2000-03-01 Statement by Jamie Clover Adams, Secretary, Kansas Department of Agriculture, on EPA's proposed regulations for TMDLs
- Speaker: Jamie Clover Adams, Secretary, Kansas Department of Agriculture
- Subject: EPA's proposed regulations for TMDLs
- Venue: Senate Environment and Public Works Committee, Subcommitte on Fisheries, Wildlife and Drinking Water
- Date of Speech: March 01, 2000
Statement of Jamie Clover Adams
Secretary, Kansas Department of Agriculture
on behalf of
NATIONAL ASSOCIATION OF STATE DEPARTMENTS OF AGRICULTURE
before the
Senate Environment and Public Works Committee
Subcommittee on Fisheries, Wildlife, and Drinking Water
on
The Environmental Protection Agency’s (EPA) Proposed Regulations For Total Maximum Daily Loads (TMDLs)
Wednesday, March 1, 2000, 1:00 p.m.
______________________________________________________________________________________________
Mr. Chairman and members of the Subcommittee, thank you for the opportunity to present testimony on the Environmental Protection Agency's (EPA) proposed rules on Total Maximum Daily Loads (TMDLs). My name is Jamie Clover Adams. I am the Secretary of the Kansas Department of Agriculture and I appear today on behalf the National Association of State Departments of Agriculture (NASDA) and my colleagues from across the nation.
We share your commitment to cleaning up the waters of the United States. American agriculture is dependent upon continued access to clean water, air, and fertile land for its viability. There are four issues of great concern to the nation's Secretaries, Directors and Commissioners of Agriculture regarding the proposed TMDL rule.
• It greatly exceeds EPA's statutory authority;
• It jeopardizes successful voluntary, incentive-based, nonpoint source management programs;
• It significantly expands command and control regulatory mandates with no flexibility to implement strategies that achieve results; and
• It fails to recognize the substantial state resources needed to address nonpoint source pollution — financial and technical assistance, scientific data, monitoring and Best Management Practice (BMP) research.
A. The TMDL rule exceeds EPA's statutory authority.
We disagree with EPA that the Clean Water Act (CWA) provides ample authority to regulate nonpoint sources of pollution. Legislative history is clear that Congress made a conscious decision to treat point and nonpoint sources differently and separately. Point sources are directly regulated through National Pollutant Discharge Elimination System (NPDES) permits and nonpoint sources are addressed and managed under Section 319. In fact, in the EPA brief filed as part of Kansas Natural Resources Council and Sierra Club v. Carol Browner and State of Kansas, defendant-intervenor, EPA makes this very point. They argued, "Congress did not include any provisions requiring states or EPA directly to regulate nonpoint sources...Rather, under Section 319 of the Act, Congress required states to prepare reports and develop management programs addressing various strategies, including ‘best management practices,' to reduce pollution from nonpoint sources." We believe the intent of the Clean Water Act is clear and EPA has also acknowledged this fact — nonpoint sources of pollution are not subject to mandatory regulations under the Clean Water Act, but are to be addressed through voluntary, outcome-based programs. It is imperative that the TMDL program not require states to operate in any different manner.
B. The rule jeopardizes successful programs already being implemented.
The Clean Water Act contains valuable provisions for nonpoint source management under Section 319 and 208. Also, farmers and ranchers have made great strides through their participation in programs established under the 1985, 1990 and 1996 Farm Bills. States are developing and implementing their own programs. For example, in my own state of Kansas, we are implementing voluntary incentive-based practices as part of the Governor's Water Quality Initiative, and we have monitoring data which shows these practices are improving the water quality in the area.
EPA's TMDL rule fails to give states the flexibility that is needed to build on our 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.
States are on the forefront of addressing nonpoint water quality issues. We know what the problems are, we know what programs will help. States don't need EPA trying to dictate and prescribe solutions. In Kansas, we have written and are implementing 120 TMDLs in the Kansas Lower Republican Basin. We will have more done in the Upper and Lower Arkansas River Basins, as well as the Cimarron Basin by mid-2000. Lack of flexibility in the TMDL rule will slow our progress and our efforts to improve water quality in Kansas.
C. The TMDL rule significantly expands "command and control" regulatory mandates with no flexibility to implement strategies that achieve results.
States must have flexibility to build on programs that are already working to improve water quality. Almost all states are utilizing existing laws, regulations, strategies and programs to address water quality concerns related to agricultural runoff. States are aggressively pursuing and expanding resource conservation efforts to minimize nonpoint source pollution. To reduce nonpoint source pollution and improve water quality, we must have the cooperation of the agricultural community. Proceeding with a strategy that is based on heavy-handed mandates will not foster cooperation. In Kansas, for example, we implemented a state, voluntary, incentive-based program to reduce atrazine runoff. In the target subbasin, one-on-one work with landowners has resulted in 100 percent participation and improvements in water quality.
D. EPA's rule fails to recognize the substantial state resources needed to address nonpoint source pollution – financial and technical assistance, scientific data, monitoring and BMP research.
Over the past two decades, federal agencies have seriously under-invested in nonpoint source abatement programs. Nonpoint source programs have received only one to two percent of what has been spent on point source control. Technical assistance is equally as important as financial assistance for best management practices (BMPs). In Kansas, convincing farmers and ranchers to implement BMPs takes one-on-one dialogue and assistance with implementation. Water quality data in all states is not adequate to make the kinds of decisions the EPA rule requires. Even in states like Kansas, where we have a network of 200 monitoring stations across the state that have been in place for 20 years, significant data gaps exist. Work in the Governor's Water Quality Initiative required additional chemical monitoring, as well as biological monitoring.
States, like Kansas, are also investing in best management practice research. Farmers and ranchers want to do the right thing. We need to continue to provide the tools for them to do the job in a cost-effective way. We need help funding this type of research.
EPA's economic analysis greatly underestimates the cost of implementing TMDLs to the states and the private sector. In Kansas, the State Conservation Commission estimated the cost to implement practices on 192,000 acres in Nemaha County to achieve high priority TMDLs at $4 to 5 million. With the average value of production per farm in the county at $90,000, high priority TMDL implementation will cost four to five percent of the average farm's gross income.
Summary of Remarks
Proper management of nonpoint source pollution lies in state and local efforts. It is important to note that the Clean Water Act gives states the lead responsibility to prevent, eliminate, and reduce pollution. EPA's proposed regulations do not reflect this leadership role for the states. We need that partnership to jointly tackle the challenges of further reducing nonpoint source pollution. We hope the Subcommittee will review our concerns closely.
1. The TMDL rule exceeds EPA's authority. It is a rigid, top-down program that will not improve water quality.
2. It fails to recognize the substantial costs associated with its implementation. Without adequate funding, states will not be able to move forward in addressing agricultural nonpoint source pollution.
3. It is important to remember that this is NOT about pushing paper and process, it is about people. It's about farmers and ranchers, their livelihoods, their businesses and their families.
We stand ready to work with Congress, EPA, and USDA on constructive solutions to improve water quality. On behalf of my state colleagues, I thank you for this opportunity to speak before the Subcommittee.