EPA Targets Cows and . . . You?

EPA Targets Cows and . . . You?
July 1, 2000

Water is the key to all life and the source of innumerable conflicts. True to form, our U.S. government now sees water as a vast, untapped source of potential regulation.

In August 1999, EPA released a proposal to increase regulation of Concentrated Animal Feeding Operations (CAFOs), to move the permitting process away form the states, and to bring smaller operators, or Animal Feeding Operations (AFOs), under federal permitting requirements.

Beyond point-source to non-point source

Multiple attempts to declare range livestock and even humans as point sources of pollution have failed in the courts. In 1998, a decision by the U.S. Court of Appeals for the Ninth Circuit held that, among other things, water pollution emanating from open grazing of cattle in and near a river is not a discharge that requires a permit. The court’s opinion stated, “It would be strange indeed to classify as a point source something as inherently mobile as a cow.” (Oregon Natural Desert Ass’n v. Dombeck, 172 F.3d 1092)

This spring, the administration unveiled its “Proposed Unified Federal Policy for a Watershed approach to Federal land and Resource Management.” According to EPA, “traditionally, water quality improvements have focused on specific sources of pollution, such as sewage discharges, or specific water resources, such as a river segment or wetland. While this approach may be successful in addressing specific problems, it often fails to address the more subtle and chronic problems that contribute to a watershed’s decline.”

“Watershed management,” notes EPA, can offer a stronger foundation for uncovering the many stressors that affect a watershed. The result is management better equipped to determine what actions are needed to protect or restore the resource.”

A watershed is usually thought of as a ridge of high land dividing two areas drained by different river systems. EPA, however, adopts a broader definition. A watershed, says the agency, is the “area of land that catches rain and snow and drains or seeps into a marsh, stream, river, lake, or groundwater.”

The water in an EPA “watershed” originates as rain or snow that subsequently melts, then enters the water table by one of several means. It may permeate soil or porous rock, percolate through other rocks, or, if it lands on igneous rock or concrete, flow across the impermeable surface until it finds an opportunity to enter the water table.

“No matter where you live, you live in a watershed,” states EPA very matter-of-factly.

Everywhere except the interior of one’s home, and sometimes even that’s under water! Therefore, any water running over or under your land, carrying away rock, soil, sediment, nutrients, oil, grease, bacteria, anything off your property, is seen by EPA as a contribution to water pollution somewhere, an interpretation that could make everyone in the country a polluter.

Washing your car or your dog outside is a non-point source of pollution. Watering your garden has the same effect. Cows grazing on a watershed? They’re non-point sources of pollution according to EPA. A pump saving a flooded basement, and kids playing in the sprinkler, are technically polluters of watersheds somewhere.

Building a political attack on such everyday activities would be highly unpopular. think of the headlines: “High school carwash shut down for clean water violations. Cheerleaders issue statement from jail.”

TMDLs: Too many damn lawyers

Underlying this shift to attacking non-point sources of pollution is Section 303(d) of the Clean Water Act. this section requires communities to calculate maximum “loads” of input, watershed by watershed, establishing Total Maximum Daily Loads (TMDLs) for all the water in the country. The “Proposed Unified Federal Policy for a Watershed Approach to Federal Land and Resource Management” spells out how this will be done.

A TMDL is defined as “the maximum amount of pollution that a water body can assimilate without violating state water quality standards.” But how can one determine the TMDL? What is “normal” water? What is water that has maintained its “integrity”? Water with silt and moderate levels of nitrates, or without? Or water with some but not too much? How much is too much? At what time of year? During an arid summer or a wet winter?

As long as water quality remains a local standard reflecting the unique characteristics of individual water bodies, each natural in its own way, water quality can be established and regulated, with a dose of common sense, at the local level. But if EPA sets one standard for all water bodies, the lawyers will truly rule, and the conversion to a Clean Water Act with Too Many Damn Lawyers (TMDLs) will be complete.

EPA’s direction

This March, EPA received reinforcement for its TMDL approach when a federal district court in California ruled that states can be required to prepare TMDLs for waters whose quality is impaired only by non-point runoff (Pronsolino v. Marcus).

More importantly, however, the Pronsolino court also held that such a TMDL is advisory only, and that EPA has no authority to force states to regulate discharges from individual non-point sources.

In response to state concerns about workload and costs associated with the TMDL approach, EPA sent a letter on April 5 to state leaders and members of Congress “highlighting the expected elements of the final TMDL regulation for restoring polluted waters throughout the country.” In the letter, EPA apologized for the “confusion about treatment of diffuse runoff in our August TMDL proposal,” insisting that the states “take the lead” in identifying polluted waters and defining TMDLs, over a 15-year timeframe.

EPA’s letter states, “the proposed rule would not require Clean Water Act permits for polluted runoff.” However, the administration is making money available to states to help them develop TMDLs. While $131 million was appropriated for the matter in 1993, the White House is seeking $410 million for FY 2001.

On April 13, Senators Mike Crapo (R-Idaho) and Bob Smith (R-New Hampshire) introduced S. 2417, legislation that would put a moratorium on EPA’s new TMDL plans until the National Academy of Science has studied the issues, including the financial burden of EPA’s proposal on states and dischargers. This and many other expressions of congressional concern have EPA back-pedaling on how the TMDL program should affect control of runoff.

Teresa Platt is executive director of Fur Commission USA.

For more information

“A Word on Water: Clean Water Act and Animal Feeding Operations,” at http://www.furcommission.com/resource/perspect998.htm

“Getting Started on TMDLs,” at http://www.ysi.com/ysi/envweb.nsf?OpenDatabase

“TMDLs: The EPA Fishes Something Nasty from the Clean Water Act,” at http://www.cgfi.com/pubs2.cfm

“Farmers critical of nonpoint rules,” at http://www.ecol.net/ctoday/