Say It Ain’t So, Andy!

The Sobering Scope of EPA’s Total Maximum Daily Load


The Environmental Protection Agency (EPA) will not allow California farmers Guido and Betty Pronsolino to harvest timber on their property. It seems that the EPA has mandated its Total Maximum Daily Load (TMDL) requirements on a river adjacent to the Pronsolino property. Consequently, the agency has restricted or banned certain activities on their land, including harvesting timber. The EPA wants to make situations such as this one the rule, not the exception, thereby extending its regulatory authority over land-use decisions across America.

The agency’s efforts have met with much resistance from landowners. These new water-quality regulations so concern people that a meeting held in Arkansas drew a standing-room-only crowd of three thousand landowners and forestry officials. They came to learn about how the new regulations might impact their land-use decisions. Ray Rogers, chairman of the Arkansas Farm Bureau’s Forestry Division, noted that such a plan would threaten his business and the jobs of his 20 employees. “I buy 100 percent of my timber from private landowners in south Arkansas,” said Rogers. “They grow and sell it to send their kids to school, pay off a mortgage, or use for retirement.” As numerous public hearings around the country indicate, he is not alone in viewing pending water regulations with a healthy dose of skepticism.

Under the revisions, the EPA would have the ability to regulate activities that have been historically beyond its reach under the Clean Water Act. For the first time, EPA will regulate major silvicultural operations like nursery operations, harvesting operations, and even, ironically, reforestation. These operations involve a significant number of farmers and businessmen.

According to the Society of American Foresters, 9 million non-industrial forest landowners reside in the United States and own over half of the productive forestlands. These private landowners in turn work with purchasers and contractors, 85 percent of whom are small, independent businesses, according to the Department of Agriculture. Less able to absorb the high costs of environmental regulation than their larger competitors, the costs of compliance will fall heaviest on these small businesses. The imposition of these costs is all the more contentious because they lack a legal and scientific basis.

The TMDL consists of the amount of a pollutant that the EPA says a stream, river, or other body of water can assimilate before the pollutants harm aquatic life or folks swimming. Ostensibly, the regulations keep a body of water within the “TMDL budget,” thus protecting water quality. The EPA now presses states to calculate TMDLs for some 20,000 “impaired” waterways across the nation.

Under the Clean Water Act, the EPA has the authority to regulate point sources–pollution coming from pipes such as wastewater treatment or industrial processes. EPA does not, however, have the statutory authority to regulate “nonpoint sources,” such as diffuse runoff from agricultural or silvicultural processes. Nevertheless, EPA now claims “discretionary” authority over these activities based on whether the activity is located in an impaired body of water and whether a state has an adequate TMDL program. In short, the TMDL process allows the EPA to include nonpoint sources in its expanding regulatory reach–all this without any clear indication about the state of the nation’s water quality.

The US General Accounting Office recently testified before Congress that only six out of 50 states have the data needed to fully assess their waters. The National Water Quality Inventory reports that only 19 percent of rivers and streams, 40 percent of lakes, ponds, and reservoirs, and 72 percent of estuaries have been tested. Significant questions remain about the true state of the nation’s water and whether agriculture and silviculture should be regulated based on unfounded scientific conclusions.

Over 30,000 comments have been submitted on the proposed TMDL rules. Congress has the authority to determine how to statutorily change nonpoint source programs. Of even greater practical importance, Congress can determine EPA’s regulatory reach on this matter.

From agriculture to silviculture, the scope of EPA’s TMDL regulations would sober even Otis, the “spirited” weekly visitor to Mayberry’s jailhouse on the Andy Griffith Show. But when Otis experienced some self-afflicted calamity, he could only turn to Andy and say, “Say it ain’t so!” Congress, on the other hand, can turn to the EPA and make it not so.

Ebere Akobundu ([email protected]) is a policy analyst at CEI. David W. Riggs ([email protected]) is the Institute’s director of land and natural resource policy.