Farmers and foresters across the country are facing the biggest threat to their existence since the “dust bowl” of the 1930s laid waste to hundreds of thousands of acres of prime farmland. Only this time, the ill winds putting their livelihoods at risk are coming straight from Washington, DC.
The U.S. Environmental Protection Agency (EPA) is proposing to include normal forestry, animal feeding, and aquatic animal operations in those activities requiring a national permit as a non-point source of water pollution. Since EPA does not have the statutory authority to regulate non-point sources of water pollution, it can only take this step by radically redefining regulatory terms—treating forestry the way it does sewage disposal.
Ironically, by extending Total Maximum Daily Load (TMDL) point-source regulations to traditional non-point sources such as forestry, the agency is attempting to regulate an activity it no longer considers a major contributor to water pollution. In 1996, EPA dropped silviculture from its list of seven leading sources of river and stream impairment.
Yet under EPA’s TMDL proposal, landowners would be required to seek separate federal permits or file notices of intent for pruning, thinning, spraying, and planting of trees. Each permit would take 60 to 90 days to obtain—an intolerable delay for a tree farmer facing a sudden insect infestation.
As Ohio goes, so goes the nation
The dilemma faced by rural landowners nationwide is readily apparent in how EPA’s TMDL proposal will affect tree farmers in Ohio.
Like the rest of America, Ohio has seen a remarkable reforestation over the last several decades. According to the Ohio Department of Natural Resources, only 10 percent of the state was covered by forests in 1940. Today, that figure is 30 percent thanks to growth in private holdings.
The average holding in Ohio, however, is just 20 acres. Such small properties simply do not produce the revenues necessary to obtain the series of permits—each costing $350—or cope with the delays EPA would impose under its TMDL proposal. What’s more, once they are placed under EPA’s point-source regulations, landowners will be subject to the “citizen suit” provisions of the Clean Water Act.
For many landowners, in Ohio and elsewhere, EPA’s proposal will add yet another element of risk to what is already a precarious enterprise, one in which people are constantly on the lookout for fire, insects, floods, drought, and disease. Under these circumstances, many landowners might do what Thomas Dowd, a certified tree farmer from Massachusetts, wrote on January 8 to his state’s Congressional delegation: “Should the EPA, through increasing regulation, make tree farming uneconomical, the unintended consequence would be that I would most likely sell my 200 acres of forest for a housing subdivision.”
Adopting a policy that would encourage the conversion of forestland to sites for housing developments would seem to run counter to EPA’s campaign to combat “urban sprawl.”
Moreover, it is not clear what environmental problem is supposed to be addressed by the TMDL proposal. Forestry’s contribution to the impairment of rivers and streams has been declining for years, largely as a result of Best Management Practices adopted by state agencies. According to EPA’s own statistics, the largest source of pollution in estuaries comes from industrial discharges (56 percent), followed by urban runoff, municipal point sources, upstream sources, and agriculture. The largest contributor of pollution to shorelines is urban runoff (55 percent), followed by septic systems, municipal sewage discharge, industrial runoff, and land disposal of wastes. In both cases, forestry is a minor contributor.
Furthermore, EPA’s TMDL proposal targets the very people who are chiefly responsible for the dramatic reforestation that has been taking place in the United States over the past several decades. Nearly 60 percent of America’s productive forests—280 million acres—are owned by 9.9 million individuals and families. Forcing these people to turn to a distant bureaucracy for a permit before taking steps needed to address an emergency is to undermine the basis for sustainable forestry.
Small wonder, then, that opposition to EPA’s proposal is growing. As Senator Blanche Lincoln (D-Arkansas) recently told the Senate Environment and Public Works Committee, EPA’s TMDL proposal “would require permits on the very things we want to promote—responsible harvesting and thinning operations, best management practices, and reforestation.”
Lincoln is one of several lawmakers who have introduced legislation, or are considering doing so, that would keep EPA from imposing its new rule. Her bill, S. 2041, would statutorily classify silviculture sources of water pollution as non-point sources. Specifically, the bill would designate forestry activities, including site preparation, reforestation, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, road construction and maintenance, and nursery operations as non-point sources.
In light of a recent California court decision on non-point sources of pollution (see the accompanying “Judicial Update” on page ??), Lincoln’s bill may turn out to be the most appropriate vehicle for addressing the TMDL problem EPA has created. In any event, time is running short. EPA’s final rule is due out in August.
Bonner R. Cohen is a senior fellow at the Lexington Institute in Arlington, Virginia.