July 7, 2000

Forestry exempted from
TMDLs; final rule submitted

By Lana Robinson
Field Editor

The Environmental Protection Agency has announced that it will exempt loggers, tree farmers and other forestry operations from a pending rule aimed at reducing water pollution on private lands. That’s well and good, but Texas Farm Bureau wants the same exemption for agricultural producers.

“The agency’s decision to exempt forestry was largely in response to the grassroots efforts of people in that industry, including many of our members in East Texas, but agriculture should be exempted as well,” said Joe Maley, TFB organization director.

The EPA announcement follows a heavy barrage of letters and outpouring of criticism from the logging and tree farm industries. The agency received nearly 30,000 postcards and got an ear full during many public meetings, like the one attended by 3,000 people, including Gregg County Farm Bureau President Margaret Griffin, John Bradley, president of the Marion County FB, and District 1 Congressman Max Sandlin, who sponsored legislation to counter potential negative impacts of the proposed rules. Griffin and Bradley also met with House Minority Leader Richard Gephardt (D-Mo.), urging him to support Sandlin’s legislation, Another meeting, in which Dist. 2 Congressman Jim Turner of Crockett and environmental and forestry experts were on hand to field questions, was held in Lufkin, Feb. 22. During the meetings, tree farmers and others involved in silviculture operations argued the new regulations would be expensive and time-consuming, and would put small forestry practices out of business.

The EPA rule proposed last summer, in accordance with the Clean Water Act, requires states to submit plans to clean up every waterway that fails to meet quality standards for fishing, drinking and swimming. States would be required to say how much pollution should be allowed from indirect sources. Landowners would have to get a pollution discharge permit if the EPA found they were contributing to nearby water quality problems.

In August 1999, EPA proposed changes to the TMDL (Total Maximum Daily Load) program that set deadlines for when states would have to complete their TMDLs and would bring nonpoint sources of pollution under TMDL regulatory control.

Earlier this year, John Barrett of Edroy, a fifth generation cotton and grain farmer, testifying on behalf of the American Farm Bureau Federation, told a House water resources subcommittee that the EPA’s current effort to expand water quality regulations goes far beyond congressional intent. Barrett stressed the federal government’s need for unambiguous statutory authority to regulate land use.

“By this I mean Congress passing a law, not the EPA administrator passing a regulation,” Barrett stated.

In an effort to delay the EPA’s TMDL rule, U.S. House Agriculture Committee Chairman Larry Combest (R-Lubbock) and Ranking Minority Member Charlie Stenholm (D-Stamford) introduced a bill (H.R. 4502) requiring EPA to consider the findings of an 18-month National Academy of Sciences study of the scientific basis and cost implications to agriculture and forestry of the TMDL rule before the rule is finalized. Subsequently, in a bipartisan letter, the two congressional leaders asked the GAO (General Accounting Office) to conduct an impartial study of costs, expressing the belief that EPA had vastly understated the true cost of Water Quality Planning and Management Regulations regarding TMDLs.

Moreover, Combest and Stenholm penned a letter to EPA Administrator Carole Browner, urging her to withdraw and modify the proposed TMDL rule indicating that the did not agree with EPA’s assessment that “the agency needs to further ‘engage stakeholders extensively in reviewing the forestry provisions’ in the proposed rules,” and complaining that the agency’s “piecemeal approach” was not in keeping with the procedures of and compliance with the Administrative Procedures Act (APA). The letter concluded with the statement: “At this late juncture, the fair and appropriate course for the EPA to pursue, and one that is more consistent with the purposes of the APA, is to withdraw its proposed rules altogether and go back to the drawing board.”

Despite calls from these and other members of Congress to withdraw and modify its draft final rule for the TMDL (Total Maximum Daily Load) program, the EPA submitted it to the White House Office of Management and Budget June 20 for a 60-day review. EPA has made major changes to the original proposal from August 1999, which include:

—A requirement that states give priority for TMDL development to waters that are drinking water sources, are impaired by a pollutant that contributes to a violation of the national primary drinking water regulations, or are a habitat for species listed under the Endangered Species Act;

—The deadline for states to complete TMDLs is reduced from 15 years to 10 years with a possible five-year extension;

—States do not have to put threatened waters on the impaired waters list. Waters classified as threatened would not be required to have a TMDL; and

—Implementation plans for nonpoint source impaired waters must use BAT (Best Available Technology), not the BMPs (Best Management Practices) that are used today, which ignores economic costs to farmers.

EPA has not made changes in the TMDL rule to address agriculture’s concerns about inadequate data, the primacy of state and local water quality programs and the lack of authority by EPA to regulate nonpoint sources under the Clean Water Act.