Mr. Chairman and members of the subcommittee, my name is Steve Kouplen. I am president of the Oklahoma Farm Bureau Federation. I am pleased to be here today to offer testimony on several water issues of importance to agriculture across the country.
On July 13, 2000, EPA published final regulatory requirements for establishing Total Maximum Daily Loads (TMDLs) under the Clean Water Act (CWA). Farm Bureau strongly opposed those regulations and promptly petitioned the court and asserted that many of EPA’s revisions were unlawful under the Administrative Procedure Act or exceeded the agency’s authority under the CWA. One of the most disturbing aspects of the July 2000 rule was the agency's conversion of the TMDL program into an overarching, nationwide enforcement mechanism for all sources of pollution -- point and nonpoint sources. We believe that the TMDL program should respect the practical and legal differences between point and nonpoint sources. As the CWA has recognized for over 30 years, the availability of end-of-pipe technologies for point sources has made a precise control strategy feasible. Nonpoint sources, on the other hand, cannot rely on any comparable technologies and must therefore use less precise, more subjective “best management practices” to achieve load reductions. Given the inherently less predictable results of the measures available to nonpoint sources, a command-and-control strategy for nonpoint sources has never been feasible. Until the July 2000 rulemaking, the agency had never formally embraced this approach to nonpoint sources.
We opposed the 2000 regulations in large part because they required an implementation plan as part of a TMDL. Section 303(d) provides no authority for the preparation or establishment of an implementation plan. It merely envisioned the translation of waste load allocations into water quality-based effluent limitations for point sources. Since this was the intended purpose of Section 303(d), there was no need for a formal implementation mechanism.
But even assuming Section 303(d) required the preparation of implementation plans, there is no authority for the July 2000 rule to require the plans to include “reasonable assurances” that load allocations be achieved. Indeed, the words “reasonable assurances” do not exist in Section 303(d).
Further, Congress went to great lengths to ensure that EPA did not prescribe in local land use decisions by delegating nonpoint source control to the states in Sections 208 and 319. The 2000 rules undercut this approach, allowing EPA to prepare implementation plans that dictate how and when nonpoint sources can use their land. Implementation of a nonpoint source TMDL is clearly an inappropriate area for federal management. States should have the freedom to implement their TMDL programs at their discretion.
Farm Bureau believes a TMDL is information about the assimilative capacity of an impaired water body. Once EPA approves a TMDL that information should be used by the state in their Continuing Planning Process (CPP), established under Section 303(e), for state implementation of Waste Load Allocations (WLAs) and Load Allocations (LAs). The CPP allows for an integrated watershed approach that brings together and integrates the distinctive approaches contained within the CWA for point and nonpoint sources. Specifically, point sources would be subject to water quality-based effluent limitations that could be incorporated into National Pollutant Discharge Elimination System (NPDES) permits, over which EPA would exercise discretionary review and veto authority. Nonpoint sources would be subject to state-developed best management practices, over which EPA would exercise the power of review and grant funds. The integrated watershed approach, conducted under the umbrella of the CPP, allows states and local watersheds to –
1. Monitor and assess their needs;
2. Plan their economic development, implement water quality management measures and even institute trading policies;
3. Achieve the goals and objectives of the watershed in a manner consistent with the goals of the CWA; and
4. Diffuse and minimize the potential for adverse litigation that will frustrate a cooperative and locally led watershed approach.
The CWA requires that states identify waters impaired by pollutants and establish Total Maximum Daily Loads (TMDLs) at levels necessary to implement applicable water quality standards. Pursuant to CWA § 303(d)(2), EPA must approve or disapprove all such TMDLs and must directly establish TMDLs in the event of disapproval. EPA has consistently recognized that “the decision on how to identify the most cost-effective or equitable means of allocating loadings is best handled by the state.” E.g., 65 Fed. Reg. 43,586, 43,620 (July 13, 2000) (preamble discussion of July 2000 final TMDL rule, also commenting that states can use “any kind of system or policy for allocating pollutant loadings among sources, as long as the resulting allocations will lead to attainment and maintenance of water quality standards”). Such subjective judgments concerning equity and cost-effectiveness – like other aspects of water quality planning – are specifically committed to the states’ discretion under the CWA, subject to EPA guidance and support. Finally it is our understanding that the draft watershed rule states that “EPA is proposing that load allocations for these sources may be expressed as allocations to specific sources or as gross allocations without connection to categories or subcategories or sources.” We are concerned about the use of individual load allocations that would be subject to EPA approval. A gross allocation would provide the states and the stakeholders the flexibility they need to develop reasonable limits for both point and nonpoint sources.
In the Pronsolino v Nastri 291 F. 3d 1123 (9th Cir. 2003) decision the U.S. Court of Appeals for the Ninth Circuit said, “[t]he upshot of this intricate scheme is that the CWA leaves to the states the responsibility of developing plans to achieve water quality standards if the statutorily-mandated point source controls will not alone suffice, while providing federal funding to aid in the implementation of the state plans.” Consistent with the primary responsibilities and rights of the states, EPA approves state nonpoint source management plans as a condition of establishing eligibility for CWA funding. See CWA § 319. Even in the event of “disapproval,” EPA lacks CWA authority to dictate state decision-making by directly establishing such plans. In contrast, TMDLs – like water quality standards themselves – may be directly established by EPA if states fail to do so in accordance with CWA requirements. See CWA §§ 303(c)(3)-(4), 303 (d)(2). This ensures that TMDLs will be available as “informational tools that allow the states to proceed from the identification of waters requiring additional planning to the required plans.”
This fundamental balance of state-federal control requires that EPA ensure that the ultimate goal (the “total” load) is properly defined, but that states alone determine how the goal will be achieved. Thus, states – not EPA – must determine how loading capacity will be “allocated” among the various industrial, municipal, commercial, residential, agricultural, silvicultural, and other pollutant sources. Such highly subjective decisions necessarily require balancing the needs of competing land uses based on considerations of equity, economy, and public welfare. As such, allocation decisions are the essence of implementation planning that has been strictly reserved for the states.
Implementation programs will be effective only if states revise allocations based on experience – i.e., demonstrated successes or failures of existing programs and control measures. TMDL implementation for nonpoint sources in particular must be a process where state strategies evolve to expand programs that work and change or abandon programs that fail. TMDLs will unnecessarily constrain, rather than foster, state efforts to achieve water quality standards if allocations to particular sources or source categories are “locked in” absent submission and EPA approval of a revised TMDL.
Stakeholder participation and innovation – including nutrient trading and other market-based approaches – will be stifled if pollutant allocations are fixed. Where achievement of the “total” pollutant load is the clear objective, states and stakeholders have the incentive and the flexibility to achieve that goal in the most efficient and cost-effective manner. Yet much of the incentive for such collaborative efforts will disappear if the results are subject to disapproval at the federal level. Trading Policy:
Trading policy empowers states and tribes to implement market-based programs to achieve and go beyond the goals of the CWA. Both point and nonpoint sources need new tools that move beyond the existing regulatory framework. Our Nation must participate in a highly competitive world market and our policy should reflect the demands and efficiencies of market-based program. Trading will allow the water program to go beyond the technological and economic limitations of our existing regulatory framework to find solutions to complex water quality problems. Trading is an innovative strategy that can align with other core conservation and water programs.
Oil Spill Final Rule Impact on Agriculture:
EPA’s July 17, 2002, Oil Spill Prevention, Control and Countermeasures ( SPCC) Rule will negatively impact farmers and ranchers, and their cooperatives across the country. While the subsequent January 9, 2003, rule providing an 18-month delay in its implementation allows more time to prepare; it does not reduce its overall cost or impact. The oil spill rule and program will greatly affect agriculture.
The rule fails to take into account the nature of production agriculture, and appears to be based on limited data or information that is out of date. It also does not take into account the cumulative effect of EPA’s rules and regulations on agriculture.
Farmers and ranchers need to store fuel on their farms in order to control costs and to fulfill time sensitive production operations. Many farms, especially in the western states, require more than the regulatory threshold of 1,320 gallons of fuel storage for their operations. On many larger farms the fuel storage is not centrally located. Above ground tanks are placed where needed for efficient equipment operation and these may be miles apart.
In a letter to EPA on June 2, 2003, several agricultural organizations and cooperatives stressed that the SPCC rule for agriculture:
(1) underestimated the economic impact by:
a. using 1991 cost data for a 2002 rule
b. using examples of costs based on farms in the upper 9 percent income bracket
c. basing impact on inadequate survey data
d. drawing conclusions about tankage based on income and not tank survey data
e. exempting 27,700 farms out of 2 million
(2) showed a lack of understanding of ag operations by:
a. mentioning farms only six times in the 112-page rule and only in the preamble
b. not understanding farm layouts and oil storage operations
(3) inappropriately applied bulk terminal rules to private family property and/or small businesses.
Given the dispersed nature of farm fuel storage and the costs associated with following the rule requirements for containment, integrity testing, security and plan development, we believe that the threshold should not apply to family farms nor to those storages where a spill would have no impact on water quality. We believe that based on the 1971 and 1993 Memorandums of Understanding between DOT and EPA, that SPCC rules should have been intended for commercial wholesale and retail sales and not the private party small end user. In addition, the aggregation of many smaller tanks, often in dispersed locations across farms and farmland, must also be addressed so as not to place farms in a costly regulatory program where there is no threat to water quality.
Farm Bureau has been a strong supporter of the voluntary, incentive-based approach to working with farmers and ranchers to improve and protect our environment. EPA should first look to the USDA for appropriate conservation practices and technical support to address this issue with agriculture. We support using our U.S. Department of Agriculture conservation programs, such as the Environmental Quality Incentives Program and the Conservation Security Program to help agriculture address the above-ground fuel tank issue.
The concerns about the impacts of the oil spill rule warrant a complete review of the final rule as it impacts agriculture. EPA should address agricultural oil storage differences in a manner that allows the farm and ranch community to protect water quality in an economically and environmentally sound and effective manner.
Thank you for accepting our testimony.