An Outcry for More Science, Less Politics at the E

BRIDGE NEWS July 7, 2000

CHURCHVILLE, Va. – The U.S. Congress has given sudden and dramatic notice it will not allow environmental regulators to arbitrarily shut down economic activities without evidence of harm to the environment.

A bipartisan majority of the House Agriculture Committee recently rejected a proposal by the

Environmental Protection Agency that would have increased the agency's authority over water quality and related land uses.

The full House overwhelmingly adopted the committee's recommendation – without a single voice being raised on the floor in the EPA's defense. To show its anger, the House also voted to defund the Department of Agriculture's Undersecretary for Natural Resources and the Environment as punishment for USDA's unblinking support of the EPA proposal.

The battle started more than a year ago, when the EPA proposed Total Maximum Daily Loads for the nation's waters. These would be acceptable daily concentrations of a whole host of natural and man-made substances found in the water.

These TMDLs would have given the agency de facto power to pre-empt the states and coerce the reduction or even elimination of any activities it portrayed as detrimental to water quality, such as the operation of power plants, suburban development, logging, mining or high-yield farming.

The major targets were agriculture and forestry, which the agency has called the major sources of non-point pollution. But it had collected no real-world data on the natural background levels of the pollutants in the water, nor has it monitored the non-point sources of existing water quality problems. (Point sources include specific sites as factories and sewage treatment plants.)

The protests began immediately. More than 34,000 comments were filed on the EPA proposal, most of them strongly opposed. The Government Accounting Office reported virtually no state in the nation had the data or technical expertise required to implement the proposed EPA rule.

The association of water pollution administrators wrote to EPA Administrator Carol Browner, "It is the view of the majority of the state water quality program managers responsible for the day-to-day implementation of the clean water programs, that this set of rules is technically, scientifically and fiscally unworkable."

The USDA was originally the most outspoken critic of the proposed TMDLs. In a letter signed by Assistant Secretary Jim Lyons, USDA questioned whether the rule was legal under the Clean Water Act, and said it was not based on sound science.

USDA also warned the TMDL enforcement would "undermine 27 years of the USDA working cooperatively with EPA, states and the communities at large." The Lyons letter was later withdrawn by Agriculture Secretary Dan Glickman, however, and labeled unofficial.

The Society of American Foresters dug into the EPA data sent to Congress concerning the forest industries' supposed sins, and revealed it to be totally flawed.

They found only 84 of the 1,040 water bodies listed as forestry- impaired could have been so impaired. Nearly half of the water bodies were not even on current state lists!

Eager to benefit from EPA programs, Florida listed "silvicultural impairment" in the Everglades, Sarasota Bay and the Myakka Rivers, where forestry is virtually non-existent.

In a final effort to save the TMDL rule, the EPA told Congress it was dropping forestry from the proposal. To the committee, that was the final proof it could not trust the agency on agriculture, mining or any other economic activity.

Adding to the red faces at EPA was a June 14 report by the National Research Council (a branch of the National Academy of Sciences), which gave the agency a failing grade in science. "Science...in many cases has not even been a major determinant of EPA's decisions," said the council, suggesting the agency's past decisions were largely driven by the priorities of whatever administration was in power.

Federal judges have noticed this. Normally, it is a rare embarrassment for a federal agency to lose a federal case. Yet EPA has lost more than half of its recent federal cases!

A report by Jonathan Adler for the Reason Public Policy Institute found the EPA wins fewer than half its cases before the D.C. Circuit Court of Appeals, which has primary or exclusive jurisdiction over the regulatory activities of most federal agencies.

Environmental organizations were aghast at the failure of the TMDL rule. They spoke angrily about unconscionable delays in water cleanup. But they knew the EPA and the states had failed to collect the water quality data that would have supported TMDLs or perhaps confirmed the already successful cleanup of American waters.