are just trying to cause trouble by saying the models aren't rigorous enough, even though they are very complex models.

6. Part of the problem is with environmental groups pushing this -2 -3 -3 -2 biocriteria concept too far. They are trying to push biocriteria to the point where you're talking about what a stream would look like in an ideal, undisturbed state.

7. Nobody causes more erosion than farmers. So for how long can -2 +2 -3 you justify regulating the construction industry for example, which is aliout 5% of the load, and leaving farming which is 90% of the load off.

8. The number one cause of water quality impairment in Ohio is not 0 +2 +2 +2 toxic chemicals anymore, its screwing around with the stream channel and taking out the riparian corridor, that's the number one problem.

220 statement ______Factor A B C D

9. The environmental and public community is growing stronger 0 0 0 -2 compared to the regulated community. Now, Ohio EPA feels they can operate in the middle, and have the backbone to do the right thing, even if it includes being critical of the regulated community and construction industry.

10. My biggest problem with ERA’S TMDL rule is that they make +1 0 -2 +2 the assumption that we re going to come down from Mount Sinai and make all these rules and regulations and we re going to force it down your throat’. But, you can solve the problems at the watershed level with all groups, stakeholders working together given flexibility and some incentives.

11. Point sources want to see other polluters do their fair share. +2-10 0 They’ve got to feel a little pain too. There are times when I don’t agree with what the construction industry says. They talk about spending money on pollution control, they don’t know what that is.

12. The environmental community has long blamed Ohio EPA for +1 -1 0 -1 not involving the public in policy decisions and how Ohio EPA treats big agriculture and big industry.

13. If all the TMDL money is going into creating these numbers - 1 0 3 0 that people will argue about and take to court for years, then its another frustrating exercise in science, getting too technical in the science.

14. Some people in both Ohio and at the federal level would say 0 -2 +1 -1 we’ve addressed the point sources. Wait a minute, we addressed the easy ones, some of the ones that are politically difficult to regulate we haven’t addressed.

15. If Ohio EPA didn’t use any models in determining pollution loads - 1 0 0 + 1 it would still come to the sam e implementation plan. TMDLs are based more on what people are willing to do, not on the water quality models.

16. The knowledge, quantitative tools and models are accurate, +3 -2 -2 0 but what we need is intense data collection to support calibration and verification of the models.

17. The stakeholders don’t trust Ohio EPA. They think that Ohio -2 0 -1 +1 EPA has made all the decisions and this TMDL process is just window dressing.

18. Nonpoint source modeling is uncertain. We shouldn’t get caught 0 +3 +2 +3 up in the numbers but move ahead to achieve water quality goals.

221 statement ______Factor A B C D

19. I’m not sure how necessary exact models are to identify wtiere -1 +1 0 +1 the problems are coming from and what the solution should be. Through this TMDL process we’ve committed ourselves to doing That and that’s what I’m rethinking.

20. People never came to the table [TMDL Extemal Advisory -1 -1 -1 -1 Group] this time around being ready to argue two sides... part of it was too many new participants at the table with different ideas, it wasn’t the sam e old armies with same old positions slugging and hashing it out.

21. We need sound science, an authorized program and a balanced +3 +1 -1 0 approach. TMDLs should not be formed by what does everybody in the room think would make a good TMDL.

22. Point sources have one interpretation of the data, +1 +1 +1 +3 environmentalists and their scientists have another interpretation of the data. The bottom line is, its never Just science, its science and politics.

23. I tend to be somebody who wants factual, scientific underpinning +2 +2 -1 0 to what we re doing. But if we have a generalized belief that storm water and surface runoff are the problems then it makes sense to look at those sources.

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