The Environmental Protection Agency published proposed Total Maximum Daily Load Program (TMDL) regulations in the Federal Register on August 23, 1999. The proposed revisions will have a direct impact on state water quality programs, conservation district programs and landowners nationwide. Addressing impaired waterbodies identified under section 303(d) of the Clean Water Act will be a driving factor in the day-to-day business of allocating workload resources and making land management decisions that will have a direct economic impact on producers and other landowners.
We believe EPA has exceeded its statutory reach by proposing the listing of nonpoint source-only impaired and threatened waters. Further, the Clean Water Act provides no authority for EPA to enforce implementation of any part of a TMDL other than the National Pollution Discharge Elimination System (NPDES) permit program.
The history of the Clean Water Act provides ample evidence that Congress intended to treat point and nonpoint sources of pollution differently. It is clear from the structure and language of the Clean Water Act that section 303(d) was intended to provide a tool for calculating water quality-based effluent limitations for point source discharges. The language in section 303(d) contains no reference to nonpoint sources, nor to runoff, nor to section 319 C the portion of the Clean Water Act designed specifically to address nonpoint sources of pollution. Instead, section 303(d) refers repeatedly to "effluent limitations" and to the requirements of section 301, which is entitled "Effluent Limitations." The way in which it is written repeated references to section 301 and no reference to 319 demonstrates clearly that Congress intended section 303(d) to deal exclusively with point source discharges.
By allowing EPA to list, develop TMDLs and require implementation plans for nonpoint source-impaired waters, the proposed regulations constitute a big leap in the direction of federal land-use regulation. Conservation districts strongly oppose federal land-use regulation particularly under the guise of TMDL regulation.
Under the TMDL program, compliance with section 303(d) is not achieved until water quality standards are attained. In the case of a TMDL for nonpoint sources of pollution, if, for example, agricultural best management practices failed to result in completely meeting water quality standards in a watershed, agriculture may have to be eliminated in that watershed? Further, EPA proposes to regulate agricultural and silvicultural practices such as harvesting, site preparation, thinning, prescribed burning, land application and more by requiring landowners to obtain discharge permits for these activities. Once again, this amounts to a foray into federal land-use regulation. Such activities were exempted under prior regulations, as they are under the Clean Water Act's Section 404 program, and should remain so under the TMDL program.
EPA's proposal also would require that, in addition to impaired waters, states list "threatened" waters. Again, section 303(d) does not provide authority for EPA to impose this mandate. It also directs that TMDLs must contain a reserve capacity for anticipated future loading, seasonal variation and margin of safety. It is not clear how this "reserve capacity" would be calculated or what "margin of safety" means.
EPA's proposal also would require improving the water quality of an impaired stream to a standard more stringent than applicable drinking water maximum contaminant levels (MCLs) or aquatic habitat water quality criteria. This is not only unreasonable, but probably unattainable in any practicable manner. MCLs for treated tap water are not appropriate for use on source waters under the TMDL program. Congress enacted Clean Water Act Section 319 with the specific purpose of assisting states in developing nonpoint source pollution control programs. That program encourages states, with appropriate federal financial assistance, to reduce nonpoint sources of pollution "to the maximum extent practicable." While in cases in which a landowner refuses to address a proven water quality problem under a voluntary framework, a regulatory mechanism may be needed, it should be left up to states to determine the type and level of regulation they deem appropriate. The federal role is most appropriate in providing funding resources and technical assistance to meet national water quality goals through state actions.
Conservation districts oppose expanding the Clean Water Act TMDL program to address water quality impairments resulting solely from nonpoint sources of pollution. Districts also oppose requiring states to list threatened waters under the TMDL program. State conservation agencies and conservation districts, with assistance from initiatives such as Section 319 and NRCS's conservation technical assistance program, should have the lead in addressing nonpoint source pollution issues, primarily through voluntary, incentive-based programs.
January 20, 2000
Comment Clerk: TMDL Rule, Water Docket (W-98-31)
USEPA
410 M St., SW
Washington DC, 20460
At a recent meeting the NH Association of Conservation Districts (NHACD) Water Quality and Urban Conservation Committee decided they concur with the TMDL response submitted by the National Association of Conservation Districts, but would like to add a few comments of their own.
NHACD is a nonprofit, non-governmental association of the 10 Conservation Districts in NH. The Conservation Districts are subdivisions of state government organized along county lines. We are dedicated to the conservation and sustainable beneficial use of our natural resources. We focus on protecting and enhancing soil quality and water quality, but also recognize the economic component of sustainability.
We have worked with New Hampshire's agricultural and forestry operations since 1946 on a voluntary basis in partnership with the Natural Resources Conservation Service (formerly the Soil Conservation Service), and other state and federal partners. We are providing increasing assistance to towns in their land use decisions and regulations. We are non-regulatory and work by providing education, technical assistance and financial incentives. Funding assistance includes USDA programs such as the Environmental Quality Incentive Program (EQIP), EPA programs like 319 and Unified Watershed (both for NPS pollution management) grants, and FEMA-NH Office of Emergency Management programs like Flood Hazard Mitigation.
We have been very effective, successfully reducing erosion, sedimentation and other nonpoint source pollution from agricultural and forestry practices, and now from development activities. New Hampshire's 303 (d) list shows that our major NPS problems come primarily from land disturbance due to development, runoff from urban areas and combined sewer overflows.
We continue to promote best management practices in agriculture, forestry, and local land use regulations. The major impediment now to more effective NPS pollution management is that effective measures to address certain practices, such as manure storage facilities and streambank stabilization, often exceed available financial resources.
We are concerned that reorganizing the proposed regulatory structure of our present program to treat agricultural and sylvicultural practices like point sources, will be counterproductive to an effective program and impede the economic sustainability of animal agriculture and small woodlot (less than 1000 acres) management in New Hampshire. Billions of dollars and 27 years have been devoted to alleviating point sources. Effective management of NPS will require further commitment of time and financial resources than are presently offered to be effective.
There is a question as to whether EPA has the legal authority to use TMDLs for NPS pollution sources, however we fear that such regulation would be counterproductive and would impede the present successful efforts. We look forward to working with you on a program that is more voluntary and incentive driven.
Sincerely,
John Hodsdon (85 Daniel Webster Highway, Meredith, NH 03253,
phone 603-279-6126)
NHACD Water Quality and Urban Conservation Committee Chairman
and Belknap County Conservation District Chaiman