On August 23, 1999, the Environmental Protection Agency proposed changes to its National Pollutant Discharge Elimination System (NPDES) program (40 CFR 122). The proposed changes have been misrepresented by industry and others as an attempt to regulate non-point sources of pollution from the timber industry. It's time to set the record straight.
FICTION: EPA's proposed revisions to the NPDES regulations remove a Clean Water Act exemption for forestry activities.
FACT: When Congress wrote the Clean Water Act 28 years ago, it did not include an exemption for silvicultural activities from the definition of "point source." In 1983, EPA decided to explicitly require NPDES permits for some components of forestry operations, while giving most silviculture activities a special regulatory exemption from point source controls. The Agency has now wisely decided that an automatic exemption is no longer appropriate. In only a limited set of circumstances, EPA would consider requiring silviculture activities that meet the statutory definition of a point source, such as those with pipes, ditches or other conveyances, to get NPDES permits. Those circumstances are described below.
FICTION: EPA's proposed revisions would mean that all forestry activities would require pollution control permits.
FACT: While EPA's proposal would remove the automatic regulatory exemption for forestry point source activities, it does not require permits for any forestry activities or even authorize permits for more than a limited set of forestry activities. In fact, the proposal lays out a series of tests that would have to be met before EPA would consider requiring a permit on a case-by-case basis. First, the waterbody receiving the discharge has to fail to meet water quality standards. Then the forestry operation in question has to be a serious source of the pollutant causing the impairment. Thirdly, the state has to completely walk away from the TMDL process for that particular water – either by failing or refusing to develop an adequate TMDL that will meet water quality standards, thus shifting the duty to prepare an adequate TMDL to EPA. Then, EPA has to find that the activity in fact includes a "point source" under the Act (defined as a pipe, ditch or other discrete conveyance from which pollutants may be discharged). As you can see, this is a provision that can only be used in severe circumstances – where point source discharges are significantly impairing a waterbody. And in cases where states develop the TMDL, EPA has left the decision completely up to the states to whether the state wants to require a permit. The simple truth is that where states and timber operations are getting the job done to protect water quality, no permit will be required.
FICTION: Existing Best Management Practices are adequate for reducing pollution, therefore silviculture activities that contribute to pollution in an impaired waterway shouldn't be subject to TMDL regulations.
FACT: EPA's proposed changes to the NDPES regulations only apply to forestry point sources of pollution. See first and second fiction/fact discussion above.
For non-point sources of pollution, where BMPs are demonstrated as successful in restoring and maintaining water quality, nothing more would be required under the TMDL program. But let's face it: polluted runoff is the largest remaining source of pollution today. Forty percent of recently surveyed waters are unfit for fishing, swimming, aquatic habitat or other uses and 60 percent of that pollution is from non-point sources of pollution. BMPs and the backstop of the TMDL process are the only programs in the Clean Water Act for reducing non-point source pollution. The federal government provides millions of dollars in grants a year to help implement BMPs. While these programs should be better funded, a TMDL process is the fairest and most efficient way to allocate responsibility for reducing pollution among all sources of pollution. A TMDL would outline what voluntary BMPs were needed for non-point sources, in addition to enforceable requirements for point sources, in order to meet water quality standards.
FICTION: The TMDL program requires non-point sources of pollution to be permitted.
FACT: Non-point sources of pollution are NOT required to obtain federal permits. The TMDL program does NOT allow EPA to require NPDES permits, or any other kind of permits, for non-point sources of pollution such as runoff. Instead, the power of the TMDL program lies in the fact that it requires states to draw together all the programs of the Act and coordinate them to clean up waters. States develop TMDLs for impaired waters, using watershed specific data to determine sources of pollution and a fair way to divide up responsibility among polluters for lowering water pollution levels.
The program requires that if a state decides to allocate pollutant reductions to a non-point source, there must be a plan put in place to assure the reductions will be made. The plans can be made up of voluntary programs, state regulatory programs or many other means allowed by law. A state could decide to target grant money and staff expertise of the Act's 319 program, state Best Management Practices (BMPS) programs, and other approaches to reduce pollution.
A recent court decision emphatically supported the fact that the Clean Water Act requires the TMDL program to address non-point source pollution, outside of permits. In Pronsolino vs. Marcus, the United States District Court found "…as to whether TMDLs were authorized in the first place for all substandard rivers and waters, there is no doubt. They plainly were and remain so today – without regard to the sources of pollution." However, the TMDL program addresses point and non-point sources of pollution differently – with NPDES permits for point sources and through planning and coordination of existing voluntary programs for non-point sources.
For more information on the TMDL program and forestry and water quality, contact the Clean WaterNetwork at 202-289-2392 or visit our web site at www.cwn.org.
April, 2000.
Alan Levine Coast Action Group P.O. Box 215 Point Arena, CA 95468
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