COMMENTS ON

EPA'S PROPOSED REGULATIONS REGARDING

TOTAL MAXIMUM DAILY LOADS,

THE NATIONAL POLLUTANT DISCHARGE SYSTEM,

AND THE

FEDERAL ANTI-DEGRADATION POLICY

SUBMITTED TO THE

SENATE AGRICULTURE, NUTRITION,

AND FORESTRY COMMITTEE

BY:

JOHN BARRETT

AGRICULTURAL REPRESENTATIVE,

EPA'S TMDL FEDERAL ADVISORY COMMITTEE

February 23, 2000

Introduction

My name is John Barrett, I am a fifth generation cotton and grain farmer from Edroy, Texas. I am a 1971 graduate of the United States Naval Academy with a degree in Naval Science and Oceanography. I served on the Environmental Protection Agency's (EPA) federal advisory committee on Total Maximum Daily Loads (TMDL). I currently serve as the agricultural representative on the Texas Coastal Coordination Council and the Management Committee of the Gulf of Mexico Program. My comments today will address EPA's proposed rulemaking to revise the regulations implementing the TMDL program. I will briefly highlight several areas of interest and concern to agriculture.

The proposed regulations are contrary to Congressional intent.

EPA's proposed regulations are unlawful because they go well beyond the authority of the Clean Water Act (CWA). The proposed regulations empower EPA to regulate nonpoint sources of pollution through the TMDL program. Congress did not intend for EPA to possess such power. Congress made a conscious decision to treat point and nonpoint sources differently and separately in the CWA. Point sources are directly regulated by EPA through effluent limitations and a permitting system. By contrast, nonpoint sources are managed by the states through federal grant programs that encourage states to develop nonpoint source management plans.

The proposed regulations permit EPA to list nonpoint source-impaired 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, without the benefit of law, will be telling farmers and ranchers how and when they can harvest their crops and use their land. Cities can regulate land use, some counties can regulate land use, states can do it within limits, but the federal government needs unambiguous statutory authority to regulate land use. By this I mean Congress passing a law, not the EPA administrator passing a regulation.

EPA has already begun this unlawful process of regulating land usage through TMDLs. For example, in northern California, EPA established a nonpoint source sediment TMDL for the Garcia River that regulates how farmers and timber harvesters can use their property. The TMDL has been enforced against nonpoint farmers and timber harvesters in the watershed, forcing them to restrict the amount of timber they can harvest and dictating how and when they can use their land. Congress did not provide or intend federal nonpoint control that allows intervention into local land use issues.

The proposed regulations set unattainable standards.

Congress elected to treat point and nonpoint sources distinctly 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. Many environmental groups have long argued that a TMDL has to be just what it says it is -- an enforceable DAILY load. 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. As Congress recognized in 1972, while nonpoint sources can be managed "to the extent feasible," they cannot be expected to meet any quantifiable daily load limitations.

The proposed regulations are impractical.

In its zeal to redefine nonpoint source runoff as a "discharge" subject to 303(d), EPA is attempting to drive a square peg into a round hole. The Federal Section 319 Nonpoint Source Program merely encourages states to reduce pollution "to the maximum extent practicable" through best management practices (BMPs). Section 303(d) has a different bar. Compliance with Section 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 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. They 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 will fail if environmental extremists are permitted to hijack the process to their agenda of federal watershed zoning.

EPA's proposal requires the inclusion of "threatened" waters as well as upstream or downstream areas. Section 303(d) does not require the listing of "threatened" waters and listing of upstream or downstream areas should only be based on reliable water quality data. The Federal Advisory Committee drove this point home, but EPA has ignored the FACA's recommendation in its proposed rule. EPA should revise its standard to require states to establish quality assurance/quality control (QA/QC) programs to ensure the reliability of water quality data on which listing decisions and TMDL calculations are based. 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 regulate pollution as well as pollutants.

The statute requires the listing of waters for which technology-based effluent limitations -- which govern the discharge of pollutants -- are not stringent enough to meet water quality standards. The statute requires TMDLs "for those pollutants which EPA identifies . . . as suitable for such calculations." Placing "pollution" impaired waters on the Section 303(d) list can only increase confusion among states and the public over the function of the TMDL program.

The proposed regulations allow EPA to designate nonpoint sources as point sources.

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 agency's authority, constitutes significant federal intrusion into private activities and overrides state and 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 determined to halt EPA's unlawful regulation of nonpoint sources through the TMDL program. Despite our belief that EPA's actions are beyond statutory authority, agriculture is working at every level to ensure that farmers and ranchers are up to speed on water quality standards and monitoring programs. Farmers and ranchers are engaged in activities and practices to improve and protect water quality. Conservation tillage practices are being used on more than 60 percent of our nations' farmland, saving hundreds of millions of tons of topsoil annually. Over 600,000 miles of conservation buffers have been installed on farms. Thirty-six million acres are being protected through the Conservation Reserve Program. Voluntary nutrient management plans are prepared annually by USDA's Natural Resources Conservation Service for approximately 10,000 farms.

The process to protect water quality must be lawful and reasonable. A new cooperative public policy structure will not be easy as it will take a long time to develop stakeholder consensus, effective interpersonal relationships and trust in the agency for the process to succeed. My experience as a member of a National Estuary Program Management Conference and as a participant in the development of a complex and contentious TMDL has convinced me that the only workable solution to watershed management is the "bottoms up" approach as opposed to "command and control."

Conclusion

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. I believe that the EPA's current effort to expand the scope of regulation goes far beyond Congressional intent. I believe 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 farmers and ranchers.