Something In The Water
November 30, 1999
Richard A. Halpern
In the name of improving water quality, the Environmental Protection Agency (EPA) is about to revive a long-moribund regulatory strategy guaranteed to rack up millions, billions, and, for truly motivated bureaucrats and lawyers, trillions of dollars in legal fees and economic losses to real Americans far into the next century.
On August 16, the Clinton administration announced that the EPA would move forward with aggressive enforcement of section 303(d) of the Federal Water Pollution Control Act (the “Clean Water Act” of 1972), a provision that the agency has wisely left in a comer gathering dust since the legislation was adopted more than twenty-five years ago. The provision contains a regulatory concept called Total Maximum Daily Loads (TMDLs). Few people know what this acronym stands for, but it may soon have a huge effect on all of us. Full implementation of TMDLs nationwide would give the federal government-specifically the EPA-virtual control over the American economy.
In principle, the TMDL concept has much to recommend it. TMDLs are simple and logical, and in an orderly, predictable world they might provide a wonderful way to improve water quality. The total maximum daily load is the amount of a particular pollutant a body of water can tolerate on a daily basis and still retain its “integrity.” But there’s a problem. There is no real-world benchmark for the integrity of water. Consequently, there is no scientifically credible way to define the maximum tolerable load of a pollutant. Knowing this, the authors of See. 303(d) compounded the problem by requiring an added “margin of safety” on top of this unknowable maximum, to compensate for our “lack of knowledge” of the relationship between pollutant discharges and water quality. They assumed-falsely, it turns out-that science would remedy this lack very shortly, but our lack of knowledge about the quality of water in the real world remains nearly as total now as it was then.
To use TMDLS, however, regulators have to assume that it is scientifically possible to define and quantify water’s integrity-how it’s supposed to be. But in a remarkably candid moment, one of the nation’s most prominent water-quality advocates and crusaders against “nitrogen pollution,” Dr. Nancy Rabalais of the Louisiana Universities Marine Consortium, told a 1997 conference, “I don’t know what a normal amount of nitrogen is.” The same is true of most other substances commonly found in the nation’s waters. Nobody knows what “normal” water is. The best that federal agencies and environmental activists have come up with is “water the way it was before humans polluted it.” In fact the Clean Water Act vaguely defines pollution as any alteration to the integrity of water caused by human activity. But if you cannot establish a true non-n, you cannot confidently or reliably identify deviations from it.
Even after twenty-seven years of water-quality regulation, there is no meaningful monitoring data for 90 percent of the nation’s rivers and streams. So now, under the EPA:s proposal, water bodies may be listed as impaired based on “professional judgment” -meaning that a bureaucrat in your state capital can deem a stream impaired without sampling the water or even bothering to go out and look at it. The next steps in establishing a TMDL, given the present state of our knowledge, are equally absurd. After determining how much pollution water can tolerate without becoming impaired, analysts must identify the precise sources of all the excess pollutants causing the impairment, including the unknown pollutants and airborne substances from automobile exhausts that end up in our water. Finally, regulators determine the proportion of the excess pollution contributed by each source. They do the math, and all of the alleged sources-manufacturers, municipal-waste treatment plants, power-generating facilities, farmers, automobile owners, et alia-then have to retool, reduce, or retire. They have to do whatever it takes to meet the quota assigned by the regulator (regardless of whether there is any plausible basis for it)–or go to court or simply the fines regularly as a fixed cost of doing business. Within the EPA, TMDLs are known as “Too Many Damn Lawyers.”
With a little imagination, EPA can use TMDLs to restrict production of meat, regulate industrial output, reduce the generation of electricity, and perhaps even eliminate the internal-combustion engine or put an end to suburban sprawl. Our nation’s water is certainly cleaner than it was three decades ago, thanks to the Clean Water Act. If there’s still something nasty in some of our water, it’s nothing compared to what the EPA has just fished out of the Clean Water Act.
(Richard A. Halpern is a senior fellow at the Hudson Institute’s Center for Global Food Issues.)
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