WASHINGTON, D.C. 20350-1000
December 4, 1998

United States Environmental Protection Agency
Assessment and Watershed Protection Division (4503F)
Attention: Mr. Robert Goo
401 M Street, SW
Washington, D.C. 20460


Dear Mr. Goo:

As the lead service in the Department of Defense (DoD) for issues pertaining to the Clean Water Act, the Department of the Navy is providing herewith DoD's coordinated comments on the Section 319 Federal Consistency Guidance proposed by the Environmental Protection Agency (EPA) to implement section 319 of the Clean Water Act, 33 U.S.C. 1329. These comments respond to the Notice of Availability and Request for Comment published in the August 26, 1998 Federal Register (63 FR 45504).

DoD recognizes the importance of tackling the significant problem of nonpoint source (NPS) pollution of our Nation's waters and that section 319 offers a means of addressing potential sources of such pollution. Although State (NPS) programs vary widely across the nation, DoD complies with applicable requirements of these programs including implementation of Erosion and Sedimentation Control Plans at construction sites and implementation of State-specific Best Management Practices (BMPs) on DoD installations. DoD is also developing an implementation strategy for the Administration's Clean Water Action Plan (CWAP), which includes cooperative mechanisms to work with other Federal and State agencies. In addition, existing DoD environmental and natural resources programs integrate NPS controls into environmental and natural resources programs in such areas as facility planning, pesticide management, grounds maintenance, reduction of impervious surfaces, establishment of riparian buffers, and designation of low-mow and no-mow corridors.

DoD realizes that cooperation among Federal agencies and the States is an important component in managing NPS pollution. Examples of our successful use of cooperative mechanisms include DoD's 14-year partnership with the watershed-based Chesapeake Bay Program and the Bay signatory states. Many of our voluntary programs overlap with the Bay States' NPS control plans. Similar efforts are underway in the San Diego and San Francisco Bay areas and the Mojave and Sonoran deserts. The management of NPS pollution is a key component of Puget Sound Naval Shipyard's ENVVEST (Project XL) pilot program for Sinclair Inlet in Washington State. Partnerships among States, DoD components, and other Federal agencies have resulted in the development and implementation of voluntary NPS actions by DoD, demonstrating that such partnerships can achieve the goals of State NPS programs. In light of our past successes with DoD/State partnerships, we recommend that EPA focus its guidance on the States' role in including Federal agencies during NPS program development. Federal agencies and the States will benefit substantially from cooperative development of NPS solutions that allow consistency issues to be pro-actively addressed during State NPS program development.

We are concerned that the proposed Clean Water Act Section 319 Federal Consistency Guidance, as currently written, will expand EPA's role and the obligations of Federal agencies under section 319 without first providing adequate opportunity for Federal agencies to review and comment on the guidance document before publication in final form. Even though the proposed guidance document has been published, we request that EPA consider our comments requesting several changes to correct references and clarify the scope of section 319 and other statutory and regulatory provisions prior to finalization of the document. A clear understanding by the States and the Federal agencies of their respective statutory responsibilities will enhance a cooperative working relationship by all involved.

We would like to discuss these key issues with EPA before the guidance document is finalized. My point of contact is Ms. Maude Bullock, Office of the Chief of Naval Operations, (703) 602-1738. Ms. Bullock will contact you shortly to arrange a meeting to discuss these comments and any other issues of mutual interest pertaining to the section 319 Federal consistency process.




Elsie L. Munsell
Deputy Assistant Secretary of the Navy
(Environment and Safety)

Copy to:

a. Comment: EPA's guidance goes well beyond what is necessary to implement subsection 319(k), and in doing so, EPA has assigned itself a role for which the statute does not provide authority. For example, the Conflict Resolution Process in III(E) is outside the scope of EPA's authority under the statute. Moreover, EPA does not have authority under section 319 to "interpret" for Federal agencies their obligations under subsection 319(k).

Discussion: Subsection 319(k) is self-implementing and does not require additional guidance from EPA. Once a State identifies those assistance programs and development projects it will review for consistency with its NPS management program under the procedures set forth in Executive Order (E.O.) 12372, Federal agencies are required to modify their existing regulations to allow for this process.

Section 319 provides for specific action by the EPA Administrator. With regard to Federal agency consistency, the Administrator's only role under subsection 319(k) is to transmit to the Office of Management and Budget (OMB) and appropriate Federal departments and agencies a list of those assistance programs and development projects identified by each State for review under the procedures set forth in Executive Order (E.O.) 12372. The onus of accommodating State concerns in accordance with E.O. 12372 then falls on Federal agencies.

DoD recognizes that States may have a strong interest in EPA providing additional guidance on how the process works, that EPA has committed to providing such guidance, and that EPA clearly has authority to provide assistance in the form of a guidance document. The problem with this particular guidance document is that, instead of merely addressing how States should invoke their rights under section 319(k) to review certain Federal programs and projects for consistency, it provides EPA's vision of an ideal program, not authorized under existing law, under which EPA would have the authority to resolve conflicts and establish policy for other Federal agencies.

The conflict resolution discussion in section III(E) is an example of EPA acting outside the scope of the statute. Unlike the Coastal Zone Management Act, which provides for the Secretary of Commerce to mediate disputes between Federal agencies and States (see 16 U.S.C. 1456(h)), section 319 does not provide for the EPA Administrator to mediate such disputes. Although EPA may serve a useful role in working with States and Federal agencies that have reached an impasse on a particular issue, use of EPA's services in this regard is entirely optional on the part of all of the players.

Recommendation: EPA should limit the guidance to describing a) those actions necessary for EPA, other Federal agencies, and States to implement section 319(k), b) the efforts EPA is willing to engage in voluntarily to assist States and Federal agencies, at their request, in implementing subsection 319(k), and c) the steps necessary to obtaining such assistance. In particular, the guidance should clarify that, although a State may request EPA's assistance in facilitating Federal-State negotiations and with mediation and conflict resolution, participation in the process on the part of both the State and the Federal agency is voluntary. In our further comments below, we suggest some additional changes to the guidance with respect to specific matters involving the scope of subsection 319(k).

We have no objection to EPA stating, under subsection III(E) (Conflict Resolution), that it will work with Federal agency headquarters to foster consideration of NPS concerns in the development and implementation of Federal agency legislation, regulations, policies, and programs, because this is a statement of EPA's intentions and does not commit other agencies to any particular position.

b. Comment: The purpose of this guidance and its intended audience should be clearly stated in the introduction. A clear statement indicating that EPA's' issuance of this guidance is not required under section 319 or any other provision of the Clean Water Act will assist states in understanding that the authority and responsibility for Section 319(k) Federal consistency review rests solely with the States.

Discussion: Our understanding is that EPA is not issuing Section 319 federal consistency guidance for the purpose of developing new policy, regulations, or requirements. In the Background section to the guidance document, the guidance describes EPA's intent to support implementation of the Federal consistency provisions. Section 319(k), however, authorizes State NPS Federal consistency review, not EPA's Federal consistency implementation. Some readers may not understand the limits of EPA's authority under section 319(k).

Recommendation: Provide introductory language clarifying that section 319 is a State-driven program, and that this guidance is not intended to establish any new requirements for the States or Federal agencies. Describe EPA's authority as limited to technical and financial assistance to the States and transmittal to OMB of a listing of assistance program and development projects identified by the States.

c. Comment: EPA's Appendix B list of pertinent Federal assistance programs and development projects from the Catalog of Federal Domestic Assistance significantly misleads States with regard to Federal programs subject to section 319 consistency. The guidance also fails to notify States that, to invoke the consistency requirements of section 319, their NPS management programs must list specific entries from the Catalog or Federal assistance programs and direct development projects that would otherwise fall under Executive Order (E.O.) 12372.

Discussion: The Clean Water Act is specific as to which Federal actions are subject to consistency review under section 319(k). Only projects or assistance listed in the Catalog of Federal Domestic Assistance or subject to E.O. 12372 require review. EPA's guidance, however, confuses this point by listing DoD actions in Appendix B that are not DoD domestic assistance projects. A check of the Catalog of Federal Domestic Assistance shows that the assistance available from DOD generally involves economic planning assistance for major base expansions, base closures, or off-base public and private development compatible with military installations (we do not fund the development, but we will fund studies of appropriate types of development); assistance with flood control, navigation projects, and other matters under the cognizance of the Army Corps of Engineers; educational and research grants and cooperative agreements; and Defense/State Memoranda of Agreement for oversight at cleanup sites.

DOD assistance is not available for natural resource management plans and projects (although such assistance is available from the U.S. Fish and Wildlife Service and States also have ample opportunity to comment on such plans under the Sikes Act), military construction other than certain National Guard facilities, or land and water-based military training plans and exercises. Although assistance is available for some types of facility development plans and projects, the development must meet certain criteria with regard to size and community impacts. Those projects for which assistance is available generally involve the provision of funds to local communities and/or the State for planning purposes, with an attendant opportunity to provide for NPS pollution controls in the planning process.

We considered whether any of the items on the list that were not covered by the Catalog were nevertheless subject to the Executive Order. The Executive Order, however, pertains to Federal financial assistance or direct Federal development that has an effect on State and local governments. This type of development is generally that which places an increased strain on education or transportation or which removes property from the tax rolls. We believe the specific items listed in the Catalog already cover those instances involving military installations.

Recommendation: Because the list in the guidance will mislead States, DoD recommends that Appendix B include only specific entries from the Catalog of Federal Domestic Assistance: e.g., "Community Base Reuse Plans," "Aquatic Plant Control," "Flood Plain Management Services," and so on. The guidance should clarify that States must refer to the Catalog for specific programs to list in their NPS management programs.

To avoid creating unwarranted expectations, DoD also recommends that EPA delete the discussion in the second and third paragraphs of subsection III(B) about States notifying Federal agencies and EPA Regional Offices concerning additional programs they want to review under Section 319. Similarly, the second paragraph of subsection II(D) appears to misrepresent the programs eligible for inclusion on the State's list and should be clarified or deleted.

d. Comment: The guidance does not adequately distinguish between mandatory requirements in state NPS management programs and those requirements for which Federal agencies must either accommodate or explain their inability to accommodate the State program.

Discussion: Section 313 of the Clean Water Act, 33 U.S.C. 1323, requires federal agencies engaged in any activity resulting in, or which may result in, the discharge or runoff of pollutants to comply with all Federal, State, interstate, and local requirements respecting the control of water pollution in the same manner and to the same extent as any nongovernmental entity. Section 319, however, requires only that Federal agencies accommodate State concerns or, in accordance with E.O. 12372, explain why such concerns cannot be accommodated. The guidance could assist both States and Federal agencies in understanding their respective authorities and responsibilities by discussing what is necessary to make a nonpoint source control an enforceable requirement vis vis a Federal agency and what types of controls are merely subject to "accommodation or explanation."

For example, confusion may result from the summary statement in subsection III(D), paragraph 3, which appears to infer that all State laws are enforceable authorities. These laws may be enforceable by the State, but not enforceable against Federal entities for which sovereign immunity has not been waived. Although consistency review may be appropriate in the examples cited, it is misleading to imply that these policies are thereby enforceable against Federal agencies. This confusion in the guidance may lead to States tying enforceable policies (e.g., permits under CWA authorities) to non-enforceable State laws (e.g., Virginia's Chesapeake Bay Preservation Act), and withholding or delaying required Federal permits based on these consistency provisions.

Further, neither section 319 nor E.O. 12372 defines what it means to "accommodate" a State's concern, as that term is used in section 319. Suggesting such a definition might avoid misunderstandings on the part of both State and Federal agencies.

Recommendation: The guidance should include a discussion of the difference between mandatory requirements and those requirements subject to "accommodation or explanation." The guidance should explain that a Federal agency accommodates a State's concerns by incorporating the State's recommendations or requirements into its assistance program or direct development unless doing so cannot be reconciled with the goals or requirements of the program, development, agency mission, or agency authorities, including funding.

e. Comment: The list in II(G) (Other Existing Review Mechanisms) will confuse States as to what Federal actions are or are not subject to the formal Federal consistency review mechanism. DoD is particularly concerned that the inclusion of the FEDPLAN pollution abatement process will mislead States into believing they have authority to reprioritize DoD compliance projects.

Discussion: The guidance purports to provide help in implementing the Federal consistency provision in section 319 of the Clean Water Act. In listing "other existing review mechanisms," the guidance confuses other means States may use to control nonpoint source pollution with the role of the Federal consistency program. This information should be included in guidance to States on implementing or developing nonpoint source pollution controls. By including the information in guidance on section 319 consistency, EPA may confuse States into believing that Federal actions not listed in E.O. 12372 or the Catalog of Federal Domestic Assistance are subject to the formal Federal consistency review mechanism of section 319.

Moreover, although E.O. 12088 does make it Federal policy to comply with State and local pollution control standards, it outlines a process for Federal agencies to come into compliance with such requirements. That process does not include State review of an agency's prioritization of its funding requirements for compliance. Agencies are in the best position to recommend those projects that most urgently need funding and then working through the Federal process to develop an appropriate budget.

In addition, the use of section 401 of the Clean Water Act as another review mechanism for nonpoint source pollution has been rejected by the United States Court of Appeals for the Ninth Circuit (see Oregon Natural Desert Assoc. v. Dombeck, No. 97-35065 (9th Cir. July 22, 1998).

Recommendation: EPA should delete the listing and subsequent discussion of "Other Existing Review Mechanisms" from the guidance. Alternatively, the guidance should clarify that these requirements apply to Federal agencies only to the extent that they impose applicable and enforceable requirements respecting the control and abatement of water pollution and that these programs do not provide other bases for Federal consistency review. In any case, at a minimum, E.O. 12088 should be substituted for the FEDPLAN as a review mechanism and the guidance should not include section 401 of the Clean Water Act as another review mechanism for nonpoint source pollution.

f. Comment: The current status of State NPS management programs is unclear. Our discussions with representative States and EPA have led us to believe that not all State programs are finalized and that many are undergoing significant revision to meet the nine key elements to strengthen their program. If these revised programs are not finalized, section II(A), paragraph 2 should be clarified accordingly. Participation in the State management plan development process is clearly the most effective means for States and Federal agencies to work cooperatively to achieve the goals of section 319, and this opportunity is significantly restricted if States do not invite Federal agencies to join in the NPS Program development process.

Discussion: The most effective means for Federal agencies to work cooperatively with their State partners in achieving NPS goals is to work with the States during development of their NPS programs. In this manner, consistency issues and types of projects and assistance can be specifically discussed by the State and affected Federal partners, thereby providing clarity to the State program. EPA's current approach of issuing guidance for Federal consistency implementation after these plans have been finalized, rather than emphasizing voluntary Federal/State cooperation during NPS program development, will lead to confusion as to the roles and responsibilities of all concerned parties.

Recommendation: If State programs are not EPA-approved as of the date of issuing this guidance, the guidance should recommend that States seek input from Federal agencies on the draft guidance. The time frame for this review needs to be sufficient for substantive review and constructive working meetings with the States. If there is insufficient time for this process to take place, then it will be difficult for Federal agencies to implement "cooperative" programs in which they had no role in developing. Because this is a State-led initiative, the onus should be on the States to foster early collaboration via cooperative program development. This type of involvement should preclude the need for after-the-fact MOUs and should set a clear course for NPS consistency between the States and affected Federal agencies.

g. Comment: The guidance places too great an emphasis on the use of memoranda of understanding (MOUs) or other means for achieving consistency outside the formal Federal consistency review mechanism created by E.O. 12372 and section 319.

Discussion: When section 319 was amended in 1987, Congress deleted language that would have required the negotiation of MOUs as a means of resolving State consistency concerns, although nothing in the statute prohibits such arrangements. DoD has found that negotiating MOUs is often a poor use of resources and may lead to false expectations on the part of other parties, who do not understand that an expression of common goals is not a commitment when such goals require the expenditure of funds. Funding is not always available or may be diverted to meet exigent needs. Reducing the number of MOUs by negotiating them on a state or regional level is preferable because it ensures uniformity among the commitments of subordinate commands. At the same time, DoD recognizes the need not to burden military installations with requirements that tax their limited resources. These are factors DoD must take into consideration when a State requests the development of an MOU.

Recommendation: Under II(F) (Informal Review Mechanisms), clarify that the use of MOUs is entirely voluntary, that the commitments made in them are usually subject to funding being available, and that some Federal agencies may prefer to negotiate them on a regional level or to handle nonpoint source issues on a more informal basis. Also, delete "primary" from the sentence "While the primary formal Federal consistency review mechanism will be that created by E.O. 12372." The mechanism created by the executive order is the only formal Federal consistency review mechanism.

h. Comment: Subsection III(B) (Transmittal of the List) does not provide any information on EPA's role in transmitting the list of specific projects States will review under their NPS management programs to Federal agencies.

Discussion: EPA should identify the process it will use to transmit appropriate information to Federal agencies, including timelines for so doing. EPA should also clarify whether States will independently provide such information to Federal agencies and, if so, that States should inform Federal agencies whether such notification will be provided by the NPS lead agency or the State Single Point of Contact (SPOC).

Recommendation: Include a paragraph on the transmittal of the list to Federal agencies by EPA and/or the States.

i. Comment: Subsection III(B) encourages States to operate outside the process provided for in the statute, placing Federal agencies in an awkward position when they cannot, or choose not to, grant a State's request to expand the section 319 consistency review process.

Discussion: EPA does not have authority to establish policy for other Federal agencies on how such agencies accommodate States who want to expand section 319 consistency review beyond that provided for by law. Federal agencies are better able to assess how they can work with States on nonpoint source issues. In actuality, States have ample opportunity to review other programs through NEPA and other processes (such as CZMA consistency in coastal states or the process in the Sikes Act under which States review fish and wildlife management plans). Requiring Federal agencies to subject additional programs to the section 319 consistency review process would substantially increase the difficulty of Federal agency planning, by establishing another layer of review with possibly inconsistent timelines, while not adding any value to the State NPS management program.

Recommendation: Change the first sentence of the third paragraph under subsection III (B) to: "Federal agencies will determine whether to allow States to conduct Section 319 consistency reviews of assistance programs and development projects that do not fit the criteria above, and where the Federal agency determines that section 319 consistency review is not possible, the Federal agency may inform the State of any suggested alternative mechanism for State input." (Principal changes are underlined.)

j. Comment: Subsection III(D) (How to Review for Consistency) should require States to provide the criteria and guidelines they will apply in reviewing Federal assistance and direct development programs for consistency with State NPS management plans.

Discussion: Requiring States to identify the criteria and guidelines they will apply in reviewing covered Federal programs will ensure that Federal agencies know which projects require review and what criteria and guidelines are important to State NPS agencies. It will also ensure that the process is used to address only nonpoint source pollution issues rather than other issues that are better dealt with through the political process. Keeping the program "honest" will make Federal agencies more eager to accommodate a State's nonpoint source concerns.

Recommendation: DoD recommends that the second sentence in the second paragraph under III(D) state: "States should provide these criteria and guidelines to the SPOC, all State and local agencies with NPS responsibilities or interest, all relevant Federal agencies, and others as appropriate."

k. Comment: EPA's summary of roles in section IV repeats the problem of directing Federal agencies, in subsection IV(D) (Other Federal Agencies), to allow States to conduct section 319 reviews for projects that do not meet the statutory criteria for review.

Discussion: The discussion of the role of other Federal agencies purports to establish a policy for other Federal agencies under which they would expand section 319 review beyond that required by law. EPA cannot dictate policy for other Federal agencies in this regard.

Recommendation: EPA should delete the third paragraph under IV(D).

l. Comment: Appendix C of the guidance should provide a POC for the lead NPS agency for any jurisdiction in which an SPOC is not designated because the State does not participate in the Intergovernmental Review of Federal Programs Process.

Discussion: POCs in state NPS agencies would enable Federal agencies to address nonpoint source consistency with an appropriate State contact. Hawaii and Virginia, states with a large DoD presence, do not have SPOCs listed.

Recommendation: Add State NPS agency POCs for States without SPOCs.

m. Comment: The examples in Appendix F, under the Coastal Zone Management Act (CZMA), are misleading and unnecessary. The discussion of section 401 as a review mechanism for nonpoint source pollution is inconsistent with current case law.

Discussion: In providing guidance to States, EPA should not mislead them with regard to the utility of other authorities to address nonpoint source pollution. We are concerned because misleading guidance makes it more difficult for Federal agencies to work successfully with States. In general, Federal agencies are willing to accommodate State concerns with respect to Federal agency actions. This is particularly true for military installations, which have a long-term presence in States and whose personnel are a very visible presence in the community. Yet there are times when accommodation must be subject to mission requirements and/or funding constraints.

Coastal consistency review, for example, occasionally results in changes to actions in a political effort to accommodate State concerns, even when addressing such concerns under CZMA is not mandated. For example, the Navy provides vessel oil response plans to State governments as a matter of comity, not because the CZMA mandates such actions. It is important, however, that States understand the limitations of the CZMA, because it enables both sides on a coastal issue to avoid unnecessary litigation.

The proposed guidance does not provide similar examples for any other statutory or regulatory authorities. Moreover, it does not provide any examples of States overreaching under CZMA and losing in court. Just as States might object to being held up in that light, DoD objects to the unflattering portrayal of Federal agencies in these paragraphs. Further, most of the examples are irrelevant to nonpoint source pollution issues.

Recommendation: DoD recommends that EPA delete the examples of uses of CZMA in California and Massachusetts. The discussion of FEDPLAN under subsection (F) should be redrafted as a discussion of the E.O. 12088 process without any implication that Federal agency budget submissions, which ultimately are at the discretion of the President, are subject to State review. We also recommend that EPA delete section 401 from this Appendix, given the decision of the Ninth Circuit noted previously.