On August 23, 1999, EPA proposed sweeping changes to the current regulatory requirements for establishing TMDLs under the CWA. The proposed regulation has the potential to allow EPA to take over state land use and economic growth decisions under the pretext of reducing nonpoint source pollution. Thus far, state law and regulatory authority have always had primacy over federal law and EPA's regulatory authority under the CWA.
EPA's TMDL proposal- enables EPA to override existing state law and regulatory process by mandating TMDLs that states must achieve. This removes the authority of the state to decide the best approach for dealing with water quality.
The TMDL "process" proposed by EPA requires their review and approval and/or disapproval of a state's lists and TMDLs within 30 days of the date of submittal. If EPA disapproves a list or a TMDL, EPA must establish the list or TMDL for the state. Lee power to do this, to dictate load limits for nonpoint sources, is the power to dictate the land use to achieve those loads
Having reviewed the EPA's proposed regulation and current law, we have serious concerns over many of EPA's proposals. Congress designed the TMDL program in Sec. 303(d) to focus on waters impaired by point sources, as a means to calculate acceptable pollutant loads to assist state efforts to effectively regulate point source industrial activities, and to provide states the flexibility to achieve these water quality goals
Congress enacted Sec. 319 to reduce the effects of nonpoint source (HIPS) runoff for agricultural, silvicultural and other land use activities.
Many of the provisions generate unnecessary controversy and confusion, and actually undermine successful federal and state NPS water quality programs. EPA also has misjudged key determinants, such as the likely costs to state and federal agencies and the private sector and the likely impacts of the proposed changes.
The proposed regulations permit EPA to list nonpoint-source-unpaired waters, to develop TMDLs for nonpoint-source-impaired waters and to establish implementation plans for nonpoint-source-impaired waters. In other words, the proposal provides for federal land use regulation. EPA apparently believes they know how to require states to tell fanners and ranchers how to manage their crops and use their land.
Congress elected to treat point and nonpoint sources differently for good cause. Congress realized that because of its diffuse and complicated nature, nonpoint source pollution did not lend itself to rigid point source-type controls. Rather, nonpoint source pollution had to be managed through flexible standards Watershed managers and nonpoint source professionals are well aware of this problem. Farmers and ranchers can't control the rain! But nonpoint source TMDLs expect them to. All four components of the term- Total, Maximum, Daily, and Load - imply a constant, engineered and controllable environment. For agriculture, this means that farmers are in jeopardy of breaking the law any time a significant rainfall event occurs. Such an outcome is preposterous.
Congress recognized in 1972, while nonpoint sources can be managed "to the extent feasible," they can not, and should not be expected to meet any quantifiable daily load limitations. Section 319 Nonpoint Source Program merely encourages states to reduce pollution "to the maximum extent practicable" through best management practices
Compliance with Sec. 303(d) is not achieved until water quality standards are attained. For nonpoint source runoff, this raises the not-so-hypothetical possibility that a source would have to be eliminated from a watershed in the event that best management practices (BMPs) and modified BMPs ultimately prove ineffective in attaining water quality standards This does not make sense to reasonable people who understand the vagaries of weather. The TMDL Federal Advisory Committee reached a consensus agreement that BMPs implemented to achieve TMDLs would have to pass the bar of practicability (economically achievable) as established in Section 319. EPA has failed to introduce the concept of practicability in either the preamble or the proposed TMDL regulation.
The proposed regulations do not adequately address data issues - successful TMDL development and implementation will occur when states have attainable Water Quality Standards, when they have 303(d) lists which are derived by an ambient monitoring program, and not by drive-by assessments or "windshield monitoring,". States will need to devote sufficient resources to the TMDL development process in order to provide scientifically adequate input parameters and robust stakeholder involvement in the entire process. The TMDL program fail if environmental extremists are permitted to highjack the process to their agenda of Federal watershed zoning.
EPA should revise its standard for data and require only the use of reliable data, e.g., to require the use of "all reliable and credible existing and readily available water quality- related data and information."
The proposed regulations unlawfully allow EPA to designate nonpoint sources as point sources. They propose to regulate nonpoint sources, private forestry and livestock activities for such practices as harvesting, site-preparation, road construction, thinning, prescribed burning, pest and fire control, land application of organic nutrients, and nutrient utilization plans, by requiring landowners to obtain point source discharge permits for these land use activities. This proposed action is an unjustifiable expansion of the EPA's authority, constitutes significant federal intrusion into private activities, and overrides state arid private control of land-use decisions.
Agriculture is willing to be a part of reasonable and lawful water quality management programs. Farmers and ranchers are ready to become engaged, active stakeholders in the water quality management process, but the process must be reasonable This new cooperative public policy structure will not be easy, it will take a long time to develop successful stakeholder consensus, the interpersonal relationships, and trust in the Agency for the process to succeed Experience dictates that the only workable solution to watershed management is the "bottoms up" approach as opposed to the "command and control" EPA has proposed.
The provisions set forth in S.B. 2417 represents a reasoned approach to developing a program that meets the concerns expressed above Accurate data upon which difficult rulemaking is based, additional resources for states address their rightful responsibilities, and a critical review of this complicated and confusing issue are all called for in the bill and are needed to assure landowners of fair and equitable regulatory action Additional time is needed to evaluate and, possibly rethink the TMDL concept It is more important to At the rules done right than to At them done quickly.
Over the decades farm and ranch families have achieved extraordinary conservation gains through voluntary, incentive based programs to conserve fragile soils, wetlands, protect water quality and wildlife habitats.
The nonpoint source issues outlined in EPA's TMDL proposal are best addressed through incentive-driven programs, implemented by those with the most interest in the environmental quality of America's land and water resources. That is, the people who own and work with those resources on a daily basis-America's fainters and ranchers.
We applaud your efforts in developing S. B. 2411 as we do others in the Congress who have offered legislative remedies to the TMDL problem.