EPA Moves on TMDLs, Tells Congress to Change Its Mind

July 12, 2000

The Environmental Protection Agency Tuesday announced it would move ahead with actions to reduce water pollution throughout the country, in cooperation with the states, through total maximum daily loads (TMDLs) that would establish limits to reduce pollution. The agency also called on Congress to retract a legislative rider to an emergency supplemental appropriations bill approved just before the July 4 recess.

EPA says it made "substantive changes" to the clean water rule in response to public comments received. The changes generally provide states with more flexibility in implementing the program, says EPA, and include eliminating provisions that could have required new permits for forestry, livestock and aquaculture operations; that give states four years instead of two years to update inventories of polluted waters, and that allow states to establish their own schedules for deadlines on when polluted waters must achieve health standards, not to exceed 15 years.

In something of a bow toward Congress, EPA moved forward with the final rule, before the legislative prohibition becomes effective. But EPA is making the effective date for the program coincide with the end of the delay . Oct. 1, 2001. The agency upgraded the final action to "major rule" status under the Congressional Review Act, "allowing Congress ample time to review it if they choose," EPA says.

EPA plans to work with state and local governments to develop "common sense, flexible solutions for cleaning up the 40% of U.S. waterways that presently do not meet the goals for public health protection," the agency said. "When the rule takes effect, water pollution problems will be addressed comprehensively on a state-by-state, river-by-river basis for the first time ever."

States and local communities would have "maximum flexibility" to determine how best to meet cleanup goals by seeing their own TMDLs, EPA says.

The TMDL issue has been a thorn in production agriculture' s flesh for some time. Earlier this year, a U.S. District Court judge last week reaffirmed something the Environmental Protection Agency has finally admitted, according to the American Farm Bureau Federation. The agency has no Clean Water Act regulatory authority over certain agricultural and other nonpoint-source activities, AFBF said. But the court stopped short of halting EPA's TMDL initiative. Judge William Alsup ruled that EPA has authority to include nonpoint sources under the so-called TMDL process, but those TMDLs should only be considered advisory to states.

"The ruling reaffirms the American Farm Bureau Federation's position that EPA cannot directly implement non-point regulations or force state governments to do so," AFBF said. While results of the case are less than what the organization had sought, AFBF said the ruling takes important steps to limit EPA power. In particular, said AFBF President Bob Stallman, farmers and ranchers will benefit from the court's ruling that TMDLs for non-point sources are voluntary, and EPA cannot force states to implement them.

Today' s action is likely to be strongly criticized by farm groups and their supporters in Congress. Congressmen and Senators who defend their institutional prerogative may also resent the Administration. s evasion of a law about to be duly enacted. Thus, the issue is unlikely to go away.

House Agriculture Committee Chairman Larry Combest (R-TX) and ranking minority member Rep. Charles Stenholm (D-TX) sharply criticized the EPA action. "Farmers still have no way of knowing from EPA if they must get federal permission for irrigation of their crops, or whether a heavy rain washing over their fields will turn landowners into lawbreakers," Combest and Stenholm said in a joint statement.

"EPA’s rule change is a public policy debacle with the potential for a national cost in billions of dollars and lost credibility. Clearly, EPA has mishandled this process from the beginning and continues to do so by going ahead with this rule change. Their attempt to dodge responsibility by forcing a rule on the next president clearly shows a lack of confidence in the integrity of their own proposal," they added.

Congress originally designed Clean Water Act regulations to measure TMDLs only for point sources of pollution, such as specific industrial sites, said Combest and Stenholm. However, on Aug. 23, 1999, EPA proposed to apply TMDL calculations to non-point sources, such as general water runoff from forestry, farm and ranch lands.

They said criticism has mounted against EPA’s intentions for more than a year. General Accounting Office reports question the science and costs of EPA’s rule change. After the Society of American Foresters and the National Association of State Foresters investigation revealed mistakes discovered in EPA’s data, the agency moved to delay its TMDL rule on forestry. Nearly half the members of the House have cosponsored legislation to block EPA’s rule changes. Recently, the National Academy of Sciences’ National Research Council issued a report critical of EPA’s lack of science in its decision-making.