October 2001: National program to identify polluted waters While EPA's Total Maximum Daily Load (TMDL) regulations and the ensuing consequences have occasionally hit the public's radar screen over the last several years, the full-blown reality is nearly upon us. TMDLs are coming and farmers especially should keep abreast of what's happening, says Paul Coreil, assistant director at the LSU AgCenter.
The TMDL program has been implemented by EPA and been addressed in federal court in New Orleans. As a result of those proceedings, Louisiana is currently under a consent decree.
A bit of background:
- The EPA TMDL program that will be implemented in October is a national program for identifying polluted waters, determining sources of the pollution, and designating clean-up plans.
- TMDL is part of the Clean Water Act (CWA). For the last 25 years, the focus of CWA has been point-source - end of the pipe - pollution. Those sources have been permitted since the 1970's.
- The non-point sources are termed "diffuse runoff." That's what flows off land and into streams after rainfall and hasn't been regulated by permits.
- TMDL is the maximum amount of pollutant allocated to sources that can enter water bodies and still allow the water to comply with standards. It's really a "budget of pollution," says Coreil.
- The final rule on TMDLs was implemented by EPA on July 11, 2000. However, Congress was able to delay implementation of the rule until October of this year.
Over the gestation of the new regulations, there have been significant concerns expressed by producers and foresters around the country.
"I attended a meeting in West Monroe about a year ago where over 2,000 growers, landowners and foresters gathered to talk about this," Coreil told a large audience at the Jan. 18 Louisiana Cotton Forum in Monroe.
Congress did pass an amendment to an existing budget bill that pretty much shut down the TMDL rule. But there was a glitch in the amendment. It said "any new rule would not take effect." To get around that, EPA pushed through the TMDL rule before Congress' amendment went into effect. Thus it was technically an "old" rule and not subject to the amendment.
"What the state has to do in the final rule is identify pollution reduction that will be needed to meet the coming standards," says Coreil.
What do the standards cover?
"They cover oxygen dissolved in the water. They will soon cover nitrogen, phosphorous, turbidity and metals."
States have to develop a list of impaired waters. EPA has insisted on this through a court order in Louisiana. Louisiana's list of impaired waters was almost doubled by the federal consent decree.
TMDLs must be developed and implementation plans that lead to the set goals must be met, says Coreil.
"The state is looking at all the basins and sub-watersheds. They are assessing their findings and will determine what will be required over the next 15 years to meet the EPA standards."
Where will farmers come in?
States - normally through departments of environmental quality (DEQs) - will ask farmers to reduce non-point source contributions of things like sediment. This is by far the top concern, says Coreil. Any kind of runoff with nitrogen or phosphorous is trouble.
Animal manure is also a big issue. Poultry producers are being faced with going from a non-point source designation to being a point source.
TMDL elements must answer these questions: What is the pollutant? What is the standard? What is the amount that must be reduced to meet the standard? What is the source of the pollutant? And how do these reductions relate to both point and non-point contributors?
Once TMDLs are determined for different waters, DEQs must put together plans to meet them. These plans must then be approved by EPA.
"Such plans for agriculture are Best Management Practices (BMPs). What will be the management measures promoted in a particular basin to reduce and meet the reduction budget? There has to be reasonable assurance that these practices will be implemented. There will be monitoring and modeling of the watershed to determine how effective the BMPs have been/are being to reducing any contribution to impairment."
All this must happen within the next 15 years. The date by which the water quality standard will be met must be announced by the Louisiana secretary of DEQ, says Coreil.
What kind of BMPs will be implemented? "Whatever BMPs are found to be best must be put into place within five years after the implementation plan is developed. The first implementation plans should be out this year."
EPA wants high priority given to areas that are drinking water sources or water supporting endangered species.
The key here is that this isn't just an agricultural impacting program, says Coreil. What the TMDL says is "every source" of contribution to impairment must be addressed. Agriculture, forestry and industry aren't the only places for non-point source contributions. Homeowners and municipalities are also potentially at fault.
"A home with a garden and lawn that utilize fertilizer are at risk of being regulated. Homes with pets and their waste are concerns - it goes on and on. As of now, the thrust has been more towards the larger landscape uses which means agriculture and forestry. Municipalities and homeowners haven't yet heard of and been hit by the coming TMDL reality."
Another concern is a lack of accurate research on determining pollutant sources. There's a lot of ambient or natural run-off in the landscape of a watershed.
"It's critical that we know what the natural contributions are before major reductions are put on land-use activities like farming. That research doesn't exist."
The EPA models being used are also not site-specific or region-specific. In many cases, these models will have to be heavily modified because a model is only as good as the inputs used, says Coreil.
There's also the very volatile issue of cost. "When you look at the standards being discussed and what it will take to meet those standards, you start getting into a tremendous financial investment. Before we go into any long-term TMDL, it's critical that these things be settled."
With regard to the consent decree in Louisiana:
- The state went from 196 impaired waters to 349.
- The timeline has been reduced in the state.
"We hope to go with a 15 year program, but the courts want that compressed to 7 or 8 years."
- Originally 609 TMDLs were to be implemented. That number is now at 1,700.
- DEQ estimates the cost of developing TMDLs is $25,000 for a very simple project. For a complicated TMDL project, the cost will be up to $1 million. "Keep in mind, this is only DEQ costs," says Coreil.
"It's easy to see where the issue of unfunded mandates comes in. We're looking at up to $100 million to do the 1,700 TMDLs in the state."
Another issue Coreil has brought up with EPA is that in the state there are many areas where agriculture has been the primary use of watersheds.
"It's the economy of the watershed. the systems have often been significantly modified to meet crop production objectives. A `swimmable, fishable' goal as EPA wants for these waterways is not realistic. We must look at something that will be conducive to the needs of the community and economic strength. But right now the TMDLs are strictly looking at this `swimmable, fishable' objective.
"We think we need a lot more work before such a program can be put in place. We need more research, education and help."
Coreil says farmers also need to tell their story better. "Farmers have put BMPs in place all over the country and more go in all the time. It makes sense because these things save money and help the environment. That fact needs to get out."
Are the standards set in stone or are they moving targets?
"The states have the ability to set standards, but EPA must approve them. That's where there's often trouble.
"For Louisiana, the oxygen level requirements are a big challenge for us. EPA has bent a little in certain areas. For example, in one area they've agreed to go with 3 parts of oxygen per liter instead of 5. The 5 parts per liter standard is one for western streams. That shouldn't be required down here."
What effect will the incoming Bush administration have on TMDLs?
"I think it will be positive in terms of helping us bring more science to the table. The big issue it won't have an impact on is the consent decree from federal court. However, that could change with any judiciary changes coming up."
What are the ultimate sanctions both for the state and local landowners if the TMDLs aren't met?
"That's the big black hole. EPA has not put in sanctions or penalty provisions into detail. They simple said you must meet standards. email [email protected]