7.5 Water Resources

Clean Water Act Goals

Water resources are essential to the United States’ health and economic well-being. To that end, NASDA supports:

Efforts to ensure the maintenance of water quality at levels that protect human health, as well as physical and biological aquatic environments.
Strategies to achieve water quality goals that are science-based, technically sound, practical, cost-effective and achievable, while also ensuring that agricultural production remains economically viable across the nation.

Clean Water Act Jurisdiction and State Roles:

NASDA supports federal policies that ensure state laws regarding water rights and allocations are honored.
NASDA supports provisions in the Clean Water Act that recognize that the primary responsibility for planning the development and use of water resources rests with the states.
NASDA supports federal policies that ensure states are given maximum flexibility in the management of their water resources. The role of the federal government should be to establish national water quality goals that are achievable, support state efforts for implementing water programs, provide technical and financial assistance, support research and development, and providing appropriate oversight of state programs. The federal government should also recognize state certification and assurance programs.
NASDA supports policies that ensure states maintain jurisdiction—consistent with applicable state laws—of intrastate waterways and other waterbodies that fall outside the definition of “navigable” waters as set forth in the CWA.
NASDA believes the best way to achieve water resource goals and standards is through watershed-based approaches, which take into account regional differences in climate, landscape, and geography, as well as the implementation of Best Management Practices in recognition of agriculture as a water-dependent use.
NASDA believes the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) is the appropriate Federal statute under which pesticide applications in, over and near water should be regulated.

Groundwater:

NASDA supports policies that ensure states, and their local units of government, maintain the primary responsibility, in partnership with the federal government, for managing ground water resources.
Groundwater management and related water conservation issues should not be addressed by the Clean Water Act.

Nonpoint Source Pollution

Nonpoint source (NPS) water pollution is, without question, one of the major remaining water quality challenges in this country that must be addressed. NPS pollution stems from multiple types of human activities and natural sources occurring diffusely over broad areas of land. These human activities include many urban and suburban land and water uses, construction activities, septic systems, as well as agriculture and forestry activities. Agriculture, in particular, has received considerable attention in recent years, as federal and state agencies have sought to increase their water quality protection efforts.

Whatever the source of NPS pollution, the programs and policies adopted to address it must be significantly different than those adopted for point sources. This is because nonpoint source pollution is fundamentally different than point source pollution. Nonpoint source runoff can naturally occur over broad areas of land and is seldom observable to both regulators and the source itself, creating uncertainty as to whether poor water quality is due to nonpoint sources, undesirable states of nature, or other sources of pollutants. In addition, weather, particularly rainfall events, has a dramatic effect on the amount and timing of runoff that occurs. As such, any reasonable policy devised to meet a set standard for runoff can be defeated by an unusual weather event.

Unlike point sources of a particular pollutant, you cannot expect similar pollution reduction results across many different farms or ranches when applying the same technological solution for the same type of pollutant. This is because the same set of management practices used in different locations, even when applied to the same crop, will likely have substantially different consequences for the amount of runoff that will occur. This is due to the major influence that different soils, slope, weather, and timing of application have on runoff prevention in agriculture. As a result, dealing with agricultural nonpoint source pollution requires site-specific solutions involving detailed knowledge about a farm or field’s situation and needs.

Many claim that agricultural nonpoint source runoff should be addressed through the Clean Water Act’s mandatory measures. The intent of the CWA is clear – non-point sources of pollution are not subject to mandatory regulations under the CWA, but are to be addressed through voluntary, outcome-based programs. Legislation has provided a clear and concise distinction between point and non-point source management, and it is imperative that the federal clean water program not require states to operate in any different manner. Similarly, it is inappropriate to provide the authority for citizen suits against individuals participating in NPS management programs.

Still, agricultural nonpoint source runoff, along with all the other sources of nonpoint source runoff, must be prevented or minimized if we are to reach the country’s water quality goals. To do this, a commitment of the time and resources similar to the 20-year commitment our country has made to eliminate point source pollution is necessary. State revolving funds (SRF) dedicated to dealing with nonpoint source pollution must be established and funded.

The Clean Water Act (CWA) does not stand alone in protecting America's waters from NPS pollution. Other ongoing programs at the federal, state and local levels must be funded fully, and coordinated with, not superseded by, the CWA. In particular, the state-led programs, when coupled with various Farm Bill, Clean Water Act and Safe Drinking Water Act incentives and support, can provide significant and continuing opportunity for major environmental quality protection. Federal water policies must recognize that the value of the state programs, if enhanced through Federal efforts, could provide a firm foundation for a sound national NPS policy.

The central focus for NPS management solutions should be on reasonable, voluntary, and incentive-based solutions utilizing education and technical assistance as well as financial assistance. All of these efforts must be grounded in solid, scientific, research-based solutions. NPS pollution management programs should emphasize the protection of water resources and state-designated water uses, including state and federal designated agricultural uses, recognizing the importance and needs of individual agricultural producers and other landowners affected by the CWA. There is clear evidence that work in addressing nonpoint source pollution takes local focus and considerable on-site technical assistance. Financial assistance for conservation practices, carbon offsets, and block grants to do this work will assure success in addressing this considerable charge.

Maximum opportunities should be provided for farm/ranch self-assessments of potential nonpoint source contributions followed by incentive-based adoption of scientifically sound practical best management practices tailored to field and/or operational practices. A collective assessment should be carried out on a watershed basis with resources and priorities focused toward the principal sources and sensitive areas. The opportunities can be provided by state and federal adoption of the concepts embodied in NASDA’s report on "Innovative Approaches to Natural Resource Protection - A Summary of Successful State Comprehensive Resource Management Planning Initiatives."

The use of nutrients in production agriculture, specifically the impact of those nutrients on surface and groundwater, will continue to be an issue in American agriculture. By incorporating urease inhibitors and nitrification inhibitors into ammonium containing fertilizers, farmers can improve efficiency of ammonium fertilizers, reduce nitrate runoff into surface and groundwater and reduce the emission of ammonia and greenhouse gases. NASDA recommends farmers be encouraged to incorporate urease inhibitors and nitrification inhibitors into ammonium-containing fertilizers as a Best Management Practice where appropriate. NASDA also encourages NRCS to consider allocating resources to urease inhibitors and nitrification inhibitor projects where requested.

Section 319 of the Clean Water Act

The CWA contains valuable provisions for NPS management embodied in Section 319. The proper management of NPS pollution lies in state and local efforts. As such, states should continue to identify and resolve their priority NPS water problems through administration of Section 319 funds.

With state oversight and approval, local entities should continue to carry out these NPS programs, including state agriculture departments. State and local programs should provide for a mix of research, development, education and technical and financial assistance for both planning and implementing actions aimed at achieving state designated water uses. Agencies at the federal and state levels should harmonize objectives and coordinate funding for national and regional NPS management programs. Amendments to, and programs under, the CWA should continue to focus on the 319 program as the means for states to identify nonpoint sources in critical areas, and to develop management programs to control discharge.

Federal appropriations in the Section 319 program for on the ground work with producers and to help them adopt BMP practice implementation must be increased. Amendments to the CWA should provide increased authorization for funding and technical support for state management programs and local implementation. Reauthorization of the CWA should include amendments to allow states to allocate 319 funds to cost sharing BMP’s not necessarily as part of a demonstration project. Management efforts funded by Section 319 should be directed to priority areas based on scientific assessments that identify water bodies with impaired or threatened uses. Priority, as determined by states, should be based on the magnitude of risk to human health, improving water quality for designated uses, attaining water quality standards, and likelihood of further significant and unreasonable water quality degradation if no action is taken.

Strategies should be developed on a hydrologic unit, watershed-wide basis using an approach that includes consideration of both surface and groundwater quality. Programs should focus on cost-effective, site-specific practices for individual operations with flexible implementation. EPA and the state water quality agencies should actively work with the state agricultural agencies and producers in identifying agriculture’s needs and priorities for 319 funding relative to agricultural NPS issues.

Section 319 management programs on federal lands should be developed and implemented by the specific agency statutorily charged with management of the lands in question, rather than by regulatory authorities independent of that agency.

Groundwater management and the related water conservation issues should not be addressed by the Clean Water Act, including Section 319, except to the extent that the states decide that they want to use Section 319 for this purpose.

Implementation of the CWA Water Quality Standards Program

In general, it is critical that the Environmental Protection Agency’s (EPA) implementation of the Clean Water Act continue to respect and follow the standard established in the Act that the states and Tribes are to have the lead role in determining how CWA’s provisions are going to be applied in the unique circumstances and needs in each state or tribal area.

Designated Uses

Wherever possible, EPA’s emphasis in its oversight of the use designation process should be on providing guidance to the states as to how an effective use designation program should be designed and operated. EPA must avoid over-specifying the use-designation process if it wants to ensure that states, in fact, come up with a flexible and adaptive process that can work in all locations across the country for very different waters. In this way, it will be possible to create a program that meets CWA goals for clean water while also respecting and reflecting the judgments and involvement of people at local and state level. In particular, EPA should not have the authority to change a state’s designation for a water body unless EPA meets a reasonable standard of proof. Once a state has established a use and provided justification for that designation, EPA should not reject that designation and require that a new one be established without adequate proof that the state’s original designation was incorrect.

EPA should recognize states’ ability to identify every water in a state for some specific usage and their ability to manage these waters according to these uses. The concept of an "existing use" is not in the CWA as it is reflected in the current regulations. Requiring states to manage waters at quality levels that are the result of historical circumstance with no deliberate public process, rather than at a "designated use" decided upon by the state, is not consistent with the CWA and should not be EPA policy.

A state’s water quality program, not individual water quality attainment plans, land use rules or resource management plans, should be subject to EPA approval. EPA must approve the program unless it finds that there is not a reasonable likelihood that the program will result in the attainment of water quality standards in impaired waters within fifteen years.

In the use-designation process, states must be free to make decisions affecting water quantity rights and allocations consistent with state law. As stated in the Clean Water Act, it should be EPA’s policy to recognize, preserve, and protect the primary responsibilities and rights of states to plan the development and use of land and water resources.

Water Quality Criteria

As for the overall water quality standards program and the use-designation process, EPA’s emphasis in its oversight of the development and implementation of water quality criteria should be on the use of guidance to help the states establish scientifically sound and effective water quality criteria. EPA must avoid over-specifying what these criteria are going to look like to ensure that states come up with a flexible and adaptive process that can work in all locations across the country for very different waters.

Many of the changes that EPA has considered recently in the water quality criteria program are well beyond the financial resources the states would need to implement the changes. As EPA makes changes to the federal water quality criteria policies, they must reasonably and prudently reflect the financial resources available to the states to do this work.

Also, EPA must ensure that the principles of sound science are followed as they revise and update criteria policy. In all of these cases, EPA must not exceed the science that is available. Only sound criteria should be used in the process of establishing permit requirements and effluent limitations. The aquatic systems that the CWA addresses can be incredibly complex. We have a far from complete understanding of the chemical, physical and biological processes that are at work in these systems. This is especially true as the science tries to integrate the chemical and physical factors to biological outcomes. Complicating this science are naturally occurring sources of pollutants and contaminants that are hard to delineate from other human-induced stressors, and multiple stressors from multiple sources.

There will be instances where the science is adequate to begin to use our incomplete understanding of chemical, physical and biological processes as "indicators" of water quality conditions. Use of indicators under these circumstances is appropriate for educational purposes and to assist informal assessments. Indicators under these circumstances should not be used to establish the thresholds for the impairment of a water body. Nor should such indicators be used to establish permit requirements.

In all of this, EPA must continue to implement a program that is grounded in the Clean Water Act’s emphasis on the regulation of the discharge of "pollutants". The CWA does not regulate "pollution" and therefore it is inappropriate to establish criteria for the purpose of permit requirements that are based on pollution and not pollutants.

Antidegradation

NASDA believes that EPA has established through rulemaking an antidegradation program that reaches far beyond that authorized in the CWA and envisioned by the Congress. The CWA speaks of antidegradation in the context of water bodies with outstanding water quality that must not be allowed to degrade. For other waters, CWA directs the states to establish a water quality standards program consisting of designating uses for the waters of the U.S. and criteria to be used to judge whether these uses are being met. It is inappropriate to require the states to establish an antidegradation program that does not allow them to manage these waters to their designated uses. This is particularly true since Congress established the Total Maximum Daily Loads (TMDL) process in Section 303 of the CWA to ensure waters are returned to their designated uses if their quality degrades below that needed to meet this use.

If EPA persists in pursuing their current antidegradation policies, it must recognize that the states cannot establish a credible antidegradation program without a significant increase in federal funding to support this activity. EPA’s requirements for an antidegradation program must not exceed the financial resources available to the states to implement the provisions. In addition, antidegradation policies must recognize that nonpoint source pollution events are highly weather dependent. Natural events can lead to extreme variability in loadings even when best management practices or any other pollution control measures consistent with the CWA are being used as designed.

Total Maximum Daily Loads (TMDLs)

The intent of the CWA is clear – non-point sources of pollution are not subject to mandatory regulations under the CWA, but are to be addressed through voluntary, outcome-based programs. Legislation has provided a clear and concise distinction between point and non-point source management, and it is imperative that the TMDL program not require states to operate in any different manner. The Section 319 program was established as the means to be used to address waters impaired by nonpoint sources. It is therefore not appropriate that EPA continues to seek to list waters under the TMDL process that are impaired by nonpoint sources only. If EPA persists in its approach to listing nonpoint source impaired waters under the TMDL process, it is essential that EPA recognizes that voluntary approaches, like Resource Management Plans (RMPs) under Section 319 will meet the needed and/or required water quality standards. In all cases, TMDL or otherwise, EPA must support and allow local, voluntary, incentive-based approaches as a key means to address local water quality challenges.

In all cases, listing of waters as impaired under TMDL’s must be based on sound and complete data – there has to be ample proof that a water is impaired before a state must be required to go through the lengthy and controversial process of developing a TMDL plan for that water. The use of "surrogate" indicators of pollutant loads as leading to impairment as the basis of listing a water under the TMDL program must occur only after careful consideration and with the best science possible to ensure a high level of confidence that the TMDL listing can withstand critical scrutiny. To do otherwise will not result in improvements to water quality, create controversy and the waste of resources, and otherwise harm our overall water quality protection efforts. Even if great care and good science is used to establish a surrogate indicator, it will be very difficult for state agencies to establish nonpoint source reduction goals under a TMDL process.

EPA must provide a clear and reasonable process for the TMDL delisting of waterbodies that have met their water quality standards. Similarly, EPA should provide a sound process for the delisting of waterbodies that have been listed as the result of erroneous data or where sound science indicates that the listing of the waterbody is inappropriate.

TMDLs on Public Lands

The requirement of establishing TMDLs under the CWA does not grant additional implementation authority to the federal land management agencies. Federal land management agencies, in cooperation with the states, should only address water quality issues under their own enabling legislation, and as an integral part of all resources under their management authority. If these federal agencies are required to establish TMDL’s for waters under their jurisdiction, the TMDL process of the CWA must not be interpreted to require these agencies to go beyond the requirements of their own enabling legislation. In addition, when states are required to participate with federal agencies to conduct TMDL’s for waters under federal jurisdiction, federal financial resources should be provided to the states to assist them with this responsibility.

Coastal Zone Management Act

Section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA – also known as CZMA), requires that coastal states (Alabama, Alaska, American Samoa, California, Connecticut, Delaware, Florida, Guam, Hawaii, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Northern Mariana Islands, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Texas, Virgin Islands, Virginia, Washington, and Wisconsin) with federally approved coastal zone management programs develop Coastal Nonpoint Pollution Control Programs to be approved by the U.S. Environmental Protection Agency (EPA) and the National Oceanic and Atmospheric Administration (NOAA). These programs are designed to bring together authorities and capabilities within state coastal zone management and water quality agencies to jointly address the potential problem of coastal NPS pollution. The purpose of the program is to implement management measures for NPS pollution by more fully integrating federal, state and local authorities.

EPA and NOAA must coordinate section 6217 of the CZMA with Section 319 of the CWA. States should be allowed to show the federal agencies that their 319 program meets the requirements of section 6217 of the CZMA. Further, the agencies must recognize that the most effective way to implement protection of coastal resources is through voluntary, site-specific RMPs.

Pesticide Management Plans for Groundwater and Surface Water

Pesticides have been detected in groundwater in several states as a result of legal pesticide use. State lead agencies for pesticides and other stakeholders have worked with EPA to develop a strategy to address those situations where there is a significant risk to water resources. The pesticide management plan (PMP) strategy, involving local management of pesticides, can be effective in protecting the resource while allowing continued use of pesticides. The PMP approach includes identification of areas vulnerable to contamination, implementation of modified use practices and other responses to contamination where necessary, and monitoring of the resource.

EPA must assure the PMP rule provides an effective, affordable and workable mechanism for states to manage these pesticides as follows:

Most State Lead Agencies (SLAs) don’t have statutory authority to directly affect water quality issues and reply on a collaborative approach to implement voluntary or regulatory solutions. EPA’s Office of Pesticide Programs (OPP) should collaborate with EPA’s Office of Water to coordinate water monitoring activities. Such program goal coordination could facilitate sharing of resources and efficient utilization of limited funds.
There needs to be a comprehensive approach to water monitoring and evaluation of results to adequately interpret data. Timely analysis and monitoring plans that are representative of pesticide activities are based on adequate funding by EPA.
EPA should require registrants to provide some funding to states and registrants should provide stewardship activities when requested by a state.
The PMP review and approval process conducted by EPA regions must be consistent across the nation. EPA must recognize the need for flexibility in addressing local issues and situations. An appeal process must be built into the rule for those situations where a state and EPA region are unable to resolve PMP issues.
EPA must provide states with adequate assessment of health and environmental risks, appropriate reference points, and laboratory methods and standards for these pesticides and their degradates of concern.

PMPs are an appropriate mechanism, in lieu of cancellation, to address groundwater concerns for these currently registered pesticides. However, EPA must assure that future registration decisions are made that reduce the potential for contamination by new pesticides. Improved communication between states and EPA related to registration decisions is needed to protect groundwater resources and minimize the potential resulting impacts on states and pesticide users.

Watershed Site-Specific Process

Following a scientifically sound pesticide risk assessment, Community Water Systems (CWS) should be targeted, managed and or regulated based upon current monitoring data (not more than 5 years old). This approach leads to watershed mitigation measures instead of a by-county basis. A watershed specific approach is preferable to national rate reductions or cancellations of pesticides.

Goals of Site-Specific Process:

Identify vulnerable watersheds and water systems where a pesticide is a potential concern.
Develop and implement practical mitigation measures at a state and local level producing effective and sustainable results in compliance with drinking water standards.
All programs should follow a "tiered management approach."
Implement targeted, practical, and effective mitigation measures which are technically appropriate.
Research to identify alternative cost-effective Best Management Practices (BMPs) to improve water quality on a site specific basis.
Education.

New EPA programs will be integrated with ongoing state and local level initiatives. This includes the use of existing water quality committees & coalitions where appropriate.

States will make recommendations to EPA on mitigation measures matching states’ cropping and field cultural practices. The detail and extent to which each mitigation program is developed by a state must be commensurate with the state's assessment of vulnerability to contamination and subsequent risk.

The timeframe for development and implementation of mitigation programs must be reasonable and based on the funding available. A phase-in approach for implementation is necessary. The effective date of the rule must be selected so as not to coincide with the pesticide use season to avoid unnecessary disruption.

The states will have direct input prior to any consideration for product use reductions or cancellations proposed by EPA. There shall be allowances for unusual acts of nature that cause a temporary water quality concern in any CWS in the monitoring program.

EPA must recognize the need for flexibility in addressing l local issues and situations. An appeal process must be built into the rule for those situations where a state and EPA region are unable to resolve regulatory or policy issues.

Assistance to Small Drinking Water Systems

Many of the contaminants regulated under the Safe Drinking Water Act such as arsenic and radionuclides are naturally-occurring in groundwater in many rural areas where this groundwater is often the sole source of drinking water. Additionally, these communities typically lack the necessary infrastructure and technical assistance for compliance, and because of their small size and geographic isolation, it is often not economically feasible for small community water systems serving populations of 10,000 or fewer to comply with these standards. To assist small community water systems in complying with national primary drinking water standards, maximum flexibility through variance technologies and additional financial and technical assistance should be provided.

Wetlands

Many of the nation's wetlands are highly valuable resources that must be conserved and enhanced. At the same time, any federal program to protect wetlands must also preserve private property rights and allow for a balance between economical agricultural production and wetland conservation. It is neither practical nor possible to meet these goals if states are required to develop and implement water quality standards under the CWA for wetlands in a particular state. EPA should not require that such standards be established.

The debate over federal wetlands policy has proven to be one of the most contentious and difficult issues facing Congress. Clearly, the federal government has a role in stemming the rate of wetlands loss and encouraging restoration of areas that have been degraded by pollution and careless development activity. The policy process is complicated by the reality that 75 percent of the nation's wetlands in the lower 48 states is privately owned and that much of that resource is located near large population centers. Conserving and restoring the nation's wetlands will require an enormous commitment of privately owned l and, money and expertise. It cannot be accomplished without the involvement of the private sector, particularly the people who own wetlands, in conservation and restoration activities.

The need for wetlands regulatory reform must be addressed. The federal wetlands program in effect today under section 404 of the Clean Water Act (CWA) is not the product of carefully debated legislative policy. Current federal wetlands law is the result of 25 plus years of bureaucratic decisions and judicial rulings under very general statutory language — authority that does not mention the word "wetlands."

For regulatory purposes, wetlands should be defined as lands which have a predominance of hydric soils and which are inundated by surface water at a frequency and duration sufficient to support, and that under normal circumstances (determined on the basis of the factual circumstances in existence at the time the delineation is made) do support, a prevalence of vegetation typically adapted for life in saturated conditions. This definition generally includes swamps, marshes, bogs, and similar areas.

In implementing this definition, rules should be established to delineate such wetlands, which:

Result in the delineation of lands as wetlands only if clear evidence of wetlands hydrology, hydrophytic vegetation, and hydric soils are present during the period in which such delineation is made;
Result in the classification of vegetation as hydrophytic only if such vegetation is more typically adapted to wet soil conditions than to dry soil conditions or is equally adapted to wet or dry soil conditions;
Result in the classification of lands as wetlands only if some obligate wetlands vegetation is found to be present during the period of delineation;
Result in the conclusion that wetlands hydrology is present only if water is found to be present at the surface of such lands for at least 21 consecutive days during the growing season (defined as the period between the average date of the last frost in the spring and the average date of the first frost in the fall) in which such delineation is made and for 21 consecutive days in the growing season in a majority of the years for which records are available; and
Does not result in the classification of lands as wetlands that are temporarily or incidentally created.

In order to preserve and protect truly valuable wetlands, a classification system should be developed for lands which meet the above definition. The system could restrict activity on high value wetlands, allow for permitted activities on moderate value wetlands, and exempt low value wetlands from regulations. The category of wetlands statutorily exempt from regulation should include:

"Farmed wetlands" — defined as those lands which are frequently cropped (six out of 10 years);
Prior converted wetlands — land that was both manipulated and cropped before December 23, 1985;
Failed tile drainage system causing ponding of water and restoration of hydrophytic vegetation should not be considered a wetland;
Wetlands that serve limited wetlands functions; and
Insignificantly small wetlands.

These areas represent agricultural lands which do not provide functional wetlands benefits, and should therefore be exempt from regulation.

Current law exempts normal farming practices on wetlands from the section 404 permitting process. The "normal farming practice" exemption should be clarified to mean normal ongoing practices as defined by the Secretary of Agriculture, in consultation with the Cooperative Extension Service f or each state and the land grant university system and agriculture colleges of the state. Existing practices and such other practices as may be identified in consultation with the affected industry or community should be taken into account.

Finally, wetlands regulations should be consistent between federal agencies. For example, mitigation requirements for the section 404 program should be the same as mitigation requirements under the swampbuster program.