2000-02-15 Written Statement Submitted to the House Transportation and Infrastructure Committee, Subcommittees on Water Resources and Environment on EPA's Proposed Regulations for TMDLs

Speaker: National Association of State Departments of Agriculture
Subject: EPA proposed regulation for TMDL's
Venue: House Transportation and Infrastructure Committee, Subcommittee on Water Resources and Environment
Date of Speech: February 15, 2000

WRITTEN STATEMENT
of the

NATIONAL ASSOCIATION OF STATE DEPARTMENTS OF AGRICULTURE

submitted to the

HOUSE TRANSPORTATION AND INFRASTRUCTURE COMMITTEE
SUBCOMMITTEE ON WATER RESOURCES & ENVIRONMENT

on

Environmental Protection Agency’s (EPA) Proposed Regulations For Total Maximum Daily Loads (TMDLs)

February 15, 2000

The National Association of State Departments of Agriculture (NASDA) is pleased to submit the following written testimony regarding the Environmental Protection Agency’s (EPA) proposed regulations on Total Maximum Daily Loads (TMDLs) and water quality management.

NASDA, representing the commissioners, secretaries, directors of the state departments of agriculture in the fifty states and four territories, supports the protection of the environment and the wise use of our natural resources. American agriculture is dependent upon continued access to clean water, air, and fertile land for its viability.

The proposed TMDL rulemaking will have a significant impact on agricultural activities and individual farm and ranch operations nationwide. Following is a description of our major concerns that we hope the Subcommittee will fully explore:

The TMDL rule greatly exceeds EPA’s statutory authority under the Clean Water Act (CWA) to regulate nonpoint source pollution without an expressed congressional mandate to do so.
The TMDL rule jeopardizes successful state and federal voluntary, incentive-based nonpoint source management programs.
The TMDL rule significantly expands “command and control” regulatory mandates and does not give states flexibility to implement alternative, or “functionally equivalent” strategies.
The TMDL rule fails to recognize the substantial state resources needed to address nonpoint source pollution including financial and technical assistance, scientific data, monitoring, and research.

Disruption of Successful Nonpoint Source Programs

NASDA is extremely concerned that the proposed TMDL rules will disrupt and undermine existing state and federal nonpoint source programs and greatly diminish pollution reduction opportunities in the agricultural sector. The Clean Water Act (CWA) contains valuable provisions for nonpoint source management under Section 319 and Section 208. However, the CWA does not stand alone in protecting America’s water from nonpoint source pollution. Farmers and ranchers have provided tremendous water quality gains through their participation in programs established under the 1985, 1990 and 1996 Farm Bills. These programs include the Environmental Quality Incentive Program (EQIP), the Conservation Reserve Program (CRP), and the Wetlands Reserve Program (WRP). Most states have developed — and are implementing — aggressive nonpoint source programs to protect water quality, including nutrient management and permitting programs. Agricultural producers and other landowners have integrated complex systems of best management practices (BMPs) into their planning and operations. Today, millions of farmland acres are protected by conservation buffers, grassed waterways, contour strips planting, conservation tillage, and other BMPs. The benefits are being seen in cleaner water, improved wildlife habitat, and the protection of land from soil and wind erosion.

EPA’s proposed rule fails to allow states the flexibility to build on this progress. Instead, EPA’s TMDL proposals substantially rewrite implementation of the Clean Water Act with prescriptive requirements, short deadlines, new and additional layers of planning, implementation, and oversight. This is counterproductive. Revisions in the TMDL program should allow for its use where it can be most effective in solving water quality problems. It should not simply replace or inappropriately conflict with other long-standing CWA and nonpoint source programs. TMDLs are only one of many useful planning tools for states to evaluate environmental risks on agricultural lands and develop and implement plans to address those risks. For example, states could effectively use TMDLs as the initial basis to direct increased monitoring and reallocation of resources, so that we know which management practices and investments should be supported through financial, technical, educational, or research assistance. This will help us produce more environmental benefits. Instead, it appears that EPA is attempting to leverage a potentially good planning tool into a comprehensive and rigid regulatory program without providing the data and science to make it work. It makes no sense for federal programs to duplicate the state’s efforts or require us to change course now and dismantle existing structures that are successfully working.

Need for Flexibility and Incentives

States must have the flexibility to implement their own existing or new “functionally equivalent” strategies that achieve national environmental objectives. As we noted above, almost all states are utilizing existing laws, regulations, strategies, and programs to address water quality concerns associated with agricultural production. States are aggressively pursuing and expanding resource conservation efforts to minimize agricultural nonpoint source pollution. Significant environmental improvements have been achieved. In many cases, this has occurred without legislation or regulation at the federal level. We strongly believe that alternative or functionally equivalent state strategies may yield more environmental progress and a greater commitment to implementation of nonpoint management programs. EPA’s approach under the TMDL proposal only expands a “command and control” regime of new regulations and requirements. Providing states with the ability of using a menu of options will allow us to build on existing programs, authorities, and strategies that deal effectively with agricultural runoff. It does not make sense or sound public policy for the federal government to promote economic environmental partnerships with farmers on one level, then saddle them with increased regulatory requirements and burdens. For example, instead of calling for regulation if an initial round of BMPs do not reach water quality goals within a specified timeframe, a second round of upgraded land management practices that are most likely to be adopted by landowners on a voluntary basis, given adequate technical and financial assistance, should follow. Many farmers and ranchers actively seek opportunities to manage their land to support environmental objectives. Many more would do so if provided with the right incentives and support. The proposed TMDL rule wrongly attempts to micro-manage state conservation planning, and does nothing to encourage farmer participation or create opportunities for improving water quality protection.

Improvements in water quality in watersheds that are impaired by agricultural activities will also require the full cooperation of agricultural communities. Proceeding with a strategy that is based on heavy-handed mandates will not foster cooperation. Rather, we fear it will result in litigation, and only delay further water quality improvements. Our experience has shown that successful environmental efforts have been obtained where the activities are voluntary, use partnerships in a team approach, and meet the specific needs of each area. Agricultural producers are willing to do their part in promoting and adopting good management practices that will protect water quality. Any revisions to the TMDL program should emphasize cooperative — rather than regulatory— approaches to nonpoint source pollution reduction, and be led by conservation districts and watershed partnerships. This will allow states to move forward in addressing agricultural nonpoint source pollution priorities.

Need for Financial Resources and Improved Water Quality Data

The state departments of agriculture want to emphasize the importance of financial resources and technical assistance. We have often stressed the need for consistent and increased federal funding for nonpoint source programs. Over the past two decades, federal agencies have seriously under-invested in efforts to control and abate nonpoint pollution problems. Although nonpoint source programs have historically received only about one or two percent as much federal funding as point source control programs, they have nonetheless resulted in significant reductions in soil erosion and runoff of agricultural stormwater. Further progress in achieving water quality goals will require a much greater federal commitment to adequate funding. We are particularly concerned that EPA’s economic analysis provided in the proposed TMDL rule is inaccurate and inadequate. The state water control administrators have estimated that $5 billion in new costs will be needed, not including costs to the private sector, for states to comply with the proposed TMDL requirements. Clearly, EPA should complete a comprehensive cost analysis before proceeding with the proposed rule.

NASDA welcomes the administration’s recent announcement to seek $1.3 billion in the FY2001 budget for conservation programs to help family farmers take steps to protect water quality and the environment. This new budget initiative is the correct approach to solving water quality problems because it recognizes the importance of flexible, incentive-based, and site-specific programs. It provides a tremendous opportunity to accelerate agricultural conservation practices, and establish working partnerships with key agricultural stakeholders. This is especially true since unlike some businesses, utilities, or government, farmers and ranchers cannot raise the value of their products to offset the costs of best management practices or regulatory requirements. It is unrealistic to expect them to participate without adequate financial and technical assistance. These new conservation initiatives should be fully funded, implemented, and evaluated before additional “command and control” strategies, such as the federal TMDL regulations, are promulgated.

State departments of agriculture represent a tremendous asset that can be of considerable assistance to the country’s effort to create a successful working partnership between agriculture and the environment. NASDA appreciates your leadership in holding oversight hearings on the TMDL rulemaking and the impact it will have on farm and ranch operations. We stand ready to work with Congress, EPA, and USDA to develop strategies and policies that will focus on environmental results to achieve our mutual water quality goals.