[Senate Hearing 106-971]
[From the U.S. Government Publishing Office]
S. Hrg. 106-971
PROPOSED RULE CHANGES TO THE TMDL AND NPDES PERMIT PROGRAMS
=======================================================================
HEARINGS
BEFORE THE
SUBCOMMITTEE ON FISHERIES,
WILDLIFE, AND WATER
AND THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
TO CONSIDER S. 2417, WATER POLLUTION PROGRAM ENHANCEMENTS ACT OF 2000,
AND TO OVERSEE WATER REGULATIONS PROPOSED BY THE ENVIRONMENTAL
PROTECTION AGENCY CONCERNING TOTAL MAXIMUM DAILY LOAD (TMDL) LEVELS AND
NPDES PERMITS
MARCH 1 AND 23, 2000
MAY 6, 2000--WHITEFIELD, NEW HAMPSHIRE
MAY 18, 2000
JUNE 12, 2000--HOT SPRINGS, ARKANSAS
__________
Printed for the use of the Committee on Environment and Public Works
U.S. GOVERNMENT PRINTING OFFICE
66-381 WASHINGTON : 2001
_______________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
Office
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Mail: Stop SSOP, Congressional Sales Office, Washington, DC 20402-0001
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED SIXTH CONGRESS
second session
BOB SMITH, New Hampshire, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
JAMES M. INHOFE, Oklahoma DANIEL PATRICK MOYNIHAN, New York
CRAIG THOMAS, Wyoming FRANK R. LAUTENBERG, New Jersey
CHRISTOPHER S. BOND, Missouri HARRY REID, Nevada
GEORGE V. VOINOVICH, Ohio BOB GRAHAM, Florida
MICHAEL D. CRAPO, Idaho JOSEPH I. LIEBERMAN, Connecticut
ROBERT F. BENNETT, Utah BARBARA BOXER, California
KAY BAILEY HUTCHISON, Texas RON WYDEN, Oregon
LINCOLN CHAFEE, Rhode Island
Dave Conover, Staff Director
Tom Sliter, Minority Staff Director
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Subcommittee on Fisheries, Wildlife, and Drinking Water
MICHAEL D. CRAPO, Idaho, Chairman
CRAIG THOMAS, Wyoming HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri FRANK R. LAUTENBERG, New Jersey
JOHN W. WARNER, Virginia RON WYDEN, Oregon
ROBERT F. BENNETT, Utah BOB GRAHAM, Florida
KAY BAILEY HUTCHISON, Texas BARBARA BOXER, California
(ii)
C O N T E N T S
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Page
MARCH 1, 2000
FEDERAL REVIEW OF TMDL REGULATIONS
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 6, 60
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 1
Graham, Hon. Bob, U.S. Senator from the State of Florida......... 143
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire.... 17
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming....... 23
Wyden, Hon. Ron, U.S. Senator from the State of Oregon........... 4
WITNESSES
Adams, Jamie Clover, Secretary of the Kansas Department of
Agriculture, on behalf of the National Association of State
Departments of Agriculture..................................... 41
Prepared statement........................................... 94
Archey, Warren E., Massachusetts State Forester, chief of the
Massachusetts Bureau of Forestry, and chair of the NASF Water
Resources Committee............................................ 45
Prepared statement........................................... 123
Statement, NASF Forestry Initiative.......................... 127
Fox, J. Charles, Assistant Administrator for Water, Environmental
Protection Agency.............................................. 16
Prepared statement........................................... 84
Holm, David, president, Association of State and Interstate Water
Pollution Control Administrators............................... 43
Comments, TMDL Rule.........................................102-115
Prepared statement........................................... 97
Statements, Association of State and Interstate Water
Pollution Control Administrators.................102-115, 115-123
Nielsen, William, council president, Eau Claire, WI, on Behalf of
the National League of Cities.................................. 39
Prepared statement........................................... 90
Parrish, Richard A., Southern Environmental Law Center........... 47
Prepared statement........................................... 129
Racicot, Hon. Marc, Governor, State of Montana................... 7
Letters to EPA...............................................65, 79
Prepared statement........................................... 61
Smith, Hon. Gordon, U.S. Senator from the State of Oregon........ 144
ADDITIONAL MATERIAL
Comments, Proposed Revisions to TMDLs, from the State 66-78, 79-83, 117
Letters:
Governor of Montana, Marc Racicot............................ 65
Montana Department of Environmental Quality.................. 79
Statements:
American Society of Civil Engineers.......................... 132
Association of State and Interstate Water Pollution Control
Administrators...........................................102, 115
Interstate Council on Water Policy........................... 139
National Association of Flood and Stormwater Management
Agencies.................................................127, 140
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MARCH 23, 2000
IMPACT ON THE STATES
OPENING STATEMENTS
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 147
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire.... 187
Letters submitted for the record............................188-221
Wyden, Hon. Ron, U.S. Senator from the State of Oregon........... 148
WITNESSES
Bell, Nina, executive director, Northwest Environmental
Advocates, Portland, OR........................................ 172
Prepared statement........................................... 269
Buccino, Sharon, senior attorney, Natural Resources Defense
Council, Washington, DC........................................ 225
Prepared statement........................................... 311
Cloonan, Joan M., vice president, Environment and Regulatory
Affairs, J.R. Simplot Company Food Group, Boise, ID............ 222
Prepared statement........................................... 291
Gorton, Hon. Slade, U.S. Senator from the State of Washington.... 244
Guerrero, Peter, Director, Environmental Protection Issues,
General Accounting Office...................................... 158
Prepared statement........................................... 246
Hutchison, Hon. Tim, U.S. Senator from the State of Arkansas..... 150
Prepared statement........................................... 241
LeBlanc, Norman E., chief of Technical Services, Hampton Roads
Sanitation Districts, Virginia Beach, VA....................... 175
Prepared statement........................................... 286
Lincoln, Hon. Blanche Lambert, U.S. Senator from the State of
Arkansas....................................................... 152
Prepared statement........................................... 242
Moore, Dina J., National Cattlemen's Beef Association, Kneeland,
CA............................................................. 229
Prepared statement........................................... 328
Olszewski, Robert J., director of Environmental Affairs, The
Timber Company, Atlanta, GA.................................... 227
Prepared statement........................................... 324
Pardue, W. Jeffrey, director, Environmental Services, Florida
Power Corporation, St. Petersburg, FL.......................... 173
Prepared statement........................................... 278
Skolasinski, David, District Manager, Environmental Affairs,
Cliffs Mining Services Company, Duluth, MN, on behalf of the
National Mining Association and the Iron Mining Association of
Minnesota...................................................... 171
Prepared statement........................................... 265
Smith, Hon. Gordon, U.S. Senator from the State of Oregon........ 155
Prepared statement........................................... 244
Thomson, Thomas N., Thomson Family Tree Farm, Orford, NH......... 223
Prepared statement.........................................213, 293
Wittman, Robert J., supervisor, Westmoreland County, Montross,
VA, Virginia and Maryland Associations of Municipal Wastewater
Agencies and the Rappahannock River Basin Commission........... 168
Prepared statement........................................... 259
ADDITIONAL MATERIAL
Article, Tree Farms Tally Ice Damage............................. 300
Comments:
Sundry water organizations.................................301, 320
Virginia Association of Municipal Waste Water Agencies....... 262
Letters:
Bass, Hon. Charles, U.S. Representative from the State of New
Hampshire.................................................. 190
Bex, James M................................................. 194
Black, Rodman R.............................................. 195
Boyd, Gordon M............................................... 195
Briggs, Leslie C............................................. 206
Brookdale Fruit Farm......................................... 201
Brunet, Nicholas C........................................... 193
Calhoun, John C.............................................. 212
Charlane Plantation.......................................... 310
Chase, George W.............................................. 210
Coolidge, Hamilton........................................... 198
Dannehy, W.M................................................. 203
Demmons, George.............................................. 220
Doscher, Paul A.............................................. 199
Florida Department of Environmental Protection............... 285
Freeman Farm................................................. 309
Fry, Judith E................................................ 200
Green Bay Packaging.......................................... 299
Greenleaf Products, Inc...................................... 210
Gregg, Hon. Judd, U.S. Senator from the State of New
Hampshire.................................................. 189
High Ridge Tree Farm......................................... 203
Kachavos, Kathryn Donovan.................................... 207
Kentucky Forest Industries Association....................... 308
Klefos, Constance............................................ 216
Knowles, Stanley............................................. 218
LaPointe, Thomas............................................. 192
Leighton, Roger S............................................ 211
Minnesota Forestry Association............................... 307
Montana Forest Owners Association............................ 308
New Hampshire Department of Environmental Services........... 191
New Hampshire Department of Resources and Economic
Development................................................ 191
New Hampshire Timberland Owners Association................188, 201
Nix, Joe F................................................... 299
O'Neil, John................................................. 193
Page, Milton L............................................... 210
Parke, Isobel................................................ 209
Phillips Exeter Academy...................................... 205
Pine Knob Farm.............................................200, 295
Preston, Luther.............................................. 215
Rhoades, Peter C............................................. 208
Schwaegler, Bruce M........................................202, 204
Skidmore, David D............................................ 211
Society for the Protection of New Hampshire Forests.......... 198
Sulas, Michael D............................................. 194
Thompson, Charles W.......................................... 197
Thomson Tree Farm............................................ 213
Tomapo Farm.................................................. 205
Twin Cedar Farm.............................................. 221
Yates, Bill and Nancy........................................ 206
Statements:
American Tree Farm System.................................... 305
Chevon Companies............................................. 296
Copeland, Claudia, specialist in Resources and Environmental
Policy Resources, Science, and Industry Division,
Congressional Research Service, The Library of Congress.... 252
Society of American Foresters................................ 306
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MAY 6, 2000--WHITEFIELD, NEW HAMPSHIRE
IMPACT ON FORESTRY PRACTICES
OPENING STATEMENTS
Smith, Hon. Robert C., U.S. Senator from the State of New
Hampshire....................................................331, 407
WITNESSES
Bryce, Philip, Director, New Hampshire Division of Forests and
Lands, Concord, NH............................................. 353
Prepared statement........................................... 408
Buob, Tom, University of New Hampshire Cooperative Extension..... 381
Prepared statement........................................... 442
Fox, J. Charles, Assistant Administrator, Environmental
Protection Agency, Washington, DC.............................. 336
Prepared statement........................................... 410
Girard, Nancy L., Vice President & Director, Conservation Law
Foundation's New Hampshire Advocacy Center..................... 382
Prepared statement........................................... 443
Hodsdon, John, Director, New Hampshire National Association of
Conservation Districts, Meredith, NH........................... 367
Prepared statement........................................... 434
King, Hon. Fred, Senator from the State of New Hampshire......... 338
Kingsley, Eric, Executive Director, New Hampshire Timberland
Owners Association............................................. 369
Prepared statement........................................... 436
Lovaglio, Ronald B., Commissioner, Maine Department of
Conservation, Augusta, ME...................................... 355
Prepared statement........................................... 426
Mason, Scott, Northwinds Farm, Coos County Farm Bureau........... 385
Prepared statement........................................... 445
Niebling, Charles R., Senior Director, Policy and Land Management
Society for the Protection of New Hampshire Forests............ 371
Prepared statement........................................... 438
Paris, David, Water Supply Administrator, Manchester Water
Treatment Plant................................................ 388
Prepared statement........................................... 448
Poltak, Ronald F., Executive Director, New England Interstate
Water Pollution Control Commission............................. 357
Prepared statement........................................... 433
Stewart, Harry, Director of Water Division, New Hampshire
Department of Environmental Science, Concord, NH............... 350
Prepared statement........................................... 406
Swanton, Joel, Manager of Forest Policy, Champion International.. 373
Prepared statement........................................... 439
Williams, Bill, staff member for Representative Charles F. Bass.. 334
Prepared statement of Representative Bass..................335, 425
ADDITIONAL MATERIAL
Letters:
Governor of New Hampshire Jeanne Shaheen..................... 426
Maine Department Agriculture, Food, and Rural Resources...... 428
Maine Department of Conservation............................. 431
Maine Department of Environmental Protection................. 429
Massachusetts Department of Environmental Protection......... 419
New Hampshire Association of Conservation Districts.......... 435
New Hampshire Department of Resources and Economic
Development................................................ 410
New Hampshire Department of Economic Development............. 412
Northwinds Farm.............................................. 447
Rhode Island Department of Environmental Management.......... 421
Statements:
Balch, Si, Chief Forester, Mead Paper, Wilton, ME............ 452
Bass, Hon. Charles, U.S. Representative from the State of New
Hampshire.................................................. 425
Bonny, David, Newry, ME...................................... 454
Hodson, John M., National Association of Conservation
Districts.................................................. 453
Joint Views of U.S. Department of Agriculture and U.S.
Environmental Protection Agency............................ 417
Responses to Joint Views Document........................ 450
Olson, John, Maine Farm Bureau Association................... 454
Lehner, Jim, Plum Creek Timber Co............................ 454
Packer, Sara, Wagner Forest Management....................... 457
Snowe, Hon. Olympia, U.S. Senator from the State of Maine.... 422
Taylor, Stephen, Commissioner, New Hampshire Department of
Agriculture, Markets, and Food............................. 457
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MAY 18, 2000
S. 2417, WATER POLLUTION PROGRAM ENHANCEMENTS ACT
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 465
Boxer, Hon. Barbara, U.S. Senator from the State of California... 462
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 459
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire.... 467
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming....... 463
Wyden, Hon. Ron, U.S. Senator from the State of Oregon........... 470
ADDITIONAL MATERIAL
Letters:
Associated General Contractors of America.................... 503
Governor of New Hampshire Jeanne Shaheen..................... 489
Governor of Oregon John Kitzhaber............................ 488
Louisiana Department of Agriculture and Forestry............. 507
Louisiana Department of Environmental Quality...............510-522
LSU Agriculture Center....................................... 508
Statements:
Barrett, Hon. John, Agricultural Representative, EPA TMDL
Federal Advisory Committee................................. 501
Clean Water Action Network.................................505, 522
Fox, Hon. J. Charles, Assistant Administrator for Water,
Environmental Protection Agency............................ 478
Geisinger, Jim, president, Northwest Forestry Associations... 487
Givens, Dale, secretary, Louisiana Department of
Environmental Quality...................................... 495
Lyons, Hon. Jim, Under Secretary, Natural Resources and
Environment, Department of Agriculture..................... 485
Miele, Robert P., California Association of Sanitation
Agencies................................................... 497
Moyer, Steve, vice president of Conservation Programs, Trout
Unlimited...................................................... 492
Sweatt, Loren E., director, Congressional Relations, The
Associated General Contractors of America.................. 503
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JUNE 12, 2000--HOT SPRINGS, ARKANSAS
OPENING STATEMENT
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 525
WITNESSES
Bates, Hank, Sierra Club, Little Rock, AR........................ 549
Blubaugh, Vince, G.B. & Mack and Associates, El Dorado Chemical
Company, El Dorado, AR......................................... 553
Prepared statement........................................... 585
Cooke, Gregg, Regional Administrator, Region VI, Environmental
Protection Agency, Dallas TX................................... 529
Prepared statement........................................... 573
Hart, Christopher, senior Wildlife Biologist, The Timber Company,
Brandon, MS.................................................... 551
Prepared statement........................................... 583
Hillman, David, president, Arkansas Farm Bureau Federation....... 552
Prepared statement........................................... 583
Hutchinson, Hon. Tim, U.S. Senator from the State of Arkansas.... 526
Mathis, Randall, director, Arkansas Department of Environmental
Quality, Little Rock, AR....................................... 532
Prepared statement........................................... 580
Nance, Larry, Deputy State Forester, Arkansas Forestry
Commission, Little Rock, AR.................................... 531
Prepared statement........................................... 582
ADDITIONAL MATERIAL
Articles:
Tree Farmers Fear EPA's Bite................................. 594
Your Land, Your Options: What You Should Know Before You Sell
Your Timber................................................ 588
Letter, John T. Shannon.......................................... 582
Resolution, Fred Towse, USNR-HEMCO Division...................... 587
Statement, Arkansas Home Builders Association.................... 586
PROPOSED RULE CHANGES TO THE TMDL AND NPDES PERMIT PROGRAMS
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WEDNESDAY, MARCH 1, 2000
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Fisheries, Wildlife, and Drinking Water
Washington, DC.
The subcommittee met, pursuant to notice, at 1:00 p.m., in
room 406, Senate Dirksen Building, Hon. Michael D. Crapo
(chairman of the subcommittee) presiding.
FEDERAL REVIEW OF TMDL REGULATIONS
Present: Senators Crapo, Thomas, Wyden, and Smith [ex
officio].
Also present: Senator Baucus.
OPENING STATEMENT OF HON. MICHAEL D. CRAPO,
U.S. SENATOR FROM THE STATE OF IDAHO
Senator Crapo. The committee will come to order. This is
the Senate Committee on Environment and Public Works
Subcommittee on Fisheries, Wildlife and Water. The hearing is
to consider proposed changes to the TMDL program and the costs
and impacts to the States.
I would like to welcome everyone here today, and to tell
you about the procedure that we are going to follow. We expect
to have three stacked votes called at 2:00 p.m. Wherever we are
at that point, we will go into a recess, which could be 45
minutes or so, depending on how long it takes to conduct those
votes.
We have with us today as our first witness, Governor
Racicot from Montana, who has a time parameter requiring that
we move ahead expeditiously with his testimony. He needs to
catch an airplane and get back home to his family. And I for
one can certainly understand those concerns, Governor Racicot.
So, what I'm going to do is go immediately to you, Governor
Racicot and then as other members of the committee arrive we
will have them provide their opening statements.
Today the Subcommittee on Fisheries, Wildlife and Water
will hear from witnesses on proposed changes to the Total
Maximum Daily Load (TMDL) and NPDES programs under the Clean
Water Act. This is the first in a series of hearings and we
will focus today on the costs and impacts to the States.
We will be joined by a number of distinguished witnesses,
including Governor Marc Racicot of Montana, and several top
administrators of State agencies and local governments, who
will provide their perspectives on EPA's proposed rule, and
what it means to States and communities. Cleaning up our
Nation's water has long been a top priority of the Federal
Government. Everyone supports that goal. I believe that we have
made great strides toward this objective, but I believe that
there's much left to be done.
This is a goal that can be accomplished only through
collaborative efforts and partnerships at the Federal, State
and local government level as well as with stakeholders.
Similar sentiments were expressed in an EPA document called the
October 1999 ``Agenda of Regulatory and De-regulatory Actions
and Regulatory Plan.''
In fact, on the cover of that document is a quote that
says, ``EPA believes that if the people affected by rules take
part in developing them, we will produce rules that are clear,
less burdensome and more effective.''
Inside the document next to a photograph of Administrator
Browner is the quote, ``We must inform and involve those who
must live with the decisions we make, the communities, the
industries, the people of this country.''
I couldn't agree more with those two statements. Several
years ago I read a book called, The Community and the Politics
of Place, written by Dan Kemmis, who was I believe at that
time, a professor at the University of Montana. I read his book
to fit exactly with the perspective that I believe we should
follow in pursuing collaborative and local decisionmaking.
Policies, particularly those advanced by the Federal Government
and those with regulatory implications are doomed to failure
without the support of States, communities and stakeholders.
Federal, State and local partnerships are the only means by
which we can be successful in carrying out the measures that
will result in a healthy environment, whether it's cleaning up
our Nation's waters, restoring salmon runs, or conserving
America's other precious natural resources.
So I commend EPA for these very strong statements in favor
of working together in partnerships that address environmental
issues. That said, let me talk a little bit about how EPA's
proposed rule changes impact on TMDLs.
Let examine how the words of the Agency and their actions
compare.
In November 1996, the EPA convened a committee under the
Federal Advisory Committee Act to look at possible TMDL rule
changes. The committee was composed of the environmental
community, State and local governments and the regulated
community. The group met for 18 months and published its
findings in July 1998, detailing recommendations on how to make
the TMDL program work more effectively.
Since the rule was published last August, EPA has stated
that the proposed changes, such as the proposed requirement
that the States submit an implementation plan under section
303(d), are simply part of the recommendations of the FACA
Committee. However, this very contentious provision in the rule
was not resolved in the FACA committee's report. For EPA to
cast this provision as the product of collaborative
decisionmaking is to put a selective interpretation on the
recommendations.
To compound this problem under the proposed rule, the
States Implementation Plan would be subject to EPA approval. It
is extremely unlikely that section 303(d) of the Clean Water
Act provides the EPA with the authority to require each
implementation plans.
Although this may seem like a minor legal issue, in fact,
it could potentially hold grave consequences for private
landowners across the country. If, for example, the EPA were to
reject an implementation plan based on inadequate riparian
buffer widths, even if the buffers were State-approved best
management practices, EPA would be free to rewrite the
implementation plan under the loophole that the Agency has
provided itself with the authority to do so by this proposed
rule. I believe that this authority is outside of the statutory
language provided by Congress in the Clean Water Act.
One of the most disturbing provisions of the proposed
August rules is the significant change proposed by EPA to the
National Pollution Discharge Elimination System, NPDES. EPA has
proposed to change the definition of a non-point source. This
change will have the effect of subjecting private land
activities, such as traditional agricultural and forestry
activities, to Federal NPDES permits.
It is my understanding that this change was never discussed
during the FACA deliberations. In reading the proposed rule it
doesn't require an economist to conclude that this rule would
be very expensive to implement. However, given the universal
belief that this proposed rule if implemented would be
ruinously expensive to States, local governments and private
industry, I'm astounded by this statement in the proposed rule
from the Federal Register:
The EPA has determined that today's proposed rule does not
contain a Federal mandate that may result from the expenditures
of $100 million or more for State, local and tribal governments
in the aggregate or the private sector in any 1 year.
The costs for States, territories and tribes are not
expected to exceed $25 million in any 1 year. And today's
proposal does not impose any requirements on the private
sector. Let me read that again. ``Today's proposal does not
impose any requirements on the private sector.'' I believe
we'll hear more about that from our witnesses today. I'm very
concerned that this type of statement has come from an Agency
that has promised, ``To produce rules that are clear, less
burdensome and more effective.'' I'm concerned that this type
of statement is designed to avoid the safeguards Congress built
into the law and feed the growing cynicism toward their
government.
When the rule was published in August of last year the EPA
provided a 60-day comment period for receiving public input.
Given the scope and complexity of the rule, the significance of
the changes and the array of parties that would be affected, a
60-day comment period was wholly inadequate for providing
meaningful input with respect to the proposal. It was hardly
informing and involving those who must live with the decisions.
After EPA denied requests to extend the comment period this
committee through its past chairman and ranking member was
forced to intervene. The comment period was subsequently also
extended legislatively.
By the close of the comment period on January 20, the EPA
had received 30,000 comments. This hearing marks the fifth
occasion that a committee or subcommittee has seen fit to
examine the numerous and significant changes that this TMDL
proposal subjects us to. In my 7 years in Congress I've never
seen one proposal draw this level of attention and scrutiny by
committees with different jurisdictions.
Let me just quickly recount this history. Provisions were
included in the proposed rule that were not a part of the FACA
committee's recommendations. Yet the EPA continues to claim
that the rule is based on this group's report. States,
communities and stakeholders have voiced their strong concerns
about the cost of the proposed rule. Congress was forced to
intervene and legislatively extend the comment period for an
additional 90 days. Thirty thousand comments were received on
the rule, many of which expressed concern from both technical
and legal perspectives.
To date this is the fifth hearing to be held on the
proposed rule in other committees. The mere fact that these
hearings have been held suggest to me that there is significant
concern in Congress about this proposed rule. Given these facts
I understand that the EPA still intends to issue a final rule
as early as June. I find this extremely disturbing. This
suggests to me that this rule is being fast tracked in the face
of overwhelming concern from States, communities and
stakeholders. And even other departments within this
administration. And ironically enough this is the same agency
that says it wants to work with the people affected by the
rules in order to produce clear, less burdensome and more
affective rules.
I look forward to hearing from the EPA about how it truly
intends to engage all parties affected by this rule, rather
than paying lip service to a concept of collaboration. I look
forward to hearing our other panelists address how these issues
affect them and how we might move forward in finding a more
workable rule that achieves the important goal of cleaning up
our Nation's waters.
Senator Wyden, before you came in we noted that Governor
Racicot needs to catch an airplane and I was wondering if the
other members would hold on their opening statements and let
the Governor go first or do you have a statement that you would
like to make at this time?
Senator Wyden. If you wouldn't mind Mr. Chairman, and I
want to hear the Governor as well, if I could just have a
couple of quick minutes because my schedule is jammed.
Senator Crapo. Certainly. I suspected that might be the
case. So, if you could just understand the Governor's time
constraints we'd appreciate it.
OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR FROM THE
STATE OF OREGON
Senator Wyden. I'm going to be brief. I appreciate your
holding the hearing. I just want to outline very briefly my
concerns with EPA's approach and then suggest a constructive
alternative. I know the Governor has been interested as my
Governor has as well, John Kitzhaber, looking at some different
kinds of approaches. And I'll be brief.
My problem with EPA's approach to TMDL is that essentially
what EPA is saying is that marine water flowing through a
forest or a farmer's field can't be monitored and it shouldn't
be regulated the same way as point sources, as pollution from
factories. Calling forestry activities, such as harvesting, a
point source is like requiring every cow on a ranch to get a
pollution permit. It's just not going to work. The States have
taken a different approach. The best management practices
approach provides guidelines to conduct forestry in an
environmentally friendly manner. I like that it essentially
gives us a chance, especially in the West, to come up with
homegrown, locally driven approaches. You don't say what works
in eastern Oregon is going to work in Kansas or that what works
in one part of the country is going to work in the West.
The other problem I have in Oregon, is that many of the
streams which would be subject to EPA's new TMDL rules are
already struggling with the legal requirements from the
Endangered Species Act. So, I'm also troubled by the fact that
EPA doesn't take steps to coordinate these various
requirements. I'd like to suggest, and I'd like your comment,
Governor, a more workable framework from managing non-point
pollution that would be scientifically and legally defensible
and would provide the benefits for the Endangered Species Act
while minimizing the burdens on landowners.
Here's what I'd like to see us look at as an alternative to
what EPA is talking about.
First, we develop a one-stop-shopping approach for the
landowners so that they could fulfil their Clean Water Act and
Endangered Species obligations at the same time. I'd like to
see the
agencies collaborate so that a landowner can use the same land
management plan to qualify for a Habitat Conservation Plan and
TMDL. It just seems to me that if we can coordinate these two
permits, time and money can be saved.
Second, I'd like to see increased funding for the BMP
program to control non-point pollution. This is something we do
at the State level.
Third, we're going to need some more flexibility in the
TMDL plans so that scientist can look at how the best
management practices actually work, in particular places where
plans are being rewritten. Please comment on those ideas. I
want you to know that we're very troubled at home about the way
that TMDL approach is being used and we know that you and a
number of Governors have looked at innovative approaches. If we
were to do nothing, other than to develop a one-stop-shopping
approach for the landowner so that they could fulfill their
Clean Water Act and Endangered Species obligations at the same
time, I think that would start us down the direction of a
constructive alternative. I know your schedule is tight. I'm
going to put my statement into the record and I would very much
like to hear your thoughts on that. Thank you, Mr. Chairman.
[The prepared statement of Senator Wyden follows:]
STATEMENT OF HON. RON WYDEN, U.S. SENATOR FROM THE STATE OF OREGON
Rainwater flowing through a forest or farmer's field can't
be monitored and shouldn't be regulated the same way as point
sources--pollution from factories. Calling forestry activities
like harvesting a point source is like requiring every cow on a
ranch to get a pollution permit--it simply won't work.
That's why we use Best Management Practices--guidelines for
how to conduct forestry in the most environmentally friendly
manner possible. And these BMPs have to be worked out on a
local level. The solutions that work for a watershed in western
Oregon will not work for one in eastern Oregon, and certainly
not for one in Kansas. Local people need to be involved, which
happens best through state-run
incentive-based programs rather than the kind of top-down
Federal mandates implied in these proposed rules
In Oregon, many of the streams which would be subject to
EPA's new TMDL rules contain endangered fish, and landowners
are already struggling with the legal requirements of the
Endangered Species Act, so doesn't it make sense that these
requirements be coordinated?
I'd like to suggest a more workable framework for managing
non-point pollution, one which will be more scientifically and
legally defensible, and will provide environmental benefits for
endangered species and water quality while minimizing the
burden on landowners. My approach would involve: developing a
one-stop shopping approach for landowners, so that they can
fulfill their Clean Water Act and Endangered Species Act
obligations at the same time. I'd like to see the agencies
coordinate so that a landowner can use the same land management
plan to qualify for a Habitat Conservation Plan and a TMDL
plan; increased funding for the use of Best Management
Practices to control non-point pollution; and allowing
flexibility in TMDL plans, so that as scientists study how Best
Management Practices are actually working in a particular place
the plan can be rewritten.
Senator Crapo. Thank you very much, Senator Wyden. We
appreciate your brevity in the light of the Governor's time
constraints. We now have the Senator from Montana here who
would like to take a quick opportunity to introduce the
Governor for his remarks, Senator Baucus.
OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE
STATE OF MONTANA
Senator Baucus. Thank you, Mr. Chairman, it would be an
honor to introduce our Governor. He's done a great job in our
State. Governor when you speak on what Senator Wyden said, let
me also say that the goals of the Clean Water Act are very
important. In the 1972 Clean Water Act, the goals fishable and
swimmable waters are stated. We've made a lot of progress in
our country since the Act was passed. It's been with some
difficulty, but we have a good bit left to do. I'd be
interested in your general thoughts on how we get there.
Passing technology standards is pretty easy. The hard part is
getting some kind of ambient watershed plan put together that
includes point and non-point sources. As we have for the air
programs, we have State Implementation Plans, as you well know,
for ambient air. I think it makes sense to do something similar
for water. The question is how? It's pretty complicated; what
do you think the States' role should be and whether the SIPs in
the Clean Air Act are any guide or not. Is this just too
different or is it similar?
We both agree that EPA's action with respect silviculture
practices is off-base and you might want to comment a bit on
that. And finally a question in my mind is the degree to which
the State of Montana have pretty well worked out an agreement
with EPA that the State can live with. They can abide by the
provisions of the agreement worked out with EPA, but then
occurred a court decision which said that they have got to be
more comprehensive. The decision was arbitrary, and capricious.
So, how much did the court interpret the law? How much of
it otherwise, concerning EPA's actions, made sense from the
State of Montana's point of view prior to the court's decision.
And given the court decision interpreting the law, they
interpreted the 1972 Act, how do we get to there in a
responsible way?
Thank you.
Senator Crapo. Thank you, Senator. And, Governor, without
any further ado we will turn to you for your testimony.
STATEMENT OF HON. MARC RACICOT, GOVERNOR, STATE
OF MONTANA
Governor Racicot. Thank you, Mr. Chairman. It's a privilege
to be here in front of the committee, and particularly with
Montana's senior Senator here today, I'm delighted to have the
opportunity to testify.
Senator Baucus. I appreciate that. I feel pretty senior
sometimes. I guess I'm a senior citizen.
Governor Racicot. I said ``Senior Senator.''
Senator Baucus. It was my ears that heard senior citizen.
Governor Racicot. If I misspoke I extend my deepest
regrets.
Senator Baucus. You clearly did not misspeak. I misheard.
Governor Racicot. For the record my name is Marc Racicot
and I temporarily serve as the Governor of the State of Montana
and I do appreciate the invitation to share my thoughts
regarding the Clean Water Act and specifically the Total
Maximum Daily Load issues. As you know I have submitted written
testimony and I won't go over every word of that testimony. I'd
like to highlight a couple of provisions and I know you want to
have some dialog about this particular issue.
It is an issue that is of great importance to our State.
Both to our people and of course to the resources that we
jointly cherish in the State of Montana and all across the
country. We're pleased that the committee is taking an active
role in reviewing the Environmental Protection Agency proposed
revisions to agencies to the water quality regulations found at
40 CFR 130. And published in the Federal Register on August 23,
1999. Before I begin I want to mention to the subcommittee
members that I've also attached to my testimony the formal
comments that I submitted on behalf of the State of Montana to
EPA on the proposed rule.
Our State natural resource agencies all work together, that
was their charge, to analyze the proposed rule and to develop
consensus comments that are attached to my testimony. So they
reflect different disciplinary perspectives from the Department
of Environmental Quality, from the Department of Natural
Resources and Conservation and the Department of Fish, Wildlife
and Parks, and Department of Agriculture.
The State of Montana is very committed to achieving the
clean water goals set forth in section 303 of the Clean Water
Act. And this is especially demonstrated I believe through our
1997 passage of State legislation pertaining to Total Maximum
Daily Load processes.
Our TMDL amendments to the Montana Water Quality Act that
occurred in 1997 successfully addressed many of the same issues
that we're now focusing upon as a result of the EPA's proposed
rules. Our comprehensive State law establishes 303(d) listing
methodologies and criteria. It specifies a public involvement
in plan. It sets a 10-year schedule for statewide TMDL
development. It address TMDL implementation and monitoring and
it authorizes pollution offsets. As well our State TMDL program
funding appropriation provides new State revenues for
accelerated water and quality problem solving.
Indeed, we are currently achieving at the State level what
EPA hopes to accomplish nationally with the proposed rules.
EPA's presumptions that solutions to longstanding national TMDL
issues must be prescribed within the context of new Federal
regulations is at the core of Montana's concerns over the
proposals. We fear that the program changes envisioned by EPA
will add unnecessary and inappropriate specificity that will
ultimately hinder the success of our current program.
The proposed changes could seriously compromise our State
program goals and strategy, undermine recent intense
implementation efforts and public trust and reduce our overall
progress of achieving the water quality restoration goals of
the Federal Clean Water Act.
Mr. Chairman, I'd like to mention briefly the process
which led up to the enactment of our State law because I do
believe that there are some lessons that are good to share with
all who may be engaged in this process presently. And I must
confess that we are very proud of what we have accomplished to
date in the State of Montana.
We started a dialog late in 1996 between Montana natural
resource agencies, businesses and industries and conservation
groups to gauge interest in developing State TMDL legislation
which would address the concerns that are addressed by the
rule. A briefing paper was developed and distributed in a broad
range of interests were invited to participate on a work group
to draft legislation.
Over several weeks the group met regularly to revise drafts
of the bill and to try to achieve consensus on bill content.
While complete agreement was not achieved prior to the deadline
for submitting the bill, remarkable progress was made in coming
together on many of the issues and this effort paid off in
strong support for passage of the bill in both houses of
Montana's legislature and few amendments were ever offered
during the legislative process. House bill 536 was the piece of
legislation and it was passed into law in the State of Montana
and it became immediately affective with my signature on May 5,
1997.
Funding totaled nearly $1.4 million for the biennium and
that also was provided for by the Montana legislature. At the
heart of our program is the TMDL advisory council. The council
is made up of representatives from agriculture, industry,
environmental groups, State and Federal agencies and
recreationists. And the group provides input and advice to
State decisionmakers and professional staff and helps insure
that the development and implementation of measures to improve
water quality are truly grassroots approaches.
We believe that those landowners and users who are asked to
host and support on-the-ground measures should have a say in
their development. Although EPA's standard objective in
developing the proposed rules was to strengthening the
efficiency and effectiveness of the Clean Water Acts TMDL
program, the rule is too little to accomplish this objective.
Instead, the new regulations would add unnecessary complexity
to Montana's ability to develop TMDLs in a timely fashion. The
new regulations appear to focus on listkeeping and technical
reporting to EPA rather than effective assessment,
implementation and resolution of water quality problems. The
rules also create a regulatory framework that is inherently
inconsistent with section 303(d) of the Clean Water Act.
Specifically, the rules create a presumption that a States
entire TMDL program, including its process and methodology of
identifying impaired waters, prioritizing those waters,
developing TMDLs for those waters and addressing non-point
sources in its TMDL process are all subject to EPA's approval.
In effect the rules provide EPA with a legal power over a
States entire TMDL program. This is not a power, in my view,
envisioned by Congress when it granted EPA a limited oversight
role to review a State's submission of lists and TMDLs under
section 303(d).
The State of Montana also objects to the imposition of
regulations establishing regulatory requirements over every
component of the States TMDL program when Congress has not
sanctioned that approach.
One of the primary drawbacks of EPA's proposed regulations
is that they impose numerous regulatory details to address
prior inefficiencies in TMDL development that have already been
addressed by many States. Montana has already accomplished what
EPA is attempting to achieve through the proposed rules.
Montana is already more than 2 years into the process of making
comprehensive changes to its 303(d) listing methodology and
creating a publicly supported approach to the development of
TMDLs.
We have a TMDL development schedule, new listing methods
and decision criteria, and a new publicly accessible data base
to support listing decisions, a new TMDL prioritization
process, and we've been working with local groups to ensure
that TMDLs would be implemented over the long term with
reasonable assurance.
Also, Montana's monitoring provisions require that after 5
years, TMDL plans will be evaluated to determine if the
implementing
organizations are making satisfactory process. And while we
recognize the need for consistent guidance to States and the
public
regarding TMDLs, the new regulations do not give those States
already implementing programs of their own, enough latitude to
determine appropriate management measures, especially for land
use related non-point source problems.
In its finalization of the rules, we believe the EPA has to
acknowledge that Montana and many other States have already
developed processes, methods and approaches to meet court,
legislative or State ordered demands for the existing TMDL
programs.
In many cases EPA's proposed new substantive rules might be
disruptive and expensive to States that have already developed
effective TMDL programs endorsed by stakeholders and elected
officials. This issue is at the forefront of Montana's concerns
with the rules as they're currently proposed.
The existing processes and approaches that meet court
decrees and/or provide positive and beneficial results should
not be compromised or superseded by these new rules. At the
same time States should be encouraged to be innovative in
developing new processes and approaches that achieve the
results envisioned by those rules in a more efficient manner.
And with those things in mind, the State of Montana would
encourage EPA to apply a functional equivalency test to State
TMDL programs prior to imposition of any new program
requirements. The test will provide a demonstration that a
State process, method or approach achieves the same desired
results intended to be achieved by the proposed rules.
Now numerous examples of these cases including how States
prioritize their lists, incentives that States have built into
their programs to achieve correction of impaired condition in
lieu of a TMDL, and a recognition of various approaches to
implementing TMDLs.
Frankly, Mr. Chairman, we strongly believe EPA must
recognize that one-size-does-not-fit-all and that TMDL rules
must remain open to alternative methods of doing business that
achieve comparable results. We're also seriously concerned
about the fiscal implications of the proposed changes. By all
indications the proposed program and it's increased scientific
rigor and reporting burden would cost substantially more to
administer while achieving fewer water quality improvement
results.
The State of Montana operates its current TMDL program on a
limited budget, but achieves a high degree of efficiency
through local leadership and volunteerism to be quite honest.
And by minimizing administrative overhead cost, increasing
program administrative cost would translate directly to less
money available for local on the ground implementation of water
quality improvement measures.
We are very concerned that the new TMDL rules would result
in significant additional costs to States over the current law.
According to EPA's water quality work load model, Montana
currently has minimal resources to run a TMDL program under the
rules as they now stand. Currently our Department of
Environmental Quality has 13 full-time employees committed to
water quality standards activities. Including monitoring,
reporting and TMDL activities with a budget of about $1.35
million. EPA's water quality work load model, the draft module
2 when calibrated to Montana's perimeters suggested 58 full-
time employees and a total budget of $4.9 million would be
needed to implement TMDLs on a time-line under the rules as
they now stand.
It follows then that the new and more complicated rules
proposed by EPA would set back the staff and then slowly and
unduly slow down the TMDL process unless additional resources
were obtained. In addition to that the new rules undo much of
the work and fiscal investments already put in to Montana's
current TMDL program. By our most conservative estimate DEQ
would need at least twice the current resources to comply with
the proposed rules in a timely fashion.
Our best guess is that between 22 and 24 additional full-
time employees, over the 13.5 currently employed, would be
needed to comply with the new TMDL rules along with several
tens of thousands of dollars in new equipment.
For the new rules to be successful in achieving national
clean water goals they have to accommodate a degree of
flexibility on the part of the States that are charged with
primary responsibility to implement the program. They have to
acknowledge that individual States are in the best position to
formulate the most effective and efficient water quality
improvement strategies for their regions.
We just believe, Mr. Chairman, that the top-down
prescriptive complexion of the rules is contrary to the Clean
Water Act and contrary to Montana's grassroots approach to TMDL
development. Last, but no less important, EPA, we believe, has
to remain sensitive to the need for additional State resources
if national clean water goals are going to be further expanded.
And so we have submitted to you along with our written
testimony a number of
recommendations concerning the proposed rule with the specific
considerations that we hope that you will ultimately be able to
recommend and ultimately that we hope to see implemented within
the policy for TMDL enforcement across the United States of
America.
Thank you, Mr. Chairman very much, and I stand ready to
submit myself to cross examination.
Senator Crapo. Thank you very much, Governor.
Before we begin let me clarify, is it going to fit with
your schedule and time lines if we have you finished here by a
quarter to 2?
Governor Racicot. Yes, Sir.
Senator Crapo. All right, that gives us 5 minutes each.
Governor Racicot. Actually, Mr. Chairman, I'm probably OK
if I'm out of here by 5 or 10 after. I'd probably be OK.
Senator Crapo. OK. Well, you shouldn't have said that. Now
you're going to get really cross-examined.
Governor, I just want to go over my understanding of your
testimony and be sure that I understood you correctly. As I
reviewed your testimony and listened to you I understood you to
say that the proposed rule will, if implemented and if Montana
is required to comply with it, will not increase the
effectiveness of Montana's efforts to address water quality
standards. Is that correct?
Governor Racicot. Yes, Sir, that would be my testimony. We
believe that--we started out trying to exercise some foresight
and trying to demonstrate the kind of unique as well as a
sincere effort to make certain that we live within the
confines, the spirit and the letter of the law and so we set
out in 1996 to do that. We don't invest money easily in the
State of Montana. We don't have a lot of extra resources. So
for our legislature to not only endorse our program, and this
was a very conservative legislature, but we had the endorsement
of conservation groups and stock growers and agency officials
and all of those involved in the process, for them to endorse
the legislation in the first place and then to fund it at a
significant level, was a major accomplishment. And so we've
been proceeding with diligence and good faith to try and make
certain that we live within the expectations of the Clean Water
Act.
And we don't believe that the imposition of a hierarchical
structure that requires much more investment and time will lead
to results beyond those that we can achieve. And as a guarantee
of that, what we would suggest is that if the EPA doesn't find
that our program is a functional equivalent, then they could
clearly make those observations and provide authority or a
jurisdiction to proceed otherwise.
Senator Crapo. If you are not able to find the additional
resources that you describe that would be necessary to
implement this rule, won't you then end up having to divert
resources from the program that you have in place to the
implementation of the rule?
Governor Racicot. There's unquestionably no doubt about
that.
Senator Crapo. And if that were to happen, would that not
actually detract from your ability to have on-the-ground
effective water quality programs?
Governor Racicot. We believe it would impede and delay our
process substantially.
Senator Crapo. In other words unless Montana is able to
come up with 22 to 24 FTE's and I assume the dollars that go
along with that which is going to be $3 to $5 million, if I
understand your numbers right--am I in the ballpark there?
Governor Racicot. Yes, sir.
Senator Crapo. Unless you're able to come up with those
extra dollars, this proposed rule could actually drain
resources that would reduce the ability to address water
quality in Montana?
Governor Racicot. We believe that to be the case.
Senator Crapo. Let's get into those numbers just a little
bit more specifically. I know in your testimony you indicated I
think 58 FTE's and $4.9 million, but did that include what you
were already doing in the State efforts?
Governor Racicot. No. No, our extrapolation is that if we
were to calibrate the EPA proposed rule to our requirements in
the State of Montana, recognizing of course how large it is,
and with all the new complexities that would be associated with
rule enforcement, that, in fact, we would have to have that
much additional investment.
Senator Crapo. And you indicated and you have very well
explained the effort that Montana has gone through to modernize
and update its approach to TMDLs and to address the Clean Water
Act standards. Do you know whether other States have undergone
this same process or whether Montana is in a unique situation
and the other 49 States need the EPA to come in and do this?
Governor Racicot. I know that there are other States, Mr.
Chairman, but I could not list those for you. But I know that
there are other States in the same posture that the State of
Montana is in.
Senator Crapo. All right, thank you very much. I'm going to
forgo any further questions at this point and turn next to
Senator Wyden.
Senator Wyden. Thank you.
I think you've given excellent testimony. Governor, it
seems to me you essentially made most of the points that I'd
like to see in a three-part approach: one-stop shopping for
landowners so they can fulfil their Clean Water Act and
Endangered Species obligation at the same time; increased
funding for the practice used by the States; and best
management practices for non-point pollution. And more
flexibility in TMDL plans.
If I push as a member of this committee with my friends Max
Baucus and Mike Crapo, on a bipartisan basis, to offer these
three points as an alternative to the way EPA's doing business,
is that something that you think you could support?
Governor Racicot. Yes, Sir. I do, Senator Wyden.
Senator Wyden. I probably ought to quit while I'm ahead,
Mr. Chairman. I think the Governor's given excellent testimony.
Governor, as you know, in the West we particularly look to
you and our Governor John Kitzhaber for leadership in this
area. What we have seen--and the three of us were involved in
the effort on ESA--is that we've got to have a system that gets
away from this ``one-size-fits-all'' approach. What we're
trying to do with the Oregon Coho salmon plan, what you're
trying to do with ESA, alternatives, is to say, ``We're going
to get one of these decisions out of the Beltway and take them
3,000 miles from Washington, DC or 2,500, as it is I guess for
you and Max and maybe another few hundred for us and come up
with homegrown, locally driven solutions. So I really
appreciate the work that you're doing. I really see you and
Governor Kitzhaber of our State as the bipartisan innovators in
this area and I'm going to try to get together with Mike and
Max and really offer this three-part approach as an alternative
to what EPA is talking about in terms of TMDL, and we would
just like your input. And I thank you just for excellent
testimony and for all the leadership that you offer.
Thank you, Mr. Chairman.
Senator Crapo. Thank you, Senator.
Senator Baucus.
Senator Baucus. Thank you, Mr. Chairman.
Marc, first of all I want to thank you for your work on the
Endangered Species Act. I've been trumpeting reform for a long
time. And as you know this committee passed the reform bill not
long ago addressed by the Western Governors. I think you were
part of it then. Didn't make it to the floor, but we're still
trying.
Second, thank you for your work on the Good Samaritan
legislation that Senator Campbell and I are pushing. I think
that's going to make a dent too, it will help. Back to the
issue at hand, though.
This committee needs some guidance, frankly, as to what to
do about TMDLs. As you know various courts around the country--
I think 17 courts in all--have ruled that States work with EPA
in developing TMDLs does not pass muster under the Clean Water
Act.
And the same thing happened in our State. Judge Malloy said
that the State of Montana's 1977 statute in effect just didn't
pass muster. And so clearly States are trying to figure out
what to do. The EPA is trying to figure out what to do. The EPA
passed regulations, I think they issued them August of last
year, about the time of Judge Malloy's decision. There's a
certain sense, kind of two ships passed in the middle of the
night there. I appreciate our States' concerns, but the fact is
there is a Federal statute and courts have unanimously
interpreted the Federal statute about the same way, namely,
State efforts in conjunction with EPA on this issue have been
inadequate. So we're faced with a challenge here on how we're
going to deal with all this.
So I'm asking for some help. Your people have read Judge
Malloy's decision. I grant you I've looked at some of the
relevant parts; there's not a lot of guidance there as to what
passes muster in that court and what won't. And clearly the EPA
is trying to read these decisions to come up with its own. And
that's probably why EPA came up with its August 1999 proposed
rules. They're trying to do the best they can, as all States
are.
So, what more do you think States have to do to meet Judge
Malloy's decision in Montana? Is that about right, or do you
think the courts are too stringent and we have to change the
law? I just want to see some guidance as to what to do here. I
can also then talk to EPA if the law doesn't have to be changed
then I need some guidance in talking to EPA as to what the
proper rule should be.
Governor Racicot. Well, Senator Baucus, I would agree with
you that there is a substantial challenge to interpreting the
courts' decisions with absolute precision and to understand
precisely the directions they have been given because I don't
think that there were precise directions given on how to go
about accomplishing the objective. We believe, of course, that
if there was a substantial equivalency test that were applied
to the law or the rule, that said that any State's program is
the equivalent of the EPA rule would not have to engage in the
processes that are specified by EPA. In other words, if you
have primacy in relationship to this particular issue and your
program is substantially equivalent to the EPA rule in terms of
achieving the required results, just as long as you get to
those results and not necessarily through the same precise
formula, that EPA might specify with its rules, that that would
be a great benefit and assistance.
In addition to that, we believe within the Western
Governors Association that through a discussion between the
Congress and the Western Governors we could craft the kind of
counsel and recommendation to this committee that would be of
assistance to the committee in crafting a final legislative
proposal if in fact you chose to move in that direction.
Senator Baucus. But presumably ``substantially equivalent''
would be stronger than Montana law because the judge overruled
the Montana law. He said the Montana law did not comply with
the Clean Water Act. EPA is also looking at other court
decisions and trying to figure out what to do. You're
suggesting that whatever it is, States should be able to enact
something that is substantially equivalent. That means that it
would have to be stronger than current Montana law.
Governor Racicot. In some respects. We believe it's
obviously a great deal more specific in terms of desired and
required results. And we believe that we can comply with those
required results as long as we don't end up in a process that
is so expensive and so time-consuming that we lose the ability
to marshall all of those assets that we've had in the process
from the beginning.
Senator Baucus. It's a question we're going to have to
explore with the EPA when they come up as later witnesses. But
to me this is the crux of the matter.
Governor Racicot. I would agree. I think that's right.
Senator Baucus. Thank you.
Senator Crapo. Thank you, Senator.
Governor, just another couple of quick questions.
EPA's budget includes $95 million for addressing non-point
source pollution, including establishing and implementing this
TMDL rule and dealing with BMPs and CAFOs and that amounts to
about $2 million per State. My question to you is, if you have
an opinion on that, is that sufficient for the States to carry
out all of these programs?
Governor Racicot. No. This is a massive new assignment for
the States and that is not going to be sufficient for all of
the States to undertake all the requirements that are
specified.
Senator Crapo. Thank you. And just one other question. I
believe in your testimony you also indicated that you had
concern with what appears to be the presumption behind the
proposed TMDL rule, that the EPA has the ability to subject the
States to its approval for their implementation and basically
establish oversight over the States in their implementation of
the TMDL requirements in the Clean Water Act. Could you
elaborate on that a little bit?
Governor Racicot. Well, it's just my belief that in the
Clean Water Act, Congress hasn't authorized that kind of role
to be played; and if that's the case, it needs to be
specifically and precisely accomplished by Congress.
Senator Crapo. Thank you very much.
Senator Baucus. One question.
Senator Crapo. Senator Baucus.
Senator Baucus. Comment, please, on the Administration's
proposal to appeal the current exclusion for silviculture
activities which potentially treat many forestry practices as
point sources rather than non-point sources, what effect is
that going to have?
Governor Racicot. Senator, I'm not familiar with that. I'm
not certain that I can address that.
Senator Baucus. I think it's not a good idea what EPA did.
Governor Racicot. I'll accept that as my work assignment
and report back to you.
Senator Baucus. Good, thanks.
Senator Crapo. Senator Wyden, do you have anything further?
Senator Wyden. No, I just think that what the three of us
are saying on a bipartisan basis is that we're not just going
to say EPA is wrong, but we're going to work with Governors and
innovators like you to come up with an alternative and that's
why I wanted to suggest this three-part approach. And I think
our colleagues may have other ideas and we're going to get
after it. I mean, it's one thing to say you disagree with
something, it's another in effect to put up an alternative.
Governor Racicot. We would agree. We did not believe the
EPA is just flat wrong in every respect either. That's why we
assumed the responsibility before they even issued the order.
Senator Crapo. Thank you very much, and Governor, we are
very pleased with your testimony. In addition to identifying
the concerns you have proposed solutions and we appreciate that
very much. I echo the comments that have already been made with
regard to your work on the Endangered Species Act. As you know,
we've talked and we're going to be continuing that effort to
try to bring some common sense into this process of trying to
address environmental concerns in a way that helps us move
forward rather than to engage in conflict. And with that we're
not going to take you up on your gracious offer to keep you
here all the way until 2 o'clock or a little later and we will
excuse you, you can get on your way back to your home.
Governor Racicot. Thank you, Mr. Chairman, very much.
Senator Crapo. Thank you.
Our next panel will be Mr. Chuck Fox, the Assistant
Administrator for Water at the Environmental Protection Agency.
Mr. Fox.
STATEMENT OF J. CHARLES FOX, ASSISTANT ADMINISTRATOR FOR WATER,
ENVIRONMENTAL PROTECTION AGENCY
Mr. Fox. Mr. Chairman, it's a pleasure to be here and I see
that my presence has brought two other distinguished Senators.
It's a pleasure that they joined us here.
Senator Crapo. Bringing in the big guns I guess.
Mr. Fox. Well, I do look forward to briefly summarizing my
written statement. You raised a number of issues in your
opening statement that I'd be happy to talk some more about in
the questions and answers. I think we all know that we have
made tremendous progress since the Clean Water Act was first
passed by Congress in 1972, and by this committee, I would add.
Our water is much cleaner today thanks to a team effort by
Federal, State and local governments working with industries,
and individual stewards of the land, such as farmers, ranchers
and forest managers.
But that does not mean that all the problems have been
solved. An overwhelming majority of Americans--218 million--
still live within 10 miles of a polluted water body. Over
20,000 water bodies do not meet water quality standards. We
still have major work to do. And as you know the Clean Water
Act provides us with a cooperative intergovernmental process
for identifying and solving remaining water pollution problems,
called the TMDL program or the Total Maximum Daily Load. A TMDL
is a pollution budget for a specific river, lake or stream. It
is a quantitative estimate of what it takes to achieve water
quality goals. It is a program that is led by the States and
communities because they're in the best position to make cost-
effective common sense decisions about how to best achieve
their water quality goals.
Recent history suggests that the quantitative approach to
defining a problem and the bottoms up approach involving local
decisionmaking will, in fact, achieve significant results. In
the late 1970's the Great Lakes were in tremendous danger. In
response the United States and Canada developed quantitative
pollution targets just like the TMDL program.
These numeric targets were included in the Great Lakes
Water Quality agreement that was signed by the United States
and Canada in the 1970's. That agreement laid the foundation
for the restoration of Lake Erie and all of the Great Lakes.
Similar efforts form the foundation of the Chesapeake Bay and
Long Island Sound restoration efforts. In fact, the three
Chesapeake Bay States are having tremendous success using
numeric targets to guide a host of voluntary and regulatory
pollution control programs.
The existing TMDL program regulations were first developed
during the Reagan administration and they lay out the basic
process for implementing the TMDL program. As you know EPA has
proposed revisions to the existing program requirements. EPA's
new proposal was many years in development. Three years ago we
convened an advisory committee to take an overall look at the
program and to recommend needed changes. It was a diverse
group. They didn't agree on everything, but their
recommendations formed the basis for many of the changes to the
program proposed by EPA this summer.
The public comment period recently closed and we are now in
the process of reviewing comments and finalizing the rule. You
can trust that we will do our best to incorporate many of the
ideas that we have heard, including some of those we've heard
today so that we can produce a program that best serves the
interests of the American public.
I look forward to discussing with you and members of the
committee these changes in more detail. But let me say this,
the proposal was intended to honor and reflect what makes this
program so affective to begin with. Namely, it is one led by
States and communities from the ground up to solve water
quality programs in common sense ways. If we did not succeed in
achieving that goal with our proposal then we need to change it
as we finalize it.
Let me tell you briefly what the proposal does not do
because I know this has been the attention of a good deal of
criticism. The proposal does not require a Clean Water Act
permit for non-point sources of pollution. It does not require
Clean Water Act permit for the vast majority of silvicultural
discharges. It does not create a program out of Washington, DC.
Indeed, the program allows States to set their own water
quality goals and develop their own strategies to meet them.
On the issue of funding, which was a subject of good deal
discussion before me in our fiscal year 2001 budget, the
Administration has provided significant new funds to help the
States meet these new challenges. We have increased the States
grants by $45 million for TMDL development. We've also
increased non-point source grants by $50 million. This
compliments additional funds that have been provided by other
Federal agencies, such as the Department of Agriculture.
In closing, Mr. Chairman, the Clean Water Act set an
ambitious goal of fishable and swimmable waters for all
Americans. Some thought it impossible, but now it is within our
reach. Together we've accomplished so much. We have the
resources. We know what works, now let's finish the job.
Thank you very much.
Senator Crapo. Thank you very much, Mr. Fox.
I'm going to turn to the chairman of the committee for the
first round of questions.
OPENING STATEMENT OF HON. BOB SMITH, U.S. SENATOR FROM THE
STATE OF NEW HAMPSHIRE
Senator Smith. Thank you, Mr. Chairman.
[The prepared statement of Senator Smith follows:]
Statement of Hon. Bob Smith, U.S. Senator from the State of
New Hampshire
Good afternoon. I would like to thank Senator Crapo for his
leadership on this issue and for holding today's hearing on the
proposed rulemaking by the Environmental Protection Agency on Total
Maximum Daily Loads (TMDLs).
I believe that I'm not overstating it when I say that this may be
one of the most significant environmental regulations that this
committee will address in the next decade. It is certainly an issue of
vital importance to New Hampshire.
New Hampshire is referred to by many as the ``Mother of Rivers,''
because five of the great streams of New England originate in its
granite hills. We have 1300 lakes and 40,000 miles of rivers and
streams that provide year-round fishing and recreation in scenic
surroundings, as well as power for the State's many industries. New
Hampshire also has about 1,600 certified tree farms covering
approximately 850,000 acres of land.
It is very important to me as a Senator of New Hampshire and
Chairman of this committee that we make sure we protect both our
natural resources for future generations and our businesses with sound
scientifically based environmental programs.
The Clean Water Act has been one of our most successful
environmental statutes. Over the last 28 years, we have successfully
identified and cleaned up many of the waters across the United States.
We have achieved that partially through Federal regulations and
permits, but also through State programs and partnerships with
industries and private land owners. We've made a lot of progress, but
that doesn't mean that we can't do more, particularly in the area of
nonpoint source pollution. I believe, however, that we achieve better
results if we work with the States and landowners, instead of against
them, as EPA has done.
There are three main concerns that I have with this proposal.
First, we have seen great success with State and voluntary
programs. We need to make sure that this proposal will in no way impede
on their progress or create any unnecessary duplication.
Second, we must make sure that any TMDL program is based on sound
science. The GAO recently released a summary of a report that
demonstrates that States don't have the data they need to implement
TMDLs. In fact, only 6 of 50 States said they have a majority of the
data needed to fully assess their waters. Without quality data we
cannot implement this program.
Third, everyone other than EPA, predicts this proposal will have a
massive financial and resource impact on the States and private sector.
We need to have a firm understanding of the cost of this proposal prior
to implementation.
And finally, a procedural point. EPA received over 30,000 public
comments on its proposed rule. In addition, several House and Senate
committees are holding hearings on this issue to better understand the
proposal. It is my hope that EPA will consider seriously the written
comments of all stakeholders and the concerns of the various
individuals who are testifying at these hearings before it finalizes
any rule. This is too important an issue to rush to finalize a rule for
no reason.
I look forward to hearing from all the witnesses and hopefully we
can shed some light on what many feel to be a very confusing and
troublesome proposed rule.
Senator Smith. Mr. Fox, your comments in your opening
remarks regarding TMDLs were very consistent with what
Administrator Browner said a few days ago sitting in the same
chair, that EPA would give credit to those States that have
developed best management practices for activities such as
logging. Now, my concern though is that notwithstanding your
statements and Administrator Browner's statement, there is a
conflicting message out there in the field and I pointed that
out to Administrator Browner as well. Let me give you an
example of that. A quote from Marie Eri, the former Chief of
Northern California section of EPA's Region IX:
We do expect implementation of non-point source TMDLs. Our
regulations require the California Water Quality Control Board
at some point to take that Federal TMDL and incorporate it into
your basin plan. Now, what we do to get you to do that through
all sorts of nasty little tricks with grants and such, I don't
know. But it's not a place I want to go and I'm sure it's not a
place you want to go.
My question is: What's the policy? [Indicating document] Is
it this policy, or is it what you're saying here at the table?
And this is a real problem with me, because my credibility as
the chairman of the full committee I speak for myself, but you
can't operate in good faith with that kind of inconsistency. I
mean the reality is that people, the foresters and the farmers,
and those people who deal with non-point source point pollution
as well as the States, when they hear that--and that's what
they are hearing--it's pretty difficult to understand just what
is going on. That's the source of the problem.
Mr. Fox. Well, Senator, I don't know that individual, never
met that individual. I can tell you----
Senator Smith. It doesn't matter if you know them or not.
Mr. Fox. But my point is what's in the proposal. I will
stand by my testimony today and that of the Administrator. This
is a proposal that does not include any new regulations for
non-point source pollution. It is a program that we have
designed to be led by State and local governments so that they
can decide how to best solve these problems.
Is it true that non-point source pollution is a problem in
this country, that we need to do a better job of controlling
it? Absolutely.
Senator Smith. Sure, I agree with you.
Mr. Fox. But the intent of our proposal is to give
deference to State and local governments and their proposals to
solve this.
Senator Smith. But let me ask you specifically, does EPA
intend to require States to incorporate TMDLs into their plans
and apply them to forestry activities, yes or no?
Mr. Fox. We expect that the States will include in their
TMDLs programs to combat non-point source pollution.
Senator Smith. Well, are you going to require them to
incorporate TMDLs into their plans and apply them to forestry
activities?
Mr. Fox. We won't require anything of that specific nature
in a TMDL, although we will ask ultimate approval to do this
TMDL and the implementation plan achieve the water quality
goals. If the State wants to do this all from point sources,
they want to do it from agricultural sources, if they want to
do it from silviculture sources, that's up to the State and the
community. Our fundamental test is, will this achieve the water
quality goals? We tried not to prescribe in any way, shape or
form how they achieve that.
Senator Smith. I find myself agreeing with what you're
saying, but it's inconsistent with what's happening in the
field. The States make----
Mr. Fox. It is certainly inconsistent with a lot of the
rhetoric I've heard and some of the fact sheets I've seen going
around Capitol Hill, but it is not inconsistent with what's in
our proposal, sir.
Senator Smith. Thank you, Mr. Chairman.
Senator Crapo. Thank you.
Senator Baucus.
Senator Baucus. Mr. Fox, could you comment on the issue I
raised with Governor Racicot? Am I correct in believing that
courts generally--I think I'm told 17--ruled that States have
not complied with the Water Act with respect to TMDLs? Then the
EPA issued regulations the end of last year. What do you think
it takes to comply with the Act according to the courts'
interpretation of the Act?
Mr. Fox. This is actually the source of a lot of confusion
and I appreciate the chance to clarify this. And it gets into
some of the cost issues that have been raised. The TMDL
provision was created in 1972. Our regulations are simply
revising the existing regulations. The base regulations, in
fact, came out of the Reagan administration. It was the Bush
administration that revised those even more. There is a base
TMDL program that is the law of the land. The courts are
currently interpreting the existing regulations. The States are
facing very significant resource implications even implementing
the existing regulations, much less some of the additional
issues in our proposal that we can talk some more about.
The courts are typically finding that the States' TMDL
efforts to date are inadequate based on the 1972 Clean Water
Act. In general this is the challenge we face in water quality
today. For so many of our waters in this country, we've done a
good job of controlling the obvious sources of pollution, but
we're not going to solve the remaining problems until we start
looking at these less obvious sources--until we start making
pollution budgets on a watershed-by-watershed basis. It's going
to take a lot of time. Our proposal allows up to 15 years for
TMDL development. These won't be solved overnight. But it's
really, I think, a commonsense way of starting to solve this
problem for the future.
Senator Baucus. Now, is EPA asking for a reconsideration of
at least the decision by the Federal District Court Judge in
Montana on this issue?
Mr. Fox. I'm not aware of that. I will check into that.
Generally, these are typically schedule decisions where the
court finds that EPA and the States have failed to develop
TMDLs on a certain schedule and we get a court-ordered schedule
that we have to develop a certain number of TMDLs in a certain
time. Frankly, in most cases it's fairly obvious that the State
hasn't met its obligation and we all have to just get together
and figure out how to do this in a relatively quick period of
time.
Senator Baucus. Right. But you heard Governor Racicot's
testimony and the comments, certainly, of Senator Wyden, so how
do you solve this?
Mr. Fox. Resources are, I think, a very key part of the
equation. And I would be the first to admit that this is a
fairly new investment that's going to be required in State
programs and in Federal programs, which is why we included a
fairly sizable increase in our budget for the TMDL program. I
should say that the State-based Federal grant program is only
$115 million. We increased this by an additional $45 million
specifically for implementing TMDLs and I think that's a
reflection of our understanding that the States are going to
have to spend more money to do this.
We've also provided more flexibility in the section 319
program so that States can use some of those dollars to help
with TMDLs. I can put together the overall figures, I don't
have them here, but overall we are clearly making available a
sizable new amount of money, more than was suggested earlier,
available to States to solve this problem.
Is it going to be enough? Well, the best analysis we have
right now suggests it's going to put a good dent in the
program.
Senator Baucus. Besides the budget resource issue though,
are we going to mesh the gears here?
Mr. Fox. I think that some of the issues that you face now
out West with the merging of the Endangered Species Act and the
TMDL program are going to be very difficult. I couldn't agree
more that the goal that Senator Wyden articulated is exactly
the goal we want to have. That's simply good government, that
these two programs work well together and that we can give
landowners the kind of certainty that the decisions they are
making are good for TMDLs and good for endangered species.
Senator Baucus. I think we've gotten the goal, but how do
we get there?
Mr. Fox. That's very difficult on the endangered species.
They are----
Senator Baucus. I'm talking here on the TMDL right now. How
do we get to conformance with the Clean Water Act?
Mr. Fox. My hope is that we will be able to go through many
of the public comments that we've heard, resolve some of the
inconsistencies in places where people think things need to be
clarified, make some changes where that's warranted and produce
a product that is, in fact, in the best interest of the
American public and it is reflective of many of the comments
that we've heard over the past few years.
Senator Baucus. Could you address the silviculture issue?
It seems to me that EPA--I question EPA's legal authority to
repeal that exclusion.
Mr. Fox. First, I would like to say that forestry
activities in general can be very good for water quality if
they are properly done. It is also fair to say that poor forest
management practices can, in fact, create very significant
water quality problems.
What we tried to do with our proposal was in our opinion,
obviously, consistent with the law and I understand that
there's a staff draft of materials from this committee that
suggests or raises questions about that. We will continue to
work with you and your staff to explain why we think we have
the authority to do what we are doing.
I hope we can convince you. We may or may not succeed in
that. But basically in the 1987 amendments to the Clean Water
Act this committee articulated a very clear position on storm
water from activities like silviculture that create water
quality problems. That's the part of the law that we are using
to give us that authority.
Senator Baucus. Yes, that's pretty weak, storm water. I
mean, silviculture practices are a lot different from storm
water. And that's the basis of--that's the main problem with
that analysis, that it is based on 1987 storm water example.
Mr. Fox. That's correct.
Senator Baucus. I frankly believe that's pretty weak. Have
you visited any of these sites?
Mr. Fox. Sure. Well not in Montana, but I have in other
States, yes.
Senator Baucus. What's your impression?
Mr. Fox. That a very well-operated silviculture operation
can, in fact, have very beneficial effects on water quality. If
it's not, I'll tell you, I've seen streams destroyed because of
it.
Senator Baucus. I'm not addressing that issue. I think we
all agree with that. I'm just asking whether it's a point
source or non-point source of activity, that's the question
here. We have to solve this problem, I grant you, but I mean,
to treat silviculture practices under the TMDLs is, I think,
wrong.
One final question. What lessons are there with the budget
concept on the Clean Air Act and SIPs? Is that a fair analogy
or not?
Mr. Fox. In some ways it is a fair analogy. What the TMDL
is at its core is trying to access the overall amount of
pollution that a watershed can sustain. And can we then
allocate those pollution loads, not unlike the way it is done
in an air context of looking at mobile sources, stationary
sources, and trying to figure out what is our ultimate
environmental and public health endpoint.
Hopefully you can make those decisions cost-effective. And
you know that taking a pound of pollution from a point source
might be more expensive than getting it from a non-point source
and you can have local governments making those kinds of
decisions.
Senator Baucus. I urge you very strongly to try to find
solutions here that do kind of take things more to a local
level. Times have changed. The quality of personnel in States
is much better than what it may have been in some States 30 or
40 years ago, huge difference.
Second, they know all the problems. And they know the
solutions. And people living in all our States want to do
what's right. They live there. They want clean water. They want
clean air. And in fact, it's more important as years go by; and
beyond that, it's going to have credibility if it's a local
solution. Beyond that, the more we have top-down management,
the more nothing happens in a certain sense because the
national groups have ostracized it, in some respects to
increase their membership to have something to talk about and
shout about and so forth. Most people locally are less
concerned about the shouting; they're more concerned about the
solutions. They do want solutions. So I strongly urge you to
think harder about finding ways to enable people locally to
find ways to abide by the Clean Water Act, whether it's TMDLs
or point, non-point or whatnot.
If they're not doing it right someplace, then modern
communications technology should be used so people get to know
about it. And they're going to exert some pressure if the
people are locally upset about what's going on. But the new
paradigm is to rely more on local decisions.
Mr. Fox. Well, I would say unequivocally that if this
program is run by EPA, if EPA is doing TMDLs, we are failing.
And it's that simple. I couldn't agree with you more. This has
to be done by State and local governments if it's going to
work.
Senator Baucus. Let's just get out there and I know I'm
taking too much time. Just one very small example here to give
you real credit.
In Montana, unfortunately, we've found a lot of people who
recently worked in mines who had asbestosis or mesothelioma-
related diseases. It's a nightmare, an absolute nightmare. And
I've asked EPA to send some personnel, and EPA has. And also
out of Atlanta, the group that's affiliated--Cliff Clean Up.
And let me tell you the people in Libby, Montana are very happy
with what EPA is doing. You've got a guy there named Paul
Perinoy, something like that. One hell of a guy. People think
he's the greatest thing and it's because he's working so hard
to help the people of Libby find out where the hot spots are,
if there are any--air, water and ground--of asbestosis, and
it's a local solution. He's working with people to find out how
they can get--and it's wonderful, it's working. And I urge you
to give him a promotion.
Mr. Fox. Or maybe get him to talk to Senator Smith's
employees.
Senator Baucus. Send him to New Hampshire or something, but
I tell you, you've got to clone this guy. He's doing one heck
of a job.
Mr. Fox. OK, thank you.
Senator Baucus. It's an approach that is working, and it's
local.
Mr. Fox. Thank you.
Senator Crapo. Thank you very much.
I notice the vote was just called; however, Senator Thomas
has been patiently waiting.
Senator Thomas.
Senator Baucus. I apologize.
Senator Crapo. We'll give you some time to ask your
questions before we break.
OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE
STATE OF WYOMING
Senator Thomas. I'll be brief. We've been through this
several times. This is not the first time Administrator Browner
was here. I was over to the Agriculture Committee last week on
the same thing, on this rule, on TMDLs. When she was there she
admitted the proposed rule is very complex and caused much
confusion. She further indicated the Agency had not adequately
explained the proposal. But she went on to say that they're
unwilling to pull it back and do anything different about it.
How do you explain that?
Mr. Fox. This proposal has been literally many, many years
in the making. We can all question whether or not there's been
adequate public involvement. I respectfully think we have done
a pretty darn good job on that. And I think frankly the
Administrator expressed the view, which I obviously feel, that
the time has come to finalize this. It's going to mean great
benefits to the people of this country and I don't think that's
something----
Senator Thomas. Well, that's not shared by everyone.
Mr. Fox. I understand that.
Senator Thomas. If you understand. And other people do have
the opportunity to have input into what we do in this
government, I hope.
Mr. Fox. Absolutely, Sir.
Senator Thomas. Are you going recognize the functionality
equivalent if the States are allowed to utilize a system that
has produced results?
Mr. Fox. This program, I would argue, is based on the
concept of functional equivalency. We said clearly throughout
this proposal that if a State has a better way of getting to
that end point, that is absolutely OK. Our whole goal with this
proposal has been to let the State and local governments
determine how to achieve their water quality standards. I don't
know how to get more functionally equivalent than that.
Senator Thomas. Why do the State administrators then talk
about the amount of money they're going to have to spend in
order to meet your requirements?
Mr. Fox. I think that's a very real issue. And I think it's
going to require new investments from the States as well as
from us at the Federal level. We have provided some more funds
in our budget for the States. We have provided more funds in
our budget for us. We can have a debate whether that's adequate
or not. We are looking, I should add, Senator, at a 15-year
timeframe. We don't have to do all these TMDLs next year. This
really is a schedule over the next 15 years.
Senator Thomas. Wyoming has implemented a 5-year
comprehensive monitoring plan. Are they going to be allowed to
continue to do that?
Mr. Fox. There's nothing in this proposal to my knowledge
that would in any way reject a State monitoring program. I
don't know about EPA's approval of your State, but I can look
into that and get back to you.
Senator Thomas. OK, I'd appreciate that. Well, I guess you
need to understand that we keep hearing these things. We hear
from you how it's going to be up to the States to do it, all we
do is measure the results. But that isn't what people think is
happening on the ground. And I don't know how long we can have
a different story here than we hear at home.
Mr. Fox. One of the areas that I think is the source of
this disagreement, if I might--and it's always hard to speak
for somebody else--but we have laid this out and as I was
telling Senator Baucus to have it be led by State and local
governments. However, the statute is very clear that if for
whatever reason the State and local governments fail to do X, Y
or Z, then EPA has an obligation under the law passed by this
Congress in 1972 to do a TMDL for a State. We have included in
this proposal what we consider last resort backstop type
proposals so that EPA would have to take some action in the
case of a State failure.
Senator Thomas. You're talking about a statute that lays
out the rules for a non-point source?
Mr. Fox. No, I'm talking about the statute that lays out
the rules for TMDLs. It was included in, as I said in that 1972
Act.
Senator Thomas. Is there great dispute over whether you
even have statutory authority to deal with non-point source?
Mr. Fox. I think that's a separate question and I would be
the first to say that the Agency has no authority to issue
permits for non-point sources.
Senator Thomas. That's what TMDLs are all about, isn't it?
Mr. Fox. I would respectfully disagree. A TMDL is about
establishing a load allocation for any watershed.
Senator Thomas. I understand. But if you have point source
and you've been able to deal with that in another way, when you
have non-point source that's really what puts it into effect,
isn't it? You haven't been using them for 15 years, since 1972,
why are you just starting now if you didn't think it was a
different, new approach?
Mr. Fox. Well, again we're not starting anything here,
Senator, this has been going on for some time. It was the
Reagan administration that had the first regulations on this.
Senator Thomas. Well, I don't agree with you, but go ahead.
We'll have to somehow see if we can't get together on how
people perceive what's going on here. You guys keep coming up
here and talking about how the States are free to do what they
want to; come with us to the States. They don't think so. Come
with us to the conservation district that filed suit on this.
Mr. Fox. Yes, we have received a lawsuit, not on this
subject, but on another subject from the Wyoming conservation
district, that is true.
Senator Thomas. I know you have. Why do you suppose that
is? If what you're saying is true, why would they file suit?
Mr. Fox. They filed a lawsuit on the Clean Water Action
plan from the President, that--and I don't remember all their
allegations, but I think it was basically that the Clean Water
Action plan did not comply with NEPA. We have, as I've told
you, Senator, been able to get grants from the Clean Water
Action plan to 49 States in this country. There's one State
where we haven't been able to do that and I'm going to continue
to pledge to work with you to try and find a way to get it in
Wyoming. I don't have a good answer for why it's happened.
Senator Thomas. You can get it if we do exactly what you
tell us to do.
Mr. Fox. We found ways in 49 States to implement this
consistently.
Senator Thomas. I hope you understand that what you say is
nice and fine, but everyone doesn't accept that as being what's
doing on the ground.
Mr. Fox. OK.
Senator Thomas. Thank you, Mr. Chairman.
Senator Crapo. Thank you very much, we are getting to the
point where all of us are going to have to go vote now and
ordinarily we would try to stagger this, but we're going to
have three votes in a row, and so I apologize that this is
going to take at least a half hour and possibly 45 minutes for
us to get these three votes finished. So Mr. Fox, but we're not
finished with you yet. I want to come back and ask my
questions, so I would recess the committee at this time. Thank
you.
[Recess.]
Senator Crapo [resuming the chair]. The third vote was a
voice vote and so we were able to get back here a little more
quickly than we thought. I don't know how many of the other
Senators will make it back or for how long because there are a
lot of other things going on this afternoon, but then that just
gives me more time to ask my questions so it's all right with
me.
Mr. Fox, one of the issues that I wanted to go into with
you relates to this question of jurisdiction over TMDLs, excuse
me, over non-point sources with regard to TMDL management. Now,
I know that you've been saying that the Agency is not asserting
jurisdiction over non-point sources. In fact, I think that what
you said was that Clean Water Act permits for non-point source
activities are not required. And that may or may not be the
same as saying that the Agency is not asserting jurisdiction
over non-point source pollution. Can you address that question
for me? Is the Agency in any way asserting jurisdiction over
non-point source pollution under the Clean Water Act, other
than section 319?
Mr. Fox. By jurisdiction I'm assuming you mean in the very
broadest context.
Senator Crapo. I do.
Mr. Fox. In that context I think it is fair to say that we
expect that a TMDL submitted by the States would include
allocations for non-point sources where the State determines
that appropriate, that a State needs to identify waters that
are impaired by non-point sources as part of its submissions.
But what I was saying before is that nothing in the Clean Water
Act and nothing in our TMDL rule would require a State to issue
a permit, take an enforcement action or do anything like that
over non-point sources. Yes, we would require that States
submit lists of waters that are impaired by non-point source
pollution.
Senator Crapo. Well, that was going to be my next question,
because if the Agency is not requiring the States to issue
permits or to take any specific action with regard to non-point
source pollution, why would the Agency require the States to
list bodies of water that are only now reaching non-attainment
because of non-point source pollution?
Mr. Fox. Two quick answers to that. First, we believe
that's what the law requires and second we believe that it's
only common sense that if we are going to try and achieve our
water quality goals in this country, that we need to take into
account point sources as well as non-point sources.
Senator Crapo. Well, let me go through both of those
reasons. Let me take them in reverse order. If one were to
agree--and I don't disagree with you that it's good policy to
try to address the quality of the waters from all perspectives,
that's a very valid policy objective--but frankly it's not the
prerogative of the Agency to determine policy. That's the
prerogative of Congress and the President. And if Congress and
the President have not given the Agency the authority to make
those policy decisions, where does the Agency come off assuming
that authority and saying, ``Well, it's a good thing to do, so
therefore we ought to do it?''
Mr. Fox. Again, sir, I wouldn't disagree with your
characterization, you are correct. We certainly cannot do
things that aren't authorized by statute, but I spent a good
deal of time on this with our General Counsel and I firmly
believe that the statute does give us the authority to list
waters that are impaired by non-point source pollution.
I know that there are some out there that disagree with
that; this is the subject of some litigation. But the
Government has filed very clear positions on this in various
court cases that obviously are supported by the Department of
Justice as well.
Senator Crapo. Well, that was your first point so could you
clarify that to me, because I think your first point was that
the statute does give the Agency the authority to require at
least a listing of non-point source water pollution. What is
that statutory authority?
Mr. Fox. It's under section 303(d) of the Clean Water Act
and I could certainly have our General Counsel submit for you
more information on that. The Government did file a brief on
this very point in a case in California recently that probably
articulates it in very exhaustive arguments.
Senator Crapo. I would appreciate that. And not only that
brief, but any other material you have that specifically
identifies the statutory authority to require States to list
non-point sources. And again I don't know that it's necessarily
because it's bad policy, it's just a question of whether the
Agency has the authority to assert that jurisdiction.
Mr. Fox. OK.
Senator Crapo. Assuming that you are correct there, and I
don't agree with that, but assuming that you are correct, do I
understand you to be saying that although the Agency has
authority to require States to list non-point source pollution
waters, that the EPA does not have any authority under the Act
to require the States to do anything about it?
Mr. Fox. I would say that slightly differently. The Act is
very clear that the States need to develop TMDLs to achieve
water quality standards. And the States need to implement
programs to achieve water quality standards. And where the
States fail to do that, EPA must do that. Obviously, if a State
does it under State law, they're going to have perhaps a wider
variety of tools to solve that problem than the Federal
Government would if the Federal Government was forced to
implement the program.
Senator Crapo. You mentioned earlier in response to a
question from either Senator Smith or Senator Thomas that there
was a sort of a backstop in the proposed rule that may be
causing some of the consternation, the backstop being what will
the EPA do if the States don't? Now if the EPA is saying that
non-point source pollution has to be listed, that the States
have to achieve in those listed waters the standards, and if
the States don't achieve those standards in those listed waters
then the EPA will step in and achieve those standards. Then
haven't you essentially through a somewhat circuitous, but
nevertheless a very direct fashion asserted EPA jurisdiction
over non-point source pollution?
Mr. Fox. I would respectfully suggest no, because first off
if we ever got to that point, as I said before to Senator
Baucus, that is an absolute failure of the system and we're not
doing our job right. Because the Federal Government should not
be in the position of actually implementing these TMDLs, only
as a last resort. If that happens, if we are in that very
remote situation where we have to do it, we will not have the
authority to obviously require any permit conditions for non-
point sources.
We have grant programs that we can use to encourage further
reductions of non-point source pollution. We have programs
through the Department of Agriculture we might want to work
with to solve some of these problems. And we'd have to cobble
together some way of trying to solve some of these problems to
achieve the goals without regulating--in a permit context--non-
point sources of pollution.
But, again this would be the worst-case scenario, if you
will, something that we don't want to see ever happen because
that is a failure of the system if we end up in that position.
Senator Crapo. Well let me explore this from just a little
bit different perspective. Senator Thomas asked a series of
questions, and the frustration that he has was evident with
regard to the feeling that he's seeing that the EPA is
asserting in an overreaching way authority over the States and
local communities. Your response as has been as Administrator
Browner's response consistently was that this proposed rule
does not operate as a top-down rule and the States and local
communities have the ability to find specific solutions.
I had an opportunity several months back to deal with this
in a site-specific situation in Coeur d'Alene, which you may be
familiar with, Coeur d'Alene, Idaho. And not just Coeur
d'Alene, but the entire basin, water basin there. And the
question was, the standards by which the determination was
being missed or whether the water satisfied the water quality
standards and we got into the Gold Book Standards, issues which
I'm sure you're familiar with.
And in a hearing that our entire congressional delegation
held in Coeur d'Alene, we had EPA officials with us and we had
local city officials with us who were being required to do
certain things with their water quality standards. And we had
the Idaho Department of Environmental Quality officials with
us. So we had everybody in the room and at different times at
the table. And I got the same answer from the EPA that day that
I got from you today and from Administrator Carol Browner last
week, which is, the State has the ability to do this. When the
State was sitting at the table I said to the EPA--I'm
paraphrasing here, but I said, ``The EPA has just told us that
you are the ones who decided to do this to us, to us people
here in Idaho.'' And we've just had witnesses from cities and
from local communities and counties saying what kinds of cost
impacts all this was going to have on them.
And I said, ``If it's you that is doing it to us instead of
the EPA, then I want to know why.'' And you know what their
answer was?
Mr. Fox. ``The EPA made me do it.''
Senator Crapo. ``The EPA made me do it.'' I said, ``Now
wait a minute, you are doing it'' and they said, ``Yes, we are
doing it.'' And I said, ``But if you don't do it then what will
happen? If we don't do it the EPA has informed us that they
will take it away from us and they will do it. And so either we
will do what they tell us to do or they will do what they tell
us to do.''
Now, it seems to me that that is not exactly the kind of
situation where you have the local authorities operating in a
free system with a non-top-down driven solution being forced.
In fact, the State officials in that circumstance said, ``If we
could do what we wanted, we would not do this and we would do
this other alternative which would keep the water clean and
make it satisfactory and avoid all of these other onerous costs
that are being imposed on us by what we have to do.''
And frankly to me what I saw that day was a very rigid
``one-size-fits-all'' solution being driven from a book, a Gold
Book I guess they call it, that was forcing community after
community in Idaho to do something that the State officials and
the local officials said did not need to be done for the water
quality and was going to drive up the costs dramatically to
their communities. And at the same time that was happening the
EPA was telling us that it was not a State--it wasn't a rigid
``one-size-fits-all'' top-down bureaucratically driven
decision.
Now, can you comment on that? It seems to me that I can see
the point that you're making because it is the State and local
officials that are making these decisions, but I am also not
convinced that the decisions that are being made are not driven
from a top-down bureaucracy.
Mr. Fox. Well, I've been to Coeur d'Alene, I'm not as
familiar with the specific issues that you're speaking of here.
I can tell you that I think the tension comes from what I think
frankly is a very appropriate Federal/State structure that
we've established in this country over the last 30 years.
Whether it's the Clean Air Act, the Clean Water Act, the Safe
Drinking Water Act, the Federal Government tends to establish
under Federal law some basic performance, environmental
performance standards that we as a Nation feel are appropriate.
And then the EPA, our job is to work with the States to try
and figure out ways to get to those ultimate Federal and
environmental performance standards. We ultimately want to
assure that the States get there, but we try to give them a
fair amount of flexibility in how they get there. But you're
right, there is a bottom line, if you will, that we do need to
meet some basic environmental and public health standards; and
in this case the Gold Book is, in fact, one of the
articulations. And I'm not going to say that there aren't
States that vary from it, but it is some of the best science we
have as to what, in fact, levels of different contaminants are
safe for public health and the environment.
Senator Crapo. Well, I understand what you're saying and
frankly it's a very good answer from the perspective of the
EPA, but it doesn't change the fact that the Gold Book is a
very--whoever wrote the Gold Book has never set foot in the
Coeur d'Alene Basin I would be willing to bet, or if he did the
Gold Book standard would be different for the Coeur d'Alene
Basin.
My point being, we had witness after witness of qualified
people who work with water quality issues in the area, who
testified to the fact that the standards being imposed through
the Gold Book were so rigid that they could not be met, could
not be achieved no matter how much money we threw at it because
of the unique circumstances in the region. And if they were
somehow met it would require the kind of resource expenditure
that is beyond the ability of the communities.
Mr. Fox. What I just wanted to check here with staff is the
way the water quality standards program runs. In fact, in many
of the Federal programs there is a ``Gold Book,'' if you will,
of minimum Federal standards. And we developed this because the
States have asked us to use Federal resources and science to
get some good national base-line. The Clean Water Act actually
has a number of provisions that allow the States to depart from
these based onsite-specific considerations.
I know for example in my home State of Maryland, in an
estuary environment, copper and cadmium act very differently
and they don't have the same end point. And a number of States
ask to----
Senator Crapo. A good example.
Mr. Fox [continuing]. Get variances from the Gold Book
based on some site-specific considerations and we then approve
those, assuming they are scientifically justified. There are
also bacteriological standards. For example, if you are in the
Anacostia River, right here near Washington, DC. where there's
not a lot of swimming going on, the ultimate bacteriological
standard might be very different than if you were at a beach in
Ocean City, MD. And those are some of the flexibilities that
States are allowed to move off the Gold Book numbers--with
justification, I would add.
Senator Crapo. And I understand that and, in fact, that
information was also presented at the hearing by our EPA
officials, but there's always a wrinkle. And here's the problem
and the reason I'm tediously going through this with you, to
help you understand, if you will, at your administrator level
why it is that you can say the things you're saying and you
understand all these flexibilities that exist, but they don't
exist in the real world--or at least they are not being allowed
to, because I'll tell you what we've just dealt with.
We were told the Gold Book has the ability to be deviated
from and there can be exceptions made. And the witnesses at
this hearing that we held basically said, ``All of the
justification and the data is in place for us to be off the
Gold list and let us do a site specific standard for this area
that we could achieve,'' which is what our local officials were
saying is what we would like to do, and frankly, I recall that
the EPA officials who were there were not really disagreeing
that that would be an acceptable outcome. But I don't know that
hearing has been 6, 8 months ago now. We're still on the Gold
Book and we can't get off it. And this process, this so called
flexible process to allow for variations, is certainly not
flexible. I can assure you of that because my office has been
working very aggressively for months now to try to just get
through the administrative morass that would allow us to get
this permission from the Agency to move to some different
standard.
Now, I do understand and I have to give credit here that we
have succeeded in getting this issue to the higher and higher
levels at the EPA and I understand that if what we are being
told is correct, that it is now going to be made possible for
the State of Idaho to put together a site-specific standard in
this region and not be limited to the Gold Book standard.
And I'm going to be very excited when that day comes. I
wanted to go through this with you to let you know that in this
particular case it has taken very aggressive attention from at
least one U.S. Senator, from the entire Idaho delegation,
holding hearings in the State of Idaho, as well as local
communities pushing to try to get this flexibility to actually
exist. I want you to know first of all that when you testify to
us that it isn't really a top-down driven system, and when we
say we don't believe you, that's why, because we've had
experiences like this.
Mr. Fox. I see.
Senator Crapo. That goes on and on and on. And so if
anything can be done from your level to assure that the
procedures are commonsense procedures that are not there in
name only, but are in reality, the flexibilities that do give
State and local officials the ability to make the commonsense
decisions, then perhaps we can find the common ground to move
forward. I think that's exactly what Governor Racicot was
talking about here at a larger level of the State's program
versus what they perceive is going to be imposed on them
through the TMDL rules.
So anyway, if you'd like to comment further?
Mr. Fox. Let me just say that I've learned a lot here today
and I think the issue you raise is a very real one,
particularly with the example that Senator Smith gave about an
EPA employee. As we implement this and we haven't made any
decisions yet and we are going to continue to have input, but
we probably need to be very clear with all of our employees
about the different flexibilities that are available and make
sure that they understand our position on this so that we don't
have, in fact, these situations where some employees are
suggesting that we don't have quite the flexibility that we
intended.
Senator Crapo. Well, I understand that and appreciate that.
And I don't want you to understand from my comments here today
that I felt that the local EPA officials were doing anything
like that. In fact, in their testimony they were being very
honest and direct about the statutory authorities and what
would happen and wouldn't happen if certain things developed.
But I'm not even sure that your local EPA officials have the
ability to break this system into the flexibility that it needs
to have. So there has to be a fix here, and I'm not sure just
exactly where or how.
One of the key problems that I see is along the whole chain
is that this circumstance that you described exists. And this
is, if the State or the local community doesn't jump through
the right hoop in the right way, doesn't set the standard in
the right way, doesn't put the implementation plan together in
a way that the EPA agrees will work, there's always that gun to
the head, that the EPA is there to do it for you if you don't
do it the way they tell you to do it.
And that core structural part of the process is
antithetical to local decisionmaking. I have to tell you, if
the EPA wants to truly address creating a system in which we
stop being a top-down driven system and let States and local
communities resolve these issues, then they've got to be
willing to let the States and local communities resolve the
issues.
Now, I understand that there may need to be standards set
and then see if the States and local communities can meet those
standards. The experience I had with the Gold Book standards
tells me that even just that process can eliminate all
flexibility if it's too rigid.
So again I'm sorry for being so thorough with this, but I
wanted you to just understand one experience that I've had with
this that causes me to be somewhat suspect when I hear that
we've got a flexible State and local community-driven system in
place.
Mr. Fox. Well, I won't say anything that will certainly
contradict your experience here, but I would say that the
situation in Coeur d'Alene is somewhat unique, apart from what
we face nationwide, and we can hope that we don't have those
all over the country.
Senator Crapo. I hope not.
Let me go on for a moment. The EPA has proposed to include
waters that are threatened that are in the TMDL program. And
these are waters that are currently meeting the water quality
standards but for which readily available data demonstrates a
trend that would indicate that the standards might be exceeded
in the future.
And the FACA group recommended that these waters be put on
a separate, different list. There are a few concerns that some
of us have with listing these waters for TMDLs, and Congress
has expressly authorized the EPA to require this only for
impaired waters because the other waters are already meeting
current standards.
How does the EPA get the jurisdiction to list threatened
waters?
Mr. Fox. First I would say that the current regulations in
place that predate this Administration included threatened
waters and this is an area that we are taking comment on and as
a result of comment, the public comment period, we may or may
not make a decision to include threatened waters.
And the logic behind it, if you will, was simply that there
are going to be some water bodies that very soon might be
needing a TMDL and we need to keep track of these just so that
we don't lose them in the system. If we can solve a problem
today, that's a better deal than trying to solve it tomorrow
when it might be much more expensive and difficult to solve.
Senator Crapo. Well, again, that might make sense in common
sense approach. And the fact that the previous regulations
covered it doesn't necessarily mean that they legally covered
it. Can you give me any legal justification for asserting
jurisdiction over threatened waters?
Mr. Fox. Let me get my General Counsel to get back to you
on that one.
Senator Crapo. OK. I'd like to see that.
Mr. Fox. OK. I found myself trying to pretend I'm a lawyer
and I realize I shouldn't. I'll just turn to the General
Counsel.
Senator Crapo. Well, if you don't know the answer, you are
wise not to try to say it.
In its proposal the EPA states that it would:
. . . only invoke the rule in rare circumstances and then only when
there's no reasonable assurance that the silvicultural sources would
obtain TMDL load allocations. And the Agency suggests that the rule
would not be invoked in States that have forest practice laws or
otherwise enforceable best management practices, the BMPs, suggesting
that these programs provide reasonable assurance. the Agency therefore
assumes, in a way, any potential economic impact for some 32 States
that have currently or are expected in the future to have enforceable
BMPs.
Let me stop right there and ask, am I correct in assuming
that the Agency is going to accept a States enforceable BMPs as
reasonable assurance?
Mr. Fox. That is among the issues we are considering right
now as we go to final. I think it's fair to say that the rule
was not particularly explicit on that point, but that is among
the factors that we are considering as we go final. It is
certainly our intent that this was not going to apply if
there's no problem. And if in fact a State has a good program
that is solving the problem this wouldn't apply. But I'm not
sure we specifically connected it to the adequacy of an
existing State forestry program.
Senator Crapo. Well, I think that might be one area in
which the question of whether you can truly trust a State will
show whether the EPA is willing to give the State those
decisionmaking authorities, because if a State has created its
BMPs and the EPA won't even let that be reasonable assurance,
then that tells me that basically we've just got an overseer
and we might as well let you guys do it all.
Mr. Fox. You're going to have a representative from the
State forestry industry on your next panel and I'll be
interested to listen to what he says on this point.
Senator Crapo. And in this context, in which States do you
think the rule would be invoked either by the State NPDES
authority or by the EPA? And what I'm getting at is, would it
be applied in important timber producing States like Oregon,
California, North Carolina or 20-plus other forestry States?
Mr. Fox. The way the rule was structured, first off,
nothing would be applied unless the State had identified a
water that was impaired by silviculture. And I just don't have
the data here but I can certainly give it to you as to which
States have identified problems of silviculture. And then the
second part was the economic analysis we did. It didn't get
into really identifying which States and which watersheds this
would be applied to. And I'm not sure we actually have real
good information on that. Because so much of that is going to
depend upon what a State ultimately decides to do.
Senator Crapo. Well, included in the States that I believe
were omitted from the impacts in the EPA's economic assessments
are five States, including Idaho, that aren't currently NPDES
authorized by the EPA, and that's Alaska, Idaho, Maine,
Massachusetts and New Hampshire.
And the question I have is, how can it be assumed that the
EPA would not use its authority in these States when the Agency
already administers the NPDES program directly there?
Mr. Fox. It would be dependent--I just have to look at the
data to see if Idaho had any waters that were impaired by
silviculture, and I just don't know the answer to that
question.
Senator Crapo. But if they did and the Agency were to
assert its existing authority, wouldn't it be generating costs?
Mr. Fox. It would have to be. There would be a few other
steps in that process. First is, are they impaired by
silviculture. Second, is the State program adequate to resolve
those impairments. And then third, if that's not the case and
the State has refused to do that and EPA then had to step in
and require best management practices to be put on some, then
those would be costs. And the way we costed our rule, it was
that scenario that ended up coming up with our figure of the
estimate of the cost.
Senator Crapo. If I understand how you have done that, you
must have assumed that each of those situations that you just
described were the case because you came up with no costs.
Mr. Fox. For Idaho?
Senator Crapo. Am I right about that? For those five
States, that's right.
Mr. Fox. All I remember is--I'm sorry, the aggregate was
about a $10 to $11 million--$10 to $12 million national cost,
600 silviculture permits, but I can get you more specific
information there.
Senator Crapo. If you would I would appreciate that.
The EPA states that:
The potential economic impact of the proposed rule would
not exceed $4 to $13 million annually, and that at most 18,000
landowners would be affected. the Agency estimates that the
regulatory cost per owner would amount to no more than $88 to
$163 per harvest event.
Isn't it likely, though, that in order to obtain an
approved NPDES permit a landowner would probably have to submit
documentation specific to the TMDL and water body involved and
would have to hire a consultant to prepare the application and
monitor the activity, would have to respond to and mitigate any
concerns of the approving agency, the EPA or whoever was the
approving agency, whether those were real or perceived? And
then would have to await the approval process and delay their
operation until approval is granted?
Mr. Fox. Respectfully, Senator, I hope you appreciate this.
Many of these cost analyses were done by a team of economists
and I'd respectfully suggest that they could do a better job of
answering as to their assumptions than I could do here for you
today. If I could respectfully furnish that to the committee,
I'd appreciate that.
Senator Crapo. Well, I would like that because it seems to
me--and you know you're going to hear it; you've already heard
it through the 30,000 comments that have come in--that $163
cost estimate for someone who's going to have to go through
this process is vastly underestimating what is really going to
happen out there. And it causes great concern to me to see that
because the numbers that the Agency has used have put it below
the Federal mandate statute so that they don't have to comply
with other requirements. And I'm concerned about that.
Mr. Fox. Yes, I can tell you that wasn't the intent of
bringing the numbers down. And if anything, what I remember
having a good feeling about, looking at those numbers when the
economists produced this, was this was showing to me that the
impact of this was going to be relatively small. I don't want
to belittle even these costs, but it wasn't our intent that
many silvicultural operations would at all be affected by this.
The Federal Government would step in only where States failed
to do so. And it was our intent that this would be used very
minimally and that's generally what these costs showed. But I
can get you more specifics about the estimates and how far they
amortized them because I'm sure that's some of the issues,
whether these were annual cost over 20 years.
Senator Crapo. That's very much the issue.
Mr. Fox. Senator, one additional explanation I would just
offer on the permitting approach for silviculture is that we
have assumed that this would fall under what we call our
general permitting practices. And typically a general permit is
very different from what we consider an individual permit. And
the way these work is that they end up putting in a State
regulation or in Federal regulation the broad kinds of best
management practices that should be implemented. There
typically isn't an individual site visit. It is simply that a
landowner agrees to abide by these best management practices,
and that's how we streamline the bureaucratic process for
implementing this.
Senator Crapo. All right. And I hope those kinds of
streamlining efforts are successful.
Let me just go through a couple more questions. One of the
major controversies as you know in this proposal is the
question of what is a point source and what is a non-point
source, and this is particularly relevant in the issue of
silviculture. Businesses and landowners, I think, have to have
some kind of predictability as to how their activities fit into
the structure of the Clean Water Act. What is the EPA doing to
clarify this issue?
Mr. Fox. This is an area that has come up repeatedly and I
think it's fair to say is an area that we're going to need to
clarify as we go final. I think people expect and deserve that
we are clear about how this proposal would affect them or not.
We have tried very much to track the statutory definition of
what constitutes a point source or a non-point source and
basically you need to have a point. It has to be a culvert, a
drainage ditch, something like that for it to constitute a
point source. And that would be a first threshold level about
whether this program would ever affect any operation. Was it,
in fact, a point source? And if it wasn't a point source, it
wouldn't be affected.
Senator Crapo. I know that a year or two or so ago the EPA
was apparently considering a regulation to clarify this. Has
anything come of that, is the EPA planning on putting out any
further information or guidance on this issue?
Mr. Fox. On what constitutes a point source versus a non-
point?
Senator Crapo. Yes.
Mr. Fox. That one I'm not familiar with. I'll have to
answer that one for the record too, I wasn't aware of a
regulation on that.
Senator Crapo. OK. I don't think one was ever actually
proposed, but at least we were under the impression that one
was being considered at some point. From the looks on your
faces----
Mr. Fox. I'm getting fuzzy looks from people but that
doesn't mean that somebody wasn't considering it. I will look
into that.
Senator Crapo. Well, we wish they were.
Let me clarify your last question or your last answer that
you added. It's my understanding that you can't use general
permits when the Endangered Species Act is at issue or
endangered species are present, is that correct?
Mr. Fox. That would be news to me. We certainly have
issued many general permits in areas where endangered species
are present. But I can look into this. I know on a lot of
concentrated feeding operations it's very common for a State to
issue a general permit. For a lot of storm water operations
States issue general permits. It's fairly common. In the air
program they use general permits all the time.
Senator Crapo. OK, hold on 1 second.
OK, the point is that you have to do consultation at that
point as to how would a general permit be operable if you have
to do the consultation under the section 7 of the Endangered
Species Act.
Mr. Fox. Typically the way this works--and I will get more
information on this--but the consultation occurs as the overall
general permit is developed, should the services require or ask
for consultation to occur. So as an example if you are
developing a general permit for charbroilers, McDonald's Clean
Air Act permits and they're all going to apply under the same
rules, the services could request consultation at that time as
the permit gets developed. But then as the McDonald's comes in
or a Wendy's comes in----
Senator Crapo. Then they don't have to go through the
consultation again.
Mr. Fox. Right.
Senator Crapo. All right.
As you may be aware I'm pretty interested in the HCP
program and we may be looking at trying to put together some
targeted legislation to help facilitate the development of
Habitat Conservation Plans. If a company or an individual
dealing with water quality has an HCP, would that serve as the
functional equivalent of the TMDL, or will the proposed rule
override the HCP and force renegotiation of the HCP?
Mr. Fox. Our hope is that we can do these together. There
is one fairly successful model that happened with the Simpson
Paper Company in Washington State where they put together a
series of proposals to meet their Endangered Species Act
requirements as well as the TMDL program. The ultimate test
that we care about under the Clean Water Act is, will this HCP
help us achieve the water quality standards? And if we can find
a way that these two programs can work together we can get to
that end point, I think, together.
In the case of forestry operations typically what this is
going to mean is we will work with the company to figure out
what is the right buffer strip requirement that will yield a
certain pollution reduction that will get your water quality
standards at the same time that this buffer might be protective
of salmon, say, for example.
Senator Crapo. What if an HCP was put together before a
stream was listed and then the Agency comes in after the fact
and you've got an existing HCP in place?
Mr. Fox. That's an area that we're going to have to work
with, but to the extent that an HCP does not achieve our water
quality goals or standards, then we might have to revisit that
to assure that it can be done. I'm certainly open to ideas
about how to make these work together, but as the manager for
the Clean Water Act I ultimately need to find a way that we can
get to those Clean Water Act goals, too.
Senator Crapo. Just thinking about it, it seems to me that
if the noncompliance is not related to the activities that the
HCP deals with, then there may be a way to be more flexible
with that. But if the noncompliance is related to HCP
authorized activities, then we could have a problem. Because
one of the issues that I'm sure you're aware of under HCP
reform is to try to figure out a way to get certainty.
Mr. Fox. Right.
Senator Crapo. So that we have benefits.
Mr. Fox. And I would agree absolutely that that's a great
goal. That's the example of the Simpson Paper Company that I
mentioned. That was one where we were able to provide certainty
to the company for the long term. In Washington State there's
another model; the State passed recently a State law, the
Timber, Fish and Wildlife Act, that established some statewide
performance standards for timber operations on private lands.
We have tried to work with them to give them some certainty
with respect to this program within the TMDL program. And in
fact, in Washington State I think we have set up a policy where
they do not have to have TMDLs on these lands for 10 years
until we see how well it's implemented.
Senator Crapo. All right. Well, I'm sure you're aware of
this, but I want to restate that that's a very important issue
to me and I would like to keep in contact with you as we move
forward in the development of our legislation as well.
Mr. Fox, I have literally a stack of other questions here
that I want to ask you, but it's 3:20 and so you're going to
luck out with me, I guess. I will submit these questions to you
in writing and ask for your prompt response to these questions.
Mr. Fox. You will get that.
Senator Crapo. That's right, I should remind you that we
are going to have you back before us again hopefully in another
hearing on this issue, one of our series, at the same time that
we're going to have the USDA and Department of Defense in to
comment on the some of the concerns that they have raised in
the past with regard to it. So I might have another opportunity
in person, but we do want to submit these to you in writing.
Mr. Fox. Always a pleasure.
Senator Crapo. And there is one other question that I was
going to ask at the beginning and they want to make sure I
don't forget to ask you, which is probably the most important
question to ask. And that is, what is the timeframe that the
Agency is looking at right now--we heard June--that the Agency
is going to proceed? Frankly, as I said in my opening
statement, I think that that is far too aggressive and that
with a whole litany of circumstances that I described in my
opening statement it would not be prudent for the Agency to put
this on the fast track and move it ahead that fast. I mean, you
just heard Senator Wyden talk about trying to put together a
compromise here among the Senators as an approach, and he and I
talked on the floor during the break while we were voting about
working on something like that. But if the Agency moves ahead
on such a rapid pace, then it may force us into action or it
may force other responses that are not necessary.
And so I'm asking you, what kind of a timeframe do you
expect to work on at this point?
Mr. Fox. The draft schedule worked up with staff is for
final promulgation at June 30. I will say that if you would
like to engage in some discussions on this I will certainly
make myself available and do any kind of consultation with you
that you think is appropriate to talk more about some of these
issues. We truly haven't made any decisions on this. But out of
respect for a lot of the time and energy that a lot of people
have put in this, I really think it is important that we can
bring this to closure at some point soon.
And as we all know, things change by the end of this year
and my hope was that we could get this done before things start
changing in this town and try and keep it out of so much of
those cycles that tend to happen at this time.
Senator Crapo. Do you feel that you can adequately review
and respond to the comments, the 30,000 comments that have been
made, by that time?
Mr. Fox. You should know that of those 30,000 comments,
more than about half of them were postcards. Of those 30,000 I
think there are approximately a little over 2,000 individual
separate comments. So I'm not going to belittle them. I don't
want to suggest for a minute that it isn't important, but I
think we can process and respond to and consider adequately the
comments that we've heard.
As you know and as you mentioned, the Federal Advisory
Committee began on these issues in, I guess it was almost 4
years ago, and so there's been a lot of thought given to this.
I think we can do it and respect the process.
Senator Crapo. It's my understanding that OMB review of
these kinds of rules takes 3 months, a rule in this kind of
circumstance.
Mr. Fox. That is typically the standard, but on a rule of
this importance I will be talking with the Office of Management
and Budget to see if we can get some compromise there and see
if I can expedite that review, but I respectfully have not had
all those discussions with the right people at OMB yet. But I
guess now I will have to, later this afternoon.
Senator Crapo. Well, it sounds to me like you're creating a
fast track and I have been strongly encouraging you not to do
that. I think OMB needs that time. I think frankly you need
more time; you and the Agency need to address these issues. And
I'm not really talking about the day-to-day function of
evaluating the comments and all that so much as I am talking
about the fact that we have a tremendous amount of concern
across this country that has been expressed.
As I said in my opening comments, again, there have been
five hearings in Congress on this and you're going to see more.
Mr. Fox. I've been to every one.
Senator Crapo. Yes, you're painfully aware of them, I'm
sure. And when I walk down to the floor for this vote, I was
asking them at the desk, how long is this going to take and are
you going to shorten the next vote so I can get back? And
somebody said, ``Yes, what are you doing?'' And I said, ``We're
holding a hearing on TMDLs.''
Everybody--there were about 8 or 10 people standing
around--every person knew what I was talking about, because
this is an issue that across America is raising a tremendous
amount of concern. So I would just encourage you not to fast
track this and to give it the time that it takes.
Mr. Fox. OK, thank you.
Senator Crapo. As I said I've got a lot of other questions,
but I'll have other opportunities and I will submit some to you
in writing and I thank you for coming here today, Mr. Fox.
Mr. Fox. I look forward to seeing you again.
Senator Crapo. Thank you.
Our next and final panel will be the Honorable William
Nielsen, city council president from Eau Claire, WI, on behalf
of the National League of Cities; Ms. Jamie Adams, the
secretary of the Kansas Department of Agriculture, on behalf of
the National Association of State Departments of Agriculture;
Mr. J. David Holm, the director of the Colorado Water Equality
Control Division in Denver, CO, on behalf of the Association of
State and Interstate Water Pollution Control Administrators;
Mr. Warren E. Archey, Massachusetts State Forester, on behalf
of the National Association of State Foresters; and Mr. Richard
A. Parrish, the Council for the Southern Environmental Law
Center in Charlottesville, VA.
These are very critical issues and it's important for us to
spend the time on them. As you probably are aware and can see,
we could spend hours with agency officials on these issues, so
I appreciate your forbearance.
I believe that each of you have been notified that the
rules that we operate under here are that you have 5 minutes to
present your testimony verbally. And I ask you to please try to
follow that or the hearing will really drag on and others will
not have the opportunity to present their materials as well.
That will require you--I rarely see a witness who can say their
whole piece in 5 minutes. Please understand that we understand
that, and we do read your written materials very carefully. I
know that the staff here reviews them and outlines them in
detail. I read them personally and most of the Senators do. And
we do want to have time for give and take and question and
answers as well. So the green light is for go. Yellow means 1
minute, right. When the yellow light comes on there's 1 minute
left. And when the red light comes on I ask you to please try
to finish up your thought and wrap it up even though you may
not be finished with everything you have to say and I'll
probably give you some opportunities in the questions to pitch
in and finish up any thoughts that you didn't get in.
So with that why don't we start in the order that I went,
Mr. Nielsen.
STATEMENT OF WILLIAM NIELSEN, COUNCIL PRESIDENT,
EAU CLAIRE, WI
Mr. Nielsen. Mr. Chairman, thank you very much for this
opportunity to address your committee today. I have submitted
my testimony in writing and I will just give a brief summary
and try to emphasize some points that were mentioned there.
As stated I'm the city council president from Eau Claire,
WI. Ironically, Eau Claire in French means clear water. I'm
here today representing----
Senator Crapo. Can I interrupt you for a second? Have you
ever heard of place called Owen Withee, Wisconsin?
Mr. Nielsen. Yes.
Senator Crapo. That's where my wife is from.
Mr. Nielsen. So she knows we have clean air, clean water
and lots of cows.
Senator Crapo. That's right. In fact, she says those two
towns were so small they had to put them both together to have
a school.
Mr. Nielsen. Senator, are you taking some of my time here
or do I have----
Senator Crapo. No, I'll give you extra time.
Mr. Nielsen. I also serve on a policy committee for the
National League of Cities, The Energy Environment and Natural
Resource Committee and I also had the pleasure of serving on
the Federal Advisory Committee on TMDLs.
Let me first State that NLC and all of its members strongly
support the goals of the Clean Water Act.
Throughout the past 25 years the Federal Government and
local governments have worked in a strong partnership to
address many of our Nation's water quality problems.
Unfortunately, we believe the rule that is being proposed will
no longer recognize that partnership. It may very well place
much of the burden for solving these problems on the local
government.
As you stated earlier or as previous witnesses alluded to,
the Federal Government generally tells the State government
what to do. The State government generally tells the local
government what to do. And we're the ones that not only have to
do it, but figure out a way to pay for it.
Some of our concerns on these rules are that they may have
a severely limiting effect on growth on the local level.
Economic development is an important issue on the local level.
They have both intended and unintended consequences. These
regulations may encourage businesses to relocate in undeveloped
and more pristine areas.
Under this proposal it will be difficult to comply with
some of the agreements that we presently have with the Federal
Government in relation to combined sewer overflows, sanitary
sewer overflows and our storm water program. The cities
presently are in the process of committing our resources to
deal with the storm water program. The Phase 2 regulations were
just published in October. And we're somewhat concerned with
how the new TMDL regulations will be compatible with the
agreements that we have under those regulations.
We believe it would, for example, be very difficult to
comply with the diversion of storm water to treatment
facilities when we're limited to the loads that we currently
have at those facilities. As mentioned earlier, we're very
concerned with who pays under this program. We're very
concerned with some of the trading provisions. The burden for
the non-point pollution that lies outside of our boundaries may
be shifted. The financial burden for solving that problem may
be shifted to local ratepayers and taxpayers under this
program.
The new proposed rules I think will generate a
considerable amount of endless legal activity and this will
fall primarily on the NPDES permit holders.
Again under the trading program, those who are regulated
under statutory control, who hold permits, will be responsible
for trading with those for whom compliance is voluntary. Any
enforcement action therefore will fall on those who are holding
permits. We find this very troubling.
NLC would recommend that the following changes be made to
the rules. The offset requirements should be entirely
discretionary for municipal facilities and offsets should only
be allowable where it can be demonstrated that such a policy is
appropriate and will not have adverse unintended consequences.
All Phase 1 and Phase 2 municipal storm water permits
should be exempt from TMDL requirements. We also believe that
general permits as currently designed should remain EPA's
primary recommendation to permitting authorities as the optimal
mechanism for municipal storm water discharges. TMDLs should be
applicable only to water bodies that are determined to actually
be impaired by water quality data that is quality assured and
quality controlled.
Thank you very much for this opportunity and I would
welcome any questions that you might have.
Senator Crapo. Thank you very much, Mr. Nielsen.
Ms. Adams.
STATEMENT OF JAMIE CLOVER ADAMS, SECRETARY OF THE KANSAS
DEPARTMENT OF AGRICULTURE, ON BEHALF OF THE NATIONAL
ASSOCIATION OF STATE DEPARTMENTS OF AGRICULTURE
Ms. Adams. Thank you, Mr. Chairman. I appreciate being here
today. My name is Jamie Clover Adams. I am the Kansas Secretary
of Agriculture and I appear today on behalf of the National
Association of State Departments of Agriculture and my
colleagues from across the country.
Like all the previous speakers have said we too desire to
improve the Nation's water quality. However, we are greatly
troubled by the TMDL rule. We have four major areas of concern.
One is that we believe that it exceeds EPA statutory authority.
We disagree with EPA's current position that the Clean Water
Act provides ample authority to regulate non-point sources of
pollution.
And we believe the legislative history is clear. In fact,
when I was preparing for this testimony over the weekend I
pulled out the brief that EPA filed in our lawsuit in Kansas
over TMDLs. They clearly stated it was their belief that
Congress did not include any provisions requiring States or EPA
to directly regulate non-point sources, but that rather section
319 was the vehicle in order to do that with best management
practices.
So, it's very contrary to what they've been saying
recently. Second, we believe that the rule jeopardizes
successful programs that are already being implemented in the
States, both through 319 and 208 and also under the 1985, 1990,
and 1996 Farm bills.
And we in the States are developing programs of our own. In
Kansas we have a Governor's Water Quality Initiative, a
Governor's Buffer Initiative, various other partnerships and
collaborative efforts and we have measurable results. We can
show that those collaborative voluntary incentive-based actions
work and they do reduce pollution in our waters.
We are in the forefront. We know what the problems are. We
know what will help. And we just ask EPA to get out the way and
let us do our jobs.
In Kansas we have already written and are beginning to
implement 90 TMDLs in the Kansas Lower Republican Basin. This
year we expect to finish writing 121 TMDLs from three other
basins in our State. In fact, members of my staff were out in
Garden City, KS, Great Bend, KS and Newton, KS the last two
nights holding local, stakeholder meetings with producers,
educating them about TMDLs and what their responsibilities are.
Third, the Departments of Agriculture are concerned that
the TMDL proposed rules significantly expand command and
control regulatory mandates and do not provide flexibility.
Senator I would agree with you that they talk the talk and
don't walk the walk. And when you get out in the regions it's
very, very different than what we hear from headquarters staff.
We know in Kansas through experience that the geographic
and hydrologic extent of non-point source pollution defies a
regulatory approach. We also know that you have to have
cooperation and collaboration to get results. We had a program
in Kansas where we provided an incentive to reduce atrazine
runoff. It took one-on-one work. We had a 100-percent
participation in the targeted sub-basin and we had measurable
results in water quality. It works. We know it works.
Finally, we believe the rule fails to recognize the
substantial State resources needed to address non-point source
pollution. That's both financial and technical assistance,
gathering scientific data, monitoring and doing BMP research.
We have found in Kansas--and I believe the other States have
too--that technical assistance is just as important to minimize
non-point source pollution as is financial assistance for
farmers and ranchers. It takes a lot of one-on-one work,
helping them understand what the problem is and then how they
can go about solving that problem.
We also believe that water quality data in all the States
is not adequate to make the kinds of decisions the EPA rule
requires. Even in States like mine where we have a network of
200 monitoring sites that have been in place for over 20 years,
when we went into the Governor's Water Quality Initiative we
had data gaps. We had to do extra monitoring. We did additional
biological monitoring through our Wildlife and Parks Division
in order to just get a baseline, so if in a State like ours
where we do a lot of monitoring there was a problem, I can
imagine--and I've heard from my colleagues--the problems they
have in other States.
And finally, we are investing a lot of money in best
management practice research with our land grant institutions.
Farmers and ranchers want to do the right thing. They just need
to have the tools in order to do that, and we need to fund best
management practice research.
And then finally, we believe that EPA's economic analysis
greatly underestimates the costs to the private sector of
implementing TMDLs. The State Conservation Commission in Kansas
did a review of one half of a county that's in the current
implementing area of TMDLs, how much it would cost to implement
practices to meet high priority TMDLs on 192,000 acres. They're
talking about $4 to $5 million. And I know in Washington that
$4 or $5 million dollars is not a large sum, I understand that.
But here's what it means for producers on the ground.
The average value of production in that county for a farmer
is $90,000. We are talking about 4 to 5 percent of their gross
margin to implement TMDLs. And we all know in a good year for a
producer it's 3.5 to 5 percent and in the years that we've had,
the last two or three--you can't get blood from a turnip. They
just don't have it. So we need to think about it in those
terms, too. Whether it is or isn't in the statute, it means
something to those folks. We're talking about small producers.
The map on the back table over there showing the impaired
waters for Kansas, many of them you'll see are from pathogens,
fecal coliform bacteria. And I can guarantee you if you look at
the northeast corner of the State of Kansas those are the
producers that have less than 300 animal units because in our
State we permit anything over 300 animal units. We are talking
about very, very small producers who just don't have the
capital that it takes to get this job done.
Finally, I would just close by emphasizing that the rule
does exceed their authority. It is rigid top-down. It won't
improve water quality. And it fails to recognize the costs
having to do with implementation. And if you don't remember
anything else I said today, this is not about pushing paper and
it's not about process. It's about people. It is about farmers
and ranchers and their livelihoods and their businesses and
their families. This isn't about what goes on inside the
Beltway here. This is about what happens on the ground. And it
has a real impact.
Finally, I would just say please judge us on our
performance. I agree, and NASDA does too, with the
``functionally equivalent,'' but I would say that if we have
data that shows we're meeting the standards or the trends are
going in that direction, leave us alone and let us do our jobs.
And I would offer also that NASDA would be willing to work with
the committee along with WGA to come up with some kind of a
compromise.
Senator Crapo. Thank you very much, Ms. Adams.
Mr. Holm.
STATEMENT OF DAVID HOLM, PRESIDENT OF THE ASSOCIATION OF STATE
AND INTERSTATE WATER POLLUTION CONTROL ADMINISTRATORS
Mr. Holm. Thank you, Mr. Chairman. I'm David Holm,
president of the ASIWPCA this year and we're the National
Professional Organization that consists of the administrators
of programs under the Clean Water Act.
I wanted to talk about the dialog that we've had ongoing
with EPA over the past year or so concerning this proposed
regulation. Recently in December there was a 2-day very
intensive workshop that we had with EPA where we considered
this proposal in great detail. And what I would like to do
today is talk about the areas where it seemed that the Senior
EPA Managers that were there seemed to be agreeing with us and
then at the same time highlight where we have some continuing
disagreements that are fairly significant.
What I would like to do is track my comments with the basic
elements of the TMDL process and EPA's proposed regulations,
beginning with monitoring and assessment, because that truly is
the foundation of the TMDL program.
We do seem to share some agreement with EPA that the
current level of resources that we can bring to bear on this
foundational element of the TMDL program is inadequate.
On the other hand EPA sought and received a bump in the
budget under section 106 last year. And they're proposing, as
Mr. Fox noted, an increase this year as well. While States are
somewhat concerned about the 66 percent match that they're
proposing for that new funding under section 106, things seem
to be moving in the right direction here.
The next major topic is related to the development of the
list and listing and delisting issues. In the States' view the
comprehensive water body accounting system needs to be the
system that's authorized under section 305(b), not the section
303(d) which deals with a very specific list of impaired
waters.
I think the EPA was listening to us as we expressed that
concern and pressed it at that very intensive meeting. I think
they have considered the proposal to move away from multi-lists
under 303(d) back to looking at 305(b) as the place where the
status of the Nation's water bodies are accounted for.
One of the issues that has received a lot of play, we've
heard a lot about today. But it's an issue that not all States
are in agreement on. It is that EPA lacks the authority to
require a listing of water bodies impacted only by non-point
sources. EPA cites its current regulatory authority as the
reason it so adamantly insists that such water bodies be
listed. That's an area of quite a lot of controversy around the
country.
Another issue related to listing with regard to non-point
sources and point sources is whether threatened water bodies
should be listed. If threatened water bodies really are listed
the list will become unimaginably long. In Colorado nearly
every water body would be listed as threatened because our
receiving waters are so small that it takes very little
pollution to use up the assimilative capacity. And our goal is
to try to maintain these water bodies at the level of the water
quality standards. But they are all threatened. Many other
States have expressed that view as well.
One of the next major topics that we've talked to EPA about
has to do with scheduling and priorities. We feel that this is
very much an issue that should be in the States prerogative.
The discretion to set priorities in consultation with the
public based on all relevant considerations is the way
priorities and schedules should be developed. EPA on the other
hand has set a number of triggers that would increase the level
of priority for water bodies, including whether they contain
ESA-listed species or water bodies where MCLs are being
violated.
We disagree with EPA on the definition of TMDLs. They've
included the requirement for an implementation plan. That's a
major source of disagreement. We have also disagreed with EPA
on the reasonable assurance that's necessary to be included
with TMDLs.
In conclusion, I want to remind the committee that this
regulation proposal has come about in the wake of a tremendous
amount of litigation stemming from the failures of States to
implement section 303(d) of the Act. And I won't go into all
the reasons for that today. But we have had many priorities
over the years. It's very clear that this proposal is being
developed in the existing climate of regulations, statutes and
resources and therefore it needs to fit in, fit in flexibility
into that structure. We think that TMDLs should serve a very
limited function and that is identifying the assimilative
capacity of water bodies for pollutants that really can be
measured in terms of concentration and loads.
A TMDL program is only as good as the implementation
efforts that follow it, but that doesn't mean that
implementation should be part of the TMDL.
Mr. Chairman, we've made many thoughtful and detailed
recommendations on this proposed rule by EPA. Where we've not
made suggestions EPA can assume that we agree with their
proposal as long as the provision is consistent with our other
recommendations. But we believe if our comments are
incorporated into the rule we'll have a result that will be
widely supported. And I thank you very much for the opportunity
to speak with you today.
Senator Crapo. Thank you, Mr. Holm.
Mr. Archey.
STATEMENT OF WARREN E. ARCHEY, MASSACHUSETTS STATE FORESTER,
CHIEF OF THE MASSACHUSETTS BUREAU OF FORESTRY, AND CHAIR OF THE
NASF WATER RESOURCES COMMITTEE
Mr. Archey. Thank you, Mr. Chairman. I am chief of the
Bureau of Forestry in Massachusetts and also committee chairman
for the Water Resources Committee of the National Association
of State Foresters and that's the position I'd like to bring
forward. And I appreciate the opportunity to provide testimony
today.
First I will summarize the NASF position, make a few
observations and finally propose what we believe are reasonable
approaches to solutions.
The NASF position. The State Foresters are strongly opposed
to the proposed rules on three major grounds. The proposal is a
major departure from the historical interpretation and previous
implementation of the Clean Water Act and is not supported by
statutory authority. The proposal ignores the minor
contribution made by forest management to water quality
problems nationwide. And threatens to disrupt the effective
approach taken by State foresters and our Federal partners,
mainly the Forest Service in concert with 319 and EPA to
achieve non-point source mitigation.
Their proposal would be extraordinarily difficult to
implement and practice and will result drastically higher
implementation costs for both States and that they must develop
TMDLs and landowners and wood industry who might become subject
to NPDES permitting requirements. Those are the basic position
items.
Observations. The NASF is committed to the goals of the
Clean Water Act and watershed-based solutions, we're all
together on that. Forest management is vital to water resource
protection. As an example close to home. The Metropolitan
District Commission in Massachusetts manages for what is called
for resilient forest, one that will ideally leave a two-tier
under story after catastrophic events such as hurricanes.
Interestingly, Massachusetts has witnessed a 70-year recurrent
cycle for hurricanes and other northeastern States have seen it
on more frequent occurrences and though these are unpredictable
in the short term, they're statistically predictable for the
long term and a fact of life.
So what, what does all this mean? It means that if we're
going to have a resilient forest what we've got to do is have
the opportunity to manage that forest. And if we observe that
protection of forest soils is a large part of the solution
recognizing that forest represent the ideal catchment, filter
and water storage median, then protecting that forest and that
resilient forest is a paramount item.
I should note incidentally that the Metropolitan District
Commission provides 2.5 million people around the Boston
Metropolitan area with unfiltered water, mainly because of the
kinds of management that they're up to and that is testimony to
me to the effectiveness of BMP implementation.
Further, forest management should be seen as a non-point
source mitigation, a buffer from detrimental land issues
through afforestation station and reforestation station. And in
this instance we regard forestry as the solution to the
problem. Again prevention rather restoration is more effective
and much less expensive.
An ideal solution should be voluntary and incentive-based--
State/Federal partnerships that produce workable solutions that
are being constantly improved. Water and forester licensing and
certification, best management practices developed and
refined--a process that is not broken. It is only in need of
occasional refinement as experience and evolving science
dictates.
EPA section 319 is a valuable tool which could be expanded
and refined. Solutions, my last thoughts, and there are three.
As we look at the law that exists it needs consistency. I
think we've heard that a number of times. Another alternative
to how we might deal with this is a silvicultural exemption.
Another way to deal with it too is through much more
cooperative efforts than we've seen in the past.
Clarification. There's an inconsistent message,
preoccupation with bad actors. There are other ways to deal
with them. How to differentiate between point and non-point
silvicultural activities. How to enforce this. And finally
under clarification, a comprehensive examination of costs to be
incurred.
Back to the silvicultural exemption. This should be
broadened. Note the provisions of Senate bill 2041 as
introduced by Blanche Lincoln of Arkansas and House bill 3609
as introduced by Representative Max Sandlin of Texas. But,
whether we incorporate an exemption on that, let's
simultaneously work together on communication and funding. We
should be emphasizing prevention over restoration, much
cheaper, I've said that before.
Woefully inadequate today is the funding. If we say the
silvicultural activities are a problem, that section 319 is
only provided 2 million or 2 percent over fiscal years 1996,
1997 and 1998 as compared to $100 million to $1 billion
estimated to implement these new rules.
Let's more fully utilize section 319 as an alternative to
TMDLs. We need better focusing and targeting for funds. We need
solutions like the watershed forestry initiative. You'll find
that that's an attachment to the package in our written
testimony.
This kind of thing would put people on the ground with the
kind of technical assistance we heard about earlier. The wood
industry would be in better shape, certainly landowners on the
best management practice implementation. This, the forefront of
what we see, is the solution. This works. We need cooperative
joint studies as to BMP compliance and effectiveness, again
let's make that thing that works even better. NASF is setting
the stage for some of that now with a survey of State BMP
programs.
And finally, let's intensify non-point source activities
among NASF, the Forest Service and EPA at the national level
and simultaneously seek closer relationships between State
Forestry Agencies and State Water Quality Agencies.
Section 319, Source Water Assessment Program, Clean Water
State Revolving Fund Grants, these are alternative solutions to
all that and I think if we work earnestly on these we can
provide an alternative to TMDLs.
Thank you, Mr. Chairman.
Senator Crapo. Thank you, Mr. Archey.
Mr. Parrish.
STATEMENT OF RICHARD A. PARRISH, SOUTHERN ENVIRONMENTAL LAW
CENTER
Mr. Parrish. Good afternoon, Mr. Chairman. My name is Rick
Parrish, I'm an attorney at the Southern Environmental Law
Center, a non-profit environmental group that works throughout
the south. I too served on EPA's TMDL Advisory Committee and
have been working for about 10 years to strengthen the TMDL
program. And I want to make sure we keep one thing in mind as
we discuss these proposed rules, proposals that would serve to
strengthen and clarify the program. We're here because the
current rules do not work.
The TMDL program was included in the 1972 Clean Water Act.
It has been virtually ignored by States across the country for
25 years. Rules have been in place since 1985, guidance has
supplemented the rules throughout the 1990's, and though there
has been a considerable amount of effort in the last year or
two at different States across the country, which we certainly
applaud and appreciate, my question is where have we been for
the last 25 years?
Now clearly, there's been a lot of progress under the Clean
Water Act in other programs, in particular the point source
technology based NPDES permitting program, over the past 25
years. There's been increased attention to non-point sources
since section 319 was adopted, in particular over the past 10
years. But, I would submit that the results of that section 319
funding really don't measure up to the commitment that was made
by Congress and the desire among the American public that
waters be cleaned up.
Currently close to 40 percent of the Nation's waters that
are assessed are found to be impaired. Too polluted to be used
for whatever purpose the States have designated. The largest
component, the largest source or contribution to that
impairment States
indicate comes from non-point sources. It simply makes no sense
whatsoever to talk about a comprehensive cleanup program that
doesn't include non-point sources in the package.
But, that doesn't mean you're talking about a regulatory
program. Some States have chosen to go that route, most States
have not. EPA has sanctioned that choice, whichever it may be.
For the most part EPA is telling States, you figure out
initially how to solve these problems and as long as what you
propose will do the job, then there is no limit to your
discretion and your flexibility. Now thankfully EPA is also
saying, if what you propose isn't likely to succeed though,
we're going to need to go back to the drawing board. Because
that's where we've been for 25 years. We've been talking about
our joint and mutual and collective commitment to clean water
and we haven't been doing it.
We haven't been restoring the worst polluted waters in the
country through the TMDL program. A program of emminent sense
and logic. Now there can be debate about legal authorities, and
there will be. Courts will resolve them this year hopefully,
next perhaps. I happen to believe EPA has the authority to
include non-point sources in this program because the law
simply states, identify waters where technology-based permits,
point-source permits, aren't sufficient to keep them clean. And
by definition that includes waters impaired by non-point
sources. Because the best point source permit isn't going to
keep them clean.
There's further debate about whether silviculture belongs
in this package as a point source operation. Well silviculture
has never been exempted from the point source program of the
Clean Water Act. And in fact, since the early 1980's a number
of silvicultural types of activities have been included in the
NPDES point source permitting program. Log landings and the
like, a very small number of operations given the potential
impact that other activities within the silvicultural arena
have on water quality.
Now, what EPA is proposing here with the silvicultural
component of this rule has received an inordinate amount of
attention which I would attribute to a highly irresponsible and
inaccurate portrayal of that rule by the forest products
industry. We've seen publicity about how EPA is asserting
Federal land-use authority, Federal regulatory authority,
Federal permits to every forestry operation in the country and
nothing could be further from the truth. As its been explained
over and over and over again, EPA won't even consider
designating additional silvicultural operations as in need of a
permit and even then a general permit, unless that operation is
causing a serious water pollution problem, and unless the State
has thrown up its hands and walked away from that problem
saying, ``We can't deal with it,'' and there is in fact, a
point source--a pipe, a culvert, a ditch--and there's no other
way to fix the problem. Only in that rare, extremely rare
combination of instances will EPA consider stepping forward and
assuming the burden of imposing additional permits or imposing
general permits on that operation.
And frankly, if you're not going to do it then, we might as
well all throw up our hands and walk away and say we don't mean
it when we talk about our collective commitment to clean water.
So I recognize, Mr. Chairman, that these rules will impose
additional burdens on States, on local governments, on the
public, on point source and non-point source operations when
those added burdens are necessary to clean up the water in this
country. The people spoke almost 30 years ago through Congress
about how important that was, that hasn't changed. And I
believe these rules are the first big step toward actually
achieving that goal set almost 30 years ago.
Thank you.
Senator Crapo. Thank you, Mr. Parrish. Members of the
panel, I have been writing down questions for each of you as
we've been going along here, but I think that I may come back
and wrap up with some of those questions, but I think what I
would like to do is to get into some of these issues with the
whole panel and have some give and take on them. And I'd like
to start out with one that has been sort of a common thread
throughout much of the testimony and which frankly Mr. Parrish
just spent some time talking about as well.
And that is this question of, have the States and the local
communities been getting the job done over the last 25 years?
Mr. Parrish, you've indicated that in your opinion they have
not in a lot of ways. I think you said there were some
successes in some areas.
Mr. Parrish. I'll clarify, if I may.
Senator Crapo. Sure.
Mr. Parrish. There's been tremendous success in the
reduction of point source discharges through the technology-
based NPDES permitting program. There's been certainly some
improvement in the non-point source sector through section 319
funded demonstration projects, studies and research and the
like.
There has been abysmally little success in restoring
impaired waters through the TMDL program or otherwise.
Senator Crapo. Are you referring to waters impaired because
of non-point source pollution or has the failure also been on
the part of point source solution efforts?
Mr. Parrish. Well I think the failure has been widespread.
And that certainly there are many waters on the 303(d) lists
that the States develop that are there because of point source
discharges. I believe common wisdom among the States is that
non-point sources have become over the past 20 to 30 years a
larger component of the problem.
Senator Crapo. Because of the successes in the point
source?
Mr. Parrish. Exactly.
Senator Crapo. OK. I see several aspects of this issue, but
what I would like to ask the panel to focus its remarks on
right now is--I will get to the jurisdictional aspects and BMPs
versus TMDLs and all that, but the question I'd like to focus
on right now for a minute is, is it correct, have we had an
abysmal lack of success, Mr. Nielsen?
Mr. Nielsen. Mr. Chairman, I think Rick hit it on the head
when he mentioned--I call him that because we served together
on the TMDL FACA so we are somewhat familiar with each other--
hit it on the head when he said that we've made great strides
using the best technical practices on the point sources. And
that's my concern. When Mr. Fox was here and he made a comment
that he said, ``Well we don't really care how the States solve
this problem, they can do it at non-point sources, they can do
it at point sources.'' My concern is that the onus of
compliance will fall primarily on the point sources because
those are the sources that the States and the Federal
Government have statutory control over.
Whereas the problem now exists really with non-point
sources. So if you came to me and said, ``Well, we need you to
clean up a pound of phosphorous,'' I'd much rather do that from
my storm water than I would down at my sewage treatment plant.
And the most cost-effective way, especially particularly in
regard to nutrients would be to deal with that at the non-point
source level from a cost-effective standpoint. So what we've
been doing over the last 30 years is building and improving our
sewage treatment plants and now we do need to take that next
step and deal with the non-point sources.
Senator Crapo. OK, Mr. Holm.
Mr. Holm. I do agree that the way the program is currently
structured the onus will continue to be on point sources to
achieve the gains and that's because there is not yet a climate
of pervasive regulatory requirements upon non-point sources to
improve water quality. So therefore non-point sources may well
be in the catbird seat waiting for point sources to come to
them and offer to pay for management practices in order for
them to accomplish needed expansions in their infrastructure.
So, that's a problem, but I also wanted to respond to the
earlier issue about have we succeeded? Have we succeeded in
dealing with these water quality impairment problems and I
would say that we have some very noteworthy successes and we
have some very important lessons learned. And one of the
lessons learned is that when you take a watershed approach and
you try to deal with all of the water quality problems in a
basin, it takes a long time to bring people together, have them
understand that there's a problem, have them understand what it
will take to get better information, then to make decisions on
how to use that information. The commitment is there, but it's
a long process and in the end it's a very successful and solid
process. We have a lot of successes, not in proportion to the
scale of the national problems that we're dealing with, but I
frankly don't think that that commanding kind of approach in
the end will get us there any faster. I think the slow way is
the fast way in dealing with these water body-wide problems.
Senator Crapo. Ms. Adams.
Ms. Adams. I would just point out that when I did review
the Kansas EPA brief for this hearing, the EPA also pointed out
in Senator Muskie's comments on the floor when the Clean Water
Act was passed, folks were told to focus on the biggest
problems which at that time were the point sources. So I think
it's a little misleading to say that we've been sitting around
doing nothing for 25 years when we focused our limited
resources on point sources.
I can say too for the people in the agricultural community
they understand they are under the gun and if they don't
perform we will get regulation. In our State at least we have a
very good working relationship with the cities. Pollutant
trading isn't a real option in western Kansas, there aren't big
enough cities to trade with so they're going to have to take
care of their problems themselves. But I agree with Mr. Holm
that this is a long process, you have to bring farmers and
ranchers to the table, help them understand why they are part
of the problem and how they can be a part of the solution and
the 80/20 rule applies, 80 percent of them will do the right
thing if they know what the right thing is to do.
Senator Crapo. Help me understand--did you want to say
something, Mr. Archey?
Mr. Archey. Yes, sir. As we look to silvicultural
activities for example, I see great progress in that area. And
States I'm most familiar with--the northeast and New England,
and I'll go back to my own State--we've had two, three
different versions of a Forest Cutting Practices Act. And we've
gone from voluntary to required. And we've had two different
versions of BMPs and we'll have more. And it's a narrative
process, one that builds on experience, one that builds on
evolving science and one that we can continually make better.
There's no question. We've got a distance to go and we'll never
be totally there. But again I would go back to that notion of
coordination and communication, working together through maybe
non-nuclear means, conventional means rather than TMDLs and get
that Act together, give it a better chance, support it through
section 319 and other programs.
Senator Crapo. Did you say conventional BMPs through
section 319, is that what you're referring to?
Mr. Archey. Right.
Senator Crapo. And section 319, help me a--help me
understand a little bit about--well, let me ask this question
this way.
It's my understanding that basically we've dealt with non-
point source, excuse me, point source solution pollution
problems through 303 and TMDLs, and we've been trying to deal
with non-point source solution through section 319 and BMPs. Is
that, does anybody want to clarify that?
Mr. Parrish. I would just say we have not yet dealt with
point sources through TMDLs.
Senator Crapo. OK.
Mr. Parrish. We have dealt with point sources almost
exclusively through the permitting program, the NPDES point
source permitting program.
Senator Crapo. But that is what we are trying to do, am I
correct in that?
Mr. Parrish. Well, we're trying to get the TMDL program off
the ground. The rules have been in place for a good many years.
Senator Crapo. OK. Let me say it this way then. The TMDL
program is directed at the point source solution issue, the BMP
and section 319 is directed at the non-point sources, is it not
that simple?
Mr. Parrish. I don't think so. I'm afraid that's really
where the hub of the debate is. EPA's feeling with which I
strongly agree, is that the TMDL program is directed at the
intersection of point source and non-point source activities.
It is the big picture. It's the one which really supports this
whole watershed approach, where you don't look at just this
point source or even just these point sources. You look at
everything that's contributing to the problem and you decide
which combination of reductions would best, most efficiently
fix that problem.
Senator Crapo. And that issue is what's been litigated in
California, am I right about that?
Mr. Parrish. Whether the non-point source component of that
picture belongs in----
Senator Crapo. In the TMDL programs.
Mr. Parrish. Exactly.
Senator Crapo. So as you said, hopefully this year we'll
get an answer to that question.
That being the case and I appreciate that this is not only
debatable, but litigatable issue, where are we with regard to
what the FACA Committee, how many of this panel were on the
FACA Committee? The two of you.
Mr. Nielsen. Notice that they put us opposite each other--
--
Senator Crapo. The question I have is did the FACA
Committee recognize or take a position or approach this issue
from either of these perspectives in terms of how they
perceived non-point sources to be dealt with by the statute?
Mr. Nielsen. There was disagreement on the committee and it
came primarily from the agriculture and silviculture
representatives and it was their contention that those
practices did not fall under section 303(d) of the Clean Water
Act.
Senator Crapo. And so was there a--there was no
recommendation in that context from the committee?
Mr. Nielsen. There was no consensus.
Mr. Parrish. There was no consensus, because in fact, there
was this disagreement, a minority opinion if you will. To their
credit though, those representing non-point source interests
continued to work with the rest of us to shape what they felt
would be a better more effective TMDL program, whether it
included non-point sources or not.
But the legalities--we just had to put that issue aside
because it wasn't for us to resolve.
Mr. Nielsen. Senator, if I could jump back to your previous
question. I just wanted to make a brief comment on that. On
whether there is some problem with including non-point sources
in a TMDL. The problem as I see it in 1972, they included both
the load allocations from point sources and non-point sources
in the definition. The problem we ran into and I think Mr. Fox
alluded to this is the difficulty of quantifying the load
allocations and identifying the load allocations for those non-
point sources.
In the equation for TMDL they're laid out there. But, there
is really no good scientific way to quantify and identify where
they're coming from.
Senator Crapo. Mr. Holm.
Mr. Holm. The way that in Colorado for example we have used
TMDLs and we've done close to 300 of them, most of them really
related to supporting protective limits for point source
permits. The non-point source component becomes a background.
It becomes the fixed background against which protective limits
for point sources have to be put into permits.
Senator Crapo. Right.
Mr. Holm. And I think most States have used TMDLs that way
that have done TMDLs.
Senator Crapo. Let me--this is really for my edification,
but I'd like to try to go back to the example I was using with
regard to Coeur d'Alene, ID and the basin up there. And I
realize none of you are probably aware with much detail there
so you'll have to just use this as an example and trust my
recitation of the facts. But, that is an ecosystem, if you
will, or a basin which has had a tremendous amount of historic
hard rock mining for hundreds, for a hundred years or more and
so there have been some point source issues, but there has been
so much mining throughout the upper reaches of the basin that
now there's runoff questions and things like that where you
really--I think there's a lot of non-point source issues as
well.
And it seems to me as we focus on the question of whether
this really is something which the local community has control
over that I saw an interesting dynamic because the Agency
officials in all sincerity believed as they testified that this
is something where the States can figure out what to do and if
they can do it, they can do it.
The problem was as I have come to evaluate it and the
testimony of this panel is helping me to see this even in more
clarity, that the definition of the standard pretty much
establishes what must be done for the implementation. And so
you can control the implementation decisions by the standards
that you set. And I'd just like your comment on that. Am I
correct in that assumption or in that conclusion?
Ms. Adams.
Ms. Adams. That's exactly right. In Kansas we made that
mistake and that's my own personal opinion in setting our water
quality standards about 10 years ago with the idea that they
were goals and now they're not goals anymore. And we set them
at very, very protective levels. Once you do that there is an
extreme burden to change them. We have a natural salt intrusion
problem in the center part of our State and at the time that
those regulations were passed they didn't take that into
consideration. We have 20 years' worth of the data to show that
it's a natural intrusion and if you think we can get region 7
to change their mind on that issue, it won't happen.
Senator Crapo. And as long as the region, is region 7
doesn't change its mind the only way to achieve that standard
if it's achievable is very narrowly limited.
Ms. Adams. To nail the point sources down till they can't--
they're putting cleaner water back in the river than what
they're getting out.
Senator Crapo. Any other comments on this aspect, Mr. Holm?
Mr. Holm. I can relate very directly to the problem of
Coeur d'Alene. In Colorado our most difficult water quality
problems are related to past mining and we've been working on a
number of basins that have very similar problems to Coeur
d'Alene and I'm quite familiar with Coeur d'Alene, as well.
There are a couple of points that I wanted to make and
maybe these are things that would be of value.
First of all, it's true that the Gold Book standards, the
table value standards will rarely be achievable in watersheds
that have been heavily altered both geothermally by the
mineralization process and then by man's activities in mining.
So therefore, it's a given fact that site specific standards
are going to be needed. The other thing though is that with
abandoned mines there's a unique problem, there are no
operators. You have a succession of landownership where there's
no activity any longer taking place that would warrant some
sort of treatment.
Senator Crapo. Right.
Mr. Holm. Being imposed. And one of the problems in the
Clean Water Act is that even if people who don't have
responsibility for those problems enter in and try to do
something that would make good sense to improve water quality,
they could become responsible for the problem and get tagged
with the costs of cleaning up to the water quality standards.
There has been discussion of a Good Samaritan provision
under the Clean Water Act and I would really urge you to take a
look at that and consider supporting it. And what that would do
is allow people to come forward with projects that would make
the most sense to abate the pollution problems that are there
short of installing chemical and physical treatment plants at
every old abandoned mine site.
Senator Crapo. Without picking up liability.
Mr. Holm. Without picking up liability, but a permitting
process where there would be some rigor. It's just that it
would be based on practical management practices, the best
management practices for a given type of problem. When that
kind of a program was put into place in a basin that was
impacted like Coeur d'Alene is, there would be a result in
water quality. The water quality would be improved to some
degree and at that point I think there would be a very solid
case to be made that the residual water quality problems are
really part of the background. They are--in other words, a
higher level of water quality is just simply not attainable.
That would provide a basis for site specific standards.
Senator Crapo. Thank you. Mr. Parrish.
Mr. Parrish. If I may add, you're right that the standards
set the goal for the TMDL process. If that goal is deemed
unreasonably high in specific instances, there is a process in
place for changing it. Now frankly, my experience is exactly
the opposite with EPA. I have seen EPA only too willing to
consider changing a standard to reflect a natural dissolved
oxygen level in swamp water for instance that is unattainable
given the routine standard for most surface waters in the
Commonwealth of Virginia.
That's perfectly reasonable. I suspect there's a serious
miscommunication problem if they're--if EPA is seemingly
demanding higher than natural standards in Kansas or elsewhere.
That is not national policy.
Senator Crapo. I don't.
Mr. Parrish. And I will tell you that the first TMDL
produced by the State of Tennessee and approved by EPA just
last year included a site specific standard because it was
deemed that cleaning up that small waterway to fit the State
and national standard otherwise applicable was simply not worth
the investment to society. A different standard was proposed,
EPA accepted it, and the public can live with it. That process
is in place.
Senator Crapo. Good, Mr. Parrish, that is actually very
good news for me to hear you say because I only have the one
experience I've described here today in Idaho where the process
was technically in place, but I'll tell you it's been like
pulling teeth to get it to work.
In fact, the standards that they were imposing and still
are imposing, are such that if you were to go up into the
highest parts of the watershed above any manmade activity and
take the purest water you could get it would be out of
compliance.
And in fact, I can go on with the stories about this. And
it's simply because of the regional circumstances of the
geography or whatever the word is that I should be using there.
And everybody agrees, but for some reason in our case it
doesn't seem to be working. And so I'm hopeful that we are an
aberration that is not the norm and that what you described is
accurate. That it works that way most of the time.
Mr. Parrish. But it even sounded as if it was working that
way in Coeur d'Alene. It's just taking a while.
Senator Crapo. It's taking a while, but it shouldn't have
to take a U.S. Senator 8 months to make it work is what I'm
saying.
Yes, Mr. Nielsen.
Mr. Nielsen. Your example you brought up though was
something that we wrestled with on the Advisory Committee, the
historical or legacy problems that really pre-dated any of the
Clean Water Act. And I think the current regulations make
exceptions for sites similar to this. We have a situation in
Wisconsin of PCB deposits in the Fox River, that's an example
of that. There are other cases that we talked about and they're
scattered throughout the entire country so it's not an isolated
example. There will be such situations.
And I think the regulations or the recommendations if I
recall from the EPA are to deal with it in a manner that Mr.
Holm suggested that there would be exceptions for backgrounds
that would be contributed by these sources and there would be a
longer time period beyond the 15 years to deal with that.
Mr. Parrish, is that your recollection on how we decided?
Mr. Parrish. More or less. I don't think there is actually
an exemption in the current regulations, but there's an
understanding that these much more difficult problems are going
to take longer and are not going to lend themselves to the same
kinds of point source or non-point source reductions that
hopefully will fix most of the problems.
Senator Crapo. Mr. Parrish, I have one question specific to
you and I do want to say that as we've all said here that clean
water is extremely important to us and we want to see it solved
and that we have work to do. And I'll be the first to
acknowledge that.
You know I'm often asked, being from Idaho, by my
constituents why would you leave here and go live in
Washington, DC., why do you want to go do that, because we have
beautiful clean water and clean air and wonderful environment
and we want to make it cleaner and keep it that way, so it's
something we can all identify with.
And I appreciate your perspective as a FACA member having
gone through the process. And in your written testimony you
focused on the implementation plan as an area of agreement and
it's my understanding that there was disagreement as to whether
the implementation plan should be included in Sec. 303 or
303(e), which basically comes down to whether the EPA has the
authority to approve or disapprove and to rewrite a State
implementation plan. And to me that seems to be pretty
critical. What's your opinion on that issue?
Mr. Parrish. Your understanding is correct. There was
agreement, complete consensus on the Advisory Committee that
TMDLs were worthless if they were not implemented.
Senator Crapo. Right.
Mr. Parrish. And that implementation plans should be part
of a TMDL-based watershed recovery plan.
There was a difference of opinion about whether it should
be part of that plan formally and submitted to EPA for review
and approval under section 303(d), or developed concurrently or
perhaps afterwards, but separately, and submitted as part of
the watershed management plan under section 303(e). And the
difference is largely whether it will be subject to EPA review
and approval.
From a practical standpoint I have firm belief that if
implementation plans aren't done with TMDLs and reviewed as
part of the TMDLs they are not going to be done.
And if implementation plans are prepared but not subjected
to review and approval, well we've seen 20 years of that and I
frankly don't think it's worth anything.
Senator Crapo. If there were not--is there any enforcement
mechanism if the EPA doesn't have oversight? I mean what
happens under section 303(e)?
Mr. Parrish. No enforcement mechanism whatsoever. The
fallback position for those who work to clean up waters really
is asking EPA to step in and take over State programs because
States aren't doing the job. That's something nobody wants as a
practical matter.
Senator Crapo. Mr. Holm.
Mr. Holm. If the TMDL is established and approved by EPA
under the current rules, the TMDL must be implemented through
NPDES permits that are issued. So clearly there is an
enforceable mechanism for the point source component of a TMDL
right now, today. With regard to the non-point sources it's
true that if implementation plan was done under section 319 or
as part of the continuing planning process section 303(e) that
that would not separately be approvable by EPA and frankly, I
think the States feel that that is a plus. We think that
there's an orderly sequence that needs to take place when
you're involving real people in this process.
And the first part of that is to develop standards. The
second part is to translate those standards into a water body,
a very specific water body. That's the TMDL. After that,
allocating responsibilities, developing an implementation plan
can follow. If you try to force that at the same time you are
establishing a water body specific goal everybody just runs
away. It stifles the process and you just don't get there.
Senator Crapo. Ms. Adams, I just wanted to ask you, you
mentioned a State voluntary incentive-based program to reduce
runoff. Can you elaborate on that or maybe share your thoughts
on how such a program might formulate a basis for an
alternative solution to the current proposal or a supplement to
it?
Ms. Adams. That specifically was part of the Governors
Water Quality Initiative and what we did we went into the
Kansas lower republican basin, it's our most populous basin. It
has a mixture of industrial, agricultural and it has a lot of
surface waters so it was a good test area for us. We also grow
row crops in that area that use a lot of atrazine to keep the
weeds down. We identified that Perry Lake, which is a drinking
source, had an atrazine problem. We offered a $5-per-acre
incentive payment from State funds to producers in the sub-
basin if they would apply the atrazine when Kansas State
University had determined was the best time to put atrazine on
so it wouldn't run off with the spring rains. We bought half
time of the county extension agent. He went out door-to-door to
every farmer and talked to them about the program, why they
needed to do it and why it was economically feasible for them
to participate. He got them to enroll in the program and they
applied the atrazine at the appropriate time. They then got
their $5-an-acre payment. The levels of atrazine in the lake
have dropped to below the drinking water standard.
We have used the Buffer Initiative. We provide a State
incentive payment on top of the CRP payment to enroll buffer
strips, again in targeted areas to reduce runoff. We've had
very good luck getting people to enroll. We're doing the
monitoring now to see what kind of results that we've had. The
city of Wichita in the Cheney Lake project put a million
dollars in of their own money with some Federal moneys and some
State moneys to work with producers to reduce non-point
loadings so that they wouldn't have to build an addition on to
their drinking water plant.
So, we've had a lot of good luck with providing the
payments. But, you have to provide the understanding of how it
helps them economically. I mean it doesn't help a producer to
put on atrazine and have it all run in the river because it
doesn't do it's job. And help them do the kinds of things that
need to be done. But it was very successful. And now that
incentive program is over and all of the landowners in that
basin are continuing to apply the atrazine in the best
management practice manner even without the incentive.
Senator Crapo. I just have a couple of more questions. But
Mr. Parrish, I'd like to ask your observation on this and
anybody else who wants to pitch in on this. There's a voluntary
approach there, sort of an incentive-based approach that a
State has come up with. How does the EPA or how should the EPA
evaluate this in terms of determining whether the States plan
is going to achieve the objective? It seems to me that you
don't know whether a States proposal is going to work until
you've been out experiencing it for 5 or 10 or 15 years or
whatever the time period is. And yet the State or the EPA has
to approve this up front, doesn't it? How does that all work?
Mr. Parrish. The EPA has to approve non-point source
reduction components of a proposed TMDL in advance of the
implementation. These are the types of programs EPA has said
would likely be approved. And the types of factors are whether
there is, in fact, some funding to support them. Whether there
is a track record. Whether there are educational materials and
a program for getting them out to the landowners. These are the
types of programs that distinguish a reasonably likely success
from a wing and a prayer.
But if you propose a non-point source reduction from
agriculture, forestry or anything else and you don't really
have any solid reason for predicting that it will succeed, then
that's the type of program I would expect EPA to say, ``No, we
need better than this.''
Senator Crapo. OK. The last issue or question I want to get
at is one that we've talked about a little already, but I want
to just explore it a little bit one more time with the panel.
I'm a very big proponent of collaborative decisionmaking
and in my opening statement I referred to a book by Dan Kemmis
from Montana that talks about that issue in some context. To me
collaborative decisionmaking just by definition means that
people from all the perspectives that we can get, as broad a
base as we can get, come together and sit down and try to
understand each others concerns, define objectives and figure
out solutions and try to do so in a way that is a win/win for
everybody.
In fact, Dan Kemmis puts a chart in his book which he got
from somebody else. Which is an X/Y axis, with say the X axis
being the economy and the Y axis being the environment. And he
makes the argument which I agree with, that the current
environmental decisionmaking process that we often find
ourselves in results in solutions on that X/Y axis graft that
are close to the intersection of the two axis, namely they're
low for the environment and low for the economy. And they're
really high on conflict, but they're low in terms of results
from whichever perspective of those two parameters that you
choose to view it.
He also contends and which I agree with, that there are
solutions that are further up on the X and further out on the
Y, or further out on the Y and out on the X axis, that are
higher for the economy, better for the economy and better for
the environment. And that those solutions are best achieved by
people who are closest to the particular issue that is being
discussed.
With that in mind as a kind of perspective that I come
from, it seems to me that true collaborative decisionmaking
means that the--must mean that the people who are sitting at
the table doing the collaborating have to have the ability to
make the decision. And that if there is someone at the table or
someone who's not at the table who is ultimately going to make
the decision then it's not really collaboration. It might be
advice or consultation and it might be a good discussion, but
it's not really a circumstance in which people from competing
perspectives, competing interests and competing jurisdictions
are sitting down and if you will, I don't think it's exactly
this way, but negotiating about how to achieve these results
which hopefully are better on both the economy and the
environmental axis. And I would just like your comment on that.
What I'm really getting at is this question of whether we
will be able to have effective collaboration if, in this case,
the EPA is the one who holds all the cards on being able to
make the decision or said another way, perhaps this FACA
Committee with all the different perspectives at the table
should have been able to make the decision and it would be
binding and would we have had a better solution had something
like that worked? Mr. Nielsen.
Mr. Nielsen. Mr. Chairman, my experience with this comes
from some demonstration projects that we did throughout the
State of Wisconsin. I don't think even at the FACA level these
decisions can be made. You have to actually have the landowners
and the people in that actual watershed that are sitting at the
table making the decisions.
Ms. Adams brought up the trading program. The trading
program that is prescribed by the EPA and the offset program is
fatally flawed. Trading programs do work, but they only work on
a local level where there's joint and mutual benefit.
I need to trade copper, there's nobody in the agriculture
community that's going to trade copper with me. I need to trade
zinc, I can't find anybody even--no one in the manufacturing
community is going to trade copper or zinc with me either. So
we're in a bind. We're faced with a couple million dollars
improvement to our sewage treatment plant.
So, those are the kind of--the solutions and you've said
this and other people throughout the hearing, the solutions
really rest at the local level. And they're going to have to be
hammered out watershed by watershed. I've seen some problems
with that. You run into problems of political jurisdiction. In
the State of Wisconsin we can't even get our neighboring
township to cooperate with us, so I think you're going to have
to set up governmental units that deal with it on a watershed
basis.
California has done this, they're way ahead of the curve on
those.
The other problem you run into and Mrs. Adams alluded to
this, when you're dealing with farmers and the price of milk.
I'm not here to talk about milk even though I'm from Eau
Claire. The price of milk goes below $10 per hundred weight,
the farmers are saying, ``I'd love to do this, but I'm just
trying to survive.''
Senator Crapo. ``I can't.'' Right.
Mr. Holm.
Mr. Holm. This brings up an issue that I'd hope to touch on
earlier and that is that what you're talking about in the way
of collaborative decisionmaking takes time and it costs money.
And that's not been built-in to this proposal at all. Not in
any way, shape or form. You have to host these kinds of
watershed conversations. It takes gifted people to do that so
that it does become a collaboration. It takes creative people
that are going to persist until they really do find that point
that you're describing where it's win/win, it's least cost, and
most benefit. It takes trust building. It takes a lot to
achieve that goal. And it's exactly what we ought to have
before us as the goal, the next goal for water quality
management.
It's not a quick hit. But the point I wanted to make is
that it's not going to be free either at the community process.
Senator Crapo. Good point. Mr. Parrish.
Mr. Parrish. I would say this program presents an enormous
opportunity for collaboration, but it is not going to be
completely unbound. There is nationwide interest in clean
water, and there are national standards in place that can only
be departed from with a specific demonstration that it's in a
very strong local interest to depart from those standards.
But in terms of choosing how to meet that goal, there's
almost complete discretion built into this program as long as
what the State and local efforts decide upon has a reasonably
good chance of succeeding.
Now as far as time, we've got 15 years built into the
regulations as is, and this is on top of almost 30 years of
experience or perhaps not so much experience, after the
requirement first was adopted by Congress. I think we've taken
more than enough time already, and we have an awful lot of
additional time built into the regulations as is. Resources and
money, I agree, we're going to need more across the board. EPA
is proposing almost $100 million more this year. I think that's
going to get us well down the road. Some States are already
proposing or rather appropriating additional moneys of their
own because they're not willing to wait on the Federal funding.
You're going to see a mixed bag across the country. We've
got a lot to learn, but we're not going to learn any of it just
talking about our commitment to clean water.
Senator Crapo. Mr. Archey.
Mr. Archey. I think if we're trying to achieve that farther
out X and higher Y it's possible certainly in the context of
collaboration. The thing that comes to mind to me, for
instance, is if we're going to require people to do more things
at greater costs because of public benefits for instance, clean
water off their property because of their activities, then we
better be able to somehow reward that good work. And I think
that kind of thing will push that intersection point up there
where we realize that we want both. But if we want both, let's
pay for the one that may be suffering the most.
Mr. Nielsen. Mr. Chairman, I think you mentioned you were--
you've been a Senator for 7 years.
Senator Crapo. No, I've been in Congress for 7 years. I was
in the House for 6 and this is going on 8 years.
Mr. Nielsen. If you look at what was achieved in the early
years of the Clean Water Act through dealing with point
sources, most of that funding came from the Federal Government.
This is a nationwide problem. And I would concur with the rest
of the panelists that I think we need to look at Federal
funding sources to deal with this nationwide issue.
I would mention that Dan Kemmis, when he was the Mayor,
served on our National League of Cities Board of Directors.
Senator Crapo. Yes, he was the Mayor of Missoula, wasn't
he?
Mr. Nielsen. Was he in Missoula? I don't know; it was
before my time. Missoula is a great town.
Senator Crapo. All right, anybody else want to get in their
last hit?
[No response.]
Senator Crapo. OK, let me thank you. I know that it's been
a long afternoon for all of you, but these are very critical
issues and I can assure you that this committee is going to pay
very close attention to them. We want to find the right
solutions and we're going to be paying as close attention as we
can and perhaps finding some bipartisan solutions at this level
or if possible driving it as far out as we can into the local
regions with that flexibility we've talked about. But thank you
all for your attendance here.
The hearing is adjourned.
[Whereupon, at 4:40 p.m., the subcommittee was adjourned,
to reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Hon. Max Baucus, U.S. Senator from the State of Montana
Thank you, Mr. Chairman.
This is an important hearing. The new Clean Water Act ``TMDL''
regulations cut right to the heart of the matter.
That is, how do we keep making progress toward the goal,
established in 1972, of ``restoring and maintaining the chemical,
physical, and biological integrity of the nation's waters'' so that,
wherever possible, those waters are fishable and swimmable (section 101
of the Act).
As we all know, we've made a lot of progress. But we're not there
yet, by a long shot. More than 25 years after the original Clean Water
Act was enacted, almost 40 percent of our waters still do not meet
water quality goals.
TMDLs can be an important part of the solution. But establishing a
good TMDL program won't be easy.
It's like it is with other pollution control laws. Imposing
technology standards is the easy part, at least relatively speaking.
Achieving ambient standards, in this case clean water, is the hard
part.
I think of a TMDL as a pollution budget for a watershed. Kind of
like the Clean Water Act version of a Clean Air Act State
implementation plan.
Like with a SIP, establishing a pollution budget for a watershed is
complex. What's the target? Who bears the burden? How do you monitor,
and measure progress? How much authority rests with the States, rather
than EPA?
I think that, with some prodding from the courts, EPA is basically
on the right track with these proposed new rules.
But I have two general concerns.
The first is with the proposal to repeal the regulation that treats
most silviculture practices as nonpoint sources rather than point
sources. I've written Administrator Browner about this, and Assistant
Administrator Fox has made a partial reply, which I ask be included in
the hearing record.
I appreciate the progress that this exchange of letters represents.
But I'm still not convinced that, as a matter of law or policy, EPA's
silviculture proposal makes sense.
My second concern is with the level of prescription in the new
rules. Governor Racicot and others will address this.
We need to make sure that, as the courts have insisted, EPA and
States get on with the job of developing TMDLs.
But we need to do so in a way that enhances, rather than detracts
from, the operation of good State programs.
I look forward to continuing to work with EPA, the States, and
others to help strike the right balance.
______
Statement of Marc Racicot, Governor of the State of Montana
Mr. Chairman, Senator Reid, and members of the committee, I am Marc
Racicot and I have the pleasure of serving as Governor of the State of
Montana.
I greatly appreciate the invitation to share my thoughts regarding
the Clean Water Act and specifically Total Maximum Daily Load (TMDL).
This is of great importance to our State, both to our people and the
resources we cherish.
We are pleased this committee is taking an active role in reviewing
the Environmental Protection Agency's (EPA) proposed revisions to the
agency's water quality regulations, 40 CFR Part 130, published in the
Federal Register on August 23, 1999.
Before I begin, I want to mention to the subcommittee members that
I have attached to my testimony the formal comments I submitted on
behalf of the State of Montana to EPA on this proposed rule. Our
State's natural resource agencies worked together to analyze the
proposed rule and to develop the consensus comments attached.
The State of Montana is very committed to achieving the clean water
goals set forth in Section 303(d) of the Clean Water Act (CWA). This is
especially demonstrated through our 1997 passage of State legislation
pertaining to the Total Maximum Daily Load (TMDL) process.
Our TMDL amendments to the Montana Water Quality Act successfully
address many of the same issues that are now the focus of EPA's
proposed rules. Our comprehensive State law establishes 303(d) listing
methodologies and criteria, specifies a public involvement plan, sets a
10-year schedule for statewide TMDL development, addresses TMDL
implementation and monitoring, and authorizes pollution offsets.
As well, our State TMDL program funding appropriation provides new
State revenues for accelerated water quality problem solving. Indeed,
we are currently achieving at the State level what EPA hopes to
accomplish nationally with the proposed rules.
EPA's presumption that solutions to long-standing national TMDL
issues must be prescribed within the context of new Federal regulations
is at the core of Montana's concerns over the proposals. We fear that
the program changes envisioned by EPA will add unnecessary and
inappropriate specificity that will ultimately hinder the success of
our current program.
The proposed changes could seriously compromise our State program
goals and strategy, undermine recent intensive implementation efforts
and public trust, and reduce our overall progress in achieving the
water quality restoration goals of the Federal Clean Water Act.
Mr. Chairman, I would like to mention briefly the process which
lead up to enactment of our State law. And, I must confess, we are very
proud of the work we have accomplished to date.
A dialog was begun late in 1996 between Montana natural resource
agencies, businesses and industries, and conservation groups to gage
interest in developing State TMDL legislation which would address these
concerns. A briefing paper was developed and distributed and a broad
range of interests were invited to participate on a work group to draft
legislation.
Over several weeks, the group met regularly to revise drafts of a
bill and to try to achieve consensus on bill content. While complete
agreement was not achieved prior to the deadline for submitting the
bill, remarkable progress was made in coming together on many of the
issues. This effort paid off in strong support for passage of the bill
in both houses of Montana's legislation and few amendments in the
legislative process. House Bill 546 was passed into law in the State of
Montana and became immediately effective with my signature on May 5,
1997. Funding totaling nearly $1.4 million for the biennium was also
provided by the Montana legislature.
At the heart of Montana's program is the TMDL Advisory Council. The
Council is made up of representatives from agriculture, industry,
environmental groups, State and Federal agencies, and recreationists.
The group provides input and advice to State decisionmakers and
professional staff, and helps insure that the development and
implementation of measures to improve water quality are truly grass
roots approaches. We believe that those landowners and users who are
asked to host and support on-the-ground measures should have a say in
their development.
Although EPA's stated objective in developing the proposed rules
was to strengthen the efficiency and effectiveness of the Clean Water
Act's TMDL program, the rules do little to accomplish this objective.
Instead, the new regulations would add unnecessary complexity to
Montana's ability to develop TMDLs in a timely fashion. The new
regulations appear to focus on listkeeping and technical reporting to
EPA, rather than effective assessment, implementation, and resolution
of water quality problems. The rules also create a regulatory framework
that is inherently inconsistent with section 303(d) of the CWA.
Specifically, the rules create a presumption that a State's entire
TMDL program, including its process and methodology of identifying
impaired waters, prioritizing those waters, developing TMDLs for those
waters, and addressing nonpoint sources in its TMDL process, are all
subject to EPA's approval. In effect, the rules provide EPA with a
``veto'' power over a State's entire TMDL program. This is not a power
envisioned by Congress when it granted EPA a limited oversight role to
review a State's submission of lists and TMDLs under section 303(d).
The State of Montana objects to the imposition of regulations
establishing regulatory requirements over every component of a State's
TMDL program when Congress has not sanctioned that approach.
One of the primary drawbacks of EPA's proposed regulations is that
they impose numerous regulatory details to address prior inefficiencies
in TMDL development that have already been addressed by many States.
Montana has already accomplished what EPA is attempting to achieve
through the proposed rules. Montana is already more than 2 years into
the process of making comprehensive changes to its 303(d) listing
methodology and creating a publicly supported approach to development
of TMDLs. We have a TMDL development schedule, new listing methods and
decision criteria, a new publicly accessible data base to support
listing decisions, a new TMDL prioritization process, and we have been
working with local groups to ensure that TMDLs will be implemented over
the long term with reasonable assurance.
Also, Montana's monitoring provisions require that after 5 years,
TMDL plans will be evaluated to determine if implementing organizations
are making satisfactory progress. While we recognize the need for
consistent guidance to States and the public regarding TMDLs, the new
regulations do not give those States already implementing programs of
their own enough latitude to determine appropriate management measures,
especially for land use-related nonpoint source problems.
In its finalization of the rules, EPA must acknowledge that Montana
and many other States have already developed processes, methods and
approaches to meet court, legislative or stakeholder demands for their
existing TMDL programs. In many cases, EPA's proposed new substantive
rules might be disruptive and expensive to States that have already
developed effective TMDL programs endorsed by stakeholders and elected
officials. This issue is at the forefront of Montana's concerns with
the rules as currently proposed.
Existing processes and approaches that meet court decrees and/or
provide positive and beneficial results should not be compromised or
superseded by these new rules. At the same time, States should be
encouraged to be innovative in developing new processes and approaches
that achieve the results envisioned by these rules in a more efficient
manner.
With this in mind, the State of Montana encourages EPA to apply a
``functional equivalency'' test to State TMDL programs prior to the
imposition of any new program requirements. The test would provide a
demonstration that a State process, method or approach achieves the
same desired results intended to be achieved by the proposed rules.
There are numerous examples of these cases, including how States
prioritize their lists, incentives that States have built into their
programs to achieve correction of impaired conditions in lieu of a
TMDL, and recognition of various approaches to implementing TMDLs.
Frankly, Mr. Chairman, we strongly believe EPA must recognize that
``one size does not fit all'' and the TMDL rules must remain open to
alternative methods of doing business that achieve comparable results.
We are also seriously concerned about the fiscal implications of
the proposed changes. By all indications, the proposed program and its
increased scientific rigor and reporting burden would cost
substantially more to administer while achieving fewer water quality
improvement results. The State of Montana operates its current TMDL
program on a limited budget but achieves a high degree of efficiency
through local leadership and volunteerism and by minimizing
administrative overhead costs. Increasing program administrative costs
would translate directly to less money available for local, on-the-
ground implementation of water quality improvement measures.
The State of Montana is very concerned that the new TMDL rules
would result in significant additional costs to States over current
law. According to EPA's Water Quality Workload Model, Montana currently
has minimal resources to run a TMDL program under the rules as they now
stand. Currently, the Montana Department of Environmental Quality (DEQ)
has about 13 FTE (full time employees) committed to water quality
standards activities, including monitoring, reporting and TMDL
activities, with a budget of about $1.35 million. EPA's Water Quality
Workload Model: Draft Module 2, when calibrated to Montana's
parameters, suggests that 58 FTE and a total budget of about $4.9
million would be needed to implement TMDLs on time under the rules as
they now stand.
It follows then that the new and more complicated rules proposed by
EPA would set back the staff and unduly slow the TMDL process unless
additional resources were obtained. In addition, the new rules undo
much of the work and fiscal investments already put into Montana's
current TMDL program. By our most conservative estimate, DEQ would need
at least twice the current resources to comply with the proposed rules
in a timely fashion. Our best guess is that between 22 and 24
additional FTE over the 13.5 currently employed would be needed to
comply with the new TMDL rules, along with several tens of thousand of
dollars in new equipment.
Again, Mr. Chairman, for the new regulations to be successful in
achieving national clean water goals, they must accommodate a degree of
flexibility on the part of the States that are charged with primary
responsibility to implement the TMDL program. The rules must
acknowledge that individual States are in the best position to
formulate the most effective and efficient water quality improvement
strategies for their regions.
The rules must also recognize that States have primary
responsibility for achieving water quality improvements through State
authorized and funded programs. EPA also needs to carefully consider
the water quality consequences of proposed program changes toward more
intensive agency list keeping, administrative oversight and analytical
rigor, and less focus on community based water quality problem solving.
The top-down, prescriptive complexion of the proposed rule is
contrary to the Clean Water Act and contrary to Montana's grassroots
approach to TMDL development. Last, but no less importantly, EPA must
remain sensitive to the need for additional State resources if national
clean water goals are to be further expedited. In accordance with these
basic tenants, the State of Montana recommends the following changes to
the proposed rule:
1. We support the need for a consistent, technically sound and
well-documented listing methodology as the foundation for State TMDL
programs. EPA should provide non-regulatory guidance to aid States in
developing sound methods, should accommodate flexibility in adopting
these methods, and should accept methods documentation on the same
schedule as the 303(d) List submittal.
2. EPA should require the submittal of a one-part 303(d) List of
water quality-limited segments and should retain an optional provision
for listing threatened waters and those impacted solely by
``pollution''. A tracking mechanism is needed for water quality-limited
segments with approved TMDLs, but decisions to retain or de-list water
bodies following TMDL approval and pending water quality standards
attainment are best left to the States.
3. We support changes that would require less frequent mandatory
reporting. EPA should adopt a 5-year 303(d) reporting cycle and retain
current provisions for interim list modifications.
4. The State of Montana supports the proposed 8- to 15-year TMDL
scheduling requirement, but recommends the inclusion of provisions for
periodic adjustments during subsequent listing cycles. We urge EPA to
continue to accommodate State flexibility in establishing TMDL
prioritization criteria and in targeting water bodies for TMDL
development. Specifically, endangered species and drinking water issues
should be considered in State TMDL priority setting, but should not
necessarily take precedence over all other possible State concerns and
priorities.
5. We support the need for timely implementation of TMDLs,
including the need for accountability and reasonable assurance of water
quality improvement. These concepts are an important part of Montana's
program and implementation plans are a standard component. However, we
propose that EPA's minimum required TMDL elements be provided in the
form of guidance to States, not regulations. Allowances for future
growth, however, are a local issue that should not be addressed within
the guidance.
6. We encourage EPA to retain States' discretion to use alternative
expressions of TMDL water quality improvement targets in lieu of actual
load reductions, in cases where this is appropriate. This is consistent
with EPA's current TMDL development guidance and would ensure the
needed State flexibility to select the most appropriate and cost-
effective units of TMDL expression for each water quality improvement
project.
7. We fully endorse the need for public involvement in all phases
of the TMDL process and this is at the cornerstone of Montana's
program. However, additional EPA specificity in this regard, achieved
through rule revisions, is unnecessary and unwarranted.
8. EPA should recognize the States' primary role in implementing
Section 303(d) and should not create a petition process that encourages
EPA intervention in State TMDL programs. If this concept is to be
retained in the rule, specific requirements should be added which
require petitioners to demonstrate a good faith effort to resolve their
issues with the State and to submit relevant supporting information.
States should also be granted an opportunity within the rule to respond
to petitions prior to any intervention on the part of EPA.
9. EPA should approve any State TMDL submitted within 12 months of
the final rule changes as long as it meets pre-amendment or post-
amendment requirements.
10. The required inclusion of atmospheric deposition in non-point
source pollution load allocations is premature, given the State of the
available science. States should be delegated the authority to decide
how and when, on a case-by-case basis, State air quality management
issues should be coupled with the TMDL process.
11. Montana supports the concept of giving special consideration to
threatened and endangered species during the TMDL process. Montana does
not agree, however, that the rules should require States to engage in
the consultation procedures applicable to Federal agencies under
Section 7 of the Endangered Species Act. Instead, the rules should
simply require States to informally involve the assistance of the U.S.
Fish and Wildlife Service during TMDL development.
12. Considering that the new TMDL rule would result in significant
additional costs to the State of Montana, we recommend that EPA more
accurately quantify these costs and address solutions to the
anticipated State fiscal shortfalls before finalizing the rule package.
Finally, Mr. Chairman, we are concerned that, despite receiving
several tens of thousands of comments on the proposed rulemaking, EPA
intends to ``fast track'' the proposed rules into adoption this summer.
We ask that the agency consider carefully the concerns expressed by
various States and stakeholders, and reserve to those States the
discretion to continue to administer the TMDL programs in which we have
invested so much effort and are receiving such good results.
Again, Mr. Chairman and Senator Reid, thank you for the invitation
to join you today and for considering our thoughts on this important
issue.
Office of the Governor,
Helena, MT, January 19, 2000.
Hon. Carol M. Browner, Administrator,
U.S. Environmental Protection Agency,
Washington, DC.
Attn: Water Docket (W-98-31)
Re: Proposed Revisions to the Water Quality Planning and Management
Regulations
Dear Administrator Browner: I am writing to you on behalf of the
State of Montana concerning the Environmental Protection Agency's
proposed revisions to the agency's water quality regulations, 40 CFR
Part 130, published in the Federal Register on August 23, 1999. We
appreciate the opportunity to comment on the proposed rule. Our State
natural resource agencies have worked together to analyze the proposed
rule and to develop consensus comments.
The State of Montana is very committed to achieving the clean water
goals set forth in Section 303(d) of the Clean Water Act (CWA), as
demonstrated through our 1997 passage of State legislation pertaining
to the Total Maximum Daily Load (TMDL) process. Our TMDL amendments to
the Montana Water Quality Act successfully address many of the same
issues that are now the focus of EPA's proposed rules. Our
comprehensive State law establishes 303(d) listing methodologies and
criteria, specifies a public involvement plan, sets a 10-year schedule
for statewide TMDL development, addresses TMDL implementation and
monitoring, and authorizes pollution offsets. As well, our State TMDL
program funding appropriation provides new State revenues for
accelerated water quality problem solving. Indeed, we are currently
achieving at the State level what EPA hopes to accomplish nationally
with the proposed rules.
EPA's presumption that solutions to long-standing national TMDL
issues must be prescribed within the context of new Federal regulations
is at the core of Montana's concerns over the proposals. We fear that
the program changes envisioned by EPA will add unnecessary and
inappropriate specificity that will ultimately hinder the success of
our current program. We encourage the application of a ``functional
equivalency test'' to State TMDL programs prior to considering the need
for more Federal oversight. Montana would very likely pass such a test.
For the new regulations to be successful in achieving national
clean water goals, they must accommodate a degree of flexibility on the
part of the States that are charged with primary responsibility to
implement the TMDL program. The rules must acknowledge that individual
States are in the best position to formulate the most effective and
efficient water quality improvement strategies for their regions. The
rules must also recognize that States have primary responsibility for
achieving water quality improvements through State authorized and
funded programs. EPA also needs to carefully consider the water quality
consequences of proposed program changes toward more intensive agency
list keeping, administrative oversight and analytical rigor, and less
focus on community based water quality problem solving. The top-down,
prescriptive complexion of the proposed rule is contrary to the CWA.
and contrary to Montana's grassroots approach to TMDL development.
Last, but no less importantly, EPA must remain sensitive to the need
for additional State resources if national clean water goals are to be
further expedited. In accordance with these basic tenants, the State of
Montana recommends the following changes to the proposed rule:
1. We support the need for a consistent, technically sound and
well-documented listing methodology as the foundation for State TMDL
programs. EPA should provide non-regulatory guidance to aid States in
developing sound methods, should accommodate flexibility in adopting
these methods, and should accept methods documentation on the same
schedule as the 303(d) List submittal.
2. EPA should require the submittal of a one-part 303(d) List of
water quality-limited segments and should retain an optional provision
for listing threatened waters and those impacted solely by
``pollution''. A tracking mechanism is needed for water quality-limited
segments with approved TMDLs, but decisions to retain or de-list water
bodies following TMDL approval and pending water quality standards
attainment are best left to the States.
3. We support changes that would require less frequent mandatory
reporting. EPA should adopt a 5-year 303(d) reporting cycle and retain
current provisions for interim list modifications.
4. The State of Montana supports the proposed 8-15-year TMDL
scheduling requirement, but recommends the inclusion of provisions for
periodic adjustments during subsequent listing cycles. We urge EPA to
continue to accommodate State flexibility in establishing TMDL
prioritization criteria and in targeting water bodies for TMDL
development. Specifically, endangered species and drinking water issues
should be considered in State TMDL priority setting, but should not
necessarily take precedence over all other possible State concerns and
priorities.
5. We support the need for timely implementation of TMDLs,
including the need for accountability and reasonable assurance of water
quality improvement. These concepts are an important part of Montana's
program and implementation plans are a standard component. However, we
propose that EPA's minimum required TMDL elements be provided in the
form of guidance to States, not regulations. Allowances for future
growth, however, are a local issue that should not be addressed within
the guidance.
6. We encourage EPA to retain States' discretion to use alternative
expressions of TMDL water quality improvement targets in lieu of actual
load reductions, in cases where this is appropriate. This is consistent
with EPA's current TMDL development guidance and would ensure the
needed State flexibility to select the most appropriate and cost-
effective units of TMDL expression for each water quality improvement
project.
7. We fully endorse the need for public involvement in all phases
of the TMDL process and this is at the cornerstone of Montana's
program. However, additional EPA specificity in this regard, achieved
through rule revisions, is unnecessary and unwarranted.
8. EPA should recognize the States' primary role in implementing
Section 303(d) and should not create a petition process that encourages
EPA intervention in State TMDL programs. If this concept is to be
retained in the rule, specific requirements should be added which
require petitioners to demonstrate a good faith effort to resolve their
issues with the State and to submit relevant supporting information.
States should also be granted an opportunity within the rule to respond
to petitions prior to any intervention on the part of EPA.
9. EPA should approve any State TMDL submitted within 12 months of
the final rule changes as long as it meets pre-amendment or post-
amendment requirements.
10. The required inclusion of atmospheric deposition in non-point
source pollution load allocations is premature, given the State of the
available science. States should be delegated the authority to decide
how and when, on a case-by-case basis, State air quality management
issues should be coupled with the TMDL process.
11. Montana supports the concept of giving special consideration to
threatened and endangered species during the TMDL process. Montana does
not agree, however, that the rules should require States to engage in
the consultation procedures applicable to Federal agencies under
Section 7 of the Endangered Species Act. Instead, the rules should
simply require States to informally involve the assistance of the U.S.
Fish and Wildlife Service during TMDL development.
12. Considering that the new TMDL rule would result in significant
additional costs to the State of Montana, we recommend that EPA more
accurately quantify these costs and address solutions to the
anticipated State fiscal shortfalls before finalizing the rule package.
Attached is our compendium of detailed comments and analyses that
support these recommendations. Thank you again for the opportunity to
comment on these very important regulations. We look forward to working
with EPA to develop a final rules package that will support and enhance
our mutual clean water objectives.
Sincerely,
Marc Racicot,
Governor.
______
Detailed Comments by the State of Montana on Proposed Revisions to the
Water Quality Planning and Management Regulations, 40 CFR 130
INTRODUCTION
The State of Montana provides the following comments regarding
EPA's efforts to improve the quality of the nation's waters through the
water quality-based management approach outlined in Section 303(d) of
the Clean Water Act (CWA). Our commitment to this process is perhaps
best demonstrated through our recent passage of legislation to
implement comprehensive State water quality assessment and TMDL
development. These 1997 amendments to the Montana Water Quality Act
provide specific State authority to implement the provisions of Section
303(d) and outline the methodologies, framework and schedule for
assessing water quality statewide, and for developing and implementing
TMDLs for threatened and impaired stream segments and lakes. Our
primary concerns over proposed changes to the Federal TMDL regulations
stem from anticipated conflicts with our existing State program. The
proposed changes could seriously compromise our State program goals and
strategy, destroy recent intensive implementation efforts and public
trust, and reduce our overall progress in achieving the water quality
restoration goals of the Federal CWA.
Although EPA's stated objective in developing the proposed rules
was to strengthen the efficiency and effectiveness of the CWA's TMDL
program, the rules do little to accomplish this objective. Instead, the
new regulations would add unnecessary complexity to Montana's ability
to develop TMDLs in a timely fashion. The new regulations appear to
focus on listkeeping and technical reporting to EPA, rather than
effective assessment, implementation, and resolution of water quality
problems. The rules also create a regulatory framework that is
inherently inconsistent with Section 303(d) of the CWA. Specifically,
the rules create a presumption that a State's entire TMDL program,
including its process and methodology of identifying impaired waters,
prioritizing those waters, developing TMDLs for those waters, and
addressing nonpoint sources in its TMDL process, are all subject to
EPA's approval. In effect, the rules provide EPA with a ``veto'' power
over a State's entire TMDL program. This is not a power envisioned by
Congress when it granted EPA a limited oversight role to review a
State's submission of lists and TMDLS under Section 303(d). The State
of Montana objects to the imposition of regulations establishing
regulatory requirements over every component of a State's TMDL program
when Congress has not sanctioned that approach.
One of the primary drawbacks of EPA's proposed regulations is that
they impose numerous regulatory details to address prior inefficiencies
in TMDL development that have already been addressed by many States.
From Montana's perspective, EPA is attempting to do too much too late
in the process. Montana is already more than 2 years into the process
of making comprehensive changes to its 303(d) listing methodology and
creating a publicly supported approach to development of TMDLs. Montana
is addressing the same issues that EPA is proposing to address in its
new regulations. We have a TMDL development schedule, new listing
methods and decision criteria, a new publicly accessible data base to
support listing decisions, a new TMDL prioritization process, and we
have been working with local groups to ensure that TMDLs will be
implemented over the long term with reasonable assurance. Finally,
Montana has a monitoring requirement that after 5 years TMDL plans will
be evaluated to determine if implementing organizations are making
satisfactory progress. While we recognize the need for consistent
guidance to States and the public regarding TMDLs, the new regulations
do not give those States already implementing programs of their own
enough latitude to determine appropriate management measures,
especially for land use-related nonpoint source problems.
The proposed regulations also take a highly technical approach to
developing TMDLs involving water quality modeling, quantifying actual
loading rates, and generally providing for an unrealistic degree of
scientific certainty in establishing TMDLs. This approach would push
most of the TMDL work toward highly specialized water quality
professionals in State government and away from community-based
watershed groups and local governments. If the regulations were written
to recognize the importance of local leadership and public involvement,
they would encourage more flexible approaches to resolving water
quality concerns.
EPA's FACA (Federal Advisory Committee Act) group recognized the
need for flexibility in the TMDL process. In the draft regulation, EPA
appears to have ignored key recommendations of the group in developing
the proposed regulations. These recommendations include the ability for
States to include, in some instances, ``surrogate measures and measures
other than daily loads'' and ``taking an iterative approach to TMDL
development and implementation [to] assure progress toward water
quality standards attainment. . . These issues are directly addressed
in the guidance document that accompanied the draft regulations. This
document allows more flexibility than the draft regulation on these
issues. A question might arise as to which applies if the regulations
are not adjusted to provide some allowance for these approaches.
We are also concerned about the proposed definitional focus on
pollutants and not pollution. This aspect of the rules makes it appear
that EPA is retreating from the broader Clean Water Act goals
(chemical, physical and biological integrity) and focusing on just one
type of water quality problem--those that can be calculated in terms of
load. This approach ignores current new understandings in water quality
science relating to roles of changes in hydrology, habitat quality and
biological indicators relating to water quality. It also seems to
ignore the fact that about 90 percent of Montana's (and many other
western States') water quality problems stem from nonpoint source
pollution and related habitat degradation. The proposed TMDL program
would require us to focus on a relatively small subset of our State's
water quality problems and would slow our pace at achieving
comprehensive statewide water quality improvements. The proposed
regulations do not appear to support the CWA's ``clean water'' bottom
line in this regard.
The State of Montana is concerned about proposed changes to the
303(d) List and supports the retention of one List, to include water
bodies impaired, or threatened, as a result of habitat degradation,
flow alteration, and non-point pollution. Our current program focuses
on comprehensive water quality problem solving, including development
of water quality improvement strategies for all listed water bodies,
within a reasonable (10-year) timeframe. At the same time, we must
reserve the right to be flexible in how we address our problems. For
example, our experience has shown that water quantity issues can be
addressed creatively among willing players and within the confines of
existing law. In this regard Montana's TMDL program is stronger than
EPA's proposal, which chooses not to require TMDLs for impairments
resulting from ``pollution,'' including habitat and flow alterations.
The principles of innovation and creative, but comprehensive, problem
solving are at the core of our State TMDL law and the proposed rules
would eliminate much of this current flexibility.
In its finalization of the rules, EPA must acknowledge that Montana
and many other States have already developed processes, methods and
approaches to meet court, legislative or stakeholder demands for their
existing TMDL programs. In many cases, EPA's proposed new substantive
ruses might be disruptive and expensive to States that have already
developed effective TMDL programs endorsed by stakeholders and elected
officials. This issue is at the forefront of Montana's concerns with
the rules as currently proposed. Existing processes and approaches that
meet court decrees and/or provide positive and beneficial results
should not be compromised or superseded by these new rules. At the same
time, States would be encouraged to be innovative in developing new
processes and approaches that achieve the results envisioned by these
rules in a more efficient manner. The State of Montana encourages EPA
to apply a ``functional equivalency test to State TMDL programs prior
to the imposition of any new program requirements. The test would
provide a demonstration that a State process, method or approach
achieves the same desired results intended to be achieved by the
proposed rules. There are numerous examples of these cases, including
how States prioritize their lists, incentives that States have built
into their programs to achieve correction of impaired conditions in
lieu of a TMDL, and recognition of various approaches to implementing
TMDLs. EPA must recognize that ``one size does not fit all'' and the
TMDL rules must remain open to alternative methods of doing business
that achieve comparable results.
As we've said previously, we're also seriously concerned about the
fiscal implications of the proposed changes. By all indications, the
proposed program and its increased scientific rigor and reporting
burden would cost substantially more to administer while achieving
fewer water quality improvement results. The State of Montana operates
its current TMDL program on a limited budget but achieves a high degree
of efficiency through local leadership and volunteerism and by
minimizing administrative overhead costs. Increasing program
administrative costs would translate directly to less money available
for local, on-the-ground implementation of water quality improvement
measures.
In the following pages we are providing you with more detailed
comments and analyses of these and other aspects of the proposed
regulations.
303(D) LIST DEVELOPMENT
It is Montana's position that a consistent, technically sound,
well-documented listing methodology is a critical component of any TMDL
program. Montana's State TMDL law establishes standards for data
quantity and quality, and the Department of Environmental Quality (with
comments from the public and EPA) has developed detailed criteria for
making beneficial use support determinations.
We are committed to a high-quality listing process, but we see
EPA's proposed process for submitting State listing methodologies to
EPA as being unworkable. In Montana, with State law requiring a 60-day
public comment period on a draft 303(d) List, the State must
startupdating the list nearly a year before its due date, so our
methodology must be essentially final at that time. Under the proposed
process, a State would not receive EPA's comments on its methodology
until three or 4 months (or even a few weeks) before the List submittal
is due. At that point it would be impossible for the State to make any
significant changes to its methodology in response to EPA comments.
States occasionally may make major changes to their methodology,
but most changes between editions of their list will be fine-tuning.
Experience gained or the availability of new methods will create
opportunities to make small improvements. If such fine-tuning can only
be done at the cost of going through the cumbersome proposed process,
States will likely choose to lock-in their existing methodology and
forego making improvements.
The list of factors [identified in Sec. 130.23(c) and (d) of the
proposed regulations] which must be addressed in the methodology
submission also is unacceptable. This listing obviously is not a
comprehensive statement of the elements that a methodology would need
to address, and some of the factors listed would not be relevant for
all methodologies in all jurisdictions.
Based on the concerns expressed in the preceding paragraphs, the
State of Montana recommends adoption of an alternative approach, as
follows:
1. Retain the existing regulatory requirement that documentation of
the methodology used to develop the List be submitted with the List.
Include a requirement that the methodology address the factors to be
considered in deciding what data and information to use, or not use, in
making assessment decisions.
2. Provide non-regulatory guidance, assistance and examples to aid
States in developing sound methodologies. This would give the States
the flexibility they need to develop methodologies suited to their
specific needs.
3. If a State submits a list based on an unacceptable methodology,
disapprove the list if warranted, or identify concerns and put the
State on notice that the next submittal will be disapproved if the
deficiencies are not corrected.
303(D) LIST FORMAT
The State of Montana is adamantly opposed to the proposed 303(d)
List formatting scheme which would split the list into four separate
parts. This proposal would hinder State efforts to improve the water
quality of impaired waters by increasing the administrative workload
and would complicate efforts to obtain public understanding and support
for State TMDL programs. Montana requests that the single list format
be retained with an optional provision for displaying pollutant/
pollution data when available. A separate mechanism should be used to
track water bodies that have not ye attained standards though they are
covered by a TMDL plan.
The need for separating waters impacted by ``pollutants'' from
those impacted by ``pollution'' is an artifact of the attempt to define
the term TMDL as a plan rather than a load and of the legal hair-
splitting made necessary by that definition. In practice, making this
distinction would require an amount and specificity of data that is
almost never available when listing decisions are made. Even if a
tremendous increase in the available funding were to give us the data
needed for list partitioning, separating the list into separate parts
would draw agency and public attention away from the program goal of
correcting water quality impairment--regardless of its cause.
Montana strongly agrees with the need to have an accounting
mechanism for water quality-limited segments for which TMDLs have been
approved but in which standards have not yet been attained, because
this provides a continuing incentive to implement TMDLs and a
recognition of where implementation is occurring. However, a separate
tracking mechanism is needed and a number of alternatives are available
to accomplish this goal, including the 305(b) statewide water quality
assessment report, or the inclusion of separate appendices within the
303(d) List. The proposed requirement to retain these water bodies on
the actual 303(d) List until water quality standards are attained is in
direct conflict with the Montana TMDL law. Our law, patterned after the
current EPA protocol, provides for Relisting following TMDL development
and approval. The current delisting provision has been a powerful
motivator for participation in TMDL development and implementation by
some landowners and local groups. We feel that discretion to delist or
retain water bodies following TMDL approval by EPA legitimately belongs
to individual States.
303(D) LIST FREQUENCY AND TIMING
The State of Montana supports the adoption of a 5-year reporting
cycle, with provisions for list modifications during the interim
period. As Montana has worked to provide more information and better
coverage of State waters in the 303(d) list and has developed a listing
methodology considering chemical, physical, biological and habitat
factors, the amount of effort and information required to compile the
List has expanded tremendously. We have reached a point where the
effort required to prepare biennial lists is taking resources away from
water body monitoring and working with local watershed groups on
developing TMDL plans. A change to a 5-year cycle would definitely
reduce these problems.
While we support changes that would require less frequent mandatory
303(d) reporting, we urge EPA to accommodate interim additions and
deletions to the State lists, based upon specific State requests and
EPA review and approval. This would accommodate Montana's 303(d)
petition process and would allow for timely de-listing of water bodies
as TMDLs are approved or water quality standards are attained.
Montana urges that April 1 be retained as the due date for the
303(d) List. This schedule allows State staff to focus on data
collection during the late spring and early summer field season, to
compile a draft list during the fall, and to obtain public comment and
finalize the list during the winter for April 1 submission. An October
1 due date would make it impossible to incorporate data from the most
recent field season into the list assessments, and would place the
timing of the office work and public consultation effort needed for
list compilation squarely in conflict with the field season.
We understand that some States object to having the 303(d) List and
the 305(b) Report due on the same date. Montana recommends that
conflict with the 305(b) Report schedule can be avoided by encouraging
States to submit only the minimal electronic version of the 305(b)
Report in years when a 303(d) List is due.
TMDL SCHEDULES, PRIORITIZATION AND TIMING
Montana is concerned with EPA's proposal to require a high priority
ranking for any waters where threatened or endangered species are
present and for waters that are listed due to violations of the Safe
Drinking Water Act's maximum contaminant levels (MCL). While the State
agrees that protecting public health and endangered species is
important, the State does not agree that it is EPA's responsibility to
impose national priorities over State priorities. Given that EPA's
approval authority extends only to the ``identification'' of impaired
waters in the States' 303(d) Lists, Congress clearly intended that the
prioritization of those waters should be left to the States. EPA should
not go forward with this proposal, because States are in the best
position to evaluate the truly significant water quality problems,
including problems that are not related to endangered species and MCL
violations, and to develop solutions for those problems according to
local policies and priorities.
The practical problems arising from EPA's proposal illustrate that
States are better equipped to establish their priorities and assign
resources to address those priorities in an effective and efficient
manner. For example, if Montana were to assign high priority for all
waters where threatened and endangered species are present, then a
significant percentage of the State's current list of approximately 900
impaired waters would immediately become-high priority. This is due
primarily to the wide range of bull trout (Salvelinus confluentis) in
streams west of the Continental Divide in Montana, and other listed
species within the State. Developing TMDLs for potentially hundreds of
high-priority streams within 5 years, as proposed by EPA, would not be
feasible and would defeat the purpose of listing streams that require
immediate attention.
In order to avoid the high priority ranking of potentially hundreds
of stream segments, Montana would be required to undertake the onerous
task of proving to EPA that the impaired quality of those streams did
``not affect'' the listed species. Montana believes that this would not
be an efficient and effective use of State resources. States should be
allowed the flexibility to establish realistic lists of priorities that
can be addressed within a reasonable period of time. Establishing
unrealistic timeframes for federally mandated ``high-priority waters
without regard to State resources only invites failure from States that
cannot comply with these requirements.
TMDL development for some high priority water bodies can be complex
and time consuming. States should be able to list as ``high priority''
impaired waters that are relatively simple to correct, particularly if
the water segment is important to the local community and restoration
efforts receive their full support. Efficiency at addressing water
quality problems within a watershed context is another important
consideration. A State's ability to develop TMDLs for separate listed
segments within the same watershed and to bundle TMDLs must be
accommodated. The States should be given the flexibility to address as
``high priority'' impaired waters other than those associated with
endangered species and MCL violations.
The proposed scheduling requirement for establishing all TMDLs no
later than 15 years from the date of initial listing is consistent with
Montana's TMDL law, which establishes a 10-year schedule for completion
of all TMDLs listed as of 1996. However, it is unreasonable to expect
that a comprehensive schedule for the development of all TMDLs will not
require modification over time. To help avoid unrealistic expectations
and an illusion of certainty regarding the initial schedules submitted,
EPA should explicitly recognize the potential need for modifications of
schedules during subsequent listing cycles and establish some
parameters for such modifications. For example, modifications should be
allowed if States can provide a rationale demonstrating that
substantial efforts have been undertaken and that new information or
unanticipated difficulties make the previous schedule unrealistic or
make a revised schedule more effective in making overall progress
toward water quality improvement. In order to evaluate the need for
such modifications, a review should be performed periodically, perhaps
every 5 years. Alternatively, EPA may wish to consider requiring States
to set more definitive, shorter-term TMDL development goals. This
option would be especially compatible with our proposed 5-year
reporting cycle and would allow greater assurances of compliance on the
part of States.
TMDL ELEMENTS
The draft regulations propose that any TMDL submitted to EPA for
approval must contain 10 specific elements. Some of the elements are:
quantification of the current pollutant loads, deviation from
acceptable rates of loading, a detailed Implementation plane, and
allowances for future growth which account for foreseeable increases in
pollutant loads. Our specific concerns and recommendations on these
selected minimum elements for TMDL approval are outlined below.
Identifying the pollutant load
The State of Montana recommends that EPA revise 40 CFR 130.34 (b)
to clearly specify that TMDLs may be expressed in terms of a numerical
pollutant load or other appropriate surrogate measures. More discussion
on this aspect of the proposed rules may be found in our comments under
the heading How TMDLs are Expressed.''
Identify the deviation from pollutant load
In accordance with our comments on identifying the pollutant load,
EPA should revise 40 CFR 130.33 (b)(3) or alternative TMDL guidance to
authorize the use of surrogate water quality targets in lieu of
specific pollutant loads.
Allowance for Future Growth
EPA proposes that each TMDL must provide an allowance for future
growth, which accounts for any reasonably foreseeable increase in
pollutant loads. Providing for future growth during the development of
a TMDL is sound State and local policy and ensures that resulting water
quality improvements can be maintained into the future. In fact,
provisions for future growth have been addressed within some Montana
TMDLs. However, EPA should not propose a requirement that is not
supported by the CWA. Under the CWA, TMDLS must be established at the
level necessary to achieve applicable water quality standards. In order
to provide for future growth, States would now be required to establish
TMDLs that result in water quality that is better than the standards in
order to accommodate future increases of pollutant loads. Since the CWA
does not require TMDLs to restore waters to a level better than the
standards, EPA's rules should not. Clearly, the issue of providing for
``future growth'' in the development of TMDLs is a local issue that
Congress has left for the States to decide. EPA should not go forward
with this proposal.
Implementation plans
Montana agrees that TMDL implementation is an important and
necessary component of a successful water quality restoration program.
In fact, Montana has routinely submitted implementation plans to EPA in
support of nonpoint source TMDLs. There is an important distinction,
however, between a State's voluntary submittal of a plan in support of
a TMDL and a requirement that a State submit a detailed plan subject to
EPA's review and approval. The consequences of establishing regulatory
requirements governing a State's submission of an implementation plan
rather than a voluntary submittal are fairly obvious. If EPA adopts a
regulatory approach to the State's submission of implementation plans,
the perception (or reality) will be that the approved implementation
plan will have legal effect. In that event, a State's failure to ensure
strict compliance with the details of an approved implementation plan
will invite lawsuits challenging the State and EPA's failure to
strictly enforce the terms of the plan. If EPA wishes to encourage
States to develop implementation plans in support of TMDLs, it should
establish nonbinding guidance that may be used by the States rather
than embark on a regulatory approach that has no support under the CWA.
EPA's suggestion that it has authority to impose an implementation
requirement because Congress neglected to do so is contrary to the
CWA's separate and distinct treatment of point and nonpoint sources.
Contrary to EPA's contention, Congress has addressed the issue of
developing and implementing control strategies for nonpoint sources by
placing sole responsibility over nonpoint sources with the States under
Section 101(b), Section 319 and Section 208 of the CWA. In regard to
point sources, there is simply no need for ``implementation plans,''
since those sources implement TMDLs by achieving the required waste
load allocations imposed in their NODES permits. The proposal to
subject a State's implementation plans to EPA's approval is simply an
attempt to vest EPA with ``veto'' power over the State's plans or
programs to control nonpoint sources via the TMDL review process.
EPA's proposal is contrary to the long-standing practice of many
States that use a voluntary, incentive-based approach to address
nonpoint sources. This voluntary approach has been successful in
Montana and has been adopted into Montana's Water Quality Act as a
means of addressing nonpoint sources during TMDL development and
implementation. EPA's proposed emphasis on ``requiring'' Federal
approval of a plan that establishes drop-dead timelines, milestones,
reasonable assurance, and a recitation of the State's regulatory
controls over nonpoint sources would defeat the voluntary approach that
most States rely upon.
Montana further questions EPA's ability to develop an
implementation plan within 30 days after it disapproves a TMDL. It is
unlikely that EPA will have the resources to develop a plan for
nonpoint sources that includes ``reasonable assurance'' that the TMDL
will be developed. More importantly, a plan developed within 30 days
would not allow for sufficient public comment or be supported by the
individuals or entities responsible for implementing the TMDL.
Although Montana currently includes many of EPA's proposed elements
for implementation plans into the State's plans for nonpoint TMDLs,
Montana does not believe that the proposed implementation plan elements
discussed below are necessary or warranted for effective TMDL
development.
Reciting legal authorities
Generally, listing legal authorities is not necessary when
promoting community-based partnerships. Watershed project participants
for nonpoint TMDLs are interested in improving water quality for their
own use, as well as for the benefit of the community and local economy.
Since these groups are being asked to develop watershed plans
voluntarily, it makes no sense to list the State's authority to enforce
water quality standards, which may be viewed by project participants as
an implied threat of an enforcement action. A listing of this nature
serves no purpose. and would likely be counter-productive.
Developing monitoring milestones and re-evaluating plans
Establishing specific timeframes within which water quality
standards will be achieved is not relevant in practical terms and not
realistic in terms of establishing achievable milestones for nonpoint
sources. Most water quality improvement projects for nonpoint sources,
especially for agriculture lands in Montana, balance the need to
achieve immediate water quality improvements against the need to
implement projects that are practical, supported by the community, and
based upon resource considerations. For these reasons, Montana
frequently takes an adaptive management approach that develops best
management practices (BMPs) for specific nonpoint sources and then uses
monitoring as a feedback mechanism to adjust management measures as
needed. Although water quality models may make it possible to estimate
water quality response prior to implementation, use of an iterative
management approach allows water improvements to proceed while the
effectiveness of BMPs is being evaluated. By contrast, modeling or
predicting the effectiveness of a nonpoint source project takes time
and resources and ultimately does not provide a reliable method of
establishing specific timeframes for water quality improvements.
It has been Montana's experience that evaluations conducted after
an initial period of implementing nonpoint source projects provide a
better framework for determining improvements achieved by the project.
Persons with technical expertise within local watershed groups, such as
State and Federal specialists, are important in implementing successful
watershed projects in Montana. They advise the groups as to whether
monitoring results show the projects are being effective. Their onsite
evaluations provide ``best professional judgments'' which watershed
groups rely upon to modify or improve projects. Since projects are
routinely evaluated on the basis of monitoring data and analysis, a
reevaluation plan and monitoring milestones are not necessary to
achieve successful TMDL implementation in Montana. The proposed
requirements focus too much attention on predictive planning and, in
Montana's experience, this emphasis would reduce the time available for
local groups to actually implement and monitor water quality
improvement projects.
Reasonable assurance
Montana supports the concept of providing reasonable assurance that
a TMDL will be implemented. It has been Montana's experience that
``reasonable assurance'' is best achieved through the State's efforts
at providing the technical, educational, and financial assistance
necessary to ensure the successful implementation of a TMDL. For
nonpoint source TMDLs, Montana typically develops a plan that
identifies specific tasks, provides an estimated schedule for
completing target goals, identifies the project participants,
identifies initial funding sources, identifies monitoring requirements,
and is supported by a contract whenever the project is funded by
Sec. 319. In at least one instance, Montana has also provided
``reasonable assurance'' for a point source TMDL by developing a
cooperative agreement for voluntary reductions of nutrients in the
Clark Fork of the Columbia River. Although Montana supports the concept
and, in fact, currently provides ``reasonable assurance'' for TMDL
implementation within the State, Montana objects to EPA's proposal to
require approval of a State's methods for providing ``reasonable
assurance'' for nonpoint source TMDLs. This is particularly true in
relation to EPA's statement that it may require the States to adopt a
regulatory approach to achieving ``reasonable assurance,'' if a State's
voluntary approach is ineffective. EPA has no authority to require
regulatory controls over nonpoint sources and should not consider a
proposal that coerces States into abandoning their voluntary programs.
EPA's suggestion that it may veto NPDES permits, redirect Sec. 319
funding, or designate certain silvicultural or animal feeding
operations as point sources in the event the States do not provide
adequate ``reasonable assurance' is indicative of the coercive approach
EPA is proposing.
EPA's proposal would do little to ensure that TMDLs for nonpoint
sources are actually implemented. Instead, the proposal would divert
State resources away from education and technical assistance for
nonpoint sources to engaging in a paper exercise of predicting precise
timeframes, schedules and funding, even though predicting those factors
may not be feasible during the initiation of a project. For example,
requiring States to identify adequate funding at the time a TMDL is
submitted is both unrealistic and counterproductive. In many cases,
adequate funding for nonpoint source TMDLs is not identified until a
project is 2 or 3 years underway. It has been Montana's experience that
funding needs rarely are fully known when goals for restoring streams
impaired by nonpoint sources are initially established. Requiring the
identification of funding prior to submitting a TMDL may discourage
States from submitting TMDL projects and defeats efforts to restore
impaired streams in a timely fashion. The same objection can be made to
the requirement that States identify specific delivery mechanisms such
as contracts, local ordinances, and cost-share agreements for nonpoint
source TMDLs. Although Sec. 319 source projects will likely be
supported by a contract, there are other nonpoint source projects in
Montana that will not. EPA's proposal to adopt a requirement for the
identification of funding and a specific delivery mechanism for every
nonpoint source TMDL would invite lawsuits from groups that do not
believe a State, such as Montana, has provided adequate assurance that
the TMDL will be implemented. EPA should not adopt binding regulations
governing a State's ability to provide ``reasonable assurance,'' but
rather should provide the States with guidance that will assist in the
effective implementation of TMDLs.
Endangered Species
Montana supports the concept of addressing federally listed
threatened or endangered species during the TMDL process. The State is
concerned, however, with EPA's proposal to require States to engage in
the rigorous and time consuming consultation process prescribed under
Section 7 of the Endangered Species Act (ESA). Under EPA's proposal,
States will now be required to ensure that their TMDLs will not likely
jeopardize the continued existence of threatened and endangered species
or destroy their critical habitat. Although Section 7 was enacted to
ensure that no Federal activity would contribute to the extinction of
an endangered species, EPA's rule proposal would subject the States'
water quality restoration projects to the Federal consultation process.
The time and resources generally required to conclude consultation
under Section 7 would severely impact the States' ability to develop
TMDLs in a timely manner. Moreover, since TMDLs are designed to restore
impaired waters, the State questions why a requirement ensuring TMDLs
do not jeopardize a listed species is necessary. By adopting this
proposal, States may be challenged by individuals who do not believe
that a particular TMDL goes far enough to restore listed species or
their habitat. EPA should not go forward with its proposal to require a
``no jeopardy'' finding as a required TMDL element. Instead, EPA should
adopt a rule that simply requires States to consider native or
endangered species in their development of TMDLs and to informally
involve the U.S. Fish & Wildlife Service during the TMDL process. This
approach is consistent with Montana's process of including the
protection of native fish in its criteria for ranking TMDLs as high
priority and informally consulting with the U.S. Fish & Wildlife
Service during its development of Section 303(d) Lists and TMDLs.
HOW TMDLS ARE EXPRESSED
According to 40 CFR 130.33 and 130.34, TMDLs must contain a load
reduction that ensures the water body will attain and maintain water
quality standards, including aquatic or riparian habitat, biological,
channel, geomorphologic, or other appropriate conditions that represent
attainment or maintenance of the water quality standard. For example,
for a stream impaired by sediment deposits, reduced sediment loading is
required. The proposed regulations appear to require that all TMDLs be
expressed in terms of loading. Even in Part 130.34, which indicates
that EPA recognizes the importance of habitat quality, biological
measures and geomorphology, it appears that a loading must be
calculated in relation to these water quality characteristics.
The vast majority of the water quality problems in Montana are due
to nonpoint sources and many of those problems are due to irrigation
and riparian management problems that cause habitat degradation.
Calculation of specific pollutant loads is simply not a suitable method
to describe these problems, much less lead to practical solutions.
There are cases where it would be possible to measure and calculate
sediment loads that would relate to the problem, but this is rarely
practical due to the expense and technical and practical difficulties
that would be involved, as follows:
1. The extremely variable nature of sediment data collected in such
systems often requires many years of extensive data collection and
analysis to produce conclusive information.
2. Spring ice breakup or peak-flow seasons are often the key times
to collect sediment data, but traveling and working in many parts of
Montana during that time often is not practical or possible.
The new TMDL guidance document, ``Draft Guidance for Water Quality-
Based Decisions: The TMDL Process (Second Edition),'' that was
published in draft with the new regulations, however, allows for TMDLs
to be expressed in terms other than load. This guidance says on page 3-
10:
Are surrogate targets appropriate or necessary? In some
situations, there are no numeric water quality criteri[a] or
quantifiable pollutant load that can be used to define the
allowable pollutant load and express the TMDL. In these
situations, surrogate targets that have a quantifiable with the
water quality criteri[a] or pollutant load can be used to
provide numeric indicators of quantifiable measures to express
the TMDL. The relationship between a surrogate measure, the
water quality standard and the pollutant load should be clearly
described.
The draft regulations should be modified to be consistent with this
guidance. We believe the statements in the draft guidance are
absolutely true; in some cases there is no quantifiable load. The bulk
of the loading of many streams is carried by the streams at times and
quantities that are nearly impossible to quantify. We believe that
indicators such as biological health indices and measures of changes in
eroded or deposited sediments are scientifically justifiable and make
good economic sense. EPA has promoted rapid bioassessment methods for
years, understanding their utility for water quality management. It is
inconceivable to us that EPA would ignore this type of monitoring and
focus solely on an engineering-based loading calculation for all
pollutants.
There are practical ramifications from narrowing the scope of what
constitutes a load under the proposed rules. We are concerned that the
proposed rules will significantly reduce our flexibility in how TMDLs
may be expressed and evaluated. We see the potential for adverse
consequences such as significantly increased monitoring costs, reduced
public acceptance of our programs, and a concomitant decrease in
overall improved water quality due to being forced to direct our
limited resources more intensively on water quality research. Rather
than focus on actual loads in ail situations, we support giving the
States discretion to apply cost-effective and easily understood
surrogate measures where appropriate. EPA's existing rules allow broad
use of surrogate measures of loading to address a broad range of
habitat and other problems common in Montana. In contrast to what we
foresee under the proposed regulations, our current approach has proven
to be cost-effective, efficient to implement, and palatable to the
public.
PUBLIC PARTICIPATION
The State of Montana is strongly committed to public involvement
and community-based environmental protection and restoration. We
wholeheartedly support this concept in the proposed regulations and
have adopted these principles as the cornerstone of our State TMDL
laws. However, as with our other concerns on the proposed rules, we
take exception to the proposed specificity with which States would be
required to engage their citizens in the TMDL process. A close look at
the Montana approach will demonstrate our sincerity in meeting this
obligation. We have established a requirement for a 60-day public
comment period on the 303(d) List. We have also established a
requirement to involve local watershed advisory groups, conservation
districts and various other interest groups in development of the draft
rankings and priorities for TMDL development in Montana. We are
currently planning 17 public hearings this winter on our year 2000
303(d) List, including listing methodologies, TMDL priority
designations, and water body assessment schedules. Public involvement
is a standard practice for TMDL development in Montana because of our
strong link to local watershed groups. We have routinely reported on
the level of public involvement associated with each TMDL submitted to
EPA for approval. Establishment of a Statewide TMDL Advisory Group,
representing 14 stakeholder groups, is required by Montana TMDL law.
The group's formal role is to assist in TMDL priority development and
to advise the State of Montana government on other TMDL related issues.
.We have also included a public petition process within our State TMDL
program whereby any person can request that a water body be added to,
or deleted from, the 303(d) List by providing the data and information
necessary to support the requested change. This provision provides an
extra measure of public involvement in our water quality approach by
allowing for public input on the 303(d) List at any time, not just
during the intermittent (currently biennial) reporting cycles. All
elements of Montana's TMDL public participation program are a result of
intensive, broad-based discussion and deliberation, followed by
legislation. Additional EPA specificity dictated through rules
revisions is unnecessary and undesirable.
We already routinely incorporate endangered species concerns into
our watershed management approach, as previously discussed, and
encourage USFWS and our Department of Fish, Wildlife and Parks and
Natural Heritage Program to be involved throughout the process of
watershed management and nonpoint source pollution control. However, it
is the State of Montana's firm position that TMDL development by the
State is not a Federal action, and therefore, formal consultation is
not required under the Endangered Species Act.
PETITION PROCESS
EPA's proposal to create a public petition process, by which any
person could petition EPA to develop lists and TMDLs in the event a
State fails to ``substantially'' meet its schedule, is problematic. The
State views this as another instance in the rules where EPA is
expanding its limited authority to review lists and TMDLs to now
include EPA's authority over the States' pace of TMDL development.
While we agree that States should make every effort to meet their
schedules for TMDL development, EPA's proposal may unnecessarily
encourage public requests that EPA intervene in a State's TMDL program.
States should be allowed to develop ambitious schedules without fear
that EPA may elect to ``take over'' their TMDL program, if a citizens
group is not satisfied with the State's progress in TMDL development.
It is important that EPA's regulations encourage effective public
participation in State programs, and not establish a system whereby
citizens are implicitly encouraged to bypass the State. EPA should
establish specific requirements for these petitions.
In particular, petitioners should be required to demonstrate that:
(1) they have requested the State to take action; and (2) the State
either refused or was unable to take the requested action. Petitioners
should be required to submit any available information as to why the
State has declined to take the requested action and the process should
provide an opportunity for States to respond before EPA determines an
appropriate response. Our suggested modifications to the petition
process are necessary to recognize the States' primary role in
implementing Section 303(d) and to support, rather than hinder, the
viability of State efforts.
TRANSITIONAL TMDLS
Under its new proposal, EPA would approve any TMDL submitted within
12 months of the final rule changes if it meets either the pre-
amendment requirements or the post-amendment requirements. The State of
Montana strongly supports this proposal. TMDL processes are often
lengthy and more than 100 Montana water quality improvement strategies
are currently under development. Without a provision in the amended
rule to address transitional TMDLs, it would be necessary to stop and
reevaluate or revise pending TMDL development efforts to ensure that
the new requirements were met. This would be an inefficient use of
resources and would hinder the progress of Montana's efforts toward
water quality improvement.
ATMOSPHERIC DEPOSITION
The proposed definition of load allocation would include
atmospheric deposition as a non-point source of pollutants. The State
of Montana has voluntarily considered the importance of atmospheric
deposition in its development of pollution allocations for some lakes.
However, the technical difficulties and absence of appropriate data and
analytical models present significant barriers to widespread
development of water quality improvement strategies that include
atmospheric deposition. Until such capabilities advance, it would be an
inefficient use of limited State resources to develop technically weak
TMDLs for these water bodies. Potential relationships to other Montana
program goals would also need to be evaluated, for example, the Montana
Smoke Management Program and Hazard Reduction Law pertaining to logging
slash disposal (burning). In the interim, we recommend that States
should be delegated the authority to decide how and when, on a case by
case basis, State air quality management issues should be coupled with
the TMDL process.
LEGAL ISSUES CONCERNING ENDANGERED SPECIES ACT (ESA)
EPA's new rule proposal would require States to ensure that their
TMDLs will not likely threaten the continued existence of threatened
and endangered species or destroy their critical habitat. (See 40 CFR
Sec. 130.33(d)). In support of this proposal, EPA simply suggests that
endangered species are an important component of the ecosystem and it
wishes to ``integrate'' the CWA with the Endangered Species Act (ESA).
In effect, EPA is proposing that States fulfill the obligations imposed
under Section 7 of the ESA, which was enacted by Congress to ensure
that no Federal activity will contribute to the extinction of an
endangered species. Although Section 7 refers exclusively to ``Federal
action,'' EPA's rule proposal would subject State actions, such as the
development and implementation of TMDLs and lists, to the consultation
requirements that apply only to Federal actions. In addition, States
will now be required to give ``high priority'' to waters where a
threatened or endangered species may be present and to submit their
lists and TMDLs to the U.S. Fish & Wildlife Service and the National
Marine Fisheries Service (Services). (See 40 CFR Sec. 130.28 and
130.37). None of these requirements are supported by law and their
implementation would blur the clear distinction between the State's
primary authority over TMDL development and EPA's limited role in
overseeing the States' activities. As a result, the primary authority
of the States to prioritize their lists and develop TMDLs for the
purpose of achieving applicable water quality standards will become
secondary to protecting federally listed species and their habitat. If
EPA's proposal to address endangered species is adopted, EPA's
statutory ``oversight'' role under Section 303(d) will be significantly
expanded to become the driving force behind the development of TMDLs.
The following comments address each of EPA's rule proposals that
require States to ensure that endangered species are not jeopardized.
Priority Ranking for endangered species
Under Section 303(d) of the CWA, States are to prioritize their
lists of impaired waters ``. . . taking into account the severity of
the pollution and the uses to be made of such waters.'' Under EPA's
current guidance, States may expand upon the statutory list to consider
additional factors in setting priorities. In Montana's view, EPA's
current approach is appropriate, because the guidance does not compel
States to ignore the statutory factors in favor of a single factor that
has never been endorsed by Congress. Under EPA's rule proposal, States
would be required to give ``high priority'' status to any threatened or
impaired stream where an endangered species may be present. This
requirement not only ignores the statutory factors under the CWA, but
eliminates the States' discretion to consider other ``high priority''
factors, such as the importance of a particular water body for
recreational or aesthetic purposes, the vulnerability of a water body
as an aquatic habitat, and the State's immediate programmatic needs.
All of these factors are recognized under EPA's current guidance and
are consistent with the CWA's directive to establish priorities based
upon beneficial uses and the severity of pollution. Under the rule
proposal, States would be compelled to prioritize their waters in favor
of restoring endangered species to the detriment of restoring severely
polluted waters. This requirement has no basis under the CWA and
directly conflicts with the statutory factors enacted by Congress.
Since the CWA does not require States to consider federally listed
species during the State's development of TMDLs, EPA should not proceed
with this proposal until clearly authorized by Congress.
Soliciting comments to ensure the protection of endangered species
EPA is proposing rules that would establish various requirements
for public participation (See 40 CFR Sec. 130.37). Among those
requirements is a provision ``encouraging'' States to establish
processes with both the Services that will provide for the early
identification and resolution of threatened and endangered species as
they relate to lists of impaired or threatened water bodies, priority
rankings, schedules and TMDLs. Accordingly, the rule would require
States to submit their draft lists and TMDLs to the Services at the
time that public comment commences, unless the State requests EPA to do
the submittal. In order to facilitate early consideration of endangered
species during the stalest listing and TMDL process, EPA will request
the Services to provide their comments to both the States and EPA. The
State then would be required to consider the Services' comments and
document the basis of its response. Prior to EPA's approval of a list,
priority ranking, TMDL or schedule, EPA will review the sufficiency
with which the State ``addressed'' the Services' comments.
On its face, the rule appears only to require a State to consider
the comments of the Services without imposition of additional Federal
requirements to ensure the continued existence of endangered species.
When read in conjunction with the proposed new rule requiring that
TMDLs must not be likely to jeopardize endangered species or their
habitat, it is clear that the consultation requirements applicable to
``Federal actions'' under Section 7 will now apply to the States. These
requirements are spelled out in rules adopted by the Services and
generally would result in intensive data collection, resources, and
delay.\1\
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\1\ EPA estimates that consultation on a State's water quality
standards takes ``approximately 18 months.'' 64 Fed. Reg. 2742 (Jan.
15, 1999). In Montana, Section 7 consultation on the State's revised
water quality standards began in 1994 and has yet to be concluded.
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Under EPA's proposal, the Federal agency's responsibility to
collect the necessary data and to engage in consultation will be
shifted from EPA to the States. In effect, the rules unconstitutionally
``commandeer'' the States to implement a Federal program. See New York
v. U.S., 505 U.S. 144 (1992); Prinz v. U.S., 521 U.S. 898 (1997).
Although EPA's rule proposal does not elaborate upon the deference
given the Services' comments on lists and TMDLs, it is clear from the
rules implementing Section 7 that the Services would have a major role
in determining whether a TMDL or list may be approved by EPA. If a
biological opinion is required as a result of the Services' review, EPA
will have little choice but to require the States to adhere to the
conditions in the biological opinion. In some instances, the State may
be unable to follow the conditions of the opinion due to lack of
regulatory controls over nonpoint sources. Montana urges EPA not to
adopt these proposals, but rather consider addressing the issue of
endangered species in guidance.
FISCAL IMPACTS OF PROPOSED RULES
The State of Montana is very concerned that the new TMDL rules
would result in significant additional costs to States over current
law. Our Department of Environmental Quality (DEQ) has primary
responsibility for implementing the provisions of 303(d). Given the
formidable workloads of DEQ TMDL staff, the new rules would likely
significantly raise the costs per TMDL, greatly slow the entire process
and lead to an overall decrease in water quality from present
conditions. They also would require that additional staff and resources
to be devoted to the TMDL process and that local water groups,
technical advisers and consultants be educated on new program
requirements.
According to EPA's Water Quality Workload Model, Montana currently
has minimal resources to run a TMDL program under the rules as they now
stand. Currently, DEQ has 13.5 FTE (full time employees) committed to
water quality standards activities, including monitoring, reporting and
TMDL activities, with a budget of about $1.35 million. EPA's Water
Quality Workload Model: Draft Module 2, when calibrated to Montana's
parameters, suggests that 58 FTE and a total budget of about $4,896,000
would be needed to implement TMDLs on time under the rules as they now
stand. Despite this discrepancy with EPA's modeled numbers, DEQ staff
has been highly effective in implementation and in--as gained valuable
assistance from local watershed groups and other outside groups.
While the DEQ staff has been effective, the previous paragraph
demonstrates that they have a challenging task to meet TMDLs on time
given their current resources. It follows then that the new and more
complicated rules proposed by EPA would set back the staff and unduly
slow the TMDL process unless additional resources were obtained. In
addition, the new rules undo much of the work and fiscal investments
already put into Montana's current TMDL program. By our most
conservative estimate, DEQ would need at least twice the current
resources to comply with the proposed rules in a timely fashion. Our
best guess is that between 22 and 24 additional FTE over the 13.5
currently employed would be needed to comply with the new TMDL rules,
along with several tens of thousand of dollars in new equipment. These
figures are further explained in the paragraphs that follow.
Given that an additional FTE in standards activities costs about
$65,000 a year (including benefits and operating expenses), the
additional staff would cost an estimated $1,448,000. These figures
suggest that EPA probably is not correct that the rules would cost less
than $100 million annually for all the States. This would be less than
$2 million per State on average in additional costs. It is likely that
average costs per State will be much greater. Costs for Montana could
be much higher than the conservative estimate of about. $1.4 million,
due to uncertainties about the consequences of the new rules. Montana
is a small State with respect to population and polluting sources. Many
States' current costs are much greater and the potential cumulative
increase in costs under the new rules would likely be greater than what
EPA has estimated.
The following four paragraphs explain in more detail the estimated
22-24 extra FTE and extra equipment needed under the new rules. If all
TMDLs in Montana were required to focus mainly on specific pollutants
as Stated in the new rules, it is estimated that at least 4 additional
FTE would be needed for modeling, monitoring and sampling. These new
staff would also need several thousand dollars in new sampling
equipment, as a conservative estimate. The additional FTE would be
needed in part to continually monitor and model pollutant loads for
certain water bodies for which current law applies more effective and
less expensive surrogate measures to achieve desired levels of water
quality. The more comprehensive listing for impaired waters in the new
rules would require additional labor hours in both the office and field
including additional travel to selected water bodies and increased
monitoring, sampling, data collection and administrative work. We
estimate that about 0.25 additional FTE would be needed just to
administer the more complicated listing method EPA has proposed.
Under the new rules, States would assign a ``high'' priority to
certain impaired waters identified by EPA and would complete these
TMDLs within 5 years. Montana already has a system of prioritization
that considers but does not necessarily give highest priority to
drinking water or waters harboring endangered species. DEQ estimates
that a full 60-70 percent of Montana's current TMDL list would have to
be listed as high priority (just from the drinking water and endangered
species
concerns) and thus would require completion within 5 years. The result
would be a significant increase in workload within a relatively short
time period, requiring additional FTE and resources. Conservative
estimates suggest that 18 additional employees would be needed to
complete high priority TMDLs within 5 years. This number constitutes
three times the current personnel (six FTE total), four dedicated to
regulatory monitoring, one to TMDL methods, and one to involvement with
the 303(d) List.
An expedited TMDL process (due to having to complete high priority
TMDLs in 5 years) would impose significant additional costs upon DEQ.
For one, we would have to quickly hire new FTE and hastily train them.
We might also be forced to neglect other parts of TMDL implementation,
or implementation in areas of the State with no high priority waters.
Such costs are difficult to quantify.
Other additional costs from the new rules include meeting the 10
specific elements and providing ``reasonable assurance'' that goals are
met. The most conservative estimate would put the costs of meeting
these elements at $5,000 (for additional monitoring equipment, modeling
software and computers) with any additional labor hours included in the
additional 18 FTE mentioned above. This proposal also would allow EPA
to demand or revise a TMDL if petitioned to do so. This could lead to
occasional litigation and additional costs to the State of Montana.
These costs have not been included in this analysis. The costs of
requiring a public review of TMDLs every 2 years are estimated to be 1
FTE the first year and 0.5 FTE in subsequent years.
In conclusion, it is apparent despite our conservative calculations
that the proposed rule changes would have a significant fiscal impact
on the State of Montana, and one EPA has not accurately quantified or
addressed. The impacts could be sufficient to upset our entire TMDL
process and program. Few aspects of the proposed rules can be seriously
considered in the absence of a more detailed fiscal analysis and a
Federal funding package.
Department of Environmental Quality,
Helena, MT, January 20, 2000.
Hon. Carol M. Browner, Administrator,
U.S. Environmental Protection Agency,
Washington, DC.
Attn: Water Docket (W-99-04)
Re: Proposed Revisions to the National Pollutant Discharge Elimination
System (NPDES) Program and the Federal Antidegradation Policy
Dear Ms. Browner: I am writing on behalf of the State of Montana
concerning the U.S. Environmental Protection Agency's (EPA) proposed
revisions to the NPDES rules and Federal antidegradation requirements,
40 CFR Parts 122, 123, 124, and 131, published in the Federal Register
on August 23, 1999. The enclosed comments are the combined effort of
our State natural resource agencies who have worked together to analyze
the rules and to develop consensus continents. The State appreciates
the opportunity to comment on the proposed rules and supports EPA's
efforts to address the Clean Water Act (CWA) goals of restoring and
improving the nation's waters.
Montana wishes to emphasize that it shares with EPA the common goal
of protecting and improving water quality and we remain dedicated to
meeting that objective. Although we share a common goal, Montana does
not agree with EPA's approach to achieving water quality improvements
by imposing Federal regulatory controls over nonpoint sources. Montana
continues to believe that nonpoint source pollution is best controlled
at the State level through programs based on land management practices
and land use decisions. We feel that EPA's emphasis on obtaining
Federal regulatory control over nonpoint sources is not warranted and
may be counterproductive to achieving cleaner water. Montana's program
of best management practices for forestry activities has continued to
improve over the years and the program has demonstrated its
effectiveness in protecting water quality through State-sponsored
audits. From the State's perspective, adding a Federal permit
requirement to address nonpoint source forestry activities is
duplicative of State programs and adds little in terms of actual water
quality improvement.
In general, we think the existing CWA program to restore impaired
waters through the development of TMDLs is adequate and that EPA's
proposal to require ``reasonable progress'' in restoring impaired
waters to TMDL development is not justified by the additional costs.
Implementation of EPA's offset proposal would divert limited State
resources away from the core activities of developing and implementing
TMDLs, which produce the most benefit in terms of restoring water
quality.
Attached are Montana's detailed comments on the proposed rule
revisions. We look forward to working with EPA to ensure that our
mutual objectives in protecting and restoring waters are reasonably and
effectively achieved.
Sincerely,
Mark A. Simonich,
Director.
______
Detailed Comments by the State of Montana on Proposed Revisions to the
National Pollutant Discharge Elimination System (NPDES) Program and
Federal Antidegradation Policy--Water Quality Planning and Management
Regulation, 40 CFR 122-124 and 131
INTRODUCTION
The State of Montana has long supported the goals of the Clean
Water Act (CWA) to restore and maintain the quality of the nation's
waters. Montana also recognizes the need to continually evaluate and,
if necessary, improve the methods by which States address nonpoint
sources. Although EPA's rule proposal attempts to address the issue of
``progress'' in improving water quality, we cannot identify any
additional realistic benefits that would further the CWA's goals and
that are justified by the added regulatory burdens and costs. Instead,
the new rules add unnecessary complexity to the States permitting
process.
The State is concerned with EPA's attempt to redefine activities
traditionally considered as nonpoint sources as point sources and
require permitting and regulatory controls for those sources. The State
believes that the move to redefine nonpoint sources might negate much
of the cooperative approach that the Montana forestry best management
practice (BMP) process has engendered and cause unnecessary disruptions
to the State's process for managing nonpoint sources through reasonable
and effective land management practices. The State is also concerned
that the imposition of offsets for new or increased point sources will
overburden State resources in administering an already cumbersome
permitting process and unfairly single out certain point sources to
demonstrate net progress in restoring impaired waters prior to the
development of a TMDL.
In general, Montana believes that the existing regulatory framework
implementing the CWA's NPDES program and the Federal antidegradation
policy is adequate. The State also disagrees with EPA's efforts to
address the issue of nonpoint sources and lack of TMDL progress by
adopting rules that are not supported by the CWA. For these reasons,
Montana objects to EPA's proposals to modify the existing requirements
and urges EPA to address these issues, if necessary, in guidance.
ANTIDEGRADATION CHANGES--OFFSETS FOR NEW OR EXPANDED SOURCES
EPA is proposing changes to its antidegradation rules to require
any new or existing discharger undergoing significant expansion in an
impaired water body to obtain a 1.5:1 offset. The purpose of the rule
is to promote ``reasonable progress'' in restoring impaired waters
prior to the development of a TMDL. The choice of a 1.5:1 offset ratio
appears to be entirely arbitrary and is also a serious deterrence. This
proposal is not supported by the CWA and clearly goes beyond what
Congress has expressly sanctioned as the appropriate method for States
to restore impaired waters. The TMDL process established under Section
303(d) of the CWA requires States to identify pollution sources in an
impaired water and develop wasteload and load allocations for point and
nonpoint sources, respectively, that will bring the water body into
compliance with water quality standards. A rule requiring restoration
limits for a particular discharger prior to TMDL development may
needlessly interfere with the TMDL process which requires a
comprehensive and equitable pollution allocation process. We also
believe that, regardless of the status of a discharge as ``new'' or
``expanded'', the imposition of offsets prior to TMDL development may
be disruptive for a discharger whose permit limits may require changes
after a TMDL has been developed by the State.
While we appreciate EPA's concerns regarding the slow pace of TMDL
development nationally, the State of Montana and other States have
taken effective measures to strengthen their programs. We should not be
penalized by the imposition of the proposed additional and unnecessary
NPDES requirements that significantly impact our State permitting
program. States should be allowed to focus their efforts and resources
on addressing impaired waters under the TMDL process, not through
additional permit requirements. The limited environmental gain from
imposing offset requirements on a single point source within an
impaired watershed does not justify the adoption of these requirements.
Although EPA admits there is no authority in the CWA to support its
proposal, it relies on the antidegradation policy as a vehicle to
impose the offset requirements. EPA's proposal goes beyond the primary
objective of the Federal antidegradation policy, the stated purpose of
which has been to protect and maintain existing water quality. While
the State does not disagree with the historical concept of EPA's
antidegradation policy as a means of maintaining existing water
quality, we do object to a proposal that would require States to
restore impaired waters outside of the TMDL process. EPA's proposal
needlessly intrudes upon the States' primary responsibility to ensure
compliance with their water quality standards through State-issued
permits and State programs for nonpoint sources prior to TMDL
development. The heavy-handed approach of EPA's proposed rule would
require States to divert their limited resources away from the CWA's
goals of developing TMDLs and toward administration of an increasingly
complex permitting program. For example, if an offset is obtained from
a nonpoint source, State resources would be diverted to ensure that a
net improvement from a particular landowner is achieved. Rather than
impose ``regulatory'' requirements over a single landowner, States
should be given the flexibility to use their resources in a manner more
suited to controlling land practices within the entire watershed. This
proposal is simply another attempt by EPA to encourage States to
``regulate'' nonpoint sources through the imposition of offset
requirements that ultimately result in enforceable load reductions for
nonpoint sources.
Establishing an administrative process to establish, track and
enforce offsets would: (1) require significant new resources for
permitting programs, (2) retard the permitting process and contribute
to an increased permit backlog, and (3) create burdensome regulatory
requirements for nonpoint sources that are best managed through
improved land practices. In Montana, about 90 percent of the streams
and 80 percent of the lakes identified on our Section 303(d) list are
impaired due to a variety of nonpoint pollution problems The process of
establishing; and monitoring offset requirements for impaired water
bodies with multiple nonpoint sources would be difficult, if not
impossible. to effectively administer and enforce. The proposed
regulation may force the State into situations where it is unable to
effectively administer or enforce its own permit requirements.
Finally, EPA's proposal might, in certain circumstances, hinder
water quality improvement because the proposal focuses solely on
reducing the load of the pollutant, rather than the concentration of
the pollutant. This approach is not necessarily consistent with TMDLs,
where an objective may be to reduce the in-stream concentration of a
particular pollutant. An example is a stream impaired due to high
metals levels. If a facility proposed to discharge effluent containing
lower metals concentrations than the receiving stream, the net effect
would be to lower the in-stream metals concentrations. Under EPA's
proposal, the discharger would be required to offset the load of metals
us the discharge, regardless of the effect of that discharge on the
beneficial uses that have been determined to be impaired. If EPA goes
forward with this proposal, offsets should be applied in two
situations: (1) where the load, and not the concentration, is perceived
to be the problem (such as phosphorus accumulations in a lake), or (2)
where a discharge is proposed in pollutant concentrations greater than
those of the receiving water.
POINT SOURCE DESIGNATION FOR CERTAIN OPERATIONS
EPA is proposing amendments that will allow it to designate certain
animal and aquatic feeding operations and silviculture activities as
point sources. EPA is proposing to make this designation in instances
where EPA has promulgated a TMDL for the State. According to EPA, the
designation would provide EPA with ``reasonable assurance'' that the
Federal TMDL will be implemented by requiring designated sources to
obtain an NPDES permit. In order to designate timber harvest activities
as point sources, EPA is also proposing to remove an exemption that has
been in effect for more than two decades. EPA's proposal to designate
what could be all silvicultural activities as point sources ignores the
directive of Congress to address nonpoint sources through State-
administered programs under Sec. 319 and Sec. 208 of the CWA. Further,
since EPA is proposing to designate point sources based upon ``other''
considerations that are not typically relied upon by the States, EPA's
approach would leave many operators subject to what they perceive as an
arbitrary designation process.
Montana is concerned with EPA's attempt to change the regulatory
setting of more than two decades of consistent and intentional
Congressional recognition of silvicultural activities as nonpoint
sources that are not subject to NPDES permit requirements. The
character of most silviculture activities as nonpoint sources, and the
policy determination to manage these activities through planning and
management techniques rather than permits, is firmly rooted in the CWA
and its legislative history. The control of nonpoint sources under
Sec. 319 specifically leaves the development of control programs,
including the consideration of a regulatory approach, with the States.
This means that Congress has concluded that additional processes, such
as Federal permits to control nonpoint sources, are duplicative and not
needed to achieve the goals of the CWA. Since all States have either
voluntary or regulatory programs for nonpoint source pollution, EPA's
proposal seems to ignore the congressional intent that the choice of
nonpoint source control approaches is left to the States. By imposing
NPDES permits on nonpoint sources, EPA's proposal will effectively
preempt State programs that use a voluntary approach to control these
activities.
If adopted, EPA's proposal will disrupt the functions that are
split among State agencies. In many cases, State programs are built
around the differences between point and nonpoint source discharges and
the responsibilities for administering regulatory programs and land
management programs are vested in different agencies Subjecting
traditional nonpoint source activities to permitting requirements or
Section 401 certification will only add duplication of effort by these
agencies, particularly in States with mandatory or well-developed best
management practices.
EPA's proposal ignores the success of Montana's nonpoint source
pollution control program, which relies upon innovative and effective
land management practices that have demonstrated significant
improvements in water quality without regulatory controls. In Montana,
a combination of voluntary BMPs and statutory requirements for
``streamside management zones'' provides protection to Montana water
quality during timber harvest operations. The BMPs were developed over
the last decade through a cooperative effort between Montana agencies
and forest industries. As a result of this cooperative effort, the
State's forest industries voluntarily implement these BMPs as a matter
of properly doing business.
During the past 10 years, Montana has documented the success of its
voluntary nonpoint source program by conducting biannual audits to
monitor the implementation and effectiveness of BMPs in protecting
water quality. Formal audit reports have been issued every 2 years for
the past 8 years. These audits demonstrate steady improvement in both
the application and the effectiveness of forestry BMPs in protecting
water quality. For example, the percentage of forestry practices that
meet or surpass BMP requirements has increased from 78 percent in 1990
to 94 percent in 1998. From the State's perspective, the success of the
voluntary program results from educational programs and continuing
cooperation bestrewn the State and the forest industry. EPA has
recognized the success of Montana's voluntary BMP program and the
State's program received EPA's nonpoint pollution prevention award. The
entire voluntary program has been at a minimum expense to the State of
Montana. Based upon Montana's and other States' experience, EPA should
recognize that voluntary programs are often more effective and less
costly than adopting a regulatory approach to control forestry
activities. States should be allowed to continue with their efforts to
improve their voluntary programs without needless interference or
additional regulatory controls.
EPA's proposed rules would have a profound affect on TMDL
implementation in Montana and would disrupt our successful efforts at
implementing voluntary BMPs. The new rules, if implemented, would
negate much of the cooperative approach that the forestry BMP process
has engendered. Designation of certain silviculture activities as point
sources that would require an NPDES storm water permit would provide
little additional benefit toward achieving compliance with water
quality standards. The storm water permits issued by the State will
ultimately rely on the BMPs that have already been developed by the
State and which are currently implemented voluntarily. A requirement
for a Federal NPDES permit is unnecessary and duplicative of State
efforts.
The only possible benefit resulting from designating a silviculture
activity as a point source would be the threat of enforcement. A
regulatory threat over timber activities in impaired watersheds may
provide a strong disincentive for road maintenance and improvement
projects, revegetation projects, and other activities that are now
routinely done by forest landowners as part of their commitment to BMP
implementation. The reluctance to undertake activities that ultimately
reduce nonpoint source runoff would be exactly the opposite result of
the CWA's objective to restore and improve the nation's waters. The
State opposes EPA's proposal because it would impose a Federal ``top
down'' approach that may impede the State efforts at achieving actual
water quality improvements through a demonstrably effective voluntary
approach. Moreover, EPA's proposal to designate point sources using
``other'' criteria that are typically not used by the States will leave
EPA's designation open to challenges resulting from arbitrary and
capricious decisions.
ECONOMIC IMPACT OF PROPOSED RULES
We feel that the resulting costs of the new rules to small
entities, point source dischargers and to States would greatly outweigh
the benefits and that, in this regard, the new rules are not
economically justifiable.
Offsets
EPA claims that because the proposed offset provisions in the rules
would require a new or increased discharger to obtain offsets only from
large entities, there would be no impact on small entities. This seems
plausible. There would, however, be potential costs to State agencies
from enforcing offsets, sewing up monitoring programs and guidelines
for offsets to be included in permits, process and issue new permits,
and modify any existing permits involved in offset contracts. There
also would be State-incurred costs in determining and enforcing
``reasonable further progress'' toward attainment of water quality
standards. Because Montana's permitting system is funded entirely by
fees collected from permit holders, any added costs must be passed
along to all the permittees in the system. Most importantly, the
benefits resulting from the new rules are uncertain, unclear and at
best do not seem to justify the extra program costs.
Offsets could prove to be a major bureaucratic burden to States
while providing little or no gain in water quality improvement. For
one, dischargers would have to locate and bargain with each other to
establish offsets. This would require some assistance by States and
would require additional resources. Offsets would also impose
transaction costs on the dischargers. Further, the cost of establishing
and administering offsets would depend upon the particular State and
the geographical distribution of large dischargers. Facilitating
pollution offsets may be more difficult in a State such as Montana
where a given water body is affected by only a few discharges.
EPA's proposed requirement that all conditions necessary to ensure
the load reduction must be included in NPDES permits would require
reworking and restructuring permits to include all relevant offset
information. Information within the permit would have to specify all
details of the offset including the stipulations between discharging
parties and the effects upon the water body. This would slow the
permitting process and would cause more work for those involved with
water quality enforcement. Almost certainly, additional staff end
funding would be needed to prevent an increase in the backlog of cases
if this requirement were made law.
Additional costs would result from EPA's suggested point and non-
point source trading option. This would be difficult to accomplish in
practice and raises a number of questions. If States failed to
quantitatively confirm non-point loading reductions that were needed to
offset point sources, they might be liable for costly citizen lawsuits
or EPA intervention. Given that Montana's water quality problems are
largely due to nonpoint sources, isolating load reductions from
nonpoint source controls through monitoring can be difficult and
expensive. Again, it seems that the costs of administering these
complex regulations outweigh the small gains in net progress.
Designating Certain Activities as Point Sources
EPA maintains that the effect of eliminating the current
categorical silvicultural exclusion would be limited. EPA says that
this provision would not impose significant new costs on a substantial
number of small entities and that it can predict with a high degree of
confidence that it would need to exercise the proposed new designation
authority on only a few occasions. We disagree with these assertions.
Many small timber operations in Montana not subject to permitting
under current law would be brought into the process under the new
rules. In high priority TMDL areas, timber companies receiving permits
under this proposal would immediately begin to develop a pollution
prevention plan, which may involve modeling future allowable harvests.
The main costs to newly regulated timber companies would come from
preparing and putting in place a detailed pollution prevention plan,
paying permit fees and monitoring the effectiveness of their best
management practices. The preparation of a pollution prevention plan
can be a complex and overwhelming task, even for a relatively minor
timber project. Clearly this is beyond the capabilities of many small
operators and could easily cripple their business activities.
Animal Feeding Operations (AFO) and Aquatic Animal Production
Facilities (AAPF) that are designated as point sources to be permitted
under the new rules would incur costs associated with a pollution
control plan and consultation with either the State or a consultant for
technical intonation. Further, permitting could greatly affect
decisions that AFO and AAPF managers make, such as the need to apply
for loans or purchase new equipment. As a result, production within
these facilities could be delayed or greatly modified. Many capital
expenditures for both production and pollution control take years to
resolve and permits may make some of those investments obsolete,
inefficient or very uncertain. Permits, when they do become effective
may also alter production patterns for these types of operations. Such
changes could result in less product being available when prices and
markets are at their peak. Uncertainty as to whether operation would be
permitted may result in additional company expenditures on research,
equipment, and consultations with the State. While we do not
necessarily disagree with permitting such operations, it is clear that
EPA is wrong in saying that permitting would carry no substantial
costs.
EPA's Assertions as to the Effects of the Rules on States
According to EPA, the total costs to State, local and tribal
governments as a result of the new rules would not exceed $96 million
in any 1 year, with a majority of these costs borne by State
government. While the total costs to States may be less than $100
million annually, the State of Montana asserts that EPA's total cost
projections of less than $1 million is not correct. Further, we
question why States should incur any additional costs considering the
limited environmental benefits.
EPA indicates that other costs would be borne by the private
sector. Because of the way Montana has set up their discharge
permitting program, all additional costs would be passed along to the
permit holders. However, we again question why any additional costs can
be justified if water quality benefits accruing from the proposal would
be limited or non-existent.
______
Statement of J. Charles Fox, Assistant Administrator for Water,
Environmental Protection Agency
INTRODUCTION
Good afternoon Mr. Chairman and members of the subcommittee. I am
Chuck Fox, Assistant Administrator for Water at the U.S. Environmental
Protection Agency (EPA). I look forward to talking with you this
afternoon about the Nation's clean water program and, more
specifically, about our efforts to identify polluted waters around the
country and restore their health.
Over the past several years, EPA has worked closely with other
Federal agencies and States to coordinate programs designed to protect
natural resources and water quality. For example, EPA and USDA led the
effort to develop the Clean Water Action Plan announced by President
Clinton just over 2 years ago. We continue to work together to oversee
implementation of the Action Plan and to coordinate key projects, such
as our work to improve management of excess nutrients in waste from
animal feeding operations.
I am pleased that the President has proposed to substantially
expand fiscal year 2001 funding for grants to States for water
pollution control. The President's Budget proposes increased funding of
$45 million for grants to States to identify and address the remaining
polluted waters around the country. This funding, when matched by
States will result in an increase of $75 million annually for
development of ``Total Maximum Daily Loads'' or ``TMDLs.'' As my
testimony will explain, TMDLs are critical to attaining our water
quality goals.
The fiscal year 2001 budget also includes an additional $50 million
in funding for Grants to States to implement projects to reduce
pollution from diffuse or ``nonpoint sources,'' bringing the total
value of these grants to $250 million, a 150 percent increase in 3
years.
An additional $50 million for grants to support efforts to restore
water quality in the existing ``areas of concern'' in the Great Lakes
is also proposed in the budget.
Finally, the President's recent proposal to provide an increase of
$1.3 billion in fiscal year 2001 for diverse USDA conservation programs
provides an opportunity to further strengthen coordination between USDA
and EPA to protect natural resources and water quality.
This new funding for clean water programs, when approved by the
Congress, will provide States and others with significantly enhanced
resources to clean-up water pollution problems around the country.
In my testimony today, I want to describe the work EPA is doing to
carry the clean water program forward in this new century, giving
special attention to our recent proposals to strengthen regulations
guiding our efforts to identify and restore polluted waters under the
Clean Water Act.
clean water for the future--the clean water action plan
Twenty-eight years ago, the Potomac River was too dirty to swim in,
Lake Erie was dying, and the Cuyahoga River was so polluted it burst
into flames. Many rivers and beaches were little more than open sewers.
Enactment of the Clean Water Act dramatically improved the health
of rivers, lakes and coastal waters. It stopped billions of pounds of
pollution from fouling the water and doubled the number of waterways
safe for fishing and swimming. Today, many rivers, lakes, and coasts
are thriving centers of healthy communities.
Despite this tremendous progress in reducing water pollution,
almost 40 percent of the Nation's waters assessed by States still do
not meet water quality goals. The States report that pollution from
factories and sewage treatment plants has been reduced but remains a
concern in many areas. Soil erosion and wetland losses impair or
threaten the health of many aquatic systems. Pollution from a wide
range of sources (e.g. storm water from city streets, agricultural
lands, forestry operations, and others) degrade water resources. Fish
in many waters contain unacceptable levels of mercury and other toxic
contaminants. Beaches are too often closed due to poor water quality.
Several years ago, after taking a hard look at the serious water
pollution problems around the country, the Administration concluded
that current implementation of the existing programs was not fully
addressing serious water pollution threats to public health, living
resources, and the Nation's waters.
In response to this concern, President Clinton and Vice President
Gore announced, in February 1998, an interagency effort to enhance
existing clean water programs and speed the restoration of the Nation's
waterways. The Clean Water Action Plan was the product of a cooperative
effort by USDA, EPA, the Department of the Interior, the National
Oceanic and Atmospheric Administration, the Army Corps of Engineers and
others. It describes over 100 actions--based on existing statutory
authority--that these agencies and others will undertake to strengthen
efforts to restore and protect water resources.
The Action Plan is built around four key tools to achieve clean
water goals.
A Watershed Approach.--The Action Plan envisions an
improved collaborative effort by Federal, State, Tribal, and local
governments, the public, and the private sector to restore and sustain
the health of over 2,000 watersheds in the country. The watershed
approach provides a framework for water quality management and is a key
to setting priorities and taking action to clean up rivers, lakes, and
coastal waters.
Strong Federal and State Standards.--The Action Plan
describes how Federal, State, and Tribal agencies may revise standards
where needed and make programs more effective. Strong standards are key
to protecting public health, preventing polluted runoff, and ensuring
accountability.
Natural Resource Stewardship.--Much of the land in the
Nation's watersheds is crop land, pasture, rangeland, or forests, and
much of the water that ends up in rivers, lakes, and coastal waters
falls on these lands first. Clean water depends on the conservation and
stewardship of these natural resources. This Action Plan encourages
Federal natural resource agencies, including the Department of
Agriculture, to support State and local watershed restoration and
protection.
Informed Citizens and Officials.--Clear, accurate, and
timely information is the foundation of a sound water quality program.
Informed citizens and officials make better decisions about their
watersheds. The Action Plan encourages Federal agencies to improve the
information available to the public, governments, and others about the
health of their watersheds and the safety of their beaches, drinking
water, and fish.
USDA, EPA and others are making good progress in implementing the
over 100 specific actions described in the Clean Water Action Plan.
Congress has provided vital support to this work by appropriating
critical funding, including doubling EPA's State grants for reducing
nonpoint pollution to about $200 million.
A key accomplishment promoted by the Action Plan is completion of
State assessments of watershed health and initiation of over 300
Watershed Restoration Action Strategies to restore polluted waters on a
watershed basis. These Action Strategies are a tremendous tool for
drawing together the diverse authorities and resources of local, State,
and Federal agencies to restore watershed health.
Other accomplishments include a new BEACH Action Plan, a response
plan for pollution threats to coastal waters, new regulations to
control discharges of stormwater, new efforts to support establishment
of riparian buffers, and a contaminated sediment strategy. We are also
supporting efforts to protect water quality and wetlands on a watershed
basis through ``watershed assistance grants'' and the five State grant
program.
The Clean Water Action Plan is a sound blueprint that brings the
Nation's clean water programs into the new century. I ask, Mr.
Chairman, that a copy of the first annual report of progress in
implementing the Clean Water Action Plan be included as part of my
testimony in the hearing record.
RESTORING AMERICA'S POLLUTED WATERS
The clean water programs that EPA and the States implement--ranging
from financing assistance for sewage treatment facilities, to permits
for dischargers, to technical assistance to control pollution from
nonpoint sources--are all intended to reduce water pollution.
For many years after passage of the 1972 Clean Water Act, pollution
problems were so common that any reduction in pollutants made a
contribution to improving the health of waters. Today, however, some of
the most obvious water pollution problems have been addressed. To
restore the health of those waters that remain polluted, we need to
complement existing programs with a more focused effort to identify
specific polluted waters and define the specific measures needed to
restore them to health.
The authors of the 1972 Clean Water Act envisioned a time when this
more focused approach to restoring the remaining polluted waters would
be needed and they created the TMDL program in section 303(d) of the
Act.
In my testimony today, I want to discuss the existing TMDL program,
the story that it tells about the health of our waters, and the
regulatory revisions that EPA is proposing in order to strengthen the
existing program.
The Total Maximum Daily Load (TMDL) Program Background
The TMDL program, as it exists today, has two key phases--
identification of polluted waters and restoration of the health of
these waters.
In the identification phase of the program, the States, with EPA
oversight and approval, usually develop lists of polluted waterbodies--
waters that do not attain the water quality standards adopted by that
State--every 2 years. States consult with the public in developing
lists, rank waters on their lists based on the severity of the
pollution, and set schedules for the development of TMDLs for each
water body over an 8-13-year period.
The second part of the program is the development of the actual
``TMDL,'' which is, in effect, a State's plan to restore the uses of
the water that the State has determined to be appropriate (e.g.
swimming). It includes a quantitative assessment of water quality
problems and the pollutant sources that contribute to these problems. A
TMDL for an impaired water defines the amount of a pollutant that can
be introduced into a waterbody so that the waterbody will achieve the
water quality standards adopted by that State and allocates reductions
in the pollutant or pollutants among the sources in a watershed.
Therefore, a TMDL is in effect a ``pollution budget'' for an impaired
waterbody. As such, it provides a guide to taking on-the-ground actions
needed to restore a waterbody.
A TMDL can focus on a small segment of a waterbody or on a group of
waters in a larger watershed. Where many polluted waters are clustered
together, some States have chosen to develop a more comprehensive,
watershed approach to the problem--such as a Watershed Restoration
Action Strategy as described in the Clean Water Action Plan.
States develop the lists of polluted waters and the specific TMDLs,
both of which must be approved by EPA. If EPA disapproves a State list
or TMDL, the Clean Water Act requires EPA to establish the list or TMDL
for the State.
Program Status
The TMDL program was designed to provide a safety net, catching
water bodies that were not protected or restored by the implementation
of the range of general, broadly applicable, pollution control programs
authorized in the Clean Water Act.
Until the early 1990's, however, EPA and States gave top priority
to implementing these general clean water programs and gave lower
priority to the more focused restoration authorities of the TMDL
program. As a result, relatively few TMDLs were developed and many
State lists were limited to a few waters and were not submitted in a
timely manner.
Several years ago, citizen organizations began bringing legal
actions against EPA seeking the listing of waters and development of
TMDLs. To date, 17 of these cases have been resolved with agreement for
State actions to identify impaired waters and establish TMDLs. Where
States fail to act, EPA will step in and identify the polluted waters
or establish the TMDLs.
In 1996, EPA determined that there was a need for a comprehensive
evaluation of the TMDL program. The Agency convened a committee under
the Federal Advisory Committee Act (FACA) to make recommendations for
improving program implementation, including needed changes to the TMDL
regulations and guidance.
The TMDL FACA committee was composed of 20 individuals with diverse
backgrounds, including agriculture, forestry, environmental advocacy,
industry, and State, local, and Tribal governments. Two representatives
of the USDA served as ex-officio members of the FACA.
In July 1998, the committee submitted to EPA its final report
containing more than 100 consensus recommendations, a subset of which
would require regulatory changes. Although the TMDL FACA committee did
not meet agreement on all issues, the recommendations guided EPA in the
development of the revisions to the TMDL regulations proposed in August
of last year.
EPA already has taken a number of other significant steps to
improve State progress in listing polluted waters and developing TMDLs.
For example, in August 1997, EPA issued two policy memoranda providing
guidance for State lists and requesting that States work to improve the
pace of establishing TMDLs. In particular, EPA asked that States
develop 8-13-year schedules for developing TMDLs for all listed
waterbodies, beginning with the lists due April 1, 1998.
States have made very good progress developing lists of polluted
waters. All States submitted 1998 lists and EPA has approved all but
one of these lists. In a few cases, EPA added waters to a State list.
These lists, and maps of each State's polluted waters, are available
over the Internet at www.owow/tmdls.epa.gov.
In addition, the number of TMDLs developed by States and approved
by EPA has been steadily increasing over the past several years.
Between 1972 (when Congress passed section 303(d) as part of the Clean
Water Act) and 1999, States and EPA established approximately 1000
TMDLs.
Since October 1999, States have established, and EPA has approved,
over 600 TMDLs for a variety of pollutants, including sediments and
nutrients which are predominately caused by polluted runoff. Across the
country, over 2000 TMDLs are now under development.
What Do the 1998 Polluted Waters Lists Tell Us?
The 1998 State lists of polluted waters tell us that the
overwhelming majority of Americans--218 million--live within 10 miles
of a polluted waterbody. Over 20,000 waterbodies across the country are
identified as not meeting water quality standards. These waterbodies
include over 300,000 river and shore miles and 5 million lake acres.
The size of these impaired waterbodies range from short sections of
headwater streams to long sections of major rivers like the Mississippi
and the Colorado.
Direct pollution discharges from sewage treatment plants and
factories are the sole cause of pollution in about 10 percent of
polluted waters. Another 47 percent are impaired by a combination of
point source discharges and polluted runoff. The remainder are impaired
by polluted runoff from diffuse or nonpoint sources. Some of the
impairments are the result of ongoing discharges while others stem from
historic or ``legacy'' problems resulting from past activities.
The pollutants most frequently identified as causing water quality
impairment include sediments, excess nutrients, and harmful
microorganisms. Metals, including toxics, also contribute to these
impairments.
On average, there are about two pollutants identified for each of
the impaired waters. This means that as many as 40,000 TMDLs may need
to be done, although watershed approaches can be used to address many
of these individual segments at the same time and in a coordinated
manner for greater efficiency.
To better illustrate the story that the 1998 polluted waters lists
tell, I have several maps and graphs--including a national map
depicting the percent of impaired waters by watershed, and a bar graph
indicating the leading reasons that waters do not meet their clean
water goals--that I would like to enter into the record.
Proposed Regulatory Revisions
On August 23, 1999 President Clinton announced proposed revisions
to the existing TMDL program regulations that will significantly
strengthen the Nation's ability to achieve clean water goals and
provide States, Territories, and authorized Tribes clearer direction
for identifying and restoring polluted waters. In addition, EPA
proposed changes to the Clean Water Act discharge permit program and
the water quality standards program that complement the proposed TMDL
regulatory revisions.
These regulatory revisions are mid-course changes to the existing
program based on current data and first-hand, on-the-ground knowledge
regarding the status of the Nation's waters. Moreover, the insights we
gained from the Advisory Committee process provided guidance on
constructive changes to the program.
I want to briefly describe several of the key changes we have
proposed to the TMDL program.
Schedules for TMDLs.--The proposed rule calls for States
to develop schedules for establishing TMDLs within a 15-year timeframe,
2 years beyond the current 13-year schedule. By proposing this 15-year
period, EPA is recognizing that some States need to develop many TMDLs
and that it takes tirade to develop a useful and effective TMDL. In
addition, the regulation does not set a time period for implementing
the TMDL and attaining water quality standards, thereby giving States
discretion to develop appropriate schedules for implementation.
Priorities for TMDLS.--The proposed regulations also give
States considerable flexibility in setting priorities for the
development of TMDLs over the 15-year period. While the proposed
regulations would require States to prioritize their listed waters, the
only specific priority setting requirements in the proposed rule are
that States assign a high priority to polluted waters designated as a
public drinking water supply where the pollutant of concern causes a
violation of a drinking water standard, and to waters where pollutants
threaten species listed as endangered or threatened under the
Endangered Species Act.
Allocating Needed Pollution Reductions for Polluted
Waters.--The proposed regulations make clear that TMDLs include an
allocation of the needed pollutant reductions among sources of
pollution, but give States freedom to allocate needed pollution load
reductions among sources in whatever manner they deem appropriate,
provided that the sum of the allocations will result in the water
attaining State water quality standards.
Defining ``Reasonable Assurance''.--EPA's current guidance
asks that there be a ``reasonable assurance'' that a source actually
will attain its pollution reduction allocation. Without such assurance,
the TMDL may not result in attainment of the State-adopted water
quality standard.
The proposed regulations more explicitly define ``reasonable
assurance.'' In effect, ``reasonable assurance'' means a high degree of
confidence that allocations in the TMDL will be implemented. For point
sources, reasonable assurance would mean that Clean Water Act permits
will be consistent with any applicable pollution reduction allocation
contained in the TMDL.
For diffuse or ``nonpoint'' sources, where no permit is required,
``reasonable assurance'' would mean that nonpoint source controls are
specific to the pollutant causing the impairment, implemented according
to an expeditious schedule, and supported by reliable delivery
mechanisms and adequate funding. Some examples include regulations or
local ordinances, performance bonds, memoranda of understanding,
contracts or similar agreements. Voluntary and incentive-based actions
may also be acceptable measures of reasonable assurance and are
encouraged. It is important to note that a State decision to allocate
load reductions to nonpoint sources does not bring that operator into a
permit or regulatory program.
TMDL Implementation Plans.--The proposed regulations call
for organizing TMDL related information concerning needed pollution
reductions, allocation of pollution reduction effort among sources, and
``reasonable assurances'' in a single document called an implementation
plan.
States will have the responsibility for developing the plans, but
will work closely with a range of stakeholders at the local, waterbody
level. States could develop implementation plans for clusters of listed
waters on a watershed scale, as long as the scale of the implementation
plan is consistent with the geographic scale at which the TMDL is
established.
Permit Program Revisions.--In cases where a State
developed a TMDL that is disapproved by EPA, the Clean Water Act
requires EPA to establish the TMDL. In such cases, the proposed
regulations would allow EPA to use the authority that States now have
to designate certain sources, such as large Animal Feeding Operations
and large fish farms, as needing Clean Water Act permits. EPA would use
this authority only where a permit is needed to assure implementation
of measures called for in a TMDL established by EPA.
The new regulations also would provide EPA the authority to object
to and, if necessary, reissue expired permits issued by States for
discharges to polluted waterbodies where reissuance is necessary to
move toward meeting water quality standards while a TMDL is being
established or to ensure that a completed TMDL is adequately
implemented.
Silviculture Activities.--The proposed regulation provides
States with discretionary authority to require that discharges of
stormwater from forest activities such as road building and harvesting
have a Clean Water Act permit, but only where the discharge contributes
to the nonattainment of a State-adopted water quality standard or is a
``significant contributor'' of pollutants to waters.
Although silviculture activities are not the most significant
source of water pollution nationwide, they can cause serious pollution
problems in some areas. In the preliminary data for the forthcoming
1998 305(b) report, thirty-two States identified forestry as a source
of water quality problems for 20,000 miles of rivers and streams and
220,000 acres of lakes. Other States identified serious problems from
pollutants, such as sediment and nutrients, that can result from
forestry and other activities, but did not identify source categories.
This regulatory revision is narrowly tailored to allow the State
permitting authority the option of requiring an individual silviculture
discharger to address a significant water pollution problem through the
use of a permit when other tools (e.g. financial assistance, voluntary
measures) are unavailable, are not being implemented, or have proven
ineffective.
EPA recognizes that many States have strong and effective voluntary
programs for reducing water pollution from silviculture operations, and
expects that most States will continue to rely on these programs both
to protect the quality of waters that are now clean and to restore the
quality of waters identified as polluted.
Where EPA uses its backstop authority and establishes a TMDL for a
State, and allocates pollution reductions to forestry sources, the
Agency will rely on voluntary, incentive and financing approaches for
implementing these load allocations where they are proven effective.
Only in cases where no other option offers a ``reasonable assurance''
of implementation would EPA consider using the proposed regulatory
authority to require a discharge of stormwater from a forestry
operation to have a Clean Water Act permit. EPA expects to use this
authority as a last resort.
New Discharges to Polluted Waters.--The proposed
regulations outline a new approach to achieving progress toward
attainment of water quality standards in polluted waterbodies after
listing and pending establishment of a TMDL. Because the new regulation
would allow up to 15 years for States to develop TMDLs, there is a
significant risk that conditions will decline in many waters before the
TMDL is developed.
Existing regulations allow new dischargers to polluted waters, as
long as the discharge ``does not cause or contribute to the violation
of water quality standards.'' This means the dischargers either will
not discharge pollutants causing the water to be impaired, or if they
intend to discharge such pollutants, their permit must include effluent
limitations that ``derive from and comply with'' water quality
standards (e.g. the pollutant concentration level in the newly
permitted effluent does not exceed the allowed concentration level of
the pollutant in the receiving water).
EPA is proposing to strengthen this requirement by requiring that,
where a State (or EPA where it issues the permits) allows large new or
significantly expanded discharges to these waters, discharge permits
must result in ``reasonable further progress'' toward water quality
goals. Where possible, permits are to include an offset from another
pollution source of one-and-a-half times the proposed new or expanded
discharge. At a minimum, the permit is to do no further harm to the
receiving water. This provision would help to assure that pollutants
that bioaccumulate or are controlled based on mass loading, rather than
concentration, do not make already polluted waters worse.
CONCLUSION
Most Americans are rightly proud of the tremendous progress the
country has made over the past 25 years in improving the quality of our
rivers, lakes, and coastal waters. The days of rivers bursting into
flame and lakes dying are behind us.
This accomplishment resulted from a team effort--Congress lead the
way in passing the Clean Water Act and other Federal laws, and Federal
agencies like EPA and the Department of Agriculture did their part. But
much of the real, on-the-ground work has been done by the States,
cities, small towns, and individual stewards of the land, like farmers,
ranchers, and woodland managers.
The 1972 Clean Water Act set the ambitious--some thought
impossible--national goal of ``fishable and swimmable'' waters for all
Americans. At the turn of the new millennium, we are finally within
striking distance of that goal. We need to maintain our traditional
programs to protect clean waters. But today, we are able to list and
put on a map each of the 20,000 polluted waters in the country. And, we
have a process in place--the TMDL program--to define the specific steps
needed to restore the health of these polluted waters and to meet our
clean water goals within the foreseeable future.
It is critical that we, as a Nation, rededicate ourselves to
attaining the Clean Water Act goals that have inspired us for the past
25 years. The TMDL regulations we have proposed draw on the core
authorities of the Clean Water Act and refine and strengthen the
existing program for identifying and restoring polluted waters. They
provide a map that will support us in our effort to fulfill the
original promise of the Clean Water Act.
Some who have commented on the proposed regulations have suggested
that we are asking the country to take too great a step toward cleaner
water and that we should set aside these proposals. I respectfully and
strongly disagree.
We began this effort over 3 years ago by forming a Federal Advisory
Committee including a wide range of interested parties. We used the
report of this Advisory Committee, and input from States and others, to
develop a proposed regulation. We extended the comment period on the
proposed rules to January 20 of 2000 and actively sought public
comments and input from all interested parties for 150 days. We held a
series of public meetings around the country on this proposal to
respond to questions and listen to alternatives.
A key theme of many of the comments we heard in developing the rule
is the need to increase financial resources for States to manage this
effort and to assist pollution sources in implementing needed controls.
We recognize this need. We have increased funding for key State grant
programs in recent years. Congress approved the Administration's
requests to add $100 million to State grants for the nonpoint pollution
control program in fiscal years 1999 and 2000. Most importantly, for
fiscal year 2001, the President has proposed a major increase to EPA
grants to States targeted specifically for development of TMDLs. This
funding, when matched by States, will provide $75 million for this
important work. This is complemented by the proposed $1.3 billion
increase in conservation programs at USDA. We heard the call for
increased resources and we responded.
Mr. Chairman, some observers will tell you that these new
regulations are more of the old, top-down, command-and-control, one-
size-fits-all approach to environmental protection. In fact, the
regulations are guided by a vision of a dramatically new approach to
clean water programs.
This new approach focuses attention on pollution sources in proven
problem areas, rather than all sources. It is managed by the States,
rather than EPA. It is designed to attain the water quality goals that
the States have set and to use measures that are tailored to fit each
specific waterbody, rather than a nationally applicable requirement.
And it identifies needed pollution reductions based on input from the
grassroots, waterbody level, rather than relying on a single, national,
regulatory answer. In sum, we think we are on the right track to
restoring the Nation's polluted waters.
Over the next several months, we will work with other Federal
agencies, States, and other interested parties to develop a final
regulation to help the Nation better achieve the goal of restoring
polluted waters.
Thank you, Mr. Chairman and members of the subcommittee for this
opportunity to testify on EPA's efforts, in cooperation with States and
other Federal agencies such as the Department of Agriculture, to
restore the Nation's polluted waters.
I will be happy to answer any questions.
______
STATEMENT OF WILLIAM NIELSEN, COUNCIL PRESIDENT, EAU CLAIRE, WI, ON
BEHALF OF THE NATIONAL LEAGUE OF CITIES
Mr. Chairman, members of the subcommittee: I am Bill Nielsen,
President of the Eau Claire, Wisconsin City Council and a member of the
National League of Cities Energy, Environment and Natural Resources
Steering Committee. I also served as the only elected representative of
the nation's cities on the TMDL Federal Advisory Committee. I am here
today to testify on behalf of the National League of Cities and the
16,000 cities across the Nation we represent on the regulations
recently proposed by the Environmental Protection Agency on Total
Maximum Daily Loads.
I would like to make clear at the outset of my testimony that,
while city officials are distressed and frustrated by endless unfunded
Federal mandates, we vigorously support the goals and objectives of the
Clean Water Act. We recognize and appreciate the invaluable
contribution made by the Federal Government in assisting cities in
restoring and protecting our nation's rivers, lakes and streams.
Without the substantial financial investment made by all three levels
of government in our municipal wastewater infrastructure, cities would
not have made the progress we have over the past 20 plus years. Since
the 1972 Amendments to the Clean Water Act were passed we have been
using best available technology to address pollutants from point
sources. We believed that the TMDL program would take the next step in
addressing the major remaining sources of pollutants--those from
nonpoint sources.
This partnership of Federal, State and local governments, as this
committee knows well, has resulted in significant reduction of
pollution from point sources at levels approaching 95 percent or
better. NLC believes that EPA's TMDL regulation, if implemented as
proposed, fractures our partnership and unjustifiably places the burden
solely on the nation's cities.
That we continue to have impaired waterbodies is not in question.
That some of these impairments can be attributed to municipal
activities or activities in municipalities is also not in question.
What is in question is who will bear the preponderant responsibility
for attainment of water quality standards: those over whom there is
statutory control because they fall within the purview of the law, or
those whose contributions cause continued nonattainment of water
quality standards?
We understand that the Clean Water Act principally addresses point
sources. We know there are sources contributing to stream degradation
that do not fall within the parameters of the Clean Water Act. What we
do not understand is how EPA can manipulate the statute to make
municipalities--in effect--legally responsible for the pollutant
contributions of sources not covered by the law.
The National League of Cities believes the TMDL proposal, if not
amended, will:
severely limit growth and economic development in urban
areas;
obstruct compliance with remediation of sanitary sewer
overflows (SSOs) and/or combined sewer overflows (CSOs);
impose impossible requirements on discharges from
municipal separate storm sewer systems (MS4s);
halt conversion initiatives to bring septic systems into
treatment facilities and thereby adversely affect logical and orderly
annexation procedures;
shift the financial burden for pollutant reductions from
nonpoint sources to local tax and ratepayers; and,
generate endless litigation that will fall principally on
National Pollutant Discharge Elimination System (NPDES) permit holders,
not on sources that contribute to stream degradation.
AFFECTS ON URBAN GROWTH AND ECONOMIC DEVELOPMENT
NLC believes that the proposed ``offsets'' and changes to the
antidegradation policies of the Clean Water Act will have significant
negative ramifications on growth and economic development in the
nation's cities.
First, while the offsets are limited to ``large'' facilities, that
is the direction municipalities are moving in dealing with wastewater
treatment. We are unaware of any decentralization initiatives of these
operations occurring now, and it is doubtful that such a strategy would
be workable, cost-effective or even allowable. As the requirements
imposed on municipal wastewater treatment facilities and their
adjuncts--CSOs, SSOs, and MS4s--become more complex and costly,
consolidation, more often than not, provides better opportunities for
economies of scale, access to expert professional staff, and adequate
funding. Thus, as municipal wastewater treatment operations move into
the ``large'' category (defined as publicly owned treatment works
[POTWs] serving populations of 50,000 or more), the requirement will
fall more heavily on this sector of dischargers, thus penalizing, or
halting entirely, efforts to become more effective and efficient in
meeting the needs of growing populations and in controlling pollutants.
Second, from the perspective of municipalities, the statement in
the preamble to Part III (see Federal Register, Vol. 64, No. 162, page
46067) indicating that ``[e]xisting dischargers are likely to be in a
poorer position to bargain for offsets because they may not have a
realistic option to locate on a different water body'' is both naive
and appallingly revealing of the agency's agenda.
Water treatment facilities (both wastewater and drinking water) are
located where they are because they serve the needs of a specific
population in residence in a specified area. Moving them to ``a
different water body'' is simply not an option unless the agency
envisions wholesale relocation of entire cities. NLC would argue that
these provisions are inappropriately applied to the nation's cities,
which should be exempt from any offset requirements given the nature of
municipal operations that affect receiving waters.
NLC also has significant concerns with EPA's suggestion that non-
municipal (industrial) operations--which may actually be in a position
to relocate to a more pristine waterbody--be encouraged to do so. The
nation's city officials work very hard to keep their communities
economically viable. NLC can neither condone nor support a Federal
agency's policy that has such major ramifications and unintended
consequences for the economic well being of urban America.
While the preponderance of cities in the United States have
populations of 50,000 or less, population is not inherently
representative of pollutant loadings. It is unclear whether EPA
proposes to exempt non-municipal (industrial) point sources in these
cities from the offset requirements. If that is not the case, the
agency is again encouraging behavior that is inimical to the interest
of these cities by creating an incentive for major industrial
dischargers to move to smaller jurisdictions to avoid having to comply
with the offset provisions. This is unacceptable.
Third, NLC also takes exception to EPA's rationale that ``such
narrowed coverage [i.e., application of the offset policy to large new
or significantly expanding dischargers] is more likely to insure
development of a successful market for pollutant trading.'' Anyone who
has ever been in a large city would know that they are primarily
surrounded by smaller cities--not by the nonpoint source activities
that are responsible for the preponderance of the remaining pollutants
to the nation's waterbodies. It is much more likely that ``success'' in
``pollutant trading''--assuming point source to nonpoint source trading
is even viable--would occur outside of urban areas, precisely where EPA
is proposing it to be inapplicable. We completely disagree that the
target dischargers are ``in the best position to achieve offsets.''
Since we oppose the idea of pollutant trading in the first
instance, we are not proposing that EPA broaden the applicability of
this concept to more areas of the country. We merely wish to point out
that the entire concept is fatally flawed.
And finally, we believe the proposed changes to the antidegradation
policy will have the effect of placing every waterbody in the United
States on the table for TMDL consideration. Such a policy will force
growth and expansion to unpolluted areas, particularly in light of the
presumed ``zero'' discharge mandate that is implied in the proposed
regulations. In our view, the proposal establishes zero tolerance for
any new discharges in every city bordering or affecting a waterbody not
meeting water quality standards, thus precluding any growth or major
redevelopment in already developed areas.
SHIFTING FINANCIAL BURDEN TO LOCAL TAX AND RATEPAYERS
NLC also has environmental justice concerns about the offset
proposals. The proposed rule, in effect, mandates that the nation's
larger cities--or rather its taxpayers--finance the pollutant control
activities of private sector entities. In the case of most nonpoint
sources of pollutants, these entities will be outside the jurisdiction
of the city. City elected officials cannot justify the use of local tax
dollars to finance water pollutant control practices of entities over
which we have no authority. And, whether a point or nonpoint source is
within or outside of the city boundary, cities cannot finance the
activities of a private/for profit venture. Nor can we justify such
expenditures to our local tax and ratepayers when there are significant
environmental and non-environmental unmet local needs. We, at the local
level are currently struggling with implementation of the new Phase II
stormwater program. That is where we need to invest our limited
resources, not in solving problems caused by others.
What is more, before we can implement effective offsets we need
mechanisms that will help identify what is coming from where, how much
is coming from whom, and whether there are strategies that will
actually impact on these pollutants. This is true not only for nonpoint
sources, but equally relevant to any inter-media trades such as EPA is
proposing for waterbodies affected by air pollution.
There is also very little certainty involved in the implementation
of best management practices in the nonpoint source arena. EPA itself
makes this case by elaborating on the uncertainty of successfully
implementing and attaining the necessary reductions from nonpoint
sources and the inconsistent enforcement authorities available to
insure such reductions actually occur. Were this not the case, the
agency would scarcely find it necessary to hold dischargers responsible
for the attainment of the reductions by including such reductions in
the discharger's NPDES permit.
The proposal to incorporate assurances and enforceable mechanisms
with respect to offsets obtained by point sources in their NPDES
permits is one of the most egregious provisions in the proposed rule.
NLC believes this proposed requirement clearly exceeds EPA's legitimate
authority. To the best of our knowledge, Congress has not authorized
the agency to designate point sources as surrogate authorities to
ensure the attainment of water quality objectives from sources of
pollutants not regulated by the law. EPA has no authority to expand the
law beyond Congressional intent, nor can it take enforcement action
against a specific discharger for the pollutant loadings of another
discharger. NLC does not believe the agency can circumvent this fact by
incorporating such requirements in an NPDES permit. Further, a city
cannot assume liability for the actions of others carried out under
contract. In effect, including pollutant loading reductions from
sources outside of a city's boundaries in a municipal NPDES permit is
unallowable.
In the abstract, offsets may indeed be more ``cost effective'' than
financing the removal of the last miniscule pollutant from a point
source, but unless offsets work, they will be totally useless. Until
all pollutant sources function under the same, or substantially
similar, enforcement authorities, EPA cannot expect effective trading
markets by simply shifting the burden of controlling pollutants from
nonpoint sources to point sources.
WET WEATHER ISSUES (STORMWATER, CSOS, SSOS)
EPA has proposed strategies for addressing TMDLs that appear to
have been developed without consideration of the interrelationships
among programs, the overarching goals and objectives of the Clean Water
Act, or previously negotiated agreements between EPA and affected
stakeholders. We believe, if implemented as proposed, the rules will
either preclude or inhibit the ability of municipal point sources to
comply with other significant requirements of the Clean Water Act. NLC
believes this is especially true with respect to wet weather issues:
CSOs, SSOs and municipal stormwater programs.
City officials believe the proposed TMDL rules will nullify
virtually all of the agreements reached by the three Federal advisory
committees convened by EPA over the last 15 years to address urban wet
weather problems. This includes any relief that may be realized from
the recently concluded SSO FACA with respect to wet weather facilities,
as well as any relief granted municipalities in EPA's August 1996
Interim Permitting Approach for Water-Quality Based Effluent
Limitations in Storm Water Permits which limited requirements to meet
numerical effluent limits in municipal separate storm sewer system
discharges. The specter of exactly such requirements seems inescapable
in the continual references to wasteload allocations for stormwater
discharges under the TMDL proposal. This dichotomy is of significant
concern to the nation's cities since we believe there is inadequate
knowledge, inexact technology, insufficient resources, and other
insurmountable barriers, to assure that such an objective is
attainable. We are concerned about the likelihood of having
unattainable, enforceable standards imposed on local governments and
reiterate our continuing opposition to the imposition of TMDLs on
stormwater discharges until there is a substantially improved and
objective body of knowledge demonstrating how and/or whether these
objectives are realistic.
Stormwater
EPA has just finalized regulations for the Phase II municipal
separate storm sewer systems (MS4s). EPA, in convening a Federal
advisory committee to assist the agency in developing these
regulations, clearly indicated that it was the agency's intent that the
Phase II program--which will apply to cities in urbanized areas of
50,000 or more population--be significantly less complicated than the
program developed by the agency for the Phase I cities. Many of the
provisions in the Phase II MS4 regulations are based in large measure
on recommendations and, in some cases, agreements among the
participants in the Federal advisory committee. The use of general
permits--as currently constituted--was perceived by the municipal
community as a major step in the direction of simplifying an
unnecessarily complicated program. If the TMDL proposal alters the use
of general permits and information required in the Notice of Intent
(NOI), the agreements by many members of the Phase II Stormwater FAC--
and the commitments made by EPA to the municipal caucus--will, in
effect, be nullified.
What is more, significant changes to the general permit provisions
will invalidate EPA's claim (see Federal Register, Vol. 64, No.162,
page 46084, C. Unfunded Mandates Reform Act) that there will be no
impact on small governments. As cities have learned from their
experience\1\ with the Phase I stormwater program, obtaining an
individual permit, which may well be the result of these proposed
provisions, will have a major financial impact on all local
governments, including those with populations of less than 50,000.
---------------------------------------------------------------------------
\1\ EPA estimated the cost of a Phase I permit to be between
$35,000 and $75,000. Nationwide, the average cost of a Phase I permit
application is $650,000 to $750,000.
---------------------------------------------------------------------------
Most importantly, the nation's Phase II cities are just now
beginning to develop their stormwater programs under a set of rules
that were finalized last October. About the time these cities will have
completed their stormwater program planning and begun implementation, a
new regulation--TMDLs--will be superimposed creating a whole new set of
criteria. A set of criteria, I might add, that we doubt anyone will
know how to implement. It is already an uphill struggle for cities to
get voter approval of new programs. Shifting targets and extensive
program revisions exacerbate the problem not only for our local tax
payers, but also for city officials who are called upon to explain why
they didn't get it right the first time.
NLC believes it is inappropriate to alter the parameters of general
permits with respect to municipal stormwater discharges; impossible to
meet more stringent requirements in a stormwater permit; and disruptive
to continually change the requirements of programs, such as the MS4
program, that are new and largely experimental.
Combined Sewer Overflows/Sanitary Sewer Overflows
NLC is also concerned about the impact of implementing TMDLs on
municipal initiatives to comply with Federal requirements to address
combined and sanitary sewer overflows. If one Federal regulation
requires cities to, in effect, divert these overflows to treatment
facilities--either expanded existing facilities or new ones--what is
the point of developing another regulation that will preclude cities
from doing so? Cities cannot comply with Federal directives to redirect
excess wet weather flows to treatment facilities while simultaneously
being precluded from doing so unless they can obtain substantial
offsets from other sources. In addition, cities face significant
financing issues here. On the one hand the agency requires costly
strategies to address overflows; on the other hand, cities can only
secure permits for such facilities if they also buy offsets--all
without any financial help from the level of government mandating the
requirements. Cities, which are facing close to $1 trillion in unfunded
water infrastructure needs over the next 20 years, simply do not have
the required resources to do both. As usual, EPA is continually
``sensitive'' in the proposed TMDL rules to its own limited resources
as well as those of the States, but seems to be indifferent to similar
constraints on local government.
Septic Systems
As a matter of good environmental policy, many cities are
attempting to bring users of septic systems into their treatment works
as well. Here again, because of the increases in discharges resulting
from such conversions, the TMDL proposed rules pose a disincentive to
take such action because of the additional costs of offsets. Such a
policy, we believe, will adversely affect local decisions and
relationships with respect to annexation policies and procedures.
In sum, NLC believes implementation of the proposed TMDL
regulations would serve as a disincentive to replace septic systems and
as an absolute bar to complying with CSO requirements and any future
SSO mandates. We do not believe that EPA, in drafting the ``significant
expansion'' proposals, adequately considered the impact on
municipalities with respect to their wet weather responsibilities.
LISTING DECISION
NLC is also concerned about the overreaching proposal to identify
``threatened'' waters in the TMDL process. There are reportedly over
40,000 impaired waterbodies that will be subject to TMDL requirements.
We do not believe it is either appropriate or within the scope of the
law to extend the program to waters that may, at some uncertain future
date, have problems. Addressing the known problems in the nation's
waters should be the nation's priority and limited resources should be
targeted to these waterbodies. We believe there is more than sufficient
work for the States and other affected entities in dealing with known
impaired waterbodies. In our opinion, it is both unnecessary and
overburdensome to involve waters that may have the ``potential'' to
become impaired since the mere threat of being listed will serve as a
significant incentive to take appropriate pollution prevention
measures.
NLC also believes the agency should require quality assured/quality
controlled data as the basis for making TMDL listing determinations.
While citizen monitoring activities are helpful, the results of these
types of efforts cannot be the sole basis for making determinations
that have significant resource implications for the nation's cities
unless the accuracy of the information has been validated.
City officials also object to the recommendation that there be
limits on permit renewals in threatened waterbodies. Here again, EPA is
targeting part of the problem to be all of the solution. At a minimum
there should be an analysis to identify what sources are contributing
to further impairment. The sources responsible for the impairment
should then be the subject of actions to minimize or eliminate their
contribution. The entire problem should not be presumed to come from
point sources since they are not the only sources contributing to
stream degradation.
NLC RECOMMENDATIONS
At a minimum, NLC believes the following changes are essential:
Offsets: NLC believes the offset provision should be discretionary
for municipal facilities on the part of the permitting agency. In such
cases offsets should be allowable only where it can be demonstrated
that such a policy is appropriate and will not have adverse unintended
consequences.
Stormwater Permits: NLC believes all (Phase I and II) municipal
stormwater permits should be exempt from the TMDL requirements.
General Permits for Stormwater Discharges: EPA may find it
necessary to alter the information sought in an NOI for non-MS4 general
permits. However, since the stormwater regulations will apply for the
first time to cities with populations between 50,000 and 99,999 (as
well as those with populations under 50,000 in urbanized areas), NLC
believes any such amendments should exempt all MS4 permits, not just
those issued to ``small entities.'' Furthermore, general permits as
currently designed should remain EPA's primary recommendation to
permitting authorities as the optimal mechanism for municipal
stormwater discharges.
Listing: Only waterbodies that are determined to be impaired by
quality assured/quality controlled data should be subject to listing
for a TMDL.
______
STATEMENT OF JAMIE CLOVER ADAMS, SECRETARY, KANSAS DEPARTMENT OF
AGRICULTURE, ON BEHALF OF THE NATIONAL ASSOCIATION OF STATE DEPARTMENTS
OF AGRICULTURE
Mr. Chairman and members of the subcommittee, thank you for the
opportunity to present testimony on the Environmental Protection
Agency's (EPA) proposed rules on Total Maximum Daily Loads (TMDLs). My
name is Jamie Clover Adams. I am the Secretary of the Kansas Department
of Agriculture and I appear today on behalf the National Association of
State Departments of Agriculture (NASDA) and my colleagues from across
the nation.
We share your commitment to cleaning up the waters of the United
States. American agriculture is dependent upon continued access to
clean water, air, and fertile land for its viability. There are four
issues of great concern to the nation's Secretaries, Directors and
Commissioners of Agriculture regarding the proposed TMDL rule.
It greatly exceeds EPA's statutory authority;
It jeopardizes successful voluntary, incentive-based,
nonpoint source management programs,
It significantly expands command and control regulatory
mandates with no flexibility to implement strategies that achieve
results; and
It fails to recognize the substantial State resources
needed to address nonpoint source pollution--financial and technical
assistance, scientific data, monitoring and Best Management Practice
(BMP) research.
A. THE TMDL RULE EXCEEDS EPA'S STATUTORY AUTHORITY
We disagree with EPA that the Clean Water Act (CWA) provides ample
authority to regulate nonpoint sources of pollution. Legislative
history is clear that Congress made a conscious decision to treat point
and nonpoint sources differently and separately. Point sources are
directly regulated through National Pollutant Discharge Elimination
System (NPDES) permits and nonpoint sources are addressed and managed
under Section 319. In fact, in the EPA brief filed as part of Kansas
Natural Resources Council and Sierra Club v. Carol Browner and State of
Kansas, defendant-intervenor, EPA makes this very point. They argued,
``Congress did not include any provisions requiring States or EPA
directly to regulate nonpoint sources . . . Rather, under Section 319
of the Act, Congress required States to prepare reports and develop
management programs addressing various strategies, including `best
management practices,' to reduce pollution from nonpoint sources.'' We
believe the intent of the Clean Water Act is clear and EPA has also
acknowledged this fact--nonpoint sources of pollution are not subject
to mandatory regulations under the Clean Water Act, but are to be
addressed through voluntary, outcome-based programs. It is imperative
that the TMDL program not require States to operate in any different
manner.
B. THE RULE JEOPARDIZES SUCCESSFUL PROGRAMS ALREADY BEING IMPLEMENTED
The Clean Water Act contains valuable provisions for nonpoint
source management under Section 319 and 208. Also, farmers and ranchers
have made great strides through their participation in programs
established under the 1985, 1990 and 1996 Farm Bills. States are
developing and implementing their own programs. For example, in my own
State of Kansas, we are implementing voluntary incentive-based
practices as part of the Governor's Water Quality Initiative, and we
have monitoring data which shows these practices are improving the
water quality in the area.
EPA's TMDL rule fails to give States the flexibility that is needed
to build on our progress. Instead, EPA's TMDL proposals substantially
rewrite implementation of the Clean Water Act with prescriptive
requirements, short deadlines, new and additional layers of planning,
implementation, and oversight. This is counterproductive.
States are on the forefront of addressing nonpoint water quality
issues. We know what the problems are, we know what programs will help.
States don't need EPA trying to dictate and prescribe solutions. In
Kansas, we have written and are implementing 120 TMDLs in the Kansas
Lower Republican Basin. We will have more done in the Upper and Lower
Arkansas River Basins, as well as the Cimarron Basin by mid-2000. Lack
of flexibility in the TMDL rule will slow our progress and our efforts
to improve water quality in Kansas.
C. THE TMDL RULE SIGNIFICANTLY EXPANDS ``COMMAND AND CONTROL''
REGULATORY MANDATES WITH NO FLEXIBILITY TO IMPLEMENT STRATEGIES THAT
ACHIEVE RESULTS
States must have flexibility to build on programs that are already
working to improve water quality. Almost all States are utilizing
existing laws, regulations, strategies and programs to address water
quality concerns related to agricultural runoff. States are
aggressively pursuing and expanding resource conservation efforts to
minimize nonpoint source pollution. To reduce nonpoint source pollution
and improve water quality, we must have the cooperation of the
agricultural community. Proceeding with a strategy that is based on
heavy-handed mandates will not foster cooperation. In Kansas, for
example, we implemented a State, voluntary, incentive-based program to
reduce atrazine runoff. In the target subbasin, one-on-one work with
landowners has resulted in 100 percent participation and improvements
in water quality.
D. EPA'S RULE FAILS TO RECOGNIZE THE SUBSTANTIAL STATE RESOURCES NEEDED
TO ADDRESS NONPOINT SOURCE POLLUTION--FINANCIAL AND TECHNICAL
ASSISTANCE, SCIENTIFIC DATA, MONITORING AND BMP RESEARCH
Over the past two decades, Federal agencies have seriously under-
invested in nonpoint source abatement programs. Nonpoint source
programs have received only one to 2 percent of what has been spent on
point source control. Technical assistance is equally as important as
financial assistance for best management practices (BMPs). In Kansas,
convincing farmers and ranchers to implement BMPs takes one-on-one
dialog and assistance with implementation. Water quality data in all
States is not adequate to make the kinds of decisions the EPA rule
requires. Even in States like Kansas, where we have a network of 200
monitoring stations across the State that have been in place for 20
years, significant data gaps exist. Work in the Governor's Water
Quality Initiative required additional chemical monitoring, as well as
biological monitoring.
States, like Kansas, are also investing in best management practice
research. Farmers and ranchers want to do the right thing. We need to
continue to provide the tools for them to do the job in a cost-
effective way. We need help funding this type of research.
EPA's economic analysis greatly underestimates the cost of
implementing TMDLs to the States and the private sector. In Kansas, the
State Conservation Commission estimated the cost to implement practices
on 192,000 acres in Nemaha County to achieve high priority TMDLs at $4
to $5 million. With the average value of production per farm in the
county at $90,000, high priority TMDL implementation will cost four to
5 percent of the average farm's gross income.
SUMMARY OF REMARKS
Proper management of nonpoint source pollution lies in State and
local efforts. It is important to note that the Clean Water Act gives
States the lead responsibility to prevent, eliminate, and reduce
pollution. EPA's proposed regulations do not reflect this leadership
role for the States. We need that partnership to jointly tackle the
challenges of further reducing nonpoint source pollution. We hope the
subcommittee will review our concerns closely.
1. The TMDL rule exceeds EPA's authority. It is a rigid, top-down
program that will not improve water quality.
2. It fails to recognize the substantial costs associated with its
implementation. Without adequate funding, States will not be able to
move forward in addressing agricultural nonpoint source pollution.
3. It is important to remember that this is NOT about pushing paper
and process, it is about people. It's about farmers and ranchers, their
livelihoods, their businesses and their families.
We stand ready to work with Congress, EPA, and USDA on constructive
solutions to improve water quality. On behalf of my State colleagues, I
thank you for this opportunity to speak before the subcommittee.
______
Statement of David Holm, President, Association of State and Interstate
Water Pollution Control Administrators
Mr. Chairman, members of the committee and subcommittee. My name is
David Holm. I am the President of the Association of State and
Interstate Water Pollution Control Administrators (ASIWPCA) and the
Director of the Colorado Water Quality Control Division. ASIWPCA is the
national, professional organization of State officials who are
responsible for implementation of the Clean Water Act. As those on the
front line, the Association's membership has a unique perspective on
the issues before this committee.
In the 1972 Clean Water Act, Congress gave the States the lead role
to develop and implement the water quality program. States support the
Act's goal to restore and maintain the nation's water quality and we
believe the establishment of total maximum daily loads (TMDLs) is one
of many important mechanisms to be used to achieve cleaner water.
The States have been in a continuing dialog with USEPA concerning
the proposed regulation. As co-regulators, we met to address State
issues and consider options for addressing those concerns. In addition,
ASIWPCA has sponsored a series of State/EPA conference calls on the
regulations and has been a co-sponsor with the Western Governors
Association of a series of workshops. These forums have allowed
significant discussion that, we are hopeful, will ultimately bear
fruit. USEPA appears to be receptive to a number of State
recommendations to modify and streamline the current proposal and build
upon existing program authorities.
Because of constraints placed on USEPA in the rulemaking process,
the Agency has not been able to make any commitments to the States. For
this reason, Mr. Chairman, my comments will address the regulation as
proposed.
States have invested significant staff resources in analyzing the
proposed rule and have spent many hours in joint consideration of the
anticipated impacts on our existing programs. What we see here is an
effort by USEPA to move the water quality programs forward, which is of
course laudable. We are concerned however, that the rule, as proposed,
will have serious, if perhaps unintended, consequences on State
programs. For details, we refer you to the attached written comments
developed jointly by ASIWPCA, the Environmental Council of the States
(ECOS) and the Coastal States Organization (CSO) which were shared with
USEPA in the spirit of partnership as co-regulators.
States are mindful that the proposed wholesale modification to the
TMDL regulation is being put forth in the context of existing statutory
authorities and current funding levels. We caution that State program
budgets and staffing levels are not sufficient to implement the current
regulation. Those levels will not likely to grow to meet an ambitious
waterbody restoration agenda merely because an arcane Federal
regulation is changed.
SECTION 303(D)
The provisions of Section 303 (d)(1)(A) are fairly limited. States
must:
(1) identify waters that do not meet State water quality standards
(WQS) after application of basic point source control requirements,
(2) prioritize those waters and
(3) determine the total waste load the water body is able to
receive and still meet WQS (with a margin of safety).
USEPA has 30 days to take approval action on a State submittal. If
USEPA disapproves a State list or TMDL, they have 30 days to finalize
one.
HISTORICAL PERSPECTIVE
The Clean Water Program is complex and, as the attached diagram
illustrates, TMDLs were envisioned as one component of a broad Clean
Water Act program.
Since 1972, States have allocated the limited funds available to
address the ambitious Clean Water Act agenda. They established water
quality standards, built and managed permitting and enforcement
programs, financed municipal wastewater treatment facilities and
developed nonpoint source (NPS) and watershed management programs.
Since TMDLs were expensive and time consuming and the data and state-
of-the-art was limited--other Clean Water Act and State authorities
were generally more useful.
USEPA's priorities varied and did not, until recently, include
TMDLs. Due to the failure of States and USEPA to achieve Section 303(d)
there have been numerous court cases. States agree that TMDLs should be
a meaningful and fundamental component of State water quality
management programs. To bring this about, the Association believes that
three fundamental challenges must be addressed:
1. The significant lack of funding and adequate initiatives to
address nonpoint source and other water quality problems in the current
program,
2. Major gaps in available data, research and monitoring, and
3. Insufficient attention to multi-media and multi-jurisdictional
water problems.
GUIDING PRINCIPLES
In moving forward to improve the TMDL program, State water quality
and environmental program managers emphasize:
1. The States' lead role in the nation's clean water program must
be maintained.
2. TMDL requirements need be flexible and consistent with (a)
existing statutory authority, (b) available resources, and (c) State
water quality agency jurisdiction.
3. Existing initiatives should be used, wherever possible, to
achieve objectives.
4. Expectations need to be clearly focused on desired environmental
outcomes.
5. The iterative approach is crucial to success, particularly for
nonpoint sources.
The magnitude of the task is formidable. Assuming an even
distribution and no additional TMDLs, one TMDL would need to be
approved each workday for the next 15 years by each of the 10 USEPA
Regional Offices to complete all of them. Assuming (optimistically)
that an ``80 percent savings'' could be achieved (taking advantage of
lessons learned, economies of scale, and delisting inappropriate
waters), States would have to produce (and USEPA approve) one TMDL per
week per USEPA region for the next 15 years. This does not consider the
need to plan for implementation, conduct additional monitoring, or
actually implement the TMDL. Unless additional funds are provided,
State would have to divert resources from other worthwhile water
quality activities to keep on schedule.
State experience demonstrates that cost estimates developed by
USEPA are inadequate and incomplete (see attachments). USEPA states
that TMDLs will cost $25,000 each. But, a mid-range is more likely to
be $300,000-$1,000,000, depending on complexity (in Long Island Sound,
$20,000,000 has been spent thus far on a nutrient TMDL). Annual costs
for a decent effort at the State level could be in the range of $670
Million-$1.2 Billion.
CONCERNS REGARDING USEPA'S PROPOSED REGULATION
The Association has read a significant number of the comments
submitted to USEPA on their proposal. Commenters share a common
interest in the overall goal to improve water quality and further
develop and implement TMDLs. But, they differ greatly regarding:
(1) How much of a burden can legally and realistically be placed on
Section 303(d) to carry out the Clean Water Act and
(2) The appropriate role of Federal, State, and Local governments.
The primary State concerns are that:
The proposal broadly expands the Federal role in water
quality management and permitting, which would seriously undermine
USEPA's relationship with State government.
The role of Section 303(d) is greatly enlarged, beyond
what the Act envisioned. It is not clear to the States, for example,
that USEPA has statutory authority to:
1. Cover waters that are: (a) impaired solely by nonpoint sources,
(b) are not violating WQS or (c) have solutions underway using other
authorities;
2. Require that implementation plans: (a) be part of TMDLs and (b)
include explicit assurances that the plan will be fully implemented,
fully funded, adequately monitored, and fully compliant with the WQS;
and
3. Intervene in a State's TMDL development or administration of the
delegated point source permit program (to permit NPS or issue expired
permits).
The proposal is too prescriptive. States should be able to
take alternative approaches that achieve the intended environmental
outcome (functionally equivalency) particularly with regard to nonpoint
and wet weather sources.
The proposal adds burdensome new layers to the existing
program. The additional lists, implementation plans, reporting, etc.,
confuse an already complex situation and waste scarce resources.
The proposed regulations would significantly restrict
State ability to take ``adaptive management approaches'' to TMDL
development and implementation.
State water quality program officials cannot unilaterally
develop TMDLs and implementation plans for problems that are beyond
their jurisdiction. Impairments to interstate and international waters
also present unique challenges.
USEPA does not acknowledge the significant funding
increases needed.
BOTTOM LINE
The likely outcome of USEPA's proposal (unless refinements are
made) would be less environmental progress and more litigation and
delay. While the proposal is premised on the need for a major
significant shift away from the historic point source focus toward
watershed-based restoration, they reflect a pervasive top-down
approach. This is unworkable where NPS management is the primary
challenge and locally led initiatives are essential.
NPSs need to be treated differently and with less analytical rigor
than point sources. USEPA's proposal does not go far enough in
recognizing that it is often impossible, given the data and resources
available and the timeframes envisioned, to precisely quantify
pollutant loadings from NPS runoff or to predict with certainty
specific load reductions that will result from a given management
practice. Achieving WQS requires an iterative process in which
management practices are applied in watersheds, progress is made and
evaluated, programs are adjusted and necessary additional funding is
secured.
It is not fair or realistic to expect that States could
successfully implement a program that is beyond the plain reading of
the Clean Water Act. States should not be used as surrogates to impose
requirements that USEPA would have no authority to apply. Unless the
broad array of stakeholders are willing to support the approach,
partnerships States have worked very hard to achieve in the NPS arena
will start to unravel and momentum will be lost.
Unintended consequences are also a concern. USEPA's proposal
imposes significant barriers to environmentally beneficial projects and
community revitalization as well as encourages urban sprawl--since new
or significantly expanding sources could not locate in impaired
watersheds. States would be required to make decisions based on
information that they cannot scientifically or legally defend. RCRA and
Superfund program experience indicates that once a water body is on a
303(d) list, a stigma attaches that makes it difficult to cooperatively
solve problems. There are too many unanswered questions:
What is USEPA prepared to do to assure they have the
resources to administer the approach proposed?
What sort of TMDL is approvable; will an approved 319,
estuary or coastal zone management, habitat conservation or species
recovery plan be acceptable?
How can States control transboundary air deposition; what
is USEPA willing to do under the Clean Air Act? Can a TMDL be
approvable for abandoned mine drainage, when there is inadequate and
unpredictable funding? What are Federal agencies willing to do for re-
mining of abandoned mine lands?
How will USEPA streamline its process to meet the
deadlines? How will the 135 day Section 7 consultation under the
Endangered Species Act be reconciled with a USEPA 30 day deadline to
act on lists and TMDLs? What happens if USEPA does not act within their
deadline?
Will USEPA decisions be held to the same high standards as
States? What will USEPA do if a State cannot provide reasonable
assurance re: funding?
Will affected Federal Agencies commit to complete their
implementation plan responsibilities by the scheduled deadlines? What
if they do not?
How will TMDLs on interstate and regional waters be
addressed? What happens when TMDL development cannot be synchronized
with related activities (revision/consistency of WQS, USEPA nutrient
criteria development, etc.)?
What happens if a State's best efforts cannot bring a
stream into compliance?
state recommendations to improve usepa's proposed tmdl regulations
The plain reading of the statute leads the Association to conclude
that:
TMDLs should be limited to a credible technical analysis which
identifies the maximum allowable pollutant load (or other conditions)
necessary to attain WQS for the pollutant(s) of concern.
Section 303(d) should apply only to impaired waters where TMDLs can
make a meaningful contribution to solving the problem.
Resources: Funding for Section 106 (State water quality management)
and Section 319 (nonpoint source control) must triple--with increases
targeted to impaired waters. Major increases are also needed in the
U.S. Department of Agriculture programs to provide needed technical
assistance and support conservation practices in impaired watersheds.
MONITORING, LISTING AND DELISTING
List Cycle: USEPA should establish a 5-year listing cycle
and provide at least 2 years lead time after promulgation before the
next list must meet new requirements.
Methodology and Use of Data: States (not USEPA) should to
determine what data are credible and appropriate for use in the listing
process. Decisions must be based on credible and appropriate data (not
anecdotal evidence or evaluated data) that indicate exceedance of State
WQS. The mere presence of a listed species under the Endangered Species
Act or exceedance of a maximum contaminant level (MCL) threshold under
the Safe Drinking Water Act is inadequate.
Delisting: States should be able to delist waterbodies
using the same procedures and methodologies that apply to listings at
any time when sufficient new data is available that indicates WQS are
attained or a TMDL is approved by USEPA.
Scheduling and Priorities: USEPA should not mandate priorities or
schedules. States should have discretion to set them, in consultation
with the public, based on all relevant considerations. They should be
able to adjust schedules beyond the 15-year deadline for good cause.
Implementation/Reasonable Assurance: States should be able to
reference and if necessary update water quality management plans at the
same time or following submission of a TMDL--implementation plans
should not be a required TMDL element. For NPS, States should be able
to implement a variety of controls as expeditiously as possible, as
described in their upgraded NPS management programs or other recognized
mechanisms (existing water resource management programs such as.
estuary plans, 6217 programs, forest management plans, Federal land
management plans and other effective programs in the States).
Public Involvement: The proposal needs to recognize the enormous
effort, time and resources required throughout the process to achieve
meaningful consultation and involvement. The public petition process
proposed undermines that effort. Petitioners should be required to
demonstrate to USEPA that they have exhausted their administrative
remedies at the State level.
USEPA Action: It is the States' responsibility, in the first
instance according to the Clean Water Act, to develop and propose
TMDLs. USEPA has no authority to do so (absent their disapproval of a
State's TMDL). USEPA should describe its methodology and approval
process and use the State listing methodology when taking action. If
USEPA does not act in 30 days, a State submittal should be deemed
approved.
CHANGES TO THE NPDES PERMIT AND WATER QUALITY STANDARDS PROGRAMS
USEPA Actions in Delegated States: Problems with State
permit programs should be addressed under NPDES delegation agreements
and current regulations. USEPA has no authority under the Act to issue
an expired permit or to permit NPSs. Based on USEPA's track record, it
does not seem realistic to assume that their proposal would ever work.
Interim Period Before TMDL Development and Approval/
Offsets: States should develop site-specific and/or watershed
approaches that are consistent with current anti-degradation
regulations and continued progress toward water quality goals. USEPA
should delete the proposed offset provision.
General Permits: Alternative sets of requirements should
be allowable, depending on whether the discharge would be to a
waterbody that is meeting WQS or impaired, with the goal of no-net
increase in impaired waters. The TMDL program should not make the
general permit process as resource intensive as issuing individual
permits.
Summary: The Association, in conjunction with the Environmental
Council of the States and the Coastal States Organization, has
commented to USEPA that existing statutory authorities do not provide
for the level and kind of requirements outlined in the proposed
regulation. This is particularly true for the nonpoint sources of
pollution. We have serious concerns that the proposed regulation
inherently limits the policymaking discretion of the States.
We are convinced that this proposal is a significant rulemaking
under Unfunded Mandates Reform Act which requires USEPA to hold the
cost to States of new mandates as low as possible and to seek funds
from Congress in the next fiscal year to offset those costs. It is also
subject to the President's Executive Order 13132, issued in August 1999
which states: ``Where there are significant uncertainties as to whether
national action is authorized or appropriate, agencies shall consult
with appropriate State and local officials to determine whether Federal
objectives can be attained by other means.''
Congress has a critically important role in clarifying its intent
and in contributing to the creation of an appropriate framework under
which we all may proceed. We asked that the committee support State
efforts to identify and further explore with the USEPA, other means to
attain our collective water quality objectives, as envisioned in the
above referenced authorities.
Congress will also have a significant role in determining the
amount and kind of funding resources to be made available to the
States, to local governments and to the USEPA and USDA for
implementation of the overall TMDL program. We would like to enter into
discussions with you and with the appropriating committees to secure
the funds necessary to create, develop and implement a successful TMDL
program.
The States would also like to enter into discussions with the
Congress and the USEPA relative to the reauthorization of the Clean
Water Act. Because several of the issues addressed in the proposed rule
can be considered as statutory in nature, we ask that the Congress be a
leader in future dialogs relating to Clean Water Act authorities and
any necessary amendments to achieve our overall water quality goals.
Mr. Chairman, we thank you for the opportunity to present the
perspectives and recommendations of the State Environmental, Water
Quality and Coastal program officials. We appreciate the leadership
role the committee is demonstrating on TMDLS and the work of your
staffs to assure that Congressional intent and interests are being
incorporated into USEPA's rulemaking. We look forward to having the
opportunity to continue to work together toward the achievement of
cleaner water for all Americans.
Attachments: Comments on the USEPA proposed regulations, (Joint
letter by the ASIWPCA/ECOS/CSO); Fact Sheet: State TMDL Resource Needs,
Summary USEPA Cost Estimates; Excerpts of State Comments
______
Statement of the Association of State and Interstate Water Pollution
Control Administrators
January 19, 2000.
Hon. Carol M. Browner, Administrator,
U.S. Environmental Protection Agency
Washington, DC.
Dear Ms. Browner: We write on behalf of the undersigned
organizations concerning USEPA's proposed revisions to the agency's
water quality regulations, 40 CFR parts 122, 123, 124, 130, and 131,
published in the Federal Register on August 23, 1999.
These State organizations have worked together to develop the
attached comments and may also submit individual comments reflecting
media specific perspectives. We appreciate the opportunity to comment
on the proposal, which represents one of the most important and
sweeping initiatives in the nation's effort to protect its waters.
There are several points of overarching importance that we wish
USEPA to keep in mind as it evaluates the detailed comments that
follow.
(1) Congress provided in the Clean Water Act that the States should
have ``the primary responsibility and rights . . . to prevent,
eliminate and reduce pollution, (Section 101(b)).
(2) States, having this authority, should be full partners with
USEPA in the management, protection and restoration of water resources.
(3) States support the goal of the Clean Water Act and are
empathetic as to the position in which the USEPA has been placed by the
series of TMDL court cases.
(4) The Federal executive branch, through the President's Budget
Request and its negotiations with the Congress, needs to secure
significant additional Federal funding for the Clean Water Programs.
The Federal Water Pollution Control Act clearly identifies the
States' lead role in developing and implementing water quality
management programs. The States accept the responsibility to address
important water quality problems and to be accountable for progress.
States should be considered by USEPA as full partners in the
management, protection and restoration of water resources. USEPA may
not as a matter of law or policy consider that States are merely an
interest group or stakeholder in the implementation of the Clean Water
Act.
The undersigned organizations represent those public servants on
the front line in the efforts to protect our nation's water quality. It
is the State and local governments that will be called upon to
implement, substantially pay for, and defend the USEPA's final
regulations in court. As USEPA has stated publicly . . . for USEPA to
be successful its mission, the States must be successful in attaining
their environmental goals.
States have from the outset, supported and worked toward the
accomplishment of the goals of the Clean Water Act to restore and
maintain water quality. The States understand the implications of the
numerous court cases on this subject. Translating and transforming
those court actions and different opinions into an operating program
and regulations applicable throughout the country is a formidable task.
The proposed regulations are premised on a major and significant
shift away from the historic point source focus toward a watershed
based restoration approach. Yet, the proposed regulations reflect a
pervasive top-down, command-and-control approach to water quality
protection, which is unworkable where nonpoint source management is the
primary challenge. While States support this shift to the watershed
approach, the available scientific, financial and management tools are
inadequate to assure successful implementation.
It is critical that the Federal executive branch commits to and
works aggressively for significant Federal funding increases to address
water quality problems and support State environmental agencies. In our
judgment, the infusion of sufficient funding to existing programs and
supporting mechanisms could greatly enhance State efforts to accomplish
the majority of the Federal objectives underlying the proposed
revisions. Moreover, the imposition of unfunded mandates on States, or
mandates that are paid for at the expense of other State programs, is
unacceptable.
In 1995 the Congress recognized this principle in the adoption of
the Unfunded Mandates Reform Act. We believe this principle requires
the USEPA to hold the cost to States of new mandates under the proposed
regulations as low as possible, and also firmly commit to seek funds
from Congress in the next fiscal year to offset these costs. We can
document through the implementation of established TMDL's that the
costs associated with the proposed regulations will far exceed the
expenditures anticipated by USEPA.
Finally, there are significant uncertainties as to congressional
intent in the Federal Water Pollution Control Act and the legal basis
for several of the proposed new requirements. For example, the State
organizations are not convinced that there is a statutory basis for (1)
requiring the inclusion in 303(d) lists and TMDL development for waters
impaired solely by nonpoint sources; (2) requiring that implementation
plans be submitted as part of TMDL's; or (3) providing the USEPA with
the authority to intervene in a State's development of a TMDL.
These concerns are raised in light of the President's Executive
Order on federalism (August 1999).
National action limiting the policymaking discretion of the
States shall be taken only where there is constitutional and
statutory authority for the action and the national activity is
appropriate in light of the presence of a problem of national
significance. Where there are significant uncertainties as to
whether national action is authorized or appropriate, agencies
shall consult with appropriate State and local officials to
determine whether Federal objectives can be attained by other
means. (Executive Order 13132; Section 3(b)).
The Executive Order contemplates exactly the kinds of uncertain
authority presented in the proposed regulations, inasmuch as the
proposed regulation clearly limits the policymaking discretion of the
States. The Executive Order thus requires the USEPA to explore with
States whether there are other means to attain the Federal objectives--
clean water for all Americans, which we share.
These ``other means'' would, at a minimum, require that USEPA
incorporate the maximum degree of flexibility into the revised
regulations. Water quality problems generally, and nonpoint source
problems in particular, vary greatly from State to State, within a
State (or States), and from watershed to watershed. Such problems can
also vary significantly within the same watershed from season to season
and from year to year.
Simply put, (1) States must have the authority, commensurate with
their responsibility, to develop and establish water quality programs
and remedies to solve site specific pollution problems, (2) a
prescriptive, top down, command and control, national approach, is
inappropriate and counter productive and, (3) significant funding
increases will be necessary to implement the existing TMDL
requirements, let alone any additional responsibilities.
The regulations must be crafted to accommodate a myriad of
approaches and iterative management in moving toward attainment of
water quality standards. States need the flexibility to set priorities,
establish realistic schedules, use functionally equivalent State
programs in lieu of USEPA's permit-based approach for some sources,
adopt innovative programs, and rely on incentive-based and voluntary
efforts.
These facts make it imperative that the USEPA and the States work
cooperatively to ensure that any revisions to the TMDL and related
programs are workable. We stand ready to assist the Agency in achieving
a successful outcome.
Attached is a compendium of specific comments addressing specific
concerns with the proposed regulatory revisions. We look forward to
working with the USEPA to ensure that America honors its commitment to
clean water in the most reasonable and effective way possible.
Sincerely,
Lewis Shaw,
ECOS President, Secretary
of the South Carolina
Department of Health and
the Environment.
J. Dale Givens,
ECOS Water Committee Co-
Chair, Secretary,
Louisiana Department of
Environmental Quality.
Sarah Cooksey, Chair,
Coastal States
Organization, State of
Delaware.
J. David Holm,
ASIWPCA President,
Director, Colorado
Division of Water
Quality.
Jon. L. Craig,
ASIWPCA Vice President,
Director, Oklahoma
Division of Water
Quality.
______
FOREWORD
The State managers of this nation's environmental, water quality
and coastal programs have developed the attached comments on the
proposed TMDL regulations. The comments have been reviewed and approved
by the Environmental Council of the States (ECOS), the Association of
State and Interstate Water Pollution Control Administrators (ASIWPCA)
and the Coastal States Organization (CSO).
I. GENERAL RECOMMENDATIONS
The U.S. Congress, under the auspices of the 1972 Clean Water Act,
gave States the lead role in the development and implementation of the
water quality program. Because of this central role, States will be
directly impacted by the proposed changes in the TMDL program.
States support the goal of the Clean Water Act to restore and
maintain the nation's water quality. States also believe that the
establishment of total maximum daily loads (TMDLs) is one of many
important tools to be utilized in the pursuit of cleaner water.
States have been actively cleaning up the nation's waters for
nearly half a century. The achievement of impressive results are
clearly evident nationwide. The water is cleaner, in spite of the
tremendous population growth, expanded urbanization, industrialization
and recreational demands placed on limited water resources. States are
very proud of the fact that the Clean Water Act is among the most
successful environmental statutes in history.
With the initial passage of the Federal Water Pollution Control Act
Amendments of 1972 (Public Law 92-500), USEPA and their State partners
set a course for addressing the highest priority pollution problems
first. It is for this reason that the establishment of State water
quality standards and permitting programs, the design and construction
of municipal waste water treatment facilities and the development of
Section 208 areawide planning and nonpoint source management programs,
took precedence over the establishment of total maximum daily loads
(TMDLs).
Tremendous strides have been made over the past several decades and
significant water quality improvements have been achieved. It is now
appropriate to focus priority attention on the requirements of Section
303(d) of the statute and to establish TMDL's as a meaningful and
fundamental component of State water quality management programs.
To bring this about, USEPA and the States will need to place
particular emphasis on three key fundamental challenges:
The need for substantial additional funding to address
nonpoint source related and other water quality problems,
The presence of serious gaps in data, research and
monitoring, and
The lack of sufficient attention to multi-media and
multijurisdictional water problems.
The States and their representative organizations (ASIWPCA, CSO and
ECOS) have carefully reviewed the draft proposal and are supportive of
its overall goal and intent. comments and recommendations, States
emphasize the following principles.
1. The States' lead role in the nation's clean water program must
be maintained.
2. Requirements must be flexible and consistent with existing
statutory authority, available resources and the jurisdiction of State
water quality agencies.
3. Existing programs and initiatives should be used, wherever
possible, to carry out our water quality objectives. These include
Sections 319, 305(b), 303(e), and 320 of the Clean Water Act, Section
6217 of the Coastal Zone Act Reauthorization Amendments, forestry
management plans, habitat conservation plans and species recovery
plans, as prepared pursuant to the Endangered Species Act, and other
existing proven programs. (See attachment 1).
4. Expectations need to be clearly and consistently focused on
desired environmental outcomes. TMDLs should promote stakeholder
cooperation and not create disincentives for broad-based public
participation.
5. The iterative approach to solving problems, along with
stakeholder involvement, has been and will continue to be crucial to
successful water quality management, particularly for nonpoint sources.
Point and nonpoint sources should be dealt with equitably, in a manner
that is sensitive to their different characteristics.
With these principles in mind, the States have the following
concerns regarding the proposed regulations:
The proposal broadly expands the Federal role in water quality
management, which would seriously undermine USEPA's relationship with
State government. The pervasive tone is one of USEPA command and
control in all aspects of the TMDL program, which is neither necessary
nor desirable. Instead, the proposal should seek to collaboratively
improve programs where Federal, State and Local entities are empowered
to fulfill their respective roles.
The role of Section 303(d) is greatly enlarged without
clear congressional mandates. States do not believe, for example, that
USEPA has clear statutory authority for proposed nonpoint source
requirements. (See attachment 1)
The proposal is too prescriptive and certain details
should be embodied in guidance. States need maximum flexibility to
achieve intended environmental outcomes. State functionally equivalent
approaches should be supported and encouraged. Inconsistencies between
the preamble and the regulations need to be eliminated so that it is
clear what would be required.
The proposal adds burdensome new layers to the existing
program for example requiring additional lists, and TMDL implementation
plans. USEPA and the States should work cooperatively together to
address impaired waters and to improve the public's understanding of
water quality (e.g. through program improvements to Section 305(b) and
319).
Where nonpoint sources are of significant concern, the
proposed regulations would significantly restrict States' ability to
take ``adaptive management approaches'' to TMDL development and
implementation. These approaches were discussed in detail at the State/
EPA Wye Woods Forum on TMDLs (November 1999).
State water quality program officials cannot unilaterally
develop TMDLs and implementation plans for problems that are beyond
their jurisdiction (e.g. air deposition). Impairments to interstate and
international waters also present unique challenges and the regulations
must provide a simpler framework under which States take the lead role.
Resources are not available to carry out the requirements
as discussed below. USEPA must be willing to request significant
increases in funding for Federal and State activities for fiscal year
2000 and beyond.
The States provide the following detailed recommendations to
resolve these concerns and achieve the intended environmental outcomes
in a practicable and timely manner. USEPA should finalize the proposal
with the full understanding that it will be expected to comply with the
requirements to the same extent as their State counterparts.
II. RESOURCES
Since the passage of the Federal Water Pollution Control Act
Amendments of 1972, tremendous emphasis has been placed on the control
of point source discharges. Funds have been specifically targeted
toward the design and construction of wastewater treatment facilities
and the establishment of permitting and water quality standards
programs. Relatively few Federal and/or State dollars have been
targeted toward the planning and assessment components of the statute,
nor have adequate funding levels been authorized and appropriated for
the abatement of nonpoint sources of pollution.
Funding for water quality programs overall, and in this instance
for total maximum daily loads (TMDLs) has been consistently inadequate.
Even when assuming the adoption of the enhancements recommended by the
States herein, the costs for water quality monitoring, assessment, TMDL
development and implementation will experience a tremendous increase at
every stage of the process.
No less than a tripling of the existing levels of funding will be
needed to successfully implement the current TMDL program. The proposed
regulations would greatly exacerbate the funding difficulties being
experienced by the States. It is essential that the necessary
additional funding for TMDL implementation not be siphoned off from
existing programs or agencies currently providing program, technical
and/or scientific assistance to State and Local governments. The Agency
must also be mindful of the burdens being placed on point and nonpoint
source dischargers and of the impacts relative to economic development,
community revitalization, etc.
The costs of implementing the changes to Part 130 and 131 need to
be examined in their totality. The discrepancies of funding needs must
be examined by the Agency and funding projections modified to reflect
an appropriate level of fiscal need. States and interested stakeholders
have much to share with USEPA in this regard and we urge the Agency to
carefully consider the financial input being provided during the course
of the comment period. State TMDL development and implementation to
date clearly demonstrates that the cost estimates developed by the
USEPA are inadequate, incomplete and misleading. Far more will be
required to develop a TMDL than the $25,000 USEPA envisions. For
example:
For Long Island Sound, over $20 million was expended from
1986-2000 for nitrogen based TMDLs alone.
For Tallahala Creek in Jones County, Mississippi, the
downstream TMDL for dissolved oxygen (beginning at the small city of
Laurel) required approximately 5 FTEs over 2 years at a cost of
$450,000.
It has taken Texas 5 years, 8 FTEs and $2.2 million to
develop one phosphorous TMDL for a waterbody impacted by both point and
nonpoint sources in the Bosque watershed involving concentrated animal
feeding operations--and the TMDL is not finished yet.
In California, TMDLs of medium complexity now require an
investment of $350,000 and complex TMDLs require approximately $ 1.1
million each. In fiscal year 2000, the water program estimates the
total TMDL work to be $9.1 million.
Florida has a new law on TMDLs. In fiscal year 2000, the
State will allocate $1.2 million and 23.5 FTEs to TMDL development.
They need annually an additional $700,000 for model development,
contract work, lab analysis and equipment/maintenance and 12 more FTEs
(approximately $ I million) for implementation plan development.
The State of Washington needs about 84 FTEs annually to
meet current requirements, but is able to provide less than 42. They
face an over $69 million workload to complete 1130 TMDLs.
In South Carolina, it has taken more than 3 FTEs and $ 1.9
million to develop a TMDL for the Waccamaw River/Intercoastal Waterway.
It must be emphasized that these funding levels were expended under
the current program and do not take into consideration the costs
associated with: (1) the proposed new requirements, (2) full
development and implementation of TMDLs or (3) the new costs to be
incurred by dischargers and other related stakeholders.
When coupled with the fact that the current program is grossly
under-funded and that the new regulations will require more than 40,000
TMDLs to be developed, the regulatory changes proposed by USEPA are a
significant rulemaking for the 50 States and Interstate Agencies.
Recommendation.--To address the impaired waters of the nation:
At a minimum, funding for Section 106 and Section 319
assistance must triple--with the increase focused on the restoration of
impaired waters. States should be able to pass through the level of
effort requirement to local governments or other qualified entities
that are willing to conduct needed activities, in accordance with State
adopted procedures.
States and USEPA need to work together to assure maximum
flexibility on the use of those funds to support TMDL work. USEPA must
not micro-manage State funding decisions.
Major increases in USDA conservation programs for EQIP and
technical assistance are also needed, again targeted to impaired
waters.
USEPA and USDA must be willing to request the funding needed to
carryout a credible program in fiscal year 2000 and future budget
cycles. States are willing to work side-by-side with the Federal
agencies to secure these additional resources from Congress.
III. MONITORING, LISTING AND DELISTING
States agree that Clean Water stakeholders need a readily
accessible and understandable inventory of waters. However, the
proposed expanded coverage under Section 303(d) does not accomplish
that and exceeds statutory authority. The Agency needs to be cognizant
of the fact that listing will engender intense scrutiny and opposition
that can be counter-productive. An overly complex listing process will
cause significant delays and divert scarce resources from State TMDL
development and implementation on impaired waters. As co-regulators we
should learn from the mistakes of the hazardous waste and superfund
programs where the stigma attached to listing undermined overall
objectives.
USEPA and the States need to build a better relationship between
Sections 303(d), 305(b),319 and 303(e) of the Clean Water Act. (See
attachment 1). The 305(b) Report should be the vehicle for developing
information concerning the overall status of the quality of all State
waters and for making that information available to the public. To this
end, the States expect to work with USEPA to enhance the credibility
and utility of the 305(b) process. The Section 303(d) list, then,
should be developed as the portion of the 305(b) Report for which TMDLs
should be completed for impaired waters.
Year 2000 List (Sec. 130.30(a)): States require substantial lead-
time to make significant changes in the TMDL listing process. In many
cases, States will be required to go through a rulemaking process to
adopt their list. The proposed regulations do not recognize this State
rulemaking process.
Recommendation.--USEPA should provide a minimum of 2 years lead-
time after promulgation of the regulations before the next list is
subject to the new requirements. However, if a State determines that it
will submit its list, during this interim 2-year period, pursuant to
existing regulations, USEPA should review and take action within the 30
days.
List Cycle (4130.30(a)): Listing should be compatible with the 5-
year rotating watershed assessment approach being used by States.
States agree that a short listing cycle tends to ``over-emphasize the
listing of waterbodies as opposed to establishing and implementing
TMDLs'' and is ``inefficient because States generally do not find
significant changes in water quality over . . . a short period.''
Recommendation.--USEPA should establish a 5-year listing cycle
under Section 303(d). States may want to tailor the process to allow
for the submission of partial updates to accommodate listing and
delisting decisions on a rotating cycle. USEPA should review and take
regulatory action within the 30 days for such partial submittals.
Section 305(b) Reports should be on a 5-year cycle with annual updates.
Methodology/Related Issues (5130.21, 130.23 and 130.24): The
regulations should engender an interactive working relationship and it
is important that decisionmaking methodologies are clearly documented
and understood. States are operating under hectic schedules and need to
know early in the process whether USEPA views their methodologies as
acceptable. In interstate and international waters, lack of early and
consistent feedback will hinder timely submittal by the States.
Recommendation.--States should have the discretion to consult with
USEPA to ensure an acceptable methodology is used. USEPA should commit
to providing feedback during the public comment period. Methodology
should be discussed in a State's 303(e) continuing planning process
(CPP), as directed by Section 303(e) of the Act itself, rather than as
a required element of the 303(d) list process. (See attachment 1).
Accordingly, Sections 130.21(b), 130.23, and 130.24 should be revised
to reflect this change and should be moved to the portion of the
regulations that addresses the CPP. The States are willing to work with
USEPA on developing public participation plans for CPP development.
Listing and Use of Data (Sec. 130.22): Any decision to list waters
must be based on credible and appropriate data that indicate exceedance
of State Water Quality Standards (WQS). The mere presence of a listed
species under Endangered Species Act (ESA) or exceedance of a maximum
contaminant level (MCL) under the Safe Drinking Water Act, is
inadequate for the purposes of the Clean Water Act, because at issue
for 303(d) purposes is the status of a segment's attainment of WQS
criteria and uses.
As the preamble to the proposed regulations states, the FACA
Committee ``preferred basing listing decisions on monitored data,''
although evaluated data has sometimes been used in the listing process.
The States agree with the FACA recommendation that ``the best available
data'' should be used in the listing process. The States strongly
disagree, however, that States should be required to list waters based
on information that is not both credible and appropriate to the
process. The experience of the States is that anecdotal evidence and
evaluated data regarding water quality are neither credible nor
appropriate for use in making a listing decision that may later impact
permitting and planning decisions. If based principally on such
anecdotal evidence, these listing decisions will not be judicially
defensible final State administrative actions.
Recommendation.--The proposed Section 130.22 should be rewritten to
allow States the flexibility to determine what data are credible and
appropriate for use in the 303(d) listing process. This information
should include, but not be limited to, data secured through Sections
106(e)(1) and 104(a)(5) of the Act and other data determined by the
State to be credible and appropriate. The regulations should recognize
that list development should be consistent with USEPA-approved State
QA/QC plans and adopted State methodology.
Criteria for 303(d) Listing (4130.25): The relationship between the
States' CPP, the 305(b) Report and the 303(d) lists must be recognized,
clarified and consolidated. USEPA's proposed TMDL regulations should
encourage integration of the States' monitoring, basin planning
processes, and funding mechanisms. The proposed 303(d) listing process
is too complex and further confuses the relationship between these
existing processes. It is critical not to impede the TMDL process at
the outset in listing disputes and unnecessary litigation.
The Clean Water Act envisions that the Section 305(b) Report will
be inclusive of all waters of the State--(i.e., impaired as well as
unimpaired). The addition of proposed Section 303(d) Parts 2, 3, and 4
listing categories exceeds the authority of the Clean Water Act.
Furthermore, the requirement to include waterbodies solely impacted by
nonpoint sources on the 303(d) list is a strained interpretation of
Section 303(d)(1)(A). The Congress has examined these issues and
determined that they should be addressed elsewhere in the statute. In
fact, a Supreme Court case has made it clear that ``Few principles of
statutory construction are more compelling than the proposition that
Congress does not intend sub silentio (by its silence) to enact
statutory language that it has earlier discarded.''
Recommendation.--Consistent with the language of the Clean Water
Act, States' 303(d) listings should identify those waters (extracted
directly from the State's 305(b) Report or other appropriate data
sources) for which effluent limitations required by Clean Water Act
Sections 301(b)(1)(A) and 301(b)(1)(B) are not stringent enough to
implement any WQSs applicable to such waters and for which TMDLs are
the appropriate solution. Section 305(b)(1)(A) is the more logical
basis for inventorying and reporting on the status of all waters and is
particularly appropriate considering the practical and resource
implications of USEPA's proposal.
States reserve the right to identify on the 303(d) list, waters
where USEPA (or a regional authority) can provide a leadership role to
address impairments caused by one or more pollutants, which are outside
of the States' control. Examples of such TMDLs include: international
waters, interstate waters, or those waters affected by atmospheric
deposition.
The Section 303(d) list should not include:
Threatened waterbodies,
Waters affected by pollution, (not pollutants) or
Waters where TMDLs or other effective control strategies
have been developed.
Given the afore mentioned concerns about statutory authority,
considerable controversy surrounds USEPA's requirement to include
waters impaired solely by nonpoint source pollutants on the 303(d)
list. If USEPA does require such waterbody listings, States should be
able to list them separately from other listed waters. States support
USEPA's recognition at various points in the preamble that TMDLs for
nonpoint sources may look quite different than for point sources.
For all other categories of impaired or threatened waterbodies,
States should utilize their existing authorities (specifically the
305(b) Report) to itemize those waterbodies and associated water
quality issues. They should be able to shift waters between listing
categories whenever appropriate.
Delisting (Sec. 130.29): States are concerned about USEPA's lack of
recognition of the need to establish a flexible mechanism for delisting
waterbodies. States are also concerned about the potential impacts of
the offset strictures outlined in the proposed NPDES regulations and
the length of time it would take USEPA to approve State delisting of a
waterbody. It is important to recognize that listing as well as
delisting may be an ongoing (vs. every 5 year) process.
Recommendation.--Section 130.29(a) should be revised to allow
waterbodies to be delisted upon approval of a TMDL by USEPA. In
addition, Sections 130.29(c) and (d) should be deleted. This is in
keeping with the States' recommendation that the 303(d) list be
reformatted to move USEPA's proposed Part 3 waterbodies and threatened
waterbodies to the 305(b) report.
States should be able to delist waterbodies using the same
procedures and methodologies that apply to listings. States support the
second option under Section 130.29(b), to allow the delisting of a
waterbody if new data or information indicates the waterbody has
attained WQSs. The proposed regulatory language ``. . . when you
[State] develop your [State] next list . . .'' should be deleted:
Delisting should be allowed at anytime that sufficient new
data is available.
USEPA must establish administrative procedures necessary
to take action on any and all State requests for delisting within 30
days of State submittal (see also Section VIII).
IV. SCHEDULING AND PRIORITIES (SEC. 130.28 AND 130.31)
States are committed to restoring impaired waters within aggressive
timeframes and recognize the value of deadlines and priorities.
However, there are no statutory priorities or deadlines for TMDL
development, and there are many uncertainties States will encounter
along the way.
Many factors need to be considered in setting State priorities and
schedules for TMDL development. The proposal should not prescribe
criteria or confuse the priority of listed waters with the schedule for
TMDL development.
In some States, the proposed regulations would result in virtually
all listed waters becoming a high priority (especially if ESA and MCLs
are significant factors). It is neither efficient nor appropriate to
delay all other TMDL development until those for high priority waters
are completed. TMDLs for high priority water bodies can be complex,
time-consuming, and/or developed under court-ordered schedules.
Recommendation.--The proposed Section 130.28 (a) and (b) should not
contain mandatory assignments of priorities. Rather, it should identify
factors to be considered by States in developing their priorities. This
is consistent with Section
303(d)(1) of the law, which provides that ``States shall establish a
priority ranking for such waters taking into account the severity of
the pollution and the uses to be made of such waters.'' States should
have discretion to set priorities and schedules, in consultation with
the public, based on all relevant considerations (e.g., the priority of
the water, complexity, available resources, time required, readiness to
proceed, level of public support). The State water quality authority
and State drinking water authority should be encouraged to communicate
on priorities relating to TMDL development and source water protection,
etc.
If USEPA includes a requirement for a schedule to be part of the
303(d) list proposed, Section 130.31 should be modified to authorize
States to adjust schedules and USEPA to accept extensions beyond the
15-year timeframe for good cause demonstrated by a State.
V. ESTABLISHING TMDLS
There are a number of areas that are of major concern to the States
relative to the establishment of TMDLs. Specifically:
(1) The process of establishing TMDLs that rely, at least in part,
on non-point source control must embrace and promote the watershed
approach. States will need the flexibility to utilize phased control
measures to restore water quality. While the goals outlined in the
Agency's proposal are laudable, the regulations as written are far too
prescriptive and rely heavily on the historic approach to point source
control. USEPA should focus on desired outcomes and discuss further
details in guidance.
(2) The Clean Water Act does not require the inclusion of
implementation plans for TMDLs under Section 303(d). States agree on
the importance of State implementation plans. In fact, many States are
required under State statutes to create such plans as a component of
their water quality standards process. However, USEPA does not have
such authority under Section 303(d) and should, therefore, rely on
other established program authorities (e.g. Sections 319, 303(e) etc.).
(3) The elements of TMDLs proposed in Section 130.33(4) and (6) and
Section 130.34, requiring the identification of specific pollutant
sources and a quantification of NPS pollutant loads, will be
technically and legally challenged in the future. It is essential that
control measures for NPS pollutant impairments take the form of phased,
incremental application of BMPs on a watershed basis. They will not
result in clear and measurable improvements early in the process.
(4) Available funding and scientific tools are inadequate for USEPA
or the States to effectively and successfully adhere to the
expectations outlined in the proposed regulation, particularly as
related to nonpoint sources of pollution.
TMDL Definition (4130.2(h) and 130.33): As outlined in Sections
130.2(h) and 130.33, the definition and ten elements of a TMDL are
overly prescriptive and will result in significant complications for
both the States and the USEPA in completing and approving TMDLs. More
importantly, the CWA does not authorize USEPA to create a requirement
that States submit and obtain USEPA approval of an implementation plan
as an element of the TMDL. Not only is there no mention of
implementation plans, there is no such authority in Section 303(d) for
USEPA to determine how a State is to implement its TMDLs.
Most of the proposed requirements in Sections 130.2(h) and 130.33
have emanated from the historic point source approach for addressing
water quality problems. Neither the States nor the USEPA will be
successful in adhering to these prescriptive requirements given the
complexities and uncertainties associated with nonpoint source
pollutants and the lack of wet weather standards. States believe that
the required elements proposed by the regulations may, in some cases,
supplant elements a State deems necessary or more appropriate for a
particular TMDL, based on the circumstances of the waterbody.
Recommendation.--The definition of a TMDL should be limited to ``a
credible technical analysis, which identifies the maximum allowable
pollutant load (stressor) or other conditions necessary to attain and
maintain water quality standards, for the pollutant or pollutants of
concern.'' States should be allowed to express a TMDL as a mass per
time, toxicity, or other appropriate water quality condition. To
establish effective TMDLs, States recommend USEPA make the following
changes to elements outlined in Sections 130.33(b)(1) through
130.33(b)(10) and offer these as guidance rather than regulation:
The proposed Section 130.33 (b)(6) should be shortened to
read as follows: ``Load allocations, ranging from reasonably accurate
estimates to gross allotments, to nonpoint sources of a pollutant.''
The additional details proposed require a level of specificity that
will be difficult, if not impossible to provide with each TMDL.
In Section 130.33(b)(9), the term ``future allocation''
should be used rather than ``allowance for future growth''. USEPA
should recognize that future growth can occur despite a TMDL cap, thus
USEPA's proposed term is imprecise and misleading. Second, the concept
of ``allowance for growth'' in the context of State regulatory actions
imparts the wrong connotation for TMDLs--as if the State is controlling
growth, whereas it is often a Local government function.
Under Section 130.33(b)(10), States should submit
implementation plans, as provided under existing Sections 303(e), 319
and 402, as opposed to requiring an additional USEPA approvable plan
under Section 303(d).
The term ``other appropriate measures'' which can be found
in the existing regulations under Section 1 30.2(i) should be retained
to allow the States the flexibility needed to address nonpoint source
pollutants. Section 130.34(1-4) should clarify that the loadfor NPSs
can be broadly and generally expressed (e.g. estimated for agriculture,
rather than broken down quantitatively for crop production vs. Animals
or even being more specific as to quantifying loads for individual
farmers).
Implementation Plans (Sec. 130.2 and 130.33(b)(10)): The States
support implementation as a component of the TMDL program, and are
committed to restoring and maintaining water quality in impaired
waterbodies. The States have consistently emphasized that the
submission of a detailed implementation plan is not authorized under
section 303(d) of the statute and should, therefore, not be a required
as an element of the TMDL, nor should the approval of a TMDL be
contingent on the approval of an implementation plan.
The inclusion of a detailed implementation plan as a required
element of the TMDL will likely delay TMDL approval because of the
complex, subjective and often protracted dialog necessary for
development and acceptance by the stakeholders of such plans. Dialogue
with stakeholders on detailed implementation planning will be far more
productive after TMDL approval by USEPA.
States agree that there is merit in moving expeditiously forward to
implement Section 303(d). However, the expectations of the USEPA and of
the public need to be realistic, recognizing that a step-wise, phased
approach will often yield the most meaningful water quality
improvements.
The prescriptive nature of Section 130.33 (b)(10) will
significantly impede the flexibility States and USEPA need to establish
and periodically adjust restoration plans, especially when dealing with
NPS impaired waterbodies.
Where TMDLs are being developed for waterbodies impaired primarily
by nonpoint sources, the States should be allowed to rely on their
upgraded 319 programs, including CZARA elements, as the implementation
plan for the nonpoint source component of such TMDLs. States have
recently expended considerable effort and resources, including USEPA
Section 319 funds, to develop these plans.
States understand the need for USEPA and the public to know
specifically how water quality standards will be achieved, but we
believe this can occur only after TMDL development, and as the
iterative process for implementation begins. To expect this level of
detail at the time of TMDL submission would unnecessarily delay
submission and approval. Even with point sources, implementation
requirements, as detailed in the NPDES permit, are approved separately
and generally after TMDL approval. As was discussed at the Wye Woods
Forum, it may be workable to include a generic outline as a component
of the TMDL submission. This statement could be followed by an
implementation plan, to be developed subsequent to TMDL approval by
USEPA and relying existing authorities (e.g. 319, local watershed
plans, etc).
In the preamble, USEPA requests comments on whether implementation
plans should be required as:
1. An element of a TMDL,
2. A submission accompanying the TMDL, or
3. An update to a water quality management plan submitted at the
same time as the TMDL.
Recommendation.--Because Section 303(d) does not require the
submission of implementation plans, States recommend that the USEPA
modify option 3 to clarify that an update or reference to a water
quality management plan may be submitted, at the same time or following
submission of the TMDL. This would maximize the use of existing
authorities under Sections 303(e) and 319, as well as other existing
water resource management programs (e.g. estuary plans, 6217 programs,
forest management plans, Federal land management plans and other
effective programs in the States). The accompanying implementation plan
could be approved under a separate USEPA action or receive implicit
approval based on prior USEPA acceptance of these other management
plans.
States also strongly encourage USEPA to allow the flexibility to
craft implementation plans in a manner that recognizes the differences
associated with point and nonpoint source pollution and considers the
various environmental, economic, social, and legal factors associated
with a particular water body and type of impairment.
Reasonable Assurance (Sec. 130.33(b)(10)(iii)): Reasonable
assurance for nonpoint sources, as defined in Sections 130.2(p) and
130.33 (b)(10)(iii), will be extremely difficult for States to provide.
This is because of (1) the limited State authority to regulate nonpoint
sources, (2) the lack of adequate Federal and State funding, and (3)
the limitations of existing nonpoint source data and assessment
technologies.
Recommendation.--The definition of reasonable assurance for
nonpoint sources should be revised to indicate that it can be
determined by the State's commitment to implement a variety of NPS
controls as expeditiously as possible and as described in an upgraded
NPS management program or other recognized mechanisms. Implementation
of BMPs takes time and the water quality results are not always
immediately apparent. In most States, they are voluntary, but NPS
management plans describe in detail how States intend to achieve
implementation.
Transitional TMDLs (Sec. 130.38): States strongly support the
concept of transitional TMDLs. The proposed 12-month timeframe is,
however, far too short.
Recommendation.--USEPA should approve TMDLs submitted within 18
months of final rule changes if the TMDL meets either the existing or
the revised TMDL water quality requirements.
VI. PUBLIC INVOLVEMENT
Public participation is fundamental to successful TMDL development
and implementation. TMDLs with broad-based support should be given
great deference by the Agency. However, States are concerned about the
proposal's failure to recognize the enormous effort, time and resources
that will be required throughout the process to achieve meaningful
consultation and involvement. The unreasonably high expectations, given
the heavy TMDL workload and short deadlines, would not enable States to
achieve that objective.
Public Petition Process (Sec. 130.65): The Agency should not
encourage, or establish a petition system that implicitly encourages
citizens to bypass State processes and go directly to USEPA. The USEPA
should reinforce, not undermine, the States' primary role in TMDL
development and encourage citizens to participate fully in State
processes.
Recommendation.--Petitioners should be required under Section
130.65 to demonstrate that they have exhausted their administrative
remedies in seeking the requested action in the State TMDL development
process. Available information as to why a State has declined to take
the requested action should be required as part of the petition
submittal. USEPA needs to create a meaningful State consultation
process.
VII. CIRCUMSTANCES UNDER WHICH USEPA ESTABLISHES TMDLS (SEC. 130.36)
Section 103(a) of the Clean Water Act states, ``The Administrator
shall encourage cooperative activities by the States for the
prevention, reduction and elimination of pollution. . . .'' States have
the lead role and are the first line of authority. If after a fair and
reasonable opportunity to make progress, they are unable to be
successful and there is no legitimate reason for delay, the proposal
should clearly articulate USEPA's intent to take a leadership role.
USEPA should rely on the States for assistance in a collaborative
process that makes maximum use of existing forums.
Recommendation.--Delete the language in Section 130.36, which gives
USEPA the right ``to establish TMDLs for waterbodies and pollutants
identified on the 303(d) list . . . if USEPA determines that you
[State] have not or are not likely to establish TMDLs consistent with
your [State] schedule . . .'' The Clean Water Act does not provide for
such action by USEPA. It is the States' position that once a 303(d)
list is completed and approved by USEPA, the Clean Water Act clearly
provides that it is the States' responsibility, in the first instance,
to develop and propose TMDLs.
VIII. USEPA REVIEW OF STATE LISTS AND TMDLS (SEC. 130.36)
USEPA has only 30 days to take approval action. States are
concerned about USEPA's lack of resources, historic pattern of
significantly delayed approval actions, and propensity to micro-manage.
Any significant slippage in meeting deadlines would have serious
detrimental effects on both State and USEPA credibility. Yet, the
proposal does not recognize the need to address the problem.
Recommendation.--USEPA should describe its methodology and the
approval process. The regulations should outline clear procedures that
the Agency will follow, consistent with the State comments and
recommendations relative to the definition and minimum elements of a
TMDL in Section 130.2, 130.33, 130.35, etc. USEPA needs to address more
clearly how the Agency intends to accommodate (within its 30-day
deadline) the 135-day consultation period with the Fish and Wildlife
Service required under the Endangered Species Act.
USEPA should commit to using the State's list development
methodology, when taking action on the list.
If USEPA does not take action in 30 days, a State
submittal should be deemed approved.
USEPA needs to be much more forthright on the resources
that will be required to assure the process goes as smoothly as
possible and that issues are resolved as early as possible in order to
avoid the need for disapproval action.
IX. CHANGES TO THE NPDES AND WATER QUALITY STANDARDS PROGRAMS
States believe that the existing regulatory framework is adequate.
The issues of concern are so complicated and circumstances so diverse
that they are more readily addressed through guidance and existing
NPDES delegation agreements. Rather than taking a prescriptive
approach, USEPA should work with the States to create an incentives-
based framework that could achieve far more, in terms of better data
and environmental results, than the proposal.
There are numerous areas where USEPA has exceeded its jurisdiction
and gone well beyond statutory authorities--chief among them is the
NPDES program. Where this is the case, State permit programs could face
gridlock.
USEPA Actions in Delegated States (Sec. 122.23, 122.24, 122.26, and
122.27): Proposed Sections 122.23, 24, 26, and 27 are not necessary.
Inclusion of these provisions would allow USEPA to intervene in a State
whenever it deems appropriate (to develop a TMDL, issue an expired
permit, or permit NPSs).There appears to be no statutory authority for
this intervention. Furthermore, based on the track record of USEPA
relative to addressing water program issues in non-delegated States, it
does not seem realistic to assume that this approach would ever work.
Recommendation.--If a problem exists regarding how a State is
dealing with permit backlogs, wasteload allocations, offsets or NPS
management, it should be addressed under NPDES permit delegation
agreements and current regulations. If USEPA believes that some
additional language is necessary, the existing regulations should be
revised to clearly lay out a process that USEPA headquarters and
regions will follow when these issues arise in States. This process
should allow the States a clear, but timely, opportunity to discuss
with USEPA the nature of the problem and to resolve a problem before
USEPA would actually intervene.
Interim Period Before TMDL Development and Approval (Sec. 122.4):
The proposal restricts the discharge from certain new or significantly
expanded sources in impaired waters, unless a reasonable further
progress objective is met. This basically means that affected
discharges must obtain a 1.5: l offset of the new or expanded discharge
loading. The offset becomes a permit condition and a point source is
liable for third party failure to achieve an offset. This requirement
would apply even though a project may have an important watershed
benefit, which may not achieve the offset requirement (e.g. the
construction of a municipal sewage treatment facility to eliminate
existing septic systems, or combined sewer overflows, or where habitat
restoration is undertaken for an aquatic life use impaired waterbody).
USEPA has no statutory authority in the Act to impose this
restriction. The anti-degradation policy relates to the maintenance,
versus improvement, of water quality. The proposal strains an already
overburdened NPDES program, significantly taxes point sources and
requires new administratively complex accounting systems. State efforts
to address this requirement would divert limited resources (with no
commensurate environmental gain) from the core activities of developing
and implementing TMDLs--which will do the most to reach the attainment
of water quality goals. The proposal would likely encourage location of
facilities in unimpaired waters, which may be less environmentally
desirable and in conflict with other Agency initiatives such as
brownfields and smart growth.
States agree that continued progress is needed toward achievement
of WQS before TMDLs are approved and implemented. Trading between point
and nonpoint sources of pollution may be a useful tool for some States.
However, it is does not make sense to impose on all States the
requirement of developing and implementing an offset system directly
linked to each State's NPDES permit system.
Recommendation.--In lieu of the approach in Section 1 22.4(i),
States should be required to develop site-specific and/or watershed-
wide approaches that are consistent with current anti-degradation
regulations and continued progress toward the achievement of water
quality goals.
The requirement for existing dischargers (provided the
proposed expansion is greater than the ``significant expansion''
definition in Section 122.2) who seek to expand their operation should
be no-net increase in mass-based loading for the pollutant(s) of
concern in the receiving water.
New dischargers (provided the discharge meets the ``new
discharger'' definition in Section 122.2) must achieve instream
criteria for the pollutant of concern measured at the end-of-the-pipe.
In those instances where the pollutant is of concern from the
standpoint of increased loading (e.g. a contributor to nutrient
impairment, or a bio-accumulative contaminant of concern), there should
be no-net increase in mass-based loading.
General Permits Before and After TMDLs Are Developed and Approved
(Sec. 122.28): USEPA has proposed a few different options to address
the issue of how offsets would be obtained from sources seeking
coverage under a general permit. They are based upon different
approaches for dealing with the notice of intent (NOI) requirement for
dischargers seeking coverage under a general permit. There are three
NOI related issues that USEPA addresses somewhat differently in the 3
general permit options: one relating to how a discharger would know if
they were in an impaired receiving water area, the second relating to
whether the discharge contains the pollutant of concern, and the third
involving how discharge loading information would get from the source
to the permitting authority. The ultimate question raised is: how could
the permitting authority determine if an offset would be required to
meet the reasonable further progress goal?
General permits are developed and used by States to achieve some
reasonable administrative efficiency in the control of point source
discharges. The TMDL program should not negate this goal by basically
making the general permit process as resource intensive as the process
of issuing individual permits for all discharges to impaired waters.
Recommendation.--The third option being considered by USEPA for
general permittee offsets should be selected regarding potential
amendments to the general permit regulations, 40 CFR 122.28(b)(2) and
modified to be consistent with the previous recommendation for
individual point sources during the interim period. Under this option,
the general permit would contain alternative sets of requirements
depending on whether the discharge would be to a waterbody that is
meeting WQS or is impaired. For discharges into impaired waterbodies,
some form of requirements should be outlined in order for the general
permitted source to meet the reasonable further progress objective. The
overall goal should be to ensure no-net increase in impaired watersheds
from all sources that could be eligible for coverage under a general
permit.
Questions relating to this document should be directed to: Robbi
Savage (ASIWPCA) [email protected] 202-898-0905 or Linda Eichmiller
(ASIWPCA) [email protected]; Robbie Roberts (ECOS)
[email protected] 202-624-3660 or Tom Curtis (ECOS) [email protected];
Tony MacDonald (CSO) [email protected] 202-508-3860 or Kerry Kehoe (CSO)
[email protected]>.
ECOS Supplemental Comments and Recommendations
______
STATEMENT OF ASSOCIATION OF STATE AND INTERSTATE WATER POLLUTION
CONTROL ADMINISTRATORS (ASIWPCA)
TMDLS AND RESOURCES NEEDS
There are currently 21,000 listed waters which, according to USEPA,
will require 40,000 TMDLs. A waterbody can require several TMDLs (one
for each pollutant of concern).
Assuming an even distribution and no additional TMDLs, one TMDL
would need to be approved each workday by each of the 10 USEPA Regional
offices in order to complete all of them within 15 years, as envisioned
in the proposed USEPA regulation.
Assuming optimistically that ``80 percent savings'' could be
achieved (by taking advantage of lessons learned, economies of scale,
and delisting inappropriate waters), States would have to produce (and
USEPA would have to approve) one TMDL per week in each of the 10 USEPA
regional offices for the next 15 years. This does not consider the need
to plan for implementation or conduct additional monitoring.
Funding for water quality programs overall, and in this instance
for total maximum daily loads (TMDLs), has been consistently
inadequate. To develop good defensible TMDLs, the costs for water
quality monitoring, assessment, TMDL development and implementation
will experience a tremendous increase at every stage of the process.
The USEPA's propose regulations would greatly exacerbate the funding
difficulties already being experienced by the States.
Because of the complexity of the TMDL process, the sheer number of
TMDLs required and the intense public interest--to solve the nation's
water quality problems States need:
more and better monitoring information,
increases in personnel,
more technical capacity, and
significant stakeholder support for implementation.
State experience is illustrative:
For Long Island Sound, over $20 Million was expended
between 1986-2000 for nitrogen based TMDLs.
For one creek in Mississippi, the TMDL for dissolved
oxygen required approximately 5 FTEs over 2 years at a cost of
$450,000.
It has taken Texas 5 years, 8 FTEs and $2.2 Million to
develop one phosphorous TMDL for one waterbody--and the TMDL is not
finished yet.
In California, TMDLs of medium complexity require $350,000
each and complex TMDLs, $1.1 Million. In fiscal year 2000, the State
estimates the total TMDL work to be $9.1 Million.
Florida will allocate $1.2 Million and 23.5 FTEs to TMDL
development and annually needs 12 more FTEs (approximately $1 Million)
and an additional $700,000.
Washington needs about 84 FTEs annually to meet current
requirements, but is able to Provide less than 42.
Mid-Range Estimate of Costs to Develop 40,000 TMDLS Over 15 years
----------------------------------------------------------------------------------------------------------------
Moderate
Simpler Difficulty Complex Total
----------------------------------------------------------------------------------------------------------------
Percent of TMDLs (Number)....... 20-30 percent 60-70 percent 10 percent (4,000) 100 percent
(8,000-12,000). (24,000-28,000). (40,000)
Cost Per TMDL................... $50,000-$200,000.. $300,000-$400,000 ..................
$600,000-
$1,000,000.
-------------------------------------------------------------------------------
Total....................... $400,000,000- $7,200,000,000- $2,400,000,000- $10,000,000-
$2,400,000,000. $11,200,000,000. $4,000,000,000. $17,600,000,000
Annual Average (over 15 years).. .................. .................. .................. $670,000,000-
$1,170,000,000
Average per State Annually...... .................. .................. .................. $13,400,000-423,40
0,000
----------------------------------------------------------------------------------------------------------------
These estimates do not take into consideration the costs associated
with:
(1) any new Federal TMDL requirements,
(2) additional data collection or monitoring to identify
impairments and evaluate progress,
(3) full implementation of TMDLs at the State level,
(4) other stakeholders who will need to be involved or
(5) likely event that more than 40,000 TMDLs will be required.
Recommendation.--To make a meaningful contribution to TMDL
development: (A) Federal funding under the Clean Water Act needs to at
least triple, (B) funding for USDA programs would need to increase
significantly and (C) a higher level of commitment would be needed at
the State and Local level. For example:
------------------------------------------------------------------------
Current
Federal Minimum Amount
Funding For Need Annually
All State Considering
Water Quality TMDL Needs [In
Management [In millions of
millions of dollars]
dollars]
------------------------------------------------------------------------
Section 106............................ $115 $345
Section 319............................ 200 600
------------------------------------------------------------------------
summary of usepa costing estimates for proposed tmdl rules
According to USEPA documents assessing the incremental cost of the
proposed revisions to the water quality management, NPDES Permit and
Water Quality Standards programs regarding TMDLs, the following costs
would be incurred to meet requirements. The funding gap in the States'
ability to carry out the existing TMDL program at a basic level of
service is not addressed.
------------------------------------------------------------------------
Total Annualized Allocation Per
Incremental Costs State
------------------------------------------------------------------------
Listing: State costs*........... $230,000.00....... $4,600.00
TMDL Development and Content: 10.1-23.8 Million. 202,000-476,000
State Cost **.
USEPA burden for the above***... $18,000 (450 360.00 (9 hours)
hours).
Offset Requirements............. 11.54-42.28 230,800-845.600
Million.
Designation of NPS as Point 5.67-22.96 Million 138,300-560,000
Sources in NPDES Delegated
States****.
Total......................... 27.56-89.28 576,060-1,886,560
Million.
------------------------------------------------------------------------
* USEPA assumes these requirements have no incremental cost: identifying
threatened waters (determining any adverse water quality trend),
listing impaired/threatened waters, listing for air deposition,
listing until standards are attained, developing the listing
methodology, carrying out the administrative and rulemaking process,
and undertaking the monitoring and analysis to make and defend these
determinations.
** Of the 9 elements USEPA defines as the TMDL, they think that only the
implementation plan will have an incremental cost.
*** Excluding USEPA development of implementation plan, which USEPA
states is covered below.
**** For the 41 States delegated at the time of the analysis.
______
EXCERPTS OF STATE COMMENTS RE: USEPA PROPOSED REGULATIONS ON TOTAL
MAXIMUM DAILY LOADS [TDMLS]
OVERVIEW
The role of Section 303(d) has been greatly expanded in the
proposed Regulation. . . . DEP believes that EPA's proposal is over-
inclusive and questions not only the need for expansion but whether or
not EPA has statutory authority for proposed non-point source
requirements. . . . Although DEP supports proactive approaches to
resource protection, it is our opinion that TMDLs are a clumsy tool for
the protection of habitat and important resources from undetermined
future impacts. [MA]
[E]ach time EPA proceeds down this path, it ends up in litigation
and we all end up at the original starting point. [SD]
[T]he rule impedes a State's watershed approach rather than
complements it . . . the Clean Water Action Plan envisions a new,
collaborative effort to restore and sustain the health of watersheds in
the nation. . . . [DE]
[W]e are greatly concerned that EPA's TMDL regulations do not, as
presently written or as proposed, provide sufficient flexibility (or
TMDL equivalency) for equating the massive effort of developing the
Long Island Sound (LIS) comprehensive control management plan with the
LIS TMDL requirement. Some major lessons have been learned. . . . EPA
needs to recognize there are very legitimate means to obtain the same
water quality result that do not involve a formal TMDL process. [CT]
Changes to the proposal are necessary so that the regulatory tools
of the Clean Water Act (CWA) can be used effectively and as
expeditiously as possible to continue the progress that has already
been accomplished. It sometimes happens that Federal regulations, in
attempting to clarify and strengthen, impede progress by force fitting
a particular solution to all problems. [NY]
There are many pollutants that are not conducive to modeling and
loading analyses. . . . In these cases, management strategies or an
adaptive management approach would be a much more effective use of
Federal, State, and local resources. [NC]
The degree and detail of the prescribed remedies suggested . . .
will negate effective TMDL establishment and implementation. . . . EPA
has the right and duty to expect TMDLs to be developed. . . . However,
its right to describe the specific details within the TMDL must be
limited. Effective implementation is a State and local role in
directing resources on a priority basis to certain geographic areas and
activities. [KA]
[The proposed revisions] are needlessly bureaucratic, trapped in an
archaic regulatory framework, loaded with unrealistic demands, and
completely unfunded. . . . [They] add many unrealistic expectations to
the TMDL program, the rationale for which is not clear . . . the
proposed revisions create a process-laden TMDL program that is not
workable, goes well beyond the requirements of Section 303(d), and will
impede ours and other States' efforts to improve water quality. [FL]
The EPA and the States should work together to refine and enhance
tools, methods and commitments associated with existing regulations and
guidance which support the Clean Water Act [e.g., 301, 303, 305(b),
106, 319], rather than significantly expanding regulations. [TX]
Point sources are concerned that they will ultimately be
responsible for any needed reductions because they are regulated, and
NPS fear they will become regulated. The rules must allow flexibility
and innovation to bring them together as partners to solve water
quality problems. [MI]
No single agency will be capable of achieving water quality
protection by relying on only its own authorities. . . . What is more,
to achieve sustainable management will likely require the creativity of
the private sector in concert with government programs It is the
outcome that needs to be expressed in the Rule, not the details of the
programmatic approaches. [CA] EPA has consistently failed to meet . . .
mandatory timeframes. Consequently, neither States nor dischargers have
certainty even though they have met all of the requirements of the Act.
[PA]
[T]he short timeframes contained in the CWA show the clear
Congressional intent for a streamlined approval process. . . . If EPA
adopts an even more prescriptive approach, it is likely to face many
more situations of itself having to prepare the TMDLs and demonstrate
compliance with its own rules [WA]
POLLUTION VS. POLLUTANT
The definitions of pollutants and pollution are ambiguous and do
not specifically address many typical nonpoint source pollutants, such
as nutrients and sediment. [PA]
[T]he distinction between pollution and pollutants is confusing and
raises at least as many issues as it resolves (including conflicts with
section 101 of the Act). [CA]
One of the major issues . . . is the implication that ``low flows
or no flow conditions'' that are clearly acceptable under State water
right appropriation could or would result in a re-appropriation of
existing water rights. [UT]
A definition of natural sources/causes should be provided. [NE]
[T]he creation of this list which does not provide for followup
action creates a potential for future litigation. [KA]
[T]he Preamble . . . describes ``low flow,'' and ``degraded aquatic
or riparian habitat'' as ``causes of impairment from pollution.''
[this] has a significant impact on the scope of the 303(d) list and, as
such, raises two key concerns: (1) opening an endless round of legal
debates on the definition of ``pollutants'' and ``pollution'' and (2)
potential conflicts with Section 101 (g). [OR]
EPA should . . . exempt the listing of water bodies impaired by
natural sources of a pollutant, or pollutants from a catastrophic event
especially when no conceivable water quality program could prevent or
substantially remediate the effects of nature [TX]
LISTING
DEP believes that the proposed 303(d) listing process is too
complex and could lead to significant disputes and potentially
unnecessary litigation thus delaying the implementation measures
intended by this rule. [MA]
[Mississippi] fears that EPA will subsequently change the
interpretation of its regulations to require TMDLs or other permitting
restrictions on the waters contained in the other, non-statutory
sections of the proposed 303(d) list. [MS]
[T]he listing of segments not requiring TMDLs would cause
unnecessary confusion for the public. [NY]
EPA is still working . . . to determine the relationship between
air emissions and mercury accumulation in fish. States should not be
expected to list and develop TMDLs for these impaired waters until EPA
provides an approach for doing so. Most likely these TMDLs will be
multi-State or multi-regional and will require great coordination and
cooperation. [SC]
[T]he Chowan River estuary was declared as nutrient sensitive
waters in 1979, . . . and a plan . . . was enacted in 1982 . . . [and]
. . . resulted in significant . . . reductions [and] fisheries have
improved . . . there are questionable benefits about doing a formal
TMDL in this system. . . . Waters where the proper technical conditions
do not exist and may be better addressed by a management strategy can
be placed on another part of the 303(d) list. [NC]
The draft rule requires States to include the pollutant that is
causing the impairment, and if the pollutant is unknown, the class of
pollutant must be included. . . . [This] penalizes States that have
strong biological monitoring programs. . . . Until we can verify a
pollutant or class of pollutants with data, we cannot include a problem
parameter on the 303(d) list. It is important that the proper cause of
impairment be noted or States will expend many resources developing
TMDLs for pollutants that will not restore water quality. [NC]
By including a category on the list of impaired waters called
``expected to meet WQS . . . for ESA recovery plans and other long-term
enforceable State, Federal and local water recovery efforts, States
would be able to provide certainty without first completing a TMDL.
[WA]
To consider potential sources of contamination alone as a basis for
listing a waterbody as impaired or threatened is overkill. . . . The
reliability of these data bases is unknown. Furthermore, Source Water
Assessments are potential sources of contamination, not sources of
contamination.'' [LA]
[The proposal] would only allow delisting of waters where new data
indicate the water now meets water quality standards . . . [it does not
include existing provision that] allow[s] States to delist based on
administrative errors or flaws in the original analysis. This text is
extremely important because many waters have been included in previous
lists without sufficient data. . . . EPA needs to acknowledge that
States will undoubtedly establish new data sufficiency criteria for
both listing and delisting. [FL]
[For biologically impaired waters] . . . developing a TMDL may not
be the most efficient or effective tool. The preamble . . . indicates
that States should be able to determine the pollutant within 1 year.
Without considerable resources put into States monitoring and
laboratory programs, this cannot be achieved. [NC]
We expect that the increasingly litigious nature of TMDLs will
drive the listing process toward more constrained and defined limits. .
. . The manner in which we deal with impaired waters using TMDLs needs
to be as efficient as possible so that resource limitations do not
starve our ability to pursue early intervention and prevention
alternatives in watersheds that are threatened but not yet impaired The
Rule should acknowledge that delisting based on alternative or
functionally equivalent management processes is acceptable. [CA]
[A] documented decline in water quality in Tier 3 waters should
trigger an investigation into the cause of the decline rather than the
development of a TMDL. [NY]
In light of naturally occurring variation in water quality as a
result of seasonable and annual variations in hydrologic conditions,
substantial data would be needed to ascertain that a ``declining trend
that will result in nonattainment of standards'' exists . . . we
anticipate that the expansion of the listing requirement [to include
threatened waters] . . . will lead to numerous debates about what
constitutes adequate data In view of the overall resource challenge . .
. it is not appropriate to mandate the listing and development of TMDLs
for threatened waters. [UT]
DATA QUALITY
Past situations have arisen where EPA has sided with the public
regarding perceived pollution problems without requiring the public to
produce any ``real'' data to back-up these claims. This is contrary to
the more stringent quality assurance/control requirements that are
imposed upon States. [NE]
Without clearer guidance, the TMDLs will be challenged from a
scientific standpoint. States simply cannot maintain mandated timelines
if they are required to collect additional data or follow elaborate
protocols for TMDL development that will not be put to some use. [MA]
T]he proposed rules require the State's water monitoring program to
be responsible for collecting and analyzing all data, which we do not
have the resources to do. [It] does not allow discretion to weight data
based upon quality. Data of poor quality or based upon subjective
methods could undermine the credibility of listings. [OR]
PRIORITIZATION AND SCHEDULING
We agree that States must be committed to developing and
implementing TMDLs in order to improve water quality, but it is
unreasonable for EPA to force States to speculate on schedules for a
15-year time period when so much is dependent on availability of
resources and tools. . . . [It] is very unrealistic to expect that
States can develop all high priority TMDLs in 5 years.'' [SC]
The remaining waters on our list have a nonpoint source component,
and are on waters/parameters that will be difficult to address such as
shellfish closures in our estuaries, nutrient issues in our lakes and
estuaries, and sediment and fecal coliform loading and biological
impairment throughout the State Imposing this 15-year timeframe for
TMDL development may harm States' overall water quality programs. . . .
[It] also does not provide States with an incentive to expand their
monitoring program. [NC]
We believe completing TMDLs to address impaired waters in a timely
and efficient manner is the goal. . . . The large number of required
TMDLs and the long schedule ensure unknown problems that will not be
amenable to inflexible regulatory deadlines. [PA]
[T]here is . . . a very real potential for conflicts in determining
303(d)/TMDL priorities, Unified Watershed Assessment priorities, Clean
Water Act Sec. 319 priorities, and other Federal and State priorities,
while being expected to share very limited funding for all. [SC]
Congress intended the TMDL listing process to be a public process.
. . . EPA is prescribing what is important to the States, exclusive of
public input. . . . EPA [is] asserting that the public cannot arrive at
reasonable ranking criteria. [SD]
[T]he practical implication of giving higher priority to waters
affecting threatened species or human health is that almost all listed
waters would require TMDLs within the first 5 years, clearly an
impossibility. [WA]
The lack of flexibility afforded the States in assigning priorities
may mean that efficiencies in grouping TMDLs may be overlooked, or the
State's ability to develop TMDLs on a watershed basis may be impeded. .
. . The EPA should allow themselves and the States some justifiable
relief from certain future litigation for factors that are
unpredictable at the time the schedules are prepared. [TX]
The purpose of the schedule should . . . not be considered to be a
contract with EPA to deliver the specified TMDLs. [CA]
COVERAGE OF NONPOINT SOURCES
``The proposed revisions represent a significant, unwarranted
expansion of the regulatory approach to [the nonpoint source] problem.
. . . There are simply too many potential nonpoint sources of pollution
to address using traditional regulatory techniques. Furthermore, there
is too much uncertainty in the relationship between individual nonpoint
sources and their specific impact on downstream receiving water quality
to support a water quality-based approach. States certainly will not be
able to allocate loading to individual nonpoint source discharges or
monitor the effectiveness of individual pollution control activities. .
. . Securing industry cooperation is not easy but it is the only way we
will be able to deal effectively with nonpoint source pollution--and it
is bearing fruit. . . . The prescriptive approach . . . would prove
ineffective and serve only to discourage partnerships and cooperation
[and] seriously undermine the roles of State and local governments in
watershed management. [FL]
EPA has no more authority than States do to regulate nonpoint
sources.'' [SC]
Watershed management . . . is the appropriate mechanism. . . .
Unfortunately, the proposed regulations reject this philosophy and
attempt to impose a Federal mandate on States and by extension, point
sources, to fix nonpoint issues. This approach is doomed to failure,
legally, logistically and pragmatically. [KA]
[T]he nature of NPS pollution together with the problems of legacy
pollution and episodic climatic events makes the application of
treatment technologies difficult if not impossible as a solution to NPS
problems. Relying too heavily on NPDES type solutions creates huge
inequities in cost and responsibility. The threat of pursuing an
unbalanced program is that the entire management structure is
diminished. . . . This is a different role for EPA. . . . It is from
this role of partner and collaborator that EPA must craft the Rule, not
from a perspective of overseer. [CA]
IMPLEMENTATION PLANS AS A COMPONENT OF TMDLS
EPA is taking the extremely tenuous position that a Federal law
that does not authorize EPA to conduct command-and-control regulation
of certain activities and entities somehow requires the States to
conduct that regulation. This is federalism in reverse. . . .
Mississippi does not need 2,257 implementation plans. [MS]
DEP is concerned that by requiring the implementation plan within
the context of the TMDL technical analysis . . ., disputes about the
implementation plan could bring the technical analysis to a grinding
halt. [It] should be incorporated into the State's watershed management
plans and be considered within the context of other watershed problems
and priorities. [MA]
An implementation plan is often a complex product following
extended interactions among many stakeholders in a watershed. Direct
Federal Government interference will seriously impede the process by
reducing or removing the commitment of a locality to steward its
watershed. In short, local creativity and motivation will be
permanently stymied, and water quality improvement will be delayed.
[PA]
[In] some cases, TMDLs may be complete, yet no source of funding is
available to implement the NPS reductions needed. States will have two
choices at this point, do not submit the TMDL to EPA or submit it
without the implementation plan. Either way, progress toward TMDL
completion is halted. . . . We suggest EPA acceptance of other
management plans or strategies such as upgraded Sec. 319 Management
Plans, National Estuary Management Plans, or State Watershed
Strategies. [SC]
Requiring the implementation plan as part of the TMDL can
significantly lengthen the time it takes States to submit TMDLs. If EPA
does not approve the TMDL, significant State and local resources would
have been expended that might not meet the requirements of the final
approved TMDL. Having an approved TMDL in place will ensure that the
proper goals are established for the implementation plan . . . there
will be increased flexibility to States and local stakeholders in
carrying out the plan. [NC]
To assume that any given TMDL will describe an immediate solution
to an impaired situation is erroneous. [KA]
TNRCC understands the need for the EPA and the public to know
specifically how water quality standards will be achieved, but [e]ven
with point sources, implementation as detailed in the NPDES permit is
approved separately and after TMDL approval. [TX]
Considering the fact that the implementation plan is dependent on
the load reduction targets set by the TMDL, the concurrent development
of the TMDL and the implementation plan is not possible . . .
implementation plans are being developed on a separate schedule
according to Delaware's Whole Basin Management process. [DE]
[W]e believe it is appropriate for EPA to request that
implementation plans be developed. We believe it is beyond EPA's
authority to specify the content of these plans. [CA]
REQUIRED ELEMENTS OF A TMDL
[M]any of the minimum elements required by the proposed rule are
unreasonable for the State to define in the course of developing the
TMDL. . . . it is simply not realistic to require States to identify
timelines for activities and implementation efforts which are outside
our jurisdiction, to identify legal or regulatory controls applicable
at the local level, or to provide reasonable assurances for activities
and efforts outside our jurisdiction . . . it is simply not possible to
mandate nonpoint source controls beyond existing statutory authority.
The imposition of rigid requirements is antithetical to our desire to
partner with local stakeholders in an iterative process through the
watershed approach. DEP recommends that EPA reevaluate the
reasonableness of each proposed element. [MA]
TMDLs should be used to establish a relative level of
responsibility in pollution reduction, but not craft hard and fast
numeric levels which are to be allocated between point and nonpoint
sources, or among subcategories of sources. [KS]
Every pollutant and every waterbody is not going to fall into the
``l0 element box'' provided in the regulations. Examples include
interstate or border waters which have pollutant criteria and time
schedules that differ between neighboring States, or complex pollutants
such as mercury, which may require a phased approach to TMDL
development. [MS]
In many situations a management plan that would not include all 10
elements may allow improvement in water quality to the point where
standards are met. This would allow savings of time and effort while
focusing on improving water quality. [SC]
TMDL implementation, particularly the decisionmaking on the
allocation of loads and the burden of non-point source pollution
reduction among known (and possibly unknown) sources from local land
uses is appropriately a local or State task, not a matter for
involvement by the Federal Government. [MA]
Neither the TNRCC nor the EPA will be successful in adhering to the
prescriptive requirements given the complexities and uncertainties
associated with nonpoint source pollutants and the lack of wet weather
standards [TX]
The TMDL process must be structured to support defining
expectations on a watershed scale. In contrast, the proposed Rule moves
us further toward the notion that ``load limits'' for individual
chemicals is the basis of TMDL work. [CA]
REASONABLE ASSURANCES
The State may be able to outline the actions required to meet or
make progress toward meeting the water quality standards . . . but some
of the required actions may exceed the authority of the Department . .
. (e.g. land use management and the reduction atmospheric deposition).
The State may also have difficulty in describing the effectiveness of
some of the unproven Best Management Practices or other unproven
actions. . . . A time line for actions beyond the [Department's] scope
of authority will be difficult to predict. . . . The Department may
also have a difficult time guaranteeing adequate funding for the
implementation actions because of uncertainty associated with
projecting future budgets [NY]
The expectation of EPA for reasonable assurances to implement and
achieve TMDL endpoints relies on a clairvoyance never seen in water
quality management. [KS]
[There is] not enough flexibility. . . . Reasonable assurance
should allow for the identification of implementing mechanisms such as
Oregon's Forest Practices Act, Federal land management plans, State
agricultural statutes and rules, urban planning requirements, etc., and
how and when (specific timeframes identified in the TMDL) these
mechanisms will be modified to meet load allocations . . . we see no
merit in identifying adequate funding of total cost of implementation,
since it is nearly impossible to do and is not necessary for EPA
approval of a TMDL. [OR]
LDEQ cannot assure that local governments will pass ordinances to
require management measures for nonpoint source controls. Nor can LDEQ
assure that any new State laws or regulations will be passed. . . . If
the State outlines within the NPS Management Plan a step-by-step
process that it will follow in the implementation of the TMDL at the
watershed level, does that not constitute a reasonable assurance? [LA]
[S]tates cannot assure that fecal coliform standards in urban areas
will be met after all possible controls are put in place. . . . Since
all States will soon have EPA-approved updated Nonpoint Management
Plans, we believe this plan should serve as the reasonable assurance as
well as the implementation plan for TMDLs for waters affected by
nonpoint sources.'' [SC]
[T]he State cannot provide the necessary reasonable assurance that
the control measures will be implemented nor could EPA provide the
reasonable assurance in the event a TMDL is disapproved and redeveloped
by EPA. The language in the regulations needs to be toned down to match
that of the preamble which indicates voluntary measures are suitable
and can be considered sufficient reasonable assurance. [NE]
Note that there is no comparable requirement of point sources to
ensure adequate funding for implementing controls consistent with
wasteload allocations despite the fact that advanced treatment can be
extremely expensive. The NPS assurances that include a demonstration of
adequate funding are not feasible. . . . The best the agencies could do
is provide assurance that they will strive to maintain funding. [CA]
USEPA PERMITTING OF NPS
[T]he silviculture industry . . . has already made a real
commitment to the protection of State surface waters through the
development and implementation of a Silviculture Best Management
Practices Manual. Given the multitude of individual forestry
operations, we believe that management of stormwater from silviculture
activities is best addressed through continued refinement of this
manual, rather than through the NPDES program. [FL]
The State fears that the mere threat of a possible NPDES permit
will discourage private landowners from practicing forest management.
The threat of a permit could turn hundreds of thousands away from the
simple and beneficial act of tree planting and reforestation. [[NY]
[W]e have serious concerns with the potential impact of the
proposed regulations on the State's Forests and Fish Agreement, which
was painstakingly negotiated throughout the past 2 years and is now
State law. . . . EPA's proposal could cause the Agreement to collapse.
. . . The listing and TMDL programs must allow EPA and the State to
incorporate this Agreement . . . the application of point source
controls to silviculture does not need to occur if there is a viable
and effective State program. [WA]
If permits were to be issued it would create significant overlaps
and redundancy and require a very large additional administrative cost.
It would cloud and confuse the management process and potentially lead
to significant new litigation. [CA]
ANTIDEGRADATION POLICY/OFFSETS
[I]t is likely that protracted litigation will result, wasting
precious private, local, State and Federal resources. [NE]
[T]he States and EPA are clearly not in a position to take on this
expanded role at this time. [WA]
The proposed TMDL regulations make no provision for pollutant
trading. . . . [It] should be universally allowed as a mechanisum to
promote progress toward meeting an aggregate water quality-based
pollutant cap. [CT]
[The] proposal to require offsets in addition to requiring
permittees to demonstrate that their discharge will not cause or
contribute to the documented impairment is overly burdensome to
permitters. LFL]
[For NPS it] is very difficult to quantify and monitor, and may
take a number of years to accomplish. . . . Development could be halted
for years in an area with impaired waters, depending on the weather,
particularly if a flood occurs which destroys years of successful BMP
implementation work. This is an untenable situation . . . discharges
associated with cleanups undertaken as part of the Superfund program or
otherwise could be precluded in an area of impaired waters.'' [PA]
This could necessitate monitoring for compliance and having
alternative limits in place to deal with potential [NPS] failures which
could significantly slow permit issuance. Requirements of this type
seem premature until there are more specific regulatory programs for
nonpoint sources in addition to a better understanding of the
effectiveness of BMPs.'' [SC]
By dictating to such large numbers of dischargers that every offset
must be memorialized in each NPDES permit, the EPA is making such
trading associations unappealing and unnecessarily rigid. . . . It is
old school thinking that we must remain command and control regulatory
agencies [and] it becomes undesirable for our permit writers to modify
multiple permits many times during the course of a permit cycle. [A]
legally binding agreement . . . could be referenced by the NPDES permit
but would not require modification of each permit document. [NC]
This complex and prescriptive approach will likely conflict with
existing State antidegradation regulations and trading programs . . .
the offset provision . . . is inconsistent with the shift toward a more
comprehensive and equitable approach to improvement of impaired
waterbodies. . . . The benefits in terms of water quality improvement
anticipated from the new offset requirement are likely to be small . .
. permitting agencies would face the challenge . . . in determining
what constitutes an acceptable offset. [MI]
EXPIRED PERMITS
We believe that EPA review of expired permits is more appropriately
addressed through the Performance Partnership Agreement. [OR]
[C]reating expectations in the NPDES rule that EPA will assume more
permitting responsibilities in Washington will result in less overall
environmental benefit, not more . . . and delay TMDL implementation.
[WA]
The proposed regulation . . . would force the State to abandon a
reissuance schedule that is effective and works extremely well on a
watershed basis. . . . Preparing permits for a wasteload allocation is
complex, and the time needed to prepare draft permits could easily
exceed the proposed 90-day grace period. . . . Implementing the USEPA
review within the 90-day window would force the State to draft permits
without adequate time to establish the allocation process. [MI]
MIXING ZONES
``The draft regulations eliminate the use of mixing zones in
impaired waters. This shifts a disproportionate amount of
responsibility to the permitted discharges to improve the water quality
of the receiving stream. The policy of utilizing mixing zones should be
a State decision based on the totality of circumstances.'' [MS]
______
STATEMENT OF MR. WARREN E. ARCHEY, MASSACHUSETTS STATE FORESTER, CHIEF
OF THE MASSACHUSETTS BUREAU OF FORESTRY, AND CHAIR OF THE NASF WATER
RESOURCES COMMITTEE
The National Association of State Foresters appreciates the
opportunity to submit testimony on the U.S. Environmental Protection
Agency's (EPA) proposed revisions to the National Pollution Discharge
Elimination System (NPDES) Program and Federal Antidegradation Policy
in Support of Proposed Revisions to the Water Quality Planning and
Management Regulation (NPDES rule). The proposed changes in the Total
Maximum Daily Load and NPDES rules have significant potential to
disrupt silviculture and forest management on the nation's 337 million
acres of non-industrial private forest (NIPF) land. The proposal
represents a fundamental change in the approach EPA has historically
taken to reducing threats to water quality from nonpoint sources. We
feel this fundamental change in approach is not justified either by
statutory authority or the scope of water quality impairments caused by
silviculture.
The State Foresters are strongly opposed to the proposed rules on
three major grounds:
1. The proposal is a major departure from the historical
interpretation and implementation of the Clean Water Act, and is not
supported by statutory authority.
2. The proposal ignores the relatively minor contribution made by
forest management to water quality problems nationwide, and threatens
to disrupt the effective approach taken by the State Foresters and our
Federal partners to achieve these results.
3. The proposal will be extraordinarily difficult to implement in
practice and will result in drastically higher costs for both States
that must develop TMDL's and landowners and operators who might become
subject to NPDES permitting requirements.
The National Association of State Foresters represents the
directors of the State Forestry agencies from all 50 States, seven U.S.
territories, and the District of Columbia. We believe that forest
management is vital to the protection of the nation's water resources,
and are committed to the goals of the Clean Water Act and to preventing
water quality impairments of all kinds. We believe that forests, and
the active management of forests, contribute much more to water quality
improvement than to water quality impairments. Forestry is part of the
solution and, in most cases, is not a source of the problem.
The original Water Pollution Control Act (Federal Clean Water Act)
and subsequent amendments have consistently recognized and preserved
the ``primary responsibilities and rights of the States in controlling
water pollution.'' The redefinition of silvicultural activities as
point sources of pollution and the removal of the silvicultural
regulatory exemption under the proposed NPDES rule, thus allowing
silviculture to be permitted under the NPDES, are open and unjustified
attempts on the part of the EPA to usurp control from the States.
Further, and without good reason, the proposed change suggests that
silvicultural activities represent a substantial nationwide NPS
problem. EPA's own figures tell a much different story.
The State Foresters are opposed to EPA's proposal to remove the
categorical exclusion of silvicultural activities from the definition
of point source pollution. EPA's attempts to regulate silviculture
activities under the NPDES permitting are scientifically unjustified,
highly disproportionate with regard to other land uses, and a radical
departure from the historical interpretation and implementation of the
Federal Clean Water Act. In short, State Foresters recommend a
retraction of EPA's proposed rule.
SHIFT FROM HISTORICAL INTERPRETATION
The re-designation of all silvicultural activities as point sources
of pollution, making all forestry practices potentially subject to
NPDES permitting, is a drastic departure from 27 years of statutory
interpretation, case law, and regulatory implementation.
EPA's claim of authority to regulate silviculture in the proposed
rule does not withstand the scrutiny of historical interpretation.
Congress specifically created the provisions under Section 319, through
the 1987 amendments to the Clean Water Act, to address nonpoint source
water quality concerns. State Foresters believe that Section 319
contains the proper and intended authority granted to EPA for NPS
controls, not the thin rationale EPA is claiming under the stormwater
provisions (40 CFR 122.26(b)(14)(x). Programs and assistance available
under Section 319 enable the States to proactively address NPS problems
in a flexible framework and timely manner that a permitting process
would not allow.
We want to stress that efforts to fully fund the Section 319
program have only recently been stepped up and that precious little
Section 319 money has been made available for control of silvicultural
NPS pollution. We strongly support EPA's proposed increases in funding
for Section 319, and we would hope that a concerted effort would be
made by EPA to work more proactively with the State Foresters and the
Forest Service to ensure that prevention of silvicultural NPS pollution
is emphasized in that program. We also urge the committee to review our
proposal for a Watershed Forestry Initiative within the USDA Forest
Service to accelerate the progress being made on forestry NPS control
(attached).
BENEFITS OF FOREST MANAGEMENT
Forestry can contribute more to water pollution prevention and
clean up, than to water pollution problems. Besides helping to mitigate
and reduce NPS water quality impairment from other land use practices,
active forest management actually encourages beneficial land uses and
activities that can improve water quality such as reforestation and
afforestation. Simply stated, getting more trees into the ground will
be better for water quality. Getting landowners to reforest and/or
aforest their land should be a primary mechanism in improving water
quality. The proposed NPDES rule acts as a disincentive for landowners
to get involved in forest management. It increases the likelihood that
the landowner will choose another land use activity with increased
water pollution characteristics such as agriculture or development.
Positive incentives need to be provided for landowners to reforest and/
or aforest their lands, not create regulations and programs that push
the landowner away from planting trees.
Energies should be put into programs and services that are
voluntary and incentive based, the kinds that State Foresters have been
delivering to the more than nine million non-industrial private forest
landowners for over 80 years with proven success. This is reflected in
the National Water Quality Inventory reports [Clean Water Act 305(b)
lists] that are delivered to Congress every 2 years. They show a
diminishing role for silviculture in impairments of rivers and streams
over the past decade. Silviculture does not even appear on the list of
seven contributors to river and stream impairments in the EPA's latest
release of the biennial report (1996).
Best Management Practices.--State Foresters are, and have been for
many years, involved in the development of nonpoint source (NPS) water
pollution controls and plans. We have led by taking a preventive and
proactive, rather than a restorative or reactive, role to water quality
impairments from silviculture activities. This involvement has led to
developing practices and procedures for both preventing and reducing
NPS risks, commonly referred to as Best Management Practices (BMPs).
All States with significant forest operations have silvicultural NPS
control programs that rely on BMPs for results.
Forestry BMPs are continually being refined in many ways to help
make them more effective and enforceable. Refinements include making
BMPs directly enforceable in connection with required plans and
permits; utilizing ``bad actor'' designations; making compliance with
BMPs a defense to a regulatory violation; making BMPs the basis for an
exemption from a regulatory program; and making BMPs a defense to
nuisance or liability actions. Continual refinements include logger
licensing and certification programs which train field operators about
BMP implementation. The crux is that States are already working to make
existing laws and standards more consistent and comprehensive (Stuart,
1996).
These types of creative BMP revisions have helped to improve
implementation to levels of 85-95 percent and above (Ice/Shepard,
1999). Implementation rates should only improve as time passes. This is
particularly true as more and more logger/landowner monitoring,
education, and training sessions come online, and forest certification
and performance standard systems such as those set up by the Forest
Stewardship Council and the American Forest & Paper Association
(Sustainable Forestry Initiative) become more accepted and mainstream.
State Foresters believe that BMP implementation accomplished by an
informed and willing audience is the key to successful reduction of
silvicultural NPS water pollution. We are already seeing evidence of
this.
Proof lies in the 305(b) reports. Report trends show that
silviculture is contributing to a diminishing fraction of polluted
miles along rivers and streams. In fact, silviculture did not even show
up on the list of water pollutant contributors in the latest version of
the 305(b) reports (EPA, 1996). With forests covering 737 million acres
of the United States (National Research Council, 1998), it is important
to note that forest management is reported in the 305(b) reports to
contribute to only a small fraction of the impaired rivers and streams.
The logical conclusion is that the use of BMPs in forestry operations
is having a positive impact on water quality. Our own studies bear this
out. Whereas 40 States reported localized pollution problems from
silviculture in 1982, only twenty-four reported the same in 1996
(Stuart, 1996).
IMPLEMENTATION: MORE COSTLY AND CUMBERSOME THAN EPA THINKS
The EPA claims that they are seeking a regulatory ``backstop''
through the NPDES rule, so that bad actors in impaired watersheds will
come under a regulatory framework. However, as written, the proposed
rules lead us to believe that it would lead, in many cases, to a
patchwork regulatory framework, where EPA field offices would have
discretion to set up regulatory programs in some watersheds, while
States would retain authority over voluntary programs in others. We
believe that most States have adequate bad actor provisions and
enforcement mechanisms, and we are reviewing our own State programs to
confirm this. However, it is interesting to note that the States with
the highest number of impaired stream miles (Washington, Oregon, and
California) due to silviculture, forest practices are already regulated
through State forest practices acts. We have serious reservations about
what the proposed rule will mean in States such as these and in other
States where the legislatures have acted to mitigate the impact of
silviculture on water quality. Will EPA demand more than is currently
required under State law?
This sends the message that the EPA does not believe that States
are doing a good job, or they will not be able to do a good job to
reduce silvicultural related NPS pollution in the future. As a result,
the ``backstop'' undermines State good faith efforts. There is good
reason to believe that this EPA action might divert resources that will
limit State capability and potentially refocus State efforts into
activities with unproven results. A ``top-down'' approach, like the one
being proposed by the EPA, will only alienate the partners needed to
achieve this continued success.
Below is the summary table taken from the EPA's cost analysis
related to implementation of the silvicultural provisions of the
proposed NPDES rule (Environomics, 1999).
------------------------------------------------------------------------
Annualized Cost No. of Entities
Proposed Provision ($ Million) Affected Annually
------------------------------------------------------------------------
Designating Silvicultural
Operations Under NPDES:.
Cost for the silviculture 3.45--12.93....... ..................
industry.
Administrative costs to Federal 0.27-0.28......... ..................
and State governments.
---------------------------------------
Subtotal.................... 3.72--13.22....... 613-1,225
Annualized compliance costs for 0.36 percent to 368-735
small logging firms. 0.67 percent of
their annual
revenues.
Annualized compliance costs for 0.27-0.50 percent <18,000
small entity timber owners. of their timber
revenues.
------------------------------------------------------------------------
State Foresters believe the above estimates are far too low and the
proposed NPDES rule will affect a far greater number of entities than
the EPA has envisioned.
First and foremost, the authors of the cost analysis admit the
final reported costs are vague, misleading and uncertain. In their
proposal, EPA states: ``This paper presents some rather uncertain
estimates of how often the proposed designation authority might be
invoked, and, if so, the costs that will likely ensue'' (p. 52,
Environomics, 1999, emphasis added). This analysis must then be assumed
to represent a low end-cost estimate. We believe it would be more
appropriate to include a high-end estimate to better prepare
potentially affected entities. We believe such a high-end estimate is
justified by the fact that EPA will likely be pressured, through
additional litigation, to expand their use of regulatory authority
under NPDES if the proposed rules are implemented. The final result
will be significantly greater costs than anticipated by the
Environomics report.
Reinforcing our belief that EPA cost estimates are far too low, the
authors utilize ownership and business data that is seriously out-of-
date. The 1978 data source quoted by the authors indicate only 7.8
million ownership units holding 333.1 million acres of private forest
land in the U.S. That same survey was updated in 1994. The 1978 data
source underestimates the number of private forest landowners by 2.1
million, and the number of acres owned by these landowners by 60
million acres (National Research Council, 1998). Furthermore, the
estimated number of affected logging entities is underestimated nearly
three-fold. While the authors report only 14,278 logging entities
nationwide, that number is closer to 37,000 according to the Forest
Resources Association (formerly the American Pulpwood Association).
These numbers will substantially raise the estimated costs of the
proposed NPDES rule.
Even if we assume, however, that the Environomics report is
accurate, we would be forced to question the need for the rule if the
number of effected landowners and forest management operations that
would be impacted is so small. Their cumulative impact on water quality
would be nearly immeasurable.
Again, we believe the EPA's cost estimates for the proposed NPDES
rule are far too low and the true cost impacts will greatly outweigh
any potential benefits, especially when considering the small amount of
sediment pollution silviculture contributes to the NPS water pollution
problem. The proposed NPDES rule is simply another disincentive for
landowners to actively engage in forest management. We believe that the
higher costs associated with these rules raises the question of an
unfunded mandate which would be well above the $100 million threshold.
This question should be revisited.
CONCLUSION
On October 22, 1999, USDA Undersecretary for Natural Resources and
Environment sent a letter addressed to EPA Administrator Carol Browner
on the proposed revisions to the Total Maximum Daily Load and NPDES
systems. This commentary provides a very telling and accurate story of
the affects the proposed rules would have. From the letter, ``In
general, we (USDA) feel that if the proposed rules are implemented they
will likely cause disruption to existing NPS control programs that have
proven to be effective and will unnecessary divert scarce resources to
a top-down, process oriented approach that may not work for NPS
pollution control.'' We could not agree more.
The fact is forest management is dispersed in both space and time.
State Foresters believe that (1) nonpoint source pollution from
forestry activities are usually a result of extreme weather or
operational malfeasance; (2) pollution can best be controlled through
prevention; and (3) forest management has the least impact of land-use
alternatives. Therefore, the EPA should retain its current NPS
treatment of silvicultural practices. The idea that a tracking,
permitting and monitoring system for nonpoint sources, let alone
forestry, could be established to pinpoint offenders in a timely manner
is simply illusory. If anything, we feel that other land uses should be
brought up to the level of protection evident on forest lands,
particularly when taking into account their relative contributions to
the NPS pollution problem.
For these reasons, NASF recommends that the EPA retract the
proposed NPDES and TMDL rules. We would encourage the agency to
seriously revisit the NPS pollution issue to determine what is needed
to further improve the quality of water coming off of our forested
landscapes; already considered to be the source of the cleanest waters
in the United States (USDA Forest Service, 2000). If the EPA is simply
looking for reasonable assurances that silviculture does not
significantly contribute to water pollution, the answer does not lie in
Federal regulation. We suggest the answer lies in stronger commitments
to BMP implementation at all levels of government within a voluntary
and incentive-based context that prevent water quality problems before
they happen. The Federal Government has a vested interest in this
public good which justifies boosting Federal resources and investments
that will be needed to see such commitments through.
REFERENCES
Environomics, 1999. Analysis of the Incremental Cost of Proposed
Revisions to the EPA NPDES Permit and Water Quality Standards Rules.
Environomics, Inc.
EPA, 1996. National Water Quality Inventory [305(b) reports].
Environmental Protection Agency.
Ice, George, and Shepard, Jim, 1999. Silviculture and Water
Quality: A Quarter Century of Clean Water Act Progress. National Center
for Air & Stream Improvement (NCASI).
National Research Council, 1998. Forested Landscapes in
Perspective: Prospects and Opportunities for Sustainable Management of
America's Non-Federal Forests. Committee on Prospects and Opportunities
for Sustainable Management of America's Non-Federal Forests, Board of
Agriculture, National Research Council.
Olszewski, Robert, 1999. Testimony before the House Agriculture
Subcommittee on Department Operations, Oversight, Nutrition, and
Forestry. October 28, 1999.
Stuart, Gordon W., 1996. The National Association of State
Foresters 1996 Progress Report, State Nonpoint Source Pollution Control
Programs for Silviculture. National Association of State Foresters.
USDA Forest Service, 2000. Water & the Forest Service. FS-660.
______
Attachment--NASF Watershed Forestry Initiative
WATERSHED FORESTRY INITIATIVE (USDA FOREST SERVICE--STATE & PRIVATE
FORESTRY--COOPERATIVE FORESTRY)
Background
Forests are essential to clean water our most precious resource.
Well managed forests absorb rainfall, filter pollutants from air and
water, and recharge underground water supplies. They protect streams
and wetlands and reduce flooding--keeping our environment healthy.
Forests provide critical habitat for fish, wildlife and rare plants.
Many communities rely on their forests to support the local economy and
improve the quality of their everyday lives. Clearly an investment in
trees and forests is an investment in clean water, clean air, and clean
communities.
Issues Facing Our Watershed Forests
Non-point source pollution on private forestlands has been
addressed primarily through State Forestry Agencies in cooperation with
the USDA Forest Service. Nationwide, nearly 70 percent of our
forestlands are privately owned. In the Eastern US, that figure rises
to over 90 percent. These forests produce \2/3\ of the clean water we
need for recreation and support of fish and wildlife habitats as well
as the drinking water supply for millions of Americans. In addition to
environmental benefits, these private forestlands also produce over 50
percent of the nation's wood and paper products.
Forests are increasingly being removed and fragmented by land-use
changes, placing stress on forests and their watersheds. These losses
of forest affect more than our quality of life. In the Baltimore-
Washington region alone, tree loss over the last 25 years has increased
runoff nearly 20 percent, causing flooding and eroding streams and
costing local governments over $1 billion in treatment costs.
Increasingly, the conservation, restoration and stewardship of private
forestlands is viewed as crucial to securing watershed health and
sustaining it in the future.
A Watershed Forestry Initiative
Recent national actions such as the Clean Water Action Plan, the
USDA Forest Service Natural Resource Agenda, and EPA's proposed Total
Maximum Daily Load program revisions have brought new focus on the need
to work at the watershed level, create opportunities for partnerships
and encourage greater community participation in solving water and
natural resource problems.
Historic funding levels for water related work through Cooperative
Forestry programs have not met this challenge. An initiative is
proposed to expand stewardship activities to prevent and address water
quality and watershed issues in forested watersheds. The Initiative
would implement activities in two main areas:
Program Components
Watershed and Clean Water Grants.--Through grants to States,
communities, non-profit groups and landowners, the Forest Service and
State Foresters will implement critical watershed protection,
restoration and stewardship projects.
use trees and forests as solutions to water quality
problems in urban and agricultural areas
protect drinking water supplies
demonstrate the value of trees and forests to watershed
health and condition
restore fisheries and enhance waterfowl and other wildlife
habitat
promote forest and watershed protection through community-
based planning and action
build new partnerships with State, local and non-profit
organizations
complete watershed scale water quality improvement and
forest conservation plans
restore stream side forests and establish riparian
vegetative buffers to improve water quality
Watershed Coordinators/Enhanced Forest Resource & Watershed
Planning.--Successful watershed planning and management depends on good
information and the ability to deliver. Coordinators would be a focal
point for integrating forestry programs across mixed ownerships and
building Federal and State capacity to deliver existing cooperative
programs on a priority watershed basis. The bottom line is that groups
involved in assessing watershed condition and developing solutions need
better forest resource information. Coordinators would help to:
build new partnerships, while nurturing and strengthening
existing partnerships, at the State and local level,
provide technical guidance for water quality protection
and restoration,
develop collaborative watershed projects which can address
critical conservation, restoration or stewardship needs in priority
areas,
provide enhanced forest resource data and support for
State and local watershed planning efforts,
work directly with the non-industrial private forest
landowner on-the-ground to improve water quality,
support information needs for State Unified Watershed
Assessments, water quality standards development, impaired water lists
(303(d) lists), National Water Quality Inventory data (305(b) list),
Total Maximum Daily Load calculation and nonpoint source pollution
control plans,
provide forest resource information to local watershed
councils, and
support Sustainable Forestry Criteria and Indicators and
Index of Watershed Indicators.
Partners
Moving forests and forestry into a more proactive role in the
protection and restoration of watersheds, water quality, and important
habitats like riparian areas and wetlands, provides the opportunity for
a wide range of partnerships. Cooperative Forestry has the established
delivery system and partnerships with States to effectively deliver
this program and nurture partnerships that are needed to effectively
improve the water quality of forested runoff. Potential supporting
partners, amongst others, include: National Association of State
Foresters, National Association of Conservation Districts, Western, and
Southern Governor's Associations, Issak Walton League, Ducks Unlimited,
The Nature Conservancy, Defenders of Wildlife, Wildlife Management
Institute and Environmental Protection Agency.
Outcomes
Maintaining water quality and restoring degraded streams and
watersheds on private lands requires new and expanded roles for State
Foresters and Cooperative Forestry. Millions of private forest
landowners and thousands of communities are ready to take action.
Through this initiative new partnerships between Federal and State
officials, forest managers, and local communities and organizations can
be realized. These efforts will result in:
restoration of thousands of miles of stream and critical
fish habitat,
protection of the drinking water supply for millions of
Americans,
rehabilitation of degraded urban and agricultural
watersheds, and
appreciation of the full value of trees and forests in
maintaining healthy watersheds and clean water in the future.
Budget
------------------------------------------------------------------------
Budget (In
Program Actions millions of
dollars)
------------------------------------------------------------------------
Watershed and Clean Water Grants..................... 15.0
Watershed Coordinators/Planning...................... 5.0
------------------
Total Budget..................................... 20.00
------------------------------------------------------------------------
______
STATEMENT OF RICHARD A. PARRISH, SOUTHERN ENVIRONMENTAL
LAW CENTER
INTRODUCTION
Good afternoon, Mr. Chairman and members of the subcommittee. My
name is Rick Parrish. I am an attorney with the Southern Environmental
Law Center, a non-profit environmental advocacy group that works to
protect public health and the environment in a six-State portion of the
Southeast. I appreciate the opportunity to discuss with you today EPA's
recent efforts to revitalize the Clean Water Act's watershed
restoration or ``Total Maximum Daily Load'' (TMDL) program, especially
the impacts and costs of proposed rules on State and local governments
and communities.
EPA's proposed TMDL rules will certainly have an impact on State
and local governments and communities. There will undoubtedly be some
additional costs imposed upon State and local governments by the
proposed rules, but I believe the vast majority of costs attributed to
these rules would more accurately be assigned to the TMDL rules that
have been in place for the last 15 years and almost universally ignored
by State and local governments, which raises the interesting question
whether we have learned anything from that history of conscious
disregard of the TMDL program. More importantly from my point of view,
the proposed rules would have an enormous beneficial impact on
communities across the country, financial and otherwise, as we begin to
take the steps that are necessary to restore the worst polluted waters
in the nation. Before looking at some of the costs and benefits of the
proposed rule, I would like to highlight the following fundamental
areas of general agreement about the TMDL program.
Clean water and healthy aquatic ecosystems are of vital
concern to the American public, now as in 1972 when the Clean Water Act
was passed.
Almost 28 years after passage of the Clean Water Act,
nearly 40 percent of the waters that are assessed nationwide remain
impaired, that is, too polluted for fishing, swimming, and other
designated or actual uses, including aquatic habitat.
States and EPA estimate that more than 20,000 water body
segments are impaired, often by more than one pollutant, with the
result that 40,000 TMDL-based clean-up plans will be required.
State monitoring programs cover only about one-third of
our nation's waters. Even though new or better data will likely show
that some currently listed waters do not, in fact, need TMDLs, the
number of impaired waters nationwide is likely to increase as water
quality monitoring programs expand in coverage.
The watershed approach to water quality planning and
management is generally recognized as the most equitable and efficient
method of protecting and restoring water quality, and the TMDL process
is generally considered the technical backbone of that watershed
approach.
The TMDL program as currently designed is not succeeding
in restoring water quality in impaired waters.
We cannot afford to wait for perfect data and a perfect
understanding of the interaction between pollutants and the aquatic
ecosystem before taking steps to correct serious water pollution
problems.
The States and EPA generally agree that non-point source
activities are responsible for a majority of the impaired waters
nationwide.
There is general agreement that additional funding will be
required at the local, State, and Federal level for the TMDL program to
succeed nationwide. At the same time, there will likely be added costs
if cleanups are delayed further, both in terms of the eventual expense
of restoring water quality and the opportunity costs associated with
reduced use, enjoyment and productivity of polluted waters.
The overriding goal of the Clean Water Act was ``to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.'' While much progress has been made, especially with
regard to the discharge of pollution from pipes and other point
sources, the sad truth is that 40 percent of our nation's waters are
still considered too polluted to be used for their intended purposes,
including fishing, swimming, drinking, or as aquatic habitat. Section
303(d) of the Clean Water Act contains the one program specifically
designed to deal with these impaired waters, the TMDL program. Section
303(d) requires States to identify their worst polluted waters and
develop cleanup plans based on the calculation of the Total Maximum
Daily Loads of particular pollutants that the water can accommodate. If
States fail in these tasks, the duties revert to EPA. Designed to give
States the primary role in cleaning up polluted waters, the TMDL
program was largely ignored by States and EPA alike for over 20 years.
In recent years, partly as a result of a wave of lawsuits filed by
environmental groups, EPA has begun taking steps to implement the TMDL
program to clean up the worst polluted waters in the country.
In my view, the single most significant step EPA has taken to
revitalize the TMDL program is the proposal of rules that, for the most
part, clarify and strengthen the requirements of the TMDL program. I
believe that the heart of the proposed rules, the requirement that an
implementation plan be developed as part of the TMDL itself, has the
best chance of converting this watershed restoration initiative from a
program marked by neglect and wasted effort to one marked by
productivity and accomplishment over the years to come.
EARLY FAILURE OF TMDL PROGRAM
The TMDL program lay dormant until the late 1980's when
environmentalists starting filing citizen suits against EPA for
allowing States to ignore their obligations to prepare lists of
impaired waters and TMDL-based watershed recovery plans under
Sec. 303(d). An Illinois case, Scott v. City of Hammond, established
the principle that the State's failure to submit lists and TMDLs
triggered EPA's mandatory duty to step into the void. At this point,
EPA has been sued in over half the States in the country for allowing
the TMDL program to languish. In all but one such case (Minnesota),
environmentalists have either won in court or negotiated a favorable
settlement.
At the same time the litigation was occurring, State and Federal
regulators were moving toward a watershed approach to water quality
planning and management. EPA had issued TMDL regulations in 1985,
modified them in 1992 to require State submittal of 303(d) lists every
other year, and produced a series of programmatic guidance documents
and policy statements throughout the 1990's to clarify how States
should compile their 303(d) lists and develop their TMDL programs.
Finally, in 1996, EPA convened a formal advisory committee to recommend
ways to strengthen the TMDL program generally.
ADVISORY COMMITTEE RECOMMENDATIONS
In 1996, EPA formed an advisory committee under the Federal
Advisory Committee Act (FACA) composed of 20 members representing point
source and non-point source industries, State, local, and tribal
governments, the environmental community and others. This TMDL advisory
committee, on which I served, issued a report in the summer of 1998
containing over 150 recommendations on ways to strengthen and improve
the TMDL program. Most of those recommendations were based on consensus
agreement among the members of the committee, but others did not
receive the support of the full committee, and there were several
important issues on which the committee could not agree at all.
Foremost among the issues with the full support of the advisory
committee was the notion that implementation was the key to the
eventual success of the TMDL-based watershed restoration program. The
advisory committee was unanimous in the sense that without
implementation, TMDLs were hardly worth the time and effort.
I believe the most important lesson to be derived from the efforts
of EPA's TMDL advisory committee was that representatives of the
various constituencies most affected by and concerned with the TMDL
program agreed, for the most part, on a series of recommendations for
strengthening that program. No single member agreed with all
recommendations, and there were important issues left unresolved. But
this was an important demonstration of how government, industry,
environmentalists and others could work together to develop better ways
of solving long-standing and important environmental problems.
SOME COSTS AND BENEFITS OF THE PROPOSED RULES
In August of last year, EPA finally published in the Federal
Register proposed rules intended to clarify and strengthen the TMDL
program. The proposed rules retain the fundamental approaches of the
TMDL program--especially the primary role reserved to the States--but
add significant detail about how States should manage the program. The
one change that has brought the most attention is the proposed
requirement of an implementation plan as part of the TMDL-based
watershed
recovery plan that States submit to EPA for review and approval. While
the environmental community is not of one mind about the merits of the
proposed rules, I
believe the inclusion of an implementation plan alone could have the
effect of converting what has largely been a paper exercise to one that
has some chance of actually succeeding in cleaning up the nation's
worst polluted waters.
In light of intense criticism from virtually all quarters, I think
it's safe to say that no constituency is satisfied with EPA's proposed
rules. Indeed, some consider that a sign that EPA has struck a
reasonable balance among competing interests, though the only real
measure of these rules is whether they would speed the clean-up our
nation's polluted waters. Environmentalists generally are concerned
that the schedules are too long and contain no deadlines; that the
offset provision, despite some strengths, contains loopholes that could
render it meaningless and ineffective; that the failure to require
TMDLs for waters impaired only by ``pollution,'' such as conditions of
reduced instream flow, condemns such waters to continued degradation;
and that the petition process is unnecessary and destructive of what
little trust has been earned on this issue. State governments, even
those with sincere commitments to cleaning up polluted waters, are
concerned about the resources necessary to develop and implement TMDLs,
including for increased monitoring and other data collection. Point
source industries and municipalities are concerned that they will have
to shoulder an unfair burden by reducing their discharges even further
than they have already, and with the potential impact that limiting new
or additional discharges might have on economic growth and development.
Non-point sources fear the introduction of Federal regulatory controls,
though EPA has gone to great lengths to explain that no such additional
controls are proposed, with the possible exception for previously
unregulated point source discharges from forestry operations.
It is understandable that State and local governments are concerned
with the cost of complying with EPA's proposed rules. Yet, if States
had taken seriously their responsibility to restore polluted waters
under the TMDL program over the past 15-20 years, they would not be
facing the burden of developing and implementing cleanup plans for all
such waters over the coming 10-15 years. Even now, the problem may be
more an issue of priorities than availability of funding. Indeed, if
States paid as much attention to restoring polluted waters as they do
to permitting additional discharges, we would be significantly farther
down the path to cleanup.
Despite this resistance from most States, EPA is proposing
significant increases in Federal funding for State TMDL programs
(additional $45 million) and State non-point source pollution control
programs (additional $50 million) in its fiscal year 2001 budget
primarily to meet these new obligations. This is a considerable boost
to a program that would still allow up to 15 years for States to
develop watershed recovery plans.
While the cost of restoring polluted waters may be high, the cost
of further inaction and additional delay--cost to the economy, cost to
the resource--will be even higher. And we should not ignore the equally
real, if more difficult to determine, benefits of cleaning up polluted
waters--again, benefits to the economy and to the resource. In the end,
however, we are left with many more questions than answers about the
fiscal impact of water pollution and the proposed TMDL rules, questions
such as the following:
What is the cost to State and local governments of
restricting development on polluted waterways?
What are the costs of polluted waters to the tourism and
recreation industries?
What is the cost to the multi-billion dollar sport fishing
industry in the upper Midwest of fisheries contaminated by mercury and
other pollutants?
What is the cost in terms of public health of drinking
water contaminated with cryptosporidium, swimming in waters
contaminated with fecal coliform bacteria, or consuming fish
contaminated with persistent bioaccumulative chemicals?
What is the value of an endangered salmon species in the
northwest, or an endangered freshwater mussel in the southeast, that
might be saved through steps taken partly as a result of the TMDL
program?
What is clean water worth?
Virtually all parties, including EPA, are concerned about having
the resources to develop and implement TMDLs across the nation.
Proposed increases in EPA's TMDL budget and other Federal funds for
non-point source programs will certainly help. I believe, however, that
Congress will have to recognize that the restoration of water quality
across this country, so strongly supported by the American people, is
unlikely to be achieved without this additional funding and perhaps
more.
We can be absolutely certain of one thing, however. If we wait
until adequate resources are identified and committed to the task of
restoring our worst polluted waters, we will never succeed. And that,
Mr. Chairman, is simply unacceptable to the vast majority of Americans
who still want our dirtiest waters cleaned up and maintained as clean,
healthy rivers, lakes and streams.
CONCLUSION
I believe that EPA's proposed rules represent the best chance of
moving this program forward. Without implementation plans, TMDLs have
proven largely to be a waste of taxpayer money. More importantly, they
have been largely ineffective in restoring our most polluted waters to
healthy condition. Our best hope for attaining the lofty goals of the
1972 Clean Water Act, restoring the chemical, physical, and biological
integrity of our nation's waters, is in moving forward with a TMDL
program that has some chance of actually succeeding. EPA's proposed
rules represent a significant step in that direction.
______
STATEMENT OF AMERICAN SOCIETY OF CIVIL ENGINEERS
Mr. Chairman and members of the subcommittee: The American Society
of Civil Engineers (ASCE) is pleased to submit this statement for the
record on the projected revisions to the water quality planning and
management regulation governing Total Maximum Daily Loads (TMDLs) that
was proposed by the Environmental Protection Agency (EPA) last year.
See Proposed Revisions to the Water Quality Planning and Management
Regulation, 64 Fed. Reg. 46,011 (Aug. 23, 1999) (to be codified at 40
C.F.R. Part 130). ASCE remains deeply concerned about the protracted
implementation schedule in the proposed regulation, believing it to be
in violation of the Clean Water Act.
ASCE was founded in 1852 and is the country's oldest national civil
engineering organization. It represents more than 123,000 civil
engineers in private practice, government, industry and academia who
are dedicated to the advancement of the science and profession of civil
engineering.
The Society's diverse members are directly concerned with the
proposed changes to the water quality planning and management
regulations in their professional practice areas. Among those areas are
environmental engineering, water resources engineering and water
resources planning and management. ASCE is a non-profit educational and
professional society organized under part 1.501 (c)(3) of the Internal
Revenue Service rules.
A. STATUTORY AND REGULATORY BACKGROUND
The Federal Water Pollution Control Act, or Clean Water Act, is the
principal law governing pollution in the nation's streams, lakes, and
estuaries. 33 U.S.C.A. 1251-1387 (West 2000). The Act has three major
elements. First, States must set water quality standards to protect
``designated uses'' of certain bodies of water; the standards then are
used to effluent limits for individual sources. Next, the Federal
Government is required to set industrywide, technology-based effluent
standards for dischargers. Finally, all dischargers must obtain a
permit issued by the Federal Government or authorized States that
specifies discharge limits under the National Pollutant Discharge
Elimination System (NPDES) program. The discharge limits essentially
are the stricter of the water-quality-based limit and the technology-
based limit.
The Act's regulatory provisions impose progressively more stringent
requirements on industries and cities in order to meet the statutory
goal of zero discharge of pollutants, and it authorizes Federal
financial assistance for municipal wastewater treatment construction.
Industries were to meet pollution control limits first by use of
``Best Practicable Technology'' and later by improved ``Best Available
Technology'' (BAT). Cities were to achieve secondary treatment of
municipal wastewater (roughly 85 percent removal of conventional
wastes), or better if needed to meet water quality standards.
Sometimes, however, the use of BATs does not result in the reduction of
pollutant loads in a body of water. In those cases, the Act requires
the EPA and the States to establish the ``total maximum daily load''
for a body of water.
All of the Act's programs are administered by the EPA, while State
and local governments have major day-to-day responsibility for
implementing the law. More than 40 States currently are authorized to
issue NPDES permits. Nevertheless, various Federal agencies continue to
invest heavily in the pollution-control programs under the Clean Water
Act. ``[T]otal Federal annual spending for nonpoint-related programs
remained relatively constant from fiscal year 1994 through fiscal year
1998 at about $3 billion, although obligations among some programs
increased significantly during this period.'' U.S. General Accounting
Office, Water Quality: Federal Role in Addressing and Contributing to
Nonpoint Source Pollution (1999).
Section 303(d) of the Act, 33 U.S.C.A. 1313(d), requires States to
identify pollution-impaired water segments and develop ``total maximum
daily loads'' (TMDLs) that set the maximum amount of pollution that a
water body can receive without violating water quality standards. The
Act imposes a mandate on the States to identify waters that cannot meet
Federal effluent limitations and to establish TMDLs for pollutants
identified by the EPA. If a State fails to identify its impaired waters
or establish the required TMDLs, the EPA must do so. The first listed
waters and TMDLs were due to the EPA in mid-1979, or 180 days after the
Agency published the first list of pollutants regulated under section
303(d).
A TMDL includes a quantitative assessment of water quality
problems, pollution sources, and pollution reductions needed to restore
and protect a river, stream, or lake. TMDLs may address all pollution
sources, including point sources such as sewage or industrial plant
discharges, nonpoint sources, such as runoff from roads, farm fields,
and forests, and naturally occurring sources, such as runoff from
undisturbed lands. If a State fails to develop TMDLs, the EPA is
required under section 303(d) to develop a priority list for the State
and establish a Federal TMDL for the impaired body of water.
The TMDL program, in effect, helps the various government agencies
to identify impaired waters and, after the application of BATs fails to
control pollutants, establish priorities for their protection through
the formation of plans to manage excess pollutants entering the
affected bodies of water. The EPA's water programs and their State
counterparts are increasingly emphasizing watershed and water quality-
based assessment and integrated analysis of point and nonpoint sources.
Better Assessment Science Integrating Point and Nonpoint Sources
(BASINS) is a [modeling] system developed to meet the needs of . . .
agencies. It integrates a geographic information system (GIS), national
watershed data, and state-of-the-art environmental assessment and
modeling tools into one convenient package. Originally released in
September 1996, BASINS addresses three objectives: (1) to facilitate
examination of environmental information, (2) to provide an integrated
watershed and modeling framework, and (3) to support analysis of point
and nonpoint source management alternatives. It supports the
development of TMDLs, which require a watershed-based approach that
integrates both point and nonpoint sources.
U.S. EPA, BASINS 2.0
Section 305(b) requires States to prepare a water quality inventory
every 2 years to document the status of water bodies that have been
assessed. Under section 304(1), States identified all surface waters
adversely affected by toxic (65 classes of compounds), conventional
(such as BOD, total suspended solids, fecal coliform, and oil and
grease), and nonconventional (such as ammonia, chlorine, and iron)
pollutants from both point and nonpoint sources. Under section 314(a),
States identify publicly owned lakes for which uses are known to be
impaired by point and nonpoint sources.
The TMDL program is technically complex and largely dependent upon
the States for implementation. When TMDLs are established, wastewater
treatment plants for communities and industry may need new technology.
States and EPA enforce the TMDLs through permits which include the
pollutant limits and a schedule for compliance. For waters impaired by
nonpoint source runoff, because there are no Federal controls over
these sources under the Clean Water Act, the primary implementation
measures will be State-run nonpoint source management programs coupled
with State, local, and Federal land management programs and
authorities. See 33 U.S.C.A. 1329.
Most States have lacked the money to do TMDL analyses, which
involve a complex assessment of point and nonpoint sources and
mathematical modeling. Moreover, the cost of reducing the pollutants
may become a factor. `` [A] large number of the nation's waters cannot
meet water quality standards with point-source control alone. In some
cases, it may be cost prohibitive to reduce point-source loading
further.'' Carl W. Chen et al., Decision Support System for Total
Maximum Daily Load, 125 J. of Envtl. Engineering 653 (1999).
Meanwhile, the EPA has been reluctant to interfere with the States
to move the TMDL program along The Agency also appears to have lacked
the resources to do the TMDL analyses itself. Congressional
commentators therefore have noted critically that there has been little
implementation by the EPA or the States of the TMDL provision since
1979.
Illustrative of this point is the fact that in recent years,
national and local environmental groups have filed more than 20
lawsuits against EPA, claiming the Agency has failed to fulfill its
Clean Water Act requirements. The EPA is concerned about diverting
agency resources from other high-priority water quality activities in
order to meet the courts' orders, especially if other lawsuits yield
similar results. In October 1996, the EPA created an advisory committee
to solicit advice on the TMDL implementation problem. Recommendations
from the advisory committee, received in July 1998, form much of the
basis for the current TMDL rulemaking.
In 1997, the EPA Office of Water issued guidelines to the Agency's
regional administrators in an effort to give greater impetus to the
TMDL program. According to those guidelines, ``If a State fails to meet
its obligations under section 303(d), [the EPA regional offices] will
need to step in. However, it is my goal that every State will succeed
in fully meeting the requirements of section 303(d) and taking the
needed action to implement approved TMDLs.'' Memorandum from Robert
Perciasepe, Assistant Administrator for Water, to Regional
Administrators, New Policies for Establishing and Implementing Total
Maximum Daily Loads (TMDLs) (Aug. 8, 1997) (emphasis in original) .
Despite the issues and lack of progress in implementing the 1972
requirements, it is not clear at this point whether Congress will
reauthorize the Clean Water Act in the 106th Congress in order to
address the TMDL matters. But it is, of course, entirely up to Congress
to determine which changes, if any, are needed in the current TMDL
program.
B. PROPOSED REVISIONS TO THE PART 130 REGULATIONS
The EPA carries out the TMDL program under the Part 130 regulations
(Water Quality Planning and Management). 40 C.F.R. Part 130. The
overall purpose of the current water quality management program is to
establish Federal policy requirements for water quality planning,
management and implementation under the Clean Water Act. The Agency
intends the management process is to be ``a dynamic one, in which
requirements and emphases vary over time.'' The TMDL program creates a
process for identifying water-quality limited segments that require
waste-load allocations under the NPDES permit program.
``A TMDL is established to attain or maintain the water quality
standard for a specific pollutant that has been identified as the cause
of an impairment or threat to a water body.'' See 64 Fed. Reg. at
46,030. States must set their TMDLs ``at levels necessary to meet water
quality standards[,] with seasonal variations and a margin of safety
that takes into account any lack of knowledge concerning the
relationship between pollutant loads and water quality.'' See id.
In the proposed rule, the EPA announces nine major changes to the
current regulatory scheme under Part 130. The proposal would:
Revise definitions of ``TMDL,'' ``wasteload allocation,''
and ``load allocation.''
Amend definitions of ``impaired water body,'' ``threatened
water body,'' ``pollution,'' ``pollutant,'' ``reasonable assurance''
and ``water body'' that clarify EPA's existing interpretation of these
terms.
Add a new requirement for a more comprehensive list and a
new format for the list.
Add a new requirement that States, territories and
authorized Tribes establish and submit schedules for establishing TMDLs
for all water bodies impaired or threatened by pollutants.
Establish a new requirement that the listing methodologies
developed by States, territories and authorized Tribes be more
specific, subject to public review, and submitted to EPA on January 31
of every second, fourth or fifth year.
Create a possible change in the listing cycle so that
States, territories and authorized Tribes submit lists to EPA on
October 1 of every second, fourth or fifth year beginning in the year
2000.
Make it clear that TMDLs include 10 specific elements.
Create a new requirement for an implementation plan as a
required element of a TMDL.
Establish new public participation requirements.
On the same date that the Agency proposed to amend the TMDL
regulation, the EPA proposed a regulation to revise the National
Pollutant Discharge Elimination System (NPDES) program to strengthen
the overall Federal water quality management program. See Revisions to
the National Pollutant Discharge Elimination System Program and Federal
Antidegradation Policy in Support of Revisions to the Water Quality
Planning and Management Regulation, 64 Fed. Reg. 46,058 (Aug. 23, 1999)
(to be codified at 40 C.F.R. parts 122, 123, 124 and 131). This
regulation would allow the Agency to object to a State's decision to
allow an NPDES permit to lapse for discharges into impaired bodies of
water with or without TMDLs. Specifically, the rule would spell out the
Agency's ``discretionary authority to object to, and reissue, if
necessary, State-issued expired and administratively continued permits
authorizing discharges into water bodies in the absence of an EPA[-
]approved or [-]established TMDL.'' Likewise, it also would grant the
Agency the discretion to issue NPDES permits for discharges into
impaired bodies of water with established TMDLs. It needs to be
stressed that the second proposed rule would not mandate a particular
EPA regulatory response under the first proposed rule in the absence of
specific TMDLs for discrete bodies of water in any State, regardless of
the legal status of a discharge permit for given pollutants, however.
Additionally, the EPA has attempted in the August 23 proposed
rulemaking to get at the remaining sources of pollution under the Act's
section 319 management program for Nonpoint sources of pollution. These
sources include agricultural runoff, which the Agency has identified in
its most recent 305(b) report to Congress as one of the last remaining
sources of unregulated pollution in the nation's lakes and rivers. See
U.S. Environmental Protection Agency, The Quality of Our Nation's
Waters: Water Quality Report to Congress (1998).
Critical to this effort to move TMDLs into the area of watershed
protection is section 304(f), which requires the EPA to issue
guidelines on how to identify and evaluate the extent of Nonpoint
sources of pollutants and methods to control them, including pollution
resulting from ``agricultural and silvicultural activities, including
run off from fields and crop and forest lands; . . .'' See 33 U.S.C.A.
1314(f) (emphasis added). Thus, farmers, ranchers and other sources of
Nonpoint discharges may be asked to use alternative methods in their
operations to prevent fertilizers and pesticides from reaching rivers.
See Congressional Research Service, Clean Water Act and TMDLs (1997).
It is for this reason that ``[t]he TMDL issue has been controversial,
in part because of requirements and costs now facing States to
implement this provision of the law. Industries, cities, farmers, and
others may be required to use new pollution controls to meet TMDL
requirements.'' See Congressional Research Service, Clean Water Act
Reauthorization (1999).
C. THE PROPOSED TMDL RULE WOULD DELAY THE COMPLETION OF THE TMDL
PROCESS FOR MANY YEARS IN VIOLATION OF THE CLEAN WATER ACT
One of ASCE's principal criticisms of the current TMDL program is
the slowness with which States have developed their TMDLs. ASCE
believes that the August 23 proposed rule on TMDLs would exacerbate the
problem of long delays in the implementation of the program. The fact
that the EPA might invoke the requirements of the second proposed
rulemaking of August 23 and issue NPDES permits for those impaired
waters where no TMDLs have been established in effect bypassing the
requirements of section 303(d) could not solve the Agency's long-term
problem caused by the lack of the lawful TMDLs, which are required by
the Act. Nor could it provide any greater protection for human health
and the environment. From a purely environmental perspective, the TMDLs
are designed to help identify impaired waters in the first place: if
there are no TMDLs, how is the EPA to know where to begin to issue or
reissue permits? Without TMDLs there is no way for Federal or State
regulators to set priorities or even to know which water bodies are
most seriously impaired.
The EPA, then, must return to section 303(d) to establish rational
answers to the national problem of impaired water bodies. We wish to
stress that the requirements of section 303(d) are imperative, not
discretionary; the section creates a positive duty which the States
and, in their failure to act, the EPA were bound to obey expeditiously.
The passage of nearly 30 years does not lessen the force of the
mandate.
Although a great many routine administrative matters are committed
to an agency's discretion, including a limited power to not enforce
existing regulations, ``Congress did not set agencies free to disregard
legislative direction in the statutory scheme that the agency
administers.'' Heckler v. Chaney, 470 U.S. 821, 833 (1985). A reviewing
court, moreover, will uphold the deadlines established in an act of
Congress absent specific language in the law granting an agency the
flexibility to postpone a congressionally mandated regulatory
requirement.
The mandatory nature of the TMDL requirements is beyond dispute.
See, e.g., Scott v. Hammond, 741 F.2d 992, 998 (7th Cir. 1984) (holding
that the Clean Water Act ``undoubtedly imposes mandatory duties on both
the States and the EPA''); Alaska Center for the Environment v. Reilly,
762 F. Supp. 1422, 1429 (1991) (``Section 303(d) expressly requires the
EPA to step into the States' shoes if their TMDL submissions or lists
of water quality limited segments are inadequate'') aff'd sub nom.
Alaska Center for the Environment v. Browner, 20 F.3d 981 (9th Cir.
1994); Defenders of Wildlife v. Browner, 909 F. Supp. 1342 (1995)
(same); Natural Resources Defense Council v. Fox, 909 F. Supp. 153
(1995) (same); Sierra Club v. Hankinson, 939 F. Supp. 865 (1996)
(same); Raymond Profitt Foundation v. EPA, 930 F. Supp. 1088 (1996)
(same); and Idaho Conservation League v. Browner, 968 F. Supp. 546
(1997) (same). See also Idaho Sportsmen's Coalition v. Browner, 951 F.
Supp. 962 (1996) (the ``extreme slowness'' of the EPA's proposed 25-
year schedule for implementing TMDLs in Idaho would violate the Clean
Water Act). EPA is under court order via consent decrees in at least 18
cases to complete TMDLs in 16 States. See U.S. Environmental Protection
Agency, Total Maximum Daily Load Program, Overview of TMDL Cases (9/1/
99).
The failure of the States to complete the program has been the
subject of protracted litigation in Georgia, New York, California,
Alaska and other States. Ironically, it was the States that urged
adoption of the TMDL requirements, see Oliver A. Houck, TMDLs IV: The
Final Frontier, 29 envtl. l. rep. 10,469 (1999). In addition, as one
critic has noted,
``[T]he States have badly breached their responsibilities to
identify waters that remain polluted and then to promulgate
total maximum daily loads (TMDLs) for these waters under 303(d)
of the Act. The TMDL process is a crucial mechanism for
ratcheting down levels of pollution in watercourses that fail
to meet water quality standards despite the application of
technology-based controls to point sources. The goal of the
TMDL process is the central goal of the Clean Water Act to
deliver truly clean water to Americans by identifying the
additional controls that must yet be made to point and nonpoint
sources in order to render waters suitable for uses such as
fishing and swimming. Despite the importance of the TMDL
process and the plain obligations it imposes on the States, the
States have generally sought to avoid their duties in this area
in an ignoble way. As one recent commentator put it, ` The
States have been all in favor of the responsibility for
regulating water pollution through their water quality
standards, right up to the point that they had to do it.' ''
Drew Caputo, A Job Half Finished: the Clean Water Act After 25
Years, 27 Envtl. L. Rep. 10,574 (1997) (emphasis added).
Moreover, the States' failure to carry out the TMDL program
regardless of the reasons for their dereliction does not free the EPA
from the responsibility of filling the gap left by the States in the
regulatory scheme established by Congress. To fail to do so would be to
allow the States the power to invalidate an act of Congress through
inaction. Yet despite the abundant case law, the unambiguous mandate of
section 303(d) and the fact that the EPA knows the TMDL program has
moved at a ``historically low'' pace, the Agency's 1997 guidelines and
proposed rule can only delay things further. The guidelines could well
push the completion of the program even farther into the future by
asking not requiring the States to develop their TMDLs over the next 13
years, beginning with program submissions in 1998. See Perciasepe
Memorandum, supra (``These State schedules should be expeditious and
normally extend from eight to 13 years in length, but could be shorter
or slightly longer depending on State-specific factors.'').
The TMDL rulemaking may well compound the problem of implementation
for the future in other ways as well. Significantly, the proposed rule
would remove from the Part 130 regulations the current EPA-imposed
requirement that States identify the bodies of water for which TMDLs
will be established in the 2 years immediately following a decision to
set priority rankings for their impaired waters. Instead, the Agency
would substitute a requirement that the States establish TMDL schedules
``as expeditious[ly] as practicable,'' but not less than 15 years after
the August 23 rule is promulgated. 64 Fed. Reg. at 46,027. Finally, the
EPA ``recommends'' that States should make it their ``goal'' to
establish TMDLs for their impaired waters within 5 years of the
effective date of the revised Part 130 standards. Taken together, these
steps do not appear to be picking up the TMDL program pace appreciably.
Therefore, despite the States' admittedly poor showing over the
past 20 years, we continue to believe that the Agency should keep
strict compliance deadlines in the Part 130 regulations. We are
concerned that by eliminating the current deadlines in Part 130 and by
authorizing a further slowdown of up to 13 years (as in the 1997
guidance) the EPA is sending the wrong signal to the States,
potentially letting them off the Act's strict water-quality hook for
many years and providing them with a legal excuse for additional,
wholly unnecessary regulatory delays. Assuming that all States were to
take until 2011 to complete their TMDL calculations, that would mean
the program would not be in place nationwide until nearly 40 years
after the TMDL requirement was enacted in 1972 and more than 30 years
after the 1979 deadline triggered under section 303(d)(2).
Nothing in the Clean Water Act supports the proposition that
Congress authorized or intended for the EPA or the States to delay the
implementation of the TMDL program for decades after enactment. Indeed,
the language of section 303 requires the States to adopt water quality
standards, which must precede the adoption of TMDLs, 6 months after
enactment, i.e., no later than April 1973. 33 U.S.C.A. 1313(a)(3)(A).
With the science and engineering readily available to complete the
program rapidly, there is no technical reason for continued delays.
For the foregoing reasons, we believe that Congress must make
certain that the Agency establishes and enforces a strict schedule for
the States to complete the implementation of their TMDL programs. We
suggest that Congress amend the Clean Water Act to ensure that the
Agency's recommended 5-year ``goal'' proposed on August 23 be in the
form of a new, mandatory TMDL deadline. At the same time, we believe
that Congress must conduct vigorous oversight of the TMDL program to
guarantee that the EPA moves expeditiously to adopt State TMDLs in the
absence of rapid Federal or State implementation of the proposed
rulemaking.
D. THE EPA IS CORRECTLY ATTEMPTING TO USE THE TMDL PROGRAM TO REDUCE
THE DISCHARGE OF POLLUTANTS INTO WATERSHEDS FROM NONPOINT SOURCES
The goal of the Clean Water Act is ``to restore and maintain the
chemical, physical and biological integrity of the Nation's waters.''
33 U.S.C.A. 1251(a) (West 1999). One of the Act's stated objectives is
to eliminate ``the discharge of toxic pollutants in toxic amounts.''
Id. 1251(a)(3). Significantly for the present rulemaking, the Act
specifically authorizes ``programs for the control of nonpoint sources
of pollution'' and requires them to be developed as expeditiously as
possible. Id. 125(a)(7).
As noted above, the EPA intends to use the TMDL program to focus on
the management of point and nonpoint sources of pollution throughout a
given watershed.
The TMDL specifies the amount of a pollutant that needs to be
reduced so that the waterbody will achieve State water quality
standards, allocates reductions in the pollutant or pollutants among
the sources in a watershed, and provides a guide to taking on-the-
ground actions needed to restore a waterbody. TMDLs can focus on a
small segment of a waterbody or on a group of waters in a larger
watershed.
See Review of the Environmental Protection Agency's New
Agricultural and Silvicultural Regulatory Programs: Hearing Before the
Subcomm. on Department Operations, Oversight, Nutrition and Forestry of
the House Comm. on Agriculture, 106th Congress 83 (1999) (statement of
J. Charles Fox, Assistant Administrator for Water, Environmental
Protection Agency) (emphasis added) (hereinafter House Agriculture
Oversight Hearing).
Indeed, the Agency makes it clear that all potential pollutant
sources already are subject to the TMDL program under current EPA Part
130 regulations. ``TMDLs are established [under current rules] for
water body and pollutant combinations for water bodies impaired by
point sources, nonpoint sources, or a combination of point and nonpoint
sources.'' 64 Fed. Reg. at 46,013 (emphasis added). To date, no
nonpoint sources have been regulated as point sources under the
National Pollutant Discharge Elimination System (NPDES). The August 23
proposal merely would extend some wasteload allocations for impaired
water bodies to apply to a single point source or group of point
sources that already are subject to a general NPDES permit. Id. at
46,016. These aggregate allocations covering permitted point sources
are a sensible solution to the problem of managing runoff from multiple
sources, none of which is easily identifiable by itself. This is a long
way from saying that nonpoint sources would themselves be subject to an
NPDES permit, however. Indeed, nonpoint sources will be subject to
nothing more stringent than nonregulatory, cost-effective ``best
management practices'' (BMPs) to prevent runoff in the first place,
according to the Agency's August 23 proposed revisions to water quality
management plans. See 64 Fed. Reg. at 46,052-46,053. Possible BMP
prevention measures could include curbs, dikes, water bars, vegetative
ground cover to prevent erosion, rotational grazing, crop rotation, in-
paddock livestock feeding and watering, better calculation of
fertilizer and pesticide needs, ditch stabilization and a number of
other affordable runoff control means.
Nevertheless, critics in Congress, the States and industry have
attacked this BMP approach as wrong, arguing that the EPA may not
extend the TMDL program under the State-delegated powers in section 319
to reach any nonpoint sources in order to moderate the impact of runoff
from farms and forests, no matter how indirect or benign the proposed
regulatory regime. See, e.g., House Agriculture Oversight Hearing at 7
(statement of Rep. Goodlatte) (``I sincerely doubt that the EPA will be
able to prove . . . that they have [sic] the statutory authority to
implement the regulations we are reviewing today.''); at 18 (statement
of John Barrett, Texas cotton farmer); and at 25 (statement of Arthur
R. Nash Jr., Deputy Director, Michigan Department of Environmental
Quality) (criticizing the TMDL proposal for failing to establish a
Federal-State partnership). It has even been argued that the EPA may
not identify those waters that have been impaired by nonpoint sources.
Id. at 106.
Such criticisms are unwarranted. One of the central purposes of the
Act is to control nonpoint sources of pollution from whatever source.
To be sure, section 319 of the Act, added by Congress in 1987, requires
the States to implement management programs for nonpoint sources of
pollution. The Federal presence under section 319 is weak and almost
entirely passive. To make matters worse, Congress chronically has
underfunded the section 319 programs. See Note, Agriculture, Nonpoint
Source Pollution, and Regulatory Control: The Clean Water Act's Bleak
Present and Future, 20 harv. envtl. l. rev. 515, 526 (1996).
Nevertheless, Congress recognized the need for some action to regulate
nonpoint sources. Thus, a key element of the section 319 management
program is the information developed under the water quality standards
provisions of section 303. And of course the law requires the Agency
not the States to issue guidelines on the best way to identify nonpoint
sources of pollution. See 33 U.S.C.A. 1314(f). One type of pollutant
that is specifically to be regulated under the Act is ``agricultural
waste discharged into water.'' Id. at 1362(6).
ASCE believes that one should not read section 319 in isolation in
order to shield nonpoint sources from BMPs or to prevent the EPA from
otherwise seeking to ease the worst effects of nonpoint sources of
pollution based upon a watershedwide approach under the section 303(d)
TMDL program. It is a well-established maxim of statutory
interpretation that every act of Congress must be read in its entirety
in order to give effect to a coherent regulatory scheme. Acts of
Congress ``should not be read as a series of unrelated and isolated
provisions.'' Gustafson v. Alloyd Co. 513 U.S. 561, 570 (1995). Read in
their entirety, the provisions of the Act require the EPA to oversee
the implementation of State pollution control measures for nonpoint
sources and to intervene aggressively in their absence.
In any case, the States cannot now plausibly argue that their
failure over the past 30 years to adopt the protective watershed
protection measures required under section 303 somehow entitles them to
greater deference to deal with agricultural runoff and other nonpoint
pollution sources under their section 319 authority. The State
management programs under section 319 are highly dependent upon the
information developed in the section 303 planning process. If the
Federal-State partnership has been threatened at all, it has been
jeopardized by the States' delinquency in implementing the TMDL program
enacted in 1972.
E. THE EPA SHOULD IMPROVE THE SCIENTIFIC VALIDITY OF TMDLS BY ADOPTING
A NEW METHOD OF CALCULATING THE LOADS IN ORDER TO PROMOTE THEIR USE ON A WATERSHED BASIS
ASCE supports the use of a watershed management program to protect
critical water bodies. The Society believes the EPA should consider the
adoption of a decision support system to calculate total maximum daily
loads and agrees that the Agency should redefine them in order to
identify what a TMDL is and what it must contain. We believe these
changes would provide greater regulatory clarity, encourage the use of
TMDLs and ensure greater consistency among States, territories and
authorized Tribes in the use of TMDLs so that the program may protect
entire watersheds where necessary and possible. See Michael M. Wenig,
How ``Total'' Are ``Total Maximum Daily Loads''? Legal Issues Regarding
the Scope of Watershed-Based Pollution Control Under the Clean Water
Act, 12 Nl. Envtl. 1.j. 87 (1998) (concluding that the TMDLs process
``should be pursued to the fullest practical extent because it provides
a technical, flexible framework for addressing cumulative sources of
watershed harm; in short, it promotes an ecosystem approach'').
ASCE strongly supports basin-wide water resources management. The
Society encourages all government agencies charged with implementing
the Clean Water Act to manage and regulate water on a watershed basis.
ASCE further supports integrating programs and goals across political
boundaries. Any Federal regulations defining the goals and standards
for watershed management should permit flexibility and accommodate
regional needs, however.
In order to provide greater scientific certainty, ASCE strongly
recommends that the Agency consider the adoption of a new method for
calculating TMDLs. We believe that EPA and the States ought to follow a
decision support system that goes beyond the established watershed
modeling program the BASINS model now used by the government to analyze
a watershed approach to TMDL development.
BASINS is strictly a simulation model, which provides no guidance
on how to calculate TMDLs. Following the traditional command and
control approach, BASINS is used by regulatory agencies to make
analyses and decisions on TMDLs. The new environmental policy, however,
requires a change in the way TMDLs are determined and implemented. . .
. As an alternative to BASINS, a decision support system has been
developed hat goes beyond a watershed model. It includes a road map for
stakeholders to follow and provides scientific information along the
way. Chen, supra, at 653 (emphasis added).
A dynamic watershed simulation model such as is contained in the
Watershed Analysis Risk Management Framework (WARMF) described in the
recent literature accounts for meteorology, point-source loads,
reservoir flow release, flow diversion data and, significantly for this
rulemaking, air quality. Integration of the effects of air pollution in
the calculation of TMDLS for impaired water bodies is important, given
the EPA's acknowledged lack of hard data on this problem. See 64 Fed.
Reg. at 46,022 (``EPA recognizes that data, analytical approaches and
models to establish TMDLs for pollutants originating from air
deposition may not be immediately available, especially for pollutants
subject to long range transport in the atmosphere.'')
The dynamic watershed simulation model within the WARMF is superior
to the BASINS model. It is easy to adapt the model to any ``real''
river basin and check the results against observed data because all
observed data were collected under dynamic conditions. WARMF allows its
users to specify the intended use and the criteria to be met. It then
calculates the TMDL to protect the intended use of the water body. The
model's graphical user interface makes it easy for stakeholders, not
just technical experts, to run and to understand. In addition, WARMF
can calculate multiple possible TMDL solutions, allowing stakeholders
to negotiate the most acceptable solution. The model has an algorithm
to evaluate pollution trading between point and nonpoint source loads.
Each of these features is necessary in order to calculate the proper
TMDLs under the EPA's guidelines.
In addition to its scientific and engineering capabilities, the
WARMF would aid in the calculation of TMDLs to a greater degree of
certainty and ensure the adoption of a consensus watershed management
plan.
Mr. Chairman, that concludes our prepared remarks. We would be
pleased to answer questions from the subcommittee. If you have any
questions, please contact Michael Charles of our Washington Office at
(202) 789-2200 or by E-mail at [email protected].
______
STATEMENT OF THE INTERSTATE COUNCIL ON WATER POLICY
On behalf of the Interstate Council on Water Policy (ICWP), an
organization representing States and interstate water resource
management organizations across the country, we would like to submit
the following testimony for the record for the March 1, 2000 Fisheries,
Wildlife and Water Subcommittee hearing on the Total Maximum Daily Load
regulations proposed on August 23, 1999.
ICWP is committed to seeking more comprehensive and coordinated
approaches to water management that integrate quality and quantity
concerns, ground as well as surface water management, and economic and
environmental values. It is within this context that the following
testimony and comments on the rulemaking have been developed.
FLEXIBILITY AND THE STATE ROLE IN IMPLEMENTING THE PROGRAM MUST
BE STRENGTHENED
In order for the TMDL program to be effective, flexibility and
consistency with existing statutory authority is critical in the
nonpoint source arena and must be provided in the final TMDL
regulations. The final rulemaking needs to adequately reflect the
partnership established with the States under the 1972 Clean Water Act.
It is important to note that the Federal Water Pollution Control Act
(section 101(b) gave States ``the primary responsibility and rights . .
. to prevent, eliminate, and reduce pollution.'' As proposed, the
regulations do not reflect this leadership role for States outlined by
Congress. State and interstate organizations must be afforded greater
flexibility and resources to support their important role in
implementing this critical program.
If the TMDL program, in fact, utilizes a watershed approach to
reduce pollution, then State and interstate organizations need to have
the primary role in implementing this program. Since those entities are
better suited to that role than the Federal Government, it is critical
that sufficient flexibility be granted to States and interstate
organizations, in order to account for and address local site-specific
factors which deviate from the national perspective.
CURRENT FUNDING IS INADEQUATE TO CARRY OUT THE PROGRAM
ICWP is very concerned about the lack of sufficient funding to
support the far-reaching efforts required in the proposed rule.
Resources are already strained at the State, interstate and local
levels with the onset of new water quality regulations, with the most
recent being the NPDES Phase II stormwater program.
ICWP supports the conclusions reached by other State organizations
that funding for Section 106 and 319 program assistance must triple to
carry out the proposed TMDL effort. If this program is to be a national
priority, then adequate funding must be provided at the Federal level
for implementation. There also needs to be a strong recognition of the
important role that interstate river basin organizations will assume in
this program and EPA should direct adequate funding to such
organizations so they may carry out this role.
flexibility needs to be provided for tmdls on interstate waters
Lack of flexibility provided to the States to develop TMDLs is
particularly evident in the rulemaking's approach to addressing
interstate waterbodies.
ICWP urges U.S. EPA to recognize the role that interstate
organizations can play in implementing the TMDL program. Most existing
interstate river basin commissions are set up on a watershed basis and
provide an excellent means for coordinating water quality efforts among
political jurisdictions sharing the watershed. The TMDL rulemaking
provides an opportunity for EPA to urge States to work through
interstate river basin organizations to secure agreement on management
approaches and maintain consistency across State lines. Interstates
provide a good forum for conflict resolution.
Although EPA notes that it considered a variety of options for
establishing TMDLs on interstate waterbodies, the proposed rulemaking
simply states that EPA may establish TMDLs for such waterbodies. ICWP
instead urges that the agency take a more flexible approach to the
issue, which urges interstate cooperation which will ultimately make
the program more successful in such waters.
The States should decide whether or not EPA should become directly
involved in the development of TMDLs on interstate waters. Some
interstate water issues may be relatively simple and could easily be
resolved by the neighbor States. In more complex situations, States
should have the option of requesting EPA's involvement or utilizing
interstate river basin organizations to develop the TMDLs. This
flexibility for interstate water issues needs to be an integral part of
the TMDL regulations.
States and interstate organizations are ready and willing to take
up the challenge of implementing Section 303(d). However, their ability
to establish and implement TMDLs is threatened by the heavily
prescriptive process expected by EPA and espoused by these regulations.
If the Federal Government expects restoration of water quality in
impaired waters over the next decade, it would be better served by
directing sufficient financial resources to the States and interstate
organizations, maintaining a flexible framework in addressing complex
pollutant impairments and investing time to learn the variations in
water and water quality across the nation, rather than expect
conformity to a Federal template.
ICWP's membership includes many interstate river basin
organizations, who would be prepared to discuss this issue in further
detail with subcommittee staff.
ICWP appreciates this opportunity to submit this testimony and
urges that you contact Executive Director Susan Gilson at 202-218-4133
if you would like further clarification on any of these issues.
______
STATEMENT OF THE NATIONAL ASSOCIATION OF FLOOD AND STORMWATER
MANAGEMENT AGENCIES
The National Association of Flood and Stormwater Management
Agencies (NAFSMA) appreciates the opportunity to provide testimony on
the Total Maximum Daily Load rulemaking proposed by the U.S.
Environmental Protection Agency on August 23, 1999. NAFSMA represents
more than 100 local and State flood control and stormwater management
agencies and has a strong interest in the development of this program.
Our membership has been committed over the last two decades to provide
for recognition of the unique nature of municipal stormwater
discharges.
NAFSMA appreciates the subcommittee's interest in this broad-
reaching national program.
Rainwater falling on cities and flowing through the local storm
drainage system and eventually into streams, rivers and lakes is a non-
point source pollution problem that differs fundamentally from point
sources of discharge such as public sewage treatment plant effluent.
EPA officials have made it clear to NAFSMA members that the proposed
TMDL regulations address storm water because storm water is regulated
as a point source and permitted under the National Pollutant Discharge
Elimination System (NPDES).
NAFSMA is very concerned that this proposed TMDL regulation fails
to recognize the original intent of Congress to address stormwater
differently than traditional point sources. The existing Clean Water
Act requires the reduction of pollutants in municipal stormwater to the
maximum extent practicable. The law does not require numeric effluent
limitations for stormwater, an issue recently upheld in stormwater
litigation in the Ninth Circuit Court of Appeals (see below).
lack of statutory authority for key elements of the proposed regulation
We support the goals of the Clean Water Act which have led and will
continue to lead to improvement of the nation's waters and acknowledge
the position in which U.S. EPA has been placed by litigation to publish
these regulations. However, our membership is concerned about a number
of key provisions in this regulatory proposal and questions whether the
agency has the statutory authority to issue some of these requirements.
Among these questionable requirements is the listing of threatened and
impaired waterbodies and the requirement for offsets included in the
NPDES section of the rulemaking.
NEED FOR INCLUSION OF APPROPRIATE LOCAL GOVERNMENTS IN THE PROCESS
States must have the dominant role in the TMDL program and must
involve local governments in the TMDL process at the option of the
appropriate local jurisdiction. NAFSMA urges that the final regulations
outline a role for local officials or their representatives in the
review of the methodologies and ultimately the TMDLs affecting
waterbodies within their jurisdictions. This being said, however,
NAFSMA members do support the States' role in setting the TMDLs and
feel that EPA's authority to approve the TMDLs should be limited. CWA
Section 303(d)(2) only requires EPA to approve or disapprove the
State's list and load; it does not provide for a detailed review of the
State's implementation process.
LACK OF RECOGNITION OF THE UNIQUE NATURE OF STORMWATER DISCHARGES
In general, there appears to be a lack of recognition in the TMDL
regulations that stormwater discharges are by their nature different
than point source discharges. EPA representatives have asserted that
under the TMDL program, municipal stormwater discharges are considered
a point source. This issue in itself leads to a number of technical
issues related to the stormwater regulation. For example, the question
of how to determine load reductions for stormwater will be critical and
extremely complex.
Another related technical issue is the need to allow beneficial use
attainability analyses (UAA) as a requirement of the TMDL process and
submittal when requested by the appropriate local jurisdictions.
Specifically the UAAs should be added as an element in Section
130.33(b)(1) of the proposed rule (which addresses the minimum elements
of a TMDL submittal to EPA). The inclusion of the UAA analyses will
help to ensure that TMDLs are based on best available science,
consistent with community values and are historically sustainable. The
inappropriate identification of attainable uses would have a severe
impact on the success of the TMDL program and will lead to unachievable
allocations.
TMDLS NEED TO BE BASED ON SOUND SCIENCE
Although NAFSMA supports State primacy in the TMDL program, our
membership supports regulations leading to thorough scientific/peer
review of the methodologies used by the States in developing the TMDLs.
The TMDLs developed by the States must be based on sound science and
must meet acceptable scientific standards.
LANGUAGE NEEDS TO BE INCLUDED TO REFLECT THE NINTH CIRCUIT COURT
DECISION ON STORMWATER PERMITS
As proposed in August 1999, the regulation fails to include
language reflecting the September 15, 1999 court opinion issued by the
U.S. Court of Appeals for the Ninth Circuit on a case involving five
Arizona NPDES stormwater permits (Case No. 98-71080). In this case the
Ninth Circuit ruled that by statute, stormwater discharges are to be
subject to the maximum extent practicable goal, rather than strictly
being subject to numeric effluent limits which apply to traditional
point sources. Under this court ruling, the application of a TMDL with
a numeric effluent limit for stormwater discharges would be
inappropriate. The NAFSMA membership urges that municipal stormwater
systems be classified as nonpoint sources subject to best management
practices as called for by Congress under section 402(p) of the Clean
Water Act.
LOCAL DISPROPORTIONATE SHARE
If EPA continues to consider urban runoff as a point source, NAFSMA
is very concerned that municipalities will be allocated a
disproportionate amount of TMDLs. Atmospheric deposition issues will
lead to an even greater burden for the TMDL program being placed on
localities. Local governments shouldn't be held responsible for
atmospheric deposition over which they have no control. This approach,
as well as holding the local governments responsible for other nonpoint
sources out of their control, will lead to an even greater burden on
municipalities.
It is also important to note that the cost for stormwater
discharges to attempt to meet water quality standards, rather than
maximum extent practicable (MEP), would be astronomical. Unfortunately,
the cost for requiring stormwater discharges to meet water quality
standards was not even reflected in EPA's cost estimates of the TMDL
program. According to an American Public Works Association Southern
California Chapter study from May 1992, the nationwide capital cost for
construction to meet numerical discharge limits to achieve water
quality standards was $407 billion (1992 dollars). The associated
annual operating and maintenance cost would be $542 billion (1992
dollars).
STATUTORY INCONSISTENCY WITH TMDL DEFINITION
It's important to note that EPA's definition of a total maximum
daily load differs from the Clean Water Act definition. The CWA
definition states that ``such load shall be established at a level
necessary to implement the applicable water quality standards with
seasonal variations and a margin of safety which takes into account any
lack of knowledge concerning the relationship between effluent
limitations and water quality.'' The definition proposed by U.S. EPA in
August states that a TMDL is ``a written analysis of an impaired
waterbody established to ensure that water quality standards will be
attained and maintained throughout the waterbody in the event of
reasonably foreseeable increases in pollutant loads.'' The agency's
definition is inconsistent with the law. NAFSMA supports the use of the
statutory definition of TMDLs, which does not create speculation and
limitations related to growth in the watershed.
LISTING OF THREATENED AND IMPAIRED WATERS
NAFSMA is opposed to the listing of threatened waterbodies and
waterbodies impaired only by pollution. The proposed rules go beyond
the statutory authority provided for listing requirements under Section
303(d)(1)(A). By law, TMDLs establish the maximum amounts of pollutants
a waterbody can tolerate without impairing designated uses. As
proposed, this rulemaking extends the TMDL program authority to
waterbodies that are not in fact impaired by pollutants. The
requirements of 130.27 should only include waterbodies impaired by
pollutants that are known. Threatened waterbodies should be excluded
from the State's TMDL list. Placing threatened waterbodies on the TMDL
list can lead to a legally enforceable lawsuit to develop a TMDL for a
waterbody that is not impaired. Threatened waterbodies can be placed on
the State's 305 (b) report where they can be tracked if required. It is
also suggested that waterbodies listed on the TMDL list be allowed to
be removed at any time not just during the next listing cycle as
required by 130.29. Failure to remove a listed waterbody may lead to a
TMDL which may not be required.
NAFSMA is opposed to listing of waters solely impaired by
pollution. Section 303(d) does not authorize EPA to require listing
only for pollution. The CWA only provides for listing based on
pollutants.
NPDES PROGRAM AND FEDERAL ANTIDEGRADATION POLICY--OFFSETS
NAFSMA members are concerned that the proposed regulations would
create unauthorized Federal restrictions on development and growth. Our
members are opposed to the requirement for offsets for new storm
drainage outfalls. There is no legislative authority for this program
and NAFSMA believes this runs counter to Congressional intent. Any
expansion of Federal authority over local land use decisions must be
established through Federal legislation, not through regulatory
rulemakings.
NAFSMA urges that NPDES permits for municipal stormwater discharges
be specifically excluded from the 150 percent offset requirement for
new dischargers and significantly expanding discharges. This action
would be appropriate since there is no basis in the Clean Water Act for
restrictions on new or expanding municipal stormwater discharges.
NAFSMA believes that the proposed policy on antidegradation at
Section 131.12 also goes beyond, and runs counter to, existing
statutory authority. States are currently granted full authority over
the adoption of their antidegradation policies under the Clean Water
Act. Once again, this change would need to be made legislatively, not
by regulation.
The proposed requirements would also potentially require all new
construction sites to be classified as new dischargers requiring
offsets. It is suggested that the definition of new discharger be
revised to be consistent with CWA Section 306 for new source which does
not include outfalls and pipelines. Under that definition, new source
pertains to industrial sources subject to a ``standard of
performance.'' Failure to revise the definition will effectively stop
construction projects unless offsets can be obtained.
lack of adequate congressional review of the tmdl program
In closing, the NAFSMA membership is extremely concerned that the
full impact of the TMDL program has not been properly analyzed and
reviewed by Congress. TMDLs were created to be one of the tools for
attaining water quality, not the primary tool, and are not appropriate
for all sources in the watershed. As we understand from our discussions
with EPA staff, the cost of the inclusion of stormwater discharges in
the program was not reflected in the cost estimates to date. We feel
that the costs of including stormwater discharges in the TMDL program
will be astronomical.
NAFSMA is concerned that the funding that will be directed to this
program to address stormwater would be spent more cost-effectively in
areas where we have the science and technical capability to tackle
significant water quality issues. We are asking that there be a
thorough Congressional review of the proposed regulations and their
expected impacts before the program moves forward. To finalize a
program of this scope by summer 2000, without adequate congressional
review of its impacts on States and local governments, would be
inappropriate.
Please feel free to contact NAFSMA Executive Director Susan Gilson
at 202-218-4133 or Stormwater Committee Chairman Scott Tucker at 303-
455-6277 if you have any questions on this testimony.
______
STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR FROM THE STATE OF FLORIDA
Mr. Chairman, thank you for the opportunity to speak to you
regarding the EPA's proposed Total Maximum Daily Loads (TMDL)
regulations.
I am also pleased to extend a welcome to Mr. Jeff Pardue, of
Florida, who is the Director of the Environmental Services Department
for Florida Power Corporation. Mr. Pardue will be presenting testimony
to the subcommittee on behalf of Florida Power Corporation, the Edison
Electric Institute and the Clean Water Industry Coalition.
Mr. Chairman, if I look back over the past several decades it is
incredible how far we have come in achieving real progress on
environmental protection with respect to air, water, solid and
hazardous waste matters.
I am concerned, however, with the proposed TMDL regulations. In a
letter to the EPA Administrator dated January 19, 2000, Florida
Secretary of Environmental Protection David Struhs identified several
issues of concern with the proposed TMDL regulations.
Mr. Struhs expressed the view that the responsibility for
development of non-point source controls rested with the States and
that the proposed regulations represented a significant, unwarranted
expansion of the regulatory approach to control such sources.
He also noted that EPA should reconsider its proposed regulatory
approach, if only for practical reasons in view of the large number of
non-point sources that would need to be regulated.
For these reasons, and others discussed in the letter to the EPA
Administrator, Mr. Struhs suggests that EPA adopt a voluntary,
technology based approach to non-point source control.
Finally, Mr. Struhs notes that the State of Florida adopted its own
TMDL related legislation which prescribes a comprehensive voluntary
strategy for the non-point source component of waterbody TMDL's.
The Florida TMDL legislation establishes incentives for non-point
source sources implementing best management practices.
I urge the EPA to review the State of Florida comments on the
proposed TMDL regulation.
Thank you Mr. Chairman. I look forward to working with the
subcommittee on this important issue.
______
STATEMENT OF HON. GORDON SMITH, U.S. SENATOR FROM THE STATE OF OREGON
Mr. Chairman, I appreciate the opportunity to appear before the
subcommittee today to discuss the Environmental Protection Agency's
proposed rules regarding the Total Maximum Daily Load (TMDL) program
under Section 303(d) of the Clean Water Act. These rules, proposed last
August, would be a radical rewrite of the TMDL program, and would
affect how States implement the entire Clean Water Act.
I also appreciate your leadership on this issue, Mr. Chairman. I
think that the Environmental Protection Agency (EPA) has exceeded its
statutory charge in proposing these rules, and congressional oversight
is therefore required. As you know, last session I led the fight to
extend the comment period on these proposed rules. Initially, EPA was
only going to provide a 60-day comment period for this complex
rulemaking that seeks to regulate a number of industries and activities
not previously regulated under the TMDL program.
I authored an amendment, accepted by the managers of the VA/HUD and
Independent Agencies Appropriations bill, that extended the comment
period by 90 days.
Given the 30,000 comments the agency received, I think that the
additional time Congress mandated for the comment period was definitely
warranted. It is my understanding that EPA heard from a wide range of
interests that were critical of the proposed rules, including: other
Federal agencies, State and local governments, manufacturing interests,
landowners and others.
In sum, these comments point out that EPA is proposing to use a
sledge hammer when a fly swatter would do.
I know that a broad range of stakeholders are testifying before the
subcommittee today. Therefore, I want to focus my comments on the
concerns raised by private forest landowners in my State, who are
already required to operate using best management practices under the
landmark Oregon Forest Practices Act.
Under these proposed rules, a number of nursery and forestry
practices would no longer be categorically excluded from the definition
of ``point source.'' These activities include: nursery operations, site
preparation, reforestation and subsequent cultural treatment, thinning,
prescribed burning, pest and fire control, harvesting operations,
surface drainage, or road construction and maintenance.
Instead of being categorically excluded, selected sources could--on
a case-by-case basis--be designated as point sources for regulation
under the National Pollution Discharge Elimination System (NPDES)
permit program for storm water discharges.
This is a complete reversal from the treatment for the last 27
years of forestry practices as non-point sources under the Clean Water
Act. The implications of this reversal are staggering for the millions
of private forest landowners in my State and across the nation.
I believe that EPA has significantly underestimated both the costs
to the landowner and the time that it would take to obtain permits
under this proposal.
The specter of a State or Federal permitting system for each
management action needed on a stand of trees throughout its rotation is
truly frightening. EPA reserves the right to take over any State's TMDL
program, which would mean that landowners would then need to obtain a
Federal permit, potentially subjecting those permits to consultations
under the Endangered Species Act.
Further, under the Act, landowners could be subject to fines of up
to $27,500 a day, as well as to citizen lawsuits, for alleged permit
violations.
A number of State agencies have raised concerns about the high cost
of implementing and administering this program. It is unlikely that
sufficient State resources would exist to administer such a permit
program in a timely manner. Currently, on the average, it takes several
years from the time of making application for an NPDES permit before a
landowner receives a permit.
Adding forestry activities to the NPDES pipeline will only
exacerbate this problem and reduce effective forest management, since
many forestry activities are extremely time sensitive and weather
dependent. For example, insect infestations, wildfires, and blowdowns
are unpredictable occurrences that must be dealt with in a timely
manner.
We all share the goal of clean water, and our Nation has made great
strides in cleaning up polluted waterways since the passage of the
Clean Water Act.
However, the EPA has failed to demonstrate that changing the
treatment of everyday forestry activities to point sources of pollution
is warranted. In fact, EPA has recognized forestry activities to be a
consistently minor source of water quality impairment, as cited in
EPA's 1996 National 503(b) Report.
In my State of Oregon, there are about 28 million acres of
forestland, representing 45 percent of Oregon's land base. Sixty
percent of Oregon's forestland is publicly owned, while 40 percent is
privately owned.
Oregon's private forestland is regulated under the 1972 Oregon
Forest Practices Act, which established a visionary new standard for
forest management. Public forestland in Oregon is protected at a level
at least equal to that provided by the Oregon Forest Practices Act. As
a result, all of Oregon's forestlands are already required to provide
protection to streams, lakes and wetlands. These regulations are
unnecessary and will ultimately be detrimental to forest health.
In closing, let me State that I have concerns about these proposed
rules both substantively and procedurally. I have summarized my
substantive concerns above. But I am also concerned that EPA has failed
to fulfill a number of the requirements for promulgating a major rule
such as this.
I am not sure EPA has accurately assessed the costs of these
proposed rules on State and local governments, as required under the
Unfunded Mandates Act of 1995.
Further, that Act requires the agency to consider reasonable
alternatives and to select the least costly, most cost-effective or
least burdensome of the alternatives, or explain why such alternatives
were not chosen. I am not confident that any alternatives will be
considered.
I am not sure the Administration has adequately examined the cost
of these rules on small businesses, as required by the Treasury and
General Government Appropriations Act for fiscal year 2000.
The arrogance with which EPA initially proposed only a 60-day
comment period is exceeded only by the arrogance of claiming it will
finalize these rules by the end of June. EPA's statutory authority to
promulgate these rules is questionable at best, and too many issues
have been raised by the comments to be addressed so quickly.
I believe there is another agenda here at work. The issue isn't
clean water, it is the Federal regulation of private lands, which has
historically been the purview of State and local authorities.
Every Member of Congress should be concerned about the proposed
regulation of forestry under these rules, because if they are
successful in regulating nursery and forestry activities, the
regulation of agricultural practices is not far behind.
PROPOSED RULE CHANGES TO THE TMDL AND NPDES PERMIT PROGRAMS
----------
THURSDAY, MARCH 23, 2000
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Fisheries, Wildlife, and
Drinking Water,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m., in
room 406, Senate Dirksen Building, Hon. Michael D. Crapo
(chairman of the subcommittee) presiding.
IMPACT ON THE STATES
Present: Senators Crapo, Thomas, Wyden, and Bob Smith [ex
officio].
OPENING STATEMENT OF HON. MICHAEL D. CRAPO,
U.S. SENATOR FROM THE STATE OF IDAHO
Senator Crapo. The hearing on the proposed rule regarding
total maximum daily loads, the TMDL Program, impacts on the
regulated community by the Subcommittee on Fisheries, Wildlife,
and Water is formally started.
Today the Subcommittee on Fisheries, Wildlife, and Water is
holding its second hearing in a series to examine the proposed
changes to the total maximum daily load and NPDES programs
under the Clean Water Act.
Today, we will examine impacts on the regulated community.
In addition to representatives of the regulated community, I am
pleased that a number of my colleagues have joined us to offer
their thoughts on the proposed rule.
The General Accounting Office will offer their testimony on
their recently published report describing the lack of data
available for the establishment of TMDLs as well as the
unreliability of the data. We will also hear perspectives from
members of the environmental community.
Earlier this month we heard concerns expressed by
representatives of State agencies charged with implementing the
TMDL
program. Despite the very serious concerns of those State
agency officials, we heard the EPA State very clearly that the
agency intended to publish its final rule by June 30 of this
year.
In fact, in our last hearing it was clear that if necessary
the EPA would request that OMB expedite review of the final
rule which would short-circuit OMB's standard 90-day timeframe
for reviewing major rules.
I am deeply disturbed by this. Fast-tracking the proposed
TMDL disregards both the stakeholders most effected by this
rule and the authority of Congress.
Because of the magnitude of this issue, we have more
witnesses testifying today than is the norm. In the interest of
time I am going to make my remarks brief, but I believe that it
is important to reiterate that the EPA is without question
fast-tracking the final publication of this rule.
After the rule was proposed in August of last year the EPA
provided a 60-day public comment period on the proposed rule.
Sixty days for an extremely complex rule with enormous
implications for States, communities, industries, and
stakeholders to absorb, understand and respond.
The comment period was finally extended and by the time the
comment period ended on January 20, the agency had received
30,000 public comments. In the time since the proposed rule was
published, five congressional hearings have been held. At each
of these hearings, witnesses have expressed serious concerns
with regard to the rule being proposed.
They have indicated that the rule would force States to
bear enormous costs if implemented; that imposing a top-down
program with little flexibility for local initiatives and
consideration of complex site-specific conditions would impede
rather than improve water quality; and that a major limiting
factor in cleaning up our Nation's waters is a lack of
resources.
In looking over the testimony for today's hearing, I cannot
say that I was surprised to see that the concerns with this
rule are very consistent.
What I fail to see is the demonstrated need for fast-
tracking this rule.
In order to be successful in our goal of cleaning up our
Nation's water, it is absolutely essential that we consider the
concerns and recommendations of stakeholders and act
accordingly.
I appreciate our witnesses who are here with us today and
look forward to understanding their concerns in greater detail.
With that, Senator Wyden, do you have any comments?
OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR FROM THE
STATE OF OREGON
Senator Wyden. Thank you, Mr. Chairman. Mr. Chairman, I
commend you for holding another hearing on this. I think we are
making it clear that on a bipartisan basis we do want an
alternative to EPA's approach.
I am very much looking forward to our colleagues, both of
whom know a lot about these issues and particularly about the
forestry field.
I would just have a couple of comments. As you know, Mr.
Chairman, on March first I proposed a three-part alternative to
the approach advanced by the Environmental Protection Agency
and I was very pleased that Governor Roscoe, representing the
Western Governor's Association, essentially said that he would
support that three-part alternative.
It seems to me the first thing we ought to focus on is
increased support, increased funding for the best management
practices approach to control pollution.
I note that a number of the sites in Arkansas, for example,
have essentially the same problem that we have in Oregon. We
have problems in Arkansas, in Oregon associated with sediment.
Now, best management practices, the forestry folks tell us
that controlling of sediment isn't rocket science. It involves
approaches like leaving tree buffers along the side of the
streams, but this can be very expensive for the small landowner
to do.
It seems to me one of the things that we could go forward
with is a part of a bipartisan alternative to what EPA is
talking about, that is, additional funding for the best
management practices approach.
My sense is that it would do a lot for Oregon and Idaho and
Arkansas and places where forestry is driving this debate and
Governor Roscoe was very comfortable with that approach.
Second, it seems to me that we ought to be looking at
watershed management approaches, particularly allowing
landowners to meet their obligations under the Clean Water Act
and the Endangered Species Act, both of which our subcommittee
has jurisdiction over, using a single land management plan.
It is going to be increasingly important to coordinate what
these various agencies do. This is another area where Governor
Roscoe would support it.
Finally, it seems to me that we ought to have a flexible
approach to pollution budgets so that plans can be revised as
more scientific data becomes available.
In effect, the General Accounting Office report made clear
to us that we will be required, as time goes forward, to revise
pollution budgets as more data becomes available. Oregon is now
using this kind of approach, what is called a ``phased
approach,'' to in effect work on trying to come up with
constructive solutions now while working to go forward to
implement additional approaches as more data becomes available.
I am looking forward to hearing from our two colleagues who
do know an awful lot about it. As I was looking over those
Arkansas sites and their problems, it certainly resonated to me
because it was essentially the same thing we are hearing from
small landowners in the forestry sector at home in Oregon.
We have a bipartisan front on that side of the dais and a
bipartisan front on this side of the dais. So, we ought to be
able to get something done here to come up with a constructive
alternative to the EPA program that does improve water quality,
provides benefits for endangered species, but also minimizes
the burden and some of this bureaucratic water torture on the
small landowner on whom we all have a lot of them in our
States.
Mr. Chairman, I look forward to working with you and our
colleagues.
Senator Crapo. Thank you very much, Senator Wyden. I
appreciate your notice of the fact that this is bipartisan on
both sides of the dais here. As you know, we have spoken
together about how we can work to find a bipartisan solution to
this problem.
I also find your analysis of it as ``water torture'' very
appropriate.
Our first panel today is Senator Tim Hutchinson from
Arkansas and Senator Blanche Lambert Lincoln from Arkansas.
Joining us later will be Senator Gordon Smith of Oregon.
We welcome you here today. Senator Gordon Smith from Oregon
was going to be with us, but his schedule has precluded that. I
am sure that he will submit some written testimony for the
record.
Let us begin immediately. Senator Hutchinson, would you
proceed?
STATEMENT OF HON. TIM HUTCHINSON, U.S. SENATOR FROM THE STATE
OF ARKANSAS
Senator Hutchinson. Thank you. Thank you, Mr. Chairman and
Senator Wyden. I want to thank both of you for your opening
statements and your strong concern about this issue.
Senator Crapo, thank you for calling the hearing today and
the series of hearings that you have had. I want to thank the
subcommittee for allowing me to speak on behalf of my Arkansas
constituency.
I am here because of an unprecedented outcry from my State
in response to the EPA's August 1999 proposal to expand the
total maximum daily load and the National Pollutant Discharge
Elimination System Permitting Programs.
In my years in the House and Senate, I have never
experienced the kind of public involvement, public outcry as I
have seen and evidenced in recent weeks in the State of
Arkansas.
I believe it is the intent of the EPA to treat traditional
agriculture and forestry activities as potential point source
polluters. I think if you look at their web page on the TMDL
Program there can be no mistaking what the intent is, where
they say:
The proposed regulations would accomplish this goal by
revising the existing regulations to provide EPA the authority
to designate certain operations such as concentrated animal
feeding operations, concentrated aquatic animal production
facilities and certain silviculture operations as point sources
and require them to obtain NPDES permits after completion of
the TMDL.
That, to me, is very clear. It is very ominous, to think
that such a rule is not only being proposed, but as you said,
Mr. Chairman, fast-tracked in light of an unprecedented public
outcry is unthinkable and inexplicable.
I believe it is a deliberate attempt to circumvent the
Clean Water Act and legislate through regulation, directly
contradicting Congress's intent when it debated and passed
legislation on non-point source pollution.
We were in the House, and the Environment and Public Works
Committee, as it was called in those days. We had a year of
hearings on the Clean Water Act in which this very issue was
debated thoroughly and at great length, and the Congress, in
the Clean Water Act, specifically rejected the approach that
EPA is now proposing to take.
I participated in that debate and recall specifically that
the State would be granted the ability to define and enforce
this matter absent the intrusion of EPA. That is why we have a
Congressional Record. That is why we have committee records. I
hope EPA will crack open its copy and take a look before
launching its next overriding initiative.
Mr. Chairman, farmers, foresters, private landowner and
community leaders from across Arkansas are deeply worried that
requiring States to enforce stricter TMDL standards will
stretch State, local and private resources to the breaking
point.
In January I spoke at a public meeting in Eldorado, AR
which drew 1,500 concerned citizens. I never had a town meeting
I could get 1,500 at. Weeks later, a meeting in Texarkana, AR
attracted 3,000 landowners. Last week I spoke to a crowd, along
with Senator Lincoln in Fayetteville, AR in which there were
3,300 constituents there. That is an unprecedented public
turnout.
It begs the question as to who is driving this policy. It
is clear that implementing the EPA's new proposal would only
divert already limited funds and resources away from successful
State implementation programs and hand them over to
bureaucratic Federal procedures and oversight.
While testifying before the House Appropriations Committee,
Administrator Browner said she felt the EPA was forced to act
in response to lawsuits brought by environmental groups like
the Sierra Club who were dissatisfied with the agency's lack of
enforcement at the State level.
The fact that special interest groups are driving Federal
policy by intimidating States and the EPA with litigation runs
completely contrary to how I believe our government should be
run. It is not democratic. It is not fair to Arkansans who work
very hard to manage their land and manage it properly and
carefully.
Thousands of people who attended these meetings have
families. They have busy schedules as we do. They have many
other responsibilities, but they are willing to sacrifice their
time, learn more about this proposed regulation, how it will
effect their livelihood and express their own alarm about it.
One of the core issues motivating Arkansans to attend
public meetings by the thousands is trust. Ultimately, the
people of my State do not trust the EPA. In other words, the
EPA has not earned the trust of my constituents.
The EPA has done an incredibly poor job communicating their
proposal to those who it will affect the most. During my time
in public service, I simply have never seen this kind of public
outcry.
In terms of States handling this matter, Arkansas alone has
put forth a tremendous effort to implement statewide best
management practices, as Senator Wyden expressed, to other
water quality regulations.
I think the idea of providing resources and incentives for
them to continue that effort is a good idea. Our poultry litter
management plan is a model for other State-level plans.
Arkansas's forest industry has reduced its impact on local
watersheds by 85 percent through voluntary best management
practices. Simply put, the States are getting the job done and
must continue to have the freedom to handle this matter on the
local level, not from Washington, as we intended when we passed
the Clean Water Act.
That is why I have introduced legislation and Senator
Lincoln has introduced legislation to prevent this proposed
rule from impacting two of our State's most important
industries, agriculture and timber.
My bill, S. 2139, consists of two simple parts. First, it
restores the exemption for silviculture operations and exempts
agriculture storm water discharges from EPA's NPDES permitting
requirements.
Second, it defines non-point source pollution relating to
both agriculture storm water and silviculture operations. It is
great to look at alternatives, but the first thing we have to
do is put the brakes on the EPA.
EPA, under the current Administration, has never ceased in
its efforts to impose stricter, more expensive Federal
environmental regulations on hardworking Americans and
hardworking Arkansans.
In the end, I feel that this proposal will not only harm
agriculture and forestry, but impede the water quality gains
being made by States and private landowners.
I think our founding fathers had great foresight in
establishing a system of government based upon three branches
and many, many checks and balances.
One of the dangers to our form of government today is that
non-elected agencies, not responsive because they don't stand
for election, have in effect acceded to themselves the power to
be a fourth branch of government.
In this case, I think the EPA has been unresponsive to the
people they serve and to the Congress that established the
statutory legislation for the actions that they propose to
take.
I think it is time that we did something about it. I want
to thank you for holding these hearings on this important
issue. I look forward to working with Senator Lincoln, with
Senator Smith and with your subcommittee on assuring that EPA
does not implement these burdensome and, I think, unnecessary,
regulations.
Senator Crapo. Thank you very much, Senator Hutchinson.
Before I turn to Senator Lincoln I wanted to tell Senator
Wyden and Senator Smith that in effect the three of us have
them outnumbered because we were all elected to the House at
the same time as part of what I think may have been the largest
freshman class, 110 Members, if I remember correctly, new
freshman Members, and we were pretty rowdy and we began to rock
and roll over there in the House pretty heavily and here we are
now, all of us, sitting over here in the Senate trying to solve
another problem.
Senator Lincoln and I ended up being the most junior
members on the Commerce Committee and it wrapped all around and
we sat by each other on the front row.
Anyway, Senator Lincoln, it is a pleasure to have you here
with us. Would you please begin?
STATEMENT OF HON. BLANCHE LAMBERT LINCOLN,
U.S. SENATOR FROM THE STATE OF ARKANSAS
Senator Lincoln. Well, thank you, Mr. Chairman. It sounds
great, like you said to reminisce and say that we were all over
there, the three of us on the Commerce Committee together and
here we are back again. There is a good comfort level in that
and I appreciate it.
I thank you, Mr. Chairman, for allowing me to testify this
morning and I would like to submit my full remarks for the
record.
Senator Crapo. Certainly.
Senator Lincoln. I will try very hard to be brief and
summarize my statement. I do want to extend my thanks to you
for your leadership on this issue, your willingness to devote
the time and energy that you have in the subcommittee on this
and focusing in on an issue that is very important to us in
Arkansas, as my colleague has mentioned.
I also want to thank my colleague from Arkansas. I have
enjoyed working with him on this issue and this is important
for us to work together for our constituents. I appreciate it
very much.
I hope I won't be too redundant on the issues for
Arkansans. He has touched on a great deal that is important to
us.
The Environmental Protection Agency's new extension of the
Total Maximum Daily Load regulations, if enacted, would affect
thousands of our constituents, directly and immediately.
In Arkansas, as my colleague has mentioned, we have held
several public meetings where literally thousands of concerned
foresters and farmers have voiced their opinions on how the new
Total Maximum Daily Load regulations could affect them.
My colleague was absolutely correct in his explanation of a
public outcry. The numbers were phenomenal. We only wish that
we could get those numbers to some of our town hall meetings
and the other things that we try to do.
But I think it is obvious from those outcries and certainly
from those numbers that the new TMDL regulations are definitely
on the minds of Arkansans. They are very interested in learning
more about it and understanding what they can do about the new
regulations.
I have met with Administrator Browner personally on this
issue to let her and the Administration know the devastating
effects this regulation would have on the State of Arkansas.
I had hoped to work for an administrative solution on the
problem because sometimes it is quicker as opposed to going the
legislative route with a new regulation. But a compromise
doesn't appear to be reachable.
I was left with no other option but to pursue legislative
remedies. That is why we are here today.
Mr. Chairman, Arkansas is commonly called ``The Natural
State.'' This motto reflects our dedication to preserving the
unique, natural landscape that we have in Arkansas.
We have one of the most diverse forest systems in the
United States. Most streams and rivers in Arkansas originate or
run through these timberlands and are sources for water
supplies, prime recreation and countless other uses for
Arkansans.
In Arkansas we also enjoy a healthy and sustainable private
forestry industry. Private forestry is an important part of the
economy and infrastructure of Arkansas and our Nation. My home
State of Arkansas has a total land area of 33.3 million acres.
That sounds like peanuts to you guys, I realize that. But over
50 percent of this land area, 18.4 million acres, is forested.
Our private forestry industry preserves our forests lands
and the streams that surround them and come through them to
ensure that the forestry can continue in Arkansas.
I come from a seventh generation Arkansas farm family and I
was always taught to respect the land. As families whose
livelihood depends on our natural resources, it is in our best
interest to protect our most valuable resources, the land and
the water.
We have instituted best management practices and
sustainable forestry initiatives to ensure that proper
techniques are used to protect our water quality. These plans
are voluntarily adhered to by over 85 percent of our private
timberland owners. That is phenomenal participation in a
voluntary program.
In fact, Arkansas has been recognized nationally for having
some of the most successful BMP plans in the Nation. I could
talk for hours about the timber industry in Arkansas and why
the EPA's new regulations are unreasonable and unnecessary. But
in the interest of time and certainly my colleagues' patience,
I will refer you to my written remarks and make a brief
statement about the legislation I have introduced regarding
this issue.
As stated in the announcement of the new EPA rule, this
extension of the TMDL regulations could have an economic effect
of over $100 million in the silviculture industry.
The EPA says it does not expect the rules to affect small
business, but Mr. Chairman, the majority of Arkansas and the
Nation's private timber industry are considered to be small
business. Many of Arkansas's private timberland owners consider
themselves tree farmers, just like my father. In addition,
officials at the Arkansas Department of Environmental Quality
have said they do not have the manpower or the resources to
enforce the proposed rule.
Responding to these concerns, on February 7, I introduced
legislation to statutorily classify silviculture sources of
water pollution as nonpoint sources. This legislation is not
intended to undermine the EPA's ability to ensure that our
Nation maintains a clean water supply.
In fact, it accomplishes quite the opposite. It is an
effort to reinforce the fact that many forestry-related
activities are already adequately policed at the State level so
that water supplies do not become impaired.
Many silviculture activities that benefit the environment
such as conducting responsible harvesting and best management
practices will actually be discouraged by the proposed rule and
regulation.
My bill, very simply, follows the lead from the 1977 and
the 1987 Clean Water Act amendments where agriculture storm
water and irrigation flows were exempted from the TMDL
regulations and will statutorily exempt forestry nonpoint
sources of water pollution from being covered by TMDL point
source permitting regulations just as was done in those 1977
and 1987 amendments.
My bill will statutorily designate the forestry activities
of site preparation, reforestation, thinning, prescribed
burning, pest and fire control, harvesting operations, surface
drainage, road construction and maintenance, and nursery
operations as nonpoint sources.
My colleagues have stated time and time again, Congress has
always intended rainwater runoff from agriculture, forestry and
small animal feeding operations to be considered as nonpoint
sources of water pollution.
It was never congressional intent for the EPA to regulate
nonpoint sources of water pollution. It was the same in 1972
when Congress passed the Clean Water Act as it is today. We
must ensure that the original congressional intent remains in
place as far as the authority of the EPA over point and
nonpoint sources of water pollution.
Mr. Chairman, I believe we can find ways to ensure that
Congress, the EPA, the States and our private property owners
can continue to improve clean water throughout the Nation, just
as they have been doing much on the local and State level.
We should be promoting what works; voluntary best
management practices, responsible care of our land, and each
State's current ability to enforce nonpoint source pollution
control through the appropriate measures.
It works. It has worked in the past and it is continuing to
work today. None of us here seek to inhibit the goal of
cleaning up and maintaining this Nation's clean water supply.
But merely requiring a point source permit for traditional
nonpoint sources of water pollution is not the best answer to
the problem of cleaning up our Nation's rivers, lakes and
streams.
In other words these new regulations would require permits
on the very things that we want to promote in forestry:
responsible harvesting and thinning operations, best management
practices and reforestation, all of the things that are helping
us right now to clean up our rivers and streams and maintain
them.
I am committed to working with this committee, the
Administration and the Senate to find the right approach to
assisting the State in their effort to address diverse sources
of water pollution.
I appreciate your leadership once again, Mr. Chairman. To
all of my colleagues who are serious about working on a very
important issue to the people of Arkansas and the people of
this Nation, we should enhance the work that is done in the
States and not simply overburden them with a Federal regulatory
approach that does little to achieve the objective that we all
have, and that is clean water.
Thank you, Mr. Chairman.
Senator Crapo. Thank you very much.
We have been joined by Senator Gordon Smith of Oregon. Do
the two of you need to leave?
Senator Hutchinson. Mr. Chairman, I would beg your
indulgence and apologize to Senator Smith if I might be
excused.
Senator Crapo. We will let you read his statement later.
Senator Hutchinson. I promise.
Senator Crapo. Any of you are welcome to come and join us
throughout the hearing as well as up here on the dais after
your testimony.
We have been joined now by Senator Gordon Smith from
Oregon.
Senator Smith, we welcome you here. Would you like to make
a statement?
STATEMENT OF HON. GORDON SMITH, U.S. SENATOR FROM THE STATE OF
OREGON
Senator Smith of Oregon. I would. Thank you, Mr. Chairman
and Senator Wyden. It is good to be here in this committee. I
am pleased to be joined by other colleagues who have said what
I will say in different ways.
I will go ahead and present this statement and then have a
few comments, Mr. Chairman. I appreciate this chance to appear
before the subcommittee to discuss the Environmental Protection
Agency's proposed rules regarding TMDL under section 303(d) of
the Clean Water Act. These rules proposed last August would be
a radical rewrite of the TMDL program and would affect how
States implement the entire Clean Water Act.
I also appreciate your leadership, Mr. Chairman. I think
that the Environmental Protection Agency has exceeded its
statutory authority in proposing these rules.
Frankly, if we in the Congress do not do our job I have
every reason to believe that the courts will prevent this from
ever occurring, because this is not a monarchy. There are three
branches of government and we each have a role to play.
As you may recall last session, I led the fight to extend
the comment period on these proposed rules. Initially EPA was
only going to provide a 60-day comment period for this complex
rulemaking that seeks to regulate a number of industries and
activities not previously regulated under the TMDL program.
I offered an amendment accepted by the managers of the VA-
HUD-Independent Agencies Appropriations bill that extended the
period for comment by an additional 90 days. Given that 30,000
comments the agency received, I think that the additional time
Congress mandated for the comment period was definitely
warranted.
It is my understanding that EPA heard from a wide range of
interests that were critical of the proposed rule. These
included other Federal agencies, State and local governments,
manufacturing interests, landowners and others. Some of these
comments point out that EPA is proposing to use a sledge hammer
when a fly swatter would do.
I know that a broad range of stakeholders are testifying
before the subcommittee today. Therefore, I want to discuss my
comments on the concerns raised by private forest landowners in
my State who are already required to operate using best
management practices under the Landmark Forest Practices Act.
Under these proposed rules a number of nursery and forestry
practices would no longer be categorically excluded from the
definition of point source. These activities include nursery
operations, site preparation, reforestation and subsequent
cultural treatment, thinning, prescribed burning, pest and fire
control, harvesting operations, surface drainage or road
construction and maintenance.
I think it is clear, Mr. Chairman, that while we have
essentially ended harvest on public lands, this is an effort to
end them on private lands as well.
Instead of being categorically excluded, sources could on a
case-by-case basis be designated as point source pollution for
regulation under the National Pollutant Discharge Elimination
System, called an NPDES permit program for storm water
discharges.
This is a complete reversal from the treatment for the last
27 years of forestry practices as a nonpoint source under the
Clean Water Act. The implications of this reversal are
staggering for millions of private forest landowners in my
State and across the Nation.
I believe that EPA has significantly under-estimated both
the cost to the landowner and the time that it would take to
obtain permits under this proposal.
The specter of a State or Federal permitting system for
each management action needed on a stand of trees throughout
its rotation is truly a frightening prospect.
EPA reserves the right to take over any State's TMDL
program which would mean that landowners would then need to
obtain a Federal permit, potentially subjecting those permits
to consultations under the Endangered Species Act as well. You
can just count on that Mr. Chairman. That is what this is all
about.
Further, under the act landowners could be subject to fines
of up to $27,500 a day as well as to citizen lawsuits for
alleged permit violations. These would surely add to an already
enormous backlog in our Federal courts.
A number of State agencies have raised concerns about the
high cost of implementing and administering this program. It is
unlikely that sufficient State resources would exist to
administer such a program in a timely manner. I can tell you
that is true in my own State's budget.
Currently, on the average it takes several years from the
time of making applications for an NPDES permit before a
landowner receives that permit. Adding forestry activities to
the NPDES pipeline will only exacerbate this problem and reduce
effective forest management because many forestry activities
are extremely time-sensitive and weather-dependent.
For example, insect infestation, wildfires and blow-downs
are unpredictable occurrences that must be dealt with in a
timely manner. We all share the goal of clean water. Our Nation
has made enormous strides in cleaning up polluted waterways
since the passage of the Clean Water Act.
However, the EPA has failed to demonstrate that changing
the treatment of everyday forestry activities to point sources
of pollution is warranted. In fact EPA has recognized forestry
activities to be a consistently minor source of water quality
impairment as cited in EPA's own 1996 national 503(b) report.
In my State of Oregon there are about 28 million acres of
forest land representing 45 percent of Oregon's land base.
Sixty percent of Oregon's forest land is publicly owned while
40 percent is privately owned.
Again, Mr. Chairman, this is to shut down the other 40
percent. Oregon's private forest land is regulated under the
1972 Oregon Forest Practices Act which established a visionary
new standard for forest management.
Public forest land in Oregon is protected at a level at
least equal to that provided by the Oregon Forest Practices
Act. As a result, all of Oregon's forest lands are already
required to provide protection to streams, lakes and wetlands.
These regulations, therefore, are unnecessary and will
ultimately be detrimental to forest health. It is just
bureaucracy on top of bureaucracy.
Let me state that I have concerns about these proposals,
both substantively and procedurally. I have summarized my
substantive concerns above, but I am also concerned that EPA
has failed to fulfill a number of requirements for promulgating
a major rule such as this.
I am not sure EPA has accurately assessed the cost of these
proposed rules on State and local governments as required under
the Unfunded Mandates Act of 1995.
Further, that act requires the agency to consider
reasonable alternatives and to select the least costly, most
cost effective or least burdensome of the alternatives or
explain why such alternatives were not chosen. I am not
confident that any alternatives will be considered.
I am also not sure that the Administration has adequately
examined the cost of these rules on small businesses as
required by the Treasury and General Government Appropriations
Act for fiscal year 2000.
The way the EPA initially proposed only a 60-day comment
period is incredible to me. They need to do better by us. They
need to stop acting like, ``peasants, get out of the forest.''
They have done that on the public lands. They should not be
allowed to do that on the private lands.
Mr. Chairman, that concludes my testimony.
Senator Crapo. Thank you very much, Senator Smith.
Senator Smith and Senator Lincoln, if you have time either
now or throughout the time that the hearing is underway, you
are welcome to join us on the dais at any time.
We will now proceed to the second panel. I should say we
have been joined by Senator Craig Thomas from Wyoming. In the
interest of time he has indicated that he will forego an
opening statement.
We thank you very much for that, Senator.
Mr. Peter Guerrero, Director of Environmental Protection
Issues at the General Accounting Office.
Mr. Guerrero, we thank you for appearing before us today.
You may proceed.
STATEMENT OF PETER GUERRERO, DIRECTOR, ENVIRONMENTAL PROTECTION
ISSUES, GENERAL ACCOUNTING OFFICE
Mr. Guerrero. Thank you, Mr. Chairman.
Senator Crapo. I should say, we ask you to try to keep your
testimony to 5 minutes. I think you know the rule on the clock.
We have a very long witness list today, so I am going to remind
all the witnesses of that. Thank you very much.
Mr. Guerrero. Mr. Chairman, I will summarize my written
statement in the interest of time. I also would like to mention
that with me today are two staff members who worked on the
report that was recently released, Trish McClure and Steve
Elstein. I would like to be able to call them up to help answer
questions that you or other members may have after my remarks.
Senator Crapo. Thank you.
Mr. Guerrero. I am pleased to be here to discuss whether
EPA and the States have the data they need to make critical
water quality decisions required by the Clean Water Act. The
Act, as you have heard this morning, has been credited with
greatly improving the condition of the Nation's waters. Much of
this progress has come from addressing point sources of
pollution.
The job that lies ahead will be much more difficult because
it requires greater emphasis on controlling nonpoint sources.
Our ability to effectively deal with these problems depends
heavily on the efforts of States to monitor their waters, to
identify the most serious problems and to develop strategies to
deal with those problems.
Comprehensive and reliable monitoring data have therefore
become especially important. As you know, attention to our
remaining water quality problems has been the subject of both
lawsuits and EPA's proposed regulation.
The first step in this regard involves listing these waters
as not meeting water quality standards under what is called
section 303(d) of the Act. Once listed as impaired, States will
then need to develop and implement Total Maximum Daily Loads or
TMDLs which are intended to help restore water quality by
reducing the amount of pollution these waters receive.
Last year the House Water Resources Subcommittee asked us
to report on whether States have the data they need to carry
out several key activities for managing water quality. In
addition, that subcommittee asked us to determine if the
information in EPA's national water quality inventory report is
reliable and representative of water quality conditions
nationwide.
My remarks today are based on this recently issued report
and will focus on three issues. First the adequacy of data for
identifying waters that do not meet standards even after the
application of required pollution controls, in other words,
impaired waters.
Second, the adequacy of data for developing TMDLs to
restore those waters.
Third, the key factors that affect the States' ability to
develop these TMDLs. We conducted a survey of 50 States
including the District of Columbia. We conducted detailed
interviews in four States and we also interviewed numerous EPA
headquarters and field and regional office officials.
Regarding the first of these questions, Mr. Chairman, only
six States responded that they have the majority of data needed
to fully assess their waters.
We believe this raises serious questions as to whether the
State 303(d) lists of impaired waters accurately reflects the
extent of the pollution problems today.
While State officials we interviewed told us they felt
confident that they had identified most of their serious water
quality problems, some also acknowledged that they would find
additional problems with more monitoring.
Moreover, studies that have involved more thorough
monitoring have identified unforeseen problems. For example, in
1993 an EPA-funded study of toxins in lakes showed wide-spread
levels of mercury in Maine's lakes, despite the belief of State
officials that these waters were meeting standards.
As a result of these surprising findings, the State issued
advisories against the consumption of fish for all of the
State's lakes. While State officials acknowledged they might
not have identified all waters that need TMDLs, they also told
us that there were some waters on their 303(d) lists that may
in fact meet standards and not require a TMDL. The reasons for
this varied widely.
For example, officials in one State said that they had
mistakenly assessed some waters against higher standards than
necessary. In another State officials told us that about half
of the waters on the impaired list were placed there in the
absence of current monitoring data and that subsequent
monitoring data later showed that waters did indeed meet
standards.
Regarding the second issue, the adequacy of data to develop
TMDLs, States reported they had much more of the data they need
to develop these TMDLs for point sources than for nonpoint
sources.
States can easily identify and measure point sources of
pollution because these sources generally discharge pollutants
through pipes or other easily identified sources.
So it is not surprising that 40 States reported they have
the majority of data they need to identify point sources
causing pollution problems. Twenty-nine said they have the
majority of data to develop TMDLs to address these problems.
On the other hand, nonpoint sources, by their very nature,
are difficult to identify and measure. As a result, developing
TMDLs for pollution problems caused by nonpoint sources often
requires additional data collection and analysis.
For this reason, as the chart in front of you illustrates,
few States have the majority of the data they need either to
identify nonpoint sources of impairment or to develop TMDLs to
address these problems.
The bars on the left of that chart there show the numbers
of States that feel confident that they have more than the
majority of the data to identify point sources and develop
TMDLs for those point sources.
There are two bars on the right side which are noticeably
lower and actually involve only three States in each category
and they are the numbers of States that feel they can
adequately right now deal with those nonpoint sources.
States also told us that their ability to develop TMDLs for
nonpoint sources is limited by a number of factors. States
overwhelmingly cited shortages in funding and staff as a major
limitation.
In addition, they reported they needed analytical tools and
technical assistance to use the complex models and methods that
are frequently needed.
Several activities are currently underway at EPA, as
discussed in my prepared statement and in our report, that
could help States in some of these areas. Nevertheless, there
are still critical areas in which States identified the need
for additional tools or assistance. One is the need for expert
advice in using watershed models and analytical methods.
Because many of the remaining pollution problems are caused
by nonpoint sources or a combination of point and nonpoint
sources, States are increasingly faced with complex analysis
that require the use of those types of models.
In addition, EPA could help States to facilitate the
development TMDLs by sharing lessons learned and by
establishing a clearinghouse of information.
Perhaps most important, we believe EPA needs an overall
strategy for identifying and addressing States needs for
developing TMDLs.
That concludes my summary remarks, Mr. Chairman.
Senator Crapo. Thank you very much, Mr. Guerrero. In your
report you find that State officials feel pretty confident that
they have identified the most seriously impaired waters, but
that they would likely find more if they were to have the
resources and the ability to do a more thorough and more
effective evaluation.
You also State that officials report that some waters on
their 303(d) lists don't need TMDLs. The question I have is,
would it appear that the lack of and/or unreliability of the
data could result in solving water problems that don't exist?
Mr. Guerrero. It is clear that additional monitoring will
be needed to implement this TMDL approach and that without it
some States have listed waters on their impaired lists that
will not require a TMDL.
Senator Crapo. I note in reading your report, the full
report, on page 9 there is a chart that shows the percentage of
waters monitored, evaluated and not assessed broken down by
oceans, rivers and streams, lakes and estuaries.
There are sort of four categories of how these waters have
been evaluated and/or not evaluated. The first is waters
assessed using monitoring data. I take it that is sort of like
site-specific assessment. Is that correct?
Mr. Guerrero. That is correct. That is actually taking
samples, analyzing those samples for chemical or physical
parameters.
Senator Crapo. Then the next one is waters evaluated. I
kind of understand that category to be sort of a professional
judgment not based on data, sort of a ``drive-by'' is what I
read that category to be. Is that correct?
Mr. Guerrero. It can be based on monitoring data that is
more than 5 years old and it can be based on professional
judgment.
Senator Crapo. But it is certainly not based on current
data?
Mr. Guerrero. That is correct. It is not based on current
monitoring data.
Senator Crapo. Then the next category is ``waters assessed
using unspecified means.'' Now what is that?
Mr. Guerrero. Well, here I would like to call on Tricia for
that answer.
Ms. McClure. Good morning.
Senator Crapo. Good morning.
Ms. McClure. That is exactly what it is, the States didn't
specify what means they used. In ``unspecified means,'' the
States did not indicate whether it was monitored or evaluated
or what methods they used to determine those assessments.
Senator Crapo. So we don't know how they got that
information?
Ms. McClure. Exactly.
Senator Crapo. All right. Then the last is ``waters non-
assessed.'' I assume that means that nothing was admittedly
done with regard to those waters.
Ms. McClure. Yes.
Senator Crapo. Now, as I look at this chart using those
types of understandings, it appears that much more than half of
all the assessment that has been done has not been done with
site-specific information.
Mr. Guerrero. That is correct, yes. For streams, I believe
is the----
Ms. McClure. On average, it is across all water bodies.
Senator Crapo. Yes. As I say, it is about 50/50 on oceans
and shorelines. It is maybe a little bit more on rivers and
streams out of those that are assessed which is a very
significant minority.
The vast majority of lakes and a little less than half of
all the estuaries have been assessed with information that is
not site-
specific.
Mr. Guerrero. Correct.
Ms. McClure. Correct.
Senator Crapo. To me that indicates a tremendous amount of
room for error. I assume that that error could go either way,
either we will be missing problems or finding problems that are
not really there. Is that correct?
Mr. Guerrero. That is correct. I think another way of
saying that, too, is that it indicates how much more data are
needed to approach this particular problem and to do it in the
best way possible with the least cost.
Senator Crapo. All right. Well, thank you very much. I have
no further questions at this point.
Senator Wyden.
Senator Wyden. Thank you, Mr. Chairman. I want to followup
on exactly the same line of questions that the Chairman did and
start by saying that I would like you all to give us a sense of
how much it would cost the States to require the data needed
under the EPA proposed rules.
Mr. Guerrero. We were told that developing the data
necessary to support a TMDL averaged about 40 percent of the
cost of developing the total TMDL package. In other words,
there are various activities associated with a TMDL. The data
development costs with that could be up to 40 percent.
So it is a very substantial part of the price.
Senator Wyden. Do the math for me, so that I don't have to
go back to the office and take out an abacus.
Mr. Guerrero. In terms of dollars?
Senator Wyden. Yes. What is it going to cost the States?
What you have here, folks, is you have five members of the U.S.
Senate, and I suspect the Senator from Wyoming is in our camp
as well, who don't agree with what the EPA is doing.
I have made it clear that while I do not agree with what
the EPA is doing, I want to suggest a constructive alternative
that builds on these State initiatives.
One of the key questions for us to look at, you know, a
bipartisan alternative, is to get a sense in real dollars of
what it is going to cost the States to acquire the data.
So, can you give us a ballpark of what it will cost them?
Mr. Guerrero. Yes. You are asking exactly the right
question. We have been asked that question as a followup to
this work by the House Water Resources subcommittee and we will
be looking at that issue.
Senator Wyden. Well, give us the minimum price tag this
morning.
Mr. Guerrero. We cannot without doing an analysis of that
issue. We have not even started that analysis yet. We
anticipate we will be starting it shortly. So, we just have not
done any work there to give you any feel for that.
But as soon as possible we will report that information
because I understand that it is really the crux of the issue
here.
Senator Wyden. When could we be given an analysis that
would show exactly how much this would cost in our States?
Mr. Guerrero. Without sitting down with my economists and
my lawyers, because there are issues, as you have heard this
morning, as to whether the Unfunded Mandates Act should apply
or should not apply as EPA has maintained it does not.
It is hard for me to give you an estimate. As soon as we
can I will do that.
Ms. McClure. I think it is important to point out that EPA
is conducting a study called the GAP analysis looking at the
cost not only of TMDL implementation, but all aspects of water
quality management programs. They are supposed to be finalizing
a methodology for estimating costs this Spring and would
presumably, after that, implement it across the States.
Senator Wyden. What is really striking about this, Mr.
Chairman, is that you are supposed to do those cost analyses
before you go forward. Here we have a situation where in effect
we have a rule out there, tremendous, you know, time crunch.
We have the GAO saying that they do not have the numbers in
terms of what it is going to cost. They have talked to the
agency and the agency is doing an analysis so that at some
point some day down the road they are going to have an idea of
what it is going to cost.
And yet we are going to stick it to small landowners at
this point. I think that that sort of shows to me the fallacy
in the way this process has evolved.
The only other questions I have involve some technical
matters.
Do you see any evidence that EPA is at least sharing some
of the data they are picking up with other agencies, like USGS
and other agencies so that again we don't just go out and
duplicate these exercises again and again?
Ms. McClure. Can you clarify what type of data you are
referring to?
Senator Wyden. Well, the kind of data that is going to be
collected under this proposed rule is going to be useful for
other agencies like USGS and we have gotten kind of mixed
reports about whether they are sharing the data. Are they?
Mr. Guerrero. Yes. We did recommend that in terms of EPA's
reporting of water quality that they need to do more of that.
In response to our recommendation in that regard, EPA said they
already do it.
We don't think that they do enough of that. We think there
is a potential for more sharing of that type of information.
Senator Wyden. My last question is about the technical
assistance area. As far as I can tell you say they are coming
up short as well. Is there any evidence that EPA is responding
to this?
Ms. McClure. They did initiate work on a strategy to try to
identify State needs and what type of activities EPA needs to
develop to support TMDL development. However, they put that
effort on hold and have not started that effort again.
In our report we recommend that EPA needs to do that.
Senator Wyden. Well, I think this sort of highlights it,
Mr. Chairman. They are short in terms of technical assistance.
They are short in terms of sharing data collection with other
Federal agencies.
We are now going out and collecting the cost data that
would be relevant to what States would need to know after there
is a proposed rule. I think it just highlights the need for us
to come up with an alternative, to come up with an alternative
promptly.
It seems to me that is how you create the strategy that is
in the public interest, that ensures water quality and
minimizes legitimate and avoids unnecessary burdens to
landowners.
I am going to have to depart as well, but I want to
reiterate, as I have with you, Mr. Chairman, that I am very
much looking forward to proceeding with an alternative out of
this subcommittee quickly.
Senator Crapo. Thank you very much, Senator.
Senator Thomas.
Senator Thomas. Thank you, Mr. Chairman.
You have, I presume, dealt with the States and their
agencies as you did this. I also assume that most people or
most of us would like to do something with impaired streams and
so on.
What sort of a reaction did you get? How did States and
agencies on the State level believe they could best proceed?
Ms. McClure. States definitely indicated they prefer to
deal with these complex nonpoint source problems through the
phased approach. Since nonpoint source problems are very
difficult to understand and require a good bit of monitoring
and analysis to be able to get to that point to develop a
definitive TMDL, they would much prefer to take a phased
approach, implement BMPs on likely sources that are serious
contributors and then monitor to see how well these actions are
working.
Senator Thomas. Are they in a position to do that, most of
them, do you think?
Ms. McClure. Yes.
Senator Thomas. So they could move forward in it. Is this a
time imperative thing? Are they being pressed by these proposed
rules in terms of time? Is that their feeling?
Ms. McClure. They are pressed by the lawsuits being forced
to develop TMDLs and in some States feeling the pressure of
impending lawsuits so they feel the pressure to develop TMDLs
in a certain way.
Senator Thomas. Is there any inclination, do you think, or
are they interested in making some changes in their own
operations to move along in these directions?
Ms. McClure. Well, I think in some States we talked about
their being forced to shift resources from other areas to deal
with TMDLs and it may be sacrificing other areas of their
program. So, States are certainly coming to attention in trying
to develop TMDLs and deal with polluted waters.
Mr. Guerrero. I would add, Senator, that the issue of
resources comes up time and time again, the competition for
scarce resources, the resources necessary to do the monitoring
and to develop the data to implement this type of program and
the data necessary to sustain it.
It is an iterative process, as Trish said, where once you
put in place best management practices you do need to monitor
and assess whether they are achieving their intended results
and you need to make adjustments over time. That additional
monitoring cost is a resource issue.
Senator Thomas. The cost, is it a need to implement what
they already know or is it a lack of scientific data, technical
data, analysis?
Mr. Guerrero. I think what we tried to convey in our
statement was that there just is a need for more comprehensive
monitoring of the Nation's waters to have some greater
assurance that the right bodies of water have been identified
to go through this very challenging process.
For those that there is confidence that the waters are
impaired and there is a reasonably good understanding as to
what those sources of impairment are, they can go down this
route. But again, it needs to be an iterative type of process.
It is a process where data will continue to be developed as
practices are put in place over time and monitored for their
effectiveness.
Senator Thomas. So they generally feel as if they can do it
given the resources and given the time if they are inclined. I
guess I am also interested in how they see this is in terms of
the division of responsibility of the States as opposed to EPA
laying down the rules. How do they feel about that?
Mr. Guerrero. Well, I think as you heard today from your
colleagues here, there is a lot of concern out in the States
that EPA's approach is too proscriptive and too top-down. EPA,
of course, maintains otherwise, that they are trying to be
flexible.
I think the key will be how EPA responds to the numerous
comments it has received to date from both you and from the
public in response to the rulemaking.
Senator Thomas. Responses from up here have been rather
specific, I would say. Wouldn't you? Thank you very much.
Thank you, Mr. Chairman.
Senator Crapo. Thank you. I would like to followup with
just a couple of questions, getting back to the line of
questions that Senator Wyden began, namely the cost of
compliance and the cost that we expect from the States.
I recognize your answer that you haven't done that analysis
yet, but I want to push you a little further and see if I can
get a little more information.
The EPA says they are going to do this on June 30th. Can
you give us an answer by then?
Mr. Guerrero. We will certainly aim to get you an answer by
then if that is the Agency's date.
Senator Crapo. I agree with Senator Wyden, and I'm sure
Senator Thomas agrees. It's my understanding of the process
that this analysis is supposed to have been done by the Agency
on their part before they start so that they can determine
whether the Unfunded Mandates Act applies as well as fulfill a
lot of the other responsibilities for getting information.
It is remarkable to me that we are here now essentially 3
months from a deadline that is imposed on a fast track for this
rule and we still don't know what the costs are.
In our last hearing, you may or may not be aware that we
had some pretty dramatic information presented about what the
costs are going to be. That leads to my next question. The
Unfunded Mandates Act requires, if I remember, the level that
if it is over $100 million impact that the act then applies.
The EPA has said that the cost of this is only going to be $25
million. Do you have an opinion as to whether this is going to
be more than $25 million?
Mr. Guerrero. Well, that is exactly the questions we have
been asked to answer. At this point we don't but hopefully we
will in time.
Senator Crapo. I can't even get you that far, right? Well,
I do. I have an opinion on that. It seems to me that we are
going to be looking at a figure that is a lot more than $100
million.
But the sooner we could get that information, the better.
So I would encourage you to fast track your analysis so that we
can keep up with this process.
Mr. Guerrero. OK.
Senator Crapo. Ms. McClure, you indicated in your answer
that the EPA was doing something along this line of analyzing
it cost-wise. Could you elaborate on that a little bit?
Ms. McClure. I didn't mean to imply that they had not
analyzed costs of the proposed rule, but, that they did in fact
do an assessment of costs for the additional requirements over
current requirements in the proposed rule.
The separate study that I mentioned called the GAP analysis
is a study that I think they initiated because they knew that
water quality programs have historically been under-funded and
that TMDL emphasis has shifted some resources away from other
programs in water quality management programs within the
States.
So they wanted to get a complete understanding of the water
quality management programs requirements for implementing the
Clean Water Act.
Senator Crapo. Is that information that they are working on
in that study something that you are going to have to have for
your evaluation of the costs?
Ms. McClure. It is certainly something that we will look at
as a source of information as we proceed.
Senator Crapo. But you will not be relying on that? In
other words, you are not going to wait to see what they do
before you do your analysis?
Ms. McClure. No.
Senator Crapo. Can you finish your analysis without them
finishing that study?
Ms. McClure. I believe we can.
Senator Crapo. We expect that a lot of people are going to
be using the 305(b) report numbers in their testimony today.
The questions is: Do you think that the EPA and others should
be reaching conclusions based on this data and, in the EPA's
case, producing a regulation based on this data?
Mr. Guerrero. I think the data in the 305(b) report have to
be very carefully qualified based on our work. The monitoring
that is done is not comprehensive and the types of monitoring
that are done differ from State to State.
So, the 305(b) report, as one of the few national reports
of water quality, has to be very carefully caveated as to what
its limitations are and reaching conclusions from it have to be
cognizant of those limits.
Senator Crapo. Well, what I am hearing you say is that
essentially we are in a large sense flying blind here, both in
terms of the cost numbers as well as the terms of the data on
which we are trying to analyze this proposed rule.
Mr. Guerrero. We have two problems. One is that we don't
have as comprehensive data as we need. Then for specific waters
we just don't know enough about the sources of problems and the
nature of those problems to effectively deal with them.
Senator Crapo. Thank you. Did you have anything further?
Ms. McClure. The data issue goes beyond just whether or not
we can implement this proposed rule or are we representing
water quality problems nationwide.
I think there is wide agreement that we have a lot of water
quality problems that we need to deal with. Now we are
beginning to increase our investment in these areas. The need
for good data and reliable information on the extent of the
problem and whether we are addressing those issues effectively
becomes that much more important.
Senator Crapo. Thank you. I have no further questions.
Senator Thomas, do you?
Senator Thomas. No, thank you.
Senator Crapo. All right. We thank you very much for your
testimony and wish you Godspeed in preparing the report.
Mr. Guerrero. Thank you.
Senator Crapo. We would like to now call up the third
panel, Mr. Robert Wittman, the supervisor of Westmoreland
County in Montross, VA; Mr. David Skolasinski, district manager
of Environmental Affairs from the Cliffs Mining Services
Company; Ms. Nina Bell, executive director of the Northwest
Environmental Advocates, Mr. Jeff Pardue, director of
Environmental Services at Florida Power Corporation; Mr. Norman
E. LeBlanc, chief of Technical Services at Hampton Roads
Sanitation Districts.
While the panel is taking their seats, let me check what
the beeper is telling me.
OK, I have a couple of instructions. First of all, the
beeper and the bell says that we just had a vote call. It is my
understanding that there will be two votes stacked. So I can't
just run over and vote and the other Senators who may be trying
to get here can't just vote and come back.
But what I think that I will do is, we will go ahead for
about 10 minutes so that I get quite a ways into this vote so I
can run over and vote and then hopefully the next vote will
take place shortly thereafter and I can cast that vote and get
back here and resume the hearing.
We may have to take a break until I can get over and get
the vote finalized. So, to the witnesses and to those here for
the hearing, I apologize. There will be a short recess and I
will make it as short as possible so that we can then resume.
The other thing is, as you can see this is a large panel
and we have another large panel following it. So I ask you to
please watch the clock and if necessary, I may interrupt you
and ask you to bring your testimony to a close after 5 minutes.
The yellow light means there is 1 minute left. When the red
light comes on, I would ask you to try to sum up to where you
are as quickly as possible.
I will assure you that I have and the other Senators will
review your testimony very carefully. It will be a part of the
record. It is made available for the public. Our staff also
will be reviewing it very carefully. So, if you don't get a
chance to say everything, and you never do, please be assured
that what you have to say will be very closely evaluated.
With that, why don't we start and try to get a couple of
you before I have to run over for the vote. Let's start out in
the order that we introduced you.
Mr. Wittman.
STATEMENT OF ROBERT J. WITTMAN, SUPERVISOR, WESTMORELAND
COUNTY, MONTROSS, VA
Mr. Wittman. Thank you, Mr. Chairman. I am pleased to be
here today to testify on behalf of local governments in the
middle Atlantic region and on behalf of the Virginia-
Rappahannock River Basin Commission concerning the
Environmental Protection Agency's proposed changes to the
national TMDL program.
Local governments in the mid-Atlantic region and the
Virginia-Rappahannock River Basin Commission are major
stakeholders in the Chesapeake Bay Program which stands as a
highly successful alternative to the traditional Clean Water
Act command and control approach.
It is based upon partnership and is successful because it
depends principally on agreement rather than mandate to achieve
its goals.
The Bay Program is very similar to the TMDL program. For
example, each Bay's signatory jurisdiction is implementing a
tributary strategy process geared toward identifying and
achieving stakeholder-developed restoration goals. These
tributary strategies account for all loading sources and are
blueprints for achieving and maintaining desired pollutant load
reductions from a wide array of point and nonpoint sources.
The Bay Program will achieve the same end points as would a
properly implemented TMDL program. It will do so without resort
to a Federal mandate. That means greater flexibility to develop
and implement the most cost-effective controls at a much faster
pace than would be possible under the TMDL program as we know
it.
The Bay Program is a performance-based approach where
innovation is stimulated and stakeholder initiated water
quality solutions are accelerated. The advantages of these
performance-based programs are that they stimulate innovation
in water quality improvements, they stimulate stakeholder
initiated water quality solutions and they accelerate the
protection and restoration of water quality nationwide.
We believe that TMDL rules must accept and encourage non-
traditional stakeholder initiated efforts such as the Bay
Program and the Rappahannock River Basin commission.
The proposed TMDL rule has several disadvantages. It
eliminates the alternative pollution control programs. It does
not recognize non-command and control approaches in water
quality programs. The proposed TMDL rule should empower State
and local governments as well as other stakeholders nationwide
to engage in water quality restoration efforts.
My experience has been locally that community-based
cooperative programs can be highly successful in achieving
significant water quality improvements. The proposed TMDL rule
must accommodate and encourage the development of non-
traditional water quality initiatives and recognize the vital
role that alternative programs like the Chesapeake Bay Program
play today in water quality improvement efforts.
It also must promote an even greater role for existing and
similar initiatives going forward and ensure that the States
will have the flexibility to integrate effective non-
traditional approaches.
The signatories to the Bay Agreement have agreed to embark
on an unprecedented process of integrating the TMDL program
into the Bay Program. They are committed to giving the
opportunity to remove impairments before establishing one or
more TMDLs for the bay.
Avoiding TMDL establishment is a powerful incentive for
expeditious implementation of water quality controls under the
Bay Program.
We ask the subcommittee and the full Environment and Public
Works Committee to ensure the final TMDL rule allows the
seamless integration of the Chesapeake Bay Program and
stakeholder-based programs in your States with the TMDL
program.
We believe that there are several obstacles, though, to
this integration effort. EPA and States should not be required
to use NPDES permits as the sole mechanism for implementing
TMDLs for point sources.
There are a wide variety of mechanisms that have been
successfully employed to achieve the Bay Program's nutrient
reduction goals. Some are regulatory in nature. Some are not.
But none are Federal mandates.
Virginia and Maryland have utilized grant agreements as
mechanisms to implement biological nutrient reduction at
publicly owned treatment works. They have signed many, many
agreements. These grant agreements provide up to 50 percent
grant funding and have total to date hundreds of millions of
dollars of investment into biological nutrient reduction. Not
one of these publicly owned treatment works has refused to
execute a grant agreement when offered the opportunity.
The proposed TMDL program threatens to replace the
cooperative grant agreement programs in Virginia and Maryland
with NPDES permit limits.
EPA should give us the opportunity to remove impairments
before TMDL is established. The Bay Program will have little
meaning if one of its most accepted and successful
implementation mechanisms is replaced by Federal mandate.
We ask that EPA improve on its draft proposal by restoring
the Bay States' discretion to continue to utilize grant
agreements as its primary mechanism for implementing point
source nutrient controls.
We do not want States to be precluded from using nutrient
limits, only that their discretion to use grant agreements and
other mechanisms be preserved.
The second obstacle to the integration effort is EPA's
offset requirement. We feel it is unnecessary under the
Chesapeake Bay TMDL integration process. The bay agreement
contains an interim cap strategy that has the same goal as the
EPA's offset rule, that is, to avoid increased loadings of
pollutants contributing to the bay's impairment until loading
capacities for the bay and its tidal tributaries are identified
and allocated.
The Bay Program loading cap will apply to far more sources
than would be possible under the EPA's TMDL program. EPA's
offset proposal threatens to bring to a halt continued
voluntary point source nutrient reductions.
Publicly owned treatment works in the bay watershed have
and continue to voluntarily install nutrient controls based
upon Federal and State assurances that they will not be
penalized for such efforts.
Their reliance on these assurances may have been misplaced.
The publicly owned treatment works that voluntarily install
nutrient controls may lose offsets from these upgrades that
they will need for future growth.
This uncertainty is sure to slow if not halt commitments by
point sources to voluntarily reduce their discharge of
nutrients. The offset rule is also inconsistent with the
promising concept of smart growth. With the reality that urban
waters do not consistently and never will meet today's
stringent water quality standards currently in place, the
offset rule provides a strong disincentive or even prohibition
on renewal projects. This pushes growth to undeveloped green
field areas which promotes sprawl and the degradation of more
healthy and productive watersheds.
Finally, I urge you and your colleagues to require the EPA
to hold a second public comment period on the agency's proposed
revisions to the TMDL rules. A second opportunity is warranted
given the sheer number of comments the EPA received, as well as
the number of open-ended questions on which EPA sought public
comment.
This will hopefully provide an opportunity to comment on a
more focused proposal from EPA and is a matter of fundamental
fairness in this instance.
Thank you.
Senator Crapo. Thank you very much, Mr. Wittman. I think
that because of the time I am going to recess the hearing at
this point and, as I said earlier, I will return as quickly as
possible after the second vote that takes place.
Thank you very much. The hearing is in recess.
[Recess.]
Senator Crapo [resuming the chair]. The hearing will come
to order.
I thank everybody for your patience and as soon as the
bells quit ringing here we will start right up again.
Mr. Skolasinski, would you like to begin?
STATEMENT OF DAVID SKOLASINSKI, DISTRICT MANAGER, ENVIRONMENTAL
AFFAIRS, CLIFFS MINING SERVICES COMPANY, DULUTH, MN, ON BEHALF
OF THE NATIONAL MINING ASSOCIATION AND THE IRON MINING
ASSOCIATION OF MINNESOTA
Mr. Skolasinski. Mr. Chairman and members of the
subcommittee, my name is Dave Skolasinski. I am pleased to be
here today to testify on behalf of the National Mining
Association as the chairman of the Environmental Committee for
the Iron Mining Association of Minnesota.
In my 26 years of environmental management experience with
the mining industry, this TMDL proposed rule worries me and
worries me for the future of my industry more than any other
regulation I have dealt with in my career.
I want to focus my comments today on three particular
aspects of the rule. These are historic legacy pollutants,
mandatory offset provisions, and the alternative solutions that
we would like to address.
The historic legacy issues are involved in impairment of
water quality due to historic pollution problems, and these
often manifest themselves in relation to contaminated sediments
and many natural sources of materials, of pollutants. Some of
these natural sources include forest fires, volcanic activity,
and also naturally occurring metals in certain geologic
locations. Often these naturally occurring metals manifest
themselves in water quality and lead to the discovery of ore
bodies for the mining industry.
In addition, there are certain industrial processes that
have added to the legacy problems. In northeastern Minnesota
the specific example of one of these issues, is contaminated
sediments. With relation to mercury what we find is that 90
percent of the mercury that is currently in the State's waters
is originating from outside of the State and moves into the
State through air deposition.
The sources of this mercury are both from national and
international sources. Under the TMDL rule, even if you brought
all of the point source dischargers to zero with mercury you
would not have any measurable effect on the mercury in the
water or in the fish tissue that is there, again as a result of
this 90 percent addition from the outside.
In addition there are other naturally occurring sources of
other metals and in these situations again the TMDL-derived
limits on point sources will never achieve water quality
standards.
Under the mandatory offsets these are required for new and
increased discharges of pollutants into listed waters.
Again, in my example of northeastern Minnesota, the entire
region is listed, all waters in the region are listed as
impaired for mercury. Under this situation there literally are
no offsets available. Even if an offset became available in the
future, it is unlikely that any entity who had that offset
would ever sell it. They would hold it for their own reserve,
for their own future expansion.
Now, unfortunately, in the mining industry we have to mine
our ore bodies where they are found. We can't pick up and move
as some other industries might to a different area. We have to
be very cognizant of what the economic impacts of complying
with these regulations would be because we have to compete on
the international markets. We cannot pass on these costs to
consumers.
Another example of this is that we have a municipal waste
water consolidation project in progress in the region whereby a
number of small communities that provide minimal treatment of
their sewage effluents intend to consolidate and pipe their
effluents down to a regional facility to provide better
treatment.
However, this is going to result in an increase in the
mercury discharge at the regional plant. Because there are no
offsets available, this project may be prohibited from going
forward. So the result is continued poor quality discharges
going out from these small treatment plants.
As far as alternative solutions, one of the things we would
like to promote is that the States be given the flexibility to
develop local solutions to their specific problems. The
watershed approach is certainly one of the things that we
promote and especially through voluntary efforts.
In Minnesota right now we have a voluntary mercury
reduction program where through this program based on 1990
inventory levels there has been a 50 percent reduction of
mercury and we are hoping to meet a 70 percent reduction by
2005. This program is well underway and quite successful to
date.
In addition, we are developing a TMDL program for our local
river system and this is in its early stages. But we are
fearful that the prescriptive nature of the TMDL program may
bring this process to a premature close.
In conclusion I would like to urge you to request that EPA
slow down and carefully address the comments that have been
submitted to date and to focus on developing an approach that
properly addresses the problems with the rule. Thank you very
much.
Senator Crapo. Thank you very much.
Mr. Skolasinski. I would be happy to answer any questions
that you may have.
Senator Crapo. I appreciate that. I should tell you, my
wife is from Minnesota so I have a special affinity for that
place, too. It's just about as good as Idaho.
Ms. Bell.
STATEMENT OF NINA BELL, EXECUTIVE DIRECTOR, NORTHWEST
ENVIRONMENTAL ADVOCATES, PORTLAND, OR
Ms. Bell. Thank you. Mr. Chairman and members of the
committee, my name is Nina Bell. I am executive director of
Northwestern Environmental Advocates. I work in Portland, OR on
Oregon and Washington water quality issues.
I was also a member of the EPA's Federal Advisory Committee
on this TMDL rule.
Today I would like to briefly explain what the law is
regulating point sources through the NPDES permit program and
place that in a practical context. Simply put, the Clean Water
Act requires point sources to meet water quality standards or
put it another way, not to cause or contribute to water quality
standards violations. That is sections 301 and 302 of the Clean
Water Act and EPA's implementing regulations.
In order to carry out those restrictions on point sources
and to achieve an equitable result, equitable between point
sources and between nonpoint and point sources in a water body
or watershed we need two things. First we need TMDLs because
TMDLs allow us to allocate responsibility for pollution
reductions from all sources in evaluating their cumulative
effects on a water body.
We cannot determine if point sources are causing or
contributing to water quality standards violations in the
absence of a TMDL.
Second, we need nonpoint source controls. Under both the
existing act and EPA's proposed rules, nonpoint source controls
are not federally regulated and, in fact, TMDLs themselves are
not permits. They are, because of the uncertainty that we have
already heard about today in terms of regulating nonpoint
sources or even not regulating them but understanding what
controls will result in reductions of pollution loads.
They are by nature subject to an interim process meaning
that they need to be adjusted over time and have a review
afterwards. That is a fact with EPA's proposed regulations on
implementation plans, this idea of the iterative process.
Finally, the reason why the Federal Advisory Committee
recommended implementation plans, because they understood the
importance of that and included 4 pages of detailed content for
this implementation plan.
Implementation plans will align the multiple different
types of nonpoint source controls that are out there already
and provide for seamless connections between the technical
analysis of a TMDL and the actions that need to be taken.
This is necessary for point sources in order to meet legal
requirements.
In summary, EPA's rule did not overstep statutory
authority. The proposal is not perfect but it will lead to
improved equity and environmental protection. It will maintain
substantial State flexibility that already exists in water
quality standards, nonpoint source programs and allocations
made at the local level.
Last, the TMDL program remains necessary to protect the
public health, for fish and for wildlife, the promise that the
Clean Water Act made to the public in 1972.
Thank you.
Senator Crapo. Thank you very much, Ms. Bell.
Mr. Pardue.
STATEMENT OF JEFF PARDUE, DIRECTOR, ENVIRONMENTAL SERVICES,
FLORIDA POWER CORPORATION, ST. PETERSBURG, FL
Mr. Pardue. Thank you, Mr. Chairman. I am Jeff Pardue,
director of Environmental Services at Florida Power
Corporation. I am testifying for Florida Power Corporation, the
Edison Electric Institute and the Clean Water Industry
Coalition.
We are pleased to testify on EPA's proposed revisions to
the TMDL program. I will summarize our concerns emphasizing how
State initiatives to improve water quality will be undermined
if the agency's proposals are finalized.
We are firmly committed to effective watershed management
strategies as the best way to approach our remaining water
quality problems. These problems are more challenging, complex
and varied than those of the past.
Solving them requires better knowledge, objective water
quality standards and more comprehensive, valid and accurate
data. The effort also requires time, a commitment of resources
and a flexible iterative approach to managing aquatic
ecosystems and accommodating the tremendous variations that
occur between water bodies.
TMDLs can be a useful tool to improve water quality. We
don't believe, however, that Congress intended the TMDL
provisions to be the central means for resolving all water
quality problems.
We fear that EPA's proposals will impede further
development of successful watershed management strategies. Such
strategies have both regulatory and non-regulatory elements and
allow States to make water quality progress in the face of
uncertainty.
It makes a difference how these parts are combined. EPA's
proposed rules, with its rigid requirements and Federal
approvals are inflexible. Even if the agency grafts into this
structure an accommodation for voluntary steps, the rules will
still jeopardize the best features of successful watershed
strategies.
Mr. Chairman, Florida Power Corporation is proud of our
contribution to improving water quality. In 1999 we helped
Florida develop a TMDL statute to meet the requirements of
section 303(d). Stakeholders worked with legislators to craft a
scientifically driven listing process that is followed by an
equitable allocation among sources in a site-specific and cost-
effective manner.
Florida proceeded with the understanding that its new TMDL
law met Federal requirements. Our law and its success is now in
jeopardy because in settling a lawsuit EPA has committed to a
Federal takeover of Florida's activities if the State does not
meet certain deadlines. But deadlines cannot be met under
Florida's Administrative Procedures Act.
Mr. Chairman, I will outline some specific concerns we have
with the proposed rules. EPA wants to finalize the proposed
rules by June 30, 2000. We believe it is more important that
the rule be done right rather than quickly. This is a
discretionary, not a required rulemaking.
Dischargers face increased production costs, curtailed
economic growth and the possibility of mandated operational
modifications if they are located on or near a listed water.
The agency, therefore, should insist on the use of high
quality, monitored data for listing and TMDL development. We
think EPA's proposed listing criteria is too broad and defeats
the purpose of identifying and prioritizing truly impaired
waters. Listing waters that are threatened, impacted by
pollution, air deposition or unknown causes should be
approached through other Clean Water Act tools.
The TMDL program should encourage the most cost-effective
pollutant reductions. This cannot be accomplished if the offset
provisions and other enforceable regulatory restrictions are
imposed prematurely on point sources.
We believe that States are in the best position to manage
impaired waters. EPA should not write rules that pre-judge the
outcome of a TMDL.
Mr. Chairman, we hope the subcommittee will consider
whether EPA's proposal is good public policy and can work in
practice. We also hope you will consider at least taking the
following steps: Prevailing on EPA to take the time to get the
rule right; providing more funding for monitoring and data
collection by the States; assuring that the data used for
listing and TMDL development is high-quality monitored data;
and clarifying that States have the authority to evaluate and
conclude that current watershed strategies, habitat
conservation plans, and environmental decisions made under
other environmental statutes are adequate to meet water quality
standards and therefore do not have to be reopened under the
TMDL program.
Finally, we encourage you to review the resource needs of
State and local governments and the costs of the entire TMDL
program. You will then be better able to evaluate the merits of
the agency's proposed rules and appropriately address the
substance and funding issues.
Thank you.
Senator Crapo. Thank you very much, Mr. Pardue.
Mr. LeBlanc.
STATEMENT OF NORMAN E. LeBLANC, CHIEF OF TECHNICAL SERVICES,
HAMPTON ROADS SANITATION DISTRICTS, VIRGINIA BEACH, VA
Mr. LeBlanc. Mr. Chairman and members of the subcommittee,
my name is Norm LeBlanc. I am chairman of the Water Quality
Committee of the Association of Metropolitan Sewerage Agencies
or AMSA.
I have served on the front lines of the campaign to clean
up the Nation's waters for nearly 30 years. The last 20 have
been managing the Environmental Permitting and Compliance
Programs for 13 of the Hampton Roads Sanitation Districts'
treatment plants. That is in southeastern Virginia.
I greatly appreciate the opportunity to share with you the
experiences of the waste water treatment community with regard
to the Clean Water Act and more specifically TMDLs.
AMSA represents more than 240 municipal governments. Its
members treat 18 billion gallons of waste water every day and
provide service to the majority of the sewered population of
the United States.
AMSA members hold NPDES permits and many such as myself
have discharges that are located on 303(d) waters.
As veterans in the water pollution field, we are
sympathetic to the gaps in our economic and scientific data,
lack of funding and the absence of a consistent, comprehensive
mechanism for monitoring and regulating nonpoint sources.
However, if States ultimately are not authorized to develop
TMDLs that require load reductions from nonpoint sources, EPA
and the States will be forced to rely exclusively upon point
sources that secure the pollutant load reductions necessary to
meet the water quality standards as required in the Clean Water
Act.
AMSA supports the provisions in the proposed rule for
equitable controls on both point and nonpoint sources, State-
developed implementation plans and the requirements for States
to develop sound methodologies for listing and priority
rankings.
That last point I need to emphasize because we cannot
afford any more ``drive-by TMDLs'' that are based on little or
no data.
The recent draft TMDLs that are being produced, now that we
have a chance to look at them, show a real lack of resources
and a lack of understanding of holistic solutions to attain the
requirements in the Clean Water Act, sometimes euphemistically
called ``nitwit science.''
The proposed rule makes it clear that addressing nonpoint
sources is critical to the TMDL program. In fact, the TMDL
program cannot move forward unless nonpoint sources fully
participate.
Specifically, we recommend proportionate responsibilities
be adopted in allocation of pollutant loading reductions as
well as parallel implementation of compliance schedules in
blended waters where both point and nonpoint sources exist.
While supportive of some of the proposed changes, AMSA does
have major concerns with the overly broad approach EPA has
chosen for a listing criteria and expansion of the authority in
the permitting issuing process.
EPA's proposal inappropriately expands its statutory
authority to require a listing of waters under 303(d). Issues
such as MCLS, threatened waters, fish advisories,
antidegradation, and pollution should not be considered in the
listing under 303(d).
Listing should be limited to impairments caused by
pollutants from either point or nonpoint source water
discharges that are controllable under the Clean Water Act. In
other words, if the Clean Water Act cannot fix the problem,
then it should not be listed under 303(d) of the Clean Water
Act.
AMSA has major problems with the proposed changes to the
NPDES permit and the antidegradation policy. Dischargers
wishing to increase loadings to TMDL-listed water segments
should not be bound by any kind of mandatory offset provision.
The regulations should recognize that increased loadings
from point sources may be insignificant compared to the total
loadings to the system. Therefore, any reasonable further
progress provision must be extremely flexible and both
pollutant as well as site-
specific.
We believe that it is crucial that existing permit limits
remain in place until the TMDL has been finished and approved.
Right now POTWs are facing NPDES permit changes as soon as the
water is listed, before the TMDL process even begins.
This is very problematic to municipal governments because
we must have a defined long-range plan for improvements to the
treatment process. Frequently changing permit conditions can
cause a great deal of wasted resources because the processes
that you install to meet an interim limit may be completely
incompatible with the processes that you will ultimately need
to meet your TMDL load allocation.
We are also concerned about the lack of flexibility in
implementing control measures. EPA and the States are relying
exclusively on permit limits, failing to recognize that there
may be more effective and less costly alternatives for
implementing TMDLs for both point and nonpoint sources.
We concur that EPA and the States need the authority to
impose permit requirements on all sources that fail to
cooperate in the TMDL process. However, they should be
considered the least favored option and one of last resort.
HRSD is a main player in the Chesapeake Bay and I
wholeheartedly support the statements by Mr. Wittman that EPA
should include provisions in the TMDL rules that recognize
alternative, non-traditional ways of dealing with water quality
problems.
Finally, but of equal importance, is the very basis of the
TMDLs themselves. The entire focus of the TMDL program is to
achieve designated uses and supporting criteria. In fact, most
uses were established 30 years ago without much scientific
analysis, with little or no policy debate and certainly without
the regulatory consequences that we have today.
They were in essence wish lists which have now become
mandatory requirements. We are now finding out that in many
cases those uses may not either make sense or may not be
attainable.
Before we spend billions of dollars and millions of hours
nationwide on a TMDL program we need to ensure that our water
quality goals, that is the very foundation, the very basis of
the TMDL program are both achievable and sensible from an
economic and scientific point of view. That is why we strongly
urge EPA to revisit the water quality standards rules before
embarking, on a massive, nationwide TMDL effort.
We concur, Mr. Chairman, with the remarks that you made
earlier today about the American public needing a full
accounting of the TMDL program, what it costs in order to
obtain the data in order to do the TMDLs, and to comply with
the requirements of the TMDL itself.
On behalf of the municipal waste water colleagues, I thank
you for the opportunity to present these comments to the
subcommittee.
Senator Crapo. Thank you very much, Mr. LeBlanc.
I would like to address a question and talk about an issue
that each member of the panel has in one way or another address
and just flush it out a little bit more.
The issue is there seems to be a tension between the
concept of how we regulate point source versus nonpoint source
water quality problems both in terms of whether there is
jurisdiction under the act to do so and there is a disagreement
among people about whether there is even jurisdiction to do so.
Second, in terms of how it is done and whether the way we
approach it may end up pushing the burden more one way or the
other way than is properly allocated.
Let me go with the first part of that, the jurisdictional
question. Ms. Bell, you addressed that most directly in your
testimony. It seems to me that the position of those who say
that the rule is not seeking to expand EPA jurisdiction over
nonpoint source pollution beyond its current authority is based
on the argument--and I want you to tell me if I am wrong in
understanding this--is based on the argument that EPA is simply
requiring the States to establish the TMDLs and come up with a
plan and the plan that the States come up with is up to the
States and therefore the EPA is not mandating that they do
anything necessarily with regard to the nonpoint sources.
Am I correct so far?
Ms. Bell. Yes.
Senator Crapo. To me there is a problem with that, though,
because we have had other witnesses tell us and I have talked
with people privately who indicate that as a pure technical
matter that may be true but that the States have to then exert
regulatory authority over the nonpoint sources in order to have
their compliance plan work and if they don't and if the EPA is
not satisfied with what the States do, the EPA can step in and
take over and do it itself. Am I getting off course yet?
Ms. Bell. Now you are off course.
Senator Crapo. OK. Would you clarify that to me?
Ms. Bell. Well, first of all, EPA has always taken the
position, and I think still takes the position, that nonpoint
sources can be regulated at the State level or can be subject
to incentive programs, what I call pseudo-regulatory programs
of which we have some in Oregon, and completely voluntary
programs.
It is simply a matter of making sure that those are
effective. I would hope that the TMDLs that get produced,
individual TMDLs, have the effect of kind of shining a light on
ineffective programs, thereby achieving both pollution
reductions from nonpoint sources and equity between point and
nonpoint sources.
On the second issue about if EPA, when it does its
statutorily required approval or disapproval of the TMDL that
has been submitted by a State, finds that the State's programs
are not sufficient, that is where actually EPA is in a bind
because it is required by law to promulgate a different TMDL.
But it cannot come in and substitute Federal programs for
the lack of State programs because it doesn't have any
statutory authority to do so. That, of course, is the
underlying basis for the silvicultural rule which is an attempt
to regulate point sources, not nonpoint sources.
But in any case, there is no other alternative for EPA
because of the limitations of the statute.
Senator Crapo. So then at the point where the EPA steps in
and says, ``you haven't done it right'' to the State, your
understanding is that the EPA has no authority to then go and
do it right other than to create the correct--in their
opinion--the correct TMDL.
Ms. Bell. Well, this is a problem that we talked about on
the FACA quite a bit. I think part of the reason why point
sources should be concerned is where you have waters with
combined point and nonpoint sources affecting the water body,
if EPA were to come in and say, ``Well, you know we need to
revise the numbers'' or there could be all sorts of problems
with the TMDL, but one of the areas might be that the
allocations, the relative amount of reduction required by point
sources and nonpoint sources might need to be adjusted.
There you have EPA needing to use its authority under the
Clean Water Act to perhaps put more of the responsibility by
allowing less pollution from point sources.
That is one way of cleaning up a water body in some
instances. But as my written testimony says, lots of times that
is not true. But I don't think that is equitable. I ultimately
think that it also doesn't serve the economic interests of this
country to create that kind of inequity.
Senator Crapo. So EPA is left with then moving back to the
point sources to find all of the correction that it sees
necessary is what I heard you saying.
Ms. Bell. That and also using what other Federal tools are
available. They may not be regulatory. The 319 grant programs,
for example, could be focused.
Senator Crapo. Sure. Incentives and so forth.
Ms. Bell. That is right.
Senator Crapo. Would any other members of the panel like to
comment on this issue?
Mr. LeBlanc. Well, I concur, and one of the things that we
are concerned about is the point sources being held hostage
because of the inability to get the water back into compliance
with the water quality standards.
If the controls on the other sources cannot bring that back
down, then when we come up for permit re-issuance every 5 years
they look at that permit re-issuance and say, ``We cannot renew
it; you are going to have to reduce your loadings by this
amount in order to meet water quality standards.'' The problem
right now, in the Bay Program we get credits; not that the
water is improving right now, it is going to take 10 or 15
years for the water to improve from nonpoint source issues
because sometimes they are very slow in reacting.
But the implementation plan in the Bay Program says,
``Well, they are going to do this, therefore we can allow you
to do this.'' Even though in the short term you may have some
noncompliance issues, we are doing our part and nonpoint
sources are doing their part. That is where the implementation
plans come in.
I am not a lawyer. I am a technical individual. Whether
they need to be legal or not, I cannot comment on that part of
it.
Senator Crapo. Right. Are there any others?
Let me come back to you, Ms. Bell, with just one other
question. In terms of understanding how we approach this, do
you believe the EPA has authority under current law to come up
with an implementation plan?
Ms. Bell. Yes, I do. Clearly it has it under section
303(e). I don't think there should be even any debate on that
issue. But I also think EPA has the discretion to include in
the definition of a TMDL that which it thinks will help make
the TMDL program work.
Again, since the implementation plan is also not
enforceable, it is not something that EPA is sort of creating
out of whole cloth.
From a policy standpoint as well, it makes good sense
because it does create, as Mr. LeBlanc said, perhaps different
time lines for attainment of allocations by different sources
and it sets out the connection between all the money we are
going to put into the scientific and technical analysis in the
TMDL part and the control actions that people are either going
to be required to or volunteer to take or be induced to take
through incentive programs.
It puts those two things together so we are no longer sort
of operating in the dark as much as we have been.
Senator Crapo. Now on this implementation plan, many
members of the panel talked about the need for flexibility to
recognize other ways that the States are already traveling to
try to address these issues.
This is a question to anybody on the panel who would like
to jump in on it. Does the mandate that the State include an
implementation plan as part of the TMDL become a part of the
problem of rigidity that then forces the States away from some
other solutions or is there some other problem in the rule that
is causing the lack of flexibility on the part of those who
believe there is that lag?
Mr. LeBlanc. One of the problems that we had, and we had
quite a bit of internal debate with AMSA on the rule as to
whether or not the implementation plan should be part of the
approvable aspect of the TMDL.
It depends on whether one comes from a State that is
effectively working with nonpoint sources or a State that is
not effectively working with nonpoint sources as to whether you
like the idea of Federal enforceability of an implementation
plan or not.
Senator Crapo. Do you agree that it is not enforceable? Ms.
Bell believes that it is not enforceable.
Mr. LeBlanc. That is correct. I believe that the TMDL
proposal is trying to make it an enforceable part, but that
doesn't say it is. As I say, it is difficult, depending on
which State you are, to say whether you like it or not on a
Federal enforceable level.
Senator Crapo. Do any others want to jump in on that?
Ms. Bell. Well, I would like to add something.
Senator Crapo. Sure.
Ms. Bell. We did talk on the FACA about the idea of
substitutes for TMDLs and after some debate I think, and I
always hesitate to actually reflect what the committee came up
with lest I be torpedoed by the people in the back there.
But I think that we agreed that if there were alternative
programs that met the analysis and the intent of the TMDL that
they could be submitted as a TMDL. Likewise, if they were
three-
quarters of the way down the TMDL they could be augmented and
submitted to EPA as a TMDL.
I think that analysis pretty much carries over to the idea
of the implementation plan as well. I would not expect any
implementation plan to include all new programs.
What I would expect is sort of an alignment and
coordination of all existing program with some focus on those
areas where help was needed to improve nonpoint source programs
and then all the other pieces of the implementation that have
been proposed such as followup monitoring, timeframes to go
back and incorporate the results of monitoring and those kinds
of things.
Senator Crapo. Mr. Wittman, I took from your testimony that
you would probably conclude that the proposed rule would
actually impede the efforts that you are underway with in your
area. Am I right in that and if so, why wouldn't there be
flexibility in the system to just create an implementation plan
that does what you are already doing?
Mr. Wittman. Well, again, I think an implementation plan,
at least the way local governments look at that, look at it as
a fairly rigid document. I can tell you in some of our
experience in trying to address water quality issues locally,
it takes some trial and error efforts in order to get to a
point where you find things that actually do work.
When we begin to work with farmers and with
silviculturists, we find that some of the best ideas come from
them and we need to be able to be flexible to sort of change
the plan as we go.
We have worked with trying to create community groups that
actually have an interest in their smaller watersheds and they
come up with development plans and action plans. Those things
are far outside of the stock implementation plans that we have
in mind that EPA is requiring under this rule.
Senator Crapo. Thank you.
Mr. LeBlanc, you were about to say something; weren't you?
Mr. LeBlanc. Yes, Mr. Chairman. From the nonpoint source
side of it, the implementation plan of the Chesapeake Bay
Program, probably the TMDLs could make it more rigid on
nonpoint source side than what it is right now.
But on the point source side, the Bay Program is not really
considered a TMDL. EPA is now viewing it as a way to avoid the
TMDL. If the program will work and get us off of listing by
2010, then the TMDL goes away. If not, in 2010 the TMDL gets
implemented.
Now what that means is that those of us, particularly on
the hardware side of things, the point source sides of things,
who are embarking on agreements with the State to install
biological nutrient removal processes using less traditional
approaches that are essentially more cost effective.
Essentially, they put in BNR at much less cost than the
traditional point source, NPDES monthly/weekly average limits.
The problem we face right now as point sources, do we enter
into this agreement with the State now, put this process in
place, and if the Voluntary Chesapeake Program process doesn't
work, then everything gets thrown out and we have to redo it
all as a TMDL, rebuild the tanks, reput in our infrastructure,
because all of a sudden the agreements that we had on how we
operate our BNR facilities are no longer applicable under the
TMDL.
So, it is kind of a line in the sand. It is not embracing
the Bay Program and saying, ``Yes, we would like to move this
forward.'' It is a way of avoiding the TMDL hammer.
Senator Crapo. Now you also said in your testimony that the
fact that when a permit is changed upon the listing for the
TMDL and that that causes a diversion of resources, if I
understood you correctly; is that right.
Mr. LeBlanc. Yes. I mean that problem is that when the
permit comes up for renewal and you are on a listed water that
doesn't meet water quality standards, you get some very
stringent permit limits that largely assume that the nonpoint
source side is not going to do a lot, or whatever the science
says that they might be able to do, you can only get partial
credit for it.
It is pretty much a point source issue. You have to comply
with water quality standards. The TMDL, on the other hand, will
work toward reducing nonpoint source loads in the other non-
traditional ways and allow you to get more credit and not have
as stringent limits.
That is where the problem comes in, what do we build for?
Do we build now for the more stringent? Some of the TMDLs, the
draft TMDLs that we have out there right now are saying that,
``Well, we are going to put an end of pipe limit on these point
sources now and if we come back later and we find out there is
more allocation, you are not going to get any of it.''
These are the issues that we have on this phasing of
permanent limits. We believe there are ways of getting further
progress from point sources to improve discharge situations in
listed waters without having to modify the permit limits up
front until the TMDL is done.
Senator Crapo. All right.
Mr. Pardue, one of the four points you made at the
conclusion of your testimony is that we need to be sure that
the States have the authority to evaluate the efficacy of the
activities they are taking. Could you expand a little bit on
your concept there?
Mr. Pardue. Well, as a practical matter, many of the
remaining water quality programs that we have are very
complicated and they are not easily addressable by pointing a
finger at the point sources.
Most of us that have point source discharges have been
regulated for many years. The remaining problems are also site
specific and local in nature. The best way to address those is
to bring all of the players to the table as we have done in the
Tampa Bay area with the Tampa Bay Estuary Program.
Getting all the stakeholders together to come up with
innovative ways to address remaining pollution problems has
proven successful. The problem we have with EPA's oversight
role in that is that EPA tends to take a very prescriptive view
of anything that a State is doing and measure it against some
standard.
We need to preserve the flexibility for local governments,
local agencies and State agencies, to use their judgment in
what works best in their waters.
Senator Crapo. The concept that I kind of hear you talking
about there is that perhaps we have a Federal standard for what
the quality of the water should be but let the States figure
out how to do it.
Mr. Pardue. That is correct.
Senator Crapo. Without having it be so prescriptive that
there is only one narrow opportunity to do it.
Mr. Pardue. That is correct.
Senator Crapo. In that context, it seems to me that the
more complicated or prescriptive the definition of the TMDL is
or the requirements for the implementation are, then the less
flexibility the States have as they seek to find solutions. Am
I seeing it the way you are trying to explain it?
Mr. Pardue. Yes, you are on track.
Senator Crapo. Mr. Skolasinski, in your testimony a
question came to me along the same lines with regard to what
was happening with the State efforts in Minnesota and in your
industry as a result of the application of the rule, if the
rule were to become law.
The question is, in your opinion, do you feel that if the
TMDL rule or program becomes law that that would impede the
efforts to clean the waters in Minnesota?
Mr. Skolasinski. At least from the perspective that we are
looking at these alternative solutions, it would. One of the
things that we are embarking on, again, is this voluntary
mercury reduction effort.
In this program it is opened up to anything that any entity
can do to reduce mercury discharges or to do research to
further the information that would lead to discharges down the
road.
In addition, in our local area we are currently attempting
to develop the TMDL for the mercury situation that we have.
However, as we envision it, we feel that we have several years
of data collection before we can even get our arms around what
it is we are dealing with.
After a number of years of collecting data, then we can
come up with a proper implementation plan. This implementation
plan is going to have to address the air deposition aspects. I
don't know how much the States can do to address their
deposition because the sources of many of these things are
outside the boundaries of the State. So until there is a
national and even an international program, there is not a
great deal that we can do.
So as far as just the TMDL program in and of itself, no I
think that will discourage a lot of us from trying to work
together to come up with these solutions.
Senator Crapo. I assume that everybody on the panel heard
the testimony of the GAO in the previous panel about the lack
of reliable data.
Does anybody on the panel disagree with the general thrust
of the testimony that was given that we don't have sufficient
data to be doing reliable TMDL analysis?
Mr. LeBlanc. I agree wholeheartedly that we are well short
of that ability to first list the waters and then effectively
come up with a TMDL program.
Senator Crapo. Is everybody else in general agreement with
that?
Mr. LeBlanc. If I am right, too, on the mercury issue,
there are some interesting issues from the municipal standpoint
that we are faced with and we are frankly having a hard time
getting people to focus on, is that you know some of the larger
sources of mercury within the municipal waste water system are
foodstuffs, Kool-Aid.
FDA has an approved level of mercury in the coloring
content of Kool-Aid of about, I think, five parts per million.
Mountain Dew has a tremendous amount of mercury in it,
relatively speaking, not that it would kill you or anything.
But certainly there is a lot of Mountain Dew going into the
waste water treatment system.
Senator Crapo. Now we are going to have to have them come
and testify.
With regard to the question of the lack of reliable data, I
am assuming that there is an awful lot more reliable data for
point source pollution than for nonpoint sources of pollution.
Am I correct there as well?
Mr. Pardue. That is correct, yes.
Ms. Bell. But some of the data that we are talking about--
we are talking about two different kinds of data. One is, what
do we know is coming off or out of a source, and then the other
is just what is in the water body. Those are related when you
do a TMDL, hopefully, but they are a separate issue.
Senator Crapo. But they are separate kinds of data. What I
am getting at is that the real lack of data is in the area of
the nonpoint source piece of it.
Mr. LeBlanc. And the receiving waters themselves, also.
Mr. Pardue. I would say there is a lack of good quality
data just in the ambient monitoring situation in most States.
Most States don't have the funding available to them to collect
the vast amounts of ambient monitoring data they would need in
order to make these listing decisions.
As much as other people have testified to this already, it
is an extremely important point that we cannot overlook. If you
don't get the right data and if that data is not subject to the
right protocols, QAQC, you are not going to get the right
waters on the list. You are going to have State agencies
running around with their limited resources not focused on
truly impaired waters.
I can't imagine that EPA would look fondly on me submitting
compliance data that was based on evaluated data as opposed to
something that had gone through a rigid QAQC protocol.
We are asking that the same quality of data be collected in
order to evaluate waters for listing.
Senator Crapo. The point I am getting at here is that if we
do have such a lack of data that we may end up putting streams
of water bodies on the list, that we do not need the kind of
attention that we will then pay to them and do not need the
expenditure of resources that we will then expend on them, and
we will end up, perhaps, not putting some on the list or not
understanding how to deal with those that are on the list in a
way that results in those that need the attention not getting
the attention.
Senator Crapo. Yes, go ahead.
Ms. Bell. Because of that concern, and again, Rob Olszewski
in the back of the room will correct me if I am wrong. He is up
on the next panel, I think.
But because of that concern I think all the interest groups
except maybe the States, on the Federal Advisory Committee saw
it as a benefit to maintain the current 2-year listing cycle
because that allows point and nonpoint sources that are
concerned about having their waters listed when they shouldn't
have been to bring in data and information to demonstrate that
the water should be delisted and that allows concerned
citizens, other Federal and State agencies, and tribes, to
bring in data that demonstrate listing should take place.
I think if you have EPA's colored map of listings you can
see that there are huge disparities between States and I think
that does not serve anybody well. So, in order to maintain the
flexibility that States want and to get to some consistency,
that 2-year cycle makes a lot of sense, at least until States
are able to get to some level that people are more or less
comfortable with in terms of what those lists represent and
then perhaps to go to a less frequent cycle.
Senator Crapo. Go ahead, Mr. Skolasinski and then Mr.
Pardue.
Mr. Skolasinski. One of the other issues along with this is
that currently there is not a standard protocol for determining
if a water is impaired or not. The States do that independently
and most of these protocols have never gone through peer review
or formal rulemaking. That is one aspect that I think should go
through in any revision of the TMDL regulations, is that this
protocol should be standardized.
To respond to an earlier question of yours, in the
situation we have in northeastern Minnesota where the State has
designated virtually all of the waters as impaired for mercury,
they are measuring that against the standard of 1.3 parts per
trillion.
The methodology to measure to that degree was just approved
by EPA this past year, yet almost all of the data they are
relying on for these listings was generated several years ago.
How close they came to following the standard procedures
for this methodology and the clean sampling techniques is of
great concern to us.
What our laboratories are telling us is that at a level
down around one part per trillion, if you have a mercury
amalgam filling in one of your teeth and you breathe on the
water sample, you could contaminate the water sample.
Yet, we have no assurances that the quality control ever
went into the collection of these samples and the analysis of
these samples. So there indeed could be many of these waters
that may in fact not actually be impaired.
Senator Crapo. Mr. Pardue.
Mr. Pardue. Just two points, if I could. One followup to
something Mr. Skolasinski just said, in Florida we have adopted
a statute that requires a rule to be developed on the listing
methodology. It is an open process that involves all the
stakeholders who are participants.
Through that process you can hopefully come up with a
robust methodology that will ensure that the right waters get
listed.
Second, I am not sure I concur to want to stay on the 2-
year listing cycle because I am not convinced that the States
can meet that, given the gaps in the data, I would encourage us
to continue to forge ahead and in particular look at being able
to delist waters with an equal and equivalent amount of data
that is collected.
As we meet standards in new water bodies, these water
bodies should be able to be removed from the list just as
easily as they are put on the list.
Mr. LeBlanc. Mr. Chairman, if I might, there is no
requirement for minimum data sets at this point, nor is it
being proposed. So one data point or in some cases no data
points based strictly on observation or understanding is enough
to list a body of water at this stage of the game.
The program works on extreme data points. The averages and
the general trends of the data generally are not what drives
the decision to list or not list. It is the outlier; it is that
one point that is way out here.
Without adequate data sets, you always get an outlier by
statistics. So you need an adequate data set to make sure that
that outlier point is valid and accurate.
Senator Crapo. It seems to me that the information we are
getting here at the hearing today tells us that with the
unreliability of the data we have we are embarking on a very
expensive course that we do know is going to apply our
resources where they need to be applied and we have a lot of
people telling us that they are going to be diverted from
things they are doing right now.
I believe that is one of the big concerns that we share.
I see you want to respond to this, Ms. Bell.
Ms. Bell. I do.
Senator Crapo. Go ahead. You can have the last word and
then we will go to the next panel.
Ms. Bell. Well, I guess I wanted to say that there is an
impetus for people to collect data because of this listing
process and they in fact are doing it and waters are getting
delisted. There is no doubt about it.
The second thing is that when TMDLs are done it behooves
everybody involved and that often does include Federal agencies
and other State agencies as well as regulated and nonregulated
interests to go out and collect data and to help work with the
State to collect the data or what have you, or to get the data
that they already have, and there is plenty of it out there
that is not being used, and bring it to the table.
In that process, if it is determined that a TMDL is no
longer NPDES needed, then one doesn't need to pursue data
collection. But if it is, then data are usually collected in
order to support the TMDL effort. Because it is not to
anybody's advantage and particularly not to point source's
advantage to prepare a TMDL without sufficient data.
Senator Crapo. I agree. Thank you all very much. We could
go on with this for a long time, and we probably will in one
way or another. I appreciate your attention to the issues at
hand and the testimony. This panel will be excused.
We will now call up our fourth panel. Ms. Joan Cloonan,
vice president, Environment and Regulatory Affairs at J.R.
Simplot Company Food Group. Hi, Joan. Joan is from my home
State and we have worked together on a lot of issues.
Mr. Thomas N. Thomson of the Thomson Family Tree Farm of
Orford, NH; Ms. Sharon Buccino, senior attorney at the Natural
Resources Defense Council; Mr. Robert J. Olszewski, director of
Environmental Affairs at The Timber Company; and Ms. Dina Moore
of the National Cattlemen's Beef Association.
While this panel is taking its seat, we have been joined by
the chairman of the full committee, Senator Smith. I would be
glad to offer you the time now to make a statement or take
whatever time you would like, Mr. Chairman.
OPENING STATEMENT OF HON. BOB SMITH,
U.S. SENATOR FROM THE STATE OF NEW HAMPSHIRE
Senator Smith of New Hampshire. Thank you very much, Mr.
Chairman and thank you for having this hearing and thank you
for your leadership on the issue of TMDLs.
I would say to the panel, welcome to the city of acronyms,
TMDLs, you name it, we have it here in Washington.
As you know, Mr. Chairman, we are looking at at least one
subcommittee hearing. We have talked about another one out your
way and we are planning to have one in New Hampshire on the 6th
of May on this issue. So we look forward to that.
I want to say, it is a pleasure to have so many
knowledgeable people here this morning. I am sorry I missed the
earlier panels, and I do have to leave in a moment and I
apologize to the witnesses for that.
The congressional hearings, as well as conversations that I
have had with other Senators on this issue have caused me to
have great concern about the impacts and legal ramifications of
this proposed rulemaking.
As a matter of fact, Carol Browner, the EPA Administrator
was here a week or two ago, a little longer than that, I guess,
for an oversight hearing. We discussed this issue and I asked
her a question about it.
She said as far as she was concerned the States would make
these decisions. They were not trying to secure more permitting
or anything of the kind.
But then when we talked with the local farmers and
foresters in various States we hear otherwise. I think you may
hear some of that this morning, Mr. Chairman, or you probably
already have.
But the proposed rule is being criticized by State
governments, Federal agencies, industry, agriculture,
silviculture, not to mention the grassroots contribution to the
30,000 on EPA.
So I would say, I have heard from landowners and business
men and women in New Hampshire and all over the country since I
have been the chairman of the committee about this rule. If
they have to get new permits for their farms or logging
operations, many will have to sell their land to developers.
For the life of me, I cannot understand how that could be in
the best interest of our environment.
I also want to say, Mr. Chairman, and I want to introduce
Mr. Thomson in just a second, but Tom Thomson who is here
today, a tree farmer from New Hampshire, has a very interesting
point, I am going to ask unanimous consent that this be made a
part of the record.
Senator Crapo. Without objection.
Senator Smith of New Hampshire. This is a memorandum to Mr.
Thomson, the National Tree Farm Operating Committee, from Eric
Kingsley, the executive director. There was a meeting with EPA
on TMDLs that took place just a day or two ago. At this
meeting, according to this memo, Mr. Manfredonia, who was the
EPA Region I Associate Director for Surface Water Program, and
in that meeting, I want to quote what Mr. Manfredonia
indicated.
He said that silviculture and forestry operations are not,
to the best of his knowledge and data, an issue for water
quality in EPA Region I.
He indicated that waste water treatment facilities combine
sewerage overflow and urban storm water runoff were the areas
where there was significant opportunities for improvement in
water quality, but not this.
The conclusion of the meeting with EPA and the State
agencies was that there is no reason why the EPA should step in
and regulate forestry in this region as the States and private
sector are doing an excellent job of making certain that
forestry operations do not harm water quality.
Why are we looking at a proposed rule change? I think
hopefully we will get to the bottom of this with this hearing,
which I commend you for, and perhaps a couple of other hearings
out in the field.
Let me just introduce, in deference to the other witnesses,
but Mr. Thomson here from New Hampshire, the Thomson family
have been long-time friends of mine. Tom's father was a former
Governor of New Hampshire. I have known the Thomson family
since 1970, so we go back a long, long way.
I am pleased to welcome you here today, Tom. You are a very
well respected forester in New Hampshire and I think what we
find with people like Tom Thomson, I would encourage those who
have doubts about the stewardship of private owners to go out
and take a look at Tom Thomson's farm and see how he manages
his land.
In fact, there was a quote by a district conservationist in
a tribute story about Tom by the Appalachian Mountain Club and
I can't say it any better than that. It is a quote: ``If
everyone had Tom's stewardship ethic, there would be no
environmental problems.'' So, I understand when you are not
working, it is probably costing you money to be here, but thank
you for coming and thanks to all the witnesses for being here
this morning.
Thank you, Mr. Chairman.
[The referenced documents follows:]
New Hampshire Timberland Owners Association,
March 20, 2000.
The Honorable Robert Smith, Chairman,
Environment and Public Works Committee,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Smith and members of the committee: The New Hampshire
Timberland Owners Association (NHTOA) represents over 1,500 landowners,
loggers, foresters and wood-using industries in the State of New
Hampshire. Our members own and responsibly manage over one million
acres of productive forestland statewide. I am writing to convey
NHTOA's strong objections to the Environmental Protection Agency's
proposed rules regarding Total Maximum Daily Loads (TMDL) from forestry
operations.
New Hampshire is the second most forested State in the nation, with
over 83 percent of the State forested. The vast majority of this land
is in private hands, contributing to the economic and environmental
quality of the State. The EPA's proposed TMDL rules threaten private
landowner's ability to manage their forestland in a reasonable manner--
the very action that makes land ownership economically possible.
The proposed regulations would eliminate the designation of
forestry activities as a ``nonpoint source,'' reversing a 27-year
determination under the Clean Water Act. The new rules change the
definition of forest management, opening the door to NPDES permit
requirements for private landowners. If harvesting, site preparation,
and other forest management activities take place near certain
waterways, then landowners could be required to obtain a Federal clean
water permit.
New Hampshire's forest landowners and forest industry have
proactively addresses this issue, and there is no need for Federal
intervention. Landowners closely follow State ``Best Management
Practices'' (BMPs) when harvesting timber, building forest roads and
conducting other forest management activities. Over 1,000 New Hampshire
loggers have voluntarily participated in the acclaimed New Hampshire
Professional Loggers Program, which focuses attention to the careful
design and implementation of timber harvesting operations in order to
protect water quality.
In addition to the lengthy and costly delays and permitting
requirements that these rules would subject landowners to, they would
also open up landowners to citizen suits under the Clean Water Act. If
sued, landowners would be required to defend themselves at great
personal expense. This is simply unreasonable.
These rules threaten the ability of landowners to responsibly
manage their land for forestry. Forestry in New Hampshire is a business
with very small profit margins, and these rules threaten to add cost
and time delays to forestry activities. In the absence of the ability
to profitably manage forestland, many landowners may choose to sell
their land to developers. The permanent loss of this forestland poses a
far greater--and more pressing--environmental threat to New Hampshire
than any forestry activity ever could.
Forest landowners need the ability to manage their lands without
unnecessary government intervention, and have done so admirably. We
urge the Senate Environment and Public Works Committee to require the
Environmental Protection Agency to halt this ill conceived, and
possibly damaging, rule.
Sincerely,
Eric Kingsley, Executive Director.
______
U.S. Senate,
Office of Hon. Judd Gregg, January 18, 2000.
The Honorable Carol M. Browner, Administrator,
Environmental Protection Agency,
Washington, DC 20460.
Dear Administrator Browner: I am writing to convey my strong objections
to the Environmental Protection Agency's (EPA) proposed rules regarding
Total Maximum Daily Loads (TMDL) from forestry operations that were
published in the Federal Register on August 23, 1999. The proposed
rules could have a significant negative impact on New Hampshire forest
landowners and the businesses that rely upon them.
New Hampshire is the second most forested State in the nation, with
over 4.8 million acres of forestland. Eighty percent of this land is
owned and managed by over 84,000 private landowners. Their ability to
own and responsibly manage forestland is critical to the environmental
and economic health of New Hampshire. Your agency's TMDL rules threaten
a private landowner's ability to efficiently manage their forestland
and, thus, threaten the forest resource that New Hampshire relies upon.
The proposed regulations would eliminate the designation of
forestry activities as a ``non-point source, reversing a 27-year
determination under the Clean Water Act. The new rules change the
definition of forest management activities so that regulation of these
operations shift from State-level to Federal supervision, opening the
door to EPA permit requirements for private landowners. If harvesting,
site preparation, and other forest management activities take place
near certain waterways, then landowners could be required to obtain a
Federal clean water permit for each and every such project.
New Hampshire landowners closely follow State ``Best Management
Practices'' (BMPs) when harvesting timber and conducting other forest
management activities. Over 1,000 New Hampshire loggers have
participated in the voluntary New Hampshire Professional Loggers
Program. which emphasizes, among other things, designing and conducting
harvesting operations to protect water quality. Licensed New Hampshire
foresters follow these BMPs as well. To require that landowners
operating in certain watersheds go through the delay and expense of
receiving a Federal discharge permit, given the effective State-based
programs already in place, is unacceptable.
The above-mentioned permit requirements for forest management
activities could open up private landowners to more red tape and to
citizen lawsuits under the Clean Water Act, as well aS other Federal
laws. In fact, forest landowners could be subject to Endangered Species
Act consultation and significant administrative delays before
conducting practically all silivicultural activities.
These rules threaten the ability of landowners to responsibly
manage their land for forestry. Forestry in New Hampshire is a business
with very small profit margins, and these rules threaten to add cost
and time delays to forestry activities. In the absence of the ability
to profitably manage forestland, many landowners may choose to sell
their land to developers. The permanent loss of this forestland poses a
far greater environmental threat to New Hampshire than any forestry
activity ever could.
I urge you to cease your efforts to redefine forestry, a
traditional non-point source activity, as point source pollution.
Forest landowners need the flexibility to manage their lands without
undue government intervention and have done so admirably. Your proposal
on TMDLs threaten the continued viability of forestry in New Hampshire.
Thank you for considering these comments. Please keep me informed
as you deal with this important issue.
Sincerely,
Judd Gregg, U.S. Senator.
______
U.S. Congress,
Office of Hon. Charles Bass, January 20, 2000.
Ms. Carol M. Browner, Administrator,
Environmental Protection Agency,
Washington, DC 20460.
Dear Ms. Browner: I would like to express my sincere concern about the
Environmental Protection Agency's proposal to include silviculture as a
point source under the Clean water Act (CWA). I believe that these
proposed regulations run contrary to the initial legislative intent of
the original CWA.
I am extremely concerned about the EPA's proposal to regulate all
silviculture activities as point sources of pollution under the
National Pollutant Discharge Elimination System. Specifically, this
regulation would include previously exempt categories, such as nursery
operations runoff, site preparation, reforestation activities,
thinning, prescribed burruna' pest and fire control, harvesting
operations, surface drainage. and road building and maintenance.
I am concerned that removing the exemption on these activities may
unnecessarily impose heavy-handed Federal regulation on forestry
activities. The silviculture industry has long history of seeking
conmon-sense solutions to achieve effective, sustainable land
management. In 1996 EPA report to Congress, forestry activities were
identified as the smallest source of nonpoint source pollutions
contributing approximately 3 percent to 9 percent of nonpoint source
pollution to our nation's waters. Due to the relatively small impact of
this industry, I believe that landowners should be encouraged to work
directly with States and local governments to find answers to pollution
problems.
Furthermore in the original rulemaking process following enactment
of the CWA, the EPA recognized that the Congress's original intent was
to designate forestry activities as a nonpoint source of pollution.
Therefore, this proposed rule would represent a departure from 30 years
of regulatory practice. Although we share the common goals of
categorically improving the quality of our nation's streams and rivers,
we must not impose an excessive Federal regulatory burden which could
cripple the silviculture industry. I urge you to reconsider this
proposed rule.
For your reference, I have enclosed several letters that I have
received from my constituents' including Ivfr. Ray Burton, a member of
New Hampshire's Executive Council. As you can see, they share my
concerns about the effects of this proposed rule.
Again, thank you for your consideration of my views. I look forward
to hearing from you soon about this important issue.
Sincerely,
Charles F. Bass, Member of Congress.
______
State of New Hampshire Department of Resources and Economic
Development,
Division of Forests and Lands, January 20, 2000.
Comment Clerk for the TMDL Rule,
Water Docket (W-99-04),
Environmental Protection Agency,
Washington, DC 20460.
Dear Sir or Madam: I am writing to request a retraction of the proposed
Revisions to the National Pollution Discharge Elimination System
Program and Federal Antidegradation Policy in Support of Proposed
Revisions to the Water Quality Planning and Management Regulation
(NPDES rule).
My agency, the Division of Forests and Lands, is the governmental
unit in the State of New Hampshire responsible for the enforcement of
forestry laws, including those laws protecting water quality. The law
enforcement staff inspects logging operations in the State to ensure
compliance with these laws.
In addition, these forest rangers work through educational
programs, such as those provided through certified logger programs, to
ensure protection of water quality. We believe in voluntary and
incentive based programs to protect the environment first.
In discussing the proposed rules with law enforcement staff, we
concluded that the proposed rule will do little, if anything, to
improve water quality in the State of New Hampshire. It is a poor
allocation of collective public and private resources to protect the
environment. Those few individuals who have little regard for the law
will continue to ignore any new permitting process. For the rest, a
permitting process will divert resources away from where it does the
most good, implementing our State'e Best Management Practices on the
ground. We have adequate laws on the books now and do not see any
benefit in the proposed rule.
The proposed rule is misguided. It creates an ominous and uncertain
Federal regulation over silviculture and forest management. It opens
the door for abuse by those who do not support active management and
stewardship of our natural resources. These activities, in the larger
scale of water quality issues, have a limited negative, if not a
positive, overall impact on the environment. The non point source
designation for silvicultural practices should remain. The regulation
of these activities on private lands belongs with the States, not the
Federal Government.
Our collective efforts on behalf of the public should focus not on
additional permitting and a shift to Federal control, but on
monitoring, education and when necessary, enforcement of existing laws.
Thank you for the opportunity to comment.
Sincerely,
Philip Bryce, Director.
______
State of New Hampshire,
Department of Environmental Services, January 20, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
Dear Comment Clerk: The New Hampshire Departmenet of Environmental
Services (NHDES) submits the following comments concerning
Environmental Protection Agency's (EPA's) proposed revisions to the
agency's water quality regulations, 40 CFR parts 122, 123, 124, 130,
and 131, published in the Federal Register on August 23, 1999. Thank
you for the opportunity to comment on this proposal.
As a preface, NHDES appreciates the outstanding partnership and
working relationship that we have had over the years with EPA staff,
both in the EPA New England offices in Boston and Headquarters in
Washington. This partnership, which encompasses all the water, waste
and air programs, has truly resulted in significant measurable
improvements in New Hampshire's environment and public health
protection. These joint efforts go way beyond the funding to support
State program implementation provided by EPA, which is critical, to
include activities that range from joint field sampling programs to
national policy development. For example, we have just initiated a
joint EPA/NHDES effort to develop a TMDL for New Harnpshire's Sugar
River. We took forward to continuing this valued partnership into the
future.
The systematic listing of impaired waters and the development of
TMDLs, followed by water quality restoration, are important activities
to ensure continuous progress toward the long-term objectives of the
Clean Water Act, including the attainment of water quality standards
for all of our nation's waters. NDES fully appreciates that the
proposed rules are a significant effort by EPA to make national
improvements toward this goal. We strongly support your efforts to
improve water quality across the country. However, we are also
concerned that these proposed rules may have unintended consequences
for States like New Hampshire that have continuously moved forward to
develop high quality TMDLs and to address our highest priority water
quality concerns NHDES worked closely with the other member States of
the New England Interstate Water Pollution Control Commission (NEIWPCC)
in the development of the comments submitted by letters dated December
9, 1999 and December 13, 1999 on the proposed rules. We also have
participated in the development of the joint comments of the
Association of State and Interstate Water Pollution Control
Administrators (ASWIPCA), the Environmental Council of States (ECOS)
and the Coastal States Organization (CSO) dated January 20, 1999. We
generally concur with the comments provided by NEIWPCC and jointly by
ASWIPCA, ECOS and CSO. The comments below are provided to highlight
issues of specific concern to New Hampshire.
1. The proposed regulations seek to authorize EPA to designate
certain additional silviculture activities as subject to NPDES point
source permits; specifically. activities like nursery operations, site
preparation, harvesting operations, surface drainage, and road
construction and maintenance. New Hampshire forestry operations are
regulated by a partnership of NHDES and the State forestry agency, the
Division of Forests and Lands, Department of Resources and Economic
Development. Enforceable State water quality standards exist and are
applied to forestry operations. In practice, our experience had been
that water quality violations caused by forestry operations are
virtually always short-term problems that clearly do not merit NPDES
permitting. In New Hampshire, additional Federal regulation of these
activities would only add an unnecessary regulatory burden to the
forestry industry without any clear environmental benefit.
2. The proposed rules contain expansive listing requirements that
are likely to lead to more studies performed as an exercise to address
a regulatory requirements caused by listing rather than to improve
water quality. We strongly support the listing format proposed by
NEIWPCC as a means to provide greater flexibility to the States while
fully meeting the intent of the Clean Water Act.
3. Based on our experience with the development of TMDLs, the costs
to prepare TMDLs under the proposed regulations will substantially
exceed EPA projections. Significant funding increases for the States
will be necessary to support the expanded TMDL program, if these rules
are promulgated.
Thank you for the opportunity to comment on these regulations. If
you have any questions please contact me at 603-771-3308.
Sincerely,
Harry T. Stewart, P.E., Director,
Water Division.
______
Thomas D. LaPointe,
51 Sherwood Drive,
Hooksett, NH 03106, January 17, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
Re: The EPA's proposed revisions to the TMDL and the NPDES permit
programs.
I am currently involved in managing family owned land in northern
New Hampshire, I have my Bachelor Degree in Forestry (BSF), and am an
active member in the Forest Industry. I have recently been informed of
the EPA's proposed rules that will change the designation of forest
operations from ``non-point'' to ``point'' source pollution. I strongly
oppose that these proposed revisions be accepted.
Through my education and experience I have learned that
conservation through forestry is necessary in the effort to supply the
world's demand for wood products, benefit wildlife, promote healthy
forests, provide recreational opportunities, provide clean air and
water, and continue to maintain a well-balanced ecosystem. By changing
the status of forestry activities to a point source pollutant more
pressures through permit fees, operational delays, and (undoubtedly)
uninformed citizen lawsuits All be placed on landowners, foresters, and
loggers. It is these unnecessary pressures that will limit their
ability to perform environmentally beneficial silvicultural forest
operations.
I strongly disagree with EPA's push for regulation through Federal
Government. Most of New Hampshire is owned by private landowners and
the introduction of more laws and regulations w ill dissuade them from
engaging their properties in proper stewardship programs. This is
sending a negative message to landowners. This proposed revision would
increase landowner costs and allow developers a competitive advantage
in land acquisition. New Hampshire is already seeing a steady increase
in the amount of productive timberland turned non-productive through
developments.
Foresters and loggers are well aware of the potential impact on the
environment through harvesting operations. And extensive measures are
already employed to minimize and eliminate any and all potentially
hazardous situations. New Haunpshire already has stringent regulatory
agencies heavily involved in monitoring the impact of forest operation
on our environment.
I urge you to vote against this proposed revision, for you, for me,
and for generations to come.
Sincerely,
Thomas LaPointe.
______
John O'Neil,
129 Groveland Avenue,
Manchester, NH 03104, January 17, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
In Response to Proposed Revisions to the TMDL: I am a landowner and
licensed forester in the State of New Hampshire. I would request that
forestry activities remain a ``non-point source'' classification for
regulatory purposes. Listing forestry activities as a point source
pollutant would increase costs of owning forestland dramatically.
Landowners would be forced to sell their timberland for short term
goals and abandon the philosophy of land stewardship for the next
generation. Managing forestland for timber, water resources,
recreation, and wildlife has been the goal of many New Hampshire
landowners for generations. This type of management has not been the
most profitable but quite marginal at times. Please do not force
landowners to stray from these ideals.
Sincerely,
John O'Neil.
______
Nicholas C. Brunet,
8 Matthew Drive,
Auburn, NH 03032, January 17, 2000.
Comment Clerk for TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
Re: New Hampshire Forestry Rules.
I am a non-industrial timberland owner in the States of New
Hampshire, Maine and Connecticut (461 acres in total). My reasons for
owning and managing the properties are not strictly financial. I am
motivated more by a respect and love of the land than the monetary
rewards. In fact, I can show that my land investments have not been
competitive with standard financial instruments. Despite this I remain
committed to good management of my property and, with luck, passing the
lands down to my children.
I doubt that I can express the full extent of my objection to the
new water quality rules proposed by the EPA. This proposal exposes the
true liberal arrogance of our Federal bureaucracy. The suggestion that
a centralized agency will use my tax dollars to monitor and judge my
land management practices is unbelievable.
Our forests in New England are in the healthiest condition than at
any time in the last 100 years. The reason for this is the predominance
of private land ownership along with minimal government interference. I
honestly do not see the problem that these rules are expected to
correct, and I am out in the forest every week.
Changing forestry operations to a ``point source'' designation will
add unnecessary delays and financial burdens on an already marginal
financial activity. It is more than financial, however. Adding Federal
oversight will have an overwhelming psychological effect. It will be
both insulting and discouraging for anybody that has put their heart
and soul into their property. I am certain that a significant
percentage of landowners will choose to sell rather than put up with
the expense and red tape. I, for one, will not likely purchase any more
land and will probably sell the small piece I own in Connecticut.
The proposed EPA changes will result in unintended negative
consequences. Government should encourage forest stewardship rather
than add unnecessary costs to it I strenuously object to the proposed
changes.
Sincerely,
Nicholas C. Brunet.
______
58 Branch TnPk, Unit 52,
Concord NH 03301, January 17, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington DC 20460.
To whom it may concern: I am writing to comment on Proposed EPA rules
to designate forestry as a point source for pollution. I am opposed to
the EPA or any other Federal agency regulating private landowner rights
to log build roads, or perform sound forestry practices on their land.
Requiring private landowners to acquire Federal permits as well as the
permits required by the States creates a burden that is not only costly
but also totally unnecessary. I ask that forestry activities remain a
``non-point source'' for regulatory purposes.
This ruling would impact me as a private landowner by restricting
activities on MY PROPERTY. The permit system would impede my ability to
sell logs into the best market by reducing my ability to schedule when
to harvest my timber.
The Impact of the EPA's purposed New Water Regulations on the
timber industry would be equal to or greater than the impact the
Federal Endangered Species Act had on the Pacific Northwest. These
regulations will eliminate jobs, shut down manufacturing facilities,
economically cripple small towns in the Northeast as well as keeping me
from practicing sound forestry on my land.
Respectfully,
James M. Bex.
______
Michael D. Sulas,
P.O. Box 293,
Andover, NH 03216, January 17, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
Dear Sir or Madam: I am writing in regard to pending EPA rules
concerning the designation of forestry activities as a ``point source
pollutant'' under the Clean Water Act (CWA). As a land acquisitions
forester in the northeast for a ``'timberland company'', I feel that
such a designation would have a devastating effect on the industry and
our nations land base.
Since the CWA's inception, forest activities have been considered a
``non-point source'' of pollution, meaning that such activity
contributed only a small part to the nation's overall water quality
problems. By labeling forestry as a ``point source'' polluter, the EPA
is in effect grouping forestry with polluters like sewage plants and
factories, and their associated discharges. Such a change would have
horrifying effects on the forest products industry and the forest land
base.
Under this proposed ruling landowners, both industrial and private,
would be forced to obtain Federal permits from the EPA before any road
building or timber harvesting could take place. Permits could take a
year to be approved or denied. They could be subject to fines and
suites, and could be required to stop activity and study its impact on
endangered species. These permits, in addition to those already
necessary to conduct forestry activities, will greatly increase the
cost of conducting harvests and building roads; severely impacting the
financial feasibility (often negligible in comparison with other land
uses) of purchasing and maintaining forest land. Would be long-term
forest land owners will be scared off, and current owners will likely
consider less environmentally friendly alternative uses such as
development.
Current forest practices already take great measure to protect
water quality: like the ``Best Management Practices'' (BMP's) set forth
from the 1972 Federal Water Pollution Control Act and it's subsequent
amendments. Also, most States have sufficient water quality laws,
regulations and permits already in existence. Further regulation from a
Federal level would prove burdensome, costly and a gross misallocation
of taxpayer money. In the few years I have been in the industry, great
strides in the practices we use in the field have been made. I believe
the industry is truly conscious of its environmental impact: more so
than any other industry. The effect of being further regulated may
prove to be the breaking point for our industry.
The benefits of forested land have always been clean air and water,
diverse wildlife habitat, countless forest products, and immeasurable
recreation opportunities. [developed land offers none of these
benefits. Forestry activities are responsible for only a fraction of
our nation's pollution. To designate them as a ``point source''
polluter would have more negative effects on the environment than
positive. Therefore, I strongly suggest that forest activities maintain
their ``non-point source'' status.
Sincerely,
Michael D. Sulas.
______
Rodman R. Black,
134 Hurd Road,
Newport NH 03773.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
Sir: For many years my wife and I have been certified Tree Farmers and
as such have done our best to practice responsible forestry practices
on our forest acreage.
We understand the EPA is currently endeavoring to gain Federal
regulation of forestry activities by changing the present ``non-point
source'' status, under the Clean Water Act, to ``point source'' which
would designate forestry operations to the same status as a factory or
sewage treatment facility.
Like other Tree Farmers we are proud of our stewardship of our
forest land. There appears to be no significant pollution of rivers and
streams as a result of forestry activities. So why should the EPA
expand its jurisdiction and impose a myriad of red tape rules on us tax
payers. Where is the supporting evidence?
Who knows what the EPA will define as forest land having potential
impact on water quality standards. Such Federal regulations would
probably put an end to the Tree Farm system and what kind of
organization would Cone forward to fill the void. Certainly the EPA
would not fill the bill.
Most Tree Farmers, like us, are ``Mom and Pop'' operations. We
don't hire workers to help us perform TSI (Timber Stand Improvement) we
could not afford the expense so we do the work. Federal regs would
prohibit us, as a practical matter, from fulfilling our Tree Farm
tasks. And the question of our actions being monitored for their impact
on endangered species is beyond understanding.
Because there is no reasonable evidence to support the ``point
source'' change we strongly oppose the proposed rule as being
counterproductive.
Sincerely,
Rodman R. Black.
Nancy H. Black.
______
Hunters Hill Trust,
99 State Street,
Saratoga Springs, NY 12866, January 14, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
To whom it may concern: I write as Trustee of Hunters Hill Trust, owner
of 120 acres in Elkins, New Hampshire. The trust's property has been
operated by us as a tree farm and seasonal residence for more than 40
years. We are a Certified Tree Farm and member of the New Hampshire
Timberland Owners Association.
Over the years, we have periodically harvested a variety of trees,
including white pine, hemlock, spruce, birch and others. Our management
of the renewable timber resources has provided us with very modest
cash-flow about every 10 or 15 years, about enough to pay a year or two
of property taxes. In addition, our harvesting has enhanced wildlife
habitat significantly, which has contributed to our enjoyment of the
property, and to the health of the local ecosystem.
Our concern with the proposed rule is that it would materially harm
both the economic basis of our property, and unnecessarily and
detrimentally alter the health and viability of wildlife habitat. It
seems incongruous that EPA would consider a rule that would be so
damaging to a viable economic activity that enhances the environment.
The proposed rule requires landowners engaged in forest management
activity to obtain a Federal permit, and subjects them to citizen suits
for permitted activities, possible fines and other penalties. If this
rule is adopted, we will no longer engage in forest management on our
property, because the cost of obtaining a permit will be more than the
profits from future harvesting, and the potential of lawsuits would be
an unacceptable risk to the trust. Although a cessation of tree farming
would be deeply disappointing to us, as we have enjoyed it for years,
the costs and risks of doing so under the proposed rule are simply too
great to bear.
We know what happens when tree harvesting (even once every decade)
is curtailed for extended periods of time. When we first acquired the
property in the mid 1950's, it had never been harvested, and there was
a period of more than 15 years between two subsequent harvests. At the
end of those periods, the forest canopy was high, and very little
vegetation grew below because of the lack of sunlight penetration.
Wildlife, including game birds, deer and others, was deprived of cover
and was not in evidence.
After our periodic harvests open up small cleared areas for natural
regeneration, evidence is abundant of all kinds of wildlife, including
moose (Alces aloes), deer, black bear, fishers (Martes pennanti), many
birds, including turkey (Meleagris gallopavo), hawk, vulture, wild cat
and others too numerous to mention, all of which have been personally
observed by members of my family, and documented in our Forest
Management Plan which was professionally prepared and is on file with
the Town of New London.
The proposed rule would cause the habitat of these species to be
eliminated from our property, which is located near other managed
woodlands in a significant watershed at the headwaters of the
Blackwater River.
Although the economic benefits of woodland management are
relatively modest far the trust, if they were eliminated altogether
(which would be the result if the proposed rule is adopted), the trust
would be forced to consider other uses for the land. New London is
under tremendous pressure for development, and it is likely that the
only alternative use for the property, once tree farming is eliminated,
would be to sell to a developer. There are a number of potential home
sites on the property, which has a commanding view of Pleasant Lake.
As active Tree Farmers, we can say that a significant amount of
time and money is put at risk when a harvest is undertaken, with no
certainty of the return. Requiring a Federal permit for such
environmentally benign activity is onerous and will cause us to stop
harvesting. The potential of ``citizen suits'' exposes the trust to
legal action from parties other than those who may be directly affected
by our actions. Such a risk is completely unacceptable. In addition, by
curtailing tree farming because of the EPA rule, our tree farm
certification would be put at risk, which could cause our local
property taxes to rise, as we presently enjoy a low assessment due to
certification.
Forestry activities should remain a non-point source under the
agency's rules. None of the activities we engage in impact any waterway
or watershed, other than beneficially by increasing forest cover and
reducing erosion.
Please acknowledge receipt of these comments.
Respectfully submitted,
Gordon M. Boyd, Trustee.
______
Charles W. Thompson,
233 Brickett Hill Road,
Pembroke, NH 03275, January 28, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
To Whom it May Concern: I am writing in response to a recent notice
which I received regarding a proposal by the Environmental Protection
Agency (EPA) whereby forestry operations would be designated as a point
source for pollution. As a tree farmer under the American Tree Farm
system I was quite surprised that forestry management activities would
be considered as a point source for pollution similar to that which
might be experienced from a chemical plant, sewerage treatment plant,
factory, or the like.
As background, I currently manage a 200-acre tree farm which has
been in our family since 1800. Over the years my ancestors, and now I,
have managed this 200-acre tree farm as a working forest much the same
as a person would manage a home vegetable garden. There is a time for
seeding, a time for management, a time for harvesting, and a time to
prepare for succeeding generations. In actuality the impact upon the
land through normal tree farm management activities is less significant
than those activities undertaken in managing a vegetable garden.
As a working forest, there are activities which are continually
being undertaken. First, selective harvests are planned and carried out
every 8 years to 12 years. This time period is expressed in a range
since I try to plan these harvesting operations in conjunction with a
white pine seed year. The normal disturbance of the soil prepares an
excellent seed bed in which the white pine seeds can germinate. There
are times when it is unknown precisely when the best seed year will
occur and oftentimes these selective harvests are planned with little
long range planning.
A second activity which occurs is the periodic salvaging of timber
which has been lost due to winter blow downs, insect damage, or other
natural occurrences such as the ice storm which had a devastating
effect on a portion of our tree farm 2 years ago. These harvesting
operations also occur without a great opportunity for long range
planning.
Ongoing maintenance to include erosion control, narrowing of
logging and access road, drainage control, preparation and management
of wildlife feeding areas, etc. are ongoing activities. Again, this
entire process is not unlike the management of an agricultural crop.
As a tree farmer, like most tree farmers, I am constantly concerned
with the health of my forest. I would be greatly disturbed if any
pollution of any of any sort occurred on our land or polluted any of
the waters on our land. I am very diligent in monitoring all activity
that is carried out on our tree farm to insure that no contamination of
any type occurs. I can speak with confidence that all of the tree
farmers whom I know feel the same way.
In summary, the proposal to designate foresty operations as a point
source for pollution would if an excessive burden on the ability to
manage these tree farms as we have in the past. The prospect of having
to go through a permitting process, hearings, potential appeals, etc.
prior to conducting any of the stewardship activities outlined above,
would significantly diminish the effectiveness and efficiency of these
ongoing activities and in many cases would discourage a tree farmer
from performing these stewardship activities and thereby diminishing
the productivity of these lands. Further, tree farmers might consider
posting land making it off limits to the general public for fear of
adverse consequences which might result from public use of these tree
farms. Accordingly, please consider tree farms as positive influences
upon the environment rather than point sources for pollution.
Very truly yours,
Charles W. Thompson.
______
Hoag Island Trust,
98 High Rock Lane,
Westwood MA 02090, January 20, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington DC 20460.
Dear Sir or Madam: I appreciate the opportunity to comment on the new
rules prepared by EPA. As I understand it these proposals would
designate forestry operations as a ``point source'' for pollution,
require a Federal permitting process, and remove the responsibility for
monitoring from State and local to Federal agencies.
While I would welcome the Federal Government setting high standards
for environmental protection under the CWA, I believe first, that it
should target the large commercial logging operations on publicly owned
lands, and second, that forestry practices by private landowners should
be exempted from the ``point source'' designation provided they qualify
under a Tree Farm or similar program, and that they should continue to
be monitored by State and local authorities.
Federal Agencies have for centuries allowed the timber industry to
get away with murder on our National Parks and other public lands. To
subject private owners to any further regulation before that issue is
faced and resolved would be a monstrous miscarriage of justice!
The Trust that I represent is located in New Hampshire and is a
family owned affair. It's limited forestry operations have been carried
out in accord with a long term management plan carefully worked out 50
years ago by professional foresters, (New England Forestry Foundation).
It has qualified for Tree Farm status for over 20 years. Permitting and
monitoring by local and State authorities has been protective of
erosion, water quality and other environmental concerns as they should
have been. Because of our property's location we are particularly
sensitive to any regulation that would prolong or delay our operations
or would add to the already high costs associated with difficult
access. I find it hard to believe that adding Federal supervision would
result in increased protection of the environment and it would surely
add to delays and higher costs.
My impression is that forestry operations on private property is a
negligible contributor to pollution of our watersheds and that the
situation has been improving in recent years. I am told that EPA's
studies substantiate this.
I strongly believe that the proposed regulations will be counter
productive in that they will add to the burdens of private ownership of
forest lands forcing more owners to sell out to developers which is not
in the best interests of NH, or the country as a hole. I hope you
committee will carefully consider the suggestions I have outlined.
Sincerely,
Hamilton Coolidge, Trustee.
______
Society for the Protection of New Hampshire Forests,
Concord, NH, January 19, 2000.
Comment Clerk,
Water Docket (W-99-04),
Environmental Protection Agency,
Washington, DC 20460.
Re: Comments from the Society for the Protection of New Hampshire
Forests on the EPA's Total Maximum Daily Load Program Proposed Rule.
Dear Comment Clerk: Since its founding in 1901, the Society for the
Protection of New Hampshire Forests has advocated for good forestry
practices and the protection of water resources, including the
reduction of non-point source pollution. However, the Society is
opposed to the TMDL rule changes as proposed by the Environmental
Protection Agency.
Specifically, the Society opposes the reclassification of forestry
operations under the Clean Water Act from the non-point source category
to the point source category. The legislative history of the Clean
Water Act makes clear Congress's intent that forest management
practices were to be regulated under the non-point source program. We
believe that forestry contributes a negligible fraction of pollution to
streams and rivers and that forestry operations are, in fact, a non-
point source of pollution, as negligible as they are. Reclassification
as a point source is unwarranted.
Further, best management practices have been developed in most
States to control these non-point sources. New Hampshire woodlot owners
and foresters have a heritage of responsible stewardship and commitment
to following best forestry practices. The Society believes that
continued education about and monitoring of these practices is the best
way to control and reduce non-point source pollution resulting from
forest management operations. The proposed TMDL rule changes would
undermine the continuing efforts made in this area.
The Society also believes that the proposed rules, which will move
the responsibility for monitoring TMDLs from the States to the Federal
Government, will impact forestry operations in a way that is exactly
opposite of the intended effect of the proposed rules. A Federal
permitting process for forestry operations would impose a heavy burden
on New Hampshire landowners in increased cost and bureaucratic delay.
We believe that the proposed rule changes are onerous in scope and
could force land out of productive forestry and into development.
Forcing landowners to choose between healthy forests and selling for
development is not good for New Hampshire's environment, or for the
nation's.
We believe that the removal of the point source exemption for
forestry operations fails to recognize the beneficial contributions to
water quality provided by the presence of forestlands and their
appropriate management. Healthy streams, lakes and watersheds are
clearly linked to the presence of forests. Forests provide other public
benefits as well, such as clean air, good wildlife habitat and public
recreation. The best way to continue these benefits is to provide
incentives to landowners to maintain healthy forests. The Society
believes that these proposed rule changes will remove current
incentives by increasing regulatory and financial burdens on
landowners. For these reasons, the Society opposes the proposed rule
changes.
Sincerely,
Susan Slack, Policy Specialist,
Society for the Protection of New Hampshire Forests.
______
From: Paul A. Doscher.
To: [email protected]
Cc: Carl DeLoi
Date: Thursday, January 20, 2000 4:47 PM.
Subject: Comments on Water Docket (w-98-31)
To: Comment Clerk USEPA 401 M. Street, SW Washington, DC 20460
Re: TMDL Program Rule, Water Docket (W-98-31)
As a forest land owner, environmental scientist, former professor of
environmental science and professional in the land conservation field,
I am writing to object to the potential designation of forestry as a
``point source'' of pollution for regulatory purposes.
I have been involved in environmental protection in New Hampshire
for more than 25 years, own a small Tree Farm and have supervised
forest management on many thousands of acres. I have high standards for
forestry on my land, and can state with absolute certainty that no
forestry practiced on my land has ever produced any water quality
problems on my land or in the stream which dissects it. In fact, if New
Hampshire forest and wetland laws in place today are enforced
correctly, this should be the case for any forest operation in the
State.
Further, in this era when the employment of Best Management
Practices (to control soil erosion) and Recommended Voluntary Forest
Management Practices are becoming common practice, water pollution due
to forestry activities has declined dramatically in New Hampshire.
Placing a new layer of Federal regulation on forestry, with seemingly
negligible actual environmental benefit would be a serious error.
Why?
Because this new requirement will increase the cost of forestry to
many landowners for whom good forestry is already a marginally economic
activity.
Because it will cause significant delays in harvesting and may
prevent operation on dry and frozen ground conditions unless landowners
anticipate permit delays well in advance.
Because it will create a significant ``backlash'' by conservation
minded landowners against environmental regulation they perceive to be
of inconsequential benefit to water quality.
Because there are many more important water quality problems to
deal with in our State and region and injecting Federal regulation into
forestry activities cannot help but dilute the Federal resources
available to address more important problems.
Forestry should remain a ``non-point'' source for regulatory
purposes. EPA should instead continue to support the promotion of
education on Recommended Voluntary Forest Management Practices, and
training of land managers, owners and loggers on BMPs. These have
proven successful, and EPA funding has helped them to succeed. Please
do not undermine the good work that has been achieved through past EPA
collaboration with the forestry community.
Sincerely,
Paul A. Doscher.
274 Poor Farm Road Weare, NH 03281
______
Pine Knob Farm,
RR 1, Box 614,
Whitefield, New Hampshire 03598, January 17, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
To Whom It May Concern: Do not designate forestry operations as a point
source for pollution. As Tree Farmers and as stewards of the land we
have tried our best to maintain or improve water quality, wildlife and
plant habitats as well as the quality of timber for eventual harvest by
our grandchildren.
Most of our more than 800 acres of forest grows on hydric soils. We
have limited timber harvests to frozen ground, but on occasion there is
a thaw during the operation which may cause some temporary run off.
Seldom has this affected any area beyond the immediate operation. Most
people would never see a problem, but we have shut down logging
operations until freezing temperatures return. We take other measures
as well to protect water quality during and after logging operations.
Most landowners and loggers, whether or not they are Tree Farmers,
follow the same procedures. As landowners we must live with the results
of what we do. We do not need more permits, analysis, fees or ``outside
experts'' telling us how to manage our land.
We have, for many years, encouraged school groups, various
organizations and individuals to visit our Tree Farm to see the way we
manage the land, to hunt, to hike or to cross country ski. We have
invited people to see logging operations in progress. No one has ever
questioned our care of the land, but two hikers did question the
cutting of ``all those beautiful trees''.
Regrettably we have a few people in our town and surrounding
communities who do not believe a tree should ever be cut whether in our
nearby White Mountain National Forest or on private land. These
individuals will welcome your proposed rules, especially the
opportunity to bring legal action against landowners for perceived
violations. It would only take a couple of well publicized cases not
only to curtail logging on private lands, but also to end good and
active stewardship on such lands. More private land now open to the
public will likely be posted against trespassing.
Encourage and assist private landowners to be good stewards of the
land. Do not promulgate new regulations which will in the long term
defeat what we all want to achieve--retention of open space, clean
water, clean air, a habitat that will sustain diverse wildlife and
plants alike and a place for people to enjoy. We are enclosing a copy
of the information sheet we give visitors to our Tree Farm. We would
welcome the opportunity to have one or more EPA folks visit and see for
themselves some of what we have done.
Sincerely,
David W. Tellman, New Hampshire Tree Farm No. 2112.
Tanya S. Tellman.
______
Judith E. Fry,
RFD No. 1 Box,
73 Alton, NH 03809, January 17, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
Attention Comment Clerk: It was recently brought to my attention that
the EPA is proposing new Clean Water Act regulations that will
seriously impact Tree Farm owners. I understand the proposed EPA
regulations would designate forestry operations as a ``point source''
for pollution-the same status given to a factory or sewage treatment
plant.
Secondly, I understand that these new regulations being proposed
will remove a State's authority to monitor TMDL'S, total maximum daily
load, and place this responsibility in the hands of the Federal
Government.
I do not believe that Tree Farmers should be considered in the same
category as a factory or sewage treatment plant. Also, I do not believe
that Tree Farmers should be considered mayor water polluters of our
rivers and streams. Even your agency's studies indicate forestry
practices contribute only a very small percentage of pollution to our
rivers and streams.
Currently I am the caretaker/owner of a small Tree Farm, 300 acres,
in the Lakes Region of NH. There are a series of steps required of an
owner who is planning a logging program or other practices that require
permits,etc. Here in our town, the Town Forester oversees each forest
cutting, there are numerous town and State permits required and
regulations in place to be followed before a logging Job may begin.
Ultimately the responsibility for careful responsible and informed
forestry practices lies with the landowners), guided by the expertise
of a town, county or professional forester and responsible logger. Who
better to oversee Tree Farm operations, when needed, than our own New
Hampshire State Agency, Environmental Services Dept. and not a Federal
agency.
idur proposed rule will mean more red tape, more delays, more
permits, more analyzing, not to mention more expense to a Tree Farmer
like myself. I do not support the EPA'S proposed changes.
Respectfully,
Judith E. Fry.
______
Brookdale Fruit Farm, Inc.,
38 Broad St. P.O. Box 389,
Hollis, New Hampshire, January 17, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
Comment Clerk--EPA: We are small tree farmers in New Hampshire, and
part of our property borders a major river.
The proposed national rules under the Clean Water Act will replace
State control of TMDL. With Federal monitoring and responsibility, it
will also replace the ``non-source'' point designation with ``point
source'' for pollution regulation. This classification is totally
wrong--another example of the government acquiring property rights
through agency regulation.
Tree farmers are good citizens and help provide the public with
clean air, water, habitat for wildlife, recreation, and healthy forests
for the future. Please don't make us land developers.
Sincerely,
Frank Whittemore, Treasurer,
Brookdale Fruit Farm, Inc.
______
Frederick and Virginia Hatch,
27 Pease Road,
Meredith NH 03253, January 18, 2000.
Re: EPA TMDL Program Rule Comments.
We are Tree Farmers (Nos. 1641 in Meredith NH and 2464 in Sandwich
NH) whose management of our woodlands will be adversely affected by the
proposed rules for transferring control and permitting to a Federal
agency. Our 72 acres in Meredith has recently been placed under a
perpetual conservation easement with the New England Forestry
Foundation (NEFF) to include tree farming, wildlife habitat
enhancement, and public recreation. Both tree farms have management
plans created and implemented by NEFF licensed foresters. There are
already many regulations and ``best management practices'' concerning
timber management operations, which are adhered to by our forester and
the selected loggers. Most of these concern protection of water
quality. Note also that in this part of New England most harvests are
carried out in venter on frozen ground and water.
The Meredith tree farm contains one small permanent and several
seasonal streams. The drainage passes through a prime wetland, a larger
brook and river, and several intervening lakes before ultimately
becoming part of the Merrimack River. The 34 acre Sandwich tree farm
contains no significant watercourses and little or no drainage ever
leaves the property. An exception is frontage on a beaver pond at the
rear which has a major brook outlet. However, because of the scenic and
wilderness value of the pond, any timber operation will leave a large
uninvolved buffer around the pond.
Major management operations are carried out on these tree farms
only every 10-15 years. Given the descriptions above, it is
inconceivable that these activities could contribute more than a de
minimis point source of pollution. Adding a layer of Federal control on
top of established and proven local regulations and professional
practices would create a great inconvenience for our care of this
property. Our NEFF foresters are already so busy that gaining their
services requires lengthy advance planning. Adding another layer of
bureaucracy to this process violates all common sense for operations of
our magnitude. We will admit that operations on tracts ten or 20 times
our size, or closer to major water bodies of concern may justify more
stringent control. An important negative consequence of applying the
proposed program to small tracts is that landowners who do or might
practice good forestry will reject the regulation overlay and its costs
and sell their land for development, with far greater degradation of
the New Hampshire environment than will occur with the present level of
stewardship of our natural resources.
Thank you for your consideration of these comments.
Sincerely yours,
New Hampshire Timberland Owners Association.
Society for Protection of New Hampshire Forests.
______
Bruce M. Schwaegler,
P.O. Box A, Indian Pond Road,
Orford, NH 03777, March 20, 2000.
Thomas Thomson,
Bridge Street,
Orford, NH 03777.
Dear Tom: It is my understanding that you will be testifying soon
regarding the TMDL Program Rule. I believe strongly that forestry
activities should remain a ``non-point source'' for regulatory purposes
and that monitoring of TMDLs should remain with State agencies.
Attached is a copy of the letter that I provided to the Comment
Clerk for the TMDL Program Rule during January, 2000. I hope you will
represent my point of view during your testimony.
Best regards.
Sincerely,
Bruce.
______
Schwaegler Family Tree Farm,
January 17, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
Dear Environmental Protection Agency: I am asking that forestry
activities remain a ``non-point source'' for regulatory purposes.
Furthermore, I am asking that monitoring of TMDLs remain with State
agencies rather than moving that responsibility to the Federal
Government.
My certified Tree Farm is in the Connecticut River valley. Its 2800
acres includes 95 percent of the watershed of a 150-acre lake and its
major outflow wetlands. I am proud that my stewardship ethic is that of
taking great care of this natural resource. I invest extra financially
to assure that my standards are high. I go out of my way to encourage
other non-industrial forestland owners to adopt a similar high-level
stewardship ethic.
I am very concerned that the proposed rule may have severe negative
implications. To the extent that the additional regulatory review
results in additional costs--for instance time delays and professional
fees--my finite resources will be siphoned into those activities and
away from my ability to meet my own high standards on a voluntary
basis. I am also concerned that the proposed rule may open me to legal
challenges even though I am practicing sound, sustainable forestry.
From a public policy point of view, I feel that any additional
Federal resources should go toward the ongoing job of educating non-
industrial private forestland owners about proper standards of forest
management. This group, who collectively own nearly 59 percent of our
nation's 490 million acres of timberland, are well intended and share
the goal of high water quality standards. Many are new to forest
management and, therefore, education is important.
Sincerely,
Bruce Schwaegler.
______
W.M. Dannehy,
6 Maple Street,
Woodsville, NH 03785, March 10, 2000.
Thomas Thomson,
RR1, Box 9,
Orford, NH 03777.
Thanks for requesting the use of my letter of 1/18/2000 to the
Environmental Protection Agency regarding the proposed rule changes for
W-98-31.
You are more than welcome to utilize this letter at the upcoming
Senate hearing. Specifically, your local knowledge and testimony will
give the beltway people a true picture of field and forest conditions.
Best of luck with your efforts.
______
W.M. Dannehy,
6 Maple Street,
Woodsville, NH 03785, January 18, 2000.
Comment Clerk for the TMDL Program Rule
Water Docket W-98-31
Environmental Protection Agency,
Washington DC. 20460
:Proposed revisions to the Water Quality Planning & Management
Regulation W-98-31.
For the past 35 years I have been involved with nonpoint
agricultural and silvicultural water quality efforts as both a
professional Federal soil conservationist (30 years) and for the past 5
years as a consultant. I have also been a timberland owner and tree
farmer for over 30 years. My activities have generally been focused in
northern NH, VT, NY and ME.
Over the past 35 years, I have witnessed and been involved with
various efforts on the local and State which have made tremendous
progress in developing and implementing aggressive and effective non-
point programs. This has been a cooperative effort utilizing State
agencies, University systems, local professionals and a variety of
Conservation organizations. Despite the success of the local and State
effort, we now are told that EPA is proposing a Federal regulatory
program aimed at non-point sources of pollution.
Admittedly, there are demonstrated non-point problem areas which
may not be successfully addressed on a voluntary basis. I would suggest
that everyone would be better served if State and local organizations
be funded with Federal dollars and utilize Federal technical guidelines
to address problems rather than tarring the matter over to another
Federal agency.
As proposed, I feel these rules changes will destroy the sense of
trust, stewardship and partnership which many people have worked for
many years to establish between landowners and State and local
technical agencies. By bringing in an outside Federal enforcement
agency/local attitudes and feelings will revert back to what they were
over 30 years ago.
______
High Ridge Tree Farm,
1999 New Hampshire Outstanding Tree Farmers.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
Dear EPA: My wife, Ginny, and I are tree farmers in New Hampshire and
have recently become aware that your agency is proposing new Clean
Water Act rules for forestry that could adversely affect our tree
farming activities on our property in NH.
As I understand the proposal, your agency feels that Forestry needs
more Federal control over our tree farming activities in NH. I would
disagree with this assessment for several reasons:
1. Forestry results in the lowest source of sediment of all land
uses. The cropping factor used in the universal soil loss equation is
the lowest for forestry. Regular farming activities have much higher
soil loss than forest activities primarily because the rotation for
forest activities is so long compared to other land uses.
2. Forest landowners are the best protection for water quality in
the nation. If we are forced to undergo additional and unnecessary
Federal regulation in the name of water quality, the result could very
well be counter productive because of the forced sale of forest land to
other land uses which are not as beneficial to water quality.
3. Forest activities are currently regulated by the State of New
Hampshire by the required implementation of BEST MANAGEMENT PRACTICES
on harvest operations. These rules as I understand them have been
reviewed by your agency and have been affectively implemented for many
years with the result that forestry has the least impact to water
quality of all land uses in NH. If it ain't broke don't fix it. If a
forest activity is in violation of the law regarding water quality,
than current law should be enforced on the violator instead of putting
an additional burden on forest landowners who are currently protecting
water quality better than any other land use category.
4. I have not seen any specific information or data to support
EPA's proposal that additional regulation is required in New Hampshire
to regulate forest landowners through a Federal permitting process.
Lacking this information there is no logical reason to put this costly
regulatory burden on landowners.
Please consider our concerns and seriously consider the withdrawal
of your proposal because it is not needed for forestry in NH. Because
your proposal has such a large potential financial impact on forest
land owners in New Hampshire I would request that you hold public
hearings in New Hampshire before taking any final action on this
proposal so that all points of view can accurately be expressed in
public and the merits of the proposal can be closely examined by the
public in a public forum.
Please forward to us specific material that you have to Justify
your proposal that would affect forest landowners in NH. Also notify us
of any hearings or other notices on this matter that your agency may
undertake.
Thank you for year consideration.
Thomas G. Chrisenton.
Virginal L. Chrisenton.
______
Schwaegler Family Tree Farm,
P.O. Box A, Indian Pond Road,
Orford, NH 03777, January 17, 2000.
Comment Clerk for the TMDL Program Rule Water,
Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
Dear Environmental Protection Agency: I am asking that forestry
activities remain a ``non-point source'' for regulatory purposes.
Furthermore, I am asking that monitoring of TMDLs remain with State
agencies rather than moving that responsibility to the Federal
Government.
My certified Tree Farm is in the Connecticut River valley. Its
2,800 acres includes 95 percent of the watershed of a 150-acre lake and
its major outflow wetlands. I am proud that my stewardship ethic is
that of taking great care of this natural resource. I invest extra
financially to assure that my standards are high. I go out of my way to
encourage other non-industrial forestland owners to adopt a similar
high-level stewardship ethic.
I am very concerned that the proposed rule may have severe negative
implications. To the extent that the additional regulatory review
results in additional costs--for instance time delays and professional
fees--my finite resources will be siphoned into those activities and
away from my ability to meet my own high standards on a voluntary
basis. I am also concerned that the proposed rule may open me to legal
challenges even though I am practicing sound, sustainable forestry.
From a public policy point of view, I feel that any additional
Federal resources should go toward the ongoing job of educating non-
industrial private forestland owners about proper standards of forest
management. This group, who collectively own nearly 59 percent of our
nation's 490 million acres of timberland, are well intended and share
the goal of high water quality standards. Many are new to forest
management and, therefore, education is important.
Sincerely,
Bruce Schwaegler.
______
Phillips Exeter Academy,
20 Main Street,
Exeter, NH 03833, January 14, 2000,
TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
Dear Clerk: The Phillips Exeter Academy owns approximately 700 acres
and is a registered tree farm.
In the past, we have been involved in various forestry practices
including timber harvest, pruning, fire access road construction. In
recent years we have become committed to increased forest management,
wildlife habitat improvement, grassland management, recreation trail
construction and maintenance, and land protection. We enlist the
knowledge and experience of the county the extension service, USDA
Natural Resources Conservation Service, private consulting foresters,
and professional contractors. Fortunately we have not been unduly
delayed by lengthy process and restrictions. Increased regulation,
inspection, permits, etc. will only serve to retard our good progress.
The Academy puts a high priority on the management and protection
of its land and we consider ourselves responsible stewards. We would
ask that forestry activities remain a ``non-point source'' for
regulatory purposes. Thank you for the opportunity to express our
opinion.
Sincerely,
Dennis Huber, Supervisor of Grounds,
Phillips Exeter Academy.
______
Tomapo Farm,
Bruce C. Townsend,
11110 Storrs Hill Road,
Lebanon, NH 03766-2312, January 15, 2000.
Comment Clerk for the TMDL Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
I would like to respond to the proposal to include forestry
operations as a ``point source'' classification.
I live on and operate a family farm which was settled by my four
greats grandfather in 1769. I am the seventh generation to live here.
The farm consists of 400 acres of which 60 acres are tillage and the
remainder is forest of mixed hardwoods with a fair amount of Eastern
White Pine and a lesser amount of Eastern Hemlock. Probably seventy-
five percent hardwood. We also have a 1500 tap maple sugar operation
and are members of the American Tree Farm System.
For two hundred plus years we have practiced good forest
stewardship, and at no time have had a problem with ``point source'' or
``non-point source'' pollution. We have always practiced good soil
conservation on our land as well.
As a small business (under $100,000 per year) the additional
regulations and red tape they create would only add to our costs and
make it that much more difficult to stay here. In fact I think it
highly likely that if I found myself facing the additional red tape,
citizen suit liability, and even the possibility of having my business
``held up'' while someone checked to be sure there are no endangered
species here, I'd call it quits.
I feel like the only endangered species here are the landowners,
farmers and foresters. Does anyone care about this human race?
Please, don't put Forestry Operations in the ``point source''
classification. I believe it will have a very negative effect on small
landowners and Tree Farms.
Finally, It seems to me that the State of New Hampshire has been
doing a very good job of handling water pollution control.
Sincerely,
Bruce C. Townsend.
______
Mr. & Mrs. Leslie C. Briggs,
157 South Road,
Kensington NH 03833-5807, January 10, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
Dear Sir or Madam: This is being written in response to your proposal
for new Nationwide rules and regulations that will impact our ability
to practice responsible forestry. No new rules regarding how we manage
our woodlands are necessary since we have been exhibiting responsible
stewardship over a good many years.
My wife and myself are the proud owners of a 177 acre Tree Farm
known as the Pine Tree Trust which has been in my wife's family for six
generations. We have been the custodians of this property since 1978
when my wife inherited the property from her father.
Since acquiring ownership, forest related work has been in
continuous practices A 25 year Forest Management Plan was prepared by a
certified consulting forester, Charles Moreno and silverculture
practices have been carried out ever since.
Mr Moreno incidently is also a Tree Farm Inspector. He has been
selected as the New Hampshire Tree Farm Inspector of the Year six
times--and the Northeast Region winner twice. Last November he was
named the 1999 Westley R. Meier Outstanding Inspector of the Year by
the American Tree Farm System. He has served as a Tree Farm Inspector
for 18 years and has-earned the American Tree Farm System's Gold Hard
Hat award for certifying more than 100 Tree Farms in his career.
Our property which spans two Towns here in the Southern most part
of Rockingham County which happens to be the fastest growing part of
the State and New Hampshire also happens to be the fastest growing part
of New England.
My wife and myself have been working for almost a year to obtain a
Conservation Easement on this woodland. The easement has been drawn up
and with a little fine tuning will be in place later this month.
Tree Farmers as well as other Woodland Owners in this State have
been responsible stewards of their woodland property and any additional
Government rules and regulations are not needed.
We do not want more red tape, more expenses and more administrative
delays. Back off and let us continue to handle our woodlands in a
responsible manner.
Sincerely yours,
Leslie C. Briggs.
______
Bill & Nancy Yates,
RR2 392A1 Chestnut Hill Road,
Farmington, NH 03835, January 11, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-9-31),
Environmental Protection Agency,
Washington, DC 20460.
Dear Sir or Madam: I would like to make a comment about being a tree
farmer. I have 150 Acres of land under the stewardship program. I would
request that forestry activity remain a ``non-point-source'' for
regulatory purposes. I have been able to be a tree farmer and follow
all good conservation practices because of the financial assistance I
have received, as well as the help in obtaining permits.
We do not need more regulatory action that could seriously damage
the heritage of responsible stewardship that New Hampshire tree farmers
have built up over the last 50 years.
I would appreciate my comments be considered before any regulatory
action is taken.
Thank you,
William A. Yates.
______
Kathryn Donovan Kachavos,
New Boston, NH 03070.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
Dear Sir: I am writing to you regarding the proposed rules because of
my concern that the implementation of such regulation may have a
serious adverse effect on the stewardship of New Hampshire forest
lands. The land that I own is an undivided parcel of 50 acres that has
been cared for by only four families since it was settled in the
1760's. Most of the acreage is second growth forest, primarily white
pine. Forest management began in the 1960's under the previous owner to
maximize sustainable yields.
The land has been a certified Tree Farm since 1986. A stewardship
plan was developed in 1996 to guide continuing management. Besides the
forest, the land has water courses and two ponds which are in the
watershed of the Piscataquog River. The forest supports a rich and
varied wildlife, including deer, black bear, coyote, fox, weasel,
snowshoe hare, mink, fisher cat, porcupine and raccoon. Herons and
hawks nest as well as numerous smaller birds. Moles, mice and voles are
well-represented. Because of forest diversity, ample resources are
available to the entire food chain.
This result has been achieved through the guidance and support of
several groups and individuals. However, it would not have been
possible to accomplish this without these resources being accessible
and easily utilized by the small landowner. Most of the timber in New
Hampshire is owned and managed by small landowners like myself. Current
programs have made it convenient for us to develop sound forestry
practices and management skills.
While I appreciate the goal of clean water and protecting the
watershed, I would note that sound forestry practices already add a
great deal to any watershed, by acting as active filters and drawing
pollutants out of the air and soil. Increasing regulation is likely to
drive the small landowner out of sound management because of the burden
of forms and bureaucracy. I would also note that the time consumed by
regulatory procedures may prevent the owner from selling at prime
market price. As small landowners, most of us harvest only
sporadically, and missing the market may cause real hardship.
Finally, I would observe that Tree Farmers are already interested
in, and active in protecting watershed quality. The conservation
easement on my land is held, not by the Forest Society but by the local
watershed association (Piscataqoug Watershed Association). I currently
allow access to my land for hiking, fishing and hunting, but I am
concerned that under the proposed regulations, liability issues would
force me to reconsider the question of access.
In conclusion, let me share with you what I consider a far more
serious threat to watersheds than forestry activities. As a very young
child, I listened to my grandfather berate the paving of a road near
his truck farm. ``In a hundred years, you will not be able to grow corn
on this black top,'' he said. But then he turned to me and explained
that the real damage was that the paving prevented the rain from
soaking into the ground and replenishing the springs and wells and that
most of it would end up wasted, returning to the ocean unused. The
amount of land sacrificed to road paving within watersheds constitutes
much more of a problem for water quality than forestry activities.
Please let forestry activities remain a ``non-point source'' for
regulatory purposes.
Sincerely,
Kathryn Donovan Kachavos.
______
Peter C. Rhoades,
New Hampshire Licensed Forester No. 69,
South Acworth, NH 037607-7703, January 11, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
This letter is a comment on the proposed new rules to designate
forestry operations as a ``point source'' for pollution. I consider
myself a dedicated conservationist and in general support most efforts
to improve the quality of our nation's air and water. However, I am
strongly opposed to the proposal to designate forestry operations as
point source for pollution, for the following reasons. My knowledge is
limited primarily to New Hampshire(NH) and surrounding New England
States, and my comments are most specific to this region. However, as I
feel that these proposed rules are counterproductive to good forest
management and environmental quality in general for this region, I feel
that a different approach is needed to address this problem if indeed
it exists in other regions of the country.
1) This designation is not needed. Forestry operations contribute a
tiny portion of the pollution to New Hampshire waters. Existing
regulations under the jurisdiction of the New Hampshire Dept. of
Environmental Services are quite inclusive and provide a framework
within which forestry operations can be monitored and controlled. Other
agencies such as the New Hampshire Division of Forests and Lands,
Cooperative Extension, NRCS, Regional Planning Agencies, Local
Conservation Commissions, etc., are available to provide technical
assistance, education, and monitoring to help continue to improve the
quality of logging operations and the quality of our waters. The New
Hampshire logger certification program is one example of the efforts to
continually improve the quality of logging.
2) Because forest management activities are such a negligible
source of pollution, forest landowners can have virtually no impact on
upgrading the quality of an impaired watershed. If other sources of
pollution, such as mentioned below, and such sources of silt as natural
landslides along waterways, which are a major source of silt in this
area, are not dealt with, the forest landowners will be burdened with
these onerous rules indefinitely.
3) The EPA is not the right agency to be involved with the
regulation of logging operations on private lands. It is impossible to
believe that the EPA has the resources or the knowledge of local
conditions to be able to administer these rules in an efficient manner,
without causing undue burden on landowners.
4) The rules could be counterproductive to the goal of improving
the quality of our environment. Tree Farming is a marginal occupation
financially. While many forest landowners own and manage forest land
primarily for the pleasure it brings them, most need to be able to
generate enough income from the forest to be able to continue cover the
costs of ownership. As I understand the proposed rules, the added costs
and delays in conducting forest management activities, and the
subjection of landowners to citizen suits for permitted activities,
will almost certainly cause some if not many landowners to sell their
woodlands for house lots, industrial sites, or other development
purposes. These developed uses will contribute much, much more
pollution and environmental degradation than the forest management
activities which they replace. For example, the largely unregulated use
of fertilizers, pesticides, and herbicides used by homeowners and on
commercial grounds Is a major potential source of water pollution. In
addition, for every acre of forest land that is lost to productive use
in New England, where soils are resilient and forests easily
regenerate, a comparable amount of fragile rain forest may harvested,
or marginal land be put into monoculture plantations, to replace the
volume of wood that could have been produced in NE. I consider the
impact that this shift in wood production has on the loss of species,
global warming, and environmental degradation in other areas of the
globe to be much more serious than the negligible pollution caused by
logging in NE.
I believe that the EPA can use its resources much more effectively
than to adopt and try to administer these proposed rules. I also
believe that the adoption of such intrusive and unwarranted rules such
as those proposed will have the effect of fuming many supporters of
sound environmental legislation, which I believe most New Hampshire
landowners are, toward an anti-regulatory attitude, and have a negative
long-term impact.
The background from which I form the above opinions includes 25
years experience as a consulting forester, managing many thousand acres
of forest land; owning and managing 215 acres of my own woodland, part
of which has been in the family for 100 years; working as a Town
Forester for 5 New Hampshire towns, and observing many of the timber
harvest operations that take place in those towns; serving as Chairman
of a local planning board for many years, during which time a Water
Resource Protection Plan was developed and adopted; and serving as the
elected representative from this area on the Farm Service Agency County
Committee, working with programs to direct Federal money under programs
such as EQUIP toward funding voluntary landowner projects to improve
water quality. Thank you for your attention to these concerns.
Respectfully,
Peter C. Rhoades.
______
Jackson, Jackson & Wagner,
January 10, 2000.
I strongly protest, Mr. Comment Clerk. . . . the proposal under
Water Docket (W-98-31) that Forestry should become a point source for
pollution and therefore be included in TMDL of impaired water.
I am a small landowner and tree owner in Rockingham County, New
Hampshire. This is one of the fastest growing counties in the northeast
and any landowner is under continuous lucrative enticement to sell land
for development.
As a certified Tree Farmer with a stewardship program based on SFI,
my long-range plan is based on soil conservation, quality timber for
selective harvesting recreation, wild life conservation (the land is
not posted) and preservation of clean water resources. Because of the
terrain of the land, my best hope is that well managed forestry will
provide break-even financial returns for the investment required for
roads, culverts, updated management plans and harvesting with minimum
impact.
My opposition to the proposed TMDL rule is based on three concerns:
1. I am past president of Rockingham County Woodland Owners and the
New Hampshire Timberland owners. In my experience the State of New
Hampshire has a good record in both passing forestry legislation that
protects the environment and in enforcing water quality regulations in
forestry operations.
Recommendation: If the EPA has money in its budget for this
proposed rule, use these funds constructively. On a grant basis make
them available to States and non-profit organizations such as the NHTOA
to provide expanded water quality education to landowners and
industrial forestry.
Remember the Yankee saying ``If it ain't broke don't fix it''.
2. For small landowners like myself the reality of dealing with the
uncertainty and intricacy of TOOL regulations would add so much to the
time and expense of managing my land that the rule will be
counterintuitive. The regulations will encourage me to let my
forestland become once again unproductive.
A conservation organization such as the SPNHF designed to promote
good forestry would have little interest in accepting an easement on
land that is potentially subject to the expensive capriciousness of
Federal permitting. On my death the acreage would go on the market for
development.
Recommendation: Since forestry contributes so little to water
pollution, EPA spends our tax money on dealing with major sources
including acid rain. More generous grants to small communities would
help clear up sewage pollution; greater cooperation between the EPA and
the Department of Agriculture would help deal with the TMDL caused by
soil erosion, fertilizers and pesticides.
3. The Declaration of Independence specifically condemns harassing
lawsuits. This rule gives those groups committed to the wilderness
philosophy an open door to halt by threat of an injunction, fines and
interminable appeals any forestry project that does not fit with their
views This truly is outdoor relief for environmental lawyers and their
supporting organizations.
Recommendation: The EPA accepts training from the leaders of New
Hampshire conservation organizations who have the experience to set up
productive partnerships--not litigation--between private and industrial
landowners, conservation organizations and State agencies to improve
water quality.
Most vigorously,
Isobel Parke, APR, Fellow PRSA, Senior Counsel.
______
Milton L. Page,
P.O. Box 171,
Melvin Village NH 03850, January 12, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
Dear Comment Clerk: This letter refers to TOOL Water Docket (W-98-31).
The director of the New Hampshire Timber Owners Association, Eric
Kingsley, and the President-Forester, Jane Difly of the Society for the
Protection of New Hampshire Forests requested my comment.
As the outstanding Tree Farmer of Carroll County for 1983, I
personally know that the landowner usually does not operate the logging
on his land. Therefore, I think permits should be required of the
person doing the work.
Decentralized control at the local level and permits issued to
forest operators, not landowners, I feel is the way to go. The Clean
Water Act took the landowner's rights away in 1964 anyway.
Sincerely,
Milton L. Page.
______
Greenleaf Products Inc.
Post Office Box 228
West Ossipee, NH 03890, January 10, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31)
Environmental Protection Agency,
Washington, DC 20460.
Dear Sirs: This letter is in reference to the proposed changes of the
Clean Water Act.
As a landowner and forester I am requesting that forestry
activities remain a non-point source for regulatory purposes.
Ownership of forest land is at best a marginal enterprise. One more
layer of regulation will only hasten the liquidation of these assets
into the hands of intense commercialization. There are already enough
regulations in place to maintain the environmental quality if enforced.
At the present we make every effort to achieve sustained yields (or
our own lands and the lands we manage.
Timing is very important when managing natural resources,
harvesting of trees must be coordinated with seed sources, wildlife
populations and seasonal vanations only to mention the most obvious.
Any more tinkering with already effective regulations will only create
more obstacles and delays at the source of production.
In addition any more obstacles wit) ultimately affect our toad and
fiber supply for our urban population at the end of the supply chain.
Your consideration of these comments will be appreciated.
Sincerely,
Harold Cook, Forester.
______
To: Comment Clerk for the TMDL Program Rule,
From: George W. Chase (497 Putney Hill Road, Hopkinton, NH 03229)
I wish to comment on the proposed new nationwide rules of the
Environmental Protection Agency.
While I am normally in favor of any strengthening of EPA standards
and even more supportive of efforts made by EPA to actually pursue and
prosecute those found to be violating EPA guidelines already in place,
I am not convinced that the redesignation of forestry operations as
``point source'' operations is in the best interests of the country.
Furthermore, I have greater doubt that the Federal oversight of
forestry is likely to be more effective than local and State oversight.
This is especially true when the Tree Farm Program is involved.
I am a Tree Farmer and have been for 20 years. I am on the boards
of conservation organizations, and I am a State representative. I have
witnessed both good and bad forestry operations. One of the poor ones
took place on land abutting mine and caused unnecessary erosion. Such
things do indeed happen but as a group forest land owners are probably
about as fine a group when it comes to conservation as you will find. I
cannot say the same for the transportation industry, the construction
industry, many corporations, and even some in the agricultural sector
who have not made every effort to minimize the amount of fertilizer and
pesticides used by employing environmentally friendly alternative
methods (albeit initially more expensive but in the long run less
expensive). To impose regulations on a group that already is well aware
of long-range planning and is willing to wait for 5, 10, 15 or more
years between cuttings may well drive some of the group into the hands
of developers. EPA will then be faced with the unenviable job of taking
on business and industry whereas EPA is now considered to be an ally of
most forest owners.
Working cooperatively and supportively with New Hampshire Tree
Farmers will, I firmly beileve, prove to be a better course of action
than to aggravate an important group of landowners who have proven that
they wish to be responsible stewards of a large amount of acreage. In
fact they are quite willing to encourage millions of others to enjoy
those acres in a variety of recreational pursuits.
Thank you for considering this response to your plans.
George W. Chase.
______
Roger S. Leighton, Sr.,
Stratford, NH 03884, January 10, 2000.
Comment Clerk, TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
Reference: Clean Water Act (CWA) ``Forestry and the Non-Point Source of
Pollution''
Dear EPA Personnel: I am the owner of the 500-acre Leighton Tree Farm
in the towns of Barrington, NH and Strafford, NH.
It has been brought to my attention that the EPA, under the CWA, is
planning to reclassify forestry operations as a point source for
pollution, rather than a nonpoint source of pollution, and a Tree
Farmer, such as myself, would have to obtain Federal permits when
carrying out forestay operations that might have the potential for
causing point pollution. These permits would be in addition to the
present permits required by the N.H. Dept. of Environmental Services.
It would appear to me that Federal permits would be a duplication
of the present permits, infield supervision, and enforcement now in
place in the State of New Hampshire Tree Farmers, Loggers, and
Foresters have over the years adapted their field operations to include
the New Hampshire permit system. Through our continuing education
programs for licensed foresters and loggers we are kept up-to-date on
correct field operations to stop possible erosion from forestry
operations. The Tree Farmer, or, his consulting forester supervise all
forestry operations on his tree farm. Most, if not all, Tree Farmers
require the services of a licensed (certified) logger.
I should like to go on record as opposing the changing of the
category of forest operation as a ``non-point source of pollution''
under the CWA to a point source of pollution, and the requiring of
Federal permits for forestry operations.
Sincerely,
Roger S. Leighton, Sr., Forester.
New Hampshire Lic. No. HC-74.
______
David D Skidmore,
Emery Holt Road,
P.O. Box 127,
Lyndeborough, NH 03082, January 9, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
Dear Sir: I was recently advised that the Environmental Protection
Agency (EPA) is proposing new nationwide rules related to forestry, and
that these rules would affect private lands. As a New Hampshire Tree
Farmer, I wish to express my concern for the proposed rules, as I
understand there, as they will adversely affect my ability to manage my
land and tree farm.
New Hampshire is one of, if not the most progressive State with
respect to protecting its forests and wild life habitat environments. I
have an eighty-acre tree farm with a wide variety of hard and soft wood
trees, and wildlife. My management plan provides for continual
improvement of that forest and its products, as well as caring for and
ensuring a sound habitat for the wildlife that reside and pass through
the area on natural game trails. In addition, we provide controlled
recreational access to hikers, wildlife enthusiasts, cross country
skiers and snow mobile's on designated trails, while restricting access
to certain wildlife habitats.
It is responsible forest management by responsible landowners
working in conjunction with the New Hampshire Timberland Owners
Associations and Society for the Protection of New Hampshire Forests
that protect our forest environments and wildlife habitats. It is not
big government, Federal Agencies that have little or no local knowledge
or understanding of the region. I believe forestry activities should
remain a ``non-point source'' for regulatory purposes. While your
agency does a wonderful job on the whole, X does not need be over
zealous and get involved in New Hampshire's forest activities pre-
empting the State's Department of Environmental Services. I do not need
an absentee agency to impede my efforts and add a cost burden to meet
my responsibilities as a tree farmer.
``If it ain't broke, don't fix it.''
Sincerely,
David D. Skidmore.
______
John C. Calhoun, Jr.,
Gilsum, NH 03448-0008, January 8, 2000.
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Envtronmental Protection Agency,
Washington DC 20460.
Dear Rule Makers: I write to you as a landowner, a tree farmer, a
former chairman and honorary director of the Connecticut River
Watershed Council, and a founding member of the Board of the Ashuelot
River Manaagement Protection Program. I am a believer in clean water.
But I write to you also as a career forest manager who provided
management guidance and services to the private land owners in the New
England area and beyond for the past 46 years.
It is agreed that forests are the single most effective protection
for watersheds and for the rivers that drain them. Only 25 percent of
the forests in the Northeast are owned by the public as national and
State forests. The rest are all private forests, owned mostly in
relatively small--under 200 acres--by the few remaining farmers, their
successors, the weekenders and some retirees, and a representative
cross-section of citizens, some wealthy, but many of average means.
A significant, but decreasing number of large acreage holding are
owned by the forest products industry.
The forest industry in the New England States has been alert to the
problems of water quality, and already have in place very tough laws
with respect to maintaining water quality on stream crossings and
erosion during the process of logging.
These are already in place and have proved to be effective in
curbing the few offenders that failed to follow those rather simple and
sensible rules that are in place in Vermont, New Hampshire,
Massachusetts, and Maine, with which I am familiar.
The ethic for protection of the soil and the quality of water in
our streams is at ready in place, in my opinion. The means of dealing
with the few who through ignorance or indifference ignore the rules,
are also in place and are proven to be effective.
The imposition of a new, Federal permit layer will be completely
redundant for the New England area! In addition it will add a layer of
complexity and delay and vulnerablity to the forest management process
that will greatly add to the disincentives for owning and managing
woodland for the long range. There are already a number of permits and
hurdles to secure and clear prior to a harvest of timber. There are
also a number of taxes on the owning and harvesting of forest products.
As these pile up every owner will be asking how much more can they try
to control and regulate what i do to make money on the renewable
products that I grow on my land?
And there is the larger question to be asked: Compared to all the
other forces at work to impair the surface and subsurface water of this
country how much actual damage is being caused by logging and other
activities on my property, to the waters draining that property? Or is
the result of my maintaining a valuable and perpetual forest/tree farm
is there a very positive benefit to all the New England water ways?
In a time of surpluses and plenty we dismiss the importance for the
region or the country of one dairy or crop farm and one tree farm. But
that is how they are lost--one ownership at a time. Over 20,000 acres a
year are gone in New Hampshire, to be succeeded by development,
pavement, drains roads, run-off, sewerage, you know the rest.
The concern of the EPA and all the branches of government including
the Congress, should be: How can we encourage and sustain the
productive farm and forest land of this country to bolster the life-
support system of our mostly urban and totally dependent citizens, who
presently care little as to where their food, shelter, paper products,
fuel, chemicals come from. But God help us when the time of shortage
comes, as it did during the oil embargo, and fuel is scarce, or when
due to drought or crop disease, food is scarce and has to be rationed!
The forest industry has over the years demonstrated a
responsibility and a stewardship of its forest lands. It has an ethic
that has been aided by a resilient forest environment, that has
demonstrated that resilience from past overcutting of the past, and
from wildfires. We know what we have to do and we are doing it. But the
process is fragile and threatened. Please EPA, do not add to the
problems!
This EPA proposal, which I judge you feel is a major step to save
the rivers and waters, will not be aided in any way by including
forestry activities as a point source of pollution. Nor will it result
in any cleaner water from our presently forested hillsides.
Most sincerely,
John C. Calhoun, Jr.
______
Thomson Family Tree Farm,
Orford, NH 03777 January 12, 2000.
Ms. Carol Browner,
Comment Clerk for the TMDL Program Rule,
Water Docket (W-98-31),
Environmental Protection Agency,
Washington, DC 20460.
Dear Ms. Browner: I am wearing two hats as I write this letter in
opposition to EPA's rule change (TMDL) in regard to changing forestry
from non-point source to a point source.
First I represent myself as a private non-industrial woodland owner
and certified tree farmer and second as the Vice Chair of the National
Tree Farm Operating Committee representing nearly 70,000 members across
the United States who are managing 85 million acres in a sustainable
manner.
We are opposed to this rule change and strongly urge you to leave
forestry as is: a non-point source. Enclosed is a recent article that
outlines our concerns.
This rule change will only encourage and in some cases force
landowners to sell and convert their woodlands to development. I ask
you, which is more environmentally beneficial to society, the forest as
we know it today or housing developments, shopping malls and pavement?
I think we would both agree on the forest. Please use common sense on
this important issue and leave forestry as a non-point source.
I would invite you to tour a healthy forest (tree farm) and see for
yourself the many benefits we provide to society which include timber
for our nation, enhance wildlife habitat, create recreational
opportunities and provide clean air and clean water.
Sincerely yours,
Thomas N. Thomson, Tree Farmer.
______
Statement of Thomas Thomson New Hampshire Tree Farmer and Chair of the
Policy Committee for the National Tree Farm System
Mr. Chairman and members of the committee: Thank you for allowing
me the opportunity to discuss the concerns that non-industrial
landowners from across the country have about the Environmental
Protection Agency's (EPA) proposed water quality protection rule change
that will impact forestry.
First, I represent the Thomson Family Tree Farm as a private non-
industrial woodland owner from New Hampshire. This Tree Farm is owned
and managed by my family, including my wife Sheila, and our 22 year old
son Stacey. We manage 2,600 acres as a working, sustainable forest.
Second, I represent the National Tree Farm System as Chairman of
the Policy Committee. The National Tree Farm System is made up of
certified Tree Farmers from across this great country numbering 66,000
members who are responsibly managing nearly 25 million acres of forest.
This organization began in 1941 in the State of Washington and today
has certified tree farms in nearly every State.
To be a Tree Farmer one must actively manage their woodland and
must meet the high standards set out by our national office. There are
four basic elements to a certified tree farm; Wood, Wildlife,
Recreation and Water. We plant, weed and thin our forest to grow
quality timber for our nation while at the same time we enhance the
wildlife habitat, create recreational opportunities for our neighbors
and protect water quality.
In the United States there are 9.9 million private non-industrial
landowners that own over 60 per cent of this nations forest and produce
over 65 per cent of the raw materials for the U.S. Forest Industry. Our
forest is this nations most valuable, renewable, natural resource that
we have.
Opposed to EPA rule change
We are opposed to EPA's rule change that would change forestry from
a non-point source (reversing a 27 year determination under the Clean
Water Act) to a point source.
EPA is proposing private landowners would need to secure a Federal
permit before a timber harvest, site preparation, planting, control
burns and other forest management practice in areas where water ways
are classified as having impaired water quality. A Federal permit would
take over a year to obtain and any citizen could challenge such a
permit. Permitting may require landowners to consult with the U.S. Fish
and Wildlife Service concerning Endangered Species, and under the
proposed regulations a landowner found in violation could be subjected
to fines of up to $27,500 per day. I believe in the old adage that ``if
it ain't broke, don't fix it''.
For many years tree farmers have been working with our individual
States in a voluntary effort practicing State approved Best Management
Practices (BMP). Some examples would be pole crossings, water bars,
stream culverts and final stabilization, which adds to the overall
expense to protect water quality, but we believe it's the right thing
to do. A total of 47 States have adopted BMP's for forest practices and
on average individual compliance is nearly 90 percent. Even EPA
recognizes the good job we are doing; so we believe it is important to
continue to maintain control with our States where they know and work
best with their people.
You may recall 2 years ago on January 8th, the devastating Ice
Storm which struck four northeast States and caused hundreds of
millions of dollars worth of damage to our forest. Two months before
the storm hit, our 1,060 acre tree farm was recognized as the Northeast
Outstanding Tree Farm. In less than 3 days 900 acres was devastated.
This was to be our legacy to our son, Stacey. Today, we are working
tirelessly to restore and regenerate this forest which will take
another generation before it is productive. The point I want to make is
many tree farmers across this nation face similar challenges with their
forest such as fire, drought and disease, but we are willing to make
the best of it and go forward.
However, I am convinced that under EPA's proposed rule change this
could be the straw that breaks the camels back. Many will throw up
their hands and give in to the constant calls from land developers.
I ask you which is more environmentally damaging to our society,
our tree farm that is managed as a working sustainable forest,
protecting water quality, or this forest replaced by housing
developments, shopping malls and asphalt pavement which we know today
as urban sprawl. I don't believe anyone can disagree with me that the
forest is by far safer and healthier to our society.
As our nation's tree farmers prepare for their 60th Anniversary and
reflect on the accomplishments we have provided to this nation that
includes clean water we would hope that EPA will join us to celebrate,
not regulate.
This concludes my remarks Mr. Chairman and I will do my best to
answer any questions you have. Thank you.
Senator Crapo. Thank you very much, Senator Smith.
Senator Smith of New Hampshire. I do apologize for leaving.
I have another commitment.
Senator Crapo. We appreciate your attendance and we will
proceed to try to find solutions to this problem.
I first want to say to this panel that I want to thank you
for your patience in waiting so long to get up here, but as is
true with all the other witnesses, your testimony is going to
be very thoroughly reviewed and we appreciate the time and
attention that you bring to this issue.
I also remind you to try to watch those lights. Let's start
out in the order that we announced. First, Joan Cloonan from
Idaho. That is my home State. I have known you, Joan, for a
long time and I have worked with you on many issues and I am
glad to see you here.
STATEMENT OF JOAN CLOONAN, VICE PRESIDENT, ENVIRONMENT AND
REGULATORY AFFAIRS, J.R. SIMPLOT COMPANY FOOD GROUP, BOISE, ID
Ms. Cloonan. Thank you, Mr. Chairman, I am glad to be here.
First, I will mention that the J.R. Simplot Company is a
privately held agribusiness corporation based in Boise, ID, but
I am speaking today on behalf of the Northwest Food Processors
Association as well, a regional trade association representing
the fruit, vegetable, and specialty processing food industry in
Idaho, Washington, and Oregon.
I submitted with my testimony copies of the comments on the
TMDL rule submitted by Northwest Food Processors as well as
those submitted by the food industry and environmental council.
They address some of the details of EPA's proposal and I
would like to be a little more general here with some of my
comments.
The food processors fully support the goals of the Clean
Water Act to restore and maintain the quality of the quality of
the Nation's waters. We are supportive of the general concepts
that we believe motivated the proposed regulation, a consistent
national approach is desirable and there does exist a water
quality problem that in some areas cannot be solved by solely
controlling point sources.
It appears, however, that EPA has taken a straight-forward
program originally directed at point sources and broadened it
to a wide-ranging plan encompassing point and nonpoint sources
and they are very different regulatory and technical issues.
In the Pacific Northwest States have assumed a strong
leadership role in establishing and funding programs to meet
Clean Water Act requirements, including preparation and
implementation of TMDL programs. All three States are committed
to preparing TMDLs for all State water bodies listed as water
quality impaired within timeframes dictated by litigated
agreement.
It is important to recognize, however, that although some
Federal funding has been provided to the States for these
programs, the current programs are primarily funded by State
moneys. In the State of Idaho, the stakeholder groups work with
out Division of Environmental Quality to help them develop
TMDLs.
The stakeholder group is charged with the development of
the implementation plan within 18 months of EPA approval of the
TMDL. The implementation plan is not now subject to EPA
approval.
In Idaho it also involves a number of different State
agencies, not solely our DEQ. The proposed system would include
the implementation plan as part of the TMDL and add
significantly to time for development with an unclear effect on
the court-ordered schedules for further development.
I think we had something like 900 segments listed, a more
than 8-year schedule. There was a lot of uncertainty there.
In addition, EPA can refuse to approve an implementation
plan until it is satisfied that the State is a sufficiently
strong authority to achieve water quality standards.
Under this proposal, EPA expands its authorized authority
over nonpoint sources by its ability to withhold TMDL approval,
holding the State and point sources hostage to the process and
threatening with the issuance of nonpoint source NPDES permits.
Under the proposed offset provision, listed water bodies
cannot accept new or significantly increased discharges of the
water quality limited constituent unless mandatory effluent
trading of offsets occur.
Mandatory effluent trading may place potentially a
disproportionate burden on point sources inconsistent with the
equity considerations of this process.
We believe voluntary effluent trading is far more effective
than a cleanup program and mandates or coerces private parties
into effluent trading.
The State of Idaho is in the forefront working with EPA on
the development of a voluntary effluent trading program. The
process has proved to be complicated but this voluntary program
could provide a model for the rest of the country. The first
model trades will involve a point source and a nonpoint source
with key concepts being local control, market-based pricing and
appropriate ratios.
This process will encourage and finance nonpoint source
projects such as constructed wetlands which otherwise might
never happen. Trading ratios are not arbitrarily set by
regulations. Quantification can be broad based on the type of
project with a conservative reduction credit or monitored with
liberal reduction credit.
The trade ratios will be dependent upon the relative
location of the trading partners. We believe this will provide
a flexible and economic mechanism to meet environmental
responsibilities without the need for additional regulation.
We urge that EPA reconsider its attempt to expand its
authority into traditional State regulatory areas. It is
important to look at the entire Clean Water Act with its
balance of State and Federal authorities for achieving clean
water goals rather than to force the TMDL program to achieve
all of these goals on its own in a complex and prescriptive
program.
Thank you, Mr. Chairman.
Senator Crapo. Thank you very much, Ms. Cloonan.
Mr. Thomson.
STATEMENT OF THOMAS N. THOMSON, THOMSON FAMILY TREE FARM,
ORFORD, NH
Mr. Thomson. Thank you, Mr. Chairman.
First I would like to say a special thank you to my
Senator, Senator Smith, for that introduction.
I would also like to introduce some tree farmers who have
joined me today that also have the same concern as I. Anitra
Webster from Virginia, Bill Lawhon from Ohio, Wilson Rivers of
Florida, and Greg Daley of New Jersey, along with George Ice, a
forest hydrologist for the Society of American Foresters.
The following is a summary of my testimony. First, I
represent the Thomson Family Tree Farm as a private, non-
industrial woodland owner from New Hampshire. This tree farm is
owned and managed by my family, including my wife, Sheila, and
our 22-year old son, Stacey. We manage 2,600 acres as a
working, sustainable forest.
Second, I represent the National Tree Farm System as
Chairman of the Policy Committee. The National Tree Farm System
is made up of certified tree farmers from across this great
country, numbering 66,000 members who are responsibly managing
nearly 25 million acres of forests.
This organization began in 1941 in the State of Washington
and today has certified tree farms in nearly every State. To be
a tree farmer, one must actively manage their woodland and must
meet the high standards set out by our national office.
There are four basic elements to a certified tree farm--
wood, wildlife, recreation and water. We plant, weed, and thin
our forests to grow quality timber for our Nation, while at the
same time enhance the wildlife habitat, create recreational
opportunities for our neighbors and protect water quality.
In the United States there are 9.9 million private non-
industrial landowners that own over 60 percent of this Nation's
forests and produce over 65 percent of the raw materials for
the U.S. forest industry. Our forest is this Nation's most
valuable, renewable natural resource that we have. We are
opposed to the EPA's rule change that would change forestry
from a nonpoint source reversing a 27-year determination under
the Clean Water Act to a point source.
EPA is proposing private landowners would need to secure a
Federal permit before a timber harvest, site preparation,
planting, control burns and other forest management practices
in areas where waterways are classified as having impaired
water quality.
A Federal permit would take over a year to obtain. Any
citizen could challenge such a permit. Permitting may require
landowners to consult with the Fish and Wildlife Service
concerning endangered species and under this proposed
regulation a landowner found in violation could be subjected to
fines of up to $27,500 per day. I believe in the old adage that
``if it ain't broke, don't fix it.'' For many years tree
farmers have been working with our individual States in a
voluntary effort practicing State-approved Best Management
Practices--(BMPs). Some examples would be pole crossings, water
bars, stream culverts and final stabilization which adds to the
overall expense of protecting water quality, but we believe it
is the right thing to do.
A total of 47 States have adopted BMPs for forest practices
and on average individual compliance is nearly 90 percent. Even
EPA recognizes the good job that we are doing. So we believe
that it is important to continue to maintain control with our
States where they know and work best with their people.
You may recall 2 years ago on January 8, the devastating
ice storm which struck four northeast States and caused
hundreds of millions of dollars worth of damage to our forests.
Two months before this storm hit, our 1,060 acre tree farm
was recognized as the Northeast's Outstanding Tree Farm. In
less than 3 days, 900 acres was devastated. This was to be our
legacy to our son, Stacey.
Today, we are working tirelessly to restore and regenerate
this forest which will take another generation before it is
productive.
The point I want to make is that many tree farmers across
this Nation face similar challenges in their forests such as
fire, drought and disease; but we are willing to make the best
of it and go forward.
However, I am convinced that under EPA's proposed rule
change this could be the straw that breaks the camel's back.
Many will throw up their hands and give in to the constant
calls from land developers.
Mr. Chairman, I ask you which is more environmentally
damaging to our society, our tree farm that is managed as a
working, sustainable forest protecting water quality, or the
forest replaced by housing developments, shopping malls, and
asphalt pavement which we know today as urban sprawl.
I don't believe anyone can disagree with me that the forest
is by far safer and healthier to our society. As our Nation's
tree farmers prepare for their 60th anniversary and reflect on
the accomplishments that we have provided to this Nation that
includes clean water, we would hope that EPA would join us to
celebrate, not regulate.
This concludes my remarks, Mr. Chairman.
Senator Crapo. Thank you very much, Mr. Thomson.
Ms. Buccino.
STATEMENT OF SHARON BUCCINO, SENIOR ATTORNEY, NATURAL RESOURCES
DEFENSE COUNCIL, WASHINGTON, DC
Ms. Buccino. Thank you for the opportunity to talk with you
today about critical steps needed to address the more than
20,000 water bodies across the country that still do not meet
water quality standards.
My name is Sharon Buccino. I am a senior attorney in the
Public Lands Program of the Natural Resources Defense Council.
NRDC is a nonprofit organization with over 400,000 members
across the country. NRDC's members depend on clean water to
enhance their quality of life and protect their health.
NRDC supports EPA's efforts to revive the Clean Water Act's
TMDL Program. We also support EPA's proposal to eliminate the
current regulatory exemption for silviculture point sources
from NPDES permit requirement.
I will focus on three points in my oral testimony. First, I
want to clarify the extremely limited scope of EPA's
silviculture proposal.
Second, I will provide some examples demonstrating the need
for EPA's new regulations where silviculture point sources are
causing significant water pollution and therefore an NPDES
permit is appropriate.
Finally, I will explain why nonpoint sources should be
included in the TMDL process. NRDC has urged EPA to move
forward expeditiously with new regulations that will make the
TMDL program more efficient and effective. We hope Congress
will not interfere with this progress.
In particular, we urge Congress not to adopt the
legislation proposed by Senators Lincoln and Hutchinson. I have
with me today a letter signed by over 250 organizations of
citizens across the country opposing this legislation's
exemptions for timber companies from clean water requirements.
I ask that the letter be entered into the record.
Senator Crapo. Without objection.
Ms. Buccino. Let me briefly focus on a piece of EPA's
proposal that addresses silviculture. There is significant
misunderstanding about the proposal's scope. EPA's proposal
does nothing to require permits from nonpoint silvicultural
activities.
The proposal simply eliminates the blanket exemption from
the definition of point source that most silvicultural
activities have enjoyed pursuant to regulation.
To be affected by EPA's silviculture proposal an activity
must fall within the statutory definition of point source which
requires a discernible combined industry conveyance.
EPA's silviculture proposal does not even appear to cover
all point sources. After having identified the set of
activities that would be considered point sources under the
Clean Water Act, EPA only proposes to consider requiring a
NPDES permit where, No. 1, the activity affects an impaired
water body; No. 2, that activity is a significant source of the
impairment; and No. 3, EPA has written a TMDL.
Where such conditions exist, it is entirely logical and
appropriate to use the NPDES system as a mechanism to ensure
that appropriate pollution controls are adopted by the sources.
EPA's proposal will not affect those silviculture
activities that are taking appropriate steps to prevent water
pollution. If a timber company is following all the best
management practices adopted by its State and those BMPs are
effective in preventing water pollution, EPA's proposal will
not apply.
Unfortunately, there are many places where silviculture
operators are not taking the steps necessary to prevent water
pollution. It is these operations that are the subject of EPA's
proposal.
Let me give you just one example. This photo, the one on
the left there is of a skid trail at a timber harvest near I-40
in Humphries County, TN. The second photo is the stream at the
bottom of the skid trail.
It is this kind of activity and damage that made EPA's
silviculture proposal necessary. I think few would disagree
that the skid trail pictures here is a discernible, confined
industry conveyance from which pollutants are discharged into a
stream.
Since the skid trail falls within the Clean Water Act
definition of point source, the Act requires the timber
operator to obtain an NPDES permit before discharging any
sediment or debris into the stream below.
Numerous States have identified silviculture activities as
sources contributing to the impairment of water bodies listed
under section 303(d) of the Clean Water Act.
I have brought a map of Idaho to illustrate the problem in
that State. The lines marked on that map show Idaho waters that
do not meet clean water goals. The ones in blue, it is probably
hard to see the map, but you can see on the bar chart on the
left there, it is well over half that are impaired as a result
of sediment and much of the sediment does come from
silvicultural practices.
Then finally, I would just like to respond to the data
issues raised by GAO. Of course better data and more funding is
needed, but this need should not be used as an excuse to delay
improvements to the TMDL program. Implementation of the TMDL
program is already almost 30 years overdue. Data is sufficient
to know we have a problem and to identify initial steps to
address it.
It is certainly better to start now. The problems will only
get worse and cost more to fix later.
In conclusion, the silviculture piece of EPA's proposal
does not apply to nonpoint sources. While the requirement for
an NPDES permit is limited to point sources, the TMDL process
should address nonpoint sources and I didn't get a chance to
explain that but I would be happy to do so in questions.
Basically, the failure to address nonpoint sources simply
ignores 90 percent of the problem. I hope that Congress will
recognize the need for EPA's proposal and support the agency's
efforts to ensure clean water for all Americans. Thank you.
Senator Crapo. Thank you very much, Ms. Buccino.
Mr. Olszewski.
STATEMENT OF ROBERT J. OLSZEWSKI, DIRECTOR OF ENVIRONMENTAL
AFFAIRS, THE TIMBER COMPANY, ATLANTA, GA
Mr. Olszewski. Thank you, Mr. Chairman and members of the
committee. My name is Ronald Olszewski. I am director of
Environmental Affairs for the Timber Company which represents
the timberland assets, about 5 million acres of Georgia-Pacific
Corporation. I appreciate the opportunity to present my
testimony today on behalf of AF&PA.
I come with a unique background. I am a technician, a
hydrologist by nature. I have worked for State government in
implementation programs for BMPs down in Florida before I
worked for the private sector.
So, I would like to talk to you about that a little bit
today and how that, I believe, effectively works.
I was also a member of the FACA that Ms. Bell was on. I
have to tell you that the proposal related to silviculture in
terms of the point source designation was never raised as an
issue at all during that process and came somewhat as a
surprise here last August. I will address that to some extent
today.
We also represent the country's manufacturers in the paper
business and while most of my remarks will be confined to the
forestry components of the rule, I would like to highlight some
issues of concern to the manufacturing segment of our industry
also. One of these issues that has come up in the GAO testimony
this morning is the data concern issues. I would like to also
put my 2 cents in on that one, if I could.
An interesting point was raised by our folks from GAO, the
fact that six States have the data needed to list. I chair the
industry's committee that is working on this subject.
We had a field trip in northeastern Florida last week where
we looked at a watershed called Plummer Creek which turns out
was listed with the use of three grass samples from a
construction site where it crossed I-95, a definite
misrepresentation of water quality conditions in that basin.
It resulted in that water body being on the impaired list.
When we met with the folks who owned land, timberland, in that
4,000-acre watershed, they have been involved with various
agencies trying to unwind that process. They said they had
collected data that they estimated to be somewhere in the cost
for them of $100,000 to $120,000, just to get that watershed
delisted. It is a fairly complex watershed, but think about
that, a 4,000-acre watershed and they spent $100,000 minimum to
delist. That is $250 an acre.
It is a major, complex issue we are dealing with in many
instances and I think that is a key point.
I would like to go on and talk, however, about the point
source designation issues for forestry in particular. I want
everyone to understand that forestry is not trying to escape
their responsibility in this process. We want to be a
participant in the TMDL process.
Ms. Bell heard me say that many times in the FACA, but I
think it is the rules, it is the authority that we play by in
the TMDL process. We are not comfortable with some of what has
happened. For us, we are a large land use all over the country,
one of the largest. I think everyone would recognize we are one
of the lowest intensity land uses around the country.
I can't tell you we are perfect. You know, if you have a
regulatory program for someone you could come up with a photo
like you did today. We certainly don't condone that. We don't
support it. We think we are dealing with those things
aggressively and I will tell you some ways we are doing that.
But let me get into the issues of the point source
designation here for just a minute. I think that today I would
like to talk about that to some extent. I would like to first
explain the background of dealing with regulation affecting
forestry in the past.
In the original Clean Water Act regulations, EPA chose to
exclude certain activities, including all silvicultural
activities, from the NPDES program without regard to whether
they were point sources.
When some environmental groups challenged this in the
1970's, the Federal courts ruled against EPA and ordered the
agency to identify those specific activities that are point
sources.
EPA responded with rules back in 1976 that identified four
specific, discrete conveyances, point sources associated with
forestry operations. They concluded at that point that
everything else associated with forestry was a nonpoint source.
EPA stated in their proposed rulemaking at that time that
the Clean Water Act and its legislative history, and I am
quoting, ``made clear that it was the intent of Congress that
most water pollution from silvicultural activities be
considered nonpoint in nature.''
Yet, EPA has proposed to eliminate the following activities
from categorization as nonpoint source: nursery operations,
site preparation, reforestation, cultural treatment, thinning,
prescribed burning, pest and fire control, harvesting
operations, surface drainage, road construction and
maintenance.
Instead the EPA proposes to redefine these as point sources
under some circumstances.
Now I am somewhat frustrated by this process at this point
in time. Indeed, first of all, tree planting, planting of
trees, could be designated as a point source with a discrete
conveyance. That doesn't make a lot of logical sense to me as a
citizen.
Further, I have testified before a number of committees on
this subject, but Secretary Browner has been making the rounds
stating that the TMDL program is not designed to regulate
nonpoint sources.
I guess that is true, but from our perspective what she has
done with silviculture and the agency has proposed with
silviculture is basically to potentially redefine everything we
do as a point source. So it is kind of a backward way to
address the same issue which is somewhat frustrating.
Further, this kind of frames the NPDES program almost to
use it as a punitive action. I don't think that is what the
Senate had in mind when this program was developed years ago.
For forestry this exposes us to a number of scary legal
paths when you open this door, citizen suits, Federal
endangered species consultation around forest reactivity and
EPA has stated, and others, that this will have limited impact.
I have to tell you today, Senator, we don't have a lot of
comfort in that right now when we look at places like the
Garcia River in Northern California where EPA has stepped in to
do a TMDL on behalf of the State and has clearly indicated that
in a State with what is widely regarded to have the most
rigorous forest practice act regulation in the country, they
are not satisfied with that.
They want further measures in dealing with the
silvicultural nonpoint sources at this point in time but
potentially point sources if this moves forward.
So we are greatly concerned about this issue.
The good story for us is a lot of good things are happening
in terms of dealing with nonpoint source issues around the
country. States do have significant oversight.
I am not familiar with the laws in Tennessee, but most
States have some ways they can reach ``bad actors,'' if you
will, erosion sediment control laws that State water quality
agencies implement and States have taken the option to regulate
forestry through forest practice acts in some instances.
In other instances they have dealt with non-regulatory
programs like Georgia. I have brought a revised Georgia BMP
program here that was just developed last year. It was
excellent work, a mixed team of the environmental community,
the forestry community, agencies of government that have worked
on this program. I am going to leave it and submit it for the
record, if I could.
Senator Crapo. Thank you, Mr. Olszewski.
Ms. Moore.
STATEMENT OF DINA J. MOORE, NATIONAL CATTLEMEN'S BEEF
ASSOCIATION, KNEELAND, CA
Ms. Moore. Thank you, Mr. Chairman and members of the
subcommittee. I am Dina Moore and I am honored to be here today
to address this subcommittee on behalf of the National
Cattlemen's Beef Association, representing America's one
million cattle farmers and ranchers.
While my full-time job is as a partner with my husband and
family on our 8,000-acre commercial cattle and timber ranch in
northern California, I am proud to actively participate in our
local watershed efforts.
I have done extensive work with EPA on TMDLs conducting
historical narrative interviews. I have a completed copy of our
watershed narrative that I would like to submit for the record.
Ms. Moore. Assisting in public outreach and education and
working collaboratively with EPA in building a consensus on the
development of TMDLs in the Van Duzen River watershed.
I also founded and am current president of our local
watershed working group, the Yager/Van Duzen Environmental
Stewards, or YES. The mission statement of YES most clearly
states one of my own personal goals, to ensure the
environmental integrity of our watershed while maintaining our
heritage and the economic sustainability of our endeavors.
I am here today to tell you about what I have learned from
my experience. One of the things I have learned is that there
must be better collaboration between the Federal and State
agencies. The resource, government and landowner would best be
served if government could address resource issues in a clear
and consistent manner with a single unified voice.
The Federal Government should use its powers to encourage
States to implement a one-stop shop where land owners can deal
with all agencies at one time and place. The 319 program could
be the mechanism for integrated State and Federal efforts.
Delisting and listing of watersheds needs to be clarified.
While the EPA's proposal does help ensure that listing
methodologies are more specific, it doesn't provide guidance
for delisting.
Again, I refer to our watershed and my own experience. None
of the landowners knew that it had been listed as impaired.
When EPA did the TMDL, it broke the watershed into three
distinct areas: the lower basin, middle basin, and upper basin.
Those areas were characterized by different geologic types,
distribution of anadromous fish, and land management ownership
patterns. EPA's own sediment source assessment found that
natural erosion accounted for 84 percent of the erosion in the
middle part of the basin. This portion of the watershed is
comprised of ranches like my own.
Concurrently, on our ranch, we participated in an ongoing
study by the University of California Cooperative Extension on
the effects of cattle grazing in a riparian area. After an on-
ground assessment using three different Federal field
assessment tools, EPA's, NRCS's, and BLM's, our streams with
the EPA assessment rated 18.4 out of 20; 20 being the highest
mark.
NRCS rated 9.4 out of 10; 10 again being the highest mark.
BLM's were rated properly functioning. Given all of the
above information, I question whether our portion of the
watershed should have been listed as impaired.
Pacific Lumber Company is a neighboring landowner in the
lower part of the basin. The concern has been expressed that
this is more a political process than a scientific process
driven by litigation.
The private sector will clearly incur costs from more
stringent regulations. As more regulations are being mandated
from multiple national and State agencies the cost will trickle
down to the landowner. His only way of covering that cost is
with heavy extraction from the land-based resource that he
manages.
There is no compensation, reimbursement, or incentive to
the landowner for the time and knowledge that it takes to
comply with regulation. There is no direct clarity for
landowners faced with weaving their way through meeting all the
regulatory requirements.
My fear is eventually we will have to hire a professional
consultant and out-of-pocket expense that can be staggering.
The monetary return that comes from a cattle ranching
enterprise alone. The cattle and the range that they live on
provide enough of an economic return to pay for their direct
costs, overhead costs as well as provide families like mine
with a below-poverty level, even when the cattle market is in
an upswing. This enterprise alone cannot cover the previously
mentioned hidden costs. Other resources will need to be
developed and extracted.
As managers of a working landscape, we know that we cannot
mine the resource without long-term negative effects. We have
been given the resource to hold in trust for future
generations.
Oftentimes we feel that we are meeting the needs of
government to the detriment of the environment we are managing.
My counterparts in the mainstream environmental community
recognize the cost to the environment of greater regulation as
we do, and share our beliefs that government should provide
greater incentives that encourage stewardship.
Let us hold out a carrot rather than wield a stick. Other
options that become a reality when we are no longer
economically sustainable are selling to larger industrial
landowners or breaking large landscapes into subdivisions and
ranchettes which clearly cause a degradation to the
environment.
I recognize the important role and need that regulation has
served in protecting the environment, nevertheless, I firmly
believe that further regulation will swing the pendulum in a
direction that will not serve in the best interest of the
resource, government or non-industrial landowner.
Thank you for the opportunity to participate in this
important decision. I look forward to a day when we are all
working collaboratively on resolving the issues of managing a
natural, working landscape.
Thank you.
Senator Crapo. Thank you very much, Ms. Moore.
Let me go first to you, Joan. The question I have is sort
of back to this point source versus nonpoint source conflict
that seems to be facing us here.
I know that you are familiar with food processing issues
and facilities and I am assuming that they are significantly
point source entities. Is that right?
Ms. Cloonan. That is right. The food processing is mostly
point source. Our suppliers are all nonpoint source.
Senator Crapo. So you've got an interesting little tug of
war going on there in your particular part of the world or the
industries that are dealing with this.
Ms. Cloonan. Right.
Senator Crapo. Can you just describe to me how the EPA's
proposed rule would either benefit or negatively affect the
food processing industry?
Ms. Cloonan. I think it will make it much more difficult
for us. Our suppliers, that is probably 90 percent of the cost
of our operation, the raw material, potatoes for French fries.
I think that their costs, if they are being requiring to do
some things under regulatory pressures, I am going to back off
and say that I am optimistic and I think voluntary programs
where we work with the Department of Agriculture, the
Department of Lands, the Soil Conservation Services and all and
Development of BMPs and the working out of BMPs is going to be
the best way to do this.
To have the demands put upon the State, it is going to cost
the State more money, which costs us more money. It is going to
cost the farmers more money to try to comply in a top-down type
approach.
I think the approach that Idaho is proposing to use, things
like tradeoffs, effluent trading where farmers actually get a
benefit through their irrigation districts or whatever, of
putting in BMPs, putting in wetlands.
We have already put in wetlands in one of the areas, Twin
Falls Canal Company has a wetlands program which is done in the
context of a TMDL and done in the context of a voluntary group,
the stakeholder group getting together.
This was not an effluent trading. Once you have effluent
trading the point sources whom they need to reduce can go to
the nonpoint sources and put in a wetland which is going to
benefit both of them.
I think it is very complicated. I don't know if I can
pinpoint one particular.
Senator Crapo. But the voluntary aspect is something that
you think can work?
Ms. Cloonan. I do.
Senator Crapo. When you talked about the costs, I am
assuming and I would just like to ask you this, that you are
also of the opinion that the same degree if not better degree
of environmental protection can be achieved without the costs
that would be imposed.
Ms. Cloonan. Absolutely. I think that by using the free
market methods that the costs are reduced.
Senator Crapo. Do you feel that application of this rule,
if it occurs, will impede efforts in Idaho that are already
underway?
Ms. Cloonan. I am concerned that it would. One area would
be in the implementation, for example. The pilot program that
is underway for effluent trading, I don't think we could
include implementation in a TMDL and get the TMDL done in time
and still include something innovative like that.
We are still working on the details. It turns out that it
is not simple knowing where to trade, you know, an upstream
reduction for a downstream nonreduction or whatever.
I think that the implementation part is probably one of the
big areas where it would be a detriment to us.
Senator Crapo. Thank you.
Ms. Buccino. Senator, I would like to address the issue of
costs, if I could real quickly.
Senator Crapo. Sure.
Ms. Buccino. I just wanted to add two points to what had
already been said. I think there has been a lot of focus on the
low number that EPA came up with.
I think it is important to remember that this regulation,
the proposed regulation, is about relatively minor changes to
TMDL program regulations that are already on the books.
The cost figure is the incremental costs of the additional
requirements.
The second point that I would like to make about costs is
that it is important to remember the costs of inaction in the
calculation.
Senator Crapo. Well, those points are well taken. With
regard to that, let's clarify that issue of the data as well.
You were here for the testimony of the GAO?
Ms. Buccino. Yes.
Senator Crapo. It seemed to me as they talked about the
very low level of data that we had in the various types of
water bodies and I don't if you could see the chart. Well,
actually, they didn't put it up. The chart that I refer to was
on Page 9 of their report that they did not put up.
It was a chart that showed that really the vast majority of
the analysis was either not done at all or was done in what has
been described as ``drive-by'' or very low levels of data.
Given that, wouldn't the costs of achieving that type of
analysis be properly considered here as new costs that this
rule is requiring or are you saying that those costs that we
were talking about in their testimony would not necessarily be
attributable to this rule?
Ms. Buccino. I think that is correct. In the cost analysis
that EPA did I think they focused on the costs of implementing
the new requirements. I don't disagree that better data and
more funding to help address particularly nonpoint source
issues is appropriate.
Senator Crapo. Let me continue. Since we are talking about
this. In today's hearing and even more particularly in the
previous hearing that we held, we have had a lot of testimony
that the proposed rule is going to actually interfere with
other types of water improvement efforts that are underway and
that things are moving in the right direction.
I get the feeling from that testimony that things are
moving in the right direction, that we have a lot of good
things happening at the State level that this rule could
interfere with.
In the pictures that you put up, if those pictures are
typical then that would be contrary to that other evidence.
I guess I had a question about those pictures. Would you
consider those pictures to be typical of the kind of activities
that we have in, say, silviculture in the country or not?
Ms. Buccino. I think there are plenty of places, and the
gentlemen from New Hampshire is probably a very good example of
where practices are in place that are working to address
potential water pollution problems.
Unfortunately, there are many places where they are not.
That is why you end up with so many water bodies listed by
States as impaired, in part due to silviculture activities.
I think the number that EPA has given is around 350, but
that is just from the 32 States that actually report source
information, because they are not required to. In fact, Idaho
has not reported source information.
Washington and Oregon have not either. So there is
significant States where logging is occurring that are not
included in the 350 number.
Again, EPA's proposal only addresses those situations where
the job is not getting done. It will not affect places where
BMPs are implemented and are effective.
Senator Crapo. Do you know whether the site that you had a
picture of there was managed under BMPs? Was it in compliance
with BMPs?
Ms. Buccino. No. The site there was not in compliance with
BMPs, but the State had difficulty actually addressing it.
Those are relatively recent photos and they are still in the
process of actually pursuing an enforcement action to address
the situation there.
But one of the obstacles for the State addressing the
situation is the current regulatory exemption from the
requirement for an NPDES permit.
Senator Crapo. Was that just a timber harvest or was that
land use for some other purpose?
Ms. Buccino. No. It was a timber harvest.
Senator Crapo. Let me ask you, and I do want others to have
an opportunity to get in on this question. Back to the original
question I was getting at, and that is, there has been a lot of
testimony about how the proposed rule is going to interfere
with things that are already underway at the State level.
I am sure you come from the perspective that things are not
happening well enough at the State level or that we need to do
more and that this rule will help that happen.
There seems to be a very significant conflict on that.
Could you address that?
Ms. Buccino. Well, my perspective is from the point of view
that the TMDL program was put in place by Congress in 1972,
almost 30 years ago. There has been significant delay in
achieving the Clean Water Act's goal of restoring water
quality.
Senator Crapo. Would any others like to comment on this?
Mr. Thomson.
Mr. Thomson. Thank you, Mr. Chairman. I take exception to
the photos that were shown. Those clearly are not what tree
farmers do or for the most part those individuals that are out
practicing good stewardship on the land.
Carol Browner and others, in these hearings, have referred
to those as ``bad actors.'' In any industry there are a few bad
actors. But the fact of the matter is there are State laws and
Federal laws on the books today to take care of those bad
actors. And I think they should be taken care of.
The Federal Government does not need to burden us with
another layer of bureaucracy. That is what would happen.
The fact of the matter is, on water quality in 1996 EPA
dropped silviculture from its list of seven leading sources in
river and steam impairment. The same year silviculture
contributed only 7 percent of the total stream impairment.
So, what this industry and non-industrial landowners have
been doing is great. What it comes from is the voluntary
practice of best management practice. This is the publication
that New Hampshire works by.
Senator Crapo. Do all 50 States have this?
Mr. Thomson. Forty-seven States are practicing voluntary
best management practices. This is the avenue which I would
encourage you and the others to hopefully encourage EPA to
follow, voluntary, not regulatory. Thank you.
Senator Crapo. Mr. Olszewski.
Mr. Olszewski. Yes, I have got to followup. I guess I am
somewhat frustrated by the EPA proposal with regard to the
point source designation because I think it ignores the fact
that the States do have a fair amount of State-specific
oversight authority.
Ms. Buccino talked about the fact that the State is trying
to deal with this. I would be interested in knowing what
happened because we have many examples around the country of
the States dealing with someone who truly is a ``bad actor.''
The opportunities are there in most States and most instances
and the cases are around.
As I said earlier, you know, showing one slide, I mean I
could show a slide of something that clearly is a point source
discharge that is violating the law right now.
I think the point that Mr. Thomson made is the relatively
low impact of us, forestry, as a nonpoint source relative to
pollution inputs around the country bring me back to the
concern that we are trying to attack a flea with a sledge
hammer here.
We ought to let these State programs try to work things
out, I think. In the TMDL program we want to be a player. We
want to be a participant. Really, implementation on the TMDLs
is a new ballgame for people.
I think it is only fair to give the forestry community a
chance to work through things like the BMPs that Mr. Thomson
has shown, these that I have shown in Georgia.
One other quick point, a lot of consensus building is going
on in the States to build documents like this. As I said
earlier, we have participation from a lot of folks in the
environmental community to develop these BMPs in Georgia as an
example.
I think there is some potential damage to be done by some
Federal oversight in some instances of what is going on with
good stories that are making excellent progress in States like
Georgia around the country.
Senator Crapo. Ms. Moore.
Ms. Moore. Yes, and I guess I would say that obviously my
perspective comes from my experience in the State of
California. Currently, right now, the State Water Resources
Control Board, which is our governing body for dealing with
TMDL is in a holding pattern. They are waiting to see what
happens. Is this going to pass in June.
At the same time, I, as a private landowner from the grass
roots level up have dealt with EPA in developing our TMDL
allocations. We would like to move forward now and be able to
work with our regional water quality control board and put in
place our implementation plan.
Everyone is holding. Again I would go back to the fact that
from my perspective, what I would really like to see is a
coordinated effort all the way around. I think that right now
there are programs in place that allow the Federal Government
to let the State governments work toward working with local
government at the local level to address these issues.
I don't know that it can come from the Federal Government
down; it needs to come from the grass roots up.
Senator Crapo. Did you want to jump back in and defend
yourself there, Ms. Buccino?
Ms. Buccino. Well, I could address the point of California,
specifically, because as you may be aware, in fact, today the
Federal courts are hearing a case that addresses the issue of
whether it is appropriate to include nonpoint sources in the
TMDL process.
The State of California has actually filed a brief in that
case in support of EPA and urging the court to recognize both
the need and the legal authority for including nonpoint
sources, because the State recognizes the need to address those
sources of pollution to deliver clean water.
Senator Crapo. Mr. Thomson.
Mr. Thomson. Mr. Chairman, I would like to make a point. I
don't know that it has been made today. It may have been in
some of the other hearings.
But when we are talking about forestry, spruce and fir
silviculture, and tree farming, we are talking about rotations
that have a minimum of 60 to 70 years in New England, and
hardwood species, which have 100- to 120-year rotation.
We are not cutting annual crops like tobacco, corn, or
wheat. What I am doing on my property today, I will never see
the end result of that. Unfortunately, with the ice damage, it
will be my grandchildren that will actually see that.
As I indicated, we are prepared to roll up our sleeves and
continue to go forward. But if the Federal Government lays out
some amount of additional regulations on us and it is not
economical for us to continue and the developer has been
calling us, we will sell to the developer and that clearly is
not what is in the best interests of society.
Going back to the best management practices, because I
think this is really the key issue here in this whole argument,
that 47 States are practicing this today. I am afraid that if
we continue down this road that all of the good will that has
been built up between the landowners, industry and the
government, both State and Federal, will be lost overnight.
I would suggest that this committee encourage EPA to leave
forestry as a nonpoint source and to increase the funding
through section 313 and increase the education on BMPs and
let's work together on a voluntary basis.
Ms. Buccino. I just have to come back to the point that
these regulations do not affect and do not add any new
requirements to situations where the BMPs are working and where
they are being followed.
Unfortunately, there are places, as we see from the list of
impaired water bodies, where they are not working. That is the
focus of EPA's----
Senator Crapo. The question that that raises to me is sort
of a jurisdictional question. If they are not working, does
that then make them a point source and therefore justify EPA
regulating them or should they still be considered nonpoint
sources and dealt with in terms of trying to improve the BMP
process?
In other words, I don't see how the fact that they don't
work justifies EPA stepping in and treating them as point
sources.
Ms. Buccino. But all EPA is doing is eliminating the
blanket exemption, the categorical exemption that these kinds
of activities have enjoyed in the past. There is nothing in the
regulation that actually designates them as point sources.
The activity would still have to fall within the statutory
definition of point source, a discrete, discernible conveyance.
I brought the picture to show that there are some kinds of
practices that would fall within that definition and to date
they have been excused from the permit requirement. EPA has the
legal authority to decide that changing that exemption is
appropriate at this point.
Senator Crapo. Mr. Olszewski.
Mr. Olszewski. I guess we don't want to go down the legal
debate route, but that is not a position that we would
predictably be in agreement with.
Senator Crapo. I am not surprised to hear that.
Mr. Olszewski. We don't believe this 27 years of the Clean
Water Act history, and as my testimony outlined and I outlined
briefly, we think there was a decision that was made back in
the 70's to designate those four sources as point sources in
terms of silviculture.
Now, this proposal is far-reaching. We have talked about
everything. As I said in my example, even tree planting, they
have listed that specifically, reforestation. How do you get a
discrete conveyance, something that connotes what we all think
of as point sources out of things like that?
I could go on. I mean basically it is included, their real
proposal has included everything we do silviculturally,
everything.
Senator Crapo. Ms. Moore.
Ms. Moore. Senator, you mentioned something that really, I
think, raised a thought or concern of mine. You said there is a
jurisdictional question. I think that that is, at least from my
perspective, one of the most challenging issues that we are
dealing with.
When EPA states, ``Well, we just want to, you know, ensure
or we just want to cover it a little more,'' well, right before
I came to Washington I attended a public hearing for NMFs,
National Marine Fisheries. They were threatening listing
steelhead as threatened in my watershed because there was no
longer habitat for them.
Now, our watershed was listed as impaired because the
sedimentation did not provide habitat for the anadromous fish.
So in essence, what I am seeing from my perspective is that
I am dealing with two different governmental agencies, Federal
agencies over the same issue and the same watershed with the
same landowners. Yet we are having to deal with both of them in
different playing fields. They have different agendas and
different time lines.
I think that we need to get back to how are we really going
to deal with the resource in the best sense and I don't think
that by continuing to enlarge these programs is really helping
us.
I think that what we need to do, if we really want to look
at taking care of that resource, is be able to have a
coordinated plan where all of the government agencies are
working together in coordination and then we can effectively
deal with them as resource managers and protect the research.
Senator Crapo. Does anybody else want to jump in before I
ask another question?
Pursuing this line a little bit further, it seems to me
that we do have a question of jurisdiction, of whether what the
EPA is seeking to achieve here is something that they are
authorized by law to achieve.
I am not sufficiently trained in the legal background of
this particular aspect of the law to know how the precedent has
developed.
But if you look at, say, the skid trails that do, you know,
in their appearance appear to be a path by which a distinct
point source of water could be created; has that historically
been determined, been called a point source or has even that
kind of thing been treated as a nonpoint source?
Ms. Buccino. Well, the reason it has not is because there
has been a regulation that categorically says it is not. Just
to step through the legal authority real quickly, you look at
the statutory language first. There is no explicit exemption
for silviculture under the definition of point source.
That is limited to agricultural storm water runoff.
Therefore, EPA has the authority, courts will defer to an
agency to interpret ambiguous statutory language. In the past
they decided that they would not include these things within
the definition of point source.
Now, they have decided in part, because of the impact that
silviculture is having on water pollution and the need now
through the TMDL program to do something about it, that there
is a rational basis for changing that prior decision. Courts
have deferred to an agency's determination to do that.
Senator Crapo. And as I look at your picture, I can see the
argument that is being made there because there is sort of a
very discrete source of travel for water to a water body there.
But as I hear the testimony of Mr. Olszewski and Mr.
Thomson, they indicate that what is being included here is very
broad and I assume much broader than something that is like a
channel that is being created.
Ms. Buccino. But in my point of view they are not. In fact,
I don't think courts would include them because you still fall
back to the statutory definition, a discrete, discernible
conveyance.
If something like planting a tree doesn't involve a channel
or conveyance, then it is not a point source and it is not
going to require a MPS permit and nothing in EPA's proposal
requires that.
Senator Crapo. Mr. Olszewski.
Mr. Olszewski. Even if I was to buy the argument, a couple
of lines from my testimony,
The section 319, 1987 amendments revised the 208 program
that required States to develop a process to identify
silviculturally related nonpoint sources of pollution and so
forth procedures and methods to control to the extent feasible
such sources.
In November 1990 EPA promulgated storm water regulations, 3
years after the 1987 amendments were enacted. At that time EPA
declared silvicultural point sources do not include the very
same activities they are claiming today are point sources.
Then as recently as 1995 EPA Phase II storm water report
presented to Congress did not identify silviculture activities
as appropriate for regulation under the storm water program.
I am puzzled by what has changed here. Why this history of
27 years that we looked at these forestry sources as nonpoint
sources and EPA has continuously supported those thoughts. Even
if I bought the argument--which I don't--what has changed here
at this point in time to declare, and the list is clear, I mean
it is in the broadest sense essentially everything we do,
Senator.
Senator Crapo. Did you say that you had something, Mr.
Thomson?
Mr. Thomson. I just wanted to point out again that the
water quality, and this is from EPA, in 1996 silviculture was
removed from the leading streams and rivers of impairment and
the same year silviculture had contributed only 7 percent to
the total stream impairment.
The argument I just heard sounded like it was going the
other way. The fact of the matter is that it is not. Two days
ago in my meeting in New England with Ron Manfredonia, EPA's
regional administrator that Senator Smith referred to in his
statement, and I asked him twice, if I could quote him in
Washington because I told him I was coming here. The fact of
the matter is he said that there is no problem in New England
whatsoever as far as forestry is concerned.
We can all search around and find a picture like that. That
individual, shouldn't be doing that. But that does not indicate
what is going on in the forest today by good land stewardships.
It clearly is not.
Senator Crapo. Sharon.
Ms. Buccino. It is important to look at what is happening
in individual locations. While the overall figure may be
small--I don't know the accuracy of that figure--but even if it
is only 7 percent, which to me is still significant, there are
areas where silviculture is a significant source of the
problem, like Idaho, for example.
It is those areas that EPA is proposing to do something.
The statement about New England, yes, in New England there are
other industrial sources that clearly contribute and contribute
more than silviculture to water pollution problems.
But there are areas of the country where silviculture is a
significant part of the problem.
Senator Crapo. Thank you. I have another meeting that I
have to get to really fast here. But I wanted to ask one more
question and then I am probably going to have to wrap it up.
The question is for you, Sharon. So I can understand where
you are coming from on this, if you were to have, say, a skid
row like we have seen today that did comply with best
management practices so under the State approach it was being
managed in such a way that it was acceptable for the standards
that the State was applying and was presumably meeting the
water quality standards that were applicable.
Would that, in your opinion still be regulatable by EPA as
a point source?
Ms. Buccino. Well, under EPA's proposal they have
explicitly said that that situation would not require a permit
because what they have said is that they would only consider
requiring a permit where the water quality is impaired.
So you have a violation of the water quality standard and
it has been shown that the silviculture activity has been
contributing to that problem.
Senator Crapo. But I can see where you would have an
impaired water body and a BMP being met and EPA would then
still consider it regulatable as a point source?
Ms. Buccino. Well, if the BMP is being met and the
silviculture activity, the skid trail, is still contributing to
violations of water quality, then a permit is appropriate in
that case.
Perhaps really the solution is to make the BMP better. It
is not getting the job done in protecting water quality.
Senator Crapo. OK. Well, I realize that we could go through
this a lot more and I would like to, actually, but I am being
told that I have urgent things I have to get to.
So, I want to thank you all for coming here. I would
encourage you to continue to work with us. We are going to in
some way deal with this. You can obviously see that it has
stirred up enough around the country that we are going to be
resolving it, if we can, in some way.
I want to understand it well enough that we do what is
going to be the best for the water quality of the country and
has the most minimal cost impact on the people.
You can have the last word, Mr. Thomson.
Mr. Thomson. Senator, I just want to congratulate you and
Senator Smith and the other members for considering, and it
sounds like Senator Smith is going to have a field hearing
outside of the Beltway.
I really encourage you and others to come outside the
Beltway and see what we are doing.
On my tree farm you are more than welcome and even if you
want to bring Administrator Carol Browner, I would enjoy that
because I can prove to her that the proposed rule is wrong.
Senator Crapo. Well, we appreciate that invitation. You
might be interested to know that when the idea of having some
field hearings out in different parts of the country was first
floated by Chairman Smith, we were inundated by members around
the country who wanted to have it in their area.
It was not just because they wanted to have a hearing in
their area, but because the issue is so big nationwide. I have
rarely seen an issue that is as important as you heard it was
in Arkansas today and Idaho and New Hampshire and so forth
around the country.
So this clearly has the attention of the people around the
country. That is why I am so convinced that we will be doing
something to address it here and we want to be sure we do the
right thing.
So we appreciate your time and effort to be here testifying
with us. I apologize that we are going to have to wrap it up
before we all have everything said that I am sure we would like
to say.
Don't hesitate to continue contacting us and working with
us as we proceed.
This hearing will be adjourned.
[Whereupon, at 1:50 p.m., the subcommittee was adjourned,
to reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
STATEMENT OF HON. TIM HUTCHINSON, U.S. SENATOR FROM THE STATE
OF ARKANSAS
Mr. Chairman, I thank you and the entire subcommittee for allowing
me to speak on behalf of my Arkansas constituency.
I am here because of the outcry from my State in response to the
EPA's August 1999 proposal to expand the Total Maximum Daily Load
(TMDL) and National Pollutant Discharge Elimination System (NPDES)
permitting programs. I believe it is the intent of the EPA to treat
traditional agriculture and forestry activities as potential point
source polluters. I also believe this is a deliberate attempt to
circumvent the Clean Water Act and legislate through regulation--
directly contradicting Congress' intent when it debated and passed
legislation on non-point source pollution.
I remember participating in this debate when I served in the House
and recall specifically that States would be granted the ability to
define and enforce this matter, absent the intrusion of the EPA. That's
why we have a Congressional Record--to remember what was said years
ago. I recommend the EPA crack open it's copy of the Congressional
Record before launching its next overriding initiative.
Mr. Chairman, farmers, foresters, private landowners, and community
leaders across Arkansas are deeply worried that requiring States to
enforce stricter TMDL standards will stretch State, local and private
resources to the breaking point. In January, I spoke at a public
meeting in El Dorado, Arkansas, which drew 1,500 concerned citizens.
Weeks later, a meeting in Texarkana, Arkansas, attracted 3,000
landowners. Last week, I spoke to a crowd of 3,300 in Fayetteville,
Arkansas--numbers that Senator Lincoln can confirm as true. She, too,
was there.
This unprecedented public turn-out begs the question as to who is
driving this policy. It is clear that implementing the EPA's new
proposal will only divert already limited funds and resources away from
successful State implementation programs and hand them over to
bureaucratic Federal procedures and oversight.
While testifying before the House Appropriations Committee,
Administrator Browner said she felt the EPA was forced to act in
response to lawsuits brought by environmental groups, like the Sierra
Club, who were dissatisfied with the Agency's lack of enforcement at
the State level. The fact that special interest groups are driving
Federal policy by intimidating States and the EPA with litigation runs
completely contrary to how I believe our government should be run. It
is not democratic and it is not fair to Arkansans who work hard to
manage their land.
The thousands of people who attend these meetings have families,
busy schedules, and many other responsibilities, but they are willing
to sacrifice their time to learn more about this proposed regulation
and how it will effect their livelihood. One of the core issues
motivating Arkansans to attend public meetings by the thousand is
trust. Ultimately, the people of my State do not trust the EPA. In
other words, the EPA has not earned the trust of my constituents.
The EPA has done an incredibly poor job communicating their
proposal to those whom it will effect the most. During my time in
public service, I have never seen this kind of public outcry to
anything the EPA has done and it is our job as their elected
representatives to address this matter legislatively to ensure that our
initial intent when passing the Clean Water Act is preserved.
In terms of States handling this matter, Arkansas alone has put
forth a tremendous effort to implement State-wide Best Management
Practices and other water quality regulations. Our Poultry Litter
Management Plan is a model for other State-level plans. Arkansas'
forest industry has reduced its impact on local watersheds by 85
percent. Simply put, the States are getting the job done and must
continue to have the freedom to handle this matter on the local level--
not from Washington. That is why I have introduced legislation to
prevent this proposed rule from impacting two of my State's most
important industlies--agriculture and timber.
My bill, S. 2130, consists of two simple parts. First, it restores
the exemption for silviculture operations and exempts agriculture
stormwater discharges from EPA's NPDES permitting requirements. Second,
it defines non-point source pollution relating to both agriculture
stormwater discharges and silviculture operations. The EPA under the
current Administration has never ceased in its efforts to impose
stricter, more expensive Federal environmental regulations on hard
working Arkansans. In the end, I fear that this proposed rule will not
only harm agriculture and forestry, but impede the water quality gains
being made by States and private landowners.
Mr. Chairman, the foresight of our Founding Fathers established a
system of checks and balances by which the Federal Government must
govern. The EPA is acting as though it is not accountable to either
Congress or the American people. I encourage this committee to act on
the people's behalf to ensure that this Agency will not implement rules
outside the Clean Water Act.
Again, I want to thank you for holding hearings on this important
issue and fully intend to work with Senator Lincoln and our colleagues
in the Senate to prevent the EPA from implementing this burdensome and
unnecessary regulation.
______
STATEMENT OF HON. BLANCHE L. LINCOLN, U.S. SENATOR FROM THE STATE
OF ARKANSAS
Thank you, Mr. Chairman for allowing me to testify before the
Senate Environment and Public Works Committee this morning on the
Environmental Protection Agency's new extension of the Total Maximum
Daily Load regulations. This is an issue that will affect thousands of
my constituents directly and immediately.
Our State Motto, ``The Natural State,'' reflects our dedication to
preserving the unique natural landscape that is Arkansas. We have
towering mountains, rolling foothills, an expansive delta, countless
pristine rivers and lakes, and a multitude of timber varieties across
our State. From expansive evergreen forests in the South, to the
nation's largest bottomland hardwood forest in the East, as well as one
of this nation's largest remaining hardwood forests across the Northern
one-half of the State, Arkansas has one of the most diverse forest
systems in the United States. Most streams and rivers in Arkansas
originate or run through these timberlands and are sources for water
supplies, prime recreation, and countless other uses.
In Arkansas, we enjoy a healthy and sustainable private forestry
industry. Private forestry is an important part of the economy and
infrastructure of Arkansas and this nation. My home State of Arkansas
has a total land area of 33.3 million acres. Over 50 percent of this
land area, 18.4 million acres, is forested. Today, 98 percent of the
forest land is classified as timberland that can produce a harvestable
crop of timber, and some type of harvesting activity is conducted on
530,000 acres of private timberland annually in Arkansas. This
represents approximately 3 percent of the State's private timberland.
Key to our private forestry industry is preserving our forests,
lands, and streams to ensure that forestry can continue in Arkansas. We
have instituted Best Management Practices (BMP) and Sustainable
Forestry Initiatives (SFI) to ensure that proper techniques are used to
protect our water quality. These plans are voluntarily adhered to by
over 85 percent of our private timberland owners. In fact, Arkansas has
been recognized nationally for having some of the most successful BMP
plans in the nation. Whether it's in our forestry industry or our
poultry and pork industries, all of our agriculture and livestock
industries are already doing what's right to ensure that Arkansas'
rivers, lakes, and streams remain clean and safe for many generations
to come.
On August 23, 1999, the EPA issued new regulations to extend the
Total Maximum Daily Load (TMDL) point-source regulations over some
traditional non-point sources. This new regulation seeks to require
normal forestry, animal feeding, and aquatic animal operations to
obtain a point-source permit under the National Pollutant Discharge
Elimination Program (NPDES).
While the EPA maintains, and we all agree, that the EPA does not
have the authority to regulate non-point sources of water pollution,
this regulation seeks to change the definitions of point and non-point
sources with regards to a few traditional non-point sources. Notably
for forestry activities, the traditional definition of non-point source
associated with the actions of harvesting, thinning, reforestation, and
the like have been changed to that of a point source. So while this
regulation does not seek to regulate non-point sources, it does seek to
redefine some non-point sources as point sources.
Mr. Chairman, in passing the Clean Water Act amendments of 1977 and
1987, Congress sought statutory clarification for the traditional non-
point sources of agriculture storm water and agriculture irrigation
return flows.
None of us here seek to inhibit the goal of cleaning up and
maintaining this nation's clean water supply. But merely requiring a
point source permit for traditional non-point sources of water
pollution is not the best answer to the problem of cleaning up our
nation's rivers, lakes, and streams. In other words, these new
regulations would require permits on the very things we want to promote
in forestry--responsible harvesting and thinning operations, best
management practices, and reforestation.
We in Congress have already realized the potential impact of these
new regulations. In November, 1999, we passed legislation that was
signed into law to extend the required comment period on the new TMDL
regulations until January 20, 2000. We did this knowing of the
potential massive impact of this new extension of TMDL regulations.
As stated in the announcement of the new rule, this extension of
the TMDL regulations could have an economic effect of over $100 million
on the silvicultural industry. While the EPA does not expect the rules
to affect small businesses, I would assert that the majority of
Arkansas' and the nation's private timber industry is considered to be
small business. Many of Arkansas' private timberland owners consider
themselves ``tree farmers.'' In addition, Arkansas Department of
Environmental Quality of finials have said they do not have the
manpower or the resources to comply with the proposed rule.
In addition to the extended comment period, now closed, we have
held three public meetings in Arkansas where thousands of concerned
foresters and farmers have voiced their opinions on how the new Total
Maximum Daily Load regulations could affect them. In El Dorado over
1,500 farmers and foresters came out to learn about potential impacts
of this regulation and over 3,000 came out in Texarkana, and over 2,000
in Fayetteville.
Responding to the concerns raised by my constituents, on February
7, 2000, I introduced S. 2041 to statutorily classify silviculture
sources of water pollution as non-point sources. This legislation will
allow states like Arkansas to continue to use their successful
voluntary Best Management Practices, Sustainable Forestry Initiatives,
and current State regulations and law programs to reduce pollution from
forestry-related activities while not adding unnecessary regulations.
This legislation is not intended to undermine the EPA's ability to
ensure that our Nation maintains a clean water supply; in fact, it
accomplishes quite the opposite. It is an effort to enforce the fact
that many forestry related activities are already adequately policed at
the State level to ensure that water supplies do not become impaired.
Many silviculture activities that benefit the environment, such as
conducting responsible harvesting and thinning, voluntarily following
best management practices, and promoting reforestation will actually be
discouraged by the proposed regulation.
My bill, very simply, follows the lead from the 1977 and 1987 Clean
Water Act amendments and statutorily exempts forestry non-point sources
of water pollution from being covered by the TMDL point source
permitting regulations. My bill will statutorily designate the forestry
activities of 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.
We must ensure that the original Congressional intent remains with
regard to the authority of the EPA over point and non-point sources of
water pollution. Congress has always intended rainwater runoff from
agriculture, forestry, and small animal feeding operations to be
considered as non-point sources of water pollution. It was not in 1972
when the Clean Water Act was passed, nor is it currently, congressional
intent or law for the EPA to regulate non-point sources of water
pollution. However, this regulation seeks to change that. This
regulation takes certain traditional non-point sources and moves them
into the point source category.
Mr. Chairman, I believe we can find ways to ensure that Congress,
the EPA, the States, and our private property owners can continue to
improve clean water throughout the nation. We should be promoting what
works--voluntary best management practices, responsible care of our
land, and each State's current ability to enforce non-point source
pollution controls through the appropriate measures.
Mr. Chairman, merely extending a point source permitting program
over non-point source activities will only cause more problems with
implementation and enforcement rather than getting at the problems of
maintaining clean water.
Mr. Chairman, my bill will merely keep the EPA from extending point
source regulations over normal forestry non-point activities.
I am committed to working with this committee, the Administration,
and the Senate to find the right approach to assisting the States in
their efforts to address diverse sources of pollution. I want to do so
in a way that will enhance the work done in the States to date, and not
simply overburden them with a Federal regulatory approach that does
nothing to help achieve the objectives that we all have--clean water.
Thank you, Mr. Chairman.
______
STATEMENT OF HON. SLADE GORTON, U.S. SENATOR FROM THE STATE
OF WASHINGTON
Mr. Chairman, I appreciate this opportunity to convey the strong
concerns of many of my constituents in Washington regarding the
Environmental Protection Agency's proposed regulations to revise the
Total Maximum Daily Load (TMDL) program under Section 303(d) and
proposed modifications to the National Pollutant Discharge Elimination
System (NPDES) permit program under Section 402 of the Clean Water Act.
EPA's proposed TMDL rules represent yet another example of a
Federal agency having good intentions, but having little sensitivity to
the potentially bad effects its actions may ultimately cause. The goal
of identifying polluted waters across the Nation and making them
cleaner is one we all share. No one here today disagrees with that
idea. That is a particularly important objective in my own State of
Washington, where citizens are now struggling to keep Pacific Northwest
salmon from going extinct in streams, lakes, and rivers throughout the
Puget Sound.
My primary concern is that if these rules were enacted as written,
EPA, despite its good intentions, would undermine sincere efforts by
Washington property owners, tribes, States, and local governments to
comply with the Endangered Species Act and would slow down local
efforts to successfully restore endangered and threatened salmon runs.
Specifically, these rules would interfere with the Washington Forests
and Fish Agreement--a plan that took 2 years to negotiate, was agreed
to by Federal, State, local, tribal entities and small forest
landowners, had the full support of Governor Gary Locke, the Washington
Department of Ecology and was approved with bipartisan support in the
Washington State legislature. This plan was adopted to ensure that
eight million acres of non-Federal lands would be in compliance with
both the Endangered Species Act and Clean Water Act requirements.
Unfortunately, the proposed TMDL changes could jeopardize the
Forests and Fish Agreement by suggesting that EPA regulators be given
authority to treat silviculture as a ``point source.'' This would
reverse policies affecting the forestry industry that have been in
place for 27 years. It would further shift regulation of forest
management activities from the State level to the Federal level, and
require Federal clean water permits for a wide variety of forest
management practices that would already by adequately regulated under
the Forests and Fish Agreement.
I am also very concerned that individual property owners who have
worked hard to negotiate smaller-scale habitat conservation plans and
candidate conservation agreements with the U.S. Fish & Wildlife Service
and the National Marine Fisheries Service would nevertheless be
required to obtain a permit from EPA under the NPDES rule change. This
would create an unduly burdensome process for small private property
owners and small communities. Federal agencies should be working
together to ensure that Endangered Species Act and Clean Water Act
processes don't make it more difficult for local efforts to protect
salmon.
Finally, I share the concern of the Washington Department of
Ecology and others that these proposed TMDL regulations would add more
responsibilities than EPA is capable of managing. The Director of the
Washington Department of Ecology correctly pointed out in his comments
to the rules that the clear Congressional intent in implementing the
Clean Water Act was to provide for a much more streamlined approval
process. If enacted, these rules would delay many activities simply
because EPA is not capable of managing the approval process.
The Administration should ensure that the heads of the Federal
agencies that propose these new rules and regulations should first talk
with one another, and talk with the States before they move ahead with
implementing them. Like me, the citizens of Washington believe that
better coordination amongst the Federal agencies as well as better
coordination between the Federal and State agencies would ensure that
the goals we all share--cleaner water and preserving endangered
salmon--are achieved in the most efficient and expeditious manner.
______
STATEMENT OF HON. GORDON SMITH, U.S. SENATOR FROM THE STATE
OF OREGON
Mr. Chairman, I appreciate the opportunity to appear before the
subcommittee today to discuss the Environmental Protection Agency's
proposed rules regarding the Total Maximum Daily Load (TMDL) program
under Section 303(d) of the Clean Water Act. These rules, proposed last
August, would be a radical rewrite of the TMDL program, and would
affect how States implement the entire Clean Water Act.
I also appreciate your leadership on this issue, Mr. Chairman. I
think that the Environmental Protection Agency (EPA) has exceeded its
statutory charge in proposing these rules, and congressional oversight
is therefore required. As you know, last session I led the fight to
extend the comment period on these proposed rules. Initially, EPA was
only going to provide a 60-day comment period for this complex
rulemaking that seeks to regulate a number of industries and activities
not previously regulated under the TMDL program.
I authored an amendment, accepted by the managers of the VA/HUD and
Independent Agencies Appropriations bill, that extended the comment
period by 90 days.
Given the 30,000 comments the agency received, I think that the
additional time Congress mandated for the comment period was definitely
warranted. It is my understanding that EPA heard from a wide range of
interests that were critical of the proposed rules, including: other
Federal agencies, State and local governments, manufacturing interests,
landowners and others.
In sum, these comments point out that EPA is proposing to use a
sledge hammer when a fly swatter would do.
I know that a broad range of stakeholders are testifying before the
subcommittee today. Therefore, I want to focus my comments on the
concerns raised by private forest landowners in my State, who are
already required to operate using best management practices under the
landmark Oregon Forest Practices Act.
Under these proposed rules, a number of nursery and forestry
practices would no longer be categorically excluded from the definition
of ``point source.'' These activities include: nursery operations, site
preparation, reforestation and subsequent cultural treatment thinning,
prescribed burning, pest anti fire control, harvesting operations,
surface drainage, or road construction and maintenance.
Instead of being categorically excluded, selected sources could--on
a case-by-case basis--be designated as point sources for regulation
under the National Pollution Discharge Elimination System (NPDES)
permit program for storm water discharges. This is a complete reversal
from the treatment for the last 27 years of forestry practices as non-
point sources under the Clean Water Act. The implications of this
reversal are staggering for the millions of private forest landowners
in my State and across the nation.
I believe that EPA has significantly underestimated both the costs
to the landowner and the time that it would take to obtain permits
under this proposal.
The specter of a State or Federal permitting system for each
management action needed on a stand of trees throughout its rotation is
truly frightening. EPA reserves the right to take over any State's TMDL
program, which would mean that landowners would then need to obtain a
Federal permit, potentially subjecting those permits to consultations
under the Endangered Species Act.
Further, under the Act, landowners could be subject to fines of up
to $27,500 a day, as well as to citizen lawsuits, for alleged permit
violations.
A number of State agencies have raised concerns about the high cost
of implementing and administering this program. It is unlikely that
sufficient State resources would exist to administer such a permit
program in a timely manner. Currently, on the average, it takes several
years from the time of making application for an NPDES permit before a
landowner receives a permit.
Adding forestry activities to the NPDES pipeline will only
exacerbate this problem and reduce effective forest management, since
many forestry activities are extremely time sensitive and weather
dependent. For example, insect infestations, wildfires, and blowdowns
are unpredictable occurrences that must be dealt with in a timely
manner.
We all share the goal of clean water, and our Nation has made great
strides in cleaning up polluted waterways since the passage of the
Clean Water Act.
However, the EPA has failed to demonstrate that changing the
treatment of everyday forestry activities to point sources of pollution
is warranted. In fact, EPA has recognized forestry activities to be a
consistently minor source of water quality impairment, as cited in
EPA's 1996 National 503(b) Report.
In my State of Oregon, there are about 28 million acres of
forestland, representing 45 percent of Oregon's land base. Sixty
percent of Oregon's forestland is publicly owned, while 40 percent is
privately owned.
Oregon's private forestland is regulated under the 1972 Oregon
Forest Practices Act, which established a visionary new standard for
forest management. Public forestland in Oregon is protected at a level
at least equal to that provided by the Oregon Forest Practices Act. As
a result, all of Oregon's forestlands are already required to provide
protection to streams, lakes and wetlands. These regulations are
unnecessary and will ultimately be detrimental to forest health.
In closing, let me State that I have concerns about these proposed
rules both substantively and procedurally. I have summarized my
substantive concerns above. But I am also concerned that EPA has failed
to fulfill a number of the requirements for promulgating a major rule
such as this.
I am not sure EPA has accurately assessed the costs of these
proposed rules on State and local governments, as required under the
Unfunded Mandates Act of 1995.
Further, that Act requires the agency to consider reasonable
alternatives and to select the least costly, most cost-effective or
least burdensome of the alternatives, or explain why such alternatives
were not chosen. I am not confident that any alternatives will be
considered.
I am not sure the Administration has adequately examined the cost
of these rules on small businesses, as required by the Treasury and
General Government Appropriations Act for fiscal year 2000.
The arrogance with which EPA initially proposed only a 60-day
comment period is exceeded only by the arrogance of claiming it will
finalize these rules by the end of June. EPA's statutory authority to
promulgate these rules is questionable at best, and too many issues
have been raised by the comments to be addressed so quickly.
I believe there is another agenda here at work. The issue isn't
clean water, it is the Federal regulation of private lands, which has
historically been the purview of State and local authorities.
Every Member of Congress should be concerned about the proposed
regulation of forestry under these rules, because if they are
successful in regulating nursery and forestry activities, the
regulation of agricultural practices is not far behind.
__________
STATEMENT OF PETER F. GUERRERO, DIRECTOR, ENVIRONMENTAL PROTECTION
ISSUES, RESOURCES, COMMUNITY, AND ECONOMIC DEVELOPMENT DIVISION,
GENERAL ACCOUNTING OFFICE
Mr. Chairman and members of the subcommittee: I am pleased to be
here to discuss the adequacy of the data that the Environmental
Protection Agency (EPA) and the States have for making critical water
quality decisions required by the Clean Water Act. The act has been
credited with greatly improving the condition of the waters in the
United States. This success comes largely from the control of pollutant
discharges from industrial facilities and wastewater treatment plants
also called ``point'' sources of pollution. Despite these strides,
however, there are still many waters that do not meet water quality
standards. Of particular concern in recent years are ``nonpoint''
sources of pollution--diffuse sources that include a variety of land-
based activities such as timber harvesting, agriculture, and urban
development--which are widely regarded as contributing to the largest
share of remaining water quality problems. Nonpoint sources must be
addressed in order to achieve the nation's clean water goals.
The ability to deal with these problems cost-effectively depends
heavily on States' efforts to monitor their waters to identify where
their most serious problems are and to develop strategies to address
those problems. States submit a list (known as the ``303(d) list'') to
EPA identifying waters that do not meet applicable water quality
standards and develop total maximum daily loads (TMDLs) for waters on
their lists. TMDLs are intended to help restore water quality by
reducing the amount of pollution entering a body of water to a level
that will enable it to meet standards. Comprehensive and reliable
monitoring data have become particularly important in recent years as
national attention has focused on the soundness of regulatory decisions
required to deal with the nation's most heavily polluted waters.
Attention to our remaining water quality problems has been amplified by
numerous lawsuits calling for accelerated cleanup of these waters
through the 303(d) and TMDL processes. The basis for many of the
lawsuits is that EPA and the States have not implemented these
requirements of the Clean Water Act. EPA proposed revisions to its
regulations on the management of water quality in August 1999 to
strengthen the TMDL program.
At the request of the Chairman of the Subcommittee on Water
Resources and Environment, House Committee on Transportation and
Infrastructure, we recently completed an evaluation of the adequacy of
the data available to States to carry out several key water quality
management responsibilities. That evaluation also examined whether the
information in EPA's National Water Quality Inventory is reliable and
representative of water quality conditions nationwide. We issued our
report to the subcommittee last week.\1\ Our testimony today discusses
the findings from that report as they relate to (1) the adequacy of the
data for identifying waters for States' 303(d) lists, (2) the adequacy
of data for developing TMDLs for those waters, and (3) key factors that
affect the States' abilities to develop TMDLs. During the course of our
work, we conducted a survey of the officials responsible for these
water quality management activities in the 50 States and the District
of Columbia (hereafter, collectively referred to as States), and
interviewed water quality officials in 4 States.
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\1\ Water Quality: Key and State Decisions Limited by Inconsistent
and Incomplete Data (GAO/RCED-00-54, March 15, 2000)
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In summary, Mr. Chairman, we found the following:
Only 6 States reported that they have a majority of the
data needed to fully assess their waters, raising questions as to
whether States' 303(d) lists accurately reflect the extent of pollution
problems in the nation's waters. While the State officials we
interviewed feel confident that they have identified most of their
serious water quality problems, several acknowledged that they would
find additional problems with more monitoring.
States reported that they have much more of the data they
need to develop TMDLs for pollution problems caused by point sources
than by nonpoint sources. States can more readily identify and measure
point sources of pollution because these sources generally discharge
pollutants through distinct points, such as pipes. Conversely, nonpoint
sources are difficult to identify and measure because of their diffuse
nature. As a result, developing TMDLs for pollution problems caused by
nonpoint sources often requires additional data collection and
analysis. Only three States reported having a majority of the data they
need to develop TMDLs for these types of problems.
States reported that they have been developing TMDLs for
waters polluted by point sources for many years and, therefore, have
expertise in analyzing these types of pollution problems. In contrast,
however, States told us that their ability to develop TMDLs for
nonpoint sources is limited by a number of factors. States
overwhelmingly cited shortages in funding and staff as the major
limitation to carrying out their responsibilities, including developing
TMDLs. In addition, States reported that they need additional
analytical methods and technical assistance to develop TMDLs for the
more complex, nonpoint sources of pollution.
BACKGROUND
Monitoring water quality is a key activity for implementing the
Clean Water Act. The act requires States to set standards for the
levels of quality that are needed for bodies of water so that they
support their intended uses.\2\ States compare monitoring data, or
other information, with water quality standards to determine if their
waters are of acceptable quality. Figure 1 shows these and other
activities for managing water quality.
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\2\ Under the Clean Water Act, States identify uses for their
waters such as for public water supplies, recreation, and protection of
fish and wildlife.
States report to EPA on the condition of their waters via two
primary mechanisms. First, States report every 2 years on the quality
of their waters including information on the percentage of waters they
assessed, the number of waters meeting standards, and the primary
causes and sources of pollution in their waters. EPA compiles the
States' reports, analyzes them, and presents this information in the
National Water Quality Inventory, which is EPA's primary tool for
communicating about water quality conditions to the public. Second,
States identify waters for which existing pollution controls are not
stringent enough to enable them to meet applicable standards and place
these waters on their 303(d) lists.
The Clean Water Act sets forth a procedure for States to follow in
addressing waters that do not meet standards. Specifically, the act
requires that States establish TMDLs for waters on their 303(d) lists.
A TMDL refers to the maximum amount of a pollutant that a body of water
can receive on a periodic basis and still support its intended uses.
Generally, TMDLs are developed by (1) analyzing the pollutants and
sources of those pollutants causing a water quality problem and (2)
determining how much the pollutants need to be reduced in order to
enable the body of water to meet standards.
states do not have the data they need for the 303(d) listing process
States' 303(d) lists may not accurately reflect the extent of
pollution problems in the nation's waters because many waters have not
been assessed. In our survey, only six States responded that they have
a majority of the data needed to fully assess all their waters. This
response is consistent with the relatively low percentage of waters
that States reported assessing for the National Water Quality
Inventory. In 1996, for example, States assessed 19 percent of the
nation's rivers and streams and 40 percent of the lakes and reservoirs.
(See fig. 2.) Despite not having assessed all their waters, the State
officials we interviewed said they feel confident that they have
identified most of their serious water quality problems. States tend to
focus their monitoring on waters with suspected pollution problems in
order to direct scarce resources to areas that could pose the greatest
risk.
However, studies that have more thoroughly monitored water quality
conditions either through monitoring previously untested waters or
conducting different types of monitoring tests have identified
additional pollution problems. For example, a 1993 EPA-funded study of
toxins in lakes showed widespread elevated levels of mercury in Maine
lakes, despite Maine officials' assumption that these waters were
likely meeting standards because they are in areas with little or no
human activity. As a result of these findings, the State issued
advisories against consuming fish from all the State's lakes. In
addition, a study conducted by Ohio's environmental protection agency
found that using additional types of monitoring tests identified a
significant number of pollution problems in waters that had been shown
by other monitoring efforts to be meeting standards. The State
officials we interviewed acknowledged that they would likely find
additional problems if more thorough monitoring were conducted.
Data limitations also affect States' abilities to make decisions
regarding which waters should be placed on their 303(d) lists. Most
States reported that they do not have all the data they need to place
waters that they have assessed on their 303(d) lists. State officials
said that their inability to make a listing decision stems from the
fact that some of their assessments are based on what is called
``evaluated data.'' Evaluated data include site-specific monitoring
data more than 5 years old and information that serves as an indicator
to potential water quality conditions, such as anecdotal evidence or
reports on wildlife or habitat conditions. EPA and State officials
acknowledge that these data sources are less reliable than current,
site-specific monitoring data. Some State officials told us that while
they may use this information to make an assessment of water quality
conditions for the National Water Quality Inventory report, they prefer
not to use it for making decisions about whether to place these waters
on their 303(d) lists because of the requirement to develop a TMDL for
those waters. State officials said that they prefer to conduct
additional monitoring in these waters to determine whether they are
meeting standards.
While State officials acknowledged that they may not have
identified all waters that need TMDLs, they also told us that there are
some waters on their 303(d) lists that do not need TMDLs. The reasons
for this varied widely. For example, officials in one State said that
they mistakenly assessed some waters against higher standards than
necessary, which resulted in these waters being placed on their 303(d)
list. In another State, officials told us that about half of the waters
on their 303(d) list were listed on the basis of evaluated data. Upon
additional monitoring of these waters, the State has found that many
meet standards and, therefore, do not need TMDLs.
STATES LACK DATA FOR TMDL DEVELOPMENT
Our survey showed that States are much better positioned to develop
TMDLs for pollution caused by point sources than nonpoint sources.\3\
(See fig. 3.) States generally have better data and capabilities for
analyzing point sources of pollution because much of the last 27 years
of the Clean Water Act's implementation has focused on addressing this
type of pollution. In fact, the State officials we spoke with said they
have been following the TMDL process for point sources for many years
as a way of achieving water quality standards and developing
appropriate pollutant discharge limits. In addition, much of EPA's
guidance on developing TMDLs, which dates from the 1980's, has focused
on point sources of pollution. Responses to our survey indicate that
most States have much of the data needed to address point source
pollution. Specifically, 40 States responded that they have a majority
of the data they need to identify point sources of pollution, and 29
States reported having a majority of the data needed to develop TMDLs
for these problems.
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\3\ Current and proposed EPA regulations require that States
develop TMDLs for waters polluted by non-point sources.
In contrast, a vast majority of States reported that they do not
have much of the data they need to address nonpoint sources of
pollution. Addressing nonpoint source pollution is essential to meet
the nation's clean water goals because there is wide agreement that
most remaining water quality problems are caused, at least in part, by
nonpoint sources. Unlike point sources, whose pollutant contributions
can be directly measured as they come out of a pipe, nonpoint source
pollution may come from many disparate sources. For example, rainwater
may carry fertilizer, manure, pesticides, and soil with it as it runs
off of farm fields into bodies of water. Measuring how much pollution
comes from these various sources can be extremely difficult and
frequently requires the use of analytical methods, such as mathematical
models.
Developing TMDLs for nonpoint source pollution often involves data
collection and analysis beyond what is done by routine water quality
monitoring. An EPA study of 14 TMDL development efforts--all but one of
which included nonpoint sources of pollution--found that each entailed
additional data collection. This additional data collection accounted
for an average of about 40 percent of the total cost of developing the
TMDL.\4\ Responses to our survey show that most States lack the data
they need to address pollution caused primarily by nonpoint sources.
For example, only three States reported that they have a majority of
the data they need to identify nonpoint sources causing pollution, and
29 States reported having much less than half or almost none of the
data needed. In addition, only three States reported having a majority
of the data needed to develop nonpoint source TMDLs. Officials in some
States told us that because they lack the data needed for certain TMDL
projects, they are focusing on TMDLs that are relatively easy to
develop, rather than those that are of higher priority. These officials
said this is due to the pressure they feel from EPA to show they are
making progress on TMDL development.
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\4\ See TMDL Development Cost Estimates: Case Studies of 14 TMDLs,
USEPA (1996). One effort did not provide separate cost data on
additional data collection conducted.
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Several State officials told us that because most of the TMDLs they
must develop are for pollution caused by nonpoint sources, they prefer
to use methods that require less initial data collection and analysis
before implementing pollution control strategies. Two-thirds of the
State officials responded in our survey, for example, that using a
phased TMDL approach--a process described in EPA's current guidance--is
very helpful for addressing pollution problems.\5\ The State officials
said that such a phased approach enables them to apply best management
practices to nonpoint sources identified as contributing to a problem
while, at the same time, gathering additional monitoring data to better
understand the relative contributions of sources.\6\ Several officials
said they see this as a way to address water quality problems sooner,
rather than to study problems extensively before taking any remediation
actions.
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\5\ As described in EPA guidance, a phased approach involves
developing a TMDL on the basis of available data so that pollution
reduction strategies can begin while additional data collection and
analyses are conducted.
\6\ Nonpoint sources are largely addressed through the use of best
management practices, the effectiveness of which varies with site-
specific conditions, such as soil type and climate. Best management
practices are generally changes in the way in which individuals use
land. Examples include (1) leaving strips of farmland next to waters
uncultivated to minimize erosion and (2) using man-made ponds or basins
to detain stormwater runoff from roads to minimize the velocity of
water reaching nearby waters during storms and to allow sediment and
other pollutants to settle.
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While data collection is often required to develop a TMDL,
additional data are also needed after a TMDL is established. Current
EPA guidance and proposed TMDL regulations discuss the need for
monitoring after pollutant controls or other activities are implemented
to determine if the TMDL is working and the body of water is attaining
water quality standards. This means that significant new monitoring
efforts will be needed, particularly for TMDLs addressing nonpoint
sources of pollution, because the effectiveness of controls to reduce
such pollution can be affected by site-specific conditions.
other factors limit states' abilities to address polluted waters
In addition to the data gaps that States face in developing TMDLs,
States also identified several factors that limit their ability to
conduct monitoring and analyses to fully address the listing of
polluted waters, TMDL development, and other key water quality
management activities. Almost all States identified a need for
additional funding and staff to carry out their duties. Most States
also cited the need for additional analytical methods and technical
assistance to analyze complex pollution problems and develop TMDLs.
Resource Shortages
Forty-five States reported that the lack of resources was a key
limitation to making more progress on improving water quality. In
addition, several States pointed out that they are operating under
State-imposed staffing level ceilings, and other States said they are
limited in how many samples they can analyze because of shortages in
lab funding. EPA officials told us that overall, less resources are
being devoted to monitoring and assessment at the State level than ever
before. EPA is conducting a study of funding shortfalls in States'
water quality programs and plans to identify alternative approaches for
addressing the anticipated gap. On the basis of a preliminary analysis
of 10 State programs, EPA found that States have shortfalls in most
areas of water quality management, including water quality monitoring
and TMDL development. The agency plans to finalize its methodology for
estimating these shortfalls in spring 2000.
Analytical Methods and Technical Assistance
EPA has taken steps toward providing assistance in TMDL
development, but the agency's current level of assistance falls short
of States' needs. EPA's efforts have included issuing multiple guidance
documents over the past 15 years on developing point source TMDLs, and,
more recently, producing a watershed model and analysis tool to be used
in developing TMDLs for more complex pollution problems, such as
nonpoint source and combination point-nonpoint source pollution.\7\ EPA
has also provided a compendium of models that are available for States
to use in analyzing pollution problems.
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\7\ Watershed models are often used to analyze non-point source
pollution because they can take into account many of the factors that
influence such pollution such as land use, climate, and geographic
features.
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Yet a majority of the States responded in our survey that they need
additional technical tools and assistance to help them with TMDL
development. States are particularly concerned about their ability to
develop TMDLs for nonpoint sources because they have little experience
in using the advanced methods required for addressing nonpoint source
problems. In addition, officials told us that they need assistance from
EPA personnel in selecting appropriate watershed models for specific
problems and in model troubleshooting and refinement.
Officials in two States told us that they previously had obtained
such assistance from experts in EPA's modeling lab in Athens, Georgia.
This assistance, however, is no longer available because of reductions
in funding, according to an official in EPA's TMDL branch. Moreover,
this official told us that there is no formal mechanism for providing
assistance to States for developing TMDLs. He said that assistance is
provided largely in an ad-hoc fashion by EPA staff in headquarters,
regions, and labs.
Some States suggested that EPA should develop sample approaches or
templates that States could use to guide them through certain types of
TMDLs, such as templates that indicate what type of data and analyses
are needed for particular pollutants. In addition, several States
pointed out the need for States to share information on TMDL projects
in order to learn from the experiences of others, rather than
``reinventing the wheel.''
EPA ACTIVITIES UNDER WAY COULD ADDRESS SOME STATE NEEDS
Several activities currently under way at EPA could help States in
some of these areas. Perhaps most directly relevant to States' needs
are EPA's efforts to provide guidance, or templates, for developing
TMDLs for some of the more common pollutants causing waters to not meet
standards--sediment, nutrients, and pathogens. The guidance is intended
to provide States with an organizational framework for completing the
technical and programmatic steps in the development of TMDLs for
specific pollutants. EPA issued a guidance document for sediment in
October 1999 and one for nutrients in November 1999. These documents
appear to provide some of the information and specific guidance that
States identified as needed, such as the suggestions for the kinds of
data and analyses necessary to develop a TMDL. How useful these
documents are will become clearer after they have been used in several
TMDL development efforts.
In addition, EPA is conducting two pilot studies to examine methods
for taking airborne sources of pollution into account when developing
TMDLs by looking at mercury contamination. The studies will examine
techniques for determining (1) the amount of mercury reductions needed
to meet water quality standards, (2) the relative contributions of
mercury from various sources, and (3) the geographic extent of sources
contributing mercury. A legal analysis of Federal and State programs to
address airborne sources of mercury deposited in bodies of water will
also be conducted. EPA plans to issue a ``lessons learned'' report on
the findings of the pilots in spring 2000. EPA is also working on
guidance to assist States in developing criteria for nutrients (i.e.,
measures for determining if waters containing nutrients are of an
acceptable quality) that are appropriate to different geographic
regions. The need for these criteria was highlighted in 1998 in the
Administration's Clean Water Action Plan because assessments of the
seriousness and extent of pollution problems caused by nutrients are
often based on subjective criteria.
While EPA has several activities under way in areas that States
cited as problems, the agency does not have an overall strategy for
identifying and addressing States' needs for developing TMDLs. EPA
officials told us that EPA regions are in the process of assessing
States' TMDL programs in order to identify areas in which assistance is
needed and to develop regional strategies to support States' programs.
Without an overall strategy, however, EPA cannot be certain that it is
addressing these needs in the most cost-effective manner.
Additionally, EPA is not addressing one of the key needs the States
identified--technical assistance in using watershed models and other
analytical methods. EPA officials responded that each State can obtain
such assistance from contractors. However, a more coordinated approach
could be more efficient, given the fact that many States will need to
develop TMDLs for similar pollutants and will likely go through similar
analytical processes. Such an approach may be a more cost-effective
alternative for both EPA and the States as they address this
challenging problem.
This concludes our prepared statement, Mr. Chairman. We would be
pleased to address any questions that you or other members of the
subcommittee may have.
STATEMENT OF CLAUDIA COPELAND, SPECIALIST IN RESOURCES AND
ENVIRONMENTAL POLICY RESOURCES, SCIENCE, AND INDUSTRY DIVISION,
CONGRESSIONAL RESEARCH SERVICE, THE LIBRARY OF CONGRESS
EPA'S TOTAL MAXIMUM DAILY LOAD (TMDL) PROGRAM: HIGHLIGHTS OF PROPOSED
CHANGES AND IMPACTS ON AGRICULTURE
SUMMARY
In August 1999 the Environmental Protection Agency (EPA) proposed
regulations to clarify and strengthen the Total Maximum Daily Load
(TMDL) program under section 303(d) of the Clean Water Act (CWA).
Section 303(d) requires States to identify surface waters for which
wastewater discharge limits are not stringent enough to achieve
established water quality standards, even after application of required
pollution controls. For each of these waterbodies, States are required
to set a total maximum daily load of pollutants at a level that ensures
that applicable water quality standards can be attained and maintained
and to allocate further required pollutant reductions among sources.
EPA is required to take these actions if a State fails to do so.
The TMDL process consists of two elements: (1) identifying
waterbodies where standards are not being attained and (2) establishing
TMDLs. EPA's TMDL proposal addresses both elements. These changes
directly affect States, territories, and Indian Tribes authorized to
administer CWA programs. It is up to these entities to identify waters
that do not meet the Act's goal of attaining and maintaining water
quality standards and adopt policies and measures applicable to
individual sources, in order to attain water quality standards. EPA
believes that impacts on agriculture and forestry, if any, will occur
through State implementation, not directly from these rules. As States
implement the TMDL program, where agriculture sources are identified as
responsible for water quality impairments, agriculture may be required
to adopt control actions (for those in agriculture which are point
sources) and/or management measures (for nonpoint sources) to help
clean up waterways. Determinations of impairments and required actions
will be site-specific and variable. EPA concurrently proposed related
changes to permit and water quality standards program regulations to
complement the revised TMDL rules. Two parts of the latter proposal
could directly impact some agriculture and forestry sources. Interest
groups representing agriculture and forestry criticize the possibility
that many of their activities will become subject to CWA regulation and
enforcement, as a result of implementation of the proposal. EPA,
however, expects to use the authority in the proposed rule to affect
agriculture and forestry only in limited circumstances and only where
other means of working with a State to develop an effective TMDL
program have failed.
This report discusses the major changes in EPA's August 1999
proposals, compared with existing regulatory program requirements. The
key changes include: a new requirement for a more comprehensive list of
impaired and threatened waterbodies; a new requirement that States,
territories and authorized Indian tribes establish and submit schedules
for establishing TMDLs; a new requirement that the listing
methodologies be more specific, subject to public review, and submitted
to EPA; clarification that TMDLs include 10 specific elements; a new
requirement for an implementation plan as a necessary element of a
TMDL; and new public participation requirements.
INTRODUCTION
In August 1999 the Environmental Protection Agency (EPA) proposed
regulations to clarify and strengthen the Total Maximum Daily Load
(TMDL) program under section 303(d) of the Clean Water Act (CWA).
Section 303(d) requires States to identify surface waters for which
wastewater discharge limits are not stringent enough to achieve
established water quality standards, even after application of required
pollution controls. For each of these waterbodies, States are required
to set a total maximum daily load of pollutants at a level that ensures
that applicable water quality standards can be attained and maintained
and to allocate further required pollutant reductions among sources.
EPA is required to take these actions if a State fails to do so.\1\
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\1\ For additional background, see CRS Report 97-831, ``Clean Water
Act and Total Maximum Daily Loads (TMDLs) of Pollutants.''
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The TMDL process consists of two elements: (1) identifying
waterbodies where standards are not being attained and (2) establishing
TMDLs. EPA's TMDL proposal addresses both elements. These changes
directly affect States, territories, and Indian Tribes authorized to
administer CWA. programs. EPA believes that impacts on agriculture and
forestry, if any, will occur through State implementation, not directly
from these rules. EPA concurrently proposed related changes to permit
and water quality standards program regulations to complement the
revised TMDL rules. Two parts of the latter proposal could directly
impact some agriculture and forestry sources.
This report discusses the major changes in EPA's August 1999
proposals, compared with existing regulatory program requirements. The
discussion of regulatory modifications is necessarily based on EPA's
August 1999 proposals, but it should be recognized that final
regulations, which EPA hopes to publish later in 2000, could be changed
based on comments received during the public comment period (which
closed January 20, 2000).
tmdl proposals\2\
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\2\ U.S. Environmental Protection Agency. ``Proposed Revisions to
the Water Quality Planning and Management Regulations.'' 64 Federal
Register No. 162, Aug. 23, 1999: pp. 46011-46055.
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The TMDL process consists broadly of two elements: (1)
identification or listing of waterbodies where water quality standards
are not being attained and maintained, followed by (2) establishment of
TMDLs. EPA's proposals address both of these elements. The key changes
include: a new requirement for a more comprehensive list of impaired
and threatened waterbodies; a new requirement that States, territories
and authorized Indian tribes establish and submit schedules for
establishing TMDLs; a new requirement that the listing methodologies be
more specific, subject to public review, and submitted to EPA;
clarification that TMDLs include 10 specific elements; a new
requirement for an implementation plan as a necessary element of a
TMDL; and new public participation requirements.
The proposed changes to the TMDL program will directly impact
States, territories, and Indian Tribes which are authorized to
administer the Clean Water Act. It is up to these entities to identify
waters that do not meet the Act's goal of attaining and maintaining
water quality standards. As States implement the TMDL program, where
agriculture sources are identified as responsible for water quality
impairments, agriculture may be required to adopt control actions (for
those in agriculture which are point sources) and/or management
measures (for nonpoint sources) to help clean up waterways.
Determinations of impairments and required actions will be site-
specific and variable.\3\
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\3\ Because EPA believes that the proposed TMDL rule does not
directly apply to any discharger, including small entities, and since
impacts on non-government entities are indirect and highly speculative,
the Agency did not prepare an initial regulatory flexibility analysis
under the Regulatory Flexibility Act. Impacts on the private sector
would flow from requirements already established by section 303(d) and
the States' water quality standards, not from these proposals,
according to EPA. Id. pp. 46041-46042.
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Definition of TMDL.--Under current regulations, a TMDL is defined
as the sum of wasteload allocations (for point sources) and load
allocations (for nonpoint sources) which do not violate the loading
capacity of a waterbody, i.e., do not violate water quality standards.
EPA proposes to define a TMDL as a written analysis of an impaired
waterbody established to ensure that water quality standards will be
attained and maintained throughout the waterbody in the event of
reasonably foreseeable increases in pollutant loads. The definition
also States the 10 minimum elements of a TMDL necessary for EPA
approval (see below). Added definitions in the proposal include a
definition of ``impaired waterbody:'' ``a waterbody that does not
attain water quality standards.''
Listing process--Data for listing of impaired waterbodies.--Current
law and regulations require States\4\ to assemble and evaluate all
existing and readily available data and information. Regulations also
require a description of the methodology used to develop the 303(d)
list,\5\ data and information used, the rationale for any decision to
not use any existing and readily available data, and any other
information requested by EPA.
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\4\ The term ``State'' is used here to mean States, territories,
and Indian Tribes that have been authorized to establish lists of
impaired waters and TMDLs pursuant to section 303(d). Currently,
however, no Tribes have sought this authority, and part of EPA's
proposal is a clarification that Tribes may apply to EPA for such
authority.
\5\ The term ``list'' is used here to refer to the list of impaired
or threatened waterbodies that States are required to submit to EPA
pursuant to CWA sec. 303(d).
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EPA's proposal retains these general requirements but identifies
sources of data and information specifically (e.g., CWA sec.305(b)
water quality assessment reports, CWA sec. 319 nonpoint source
assessments, Safe Drinking Water Act source water assessments). EPA
also proposes to require that States include a description of the
methodology or factors used to assign priority rankings for waterbodies
in the list and to submit the listing methodology for EPA review 8
months prior to submission of the 303(d) list. The proposal deletes the
existing requirement to identify the rationale for not using particular
data.
Listing process--Scope of impaired waters list.--The law requires
identification of waterbodies for which effluent limitations
(technology-based pollution controls or more stringent for point
sources) are not stringent enough to attain water quality standards.
Current EPA regulations require identification of waterbodies in need
of TMDLs, wasteload allocation reductions (from point sources), and
load allocation reductions (from nonpoint sources) in order to attain
standards. Existing rules also require identification of pollutants
causing or expected to cause water quality standards violations. The
statute uses both the broad term ``pollution'' and narrower term
``pollutant'' in section 303(d)\6\ EPA guidance has been unclear, hence
State implementation has been inconsistent, on whether lists should
cover impairments due to pollution or pollutants.
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\6\ Under the Act, ``pollution'' is defined as ``the man made or
man-induced alteration of the chemical, physical, biological, or
radiological integrity of water.'' The statutory definition of
``pollutant'' is narrower and means ``dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt and industrial,
municipal and agricultural waste discharged into water.'' (CWA sec.
502)
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EPA's proposal would clarify that States must list waterbodies
impaired or threatened by point sources only, nonpoint sources only, or
a combination of point and nonpoint sources. States must list
waterbodies whether the cause of impairment or threat is individual
pollutants, multiple pollutants, or pollution from any source. Under
the proposed rule, ``threatened'' means a waterbody that currently
meets water quality standards, but adverse declining trends indicate
that standards will not be met by the next listing cycle.
Listing process--Components of a list.--Existing regulations
require that the 303(d) list consist of water quality-limited segments
still requiring TMDLs, but the rules recognize that certain impaired or
threatened waterbodies do not require TMDLs and therefore those
waterbodies need not be listed (e.g., those already attaining or
expected to attain water quality standards with application of required
pollution controls). No specific format for the list is currently
required.
EPA proposes to require States to list all impaired or threatened
waterbodies whether or not required pollution controls will attain
water quality standards. The list would be required to have a specific
format, identifying waterbodies in four categories. A TMDL would be
required only for waterbodies on Part 1 of a State's list.
Part 1. Waterbodies impaired or threatened by one or more
pollutants or unknown cause.
Part 2. Waterbodies impaired or threatened by pollution
but not impaired by one or more pollutants.
Part 3. Waterbodies for which EPA has approved or
established a TMDL and water quality standards have not yet been
attained.
Part 4. Waterbodies that are impaired, for which
implementation of technology-based controls is expected to result in
attainment of water quality standards by the next listing cycle.
Existing regulatory requirements do not address when States can
remove listed waters, but 1997 EPA guidance does, saying waterbodies
can be removed if they are expected to attain water quality standards
in the next 2 years, or if the original basis for listing was wrong.
EPA now proposes that waters remain listed until water quality
standards are attained. A waterbody could be removed only upon
attainment or based on information that the original listing was wrong.
Listing process--Priorities and TMDL schedule.--Current law and
regulations require that States assign a priority ranking to each
listed waterbody, based on the severity of pollution and uses of the
waterbody, including identification of pollutants and identification of
waterbodies targeted for TMDL development in the next 2 years (i.e.,
before the next listing cycle). The law and regulations contain no
requirement for submitting a schedule for developing TMDLs for all
listed waterbodies, but 1997 EPA policy guidance directed States to
establish TMDLs 8-13 years after listing.
EPA's proposal affirms the requirement for priority ranking. It
requires States to assign ``high,'' ``medium,'' or ``low'' priority for
all Part I listed waters. EPA suggests that high priority be assigned
to waters used for public drinking water supply where there is
violation of a drinking water standard or waters in which a threatened
or endangered species is present. The Agency identifies factors States
may consider to define medium and low priority (such as the value of
particular waterbodies or the recreational, economic and aesthetic
importance of particular waterbodies) but does not mandate specific
priorities. The proposal eliminates the existing 2-year targeting
requirement in lieu of a requirement that States submit a comprehensive
schedule for establishing TMDLs for all Part I listed waters ``at a
reasonable pace'' but not later CRS-5 than 15 years. EPA recommends but
does not mandate that States establish TMDLs for high-priority waters
within 5 years.
Listing process--Submission of list to EPA.--Current law and
regulations require submission of lists for EPA review and approval; if
EPA disapproves the list, EPA is required to prepare the list.
EPA proposes no change to these basic requirements but proposes to
add regulatory language that EPA may establish the 303(d) list if asked
to do so by a State or if the Agency determines that a State will not
do so consistent with the required schedule for submission.
Listing process--Listing cycle.--Existing regulations require
States to submit 303(d) lists on April 1 of even-numbered years. EPA
proposes to require submission of a State's listing methodology for
Agency review (EPA may comment on but does not formally approve or
disapprove methodologies and proposes no changes here) on January 31
and 303(d) lists on October 1 of listing years. In the proposal, EPA
retains the current 2-year listing interval, but seeks comments on
other options, such as 4-year or 5-year intervals.
TMDL--Minimum elements of a TMDL.--Current law and regulations
require that TMDLs be established at levels necessary to meet water
quality standards with seasonal variation and a margin of safety. EPA
proposes to require that 10 minimum elements be included in a TMDL.
Waterbody name and geographic location.
Identification of the allowable pollutant load for the
waterbody.
Identification of the amount or degree by which the
current pollutant load deviates from the allowable pollutant load.
Identification of the source categories, subcategories, or
individual sources for which the wasteload allocations and load
allocations are being established.
Waste load allocations for pollutants from point sources.
Load allocations for pollutants from nonpoint sources,
including atmospheric deposition and natural background.
Margin of safety.
Seasonal variations.
Allowance for reasonably foreseeable future loadings.
Implementation Plan with eight minimum elements listed
below.
TMDL--Implementation plan.--Currently there is no requirement that
States develop a TMDL implementation plan. EPA now proposes to require
that States develop a plan consisting of eight minimum elements.
For point sources, a list of discharge permits and a
schedule for revising the permits to be consistent with the TMDL is
required. For nonpoint sources, a description of best management
practices or other management measures is required.
Timeline.
Reasonable assurance that the implementation activities
will occur. For nonpoint sources, reasonable assurance means that
nonpoint source controls are specific to the pollutant of concern,
implemented according to an expeditious schedule and supported by
reliable delivery mechanisms and adequate funding.
Description of the legal authorities under which
implementation will occur.
An estimate of the time required to attain water quality
standards.
A monitoring or modeling plan to determine effectiveness
of the actions.
Milestones for attaining water quality standards.
A description of when TMDLs must be revised.
A TMDL implementation plan, like other elements of a TMDL, would be
subject to EPA approval and disapproval.
TMDL--EPA authority.--The law and regulations require submission of
TMDLs for EPA review and approval; if EPA disapproves a TMDL, EPA is
required to establish the TMDL. EPA proposes to retain the existing
basic review and approval process but proposes that EPA may establish a
TMDL if asked to so by a State, if the Agency determines that the State
will not do so consistent with its schedule, or if EPA determines it
should do so for interstate or boundary waterbodies.
TMDL--Transition.--EPA's proposal includes provisions to address
the transition period between the existing and new regulatory program.
For TMDLs under development now (by States or EPA) and for 12 months
after issuance of final regulations, EPA proposes use of either the old
TMDL rules or new rules, and if the TMDL is approvable according to the
applicable rules, EPA will approve.
For TMDL development underway as a result of settlement agreements
and consent decrees to resolve litigation, EPA requests public comments
on two options: (1) to phase in some of the new requirements,
especially for decrees with short timeframes, to accommodate added
workloads, or (2) on case-by-case basis, EPA may ask courts to modify
the current schedule.
General--Public participation.--Currentlythere are no specific
requirements for public participation, except that regulations do
require that calculations to establish TMDLs shall be subject to public
review, as defined by a State, and EPA must seek public comment when it
disapproves and establishes a list or TMDL.
EPA proposes to require States to provide the public with at least
30 days to review and comment on all aspects of 303(d) lists, schedule
of TMDLs, and TMDLs, and to provide EPA with a written summary of
public comments.
General--Endangered species considerations.--Currently the TMDL
program includes no specific requirements concerning endangered species
concerns. However, EPA proposes to require that TMDLs include a
description of how endangered or threatened species were considered.
EPA also encourages States to establish processes with Fish and
Wildlife Service, National Marine Fisheries Service for early
identification and resolution of endangered species concerns. Agencies
will be given the opportunity to comment, along with the public, on
lists and priority rankings. States will be required to consider
resource agencies' comments.
General--Public petitions to EPA.--There is no provision on this
topic in existing program requirements. However, EPA proposes to codify
a specific petition process, available under the Administrative
Procedure Act sec. 555(b), for citizens to petition EPA directly to
perform 303(d) duties imposed on States. Under the APA, this petition
process has been available but has not been used by citizens who,
instead, have brought legal actions in court.
water quality standards and npdes regulations
In a concurrent proposal in August 1999, EPA proposed related
changes to existing National Pollutant Discharge Elimination System
(NPDES) and water quality standards program regulations.\7\ In it, EPA
proposed several key changes affecting discharges to impaired waters,
which are intended to complement the revised TMDL rules. Two provisions
of the proposal could directly impact some agriculture and silviculture
sources, although no estimate of the numbers of affected sources is
available or possible at this time. Two others are likely to have
minimal effect on agriculture and silviculture sources.
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\7\ U.S. Environmental Protection Agency. ``Revisions to the
National Pollutant Discharge Elimination System Program and Federal
Antidegradation Policy in Support of Revisions to the Water Quality
Planning and Management Regulation.'' 64 Federal Register No. 162, Aug.
23, 1999: pp. 46057-46089.
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Designation of additional sources of pollutants as subject to the
NPDES program-animal production facilities.--CWA section 402 prohibits
anyone from discharging ``pollutants'' through a ``point source'' into
a ``water of the United States'' unless they have an NPDES permit. The
permit contains limits on what can be discharged, monitoring and
reporting requirements, and other provisions to ensure that the
discharge does not harm water quality or human health. In essence, the
permit translates general requirements of the Clean Water Act into
specific provisions tailored to the operations of each person
discharging pollutants. Permits are issued for 5-year terms and
thereafter must be renewed.
Point sources are generally industrial and municipal facilities
that discharge from discrete, identifiable outlets such as pipes or
ditches. Most agriculture and silviculture activities are considered to
be nonpoint sources, since they do not discharge from pipes or outlets,
and thus are not subject to NPDES requirements. Under CWA section 510,
States may impose more stringent requirements than those in Federal law
or regulations, including designating nonregulated sources for NPDES
program requirements.
Since 1973, existing regulations have allowed permitting
authorities (authorized States and/or EPA) to designate previously non-
designated sources to be subject to NPDES program requirements, where
necessary to attain water quality standards. Animal production
facilities (terrestrial animal feeding operations or aquatic animal
production facilities) may be designated for inclusion in the NPDES
program, where it has been determined that the facility is a
significant contributor of pollutants to U.S. waters. In the case of
States that have been delegated the authority to issue NPDES
permits,\8\ currently only the State permitting authority may make such
a designation. EPA may do so in the States where it is responsible for
NPDES permitting.
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\8\ Currently, 43 States and one territory are authorized to issue
NPDES permits. In this memo, the terms ``authorized State'' and
``delegated State'' refer to these 44 jurisdictions . EPA is the
permitting authority in the remaining States (Alaska, Arizona, District
of Columbia, Idaho, Maine, Massachusetts, New Hampshire, and New
Mexico) and five territories.
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EPA proposes to modify regulations to allow the Agency to designate
animal feeding operations and aquatic animal production facilities in
authorized NPDES States as point sources on a case-by-case basis.
Issuance of permits would still be the responsibility of the
appropriate permitting authority (i.e., EPA would not issue permits to
designated sources in NPDES-delegated States).
This proposal would apply to animal feeding operations (AFOs)
currently not designated as concentrated animal feeding operations
(CAFOs), since CAFOs already are subject to NPDES requirements.\9\ It
also would apply to aquatic animal production facilities, e.g.
hatcheries or fish farms, which confine aquatic stock in a manmade pond
or tank system (but not aquaculture facilities which confine aquatic
stock in waters of the United States).
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\9\ In March 1999, EPA and USDA announced a Unified Animal Feeding
Operation Strategy to achieve improved animal waste management
nationwide. One element of the strategy is revision of existing CWA
regulations that govern CAFOs. These revisions are expected to expand
the regulatory coverage of AFOs which are defined as CAFOs and thus are
subject to NPDES permitting and enforcement. The AFO strategy is
separate from EPA's proposals to revise the TMDL program. For
additional background, see CRS Report 98-451, ``Animal Waste Management
and the Environment: Background for Current Issues.''
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EPA expects to use this authority only in limited circumstances and
only where other means of working with a State have failed. EPA could
do so where the Agency has disapproved a State's TMDL (i.e., if EPA
finds that the TMDL implementation plan lacks reasonable assurance that
facilities will achieve and maintain pollutant load allocations); EPA
has then established a TMDL in the authorized State; finds that these
operations are significant contributors of pollutants to the impaired
waterbody; and finds that designation as a point source is necessary to
provide reasonable assurance that pollutant load allocations in the
TMDL will be achieved.
Designation of additional sources of pollutants as subject to the
NPDES program--silviculture.--Certain silviculture activities are
currently designated by regulation as point sources subject to NPDES
requirements: discharges from rock crushing, gravel washing, log
sorting, and log storage facilities. EPA proposes no changes to these
requirements.
Other silviculture activities are excluded by regulation from NPDES
requirements because they are considered to be nonpoint sources: runoff
from nursery operations, site preparation, reforestation, thinning,
prescribed burning, pest and fire control, harvesting operations,
surface drainage, and forestry road construction and maintenance.
EPA proposes to remove the categorical exemption from silviculture
activities which are now exempt from NPDES requirements. Under this
proposal, on a case-by-case basis, sources could be designated for
NPDES regulation by a State or EPA based on a determination that the
source contributes to a violation of water quality standards or is a
significant contributor of pollutants to waters of the United States.
Designation would be discretionary, not automatic.
Unless a State acts on its own to designate a silviculture activity
as a point source, such sources would only be subject to NPDES
requirements (1) upon designation by EPA and (2) if the source
discharges to a waterbody for which EPA establishes a TMDL. EPA could
make a designation in any State (NPDES-authorized State or not) but
would do so only when EPA prepares the TMDL. According to the proposal,
EPA expects to use this authority only in limited circumstances and
only where other means of working with a State have failed. EPA
estimates that this will happen ``extremely rarely'' and ``as a last
resort,'' because the Agency assumes that States will make every effort
to develop effective TMDLs and employ their existing programs and legal
authority to ensure compliance. Again because under CWA section 510
States may impose more stringent requirements than those in Federal law
and regulations, NPDES-authorized States may designate silviculture
point sources outside of the TMDL context.
Pollutant discharge offsets.--EPA proposes to require all large new
discharges and existing discharges undergoing significant expansion
that are proposing to discharge pollutant(s) of concern to an impaired
waterbody to offset the new or increased discharge by reducing loads of
the same pollutant from existing sources discharging into the same
waterbody. Neither the CWA nor its regulations currently provide for
such pollutant offsets.
The new requirements would apply to new and expanding dischargers
which are not defined as a ``small entity'' under the Regulatory
Flexibility Act (4 USC 601(6)). Significant expansion means a 20
percent or more increase in discharges above current permit limits. The
new offset requirement would apply to discharges to impaired waters for
which there is not yet a TMDL either established or approved by EPA.
Once a TMDL is established or approved by EPA, measures to implement
the TMDL would be incorporated in NPDES permits and would supersede
offset requirements. The required offset would generally be 1.5: 1, but
could be modified so long as the general purpose is observed: to ensure
reasonable further progress toward attaining water quality standards
(i.e., better than 1:1).
Offsets could be obtained from point sources or nonpoint sources
discharging into the same waterbody. If from a point source, that
discharger's permit would contain any necessary monitoring and
reporting requirements for purposes of accountability. If obtained from
nonpoint sources, these requirements would be included in the new or
expanding discharger's permit. EPA states that the basis for this
proposal is not specifically contained in the CWA, but cites Clean Air
Act section 173 (offset requirements for air pollution sources) as a
statute with ``similar statutory goals and similar circumstances,''
therefore a similar requirement in the CWA is reasonable, in EPA's
view.
It is likely that this proposed change would affect few agriculture
sources and,if so, would be limited to silviculture sources subject to
NPDES permits, assuming that such permits allow for pollutant
discharges and do not require zero discharge. Existing agriculture
sources subject to the NPDES program (CAFOs) are prohibited from
discharging wastewater into navigable waters, except those caused by
the worst 24-hour storm that would occur in a 25-year period. Because
of this prohibition in EPA regulations, it is unlikely that an existing
or new CAFO could seek a permit allowing discharges. Thus, CAFOs are
unlikely to be in the position to need to find offsets. However, point
source dischargers might seek offsets for their operations from
agricultural and other nonpoint sources.
EPA authority to reissue State-issued expired and administratively
continued permits.--Under CWA section 402, EPA may review, and has 90
days to object to, State-issued NPDES permits that fail to meet
guidelines and requirements of the Act. State law often provides that,
if a source makes timely reapplication before the 5-year time when its
permit expires, but the State is unable to act, the existing permit
terms remain in effect until the State makes a final decision. Called
administrative continuance, this protects permittees who have acted on
a timely basis. As a matter of resources, States (and EPA) often are
unable to reissue permits on a timely basis: an estimated 35 percent of
the 350,000 NPDES permits nationwide are currently backlogged for
reissuance. Currently there is no express authority in law or
regulations for EPA to object to and veto a permit that is expired or
administratively continued.
EPA believes that administrative continuance of expired permits may
allow for inappropriate delay in implementing pollutant controls,
including those in TMDLs for impaired waterbodies. EPA now proposes to
treat expired permits as equivalent to a State submission of a permit
that the State proposes to re-issue, thus allowing the Agency to
comment on, object to, or recommend changes. Under the proposal, if the
State fails to respond, EPA can veto the permit and issue a permit in
lieu. EPA states that it would use this discretionary authority only in
limited circumstances: (1) if the discharge is subject to a TMDL
established or approved by EPA and the expired permit does not reflect
the TMDL, or (2) if the permit authorizes discharge of pollutant(s) of
concern to an impaired waterbody for which there is no TMDL and other
means of working with the State have failed.
Like the discharge offset proposal, this revision likely would
affect few agriculture sources. Again, CAFO permits essentially
prohibit discharge of wastewater into navigable waters, so existing
CAFO permits presumably already require pollutant controls. EPA thus
might determine that an administratively continued CAFO permit provides
adequate controls to protect water quality. However, EPA might use this
procedure to address practices not covered in a CAFO's existing permit,
such as discharges that occur from wastewater or solid manure mixtures
which are applied to soil (EPA's current CAFO regulations do not
specifically address land application; if regulated at all, these types
of discharge are subject to varied State and local laws). Under the
limited circumstances that EPA foresees for using this authority, some
silviculture sources with NPDES permits (see page 8) could be affected
by this proposed revision, but the number of potentially affected
sources is unknown.
______
STATEMENT OF ROBERT J. WITTMAN, ON BEHALF OF THE VIRGINIA AND MARYLAND
ASSOCIATIONS OF MUNICIPAL WASTEWATER AGENCIES AND THE RAPPAHANNOCK
RIVER BASIN COMMISSION
Mr. Chairman and members of the subcommittee, I am Robert Wittman
and I am pleased to testify today on the U.S. Environmental Protection
Agency's proposed changes to the National TMDL program. My testimony is
offered on behalf of the Virginia and Maryland Associations of
Municipal Wastewater Agencies, and the Rappahannock River Basin
Commission--on which I serve as Vice-Chairman.
In addition to my statement, Mr. Chairman, I ask that you accept
into the hearing record a brief set of written comments from VAMWA and
MAMWA, on Chesapeake Bay Program issues raised in the proposed TMDL
rules. These written comments provide a detailed discussion, with
specific recommendations, on several Chesapeake Bay Program issues that
I will cover only generally this morning.
I should also mention that I serve on the Westmoreland County Board
of Supervisors and as Chairman of the Montross, Virginia Water and
Sewer Authority. Finally, I work for the Virginia Department of Health
in the State's Shellfish Sanitation program. Thus, I work daily to
address water quality issues at the local and regional levels. As with
many of your constituents, EPA's proposed changes to the national TMDL
program will affect me in each of the capacities in which I serve the
public.
VAMWA and MAMWA comprise almost 60 local governments that own and
operate public wastewater treatment facilities in Virginia, Maryland,
and the District of Columbia. Their members are major stakeholders in
the Chesapeake Bay Program--which stands as a highly successful
alternative to the traditional Clean Water Act command-and-control
approach.
The Chesapeake Bay Program is unique in many ways, not the least of
which is the inclusive, cooperative relationship that exists between
its many partners, including the Bay Program signatories (the
Commonwealths of Virginia and Pennsylvania, the State of Maryland, the
District of Columbia, the Chesapeake Bay Commission, and U.S. EPA),
environmental advocacy groups, local governments, agriculture,
industry, and others with a stake in the future of the Chesapeake Bay.
The essence of a partnership such as the Bay program, and the element
that makes it work, is its reliance principally on agreement, rather
than mandate, to achieve its goals.
That said, the Bay Program shares several key similarities with the
TMDL program. For example, each Bay Signatory jurisdiction is
implementing a tributary strategy process geared toward identifying and
achieving stakeholder-developed restoration goals. Toward that end, the
tributary strategies account for all loading sources and are blueprints
for achieving and maintaining desired pollutant reductions from a wide
array of point and non-point sources. However, while the Bay Program
will achieve the same endpoints as would a properly implemented TMDL
program, it will do so without resort to a Federal mandate. That means
greater flexibility to develop and implement the most cost-effective
controls--at a much faster pace--than would be possible under the TMDL
program as we know it.
The Rappahannock River Basin Commission is a forum in which local
governments, State legislators and citizens can work cooperatively to
address issues affecting the Basin's water quality and quantity. The
membership consists of one member of each County and City governing
body within the Basin, and all State Delegates or Senators whose
district incorporates any part of the Basin, and one member from each
Soil and Water Conservation District in the Basin. Our mission is to
provide guidance and foster cooperation in the stewardship and
enhancement of the water quality and natural resources of the
Rappahannock River Basin.
EPA's proposed TMDL rules raise many significant issues. However,
there is one overriding opportunity--and challenge--before us all.
EPA's response to this issue may well affect the continuing viability
of efforts like the Bay Program and the River Basin Commission.
As we seek to maintain and accelerate the water quality
improvements that we have achieved since the Clean Water Act was passed
almost 30 years ago, our challenges are increasingly complex and
difficult. While the command and control point source programs under
the CWA have been effective--not necessarily cost-effective, mind you,
but effective nonetheless--in addressing point sources of pollution, a
substantial majority of the remaining impairments are attributable to
nonpoint sources or a combination of point and nonpoint sources.
The societal investments necessary to address these water quality
impairments will dwarf our investments over the last 30 years.
Accordingly, one thing is certain: implementation of CWA programs by
EPA and its State partners, must evolve toward a performance-based
system rather than continuing the long-standing command-and-control
approach. A performance-based approach will stimulate innovation and
stakeholder-initiated water quality solutions that will accelerate the
protection and restoration of water quality nationwide. This is exactly
what we have been doing through the Bay Program for more than a decade.
However, in order to move toward a performance-based system, EPA's
TMDL rules must accept and encourage non-traditional, stakeholder-
initiated efforts such as efforts under the Chesapeake Bay Program and
those of the Rappahannock River Basin Commission. These innovative,
stakeholder-led programs are the CWA's present and future success
stories. These are the only programs that can bring together the
resources and the political will that it will take to address and
eliminate the difficult water quality challenges that lie ahead.
Fortunately, examples like our highly successful and nonregulatory
Chesapeake Bay Program and the efforts of the Rappahannock River Basin
Commission exist in every State. However, their ongoing viability is
threatened by EPA's proposed TMDL rules.
While the existing TMDL rules acknowledge and afford some stature
to what it terms ``alternate pollution control programs,'' EPA's
proposed rules inexplicably would eliminate this provision. Doing so
will effectively deny recognition of non-command and control approaches
to addressing water quality impairments. In our judgment, this is the
single most important--and counterproductive--change that EPA proposes.
Rather than running the TMDL program out of Washington, EPA should
use the opportunity of updating the TMDL program to expressly empower
State and local governments as well as other stakeholders nationwide
engaged in water quality restoration efforts. It has been my experience
in Virginia, that community-based, cooperative programs can be highly
successful in achieving significant water quality improvements.
I hope every member of this subcommittee agrees that EPA's final
TMDL rule should clearly accommodate and encourage the development of
non-traditional water quality initiatives. These initiatives are
vitally important to your constituents as they seek to address water
quality impairments in their watersheds. These programs augment efforts
by EPA and the States and will surely accelerate water quality
protection and restoration nationwide. EPA's proposed rule should (1)
recognize the vital role that alternative programs, like the CBP, play
today in our water quality restoration efforts, (2) promote an even
greater role for existing and similar initiatives going forward, and
(3) ensure that the States will have the flexibility to integrate
effective, non-traditional approaches into the TMDL program.
In response to concerns about the impact of the TMDL program on the
CBP, last summer, the signatories to the Bay Agreement agreed to embark
on the unprecedented process of integrating the TMDL program into the
Bay Program.
By committing to this integration process, the Bay Program partners
have agreed, in essence, to give the CBP a chance to remove the
impairments before establishing one or more TMDLs for the Bay. In so
doing, they have charted a course that will not only avoid the waste,
confusion, and delay of overlapping and conflicting programs, but also
provide the opportunity to obviate the need for a Bay TMDL by removing
the impairments before a TMDL would be established. Avoiding TMDL
establishment is a powerful incentive for the expeditious
implementation of water quality controls under the Bay Program.
The CBP/TMDL integration process is federalism and innovation in
action. In concept, this process reflects one of the best approaches to
water quality management that EPA and the States have to offer.
We commend EPA Region III and EPA's Bay Program Office for their
participation and leadership to date in this integration effort.
However, we ask this subcommittee, and the full Environment and Public
Works Committee, to join us in encouraging EPA Headquarters to ensure
that the final TMDL rule allows the seamless integration of the
Chesapeake Bay program--and the stakeholder-based programs in your
States--with the TMDL program.
Two particular obstacles to this integration effort deserve
mention. First, for integration to succeed, EPA and the States must not
be required to use NPDES permits as the sole mechanism for implementing
TMDLs for point sources.
This is not to say that the Bay Program, for example, relies
entirely on voluntary pollution control measures or that sources of
pollution may do as they please. Rather, it means that the individual
Bay States have retained considerable discretion to choose the
appropriate means of achieving the goals established by the Bay
Program's Executive Council. Not surprisingly, a wide variety of
mechanisms have been successfully employed to achieve the Bay Program's
nutrient reduction goals--some are regulatory in nature, some are not,
but none are Federal mandates. Examples include, State and local
sediment control statutes and ordinances, State and local stormwater
management programs, phosphate detergent bans, agricultural cost share
programs, and State point and non-point source grant funding. NPDES
permit limits have been employed, but only at the States' discretion,
in special circumstances.
Both Maryland and Virginia have utilized grant agreements as the
mechanism to implement biological nutrient removal (``BNR'') at POTWs
in accordance with their approved Chesapeake Bay tributary strategies.
To date, dozens of POTWs in Virginia and Maryland have signed such
agreements (which provide 50-percent grant funding), and have either
installed, or are in the process of installing, BNR at costs totaling
hundreds of millions of dollars. Not one POTW in either State has
refused to execute a grant agreement when offered the opportunity to
participate. Other POTWs have installed BNR voluntarily with the
expectation that they will be reimbursed in the future for 50 percent
of the cost.
The point source grant agreement programs in Virginia and Maryland
are remarkable, not only for the millions of pounds of nutrient
reductions they have achieved to date, but also for the speed and
efficiency with which they are administered. For example, in 1998, some
14 agreements calling for the installation of over 3100 million in
nutrient controls were negotiated and executed in a matter of weeks in
Virginia. It would have taken months, if not years, and countless
public resources, to issue NPDES mandating similar reductions.
The proposed TMDL rules threaten to replace the cooperative point
source grant agreement programs in Virginia and Maryland with NPDES
permit limits for nitrogen and phosphorous for all point sources in the
Chesapeake Bay watershed. This would fundamentally alter the Chesapeake
Bay Program by imposing, for the first time, a broad Federal mandate
that would effectively override alternative State approaches to
implementing nutrient controls.
The integration process is about giving the Bay Program--and
similar programs nationwide--an opportunity to remove the impairments
before a TMDL is established. The Bay Program has little meaning if one
of its most accepted and successful implementation mechanisms is
replaced with federally mandated permit limits. The effect will be to
slow the pace of nutrient reduction, drive up costs, and waste Federal,
State, and local resources, which could be far more effectively
utilized elsewhere.
For these reasons, VAMWA and MAMWA urge EPA to improve on its draft
proposal by restoring the Bay States' discretion to continue to utilize
grant agreements as the primary mechanism for implementing point source
nutrient controls. We want to emphasize that we are not proposing that
the States be precluded from utilizing nutrient limits in appropriate
cases, only that their discretion to use grant agreements or other
mechanisms be preserved. In fact, we believe there may well be
instances where nutrient limits in NPDES permits are appropriate, such
as those rare cases where sources refuse to install nutrient controls
called for in a final tributary strategy.
The second noteworthy obstacle to the integration process is EPA's
proposed offset requirement. The offset proposal is unnecessary in the
context of the Chesapeake Bay/TMDL integration process because the
signatories to the Bay Agreement are developing an ``interim cap''
strategy that has the same goal as EPA's offset proposal; namely, to
avoid increased loadings of pollutants contributing to the Bay's
impairment until loading capacities for the Bay and its tidal
tributaries are identified and allocated. Significantly, the Bay
Programs loading cap will apply to far more sources than would be
possible under EPA's TMDL program.
In addition to being unnecessary, EPA's offset proposal also
threatens to bring a halt to continued voluntary point source nutrient
reductions. POTWs in the Bay watershed have, and continue to,
voluntarily install nutrient controls based on Federal and State
assurances that they will not be penalized for their efforts.
Unfortunately, EPA's offset proposal suggests that their reliance on
these assurances may have been misplaced, and that POTWs voluntarily
installing nutrient controls risk losing offsets from these upgrades
that they may need for future growth. Although EPA's proposal does not
say that voluntary reductions now may not be applied as future offsets,
it also does not say they can be used for this purpose. Consequently,
the resulting uncertainty is sure to slow, if not halt, continued
commitments by point sources to voluntarily reduce their discharge of
nutrients. The integration process has no chance of working unless this
problem is clearly addressed in the final rule.
It is also worth noting that EPA's proposed offset requirement is
wholly inconsistent with the promising concept of ``smart growth.'' The
reality today is that most urban waters do not consistently, and will
never, meet the very stringent water quality standards currently in
place. That means the offset requirement will provide a strong
disincentive or prohibition to renewal projects in typical smart growth
areas. The offset requirement will have the counterproductive result of
driving new development to green field areas and, thereby, promote
sprawl and the degradation of more healthy and productive watersheds
EPA should eliminate the offset requirement until the Agency develops a
more integrated policy that takes into account competing programs such
as smart growth.
Finally, Mr. Chairman, we urge you and your colleagues to require
EPA to hold a second public comment period on the Agency's proposed
revisions to the TMDL rules. A second opportunity for comment is
warranted given the sheer number of comments that EPA received as well
as the number of open-ended questions on which EPA sought and received
public input. Providing a brief second public comment period,
hopefully, on a more focused proposal from EPA, is a matter of
fundamental fairness in these circumstances.
Thank you.
______
COMMENTS OF THE VIRGINIA ASSOCIATION OF MUNICIPAL WASTEWATER AGENCIES,
INC. AND THE MARYLAND ASSOCIATION OF MUNICIPAL WASTEWATER AGENCIES,
INC.
The Virginia Association of Municipal Wastewater Agencies, Inc.
(``VAMWA'') and the Maryland Association of Municipal Wastewater
Agencies, Inc. (``MAMWA''), whose municipal members serve the vast
majority of the sewered population in Virginia, Maryland, and the
District of Columbia, appreciate the opportunity to submit these
comments on the captioned proposals as they relate to and affect the
ongoing process for integrating the Chesapeake Bay Program into the
Total Maximum Daily Load (``TMDL'') program.
These comments supplement comments submitted today by VAMWA and
MAMWA on all aspects of the captioned proposals.
i. background
On May 3, 1999, EPA, Region III, over the objections of the
Commonwealth of Virginia, VAMWA, and others, listed the Virginia
portion of the Chesapeake Bay and its tidal tributaries as impaired for
dissolved oxygen (``D.O.'') and aquatic life pursuant to section 303(d)
of the Clean Water Act, 33 U.S.C. 1313(d). Excessive nutrients were
identified by EPA as the cause of the impairments.\1\ Among their
objections to the listing decision, the Commonwealth and VAMWA
expressed grave concerns over the impact of the listing decision on the
Chesapeake Bay Program's long-standing nutrient and sediment reduction
initiatives. Specifically, Virginia, VAMWA, and others pointed to the
redundancy, waste, confusion and delay that would result from
overlapping and conflicting programs directed at the same water quality
issues.
---------------------------------------------------------------------------
\1\ Maryland had previously listed its portion of Chesapeake Bay
and tidal tributaries as impaired for D.O. caused by excessive
nutrients as part of that State's 303(d) list.
---------------------------------------------------------------------------
In response to these concerns, the Chesapeake Bay Agreement
signatories\2\ agreed during the summer of 1999 to embark upon a
process of integrating the Chesapeake Bay Program into the TMDL
program. The goal of this process is to remove the impairments that are
the basis for the listing decisions in both Virginia and Maryland
utilizing the Chesapeake Bay Program rather than TMDLs. To achieve this
goal, the impairments must be removed and the Bay and its tidal
tributaries delisted prior to May 2011, which is the court ordered
deadline for the establishment of TMDLs for all currently listed
Virginia water segments: otherwise, they would be subject to TMDL
establishment.
---------------------------------------------------------------------------
\2\ The Bay Agreement signatories include EPA, the States of
Virginia, Maryland, Pennsylvania, the District of Columbia, and the
Chesapeake Bay Commission.
---------------------------------------------------------------------------
Although the details of the integration process are still under
development, its basic elements have been identified. The process
begins with development of scientifically based, ambient water quality
endpoints (use designations and criteria to support the designations),
which, when achieved, will eliminate the impairments identified by EPA
and provide the basis for delisting. Once the endpoints are developed,
the individual Bay States will revise their water quality standards to
incorporate the endpoints. The existing Chesapeake Bay Program
tributaries strategies processes will then be used to identify and
allocate the nutrient and sediment load reductions required to meet the
revised water quality standards. A Bay-wide ambient monitoring program
will track progress toward attainment of the revised standards, and, as
the standards are attained, the Bay or segments of the Bay, as
appropriate, will be delisted. Bay TMDLs will be established only to
the extent the Bay or segments of the Bay have failed to attain one or
more of the revised standards by May 2011.
While the endpoint development process is underway, EPA and its Bay
Program State partners will develop and implement an ``interim cap''
strategy to maintain the Chesapeake Bay Program's long-standing year
2000 forty-percent nutrient reduction goal until permanent caps are
developed based on the endpoints discussed above.
By committing to this integration process, the Bay Program partners
have agreed, in essence, to give the Chesapeake Bay Program a chance to
remove the impairments before establishing one or more TMDLs for the
Bay. In so doing, they have charted a course that will not only avoid
the waste, confusion, and delay of overlapping and conflicting
programs, but also provide the substantial benefit of providing an
opportunity to obviate the need for a Bay TMDL by removing the
impairments before a TMDL would be established. Avoiding TMDL
establishment is a powerful incentive for the expeditious
implementation of nutrient and sediment controls.
In summary, the Chesapeake Bay Program integration process is
federalism and innovation in action. In concept, this process reflects
one of the best approaches to water quality management that EPA and the
States have to offer. EPA should do everything possible in this
rulemaking to promote the integration process and remove any obstacles
to its successful implementation. Indeed, EPA will have failed to
follow through on its commitment to the integration process unless it
clears the way for this process in this rulemaking.
ii. impact of the proposed rules on the integration process
Unfortunately, in their present form, the proposed rules are a
potentially serious obstacle to successful implementation of the
integration process, both for what they do and what they do not do in
two critical areas.
A. If the Integration Process is Going to Work, the Bay States Must
have the Discretion, Not the Mandate, to Require Nutrient
Limits in NPDES Permits Prior to TMDL Establishment
The Chesapeake Bay Program is unique in many ways, not the least of
which is the inclusive, cooperative relationship that exists between
its many partners, including the Bay Program signatories, environmental
advocacy groups, local governments, agriculture, industry, and others
with a stake in the future of the Chesapeake Bay. The essence of a
partnership such as the Bay program, and the element that makes it
work, is its reliance principally on agreement, rather than mandate, to
achieve its goals.
This is not to say that the Bay Program relies entirely on
voluntary pollution control measures or that sources of pollution may
do as they please. Rather, it means that the individual Bay States are
given considerable discretion to choose the appropriate means of
achieving the goals established by the Bay Program's Executive Council.
To date, a wide variety of mechanisms have been successfully employed
to achieve the Bay Program's nutrient reduction goals--some are
regulatory in nature, some are not, but none are Federal mandates.
Examples include, State and local sediment control statutes and
ordinances, State and local stormwater management programs, phosphate
detergent bans, agricultural cost share programs, and State point and
non-point source grant funding. NPDES permit limits have been employed,
but only at the States' discretion in two instances within the
framework of the Chesapeake Bay Program's nutrient reduction
initiatives. First, phosphorous limits have been imposed on selected
dischargers to certain water segments identified as nutrient enriched
in the State water quality standards. Second, the tributaries
strategies process has used the threat of NPDES nutrient limits for
those point sources unwilling to voluntarily implement the nutrient
controls called for in the tributary strategies.
Both Maryland and Virginia have utilized grant agreements as the
mechanism for implementing biological nutrient removal (``BNR'') at
POTWs in accordance with their approved Chesapeake Bay tributary
strategies. To date, dozens of POTWs in Virginia and Maryland have
signed such agreements (which provide 50-percent grant funding), and
have either installed, or are in the process of installing, BNR at
costs totaling hundreds of millions of dollars. Not one POTW in either
State has refused to execute a grant agreement when offered the
opportunity to participate, while many other POTWs have proceeded to
install BNR voluntarily with the expectation that they will be
reimbursed in the future for 50 percent of the cost. The point source
grant agreement programs in Virginia and Maryland are remarkable, not
only for the millions of pounds of nutrient reductions they have
achieved to date, but also for the speed and efficiency with which they
are administered. For example, in 1998, some 14 agreements calling for
the installation of over $100 million in nutrient controls were
negotiated and executed in a matter of weeks in Virginia It would have
taken months, if not years, and countless public resources, to issue
NPDES mandating similar reductions.
As currently proposed, EPA's new rules threaten to wipe away the
cooperative point source grant agreement programs in Virginia and
Maryland presently used for achieving nutrient load reductions in
Maryland and Virginia, and in their place, require nitrogen and
phosphorous limits for all point sources in the Chesapeake Bay
watershed. Combined with the listing decisions, it could fundamentally
alter the Chesapeake Bay Program by imposing, for the first time, a
broad Federal mandate that would effectively override State decisions
regarding the appropriate mechanisms governing the implementation of
nutrient controls.
The integration process is about giving the Bay Program an
opportunity to remove the impairments before a TMDL is established. The
Bay Program has little meaning if one of the Bay Program's most
accepted and successful implementation mechanisms is replaced with
federally mandated permit limits. The effect will be to slow the pace
of nutrient reduction, drive up costs, and waste Federal, State, and
local resources, which could be far more effectively utilized
elsewhere.
For these reasons, VAMWA and MAMWA urge EPA revise its proposal to
preserve the Bay States' discretion to continue to utilize grant
agreements as the primary mechanism for implementing point source
nutrient controls. We want to emphasize that we are not proposing that
the States be precluded from utilizing nutrient limits in appropriate
cases, only that their discretion to use grant agreements or other
mechanisms be preserved. In fact, we believe there may well be
instances where nutrient limits in NPDES permits are appropriate, such
as those rare cases where sources refuse to install nutrient controls
called for in a final tributary strategy.
Although there are several ways that the States' discretion could
be preserved in the final rule, we believe the best approach would be
to revise 40 C.F.R. 122.44(d)(1)(ii), which identifies the factors to
be considered by the permitting authority in making reasonable
potential determinations, to read, in relevant part, as follows:
(ii) When determining whether a discharge causes, has the
reasonable potential to cause, or contributes to an in-stream
excursion above a narrative or numeric criteria within a State
water quality standard, the permitting authority shall use
procedures which account for . . . planned controls on the
discharge where the installation and performance of such
controls is required and enforceable by the permitting
authority utilizing an appropriate implementation mechanism . .
.
B. EPA's Offset Proposal Is Unnecessary and Threatens to Halt Continued
Voluntary Point Source Nutrient Reductions
The offset proposal is unnecessary in the context of the Chesapeake
Bay/TMDL integration process given the ``interim cap'' strategy
discussed above. Its goal is the same as the goal of EPA's offset
proposal; namely, to avoid increased loadings of pollutants
contributing to the impairment until loading capacities of the Bay and
its tidal tributaries are identified and allocated.
In addition to being unnecessary, EPA's offset proposal also
threatens to bring a halt to continued voluntary point source nutrient
reductions. POTWs in the Bay watershed have voluntarily committed, and
continue to commit, to the installation of nutrient controls based on
Federal and State assurances that they will not be penalized for their
efforts. Unfortunately, EPA's offset proposal suggests that their
reliance on these assurances may have been misplaced, and that POTWs
voluntarily installing nutrient controls risk losing offsets that they
may need for future growth. Although EPA's proposal does not say that
voluntary reductions may not be applied as future offsets, it also does
not say they can be used for this purpose. Consequently, the resulting
uncertainty is sure to slow, if not halt, continued commitments by
point sources to voluntarily controls on the discharge of nutrients.
The integration process has no chance of working unless this problem is
clearly addressed in the final Nile. Therefore, we propose that the
proposed definition of ``reasonable further progress: in the
antidegradation rule be revised as follows:
[T]o authorize a new discharger or an existing discharger
undergoing a significant expansion . . . reasonable further
progress shall be made toward attaining the water quality
standard. Reasonable further progress for these dischargers
means, at a minimum, that any increase in mass loadings of the
pollutant(s) causing the nonattainment will be offset by
pollutant(s) load reductions of the pollutant(s) causing the
nonattainment by a ratio of at least equal to 1.5:1. In the
case of any increase in mass loadings of any pollutant(s)
causing the nonattainment of any water quality standard
applicable to the Chesapeake Bay any of its tributaries.
reasonable further progress may be made by the discharger
agreeing to install controls on the new discharge or
significantly expanded discharge and any existing discharge of
such pollutant(s) in accordance with a tributary strategy
developed pursuant to the Chesapeake Bay Program where the
installation and performance of such controls is required by
and enforceable by the permitting authority utilizing an
appropriate implementation mechanism.
Again, thank you for the opportunity to submit these comments. If
you have any questions, please do not hesitate to contact James T.
Canaday (VAMWA) at 703-549-3381 or email [email protected] or Cy
Jones (MAMWA) at 301-206-8831 or email [email protected].
______
STATEMENT OF DAVID SKOLASINSKI, ON BEHALF OF MINNESOTA IRON MINING
ASSOCIATION AND THE NATIONAL MINING ASSOCIATION
Mr. Chairman and members of the subcommittee. My name is David
Skolasinski. I am pleased to testify on behalf of the National Mining
Association (NMA), and as the Chairman of the Environmental Committee
of the Iron Mining Association of Minnesota (IMA). The NMA's members
include the producers of most of America's coal, metals, industrial and
agricultural minerals; manufacturers of mining and mineral processing
machinery, equipment and supplies; transporters; financial and
engineering firms; and other businesses related to coal and hardrock
mining. The Iron Mining Association of Minnesota (IMA) is a trade
association representing iron ore producers and the businesses that
supply goods and services to the iron mines. Both NMA and IMA members
have a substantial interest in these rulemakings because most either
own or operate facilities requiring NPDES permits under the Clean Water
Act.
I have a Bachelor of Sciences degree in Aquatic Biology and a
Masters of Sciences degree in Fisheries and Wildlife Management, both
from Michigan State University. In addition, I have 26 years of
environmental management experience in the mining industry with mines
producing base metals, precious metals, and iron. I spent 12 of these
years working in five of the western States. During that time, I was
responsible for permitting and environmental management. I have
extensive experience with programs for addressing acid rock drainage at
both old and new mines. Thereafter, I spent 14 years in the Midwest,
gaining extensive experience with water quality permitting and
management. I also have experience with the Great Lakes Initiative and
the Bi-National Program.
INTRODUCTION
I will begin by saying that the organizations I represent today
support the development of a more comprehensive program that can
effectively address multi-source water quality impairments through a
watershed approach. Furthermore, I believe that EPA's continued focus
on basin-wide planning, addressing both point and non-point sources,
provides the best approach for achieving maximum water quality.
However, TMDL development must work in tandem with other watershed
provisions of the Clean Water Act (CWA). Such a program must be based
on a sound understanding of (1) the limits of scientific knowledge,
particularly with regard to complex watersheds; (2) practical
ramifications, i.e. impacts on local economies and interim restrictions
on point source discharges; (3) legal requirements; and (4) effective
public policy. Finally, and most important, EPA must give States the
flexibility to implement their programs in a manner reflecting each
State's unique and complex local circumstances.
The TMDL Program must be both focused and flexible. The broad
listing requirements EPA proposes will dissipate the already scarce
resources necessary to prepare technically and legally defensible
TMDLs. We agree that EPA should require States to develop a methodology
to determine when waters should be listed as impaired. However, as
proposed, the rule fails to adequately ensure that the individual
States methodologies will yield listing decisions that are clear,
objective, and scientifically valid. Furthermore, States must have the
flexibility to focus their 303(d) listing and TMDL development efforts
on those waters that are ``pollutant-impaired.'' Other waters should be
dealt with through alternative lists and programs specifically intended
for tracking their progress toward attaining standards. Section 305(b)
is the proper place for tracking such waters that may not currently be
attaining water quality standards but for which TMDLs are not the
appropriate solution. In this way, the 303(d) list would be reserved
for those waters as to which implementation of TMDLs is an effective
means to bring about attainment of standards.
The CWA and its implementing regulations consistently stress
Congress' intent to provide the States with broad discretion to develop
policies and procedures to implement water quality standards. The
Proposed Regulations therefore should incorporate options that will
provide States with the flexibility to address site-specific issues.
For example, EPA's failure to include phased TMDLs in the proposal
could significantly limit the flexibility provided to the States. In
addition the proposal contains new, severe restrictions on new and
increased discharges from point sources. We have serious concerns about
these inflexible provisions, the arbitrary offset requirements, the
timing of the offsets, and the liability of some sources for reductions
by other sources. The ultimate impact of these inflexible provisions is
that the dischargers will be discouraged--rather than encouraged--from
implementing voluntary early reductions.
The TMDL program, as crafted by EPA, will be very expensive for the
States and regulated parties to implement and the resulting
environmental benefits of such a program remain questionable. For
example, the proposal fails to recognize the difficulties and
uncertainties regarding historic or legacy pollutants--where non-
attainment is due in part, or entirely, to historic problems such as
contaminated sediments, acid rock drainage, air deposition including
deposition from naturally occurring sources such as forest fires,
volcanoes, natural wind-blown silt from glaciers, and naturally
occurring background levels of metals in certain geographic locations.
Pursuant to the proposal, it is likely dischargers will be required to
purchase and install control equipment before it can be determined that
the load reductions requiring the control equipment are necessary and
in some instances where such drastic reductions from point sources will
not significantly contribute to attainment of the water quality
standard. For example, the practical result of EPA's proposal is that
States will be forced to develop TMDLs based upon limited or inadequate
scientific data, resulting in stringent NPDES permit limits that
ultimately may be relaxed once additional data are developed. Thus,
EPA's proposed rules may force significant capital expenditures to
achieve load reductions from existing discharges that ultimately may
prove totally unnecessary. We believe it is irresponsible for
regulators to require current discharge to comply with the excessive
burden of permit reductions unless such reductions would be expected to
significantly improve water quality for the pollutant of concern within
the next 5 year NPDES permit cycle.
303(D) LISTING AND TMDL DEVELOPMENT ARE IMPROPERLY SUITED FOR WATER
BODIES IMPAIRED PREDOMINANTLY BY HISTORIC OR LEGACY POLLUTANTS AND
CERTAIN OTHER NON-POINT SOURCES
In the proposed rules, EPA requires States to list waters that are
impaired due to air deposition, acid rock drainage and other sources,
even if those sources are not regulated as point sources under the Act.
We agree with a number of members of this subcommittee that not only is
this requirement not supported by the statute, but it is illogical and
without scientific basis. It is currently scientifically impossible to
model nonpoint source impairments with any degree of certainty.
Furthermore, according to a February 10, 2000 statement of Mr. Peter
Guerrero on behalf of the General Accounting Office (GAO), the States
themselves report a need for additional analytical methods and
technical assistance to develop TMDLs for the more complex, nonpoint
sources of pollution. Therefore, requiring States to expend resources
developing defensible TMDLs for such impairments is futile.
Further, many sources of pollutants originating from air deposition
will likely be located outside the State and even outside the country.
Individual States have no authority to control these sources.
Consequently, no amount of effort by the State through the TMDL program
will result in improvement of the impaired waterbodies. Unfortunately,
under the proposed TMDL program, point sources discharging to the
impaired waters will be subjected to discharge restrictions imposing
considerable costs and impairing future growth opportunities. New point
sources would likely be prohibited from discharging to impaired waters
which would further restrict growth in the State. I suggest that all of
this would occur with little if any improvement of water quality.
I am very familiar with an example that illustrates this point
existing in Northeastern Minnesota. Virtually all of the lakes and
streams in the Lake Superior watershed are listed as impaired for
mercury. Aside from the fact that the State's impairment determination
is scientifically unfounded, as much as 90 percent of the mercury
entering the State comes through air deposition and (other nonpoint
sources of mercury) from sources outside the State. Under the current
proposal, point source dischargers, both municipal and industrial,
would be severely impacted and growth throughout the entire region
would virtually come to a halt. Yet, mercury from air deposition (and
other nonpoint sources) would continue to contribute the same amount of
mercury to the State's impaired waters, thereby precluding achievement
of water quality standards.
This same scenario exists with regard to elements aside from
mercury that exist ubiquitously throughout the earth's crust.
Background levels in soils typically exceed acceptable criteria in
certain ore bearing regions. There are numerous geologic studies and
historical records demonstrating that surface ore deposits and metals-
enriched soils contribute to natural background conditions. Therefore,
despite drastic reductions or zero discharge requirements imposed on
point source dischargers coupled with restrictions on all new or
increased dischargers, water quality standards simply cannot be
achieved in these situations. We suggest that it is illogical to impose
such reductions on point source dischargers in the face of evidence
clearly showing that eliminating all point source discharges from a
waterbody will not result in achievement of water quality standards.
Yet, this is the practical effect of EPA's proposal. Aside from the
unwarranted restrictions on point source dischargers, EPA is setting
States up to fail by requiring them to develop TMDLs in situations
where the TMDL is not the appropriate mechanism for addressing such
unique problems.
EPA's process for downgrading water quality standards to reflect
natural background pollutants is not the solution. EPA's proposed rule
virtually ignores the downgrading process, which should be considered
as a mandatory requirement before any waterbody is listed. States
developed their water quality standards very generally without respect
for the TMDL process about to unfold and they need time to adjust those
standards with far greater specificity. Moreover, EPA's downgrading
process, aside from its inherent deficiencies, is unclear as to its
applicability to pollutants that, while man-induced, originate from
airborne sources or historical practices.
For these reasons, the practice of adopting a TMDL prior to the
development and implementation of a plan for addressing non-point
source pollution may actually cause degradation of the water quality in
parts of the waterbed. This could occur if current discharges are
substantially reduced or completely eliminated. For example, consider a
point source currently discharging metals in concentrations higher than
its assigned loading but below the concentrations in the receiving
waters. If the only means of achieving its assigned load allocation is
to stop the discharge altogether, the receiving water's metals
concentration below the discharge will actually increase. In other
words, elimination of a ``cleaner'' discharge will result in
``dirtier'' flow once the ``cleaner'' discharge is removed from the
total flow. Accordingly, it makes no sense to ratchet down on point
source discharges prior to addressing the overall non-point source
metals contributions.
An even more perverse result would occur where the TMDL has
assigned loadings to point sources that require discharges at
concentrations lower than the water quality standards. Again, if the
only way to achieve the load allocation is through elimination of the
source of the discharge altogether the TMDL would in effect be taking
away from the waterbed a certain amount of assimilative capacity that
the point source is contributing.
OFFSETS
Under the current proposal, new and significantly expanding
dischargers to impaired waters would face excessively onerous burdens
as a prerequisite to obtaining an approved NPDES permit. EPA suggests
that the proposed mandatory offset provisions are designed to provide
opportunities for such discharges to impaired waters. Without
elaborating on all of the reasons we believe the offset proposal is
unworkable, I will point out the most obvious. EPA fails to consider
situations like the Northeastern Minnesota mercury example I referred
to earlier where virtually all waters in the region have been deemed
impaired. In this situation, if all dischargers are subjected to a ``no
detectable'' discharge requirement, offset credits simply will not be
available throughout the entire region. Further, even if a point source
had credits available, it would not likely offer them for sale but
rather would hold onto them because of the uncertainty as to what load
reduction it will face in the forthcoming TMDL, or for its own future
growth. In certain regions of the country, particularly in regions
plagued by historic or legacy water quality problems, all future growth
and development activities involving a pollutant causing impairment
will be brought to a halt. We suggest that EPA has not done a thorough
analysis of the practical implications of this drastic mandatory
provision and therefore, the provision should be removed from the rule.
Alternatives to Offsets
We suggest alternatives to the mandatory offset requirements
whereby States would have the flexibility to develop their own local
solutions to bringing waters into compliance should be encouraged.
Here, the operative principle must be progress toward standards over
time and across the watershed. EPA's requirement that an offsetting
reduction must occur at the same time as the new or increased discharge
is unnecessary and, in fact, will be counterproductive. This
requirement, by giving no credit for long-term reductions, will
discourage sources from participating in voluntary reduction activities
in their watersheds that may yield real water quality benefits.
Although the proposed rule mentions that TMDLs may be developed on
a watershed basis, the case-by-case offset provisions outlined in the
rule appear to prohibit a watershed approach. A watershed approach,
which centers on a voluntary efforts should be the preferred approach
for obtaining the desired reductions.
An example of such a voluntary approach to obtaining offset
reductions for a specific pollutant has been successful in Minnesota.
Minnesota currently has two watershed based initiatives, the Mercury
Reduction Initiative and the Watershed Unification Initiative. When
fully implemented, these will provide significant reasonable further
progress from point and nonpoint sources. According to the Minnesota
Pollution Control Agency (MPCA), baseline data for mercury indicates
nearly a 50 percent reduction in mercury releases from 1990 to 1995 as
a result these programs. An additional 60 percent is expected by the
end of 2000 and 70 percent by 2005. It is anticipated that the
reductions through 2005 will be obtained primarily through voluntary
efforts by municipal and industrial sources. It is important to note
that this voluntary effort is consistent with EPA's Great Lakes Bi-
National Program and the Bi-National Toxics Strategy, nevertheless, we
believe its future is threatened by EPA's proposed offset requirements.
A similar effort is also underway at the local level in
Northeastern Minnesota. Stakeholders--including non-governmental
organizations, business and industry, municipal and local governments,
research and education institutions, and the general public within the
St. Louis River Watershed are developing a watershed group. Although
this initiative is in its early stages, it is expected to result in
reasonable further progress as stakeholders, through cooperative
efforts, will make pollutant reductions. However, many fear that the
proposed offset provision in EPA's proposed rule will be a disincentive
and likely prohibit this effort from moving forward unless this
alternative approach is allowed.
The TMDL program proposal also threatens to be a disincentive to a
proposed municipal wastewater consolidation project. The project
anticipates piping minimally treated municipal wastewater from a number
of small communities to a regional treatment facility where improved
treatment is provided. The consolidation would result in an increased
discharge at the regional facility in excess of the 20 percent
significant expansion threshold, triggering the requirement for mercury
offsets. Unfortunately, offsets will likely never be available due to
historic mercury impairments and therefore, this environmentally
beneficial local watershed project will never be realized.
CONCLUSION
In conclusion, States in conjunction with stakeholder groups should
be provided the flexibility to develop water quality improvement
programs that will yield reasonable further progress in a practical
manner emphasizing long-term load reduction potential rather than rigid
restrictions that apply unless immediate offsets can be achieved. The
foundation for such programs should be technically sound water quality
standards and high quality data and tools for addressing achievement of
those standards. Those State programs should focus on action that will
yield significantly enhanced water quality, rather than imposing
arbitrary load reductions on the sources not responsible for
contributing to the impairment.
Mr. Chairman, I commend you and the subcommittee for providing this
forum for discussing EPA's proposed revisions to the regulatory
requirements under the Clean Water Act. We urge Congress to encourage
EPA to reconsider the June, 2000 deadline for finalizing this rule
proposal. These oversight hearings and the more than 30,000 public
comments indicate that EPA has failed to adequately consider all of the
impacts of this proposal. It would be a mistake to move forward at such
a rapid pace in the face of all these uncertainties.
______
STATEMENT OF NINA BELL, EXECUTIVE DIRECTOR, NORTHWEST
ENVIRONMENTAL ADVOCATES
Mr. Chairman and members of the committee: My name is Nina Bell. I
am the Executive Director of Northwest Environmental Advocates, a 31-
year-old organization working in Oregon and Washington on issues
related to energy and the environment. We have been working since 1987
to promote implementation of the Clean Water Act's water quality-based
approach to protecting public waters. To this end, we have actively
participated in the review and development of State water quality
standards and State water quality rules, State policies for Total
Maximum Daily Load (TMDL) programs and individual TMDLs, U.S.
Environmental Protection Agency (EPA) rules on water quality standards
and TMDLs, individual and general discharge permits, and State nonpoint
source programs. We also have been engaged in litigation regarding the
inadequate TMDL programs of Washington and Oregon, since 1991 and 1994
respectively, as well as citizens suits seeking enforcement of
discharge permits. At the State level we have participated in a wide
range of advisory committees in Oregon and Washington, including
triennial reviews of water quality standards, State rules and policies
for water quality management, and programs focused on data collection
such as the Lower Columbia River Bi-State Water Quality Committee of
which I was a Co-Chair. I was a member of EPA's Federal Advisory
Committee on TMDLs\1\ and prepared extensive comments on EPA's proposed
TMDL rule.\2\
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\1\ Widespread litigation by citizens groups to enforce the
mandatory provisions of the Clean Water Act's TMDL program led EPA to
seek ways to strengthen this water quality clean-up program. CWA
Sec. 303(d), 33 U.S.C. Sec. 1313(d). The agency has worked to improve
technical support to States and has issued a number of policy
memoranda. See, e.g., Memorandum dated August 8, 1997 from Robert
Perciasepe, Assistant Administrator [for Water], U.S. Environmental
Protection Agency, to Regional Administrators and Regional Water
Division Directors, New Policies for Establishing and Implementing
Total Maximum Daily Loads. In 1996, EPA established a subcommittee of
its National Advisory Council for Environmental Policy and Technology
(NACEPT) to develop recommendations to strengthen the TMDL program. At
the conclusion of nearly 2 years of weekly conference calls and six
full committee meetings, the FACA Committee issued over 150 specific
recommendations to EPA. U.S. Environmental Protection Agency, Report of
the Federal Advisory Committee on the TMDL Program, EPA 100-R-98-006
(July 1998).
\2\ Letter to EPA Comment Clerk for the TMDL Program Rule Re:
Proposed Revisions to the Water Quality Planning and Management
Regulation, 40 C.F.R. Part 130, 64 Fed. Reg. 46012 (August 23, 1999),
from Nina Bell, Northwest Environmental Advocates, dated January 20,
1999.
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INTRODUCTION
The benefits to be derived from the Clean Water Act's water
quality-based approach, and the TMDL program in particular, are clear:
each pollution source must take responsibility for keeping its share of
the cumulative impacts on the human, fish, and wildlife uses of a given
waterbody to a ``safe'' level. That is what it means for a waterbody to
meet water quality standards, which is the interim goal of the Act and
the goal of every TMDL. This rule of law protects all waters,
regardless of how big or small their flow, and therefore their capacity
to dilute pollution. It applies regardless of how many other point and
nonpoint sources discharge or generate polluted runoff to it. Key to
meeting water quality standards in waters that have become impaired is
the TMDL, a scientifically based method of evaluating the cumulative
impacts of multiple pollution sources in order to allocate
responsibility to each source. The TMDL is simply a process by which
the government, with public assistance, establishes how much pollution
a waterbody can tolerate, determines what must be done to reduce
pollution inputs so that level is not exceeded, and ensures to the
extent possible that those responsible will carry out needed actions.
As I will discuss below, the ``extent possible'' is limited by the
nature of nonpoint source programs in place in each State, because the
TMDL program itself does not create any new regulatory authority over
otherwise non-federally regulated sources.
By marrying the inputs of point and nonpoint sources with natural
contributions and changes in seasonal flows, the TMDL can integrate the
legal requirements of the National Pollutant Discharge Elimination
System (NPDES) program with the multiplicity of nonpoint source
programs that exist. These programs range from voluntary to regulatory,
from local to Federal, from user-friendly to relatively useless, and
vary widely between States.\3\ The end result of a TMDL should be a
fair, measurable, scientifically based plan for how to bring impaired
water back to attainment of water quality standards--how to reduce
pollution loads to safe levels. This goal is consistent with the
interim goal Congress sought for polluted waters in 1972 and with the
desires of the American public in the year 2000.
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\3\ For example, Oregon has an agricultural management planning
law, Senate Bill 1010, that mandates agricultural plans for waters
requiring TMDLs. No other State has a comparable law. Likewise, while
many Western States have forest practices acts, many Southeastern
States do not.
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TMDLs play a critical role in the efficacy of the NPDES program. In
the absence of TMDLs, States and EPA cannot properly establish the
pollution controls necessary for either point or nonpoint sources, as I
will discuss below. The control of nonpoint source polluted run-off
itself is central to the regulation of point sources. In the absence of
reliable nonpoint source control programs, measurable goals for
reducing nonpoint source contributions to impaired waters, and
commitments by nonpoint sources to significantly reduce pollution
inputs to streams, States cannot properly establish discharge levels
for point sources that meet legal requirements and are fair.
POINT SOURCE REGULATION
The development of effluent limitations for NPDES point sources
over the last 25 plus years should have been based on the concurrent
application of the two prongs of the Clean Water Act: the technology-
based approach and the water quality-based approach. I have frequently
heard a different interpretation, namely the view that when Congress
passed the Act in 1972, it ``essentially abandoned the water quality-
based approach.''\4\ That could not be farther from the truth. Instead,
in its wisdom, Congress fashioned the two-pronged regulatory scheme,
one to assure each point source would use a minimum of pollution
prevention technology and the other to ensure the use of what ever
additional pollution controls were necessary for the protection of
public health and the environment. Rather than abandon the water
quality-based approach, Congress embraced it in the 1972 Act and in
subsequent amendments.\5\
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\4\ EPA's failures to implement the water quality-based approach,
including TMDLs, are not testimony to Congressional intent. As
discussed below, one could make the exact same argument about the
technology-based approach, based on EPA's failure to implement that
aspect of the Act.
\5\ See, e.g., CWA Secs. 302, 303(d), 303(c), 402, 304(l).
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The water quality-based approach of the Clean Water Act creates
explicit restrictions for NPDES-permitted sources, restrictions that
are tied to the quality of the water receiving the discharge. NPDES
permits, which are first required to meet technology-based
requirements, also must contain ``any more stringent limitation,
including those necessary to meet water quality standards . . . or
required to implement any applicable water quality standard established
pursuant to this chapter.''\6\ Likewise, the Act requires that where a
permitting authority determines that ``discharges of a pollutant from a
point source . . . would interfere with the attainment or maintenance
of [applicable] water quality standards, . . . effluent limitations
(including alternative effluent control strategies) for such point
source . . . shall be established which can reasonably be expected to
contribute to the attainment or maintenance of such water quality.''\7\
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\6\ CWA Section 301(b)(1)(C). The statute includes two distinct
requirements: what is necessary to meet standards and what is required
to implement standards. A TMDL is necessary to determine what is needed
to implement standards, a more complicated and cumulative analysis.
\7\ CWA Section 302(a).
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EPA's implementing regulations mirror these statutory restrictions.
In general, the issuance of permits is prohibited ``when the conditions
of the permit do not provide for compliance with the applicable
requirements of CWA, or regulations promulgated under CWA.''\8\ This
includes ``[w]hen the imposition of conditions cannot ensure compliance
with the applicable water quality requirements of all affected
States.''\9\ The regulations spell out the implications for existing
NPDES sources that are discharging into impaired streams. When NPDES
permits are issued or reissued, EPA regulations require that the
effluent limitations incorporated therein ``include conditions meeting
[w]ater quality standards and State requirements.''\10\ Specifically,
permits must contain ``any requirements in addition to or more
stringent than promulgated effluent limitations guidelines or standards
under [other sections of the CWA] necessary to: (1) Achieve water
quality standards established under section 303 of the CWA, including
State narrative criteria for water quality.''\11\
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\8\ 40 CFR Sec. 122.4(a).
\9\ 40 CFR Sec. 122.4(d).
\10\ 40 CFR Sec. 122.44(d).
\11\ 40 CFR Sec. 122.44(d)(1).
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These required effluent limitations must control all pollutants
that may cause or contribute to violations of water quality
standards.\12\ In order to determine whether a discharge causes, has
the reasonable potential to cause or contribute to an in-stream
excursion above either narrative or numeric criteria, ``existing
controls on point and nonpoint sources, the variability of the
pollutant or polluting parameter in the effluent . . . and where
appropriate, the dilution of the effluent in the receiving water'' must
be accounted for.\13\ In other words, EPA's regulations contain an
implicit reference to the need for TMDLs to evaluate appropriate
effluent limits by taking the cumulative effects of multiple sources
into consideration.
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\12\ ``Limitations must control all pollutants or pollutant
parameters (either conventional, nonconventional or toxic pollutants)
which the Director determines are or may be discharged at a level which
will cause, have the reasonable potential to cause, or contribute to an
excursion above any State water quality standard, including State
narrative criteria for water quality.'' 40 CFR Sec. 122.44(d)(1)(i).
\13\ 40 CFR Sec. 122.44(d)(1)(ii).
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In addition, EPA's regulations specifically address the issuance of
permits for new sources or increased loads from existing sources that
propose to discharge into impaired streams. These new loads are
prohibited if they would ``cause or contribute to the violation of
water quality standards.''\14\ In contrast to its own regulations which
are soundly rooted in the statute, EPA has stated that new discharges
can meet the terms of this restriction--in other words be deemed to
meet water quality standards--if a so-called pseudo-TMDL, otherwise
known as a wasteload allocation, has been developed.\15\
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\14\ ``[An applicant] proposing to discharge into a water segment
which does not meet applicable water quality standards or is not
expected to meet those standards even after the application of the
effluent limitations required by sections 301(b)(1)(A) and 301(b)(1)(B)
of CWA, and for which the State or interstate agency has performed a
pollutants load allocation for the pollutant to be discharged, must
demonstrate, before the close of the public comment period, that: (1)
There are sufficient remaining pollutant load allocations to allow for
the discharge; and (2) The existing dischargers into that segment are
subject to compliance schedules designed to bring that segment into
compliance with applicable water quality standards.'' 40 CFR Sec.
122.4(i).
\15\ In practice, EPA and the States have almost entirely ignored
the prohibition on the addition of new loads to already impaired
waters, despite its statutory basis and that to ignore it makes clean-
up of waters pursuant to a TMDL more difficult and expensive.
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In fact, for both new and existing sources, EPA has long clung to
the view that such wasteload allocations, developed outside the context
of TMDLs, are a sufficient regulatory basis upon which to develop water
quality-based effluent limits for NPDES permits.\16\ However, terming a
wasteload allocation a ``pseudo-TMDL'' is extremely misleading. EPA's
reference is to an evaluation of how an individual discharge will
impact a waterbody, a far cry from the TMDL analysis that considers the
cumulative impacts of multiple sources, including that individual
discharge. EPA has repeatedly countered environmental advocates'
complaints about the failure of NPDES permits to meet water quality-
based requirements by noting that States have been developing wasteload
allocations since 1972. Only very recently has the agency admitted that
permit writers preparing these wasteload allocations ``neglected'' to
factor upstream pollution into their models and calculations. In other
words, EPA has now tacitly conceded that wasteload allocations to meet
legal requirements cannot be developed without a TMDL for impaired
waters.
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\16\ EPA has even defended lawsuits alleging the agency's failure
to meet its mandatory duty to promulgate TMDLs by stating that
wasteload allocations are the equivalent of TMDLs. Presumably, with
EPA's recent recognition that their calculations are deficient, it will
no longer be asserting that claim.
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Despite the clear legal requirements for issuing NPDES permits for
discharges into impaired waters, EPA and the States have issued
thousands of individual and general permits that do not meet these
criteria and thus cause or contribute to water quality standards
violations. The reason is that NPDES permit writers have failed to take
into account the two fundamental ways in which a point source discharge
can affect the water quality in a stream. First, the source can cause
violations of water quality standards at or near the point of discharge
simply by overwhelming a stream. The common way to evaluate this
potential is a dilution analysis calculation. The results of modeling
demonstrate how wide and long the plume of pollution will be after it
leaves the discharge pipe and before it thoroughly mixes with the water
in the stream. The phrase ``mixing zone'' is often applied to this
analysis, referring to an area at and around the point of discharge in
which EPA's regulations allow for the suspension of water quality
standards. This permitted violation of water quality standards is
further regulated by State rules, many if not most of which are
exceedingly vague and therefore subject to abuse.\17\
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\17\ State regulations can be as vague as the circular mandate to
make the mixing zone ``as small as practicable.'' Other States have
restrictions on the width, depth, and/or length of the discharge plume
relative to the dimensions of the waterbody, e.g., 50 percent of the
stream width. Vague restrictions on mixing zones result in abuses such
as a 13-mile long mixing zone in an Oregon stream, which required a
citizens lawsuit to remedy. States often fail to consider the rationale
for mixing zones, namely that the beneficial uses of a waterbody can
avoid the plume of unsafe water. Thus, mixing zones that extend from
bank to bank prevent fish passage and should not be allowed. Likewise,
mixing zones for pollutants that threaten public health (e.g., human
pathogens in raw sewage) should not be allowed because people do not
have the ability to detect and avoid exposure to them.
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Problems arise from EPA's having restricted its analysis of point
source discharges on water quality to this dilution analysis, thereby
ignoring the second way in which point sources affect water quality,
namely in combination with the discharges of other point sources along
with contributions from nonpoint sources and natural background. This
cumulative analysis of multiple sources is the product of the TMDL,
without which a water quality-based permit that meets Federal
requirements cannot be properly issued. In the absence of a TMDL,
determining acceptable point sources loadings is a guessing game,
albeit one that has gone on for over a quarter of a decade. Both the
localized and the cumulative analyses must be done in order to
determine the most restrictive effluent limitations required.
Seen another way, the dilution analysis has been treated as an
academic exercise to analyze where a discharge will cause a violation
of standards in a hypothetical unpolluted stream of a certain flow.
Instead, permit writers should be analyzing the effects of a proposed
or existing discharge on a real stream with all of its existing or
projected impairments. The conclusion that a discharge hypothetically
would dissipate if the stream were clean is the substitution of wishful
thinking for accurate analysis and therefore is not an appropriate
basis for issuance of an NPDES permit. Reliance on this fiction is
exactly why so many permits, contrary to statute and regulations, do
currently cause and/or contribute to violations of standards throughout
the country. That means that TMDLs will result in changes to NPDES
permits; it also means that the degree of reductions required for point
sources will depend upon the level of pollution controls exercised by
nonpoint sources.
What are these effects of TMDLs and nonpoint source controls on
point sources? There are three general scenarios. First, there are
impaired waters whose pollution is predominately from nonpoint sources,
such that if all point source discharges were removed from the
waterbody, nonpoint sources would continue to cause violations of water
quality standards. A State could choose not to curtail the nonpoint
sources, in which case point sources would continue to contribute to
standards violations, remaining vulnerable to NPDES permit challenges
and third party lawsuits. Over regulation of these point sources is
costly and ultimately ineffective. Second, there are impaired waters
where the pollution from point sources so predominate water quality
that if the discharges were removed completely, the water would attain
standards. In this situation, dramatic reductions in point source
discharges are unavoidable. Third, point and nonpoint sources are both
substantial contributors to impairment. Attainment of standards might
or might not be able to be achieved by reducing discharges or removing
point sources entirely, depending on the degree of impairment. However,
by expecting point sources to bear the brunt of pollution controls,
socioeconomic costs could potentially be much higher than requiring
nonpoint sources to reduce their contribution. However, without a TMDL
to quantify the expected reduction by nonpoint sources, States have no
basis upon which to determine what level of point source reduction is
appropriate. Moreover, not adequately addressing nonpoint sources in
this context may well result in failure to achieve the desired
environmental protection leading eventually to an increased and
inequitable burden on the point sources. In all three scenarios, TMDLs
represent a science-based approach to determine who should do what,
subject to full public participation and scrutiny. This public process
creates the greatest likelihood of achieving both equity and
environmental protection.
BENEFITS OF A TMDL PROGRAM
Simply put, the law that governs NPDES point sources makes no sense
without the development of TMDLs. While the most absurd and inequitable
scenario results in severe reductions in or elimination of point source
discharges that fail to result in attainment of standards because
nonpoint sources are not required to reduce loadings, other bad policy
results may occur over the long term. For example, if the allocations
in a TMDL are set based on nonpoint source controls that are not
implemented because of insufficient incentives and/or pressure, years
later point sources will be required to retrofit yet again, even if
placing the burden on them makes little economic or environmental
sense. In the interim, the benefits of clean water to the public and
public resources have been forgone.
TMDLs should also provide a benefit to States that are attempting
to regulate nonpoint sources or tailor their incentive programs to meet
the needs of impaired waters. State regulatory agencies whose mandate
in some States is to establish Best Management Practices (BMPs) that
are sufficient to attain water quality standards need the site-specific
analysis provided by TMDLs. In other States where there are no such
mandates, the voluntary and incentive programs are operating in the
dark. Insufficiently protective non-constructed solutions, such as
buffers, are not cost effective for taxpayer supported incentive
programs. Lack of a TMDL poses a particular problem to sources that
must reduce pollution by building structures, such as waste lagoons for
animal feeding operations. Likewise, commitments to using buffers--
whether for urban streams or logging--should be based on long-term
needs. It is far easier to leave a buffer in place than try to grow it
back again and it is less damaging to water quality. For example,
buffers on streams in the Pacific Northwest that are needed to restore
stream temperatures for the protection of threatened and endangered
salmon, will take decades to grow. Multiple retrofits are not good for
business, whether point or nonpoint, or for the environment and public
health.
The development of a TMDL also creates an environment in which all
sources are working in the same timeframe to achieve the same end. This
is far preferable to having the permits for certain point sources come
up for renewal, without a clear picture of what will happen with other
point sources.\18\ In this way, point sources can have a sound
technical basis for their effluent limits and understand the policy
decisions that give them greater or less responsibility for cleaning up
a waterbody relative to other point and nonpoint sources. Clean-up
programs that rely on tax- and rate-payer support and public
cooperation, such as urban stormwater, are more likely to be sustained
and successful if all sources are working to achieve the same goal, and
that goal is attainment, not just reductions.
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\18\ An example of the benefits of looking simultaneously at all
point sources contributing a pollutant is EPA's Columbia River Basin
Dioxin TMDL. There, EPA made allocations to all bleached kraft pulp
mills in the basin based on an equitable formula.
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EPA'S PROPOSED RULES
In my opinion, EPA's proposed rules attempt to a limited extent to
address the fundamental inequity between point and nonpoint sources
that arises from the highly federally regulated status of point sources
in contrast with the Act's emphasis on State programs for nonpoint
sources. The agency's proposal does not go beyond what the statute
allows and create a Federal nonpoint program, despite the various
allegations made by nonpoint source representatives. Instead, EPA's
proposed rules are consistent with the Clean Water Act, with much of
the FACA recommendations,\19\ and with sound public policy. Although
much of the rule merely memorializes EPA's current policies and
guidance, the salient feature of the proposal is the incorporation of
TMDL Implementation Plans in the definition of a TMDL. It is worth
noting that, although the FACA Committee did not agree on the
convention for Implementation Plans, it did agree unanimously to
recommend that EPA require Implementation Plans, as key to a worthwhile
TMDL program.\20\ The committee also agreed unanimously on the content
of Implementation Plans, submitting over four pages of detailed
recommendations on what such a Plan should include.
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\19\ EPA's rules are inconsistent with the FACA Committee
recommendations only in that they fail to address issues upon which the
committee made recommendations (not all of which were amenable to
rulemaking) and issues on which the committee failed to come to
agreement.
\20\ Although the committee's report addresses a myriad of issues
related to TMDLs, it has one overarching theme: if the Nation is to
embark on a serious effort to meet the requirements of section 303(d),
it should ensure the program makes real progress toward meeting States'
water quality standards. Thus, despite the majority representation by
industry, land owner, municipal, and State governments, the committee
underscored the critical nature of implementing pollution controls, not
just generating paperwork.
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It was well understood then as now that TMDL Implementation Plans
are necessary primarily to coordinate and align the multiplicity and
diversity of nonpoint source programs. However, Implementation Plans
will also help States to set out clearly when NPDES permits will be
revised in order to incorporate new load restrictions determined by the
TMDL and the timeframe in which load reductions will be obtained.\21\
For States that are suffering from a backlog of unrenewed permits, it
is particularly necessary and appropriate that a TMDL Implementation
Plan demonstrate to the public and to other pollution sources when
NPDES permits will be revised and point sources meet their allocated
loads. Nothing slows clean-up efforts programs more--especially those
that are non-regulatory and/or require sustained efforts over long
periods of time--than providing one or more pollution source with the
opportunity to point to other sources that aren't doing their fair
share. This can come in the form of downstream sources complaining that
the benefits of their pollution reductions will be overridden by the
unstemmed pollution coming from upstream, as well as upstream sources
arguing that the benefits of their activities will be negated by the
pollution produced by downstream sources.\22\ In addition, the TMDL
Implementation Plans are the right place to begin the public discussion
about permits that address storm-driven loads, such as those for urban
stormwater and animal feeding operations, that incorporate many
attributes of nonpoint source type controls such as Best Management
Practices (BMPs) and post-BMP monitoring for adaptive management.
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\21\ The public process for issuing NPDES permits addresses how
loads are incorporated into effluent limits.
\22\ An example of this debate is demonstrated by tensions between
agricultural interests upstream of the city of Portland in the
Willamette River Basin and the City with its Combined Sewage Overflows
(CSOs) and stormwater discharges. The City argues that removing its raw
sewage discharges from the Willamette River will not make a substantial
difference to the river's water quality because the river is already so
polluted by the time it runs through Portland. Agricultural interests,
on the other hand, argue that the City's interest in lessening its
commitment to reducing raw sewage discharges means rural sources are
expected to reduce pollution inputs while big city interests exercise
their political clout.
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However, it is the wide array of voluntary, incentive-driven,
quasi-regulatory, and regulatory programs that may be used to obtain or
mandate nonpoint source controls that require an Implementation Plan.
There are several reasons. First, although TMDLs will set clear loading
goals for nonpoint sources, because the causality between control/
restoration actions and water quality improvements is not well known,
the clarity to nonpoint sources will be lost without an Implementation
Plan. The Plan, in contrast to the TMDL, will spell out more easily
understood expectations for nonpoint sources. Second, the
Implementation Plan will include solutions to this lack of
understanding, such as monitoring, setting out the process by which
adaptive management techniques will employ monitoring results to
improve controls if necessary, how and when enforcement actions will be
taken pursuant to State or local programs, use of incentive programs,
and the timeframe in which nonpoint sources will be expected to take
various actions. Last, the development of Implementation Plans will
increase the certainty that needed nonpoint source controls will occur,
thereby reducing the likelihood that the burden for pollution
reductions will fall entirely on point sources.
Of course, the inclusion of an Implementation Plan does not make a
TMDL directly enforceable by EPA, States, or third parties. An
Implementation Plan does not mean that EPA has created a Federal
nonpoint source program. It simply means that there will be heightened
scrutiny by all agencies and the public to the issue of whether
nonpoint source reductions called for by the TMDL are sufficient,
likely to occur, and equitable.
EPA's proposal to include Implementation Plans in the TMDL achieves
the very important end of ensuring that TMDLs and TMDL Implementation
Plans are both prepared and submitted to the public and EPA for review
concurrently. Some argue that by decoupling the two, States could
develop TMDLs faster than if they are slowed by the process of
determining how the TMDLs will be implemented. While this is no doubt
true, the real purpose of TMDLs is to achieve standards by sharing the
load between sources. TMDLs without Implementation Plans will lead to
greater burdens placed on point sources, both initially and in the
future. Although the primary value of a TMDL with regard to point
sources are the wasteload allocations that must be incorporated into
NPDES permits, those allocations are highly dependent upon the load
allocations made to nonpoint sources. Moreover, the long term value of
those wasteload allocations will stem from the certainty that load
reductions will be achieved by nonpoint sources. Therefore, by
increasing the likelihood of nonpoint source load reductions, through
concurrent submission of TMDLs and their Implementation Plans, EPA
enhances the value that TMDLs offer point sources. This value Is an
equitable sharing of the load and a greater degree of certainty for the
future.
Concurrent submission of TMDLs and Implementation Plans is also
important to the public and to a wide variety of reviewing agencies
(such as State Departments of Agriculture and Forestry, the National
Marine Fisheries and U.S. Fish and Wildlife Services, and local
governments) in order to assure appropriate nonpoint source reductions
will take place. I had the good fortune to review a draft TMDL prepared
by EPA that, while not meeting the definitions of the proposed rules,
included some level of implementation planning. This was the South
Steens TMDL for grazing in Oregon.\23\ I learned firsthand about the
benefits of evaluating a TMDL with an Implementation Plan, as well as
evaluating an Implementation Plan with a TMDL in hand. If the two are
not side-by-side, it will be virtually impossible for any party,
including EPA, to determine that either one has been done
appropriately. Both the public and EPA benefit from the closest
possible connection between the scientific analysis of the TMDL and
actions set out in Implementation Plans, providing better assurance to
the public that its tax dollars funding the TMDL program will be
productive. Without concurrent submission, it is virtually impossible
to evaluate whether the TMDL's analysis and load allocations to
nonpoint sources is correct and will be meaningful in the real world.
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\23\ South Steens Water Quality Management Plan, dated June 22,
1998, and Total Maximum Daily Load, Public Notice Dated: July 10, 1998.
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The reasons are obvious. If a TMDL is reviewed by EPA prior to the
State's having analyzed the proposed solutions to implement load
allocations to nonpoint sources, EPA will be forced to take approval/
disapproval action without the benefit of that information. Likewise,
members of the public, including point and nonpoint sources, cannot
judge the fairness and economic impact of a TMDL's relative allocations
without having in hand the practical ramifications for nonpoint sources
that will be spelled out in the Implementation Plan.
The technical analysis for assessing the necessary levels of
nonpoint source control actions is difficult and in its infancy. That
makes difficult drawing a bright line between analysis of problems of
the TMDL and proposals for solutions contained in the Implementation
Plan. That is why Implementation Plans will include monitoring and
measures that will be taken to respond to the results of monitoring, if
existing and proposed controls for nonpoint sources do not prove to be
sufficient. Implementation Plans will need to evaluate the efficacy of
previous and current attempts to remedy identified problems to better
understand what is needed. To address the universally recognized
problem of determining what constitutes adequate controls for nonpoint
sources, Implementation Plans should include three types of monitoring:
(1) Implementation monitoring to evaluate whether actions are taking
place; (2) Effectiveness monitoring to see if controls are meeting
allocations; and (3) Validation monitoring to determine if TMDL goals
have been met.
The point of tying TMDLs and Implementation Plans together is to
ensure that the analysis of the TMDL is translated into the changes
that are necessary to control sources. Analysis by itself does not lead
to appropriate control actions. That is what we will get if we have
TMDLs and no Implementation Plans. Control actions proposed without
analysis is what we have already; politically wrangled determinations
of how much some land owner/user is willing to do regardless of whether
it is sufficient. Neither one of these options is desirable if the TMDL
program is to meet the goals of the Clean Water Act and be worth the
significant taxpayer and private resources that will need to be
invested. Neither option supports the needs of point sources.
HABITAT CONSERVATION PLANS
In discussing the effectiveness of nonpoint source programs to
achieve attainment of standards, many point to existing programs. One
type of ostensible nonpoint source program is Habitat Conservation
Plans (HCP) prepared pursuant to the Endangered Species Act. While
there may well be some HCPs that could meet the requirements of a TMDL,
for the most part HCPs do not perform the same function as a TMDL. The
vast majority of HCPs do not fully address Clean Water Act issues,
including whether and when they will lead to attainment of water
quality standards. The FACA Committee specifically discussed the idea
of ``TMDL substitutes'' and rejected the concept, noting that if HCPs
or other nonpoint source programs constituted the equivalent of a TMDL
they could be submitted as such to EPA. One particular limitation of
HCPs is the ``no surprises'' policy that locks in maximum required
controls for 50 or even 75 years. This alone renders HCPs absolutely
incompatible with TMDLs and the Clean Water Act in general. Everybody
knows that the initial controls for nonpoint sources will likely be
insufficient and require adjustment. That is why nonpoint sources have
talked for years about the need to use the ``iterative approach'' and
``adaptive management.'' In contrast, HCPs do not require that nonpoint
sources followup insufficiently effective programs with increasingly
stringent controls.
DATA ISSUES
Another complaint is that there simply are not enough data to
support the TMDL program. States are under pressure from citizens who
are concerned that data deficiencies will lead to polluted waters not
being listed and TMDLs that are not adequately protective, as well as
industries that fear being ``over regulated.'' There is no question but
that there are insufficient data; the issue is what to do about it. The
implication of some point and nonpoint sources appears to be that
because the system is not perfect, EPA and the States should take no
action to reduce pollution. However, in the face of water pollution
problems that make people sick and bypass drinking water treatment
facilities, that contribute to the imminent extinction of aquatic
species, and that cause reproductive failure in birds and mammals, we
cannot afford to take no action because we do not have sufficient data.
Instead, we must collect more data and use the data we do have in a
sensible, scientific manner. We must also keep in mind that no amount
of scientific information will answer all questions to the satisfaction
of all parties. The TMDL program rests on science to the extent
possible, but counts on public policy to fill in the gaps. In 1972,
Congress gave States and EPA direction on how to address the lack of
knowledge: use a margin of safety.\24\ Many point sources understand
that they can benefit from a reduced margin of safety and by choosing
to collect data to assist States in developing TMDLs.
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\24\ CWA Sec. 303(d)(1)(C).
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States do not collect adequate data on pollutants and their effect
on people, fish, and wildlife and monitoring budgets for all agencies
have steadily decreased over the last 10 years. The data States do
collect are neither comprehensive in geographic scope nor in sufficient
depth on individual waterbodies to develop TMDLs and to improve water
quality standards. Many States have access to additional data but,
despite Federal requirements, choose to ignore other sources such as
Federal and State agencies, tribes, academic institutions, and private
citizens.
Differences in the effort expended by States to seek out ``all
readily available'' data and information from other sources is one
reason that States have extremely inconsistent section 303(d)(1)
listings.\25\ Differences between States naturally also reflect
differences between their water quality standards and listing criteria
(methodology). There are a number of regions where there are stark
contrasts between States, including between Oregon and Washington,
according to EPA's analysis that cannot be attributed solely to
differences in standards.\26\ The new rule has some measures to improve
consistency between States.
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\25\ ``Percent Impaired Waters in 1998,'' a colored map prepared by
EPA in 1999.
\26\ When Oregon prepared its 1994/96 section 303(d)(1) list, under
the terms of a consent decree with us, the State actually visited the
field of rices of agencies such as the U.S. Forest Service, thus
obtaining data that would otherwise not have been made available.
Washington, on the other hand, merely sends out a notice saying it will
accept data. By taking this approach, Washington avoids using data that
are readily available, thereby not listing streams that are impaired,
not listing waters for all impairments for which data exist, and
avoiding building relationships with other agencies that could support
the TMDL program by better understanding their role with it.
New York's low percentage coincides with remarks made by a
representative of that State in a presentation to the FACA Committee.
He noted that many waters identified by New York as unsafe for fish
consumption due to toxic contamination were not placed on the State's
section 303(d)(1) list.
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EPA's current regulations address the issue of whether data are
sufficient to determine standards violations by establishing a listing
process that takes place every 2 years. This schedule allows citizens
and government bodies to both identify previously unidentified impaired
waters and to demonstrate that listed impaired waters are not impaired.
In other words, it meets the needs of all interest groups. That is why
the FACA Committee did not recommend a change to the frequency of the
listing cycle.
There are also complaints about States' water quality standards
that are applied to the data collected to generate section 303(d)(1)
lists. Congress addressed the issue of whether State water quality
standards are set correctly by requiring their review and revision
every 3 years. This 3-year cycle is an appropriate time period in which
to address changes in scientific understanding of the effects of
pollution and incorporate those changes in States' standards.
TECHNOLOGY-BASED POINT SOURCE REGULATION
In evaluating the TMDL program, EPA's proposed rules, and the
regulation of point sources, the committee should recall that EPA also
has a long history of failing to implement the technology-based prong
of the Clean Water Act. The technology-based approach is sheer
pollution prevention, designed to meet the zero discharge goal of the
Act by requiring the use of ever-improving clean-up technologies. The
water quality-based approach, by requiring more pollution controls or
prevention strategies than current technology-based requirements for
streams with insufficient dilution capacity to accommodate all sources
is technology-forcing. In this way, the water quality-based approach
supports the technology-based approach, just the way that pollution
control technology advances in other countries support meeting the zero
discharge goal of the Clean Water Act. However, EPA has resisted full
implementation of this approach, just as it has TMDLs. As a result,
numerous lawsuits were filed by environmental organizations to force
EPA to develop the technology-based approach\27\ as has been the case
with TMDL program.\28\
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\27\NRDC v. Reilly, Civ No. 89-2980 (D.C.D.C.); EDF v. Thomas, Civ
No. 85-0973 (D.C.D.C.) NRDC v. Thomas, Civ No. 79-3442 (D.C.D.C.).
\28\ NEDC v. Thomas, Civ No. 86-1578-BU
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SOLUTIONS AND NEXT STEPS
The committee has welcomed recommendations on solutions and next
steps for EPA's TMDL rule. EPA should be encouraged to continue
evaluating the many public comments it received and promulgate a final
rule. There is no need for Congress to intervene. EPA has not
overstepped its statutory authority. It has proposed rules that seek
some modicum of consistency between State programs and some modicum of
equity between point and nonpoint sources. EPA has demonstrated some
interest in using the TMDL program to achieve attainment of water
quality standards. Even so, in my opinion the proposal leaves a lot to
be desired in all three of these areas. However, given the constraints
of the statute and EPA's desire to give States substantial flexibility
to design their own TMDL programs, the proposal represents a tolerable
compromise. The need for the improved clarity in the TMDL program is
very great, considering the ever increasing number of consent orders
and consent decrees signed by Federal courts mandating the timely
development of TMDLs. Delay of TMDL development and/or delay of EPA's
proposed rule also will have a negative effect on point sources, for
which NPDES permits must continue to be issued. In sum, to delay
promulgation of the rule is to create an inferior program in which the
stark differences between the States remain accentuated and unresolved.
It will also postpone the development of TMDLs that effect both
equitable apportionment of responsibility and environmental protection.
CONCLUSION
We cannot restore our impaired and over polluted waters without
maintaining current statutory and regulatory restrictions on point
sources. However, in order to apply these restrictions meaningfully, we
need to complement the point source restrictions with significant
improvements in nonpoint source controls, and timely development of
TMDLs to assess relative responsibilities for clean-up. To retain
current restrictions on point sources without a viable TMDL program
that encourages States to maximize nonpoint source controls is to
saddle EPA and the States with a system that is broken at the outset.
To retain NPDES restrictions without effective and adequate nonpoint
source programs is inequitable, costly, and often will not meet
environmental goals. Congress clearly chose to place responsibility for
establishing nonpoint source programs in the hands of the States, to be
supported by Federal subsidy, data collection, and incentive programs,
but it did not envision States doing nothing to control nonpoint
sources. TMDLs are the mechanism by which States can allocate
responsibilities between sources and act to clean up impaired waters.
The alternative is to completely abandon the water quality-based
approach of the Clean Water Act in favor of solely pollution
prevention. The predictable outcome will be a marked increase in human
health problems, endangered species, shellfish bed closures,
reproductive failures in birds and mammals, and loss of livelihood of
commercial and recreational fishing interests. The Clean Water Act will
no longer offer hope to the American people that rivers, lakes,
streams, and estuaries ever will be safe for fishing and swimming, for
fish and wildlife.
There is no doubt that EPA has postponed the TMDL program as long
as it could. Propelled by citizens suits, it finally has acted to
improve the program. Its actions are generally consistent with the
recommendations of its FACA Committee, having applied its own judgment
where the committee reached no agreement or failed to address an issue.
Given the restrictions of the Clean Water Act--namely that it does not
create Federal regulatory programs for nonpoint sources--EPA has done
its best to fashion a program that will provide clean water through a
fair means. The agency should be encouraged in this mission.
Thank you for providing me with the opportunity to testify before
you today on the future of the Nation's water quality programs. I will
be happy to answer any questions you may have.
______
STATEMENT OF W. JEFFREY PARDUE, DIRECTOR OF ENVIRONMENTAL SERVICES,
FLORIDA POWER CORPORATION
Mr. Chairman, Mr. Baucus, members of the subcommittee, my name is
Jeff Pardue, Director of Environmental Services at the Florida Power
Corporation. I am testifying on behalf of Florida Power Corporation,
the Edison Electric Institute (EEI) and its member companies, and the
Clean Water Industry Coalition (CWIC).
Florida Power Corporation is the second largest investor-owned
electric utility in Florida, and serves approximately 1.4 million
accounts--or about 5 million people--in a service area of 20,000 square
miles in central and north Florida. This includes the cities of St.
Petersburg and Clearwater, and much of the area around Orlando. The
company has 59 generating units; its fuel mix in 1999 was 35 percent
coal, 17 percent oil, 14 percent nuclear, 13 percent natural gas and 21
percent purchased power.
EEI is the association of United States shareholder-owned electric
companies, international affiliates and industry associates worldwide.
EEI's U.S. members serve 90 percent of all customers served by the
shareholder-owned segment of the industry. They generate over 70
percent of all the electricity generated by electric companies in the
country and service nearly 70 percent of all ultimate customers in the
nation.
CWIC is an ad hoc, multi-industry coalition. The CWIC membership is
comprised of more than 250 companies and associations representing the
nation's major manufacturing and service industries, including
automobile, chemical, food processing, glass, mining, oil, plastic,
forest and paper, real estate, steel, surface finishing, textile,
electric and water utilities, agribusiness, transportation and
associated industries.
Mr. Chairman, I'd like to commend you for holding these hearings on
EPA's proposed TMDL rules. To say, as EPA does, that the proposed
rulemaking ``revises, clarifies, and strengthens'' current regulatory
requirements is to substantially understate the scope and magnitude of
EPA's new direction on TMDLs. The proposed revisions, if adopted, will
radically transform the TMDL program and how states implement the
entire Clean Water Act.
The number and length of the comments submitted to the docket and
the testimony provided during the previous five Congressional hearings
are a good indication of the depth and breadth of concern about EPA's
proposed changes. Comments critical of EPA's proposals were submitted
by Federal agencies, States, Governors, State organizations, local
governments, manufacturing interests, land-based industries,
landowners, and others. A review of the comments and testimony
demonstrates a striking commonality among the expressed views. A large
majority of stakeholders raise similar issues. They seek substantial
changes in the proposed rules.
I am here today to represent a point source perspective on the
proposed rules. It is important to note, however, that like the many
other point sources I am representing, some of the activities of
Florida Power Corporation are categorized as point sources, while
others fall into the non-point source category. We are rarely either
just one or the other. Furthermore, our electric customers can be point
sources, non-point sources, or both. While the identity of interests
between point and non-point sources is not perfect, on the most
important issues raised by EPA's proposed rules--for example, data
quality, offsets, implementation plans, and the bases for listing--we
have significant agreement. We especially agree that we do not favor a
framework that is purely regulatory or establishes a confrontational,
zero-sum approach, pitting all the sources of pollutants to a waterbody
against one another. Instead, we favor a problem-solving approach to
water quality that encourages stakeholders to work together toward win-
win solutions.
During the first hearing held by the House Water Resources
Subcommittee, Chairman Boehlert expressed the concern that EPA is
missing a great opportunity to move in the direction of a
``performance-based approach'' to environmental protection and that the
Agency's proposed framework will discourage ``innovative, stakeholder
solutions.'' We agree, Mr. Chairman. We hope that the subcommittee
hearings will reach the broader policy issues--as well as the more
technical and practical issues--raised by the unilateral decisions the
Agency is making in what, we would argue, is a very hasty fashion. The
rulemaking should address the broader policy issues wisely, within
statutory authority, and do so effectively and with clarity.
I am not the first person to note for this subcommittee that as a
Nation we have made substantial progress in cleaning up our waters. The
progress has not been easily accomplished, however. It took 25 years
and a significant investment of resources by the Federal Government,
certainly by the States and local government, and especially from the
private sector. As a company with many activities regulated under the
Clean Water Act, Florida Power Corp. is proud of our continuing
contributions to improving water quality in the areas where we are
located. It is an effort we take seriously. For example, at our Crystal
River coal plant we have completed a voluntary initiative to change the
method by which we convey coal ash. By changing from a wet to dry
conveyance system we have eliminated two ash pond point source
discharges. Our commitment to water quality is also why, in 1999,
Florida Power Corporation worked hard to help the State of Florida
develop a TMDL statute that has been proposed as a model elsewhere in
the country.
With 40 percent of the nation's waters still experiencing some form
of impairment, we believe further progress is necessary. The nation's
remaining water quality problems should be evaluated, addressed, and
resolved. The present water quality challenges, however, are
technically more challenging, complex and varied than their
predecessors were. Their resolution depends heavily on better analysis,
which in turn depends on valid and accurate data collection, an area of
serious programmatic weakness under the Clean Water Act. Their
resolution also requires time, an unprecedented commitment of resources
from all stakeholders, and a flexible iterative approach that can
accommodate changes in our understanding of aquatic ecosystems and the
tremendous variations that occur from one waterbody to the next--even
from one stream segment to the next. Their resolution further requires
finding the right bridge across the gap between the improvement that we
have gained to date and the remaining improvement that is necessary to
meet water quality standards--when those water quality standards have
been appropriately set.
EPA has crafted proposed rules that make the TMDL provisions of the
Clean Water Act the tool of choice to bridge the gap in every instance
of water quality impairment, including cases where impairment does not
yet exist but might at some point in the future. We understand why the
Agency has chosen to do this. It is not only under pressure from
numerous lawsuits for a general failure to implement the TMDL
provisions of the Clean Water Act, but from those who are frustrated
that from their perspective progress seems so slow.
Yet, we would argue that State and local governments--in
partnership with the private sector--are making important progress on
complex water quality problems. They have been and are developing
successful watershed strategies, which build a profound base of
knowledge about a given watershed and rely on bottom-up, stakeholder
driven processes to establish targets and milestones for achieving
success. Education and voluntary measures play an important role in
these watershed strategies.
The most promising advances have come in the last 5 to 6 years,
despite a decline in Federal funding. For example, in Florida, the
Tampa Bay estuary program is a voluntary program involving point and
non-point sources to reduce nitrogen loadings in the Bay. Also,
Florida's water management districts have developed Surface Water
Improvement and Management (SWIM) Plans, which are a comprehensive
watershed planning tool to resolve Florida water quality problems.
These programs are in addition to existing regulatory tools such as
individual permits, best management practices, antidegradation
policies, and other traditional pollutant reduction measures.
Successful voluntary programs, like the Chesapeake Bay program, are
being conducted elsewhere in the country.
We think successful watershed strategies will continue to emerge at
the local level. They will do so not because of any particular Federal
hammer but because of a slow but steady alignment between public
values, better knowledge and evolving stakeholder commitment.
The total maximum daily load provisions have been part of the Clean
Water Act since it was enacted in 1972, when the view of water quality
problems was quite different from today. The few stakeholder groups who
generally support the thrust of EPA's rulemaking have argued the
proposed rules are necessary because the States have fallen down on the
job. Until recently, however, the States rightly focused their
attention on primary or first tier issues of concern. They are now
moving forward to fulfill their TMDL obligations. Consent decrees and
court orders that impose unrealistic deadlines are making the challenge
next to impossible--at least to do right. Furthermore, EPA is not
helping when, at the very moment the States are moving forward, it
proposes a sweeping rewrite of the program, including many new
interpretations of the existing requirements.
We believe that TMDLs can be a useful tool to improve water
quality. For one thing, they can establish a clear, quantitative water
quality target by defining the total amount of a pollutant that can be
discharged into a water and still have that water meet water quality
standards. In doing so, they can be helpful to States in the exercise
of other programmatic authorities under the Act, such as Section 319
for agriculture and Section 303(e), which defines the States'
continuing planning process. We don't believe, however, that Congress
intended the TMDL provisions to be the central mechanism for
coordinating and resolving all water quality problems or for
implementing watershed management. We worry that, as configured, the
EPA proposals will be an impediment to further development of
successful watershed strategies.
The most successful watershed strategies are largely--though not
exclusively--non-regulatory in nature. They use education, funding,
flexibility on timing, and consensus-building stakeholder processes to
win voluntary reductions to achieve water quality objectives. Even
though they may take more time than regulatory approaches to initiate,
the strategies are successful because not only do they gain the needed
pollutant reductions, they win the hearts and minds of the stakeholders
brought to the table during the process. More importantly, they are
successful because they allow a State to move forward on difficult
water quality problems in the face of uncertainty. This is because
costs on stakeholders are not imposed from the top, but are undertaken
voluntarily--often at the stakeholder's own initiative--to solve a
problem perceived collectively, even though the problem and its causes
may not yet be fully understood.
Successful watershed strategies require both regulatory and non-
regulatory approaches, and it makes a lot of difference how these two
approaches are combined. EPA's proposed rules, with their mandated load
allocations, implementation plans as a formal part of the TMDL, and
approval processes open to lawsuit, establish a heavily regulatory
watershed approach. Even if the Agency grafts into this structure an
accommodation for voluntary initiatives, as it talks about doing, it
will still be imposing a regulatory approach that loses the best
features of today's on-the-ground successful watershed strategies. As
significant, the scope and mandates of the program defined by EPA and
the extraordinary workload it will impose on the States have the
potential to crush any voluntary watershed strategies and may make it
impossible for them to co-exist along side the newly configured TMDL
program. While the Clean Water Act's TMDL provisions were developed in
a different era, EPA's all-inclusive and prescriptive interpretation of
them makes them particularly ill-fitting, unworkable, and
anachronistic.
In Florida, we are committed to using TMDLs as effectively as
possible. Florida has over 700 waters listed under Section 303(d). The
data used for listing these waters was highly variable and in many
cases of questionable quality and accuracy. Furthermore, existing
Federal TMDL regulations provide little guidance to States on how to
move through the TMDL process. As a consequence, in 1999, Florida
legislators, legislative staff, agency officials, regulated interests,
and environmental groups dedicated enormous amounts of time and energy
to the development and enactment of legislation intended to facilitate
compliance with the TMDL requirements of Section 303(d).
Together, we set out to develop a statute that would be good law
and guidance for implementing Section 303(d), consistent with
principles of due process and good science. We sought to incorporate
stakeholder safeguards into the process for listing and TMDL
development. We sought a more equitable basis for delisting waters and
an approach that would not lead to an inequitable burden on any one
category of sources. We also tried to ensure the program would be
scientifically based, use data that are valid and credible, and set
priorities based on State, regional and local factors. The Florida
statute lays out the process to be used in making both listing
decisions and for setting priorities. The State Department of
Environmental Protection sets the priorities and schedules based on
basin assessments and using data that have been assembled according to
a specific set of criteria. This process involves broad stakeholder
input, which allows for priorities to be set in consideration of a
variety of factors, many of which are site specific. These decisions
are best made at the State or regional level, not by the EPA.
In developing the statute, EPA Region IV was consulted and their
comments addressed through amendments to the proposed legislation.
Based on EPA's comments, it was understood that Florida's new TMDL law
met Federal requirements. EPA, however, later entered into a consent
decree that had the effect of undermining key features of Florida's
1999 legislation. In particular, the Agency committed to a Federal
usurpation of the Florida Department of Environmental Protection's
activities in the event that the State fails to comply with overly
ambitious deadlines. The problem is the deadlines, which are
unattainable under Florida's Administrative Procedures Act. Unrealistic
deadlines are setting up Florida to fail, with the result that the EPA
will be responsible for developing the TMDLs on Florida's listed
waters.
Florida nevertheless is proceeding in a good faith effort to
develop the necessary implementing regulations for the program. Now, at
a critical juncture, EPA's proposed regulations threaten to change the
essential features of the Federal program. If the proposed regulations
are finalized in their current form, much of Florida's 1999 legislation
will be rendered obsolete. From a Florida perspective, EPA's initiative
to transform the TMDL program, at the exact moment when Florida and
other States are intensifying their efforts to implement the existing
program, is unjustified by any deficiencies in the existing program or
environmental policy considerations. Governor Racicot of Montana raised
the same issue in his testimony a few weeks ago before this
subcommittee. David Struhs, Secretary of Florida's Department of
Environmental Protection, also made these same points in a letter to
Administrator Browner on January 19, 2000. He further stated that the
State of Florida opposes the proposed rules as:
``needlessly bureaucratic, trapped in an archaic regulatory
framework, loaded with unrealistic demands and completely
unfunded. EPA needs to reconsider the entire proposal and
initiate renewed efforts to work with the States to create a
viable approach, especially to address non-point source
pollution.''
We agree, the goal should be to strengthen, rather than compromise,
State programs. Mr. Chairman, I would like to ask that Secretary
Struh's letter be included in the record of this hearing.
We have serious concerns with the proposed rules. I would like to
outline our specific concerns now.
TIMING
I understand that in testimony before this subcommittee, Mr. Chuck
Fox, EPA's Assistant Administrator for Water, has indicated that the
Agency intends to finalize the proposed rules by June 30, 2000. Mr.
Chairman, we hope the Agency can be prevailed upon to take the time to
get this most important rulemaking right. The Federal Advisory
Committee Act (FACA) TMDL Committee looked at the issue for several
years to produce their recommendations. EPA then considered the FACA
Committee's report for over a year. In many key and significant areas,
the Agency's proposed rules depart from the FACA recommendations. Yet,
the public has had little time to evaluate these proposals, which are
complex and changes dramatically the approach for implementing the
Clean Water Act. Furthermore, a quick review of the 30,000 comments
reveals areas of the proposed rules that need a lot more work. For
example, the proposals do not begin to address how the revised TMDL
program will integrate with decisions made under other environmental
statutes such as Superfund or the Endangered Species Act. If the June
30--or even a late summer deadline--is to be met, we do not believe
that EPA can credibly address these and the other serious concerns
raised by the thousands of comments.
The Agency is under no obligation to propose rules, nor is it under
any obligation to so by a certain date. This is a discretionary
rulemaking, which we believe will take more time to do well if it is to
achieve the Agency's stated goals of bringing more consistency,
clarity, and effectiveness to the TMDL program. We hope the
subcommittee, by whatever means necessary, can prevail on the Agency to
take the time to do the rulemaking right. A hastily prepared rule will
invite litigation and retard water quality progress.
LISTING
While we approve of EPA's effort to require that States develop
through a transparent process--the methodologies they will use to
identify and list streams under Section 303(d), we think the Agency
should be required to provide feedback to the States on their proposed
methodologies. Instead, EPA proposes to reserve its option to object to
a State's list based on EPA objections to the listing metholodoloy. A
State's methodology should not then be used later as a basis for EPA
disapproval of a State list if the Agency's concerns with the
methodology were addressed. We also strongly believe that EPA has set a
threshold for listing of waters under Section 303(d) that is too low.
The quality and type of data that EPA would have the States rely on
cannot ensure the credible and accurate identification of water
impairments, let alone the development of sound TMDLs. For example, EPA
encourages the use of ``evaluated data,'' which can be something as
simple as a drive-by windshield inspection or looking upstream and
seeing two farms and a plant and concluding there must therefore be
impairment. EPA also requires the listing of waters based on fish
advisories. We consider these to be wholly inappropriate, inasmuch as
fish advisories are developed for a totally different purpose and
through varied State processes, which most often are not adequate to
support regulatory actions. In their current form, we do not think fish
advisories are an appropriate surrogate for State water quality
standards when listing a stream for impairment.
From here on out, the listing of a water under Section 303(d) will
have major regulatory and economic consequences. It will be analagous
to designating an area as ``non-attainment'' under the Clean Air Act.
Growth is likely to be curtailed, if not halted, on or upstream of a
listed water. If growth is not curtailed directly, it definitely will
be affected indirectly when lenders hesitate to provide capital for
business, commercial or other development on or upstream of a listed
water. I'd like to point out that since a good many listed waters are
in urban areas, redevelopment efforts will be most adversely affected.
It may not be too much of a stretch to think of the impact of listings
under the Superfund National Priorities List when thinking about the
impact of Section 303(d) listings.
Consequently, the Agency has the obligation to insist on the use of
high quality, monitored data for listing and TMDL development. These
data should be collected pursuant to a State's quality assurance,
quality control protocols. Before incurring the direct and indirect
adverse consequences of a listing, EPA and the States should be sure
that waters proposed for listing are truly impaired.
EPA should also not convert the 303(d) list into the comprehensive
inventory of all water quality problems, as the Agency has proposed.
The statute gives that role to the Section 305(b) reports. So-called
``threatened'' waters, waters impaired by pollution (as opposed to
pollutants), and waters impaired by unknown causes can and should be
managed under Section 303(e). Legal issues aside, other problems, such
as impairment from air deposition or flow characteristics are not
suitable for TMDL development. The science for air deposition is at
such an early stage that there is simply no way to identify the
specific impacts that particular air sources have on particular
waterbodies, nor to attribute an impairment problem back to a specific
emissions source. Furthermore, air deposition cannot jurisdictionally
be reached by a State developing a TMDL. Where a valid impairment by a
pollutant comes from sources that include air deposition, the
impairment needs to be addressed through non-traditional methods. We
are not far enough along to know what the appropriate and effective
legal, technical, and policy elements of such a non-traditional method
would be. I understand that this is not a satisfying answer for the
subcommittee, but it underscores our concern about EPA's approach to
this rulemaking, which prematurely seeks to craft a framework for this
unique problem.
Just as important, it is imperative that a workable procedure for
delisting waters that are not truly impaired be incorporated into the
proposed regulations. Within the next 15 years, States are required to
develop upwards of 40,000 TMDLs for the 20,000 waters currently on the
States' lists. It is common knowledge that many of those waters do not
belong on the lists. They were placed there based on inadequate or no
data, or old and poor quality data; or they simply were put on the
Section 303(d) lists because they were on another Clean Water Act list,
such as the Section 319 list. Setting aside for the moment the resource
implications of these statistics, there should be a straightforward
procedure for taking waters off the list and for addressing, in a
prioritized fashion as determined by the States, only those waters that
are clearly impaired. In light of the potentially crippling regulatory
consequences for permittees and the impacts on growth that will flow
from a listing, which I will discuss in a moment, 4 or 5 years is
simply too long to wait to get a water off of a Section 303(d) list if
it should not have been listed. The Florida statute provides for
immediate delisting of waters when data comparable to the data required
for listing a water demonstrates that the water quality standards are
being met.
REDEFINITION OF TMDL
The proposed rules expand the elements of a TMDL. Under the
proposals, a TMDL is more than a number defining the total amount of a
pollutant that can go into a water and still have it meet water quality
standards. It is even more than the ``pollution budget'' discussed by
the Agency. Under the proposed regulations, a TMDL will now include an
implementation plan that lays out the most basic on-the-ground, local
decisions about who will do what, when, where, and how to implement the
TMDL. As a consequence, the proposed changes will dramatically expand
EPA's regulatory reach, since the EPA will approve the implementation
plans. Endangered Species Act Section 7 consultations with the Federal
wildlife agencies on all these detailed decisions may also be triggered
if an endangered species might possibly be affected. EPA''s
``implementation plan'' proposal cannot be supported by any language in
Section 303(d) of the Clean Water Act.
A reading of the proposed rules and statements by Agency officials,
including those of Mr. Fox in hearing testimony, indicates that the
Agency believes it has laid out a TMDL framework that makes the program
an effective watershed management tool, preferred over the Section
303(e) continuing planning process presently used by the States. Yet,
in prescriptively redefining the elements of a TMDL, EPA has devised a
program that is a more rigid, inflexible framework--not at all like the
State watershed initiatives that are proving so successful on the
ground. Once approved, because of all the required Federal agency
approvals, a TMDL will be very difficult to modify even if a change is
needed to improve water quality or correct misdiagnosis of a problem or
the solutions used to solve a problem. We also worry that the framework
sets up a confrontational, zero-sum approach to water quality that is
antithetical to the current consensus-based watershed approaches. The
Superfund statute has often been regarded as a failure because, among
other reasons, it has imposed extraordinarily high transaction costs on
all parties to the clean up decisions. Recent TMDL consent agreements
and the TMDL framework established by the proposed rules have the
potential to also impose extraordinarily high transaction costs.
INTERIM RESTRICTIONS/OFFSETS
During his testimony before the House Water Resources Committee on
February 10, Mr. Fox articulated a policy objective that we whole-
heartedly support. We agree with Mr. Fox that an effective TMDL program
should be structured to encourage and allow for the most cost effective
pollutant reductions to be achieved. In most instances, these
reductions will come from the sources whose contribution of loadings
will be less expensive to reduce. We do not agree with Mr. Fox when he
asserts that the proposed rules further that policy objective. Our
concern becomes even more pronounced when we evaluate some of the
decisions being made on the ground today or in unrelated policy
statements by EPA.
Under the proposed rules, new or significantly increased
dischargers to impaired waters face offset requirements as a
prerequisite to obtaining NPDES permit approvals. These provisions, we
believe, are likely to be unworkable. On many stream segments, an
offset may not be available. On others where it might be available, EPA
has structured the offset in a way that becomes a powerful disincentive
for the NPDES permittee to enter into an offset arrangement with
another party. If the other party fails to perform, not only does the
NPDES permittee have its permit reopened, the permittee becomes liable
for civil and criminal penalties for violation of its permit. The
likely result will be to drive new business or commercial and
residential development to pristine areas, rather than encourage
redevelopment along waters that are now listed as impaired.
Does this mean that we believe that unfettered new and significant
increases of discharges should occur on impaired waters? Of course not.
Instead, we think that States are in the best position to make
decisions about how to manage an impaired water for growth. EPA should
not prescribe rules that prejudge the outcome of a TMDL.
We are concerned that such prejudgments are taking place on the
ground right now. In unrelated policy statements, EPA has advocated an
outright ban on the use of mixing zones on impaired waters. Some EPA
regional offices are pushing point source dischargers to zero for
certain substances on an impaired water prior to TMDL development.
These decisions are being imposed regardless of whether the action will
make any significant contribution to meeting water quality standards
and also regardless of the sometime exorbitant costs. The Clean Water
Act's anti-backsliding provisions are not likely to allow for a
relaxation of the interim measures when a TMDL is later completed.
WATER QUALITY STANDARDS
Mr. Chairman, we have two primary concerns in this area. First, as
you pointed out during your first TMDL hearing, in some cases, water
quality standards have been set that, for very good reason, cannot
always be met. The use attainability analysis that must be completed to
change a State water quality standard for a particular water is
exceedingly difficult to complete. Obtaining EPA approval is also
extremely difficult. EPA makes no accommodation for this in its
rulemaking. Nor does EPA's proposal accommodate the moderating
provisions such as mixing zones and variances.
Second, EPA aggravates the first problem by allowing for the
listing of streams based on noncompliance with narrative standards for
which there is no numeric translator. In other words, there is no
objective measure for the State or a regulated entity to use for
deciding when the standard is not being met. We believe that measures
of impairment should be objective and quantifiable. Current regulations
and past court decisions support that view. We fear that by encouraging
the use of narrative standards as a basis for listing, the proposed
rules will lead to more subjective, ad hoc decisionmaking under the
Clean Water Act.
RESOURCES
Mr. Chairman, Florida has over 700 listed streams for which it must
complete TMDLs. With 20,000 waters currently listed nationwide,
requiring 40,000 TMDLs, the States will have to develop one TMDL a week
for the next 15 years to get the job done, all of which EPA must
approve. The proposed rules will increase the workload by expanding the
basis for listing waters under 303(d) and redefining the TMDL to
include an implementation plan. The rulemaking is also likely to
increase the need for individual permits by making general permits much
more difficult to obtain on an impaired water. EPA already admits to a
substantial backlog in NPDES permit reissuance, which they expect will
increase over the next 2 years.
Yet, Congress and the subcommittee have no good idea about how much
this will cost the Federal Government, State and local governments, or
the private sector. EPA has decided that either their proposals do not
require these analyses, an interpretation that has been disputed by the
States and various stakeholders, or has performed an analysis of cost
impacts to the States that cannot bear scrutiny. The proposed revisions
are substantial enough to warrant a detailed analysis of the costs of
the entire program and the revisions, an analysis that should be peer-
reviewed and available for public comment prior to the rules being
finalized. Under any scenario, increased Federal funding will be needed
for States and local governments. We believe, however, that it is
possible to craft a rule that improves the TMDL program and does so
cost-effectively.
In conclusion, Mr. Chairman, our lawyers strongly believe that EPA
lacks the statutory authority to do much of what they are proposing.
Beyond the legal arguments, we hope the subcommittee will consider
whether EPA's proposal really makes good policy and whether it can work
in practice. Part of working in practice is whether it will achieve
real and genuine environmental benefits. The other part of ``in
practice'' is will it achieve those benefits in a way that allows the
continuing power of our economy to be harnessed and used to support the
education, employment, and welfare of all Americans. We value the
environmental progress that we've made and want to protect it. We think
the way to go about that is a through a flexible, stakeholder-based,
watershed approach, which is not achieved by these proposed rules. We
believe the proposals fail to achieve the twin elements above.
We thank you for your oversight efforts and hope the subcommittee
will take the following important steps. First, we hope the
subcommittee will undertake to prevail upon EPA to take the time to get
the rule done well and right, and to not let political exigencies drive
the timetable. Getting it done right means taking a more focused
approach to the listing of waters under Section 303(d) and ensuring
that high quality, monitored data is used for both listing and TMDL
development. That begins with establishing objective, numeric water
quality standards. It means ensuring that flexible, bottom-up watershed
approaches continue to develop by not using the TMDL process to
override the Section 303(e) continuous planning provisions of the Clean
Water Act. It means assuring that due process is accorded stakeholders,
that States retain full authority to equitably apportion responsibility
for pollutant reductions, and that EPA does not prescriptively prejudge
the outcome of a TMDL.
Second, we would encourage the subcommittee to consider stepping in
to ensure adequate funding for monitoring and data collection by the
States and to require that the data used for listing and TMDL
development be high quality monitored data. A serious improvement in
our knowledge in this area can go a long way to improve on the ground
decisionmaking. This effort should not be left entirely in the hands of
the Agency, but should be developed jointly with the States or, better
yet, with States in the lead, after input by stakeholders.
Third, I believe it was Senator Wyden during the last hearing that
raised the issue of State flexibility and one-stop shopping. We believe
it would be helpful if the subcommittee would clarify that States have
the authority to evaluate and conclude that current watershed
strategies, habitat conservation plans, and environmental decisions
made under other environmental statutes are adequate to meet water
quality standards and therefore do not have to be reopened under the
TMDL program.
Fourth, we would encourage the subcommittee to seriously review the
resource needs of State and local governments and the costs likely to
be imposed as a result of the TMDL program on them and on the private
sector. You will then be better able to evaluate the merits of the
Agency's proposals and appropriately address funding needs.
Thank you Mr. Chairman.
______
Department of Environmental Protection,
Tallahassee, FL, January 19, 2000.
Ms. Carol M. Browner, Administrator,
U.S. Environmental Protection Agency,
Washington, DC.
Dear Ms. Browner: This letter is in response to the U.S.
Environmental Protection Agency's proposed revisions to the Federal
Total Maximum Daily Load Regulations (40 CFR Part 130), the National
Pollutant Discharge Elimination System Program (40 CFR 122, 123, and
124), and the Antidegradation Policy (40 CFR 131), as published in the
Federal Register on August 23, 1999. We appreciate the opportunity to
review the proposed regulations and have endorsed a wide range of
specific comments. Given the scope of our comments and serious concerns
about the proposal, I will summarize the key points in this cover
letter.
First, we fully support the principle that more can and should be
done to control nonpoint sources of pollution. However, the proposed
revisions represent a significant, unwarranted expansion of the
regulatory approach to this problem. A plain reading of the Clean Water
Act, supported by numerous Federal court decisions, makes clear that
section 303(d) is applicable to waters where point source controls are
not adequate to maintain water quality standards. Indeed, section 319
of the Act specifically gives the responsibility for development of
nonpoint source controls, including determining the need for regulatory
programs, to the States.
EPA should reconsider the expanded regulatory approach if only for
practical reasons. There are simply too many potential nonpoint sources
of pollution (silviculture alone represents more than nine million
private landowners) to address using traditional regulatory techniques.
Furthermore, there is too much uncertainty in the relation between
individual nonpoint sources and their specific impact on downstream
receiving water quality to support a water quality-based approach.
States certainly will not be able to allocate loading to individual
nonpoint source discharges or monitor the effectiveness of individual
pollution control activities.
For these reasons, Florida is a strong proponent of a voluntary,
technology-based approach to nonpoint source control. In fact, we have
formally adopted this approach in landmark State TMDL legislation (the
Florida Watershed Restoration Act, Section 403.067, Florida Statutes),
which prescribes a comprehensive voluntary strategy for implementing
the nonpoint source component of TMDLs. The law acknowledges that many
nonpoint sources are outside of our regulatory authority and
establishes a viable alternative that includes incentives for nonpoint
sources implementing best management practices. We currently are
working with various industries and the Florida Department of
Agriculture and Consumer Services to implement these alternatives.
Securing industry cooperation is not easy but is the only way we will
be able to deal effectively with nonpoint source pollution--and it is
bearing fruit. In the Suwannee River basin, around Lake Okeechobee, and
elsewhere we are arriving at cooperative strategies to clean up
Florida's waterways.
Clearly, the TMDL program has a crucial role to play in point
source and nonpoint source pollution control by providing water quality
targets that both sources must work to achieve. However, implementing
the nonpoint source components of TMDLs is best achieved through a
combination of regulatory and non-regulatory efforts. Water quality
objectives are most rapidly brought about by consensus, with regulators
cooperating closely with stakeholders to develop best management
practices and other water quality protection measures while accounting
for the practical and financial limitations of these stakeholders. We
believe the prescriptive approach outlined in the proposed revisions
would prove ineffective and serve only to discourage partnerships and
cooperation. In addition, the revisions seriously undermine the roles
of State and local governments in watershed management. While we
understand EPA's concerns about the various lawsuits that have plagued
the TMDL program, the proposals aimed at backstopping State permitting
and TMDL development efforts are counterproductive.
A second key concern is that EPA has not adequately accounted for
the costs associated with implementing the proposed revisions. As
required by the Regulatory Flexibility Act, as amended by the Small
Business Regulatory Enforcement Fairness Act, the Federal Unfunded
Mandates Reform Act, and Executive Order No. 12866; EPA should conduct
a full accounting of the costs to implement the proposed revisions,
including costs to the private sector and State and Federal
Governments. We recognize that EPA need only address the incremental
costs of these revisions rather than the costs of the TMDL program as a
whole. However, the proposed requirement to develop implementation
plans alone will cost States and local governments tens of millions of
dollars and the proposed expansion of regulatory authority to
silvicultural activities will increase costs to the private sector by
even more. If the incremental costs for Federal agencies (both the USDA
and EPA) also are included, costs would easily exceed $100 million
annually. Both Congress and the States deserve a thorough, accurate
evaluation of the costs of the proposed revisions before final
decisions on these regulations are made. EPA must recognize States as
full partners in water quality protection and focus on funding
strategies to support State programs.
Federal funds have been critical to controlling point source
pollution in the past and will be even more critical to nonpoint source
pollution control. We urge the development of a substantive funding
program to underwrite the planning, design, and construction of
nonpoint source projects and the development and implementation of
effective management practices. We agree with the State of Georgia that
it is time to place the financial resources along with responsibilities
for water resource protection in the hands of local government.
Our third fundamental concern is that the proposed revisions add
many unrealistic expectations to the TMDL program, the rationale for
which is not clear. The State of Florida fully understands its
responsibilities to develop and implement TMDLs in a timely manner.
However, the proposed revisions create a process-laden TMDL program
that is not workable, goes well beyond the requirements of Section
303(d), and will impede ours and other States' efforts to improve water
quality. A prime example of these unreasonable expectations Is the
inclusion of implementation plans as a required element of TMDLs.
States simply cannot develop Implementation plans with each TMDL in the
proposed 15-year timeframe. Furthermore, the required scope of
reasonable assurance for nonpoint source control is not possible given
the limited funding for nonpoint source activities and projects. While
we agree that implementation plans are important, they should be
developed separately from, and subsequent to, TMDL development.
Considerable additional time and creative effort will be needed to
reach consensus on the most effective set of options to achieve water
quality standards in a basin. EPA should give the States at least 18
months after TMDL approval to develop an implementation plan. This time
also would give local governments and private entities the time needed
to secure funds for restoration activities.
In closing, the State of Florida Department of Environmental
Protection opposes the regulations as drafted. They are needlessly
bureaucratic, trapped in an archaic regulatory framework, loaded with
unrealistic demands, and completely unfunded. EPA needs to reconsider
the entire proposal and initiate renewed efforts to work with the
States to create a viable approach, especially to address nonpoint
source pollution. Florida has developed and adopted in statute a
program to restore impaired waters that parallels the best elements in
the proposed regulations. EPA should modify the regulations based on
our comments and those of our partner States in order to strengthen
State programs rather than compromise them. As written now, the
regulations cannot be implemented and will hinder the restoration of
our nation's waters.
Sincerely,
David B. Struhs,
Secretary.
______
Statement of Norman E. LeBlanc, Chief, Technical Services, Hampton
Roads Sanitation District, Virginia Beach, VA, Presented on Behalf of
the Association of Metropolitan Sewerage Agencies
introduction
Mr. Chairman, Senator Reid, and members of the subcommittee, my
name is Norm LeBlanc. I am Chairman of the Water Quality Committee of
the Association of Metropolitan Sewerage Agencies (AMSA). I also have
served on the front lines of the campaign to clean up our nation's
waters for nearly 30 years, the last 20 years managing the
environmental and Clean Water Act permitting and compliance programs
for the Hampton Roads Sanitation District in Southeastern Virginia.
I greatly appreciate the opportunity to share with you today the
experiences of the wastewater treatment community with regard to the
Clean Water Act and, more specifically, the Total Maximum Daily Load
(TMDL) program. AMSA represents the interests of more than 240 publicly
owned treatment works (POTWs). AMSA's members treat 18 billion gallons
of wastewater every day and provide service to the majority of the
United States' sewered population. In addition to their primary
responsibility for treating the Nation's domestic and industrial
wastewater, member agencies play a major role in their local
communities, often leading watershed management efforts, promoting
industrial/household pollution prevention and water conservation, as
well as developing urban stormwater management programs.
AMSA's members hold National Pollutant Discharge Elimination System
(NPDES) point source discharge permits under the Clean Water Act. Many
of AMSA's members throughout the country are located on water bodies
that have been listed as ``water quality limited segments'' under
Section 303(d) of the Clean Water Act. As major point source
dischargers, AMSA members have been active participants in EPA's
process to develop and implement the TMDL program. An AMSA member
served on EPA's Federal Advisory Committee on TMDLs. In fact, this
issue is so important to us, that AMSA is now an intervenor/defendant
in an important TMDL court case in California Pronsolino v. Marcus.
AMSA supports a revised TMDL program that would encompass both
point and nonpoint sources of impairments to our country's water
bodies. We also support requirements for implementation plans and for
an open public participation process, as they are essential components
of a successful TMDL program.
During the past 30 years, point sources of water pollution--
wastewater treatment plants, industry, and others--have been meeting
the challenges of the Clean Water Act to achieve our national clean
water goals. The investment in wastewater treatment has revived our
rivers and streams, and the Nation has experienced a dramatic
resurgence in water quality. Point sources are strictly controlled by
the Clean Water Act. Discharges without permits are punishable by fines
or imprisonment, and wastewater quality is continually monitored and
reported to State and Federal regulators. A combination of tough laws
and regulations along with Federal, State and local dollars has
resulted in the water quality gains of the past 30 years. However,
according to the U.S. Environmental Protection Agency (EPA) 40 percent
of our waters still do not meet water quality standards--due largely to
nonpoint sources of pollution.
While point sources of water pollution are easily identified and
highly regulated facilities, nonpoint sources are subject to only
limited accountability and controls. Agriculture, according to EPA, is
responsible for degrading 70 percent of the country's impaired river
miles and half the impaired lake acreage. Nonpoint source pollution
closes beaches, contaminates or kills fish, destroys wildlife habitat
and pollutes drinking water. The current systems to control nonpoint
sources include a wide variety of State and Federal regulations that
are largely incentive-based, voluntary programs. For the environment
and the economy, we must stop the flow of nonpoint source pollution
into our nation's rivers and streams by making these sources
accountable for their fair share of pollution.
As veterans in the water pollution field, we are sympathetic to
gaps in our economic and scientific data, lack of funding and the
absence of a consistent, comprehensive mechanism for monitoring and
regulating those responsible for nonpoint source pollution. However,
point sources in Virginia, or Idaho or New Hampshire--and around the
country--can no longer carry the burden alone. POTWs must be joined by
others in their communities--the farmers and ranchers, foresters and
miners--in a renewed commitment to clean up impaired waterbodies. This
effort to achieve water quality goals must include fair share
allocation of pollution reduction and enforceable regulations. Let me
reiterate, AMSA recognizes the concerns of the nonpoint source
community with respect to implementing TMDLs and we fully support the
need for flexible, cost-effective and reliable management practices. We
also know additional data is needed, as is increased funding to support
these watershed efforts. However, true water quality gains can only be
realized if nonpoint sources are held accountable for their share of
water pollution. Remember that the pollutant load from each nonpoint
source that is not controlled must be reallocated to every other source
within the watershed.
The inclusion of nonpoint sources of pollution is even more
critical considering the amount of money local governments continue to
expend in order to meet tough new Clean Water Act requirements. In
addition to specifying treatment requirements for domestic, commercial
and industrial wastewater, the Act requires cities, towns and counties
to reduce the impact of wet weather storm flows and to bring impaired
waters into compliance with State and Federal water quality standards.
As POTWs endeavor to finance and meet the latest water quality goals
aimed at reducing impairments caused by combined sewer overflows,
sanitary sewer overflows and storm water events, they also face the
enormous costs associated with maintaining our current wastewater
infrastructure.
Although it is hoped that responsibility for attaining water
quality standards and requisite pollutant loads will be equitably
allocated among point and nonpoint sources of pollutants, POTWs are
concerned that a revised TMDL program's additional restrictions on
point source discharges are likely to be the most heavily weighted part
of the TMDL equation. Failure of a waterbody to meet water quality
standards, for any reason, will inhibit the ability of municipal or
industrial point sources to expand and grow. If States ultimately are
not authorized to develop TMDLs that require load reductions from
nonpoint sources, EPA and the States will be forced to rely exclusively
upon point sources to secure the pollutant load reductions necessary to
meet water quality standards. Such load reductions would be achieved
through the imposition of stricter effluent limitations on NPDES permit
holders, including POTWs. Cities, towns, counties, and AMSA members
would then be forced to find and spend enormous sums of money on
additional controls that will not, in many cases, attain water quality
standards.
positive aspects of epa's proposed tmdl rule
AMSA has identified some positive aspects of the TMDL proposal that
should be retained in the final rule. These provisions include the
imposition of equitable controls on both point and nonpoint sources,
the requirement to include implementation plans as part of a TMDL, and
the requirement for States to develop methodologies for listing and
priority ranking.
The proposed TMDL rule makes it clear that the control and
reduction of loadings from nonpoint sources is a critical component of
the TMDL program. Specifically, AMSA recommends that proportionate
share responsibilities be adopted in the allocation of pollutant
loading reductions. AMSA also recommends that the TMDLs for blended
waters (those waterbodies impaired by both point and nonpoint sources)
make clear that compliance schedules for both point and nonpoint
sources are implemented in parallel.
AMSA supports EPA's proposed requirement that States publicly
develop a methodology for evaluating all existing and readily available
data and information in the listing and priority ranking process.
Dischargers have often questioned the reasons for listing waterbodies
and the proposal will allow local stakeholders, who typically are in a
good position to provide data and input into the process, to assist in
the proper application of data and scientifically valid methodologies.
AMSA also supports requiring implementation plans for TMDLs.
However, we believe that States should first be required to review and
assess the attainability of the water quality standards for an impaired
waterbody prior to developing a TMDL. Once TMDLs are established,
implementation plans are critical if the TMDLs are to accomplish their
objectives. Without such plans, TMDLs become mere exercises in
mathematical modeling, ending up as part of the water quality planning
process, and never reaching the administration and enforcement stage.
If States fail to implement the plans, EPA should have the authority to
enforce TMDL implementation plans on all sources.
It is also critical that sufficient data of appropriate quality and
coverage be available as a basis for TMDL listing and development.
Considering the implications, it is imperative that TMDLs be developed
in a rigorous and scientifically sound manner. The proposed regulations
do not specify minimum standards for the quality and quantity of data
that is necessary to list waters or establish TMDLs, wasteload
allocations (WLAs) and load allocations (LAs). We believe EPA should
require that data used in the TMDL process meet certain standards.
Neither EPA's current nor proposed regulations and guidance specify
minimum data quality or quantity requirements for listing waterbodies
as impaired or for establishing TMDLs. Currently, this lack of guidance
has led to the listing of many impaired waters based upon outdated and
limited data (e.g., one data point) or very poorly developed TMDLs.
Minimum data requirements for the listing of impaired waterbodies and
the development of TMDLs must be established.
AMSA fully supports all of the Proposed Regulation's public
participation provisions, found at Sec. 130.37. The public
participation provisions will open up the TMDL process to the benefit
of all of the stakeholders. It will allow the public and dischargers to
understand the details of how the TMDL was developed.
CONCERNS WITH EPA'S TMDL PROPOSAL
While supportive of some of EPA's proposed changes, AMSA does have
major concerns with the overly broad approach EPA has chosen for
listing criteria and the expansion of authority in the permit issuance
process. AMSA believes EPA's proposal inappropriately expands its
authority to require listing of waters under Sec. 303(d) for conditions
such as: exceedences of drinking water Maximum Contaminant Levels
(MCLs), threatened waters, fish advisories, antidegradation, and
pollution. Listings should be limited to impairments caused by
pollutants from either point or nonpoint source water discharges that
are controllable under the Clean Water Act, and should recognize that a
``comprehensive accounting of all water bodies'' should be accomplished
under Sec. 305(b) rather than Sec. 303(d) in accordance with
Congressional intent. Listings must also be based on properly
promulgated water quality standards with appropriate public review and
comment.
We believe EPA also has expanded its statutory authority in
requiring the listing of all waters impaired by either pollutants or
``pollution.'' The TMDL language of the Clean Water Act at
Sec. 303(d)(1)(A) does not authorize the listing of water bodies
impaired by ``pollution.'' Listings are authorized where effluent
limitations are insufficient to achieve water quality standards.
Listings should be limited to impairments caused by pollutants from
point and/or nonpoint source water discharges that are controllable
under the Clean Water Act.
The ``comprehensive accounting of all water bodies'' should be
accomplished under Sec. 305(b) rather than Sec. 303(d). Section 303(d)
is only one narrow tool in a much broader toolbox of remedies and/or
solutions to water quality problems. The Clean Water Act intended for
Sec. 305(b) to be the repository for all State water quality
information. It not only requires the States to provide water quality
information about all its waters but also requires them to view water
quality problems from a broader, more holistic approach. It was
Congress' intent that Sec. 305(b) serve as the comprehensive accounting
of all water bodies that have water quality problems.
AMSA also has major concerns with the proposed changes to the NPDES
Program and Antidegradation Policy. Dischargers wishing to increase
loadings to TMDL listed segments should not be bound to a 1.5 to 1
offset as proposed in Sec. 131.12. The ``reasonable further progress''
concept helps to improve the waterbody pending TMDL completion; the
offset requirement conflicts with that goal. Reasonable further
progress should be encouraged and should remain as flexible as
possible. Further, the decision as to what constitutes ``reasonable
further progress'' should be determined by the States. States should
have the flexibility to decide what action to take; if there is little
impact from the increased discharge on the waterbody, studies or
additional monitoring may be appropriate. The offset provisions in the
proposed rule also could cause special problems in suburban areas where
growth pressure is the greatest. Small package treatment plants could
proliferate. These small systems would be exempt and could create new
and unanticipated water quality problems.
When assessing restrictions on new discharges, the regulations
should recognize that additional loadings from a point source may or
may not affect the impairment of uses due to the relatively low
contribution from the point source. Therefore, any offset provision
must be pollutant and site-specific. Furthermore, restricting offsets
to only ``large'' POTWs or industries is arbitrary and not related to
water quality. EPA should consider any increase less than 20 percent
over current ambient levels to be imperceptible both analytically
(within precision of methods) and environmentally; the size of the
facility is irrelevant to the environment.
Existing permit limits should remain in place until a properly
developed TMDL is completed and approved. Unfortunately, POTWs are
facing revised permit limits as soon as the waters are placed on the
303(d) list--even before the TMDL process has begun. Limits should not
be revised until the TMDL is finished and the final allocation is made.
Municipalities and POTW operators must have a defined, long-range plan
for improvements at the treatment plant. If permit conditions are
changed during permit renewal prior to the completion of the TMDL,
resources will be wasted. This is due to the possible need to begin
construction first for the renewed permit and then again at the
completion of the TMDL. The two construction projects that typically
last for a few years each may not complement each other but may
actually require the removal and installation of different equipment.
It is essential that POTW operators have definitive long-term plans
that they can act on efficiently.
AMSA also is concerned over the lack of flexibility in implementing
control measures in the proposed rules. EPA has emphasized, to the
exclusion of all other mechanisms, the requirement that all control
measures be implemented as NPDES permit limits. This exclusive reliance
on permit limits fails to recognize that there may be more effective
and less costly alternatives for implementing TMDL requirements for
both point and nonpoint sources. While we concur that EPA needs the
authority to impose permit limits on sources that fail to cooperate in
the TMDL process, the imposition of limits should be considered the
least favored option and one of last resort.
Finally, AMSA believes that all costs of the proposed rule--to the
Federal Government, to State and tribal governments, to local
governments, and to point and nonpoint dischargers--must be calculated
by EPA. EPA's estimate of the incremental annual cost of both the TMDL
and permitting regulations of $90 million ignores the costs to develop
TMDLs, which could be upwards of $4 billion (40,000 TMDLs nationwide at
a conservative $100,000 each). It also ignores the costs of additional
controls on point and nonpoint sources. In some instances, costs may be
unquantifiably high. It is essential that the Congress and the American
people have an accurate accounting of the costs of the TMDL program.
VIRGINIA'S EXPERIENCE
Hampton Roads Sanitation District in Southeastern Virginia is an
active partner in the Chesapeake Bay Program. This program is an
excellent example of a cooperative, non-regulatory program that is
successfully addressing water quality issues in a large, diverse,
interstate watershed. The process has served as a model for determining
the causes of water quality impairments and for providing forums on
addressing those impairments. The non-regulatory approach of the Bay
Program has resulted in a flexible process that allows for new
scientific findings to be incorporated into management decisions. In
addition, HRSD has been free to explore non-regulatory control
strategies. These strategies cost less and can be implemented much
sooner than if controls were implemented as NPDES permit limits.
Unfortunately, the EPA 303(d) listing of the Chesapeake Bay for
TMDL development is threatening the progress that we have made to date.
Some participating sources are now questioning the wisdom of signing
agreements with the States to build new infrastructure under the
current non-regulatory Chesapeake Bay Program. These sources question
whether the expenditure of their resources now will satisfy a TMDL in
the years to come. EPA must include in their revised TMDL rule a
mechanism for recognizing existing, successful programs like the one
that is restoring the waters of the Chesapeake Bay. If the current
Program is not allowed under a new TMDL rule, it will delay the
implementation of timely, cost-effective controls and could lead to
delays in enforceable NPDES permit limits as sources may challenge the
basis for the permit requirements.
I want to emphasize that EPA should have the ability to impose
NPDES permit requirements on all contributors to water quality
impairment, both point and nonpoint sources. The Bay's non-regulatory
program works because there exists a firm understanding that all
responsible parties must participate in controlling their fair share of
pollutants in the Bay. The success of this effort is due, in part, to
public education. However, a large part is dependent upon the
regulatory backdrop against which the program operates. Currently,
point sources that do not participate in the Chesapeake Bay program,
who do not sign agreements or implement controls, are subject to the
more costly and cumbersome NPDES permit limits. Similar requirements
must be applicable to nonpoint sources as well, if the waters of the
Bay are to be restored to their beneficial uses. The Chesapeake Bay
cannot be restored unless all sources of pollutant loadings participate
in a program. The backdrop of NPDES requirements ensures maximum
cooperation from all parties.
WATER QUALITY IN THE 21ST CENTURY
EPA's TMDL proposal marks a significant change in emphasis for the
national water program and accelerates an ongoing trend from technology
to water quality-based approaches to water quality management.
With this shift in program emphasis to water quality-based
controls, one critical aspect of the EPA proposal that is notably
missing is a clear linkage between the TMDL rule revisions and water
quality standards use reviews and revisions. In July 1998, EPA released
its Advanced Notice of Proposed Rulemaking (ANPRM) on the Water Quality
Standards (WQS) Regulation and solicited comment on the need for
regulatory or policy changes to the water quality standards program.
One of AMSA's main comments in response to that proposal was that many
current water body uses were originally, and still are, inappropriately
designated due to a lack of or deficient ``attainability'' assessments.
The entire focus of the TMDL program is to achieve a specified
designated use by achieving the water quality standards necessary for
that use to exist. Many uses, and criteria to protect the uses, were
established in the 1960's and early 1970's without much scientific
analysis, with little or no policy debate and, certainly, without the
regulatory consequences that exist today. They were, in essence, ``wish
lists.'' Now that those wish lists have become a reality, officials are
finding out that, in many cases, the designated uses of individual
water bodies don't make any sense. Before we spend billions of dollars
and millions of hours nationwide on TMDLs we need to ensure that our
water quality goals--our designated uses--are both achievable and
sensible from an economic, scientific and political point of view.
Further, we need to review our water quality criteria and determine
their appropriateness for the designated waterbody. That is why we
strongly urge EPA to revisit the water quality standards before we
embark on a nationwide TMDL effort.
Unfortunately, under the current and proposed TMDL rules, EPA has
made it virtually impossible to re-designate the use of a water body.
The agency has set an extremely high burden that must be reached before
a standard can be changed. Again, this simply makes no sense. AMSA,
therefore, urges common sense--that the TMDL program start at the
beginning with an unbiased, scientific look at what is achievable in
order to understand the costs and benefits of reaching specific water
quality goals. EPA has indicated that it will be releasing proposed
changes to the water quality standards regulation in September 2000.
However, EPA has also indicated that designated use reviews and
modifications will not be included in these regulation changes. AMSA
has proposed to EPA that final promulgation of the TMDL regulations
move forward only when revisions to the WQS program, which include an
emphasis on reviewing and refining designated uses, are completed.
CONCLUSION
As we look ahead to future revisions in the water quality standards
programs, our focus must shift to a more comprehensive approach to
clean water goals. Addressing the control of costly, more complex and
diverse sources of pollution will require both creativity and
flexibility. Many of those involved in water policy issues believe that
continued water quality improvements can only be met by changing the
way water programs are managed. Comprehensive watershed management has
been identified as the most cost-effective, environmentally sound
approach to address the remaining sources of water quality impairment
without breaking the bank. Its consistent national application will
allow stakeholders to work together to tailor solutions to the problems
at each site. Simply put, watershed management targets resources to the
highest priorities.
In conclusion, AMSA's member wastewater treatment agencies have
consistently and persistently worked to achieve full compliance with
the goals of the Clean Water Act. We have learned from experience that
the only way to continue to improve water quality is to address the
needs of the watershed as a whole, make all sources of pollution
accountable for their loadings, and to fully fund the activities
necessary to achieve our latest clean water goals.
As a further resource on POTWs and TMDLs, I invite you to contact
AMSA's Washington office to get a copy of AMSA's TMDL ``survival
guide'' for wastewater agencies, entitled: Evaluating TMDLs . . .
Protecting the Rights of POTWs. On behalf of my municipal wastewater
treatment colleagues, I thank you for the opportunity to speak before
this subcommittee.
______
Statement of Joan M. Cloonan, PhD., J.D., Vice President, Environment &
Regulatory Affairs, J.R. Simplot Company Food Group
Good morning, Mr. Chairman and members of the committee. I am Joan
Cloonan, Vice President for Environment and Regulatory Affairs of the
J.R. Simplot Company Food Group. The J.R. Simplot Company is a
privately held agribusiness corporation based in Boise, Idaho. It
employs more than 12,000 people in the United States, Canada, Mexico,
Australia and China. Simplot is one of the world's largest processors
of frozen potatoes, turning out more than 2 billion pounds of French
fries and other potato products annually. It is one of the nation's
largest producers of beef cattle and a major manufacturer of
agricultural fertilizers with markets in the United States, Canada and
Mexico.
I am speaking today on behalf of the Northwest Food Processors
Association, a regional trade association representing the fruit,
vegetable and specialty processing food industry in Idaho, Washington
and Oregon. Food processing is the largest manufacturing employment
sector in the State of Idaho and the second largest manufacturing
employment sector in both Washington and Oregon. Food processors in the
region operate 247 processing plants, employ over 50,000 individuals
and realize over $6 billion in annual sales.
As part of my written testimony I have provided copies of the
comments on the TMDL rule submitted by the Northwest Food Processors
Association as well as those submitted by FIEC, the Food Industry
Environmental Council, a coalition of more than 50 food processors and
food industry trade associations. I am not addressing all of the issues
raised in those comments, but would be happy to answer questions
regarding them.
Food processors fully support the goals of the Clean Water Act to
restore and maintain the quality of the nations waters. We are
supportive of the general concepts that we believe motivated the
proposed regulations.
The proposed regulation states: ``The Water Quality Management
(WQM) process described in the Act and in this regulation provides the
authority for a consistent national approach for maintaining, improving
and protecting water quality while allowing States to implement the
most effective individual programs.'' This is an admirable goal, but we
believe that the proposal unreasonably limits the States' discretion in
how they would achieve the overall goals of the program.
The Pacific Northwest States have assumed a strong leadership role
in the establishing and funding programs to meet Clean Water Act
requirements, including preparation and implementation of TMDL
programs. All three States are committed to preparing TMDLs for all
State water bodies listed as water quality impaired within timeframes
dictated by litigated agreement. It is important to recognize that
although some Federal funding has been provided to States for the TMDL
programs, the current programs are primarily funded by State moneys.
We believe that the TMDL should be a State-managed program. State
control fosters efficient management by recognizing that the States are
best equipped to provide the day-to-day oversight and monitoring needed
to identify and correct water quality problems. We are concerned that
the proposed rules would significantly change the program from its
current focus on State management by imposing strong new Federal
oversight provisions that do not serve us well in achieving clean water
goals.
In the State of Idaho program, stakeholder groups work with our
Division of Environmental Quality to help them develop TMDLs. The
stakeholder group is charged with development of the implementation
plan within 18 months of approval of the TMDL. The implementation plan
is not now subject to EPA approval. The proposed system would include
the implementation plan as part of the TMDL and add significantly to
the time for development of the TMDL. In addition, EPA can refuse to
approve an implementation plan until it is satisfied that the State has
sufficiently strong authority to achieve water quality standards. Under
this proposal EPA expands its authorized authority over nonpoint
sources by its ability to withhold TMDL approval, holding the State and
point sources hostage to the TMDL process.
Under the proposed offset provision, listed water bodies cannot
accept new or significantly increased discharges of the water quality
limited constituent unless mandatory effluent trading or ``offsets''
occur. The offset requirement precedes and may even replace the
preparation of a TMDL. Effluent trading may potentially place a
disproportionate burden on point sources inconsistent with the equity
considerations of the TMDL process. We support voluntary effluent
trading and oppose any water clean-up program that mandates or coerces
private parties into effluent trading.
The State of Idaho is in the forefront working with EPA on the
development of a voluntary effluent trading program. The process has
proven to be complicated but this voluntary pilot program could provide
a model for the rest of the country. The first model trades will
involve a point source and a nonpoint source. Key concepts are: local
control, market-based pricing, appropriate ratios. This process will
encourage and finance nonpoint source projects such as constructed
wetlands, which otherwise might never happen. Quantification can be
broad and based on the type of project, with a conservative reduction
credit, or monitored, with liberal reduction credit. The trade ratios
will be dependent on the relative locations of the trading partners. We
believe this will provide a flexible and economic mechanism to meet
environmental responsibilities.
We agree with the conclusion reflected in section 130.34 that daily
loads are inappropriate for certain pollutants such as nutrients,
sediment, and temperature.
We concur with the distinction between pollution and pollutant. It
appropriately narrows the scope of TMDLs by recognizing the
impracticability of dealing with pollution via the quantitative
analysis of a TMDL. The background provided by EPA makes it clear that
this change is specifically designed to exclude flow and habitat
alteration from the scope of TMDL. Pollution should be addressed by a
process or processes separate from TMDLs. Listing water bodies for
pollution under this process, however, diverts States' resources from
the task Congress clearly intended: listing of water bodies impaired by
pollutants.
The prioritization requirements in section 130.28 are highly
prescriptive and could result in a meaningless priority list, with most
of the waterways of the State being designated high priority because of
the presence of any of several listed species. The section also
requires a fairly substantial written justification for each decision
to start a TMDL.
Should threatened water bodies be listed? The statute does not
require the listing of threatened water bodies; it requires the listing
of bodies where data show that certain effluent ``are not stringent
enough to implement any water quality standards applicable to such
waters.'' The statute does not support the Agency's conclusion that
water bodies should be listed because there is some possibility that
standards will not be attained. The States would be required to predict
which water bodies now meeting standards might not meet standards in
the future, and then defend those uncertain predictions when they are
challenged.
Instead of requiring the listing of threatened water bodies, EPA
should encourage States to identify water bodies that they believe are
threatened and to take appropriate actions to assure that they do not
become impaired.
EPA should reconsider its attempt to expand its authority into
traditional State regulatory areas. It is important to look to the
entire Clean Water Act, with its balance of State and Federal
authorities for achieving clean water goals, rather than to force the
TMDL program to achieve these goals on its own in a complex and
prescriptive program. We believe that the better course is to work
cooperatively with the States and the regulated community affected by
the rules and we look forward to working with both the State and EPA on
these important goals. We look forward to the balance between the
certainty of a consistent Federal program and the flexibility and
efficiency of an effective State-managed program.
Thank you for the opportunity to address you today. I will be happy
to answer any questions.
______
STATEMENT OF THOMAS THOMSON, NEW HAMPSHIRE TREE FARMER, CHAIR, POLICY
COMMITTEE, AMERICAN TREE FARM SYSTEM
Good morning. My name is Tom Thomson. I'm a Tree Farmer from New
Hampshire and chairman of the policy committee for the American Tree
Farm System.
I'm grateful for the opportunity to be here today. Our properties,
the Thomson Family Tree Farm, cover 2,600 acres of working, sustainable
forests. They're managed by my family--including Sheila, my wife of 33
years, and my 22-year-old-son Stacey, whom I am honored to represent
here today.
But I also want to speak today on behalf of 66,000 other family
forestland owners who are members of the American Tree Farm System--
founded in 1941 and now the nation's largest and oldest forest
certification program for small, private landowners. Together, we Tree
Farmers own nearly 25 million acres of diverse and growing forests.
That a lot of trees. But it's only a fraction of the 405 million
acres of forests owned by 9.9 million individual citizens and families
in the United States. It's those individuals and families not industry
and not government--who are the true ``majority owners'' of America's
forests.
And it's those individuals and families--and the forests they have
tended--who stand at risk because of EPA's ill-considered policies on
TMDL and their decision to regulate forestry activities as a point
source of pollution.
Sitting right behind me today are four other Certified Tree Farmers
from around the country--Anitra Webster from Virginia, Wilson Rivers of
Florida, Bill Lawhon from Ohio, and Greg Daley of New Jersey.
They are joining me today because Tree Farmers all over this Nation
are opposed to EPA's proposed rule. I know many of you have seen a list
of 200 or so people who are opposed to S. 2041 and S. 2139--legislation
that would prevent EPA from designating forestry as a point source.
They call it a ``special interest loophole.''
They're wrong. The attached list contains the names of over 3,000
Certified Tree Farmers--people who own perhaps 80 or 100 acres of
forest, who have invested and cared for the land. All of them took the
time to contact EPA and urge Carol Browner to withdraw the rule. The
Tree Farm leadership from almost every forested State in the Nation has
written their Congressional delegation. In some ways, our interest is
special; we believe in good stewardship and then work to do something
about it. And we believe Congress was right all along: forestry simply
shouldn't be considered a point source of pollution.
Three months ago, most of us didn't know exactly what a TMDL was.
But each of us knew quite a bit about water quality and forestry.
Every Certified Tree Farmer--all 66,000 of us--has made a written
pledge to grow the wood our Nation needs while protecting water
quality, soil and wildlife habitat. Each of us has pledged to meet or
exceed State best management practices. Many of us provide recreation
opportunities for our neighbors--a place to hike, watch the leaves
change colors, fish or hunt. And our Tree Farms are inspected every 5
years by professional foresters to assure we meet the high standards of
the American Tree Farm System.
I'm proud to say that Certified Tree Farms are among the most
beautiful, best managed forests in the United States.
And we are enthusiastic about preaching what we practice. Many of
us work with our State agencies and with our State Tree Farm Committees
to help educate other landowners about the importance of following BMPs
and practicing the best kind of sustainable forestry.
With this kind of aggressive, private and voluntary stewardship, it
is no surprise that water quality issues related to forestry are small
and getting smaller.
Compliance rates now approach 90 percent in many of the
States where BMPs are in place.
Total river and stream miles impaired due to silviculture
declined 20 percent between 1994 and 1996.
The number of miles deemed to have ``major impairment''
from silviculture fell 83 percent.
In 1996, EPA dropped silviculture from its list of 7
leading sources of river and stream impairment.
That same year, silviculture contributed only 7 per cent
of total stream impairment.
We are proud of this record, and anxious to work with our State
agencies the people who know our land and water best--to do an even
better job in the future.
But, from where we stand, EPA's proposal to designate forestry
activities as a point source of pollution will make it harder, not
easier to do that job. We see this as a clear case where ``trying to
fix it will break it.''
Let me explain.
Owning and managing forestland is risky business. It is definitely
not for the faint-hearted. Two years ago on January 8, a massive ice
storm stunned four northeast States, and caused hundreds of millions of
dollars of damage to forests. Two months before that storm, our own
Tree Farm was recognized as the Outstanding Northeastern Tree Farm for
1997. Three days after the storm, 900 acres of prime forestland were
devastated. Our legacy to our son Stacey lay on the ground, broken
under the weight of tons of ice.
Today we are working tirelessly to repair the land. It will take a
whole generation to restore our forests.
Every other Tree Farmer faces the same kind of challenge perhaps
from fire, or insects, or drought and disease. But most of us are
willing to make the best of it, or at least try.
What do we need to succeed?
First, the flexibility to conduct our timber operations when the
time is right--and that time may be when we need money to pay for
surgery or college tuition or retirement. Or it may be when market
conditions are just right and we can get the kind of return we want on
our investment. Or it may be, as it is for us, when we're racing
against the clock to retrieve some value from our ice-damaged timber
before it's lost to insects and rot.
Second, we need the opportunity to work with the State forestry
agencies that know us . . . and the land . . . best. Landowners have
worked with these agencies to establish BMPs. We work with these
agencies to assure that compliance is where it should be. Where it
isn't, we've worked to find ways to improve it--and I know we will
continue to do so in the future. EPA already reviews and approves BMP
programs. Why not continue down this road that's already taken us so
far.
The alternative EPA proposes is--plain and simple--a Federal
regulatory program that reaches far beyond ``bad actors'' to virtually
every forest landowner, including the millions of people like me whose
forest practices improve the environment, not hurt it.
What happens if we're faced with this radical departure in law and
policy? Requiring us to get a permit will likely cost us money, even if
it's simply to qualify under a general permit. It will almost certainly
take time. And, if my friends are right about the inevitability of
citizen suits gumming up the whole process, that time might stretch out
to forever.
In other words, practicing sound sustainable forestry won't get
easier; it will get harder. Especially today, when urban sprawl is
sending the value of forestland into the stratosphere and developers
call week after week with offers to buy up your Tree Farm, then pave
it.
So far we've just said no. But others may not be able to--
especially if they're faced with more red tape, higher costs and a
Federal permitting system that could lead, ultimately, to lawsuits from
faraway places trying to stop the one timber harvest they might plan
every decade.
I know that EPA officials claim they will only use permitting in
extreme cases where damage to water quality is severe and State
programs are not effective. But lawyers who have studied the issue
claim that case law will make it very difficult for EPA ultimately to
prevent the designation of all forestry operations as subject to point
source discharge permits, once they have started down the road they
propose.
Under these circumstances, many landowners might do what Thomas
Dowd--a Certified Tree Farmer from Massachusetts--wrote on January 8 in
a letter 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.''
This is no idle threat. In my own home State of New Hampshire, more
and more forestland is falling under developers' bulldozers every year.
In 1983, 87 percent of New Hampshire was covered by forests. In 1993,
that number had dropped to 83 percent. By 2020, even the most
optimistic survey by the Society for the Protection of New Hampshire
Forests has that number falling to 80 percent.
That's a lot of trees, about twice as much forest cover as we had
100 years ago. But, best case, it still means we'll lose about 150,000
acres of forest in the next 20 years just in my little State--most of
it developed, replaced by homes, shopping centers and parking lots.
No one would argue that this is good for water quality or the
environment. It's not.
So what about Thomas Dowd, and me and countless other landowners
who simply aren't inclined to sell? EPA and Congress can make it easier
for us to say no--much easier--by getting rid of red tape, not adding
to it. Don't impose a Federal permitting system.
You can make it easier for us to do even more for water quality by
directing a larger share of Section 319 funds to forest landowners for
improvement projects. Right now, only 2 percent of those funds are
devoted to forestry. Help us expand our heritage of voluntary, private
stewardship. Make it possible for EPA to invest public resources in the
kind of citizen initiatives that have already worked for decades.
Over the past 60 years, our American Tree Farm System and the
66,000 landowners who've pledged to meet its standards, have made
enormous strides in conserving our forests and water. It is a record we
should celebrate, not regulate--and we invite you to join us.
______
Pine Knob Farm,
Whitefield, NH, March 13, 2000.
Mr. Tom Thomson,
Orford, NH.
Dear Tom: Forwarded is a copy of the letter we sent to the EPA
regarding the proposal to designate forestry operations as a point
source for pollution. We were pleased to learn that you will be going
to Washington to testify before the Fisheries, Wildlife and Water
Subcommittee of the U.S. Senate's Public Works Committee regarding the
proposed change. We hope the members of this committee appreciate what
Tree Farmers and most woodland owners regardless of affiliations do to
improve water quality not degrade it.
Please provide a copy of our letter of January 17, 2000, addressed
to the EPA to the subcommittee and any other interested parties. We
trust that reason will prevail and that a non-partisan intervention by
the Senate and, hopefully, the House as well will insure that the EPA
withdraws this proposal as one which will do more damage than good to
our nation's forests.
Sincerely,
David W. Tellman.
______
Pine Knob Farm,
Whitefield, NH, January 17, 2000.
Comment Clerk for the TMDL Program Rule,
Environmental Protection Agency,
Washington, DC.
To Whom It May Concern: Do not designate forestry operations as a
point source for pollution. As Tree Farmers and as stewards of the land
we have tried our best to maintain or improve water quality, wildlife
and plant habitats as well as the quality of timber for eventual
harvest by our grandchildren.
Most of our more than 800 acres of forest grows on hydric soils. We
have limited timber harvests to frozen ground, but on occasion there is
a thaw during the operation which may cause some temporary run off.
Seldom has this affected any area beyond the immediate operation. Most
people would never see a problem, but we have shut down logging
operations until freezing temperatures return. We take other measures
as well to protect water quality during and after logging operations.
Most landowners and loggers, whether or not they are Tree Farmers,
follow the same procedures. As landowners we must live with the results
of what we do. We do not need more permits, analysis, fees or ``outside
experts'' telling us how to manage our land.
We have, for many years, encouraged school groups, various
organizations and individuals to visit our Tree Farm to see the way we
manage the land, to hunt, to hike or to cross country ski. We have
invited people to see logging operations in progress. No one has ever
questioned our care of the land, but two hikers did question the
cutting of ``all those beautiful trees''.
Regrettably we have a few people in our town and surrounding
communities who do not believe a tree should ever be cut whether in our
nearby White Mountain National Forest or on private land. These
individuals will welcome your proposed rules, especially the
opportunity to bring legal action against landowners for perceived
violations. It would only take a couple of well publicized cases not
only to curtail logging on private lands, but also to end good and
active stewardship on such lands. More private land now open to the
public will likely be posted against trespassing.
Encourage and assist private landowners to be good stewards of the
land. Do not promulgate new regulations which will in the long term
defeat what we all want to achieve--retention of open space, clean
water, clean air, a habitat that will sustain diverse wildlife and
plants alike and a place for people to enjoy. We are enclosing a copy
of the information sheet we give visitors to our Tree Farm. We would
welcome the opportunity to have one or more EPA folks visit and see for
themselves some of what we have done.
Sincerely,
David W. Tellman and Tanya S.
Tellman,
New Hampshire Tree Farm
#2112.
______
STATEMENT OF THE CHEVRON COMPANIES
We appreciate the opportunity to present our views for the record
to the Subcommittee on Fisheries, Wildlife, and Water of the Senate
Committee on Environment and Public Works. Chevron is the ninth largest
industrial corporation in the United States and the world's fifth
largest energy enterprise. We are an integrated oil company involved in
all aspects of the energy business: exploration, production,
manufacturing, transportation, marketing, and research. Chevron is an
environmentally responsible company and is often considered a leader in
implementing advanced water pollution controls. We take our
environmental responsibilities very seriously, and achieve high
standards. Chevron does support part of the proposed rulemaking
published August 23, 1999 on the Total Maximum Daily Load (TMDL) and
permit programs under the Clean Water Act. We share EPA's goals for an
open, scientifically sound program based on adequate data and run by
the States. However, we do have concerns about sections of the proposed
rule.
CURRENT ACTIVITY ON TMDL'S AND IMPACT ON CHEVRON
Prior to discussing the specific concerns about the rule, we would
like to take the opportunity to discuss a growing issue of concern. We
are becoming increasingly concerned that some of the EPA Regions are
beginning to implement the rulemaking prior to finalization, and in
some cases going beyond what would be provided in the regulations.
Notably, EPA Region IX is aggressively (and prematurely, we feel)
advancing the TMDL program in the San Francisco Bay when existing
operating permits at point source facilities, such as refineries, come
up for renewal (roughly every 5 years). It appears for some metals,
such as mercury, point sources will have to meet very stringent water
quality objectives at the end of the discharge pipe without any
dilution credit (even though point sources contribute less than 1
percent of the mercury load in the Bay). In this case, refineries have
already installed costly controls, and to meet the new tighter limits
will likely mean going to a zero discharge mode (total water recycle).
No refinery does this currently and it may not even be technically
feasible. It would involve using the treated wastewater in the cooling
towers and then eventually evaporating the residual waste brines and
hauling away many tons of salts and solid waste. For one of our
refineries, we estimate the capital cost would be over $80 million with
annual operating expense of tens of millions of dollars. There would be
no added environmental benefit to the Bay as a result of this action.
We believe that this Region, and perhaps others, are going beyond
current rules as well as overtaking and interfering with the State's
authority.
The TMDL program, as provided under current rules, should be
allowed to run its course as Congress intended to allow States to set
sound credible limits on sources, rather than EPA Region IX's arbitrary
and unscientific actions to force dischargers to zero. It should be
additionally noted that this is coming at a time when there are general
concerns about the impact of stringent environmental rules on the oil
industry, and how this translates into the additional costs of
producing gasoline.
IF CONGRESS WERE TO TAKE ACTION
We share many of the same concerns that the States have also raised
about the proposed rulemaking including workload, funding, and State
authority over implementation of the program versus Federal control.
The National Governors' Association (NGA) has put forward a policy
which outlines and asks Congress to address many of these issues. We
believe that the most helpful role for EPA is to use its vast resources
to develop sound technical guidance that States can use for such tasks
as developing TMDLs and load allocations.
If Congress were inclined to take some legislative action on the
TMDL program, we would like to suggest the following:
A. Reduce the Huge Workload of 40,000 TMDLs. If the States are to
submit 40,000 TMDLs, EPA Regional Offices will have to approve one TMDL
every workday for the next 15 years. Such a fast pace would make it
impossible for TMDLs to be grounded in sound scientific principles and
relevant data. Congress needs to help the States out of this bind by
sending a clear message that States can and should prioritize and re-
issue their lists of impaired waters and TMDLs using sound methods.
Further, Congress should ensure that EPA will not second guess State
de-listing decisions for waters in which only outdated, insufficient,
or poor quality data exist.
Even the environmental group NRDC said in their comments on the
proposed TMDL rule that they ``would rather see States develop fewer
comprehensive TMDLs than advance hundreds of inferior load limits'' (1/
20/00 letter to EPA docket). Listings should be for significant and
real impairments, not based on esoteric reasons such as ``not enough
grass on the stream bottom.'' Listings should be based on some
objective basis that ties in a meaningful way to what ultimate
``success'' should look like. More stakeholders will support the
program if they understand this ultimate goal and that the process is
sound and objective.
B. All Parties That Contribute to Impaired Waters Should be
Involved. There is a need to address fairly the role of all sources in
moving forward to improve impaired waters. To this end, the focus of
the TMDL program must shift from the point source dischargers to all
sources of pollution to our nation's waters. All parties must
participate in a timely and measurable way. It would not be equitable
to force one group of sources to again bear the brunt of further
allocation reductions while others are not held accountable for
significant contributions to water quality impairment. The National
Governor's Association appears to take a similar stance: ``A water
quality attainment plan should include an allocation for point and
nonpoint source reductions required to meet water quality standards . .
.'' ``States . . . may consider cost-effectiveness, technical
feasibility, and . . . point and nonpoint sources will be held
accountable for their respective allocated reductions'' (Section 3.2.1
in Ref. 1).
According to EPA, of the 20,000 impaired water bodies nationwide:
43 percent are impaired by non-point sources solely,
10 percent by point sources solely, and
47 percent are impaired by a combination of point and non-
point sources.
In our home State of California the numbers are even more
striking--only 1 percent of water bodies are impaired solely by point
sources. EPA's Assistant Administrator for Water, Chuck Fox, testified
before Congress on October 28, 1999 that ``pollution from factories has
been dramatically reduced. But runoff from city streets, rural areas,
and other sources continues to degrade the environment.'' It would be
helpful to clarify by law or expressions of intent that other methods
are needed when voluntary best practices (e.g., under CWA Section 319),
in combination with appropriate and reasonable point source controls,
are not sufficient to improve impaired waters.
A simple step (along the lines of NGA's position above) that would
be extremely helpful would be to require full investigation and
disclosure of all the sources' contributions to the impairment and a
rough estimate of the cost-effectiveness of controls on those different
sources. With such facts on the table, it is usually easier to reach
consensus on an implementation plan. We have seen this approach work
well in local air pollution programs.
C. Congress Shouldn't Have Courts Run the TMDL Program. EPA's
proposed TMDL rule gives States 15 years to develop TMDLs. Even though
many States say that time schedule would be very difficult given the
massive workload, court actions are setting even tougher 5- and 7-year
schedules. Whether or not EPA's rule is postponed or additional time is
granted to States, Congress should seek every available opportunity to
clarify its intent regarding the TMDL program. We need to establish a
priority-based mechanism that maps out sound, equitable progress in
TMDL development and implementation while barring unrealistic schedules
that lead to poor results and more litigation. The authority must lie
with the States, and the workload prioritized.
D. Provide More Funding. The cost to State agencies to develop the
TMDLs has been estimated as high as $20 billion over 15 years. Yet, the
Administration has estimated that the States' costs will only be $25
million per year. Interestingly enough, the Administration's proposed
funding to States for the TMDL program is $45 million per year. Clearly
these funds are woefully inadequate to accomplish the anticipated
workload and the cost estimates in the regulation are unrealistic. At
this point, no one really knows what the real costs will be, but we
agree with the States that if the program is to be implemented as
proposed, significantly more funds must be provided to State agencies.
A study to look at what the actual costs will be, based upon prior
experience, would be helpful to ensure that the correct level of
funding is provided.
E. Allow More Time for Legacy Pollutants. In the Great Lakes
Initiative, EPA authorized phased TMDLs, which allow additional time to
reach attainment. Phased TMDLs are based on the gradual removal of
legacy sources such as contaminated sediments. Since this problem is
not unique to the Great Lakes but rather nationwide, Congress should
clarify that for these situations fixed time schedules for attainment
are not required in the implementation plans.
F. Allow Permit Renewals to Get Benefit of TMDLs. EPA's goal is to
renew permits for point sources every 5 years or sooner. At permit
renewal, our fear is that some EPA Regions may be tempted to
drastically tighten permit limits before TMDLs have been developed and
TMDL-based limits determined. Once such limits have been implemented,
Clean Water Act ``anti-backsliding'' provisions [CWA Section 402(o)]
may prevent subsequent implementation of less stringent requirements,
even if a new TMDL would call for less stringent requirements. Congress
should prevent EPA Regions from unjustified tightening of permit limits
on a point source while a TMDL is being developed, since the TMDL may
determine that these stringent requirements are unnecessary. We should
first establish TMDLs, then set sound limits.
G. States Should Run the Program. We agree with suggestions made by
NGA in their water policy paper regarding Federal versus State roles
(Section 3.2.2 in Ref. 1), \1\ such as having EPA approve the State's
water program, but not the individual plans for each water body. Also,
we like NGA's suggestion that if EPA rejects a State's program, the
State should be given a reasonable amount of time to make
modifications. A recent example where we feel EPA is getting too
involved in what should be a State decision is Region IV's actions on
the mercury TMDL for the Savannah River. EPA is replacing the State's
water quality standard of 12 ppt with EPA's own target of 1 ppt. Of 115
point sources, EPA is requiring only two facilities to meet the 1 ppt
since they just happen to have mercury limits in their existing
permits. The other 113 sources, as well as air emissions and other
sources are not being considered. This is an example of where we
believe that EPA's quick approach is neither technically sound nor
equitable for the two targeted facilities.
---------------------------------------------------------------------------
\1\ NGA's Policy on Water Resource Management, Adopted Winter
Meeting 2000; See www.nga.org
---------------------------------------------------------------------------
EPA should develop comprehensive guidance and workshops on how to
develop TMDLs, load allocations, and other details for the States. We
feel that such communication among EPA Regions, States and EPA
Headquarters often result in better solution ideas and improved
cooperation.
We do have some additional concerns with EPA's proposed rule beyond
the items discussed above, however we have tried to focus comments on
our highest priority issues. We appreciate the opportunity to provide a
statement for the record, and look forward to continuing to work with
the subcommittee to address these issues.
______
Joe F. Nix, Ph.D.,
Arkadelphia, AR, June 21, 2000.
Chairman,
Senate Committee on Environment and Public Works,
Washington, DC.
Dear Mr. Chairman: I wish to make a few comments regarding proposed
EPA regulations which would require permitting of silviculture
operations based on TMDL allocation of impaired streams. As a matter of
background, I am a chemist and I have spent 30 years of my professional
life studying streams and lakes of Arkansas. Although I fully
understand the position of those who oppose the regulation based on
economic impact, I think that there is a more fundamental issue which
appears to have been overlooked.
The fact is that there is very little scientific evidence which
indicates that silviculture activities are a major source of stream
impairment in Arkansas. I think it is generally understood that the
nature and magnitude of water quality impacts from silvicultural
actives vary from region to region. What may be true on steep slopes of
the Pacific Northwest may not be true or applicable to the timberlands
of Arkansas or the southeastern U.S. EPA seems to have assumed that
there is an impact then set out to develop regulations to control
something that does not necessarily exist.
Others have suggested that the TMDL program provides a sound
framework for the evaluation of the factors which impact streams. This
is true but it should be recognized that the process has not progressed
to the point where significant stream impairment from silviculture has
been demonstrated in this part of the country.
Most of the data that I have seen indicates that the source of
sediment in most of the streams throughout the timber producing areas
of the southeast is roads and road cuts. Obviously there is some road
construction associated with silviculture operations but I have yet to
see a study that indicates that roads built for silvicultural purposes
constitutes a majority of the sources.
I am also convinced that we do not understand the loading which
occur from the natural environment An understanding of these processes
is needed so that a comparison can be made to loading from
anthropogenic sources. In some cases, the loading from anthropogenic
sources may be lost in the background of natural processes. Additional
studies are needed to make this type of comparison.
To summarize, I do not believe that the proposed EPA regulation has
scientific merit at this point. EPA and other funding agencies should
direct research funding in an effort to answer critical questions about
sources of loading from the natural environment and only then consider
the need for regulations. To be specific, it is wrong to regulate
without cause then go out and see if the regulation is really needed.
The reverse would be a more logical approach. EPA must learn to adhere
to good science.
Sincerely,
Joe F. Nix, Ph.D.
______
Green Bay Packaging Inc.,
Morrilton, AR, June 21, 2000.
Committee on Environment and Public Works,
Washington, DC.
Honorable Sirs: My name is Allen Farley and I am the Landowner
Assistance Forester with Green Bay Packaging Inc. in Morrilton,
Arkansas. I would like to commend your committee for the thorough job
you are doing with evaluating the purpose and need of additional
Federal regulations concerning TMDL standards relating to forestry
practices. As you are aware from the public meetings and panel
discussions, the State of Arkansas has multiple layers of leadership in
place to monitor the water quality of our State and are very conscious
of maintaining the environment in a professional manner.
It is my belief that any additional Federal regulations forced on
the citizens of Arkansas to attempt to fix a problem that does not
exist by the EPA would not only cost the tax payers many millions of
dollars unnecessarily, but would hamper if not eliminate the private
landowner from conducting needed silvicultural practices to improve
their forests. A large part of my job is to educate and to assist
private landowners in conducting wise and correct forest management
practices. I have never come across any landowner that is not concerned
with water quality, erosion, wildlife and planting trees for the
future. Any regulations that may cause money to be taken out of the
pockets of these landowners will adversely effect their decision to
actively manage their property.
I trust your committee will be very cautious with any decisions
concerning altering the way private landowners and industrial forest
products companies management of their lands.
Sincerely,
Allen Farley,
Landowner Assistance Forester.
______
[From the New Hampshire Sunday News, February 1, 1998]
Tree Farms Tally Ice Damage
A landscape littered with downed limbs and splintered trunks seems
to make a mockery of the sign posted at the entrance to Tom and Sheila
Thomson's 1,060-acre woodlot in Orford: ``Thomson Family Tree Farm and
Wildlife Habitat, A Working Sustainable Forest.''
Weeks after one of the worst ice storms on record hit New England,
New York and Quebec, the Thomsons and thousands of other private forest
landowners are reeling from the disaster's impact on their woodlots.
``I just can't believe it. It looks like a bomb struck out there,''
said Tom, who owns and manages 2,400 acres of forest along the New
Hampshire-Vermont border.
Although recovery operations are under way, Thomson says the storm
devastated 90 percent of his trees, the outlook for meaningful salvage
efforts is bleak.
Preliminary estimates indicate that 20 percent of the region's 26
million acres of forests suffered moderate to severe damage. Most, like
Thomson's, were privately owned woodlots ranging in size from 10 to 500
acres.
``Forest owners depend on the income from timber and firewood, or
from maple syrup production,'' said Larry Wiseman, president of the
American Forest Foundation. ``It provides the cash they need to pay
taxes, plant trees and keep their forests healthy.''
With five million acres of forests damaged, it will be nearly
impossible for landowners to receive ample compensation for their
timber, or to replace the income they've lost. More than 70 percent of
the forestland in the Northeast is privately owned.
``This isn't really about money,'' said Wiseman. ``It's about the
future of New England's forests, watersheds and wildlife.'' Conversion
of forestland for development, he said, may be the biggest threat posed
by the storm.
``All the landowners I know are passionate about good stewardship.
But if I were looking at 20 years of income lying on the ground, I'd
listen a lot more closely the next time a developer came calling.''
Honored last November for his exemplary forest stewardship with the
American Tree Farm System's Northeast Regional Tree Farmer of the Year
Award, Thomson--a son of former Gov. Meldrim Thomson--bought his first
125 acres when he was 11 years old. Little by little he purchased more
land, all the while managing its resources according to the principles
of sound forestry.
Tree Farm System Director Robert Simpson says the Thomson operation
was a study in how everyone benefits from good stewardship. ``By
conserving water and wildlife habitat and providing recreational
opportunities for their neighbors, Tom and Sheila represent the very
best in non-industrial private forestland ownership,'' he said. ``The
devastation they're facing will be felt far beyond the boundaries of
their tree farm.''
Moose, bear, coyote, deer, beaver and more than 90 identified
species of birds live on and visit their farm. The Thomsons built
hiking trails connected to the Appalachian Trail, and opened their land
to cross-country skiers and other outdoor recreation enthusiasts. In
addition, dozens of area schools and civic groups have visited their
woods to learn about the value of sustainable forestry.
``On an emotional level, the thing that hurts most is the loss of
the legacy that Sheila and I worked so hard to leave for our son,'' Tom
says.
Like his father, 20-year-old Stacey Thomson got an early start in
forestry. He received a 12-acre woodlot as a birthday gift when he
turned 12, and recently bought his first house with the profits from
his own firewood business.
Two months ago Stacey started his own timber harvesting business,
as well, and bought a skidder to remove timber from his tree farm. ``My
dad and I weren't planning to harvest our tree farm under these
conditions,'' he said.
Tom is working with his forester in preparing a new forest
management plan. ``At a time like this, you look for the positive
opportunities and make the most out of them,'' he said. ``Our
management plans have changed because of the storm, but our goal
remains the same--to maintain a working, sustainable tree farm and
share it by offering educational and recreation opportunities to
others.''
With its nearly 70,000 non-industrial, private forest landowners,
the American Tree Farm System is the nation's oldest and largest
certifier of sustainable forestry.
______
OVER 200 ORGANIZATIONS OPPOSE CLEAN WATER ACT SPECIAL INTEREST
LOOPHOLES (H.R. 3609, S. 2041 AND S. 2139)
MARCH 9, 2000.
Dear Senators and Representatives: We--the attached 207
organizations and 76 individual citizen clean water advocates--strongly
oppose legislative proposals recently introduced in the House and
Senate that would create a huge new special interest loophole in the
Clean Water Act for forest industries that pollute our nation's rivers,
streams, lakes and oceans.
Our organizations represent hundreds of thousands of members who
use the nation's waters for recreational, commercial and subsistence
purposes. These new bills, H.R. 3609, S. 2041 and S. 2139, would
threaten the water quality that our members and the American public
rely on for these important uses. We not only object to the substance
of these bills, we are concerned by reports that they might emerge as a
legislative rider on an appropriations bill--a particularly
inappropriate backdoor strategy for attempting to overturn a
longstanding provision of the Clean Water Act. We ask you to oppose
this anti-environmental legislation, whether it is in the form of a
stand-alone bill or a rider.
In sum, these bills would create an unprecedented statutory
exemption from the Clean Water Act's National Pollutant Discharge
Elimination System (NPDES) for logging activities that cause point
source discharges into waters of the United States. These bills have
been spurred by an aggressive misinformation campaign about a recent
rule change proposed by the Environmental Protection Agency (EPA) that
would require certain point source discharges from silvicultural
activities to obtain NPDES permits. The proposed rule would require
that logging-related direct discharges get NPDES permits only under
certain narrow circumstances, including when such discharges are
causing significant pollution of waters that are already too polluted.
Contrary to the rhetoric of those opposing this rule, EPA's proposal
only addresses point sources--it does not purport to regulate non-point
sources--and regulation of these point sources is not inconsistent with
the Agency's authority under the Act.
The Clean Water Act contains no exemption from the definition of
``point source'' for silvicultural activities. Although EPA has not
treated most silviculture activities as point sources in the past, the
Agency has found that an automatic exemption in EPA's rules is no
longer appropriate if we are to achieve the Clean Water Act's goal of
fishable and swimmable waters. In those cases where a forestry-related
practice meets the statutory definition of ``point source'' and the
activity is a significant source of water pollution, EPA and the States
must be able to regulate and control pollution from that activity. Any
regulation of logging pollution would still be limited to those
activities that already fall within the statutory definition of ``point
source.''
Logging and logging roads degrade water quality in many parts of
the country. Numerous scientific studies have documented the serious
harm to water quality and aquatic ecosystems that can be caused by
logging practices and logging roads. Roads and logging can
significantly pollute and even destroy stream ecosystems by introducing
high volumes of sediment and nutrients into streams, changing natural
stream flow patterns, and damaging vital aquatic habitats. Eliminating
the automatic exemption from point source regulation for silvicultural
activities that have point source discharges is necessary to address
water quality problems in many States.
Regardless of your view of EPA's current rulemaking proposal, there
is no legal or public policy justification for the environmentally
destructive loophole in the Clean Water Act that H.R. 3609, S. 2041 and
S. 2139 advance. These bills would weaken one of our nation's most
successful environmental laws for the benefit of a few forestry
companies at the expense of clean water. Please stand up for clean
water and responsible forestry practices by opposing H.R. 3609, S.
2041, S. 2139 and any related anti-environmental rider that would
exempt silviculture point source pollution from the Clean Water Act.
Sincerely,
Brad McLane, Alabama Rivers Alliance, Birmingham,
AL; Beth K. Stewart, Cahaba River Society,
Birmingham, AL; Kenneth Wills, Alabama
Environmental Council, Birmingham, AL; Dan
Murchison, Chilton Pride, Chilton County,
AL; Gershon Cohen, Earth Island Institute,
Haines, AK; Bob Shavelson, Cook Inlet
Keeper, Homer, AK; Shawn Porter, Arkansas
Watershed Alliance, AR; Bill Kopsky,
Arkansas Public Policy Panel, Little Rock,
AR; Nick Zunick, Senior Patrol Leader, Boy
Scout Troop Fifteen, Hot Springs, AR; David
Reagan, Ouachita Watch League, Hot Springs
Nat'l. Pk., AR; Mariah Myers, Sierra
Student Coalition, University of Arkansas,
Fayetteville, AR; Robert Lippman, Glen
Canyon Action Network, Flagstaff, AZ;
Barbara Vlamis, Butte Environmental
Council, Chico, CA; Michael McFarland,
Fresno Audubon Society, Fresno, CA; Kyle
Haines, Klamath Forest Alliance, Etna, CA;
Patricia McCoy, Southwest Interpretive
Association, Imperial Beach, CA; Mary Bull,
Save the Redwoods/Boycott the Gap Campaign,
Fort Bragg, CA; Craig Thomas, Center for
Sierra Nevada Conservation, Georgetown, CA;
Robin Mayer, Magic, Stanford, CA; Stephen
Sayre, Lassen Forest Preservation Group,
Chico, CA; Vivian Parker, Shasta Chapter,
California Native Plant Society, Kelsey,
CA; Tarren Collins, Santa Lucia Chapter/
Sierra Club, Atascadero, CA; Kent
Stromsmoe, Forestry Monitoring Project,
Martinez, CA; Geoffrey Smith, Sierra Club,
San Diego Chapter, San Diego, CA; Britt
Bailey, Center for Ethics and Toxics,
Gualala, CA; Steve Nicola, California
Indian Basketweavers Association, Nevada
City, CA; Wendy Blankenhiem, Community
Action Network, Medocino, CA; Jonathan
Kaplan, WaterKeepers Northern California,
San Francisco, CA; Dr. Rob Schaeffer, SAFE:
Save Our Ancient Forest Ecology, Modesto,
CA; Jess Morton, Audubon-Palos Verdes/South
Bay, San Pedro, CA; Ara Marderosian,
Sequoia Forest Alliance, Weldon, CA;
Christine Ambrose, Citizens For Better
Forestry, Arcata, CA; Mary Ann Matthews,
State Forestry Coordinator, California
Native Plant Society, CA; Chris Maken,
Concerned Citizens for Napa Hillsides,
Napa, CA; Redwood Mary, Plight of The
Redwoods Campaign, Ft. Bragg, CA; Tom
Wodetzki, Alliance for Democracy, Mendocino
Coast Chapter, Albion, CA; Jean Crist,
Protect Our Watershed, Magalia, CA; Chris
Poehlmann, Gualala River Improvement
Network, Annapolis, CA; Patricia M.
Puterbaugh, Lassen Forest Preservation
Group, Chico, CA; Christopher M. Papouchis,
Animal Protection Institute, Sacramento,
CA; Irvin Lindsey, Outdoor Science
Exploration, Santa Cruz, CA; Steve
Sugarman, Social & Environmental
Entrepreneurs, Malibu, CA; Alan Levine,
Coast Action Group, Point Arena, CA; Holly
Hannaway, LightHawk, Aspen, CO; Harlin
Savage, American Lands Alliance, Boulder,
CO; Jacob Smith, Wildlands Center for the
Prevention of Roads, Boulder, CO; Jon
Jensen, Center for Native Ecosystems,
Boulder, CO; Sloan Shoemaker, Aspen
Wilderness Workshop, Aspen, CO; Annie
White, CU-Sinapu, Boulder, CO; Steve
Glazer, High Country Citizens' Alliance,
Crested Butte, CO; Jeffrey A. Berman,
Colorado Wild, Boulder, CO; Margaret Miner,
Rivers Alliance of Connecticut,
Collinsville, CT; Sharon Buccino, Natural
Resources Defense Council, Washington, DC;
Steve Holmer, American Lands Alliance,
Washington, DC; Ed Hopkins, Sierra Club,
Washington, DC; Joan Mulhern, Earthjustice
Legal Defense Fund, Washington, DC;
Courtney Cuff, Friends of the Earth,
Washington, DC; Brock Evans, Federation of
Western Outdoor Clubs, Washington, DC;
Catrina Ciccone, Lutheran Office for
Governmental Affairs, Evangelical Lutheran
Church in America; Washington, DC; Nick
Brown, World Wildlife Fund, Washington, DC;
Aaron Viles, U.S. PIRG, Washington, DC;
Mike Leahy, National Audubon Society,
Washington, DC; Amy Lesser, Center for
Environmental Citizenship, Washington, DC;
Rebecca Wodder, American Rivers,
Washington, DC; James S. Lyon, National
Wildlife Federation, Washington, DC; Tim
Eichenberg, Center for Marine Conservation,
Washington, DC; Brock Evans, The Endangered
Species Coalition, Washington, DC; Doug
Sloane, Southeast Forest Project,
Washington, DC; Mary Beth Beetham,
Defenders of Wildlife, Washington, DC; Ted
Morton, American Ocean Campaign,
Washington, DC; Karsten A. Rist, Tropical
Audubon Society, Miami, FL; Beth Frazer,
Community Watershed Project, Athens, GA;
Doug Haines, Georgia Legal Watch, Athens,
GA; Ohana Foley, Student Peace Action
Network, Haiku, HI; Linda Appelgate, Iowa
Environmental Council, IA; Marti L.
Bridges, Idaho Rivers United, Boise, ID;
G.A. Bailey, Selkirk-Priest Basin
Association, Priest River, ID; Liz Sedler,
Alliance for the Wild Rockies, Sandpoint,
ID; J. Dallas Gudgell, Idaho Conservation
League, Boise, ID; Lee Halper, Land, Air &
Water Society, Jerome, ID; Chuck Pezeshki,
Clearwater Biodiversity Project, Moscow,
ID; Lynne Stone, Boulder-White Clouds
Council, Ketchum, ID; Katie Fite, Committee
for Idaho's High Desert, Boise, ID; Albert
Ettinger, Environmental Law and Policy
Center of the Midwest, Chicago, IL; Frank
Ambrose, Indiana Forest Alliance,
Bloomington, IN; Tom Anderson, Save the
Dunes Council, Michigan City, IN; Cliff
Smedley, Stewards of the Land, Johnson, KS;
Larry Zuckerman, Pure Water For Kansas,
Program of the Kansas Wildlife Federation,
Pretty Prairie, KS; Cheryl Bersaglia, Upper
Cumberland Watershed Watch, McKee, KY; Liz
Natter, Democracy Resource Center,
Lexington, KY; Jan Jennemann, Mercer Water
Watch, Salvisa, KY; Coleman Smith, Citizens
Environmental Defense League, Bowling
Green, KY; Judith D. Petersen, Kentucky
Waterways Alliance, Munfordville, KY;
Barbara Warner, Marion County Water Watch,
Lebanon, KY; Jill Mastrototaro, Lake
Pontchartrain Basin Foundation, Metairie,
LA; Cyn Sarthou, Gulf Restoration Network,
New Orleans, LA; Michael Kellett, RESTORE:
The North Woods, Concord, MA; Pine DuBois,
Jones River Watershed Association,
Kingston, MA; Josh Kratka, National
Environmental Law Center, Boston, MA; Ed
Himlan, Tom Spiro, and Brandon Kibbe, The
Massachusetts Watershed Coalition, MA; Kai
Newkirk, E.A.R.T.H. (Ecologically Aware and
Responsible Together at Hampshire),
Amherst, MA; Laura Rose Day, Natural
Resources Council of Maine, Augusta, ME;
Ray Fenner, Superior Wilderness Action
Network, St. Paul, MN; Nancy Clay Madden,
MS Coast Audubon Society, Jackson, MS;
Larry Smith, Pine Woods Audubon,
Hattiesburg, MS; Judi Brawer, American
Wildlands, Bozeman, MT; Joe Gutkoski,
Montana River Action Network, Bozeman, MT;
Jeff Juel, The Ecology Center, Inc.,
Missoula, MT; Robin Cunningham, Montana
Fishing Outfitters Conservation Fund,
Gallatin-Gateway, MT; Cold Mountain, Cold
Rivers, Missoula, MT; Cesar Hernandez,
Flathead Chapter of the Montana Wilderness
Association, Kalispell, MT; Larry Campbell,
Friends of the Bitterroot, Hamilton, MT;
Elizabeth O'Nan, Protect All Children's
Environment, Marion, NC; Dan Whittle, North
Carolina Environmental Defense, Raleigh,
NC; Cathie Berrey, Katuah Earth First!,
Asheville, NC; Rick Dove, Neuse
RIVERKEEPER, New Bern, NC; Marion Smith,
Neuse River Foundation, New Bern, NC;
Andrew George, Southern Appalachian,
Biodiversity Project, Asheville, NC; Ginger
Bush, Rockingham County Watershed
Preservation Coalition, Inc., Colfax, NC;
Hope C. Taylor, Clean Water Fund of NC,
Asheville, NC; Meredith McLeod, Hickory
Alliance, Chapter of the Blue Ridge
Environmental Defense League, Greensboro,
NC; Robert Perks, Pamlico-Tar River
Foundation, Washington, NC; John Runkle,
Conservation Council of NC, Raleigh, NC;
Candice Carr, ASHE, Active Students for a
Healthy Environment, Asheville, NC; Jean
Spooner, NCSU Water Quality Group, North
Carolina State University, Raleigh, NC;
Chuck Rice, North Carolina Wildlife
Federation, NC; Nancy L. Girard, New
Hampshire Conservation Law Foundation,
Concord, NH; Marie A. Curtis, New Jersey
Environmental Lobby, Trenton, NJ; Harold E.
Taylor, Pompeston Creek Watershed
Association, Cinnaminson, NJ; Hugh Carola,
The Fyke Nature Association, Ramsey, NJ;
Julia M. Somers, Great Swamp Watershed
Association, New Vernon, NJ; Karen R.
Halliday, New Mexico Wilderness Alliance,
Albuquerque, NM; Kerry Sullivan, Natural
Resources Protective Association, Staten
Island, NY; Day Star Chou, Flushing Greens,
Green Party of NY, NY; Kathrn Martini and
Tara Kehoe, HEART, Syracuse, NY; Gordon
Douglas, Friends of the Great Swamp,
Pawling, NY; Jennifer Nalbone, Great Lakes
United, Buffalo, NY; Manna Jo Greene,
Hudson Valley Sustainable Communities
Network, Cottekill, NY; William Peltz,
Capital District Labor-Religion Coalition
Albany, NY; Erik Holland, Civilian
Filibuster, Reno, NY; Jason Tockman,
Buckeye Forest Council, Athens, OH;
Margaret Ruff, Oklahoma Wildlife
Federation, Oklahoma City, OK; Judy Guise-
Noritake, Pacific Rivers Council, Eugene,
OR; John Taylor, Sisklyou Audubon Society,
Grants Pass, OR; Michael Donnelly, Friends
of Breitenbush Cascades, Salem, OR;
Dominick Dellasalla, World Wildlife Fund,
Klamath-Siskiyou Region, Ashland, OR; Tom
Burns, Concerned Friends of the Winema,
Chiloquin, OR; John E. Barry, Range Ecology
Group, La Grande, OR; P. Sydney Herbert,
Oregon Shores Conservation Coalition,
Portland, OR; George Hutchinson, Rogue
Group and Oregon Chapter Sierra Club, OR;
Nina Belk Northwest Environmental
Advocates, Portland, OR; Claudia McCue,
Corvallis Area Forest Issues Group, Monroe,
OR; Donald Fontenot, Cascadia Forest
Alliance, Portland, OR; Shannon Wilson,
Many Rivers Group Sierra Club, Eugene, OR;
Ric Bailey, Hells Canyon Preservation
Council, La Grande, OR; Tom Dimitre,
Headwaters, Ashland, OR; Jim Britell,
Kalmiopsis Audubon Society, Port Orford,
OR; Nathan Tublitz, Eugene Natural History
Society, Eugene, OR; Susan Jane Brown,
Northwest Environmental Defense Center,
Portland, OR; Lovenia Warren, Salmon for
All, Astoria, OR; Jay Letto, Central
Cascades Alliance, Hood River, OR; Lisa P.
Brenner, Oregon Clearinghouse for Pollution
Reduction, Portland OR; Mary Ann Lucking,
CORALations, Inc. Carolina, PR; Kathy
McDeed, South Carolina Forest Watch,
Westminster SC; Wendy Smith, World Wildlife
Fund--Southeast Rivers, Nashville, TN;
Donald B. Clark, United Church of Christ,
Network for Environmental & Economic
Responsibility, Pleasant Hill, TN; Rev.
Walter Stark, Cumberland Countians for
Peace & Justice, Pleasant Hill, TN; Louise
Gorenflo, Obed Watershed Association,
Crossville, TN; Edward C. Fritz, Texas
Committee on Natural Resources, Dallas, TX;
Live Oak Alliance, Austin, TX; Theodore C.
Mertig, Environmental Action, EI Paso, TX;
James Facette, Center for Social Justice
and Global Awareness, San Antonio, TX;
Denise Boggs, Utah Environmental Congress,
Salt Lake City, UT; Steve Moyer, Trout
Unlimited, Arlington, VA; Jack Dunavant,
Southside Concerned Citizens, Halifax VA;
David Bookbinder, American Canoe
Association, Springfield, VA; Tim SanJule,
Rivanna Conservation Society, Palmyra, VA;
Shenandoah Ecosystems Defense Group,
Charlottesville, VA; Dave Muhly, Virginia
Forest Watch, Wytheville, VA; Detta Davis,
The Clinch Coalition, Coeburn, VA; Jackie
Hanrahan, Coalition for Jobs and the
Environment, Abingdon, VA; Richard Flint,
Committee for Improvement of Dickenson
County Inc., Clintwood, VA; Rick Parrish,
Southern Environmental Law Center,
Charlottesville, VA; Dick Austin, Devil's
Fork Trail Club, Dungannon, VA; Christopher
M. Kilian, Conservation Law Foundation,
Montpelier, VT; Job C. Heintz, Vermont
Natural Resources Council, Montpelier, VT;
Wally Elton, Ascutney Mountain Audubon
Society, Springfield, VT; Stephen Crowley,
Vermont Chapter of the Sierra Club, South
Burlington, VT; Jim Northup, Forest Watch,
Montpelier, VT; Brady Engvall' Friends Of
Grays Harbor, Westport, WA; Greg Wingard,
Waste Action Project, Seattle, WA; David
Jennings, Gifford Pinchot Task Force,
Olympia, WA; Helen Ross, Seattle Audubon
Society, Seattle, WA; Joe Scott. Northwest
Ecosystem Alliance, Bellingham, WA; Dr.
Herbert Curl, Jr, Seattle Audubon Society,
Seattle WA; Susan Crampton, Methow Forest
Watch, Twisp, WA; Timothy J. Coleman,
Kettle Range Conservation Group, Republic,
WA; Bill Hallstrom, Green-Rock Audubon
Society, Beloit, WI; David J. Zaber
Wisconsin's Environmental Decade, Madison,
WI; Eric Uram, Sierra Club Midwest Office,
Madison, WI; David J. Zaber. Western Lakes
Wildlife Center, Monona, WI; Dr. Margaret
Janes, Potomac Headwaters Resource
Alliance, Mathias, WV; Mr. Francis D.
Slider, Mountaineer Chapter of Trout
Unlimited, Buckhannon, WV; Jim Summers,
West Virginia B.A.S.S. Federation,
Worthington, WV; Dianne Bady, Ohio Valley
Environmental Coalition, Huntington, WV;
Dan Heilig, Wyoming Outdoor Council,
Lander, WY; Jonathan B. Ratner, Sublette
Riders Association, Pinedale, WY; Danna
Smith and Douglas Sloane, Dogwood Alliance,
Southeastern United States.
INDIVIDUAL CLEAN WATER ADVOCATES
Wanda B. Stephens, Fayetteville, AR
Holly Ferguson, Fayetteville, AR
Moira Johnston Block and Alvin Lee Block, M.D., CA
Cory Chew, Los Angeles, CA
Cralan Deutsch, CA
Kirk Mobert, Point Arena, CA
Heidi Marshall, Point Arena, CA
Thomas Davis, Napa, CA
Lucy Kenyon, Santa Rosa, CA
Holly Mitten, Moss Beach, CA
Mary Knight, Willits, CA
Anthony Morris, Willits, CA
Talia Eisen, Los Angeles, CA
Kathie Lech, Willits, CA
Fred and Phyllis Mervine, Ukiah, CA
Elise Kelley, Davis, CA
Rainer Hoenicke, Napa, CA
David H. Walworth, MD, Soqiel, CA
James Woods, Penn Valley, CA
Diane Solomon, C.P.A., San Jose, CA
Meade Fischer, Corralitos, CA
Eric Sunswheat, Potter Valley, CA
Douglas F. Wallace, Ft. Collins, CO
Tom Dickinson, Boulder, CO
Estelle Gahn, Fort Collins, CO
Daniel Mandelbaum, Washington, DC
Benna Kolinsky, Washington, DC
Marc Goncher, Atlanta, GA
Jason Barringer, Atlanta, GA
Ernest L. Horton, Marietta, GA
Renuka Dhungana, Marietta, GA
Marion B. Hilliard, Orange Park, FL
Chris Norden, Moscow ID
Monte D. Wilson, Potlatch, ID
Leslie A. Manskey, Bloomington, IL
Robert E. Rutkowski, Esq., Topeka, KS
Tina Montgomery, Louisville, KY
Carrie DeJaco, Louisville, KY
Melanie Hurst, Louisville, KY
Owen Muise, Plymouth, MA
Cynthia S. Brown, PhD., Saint Paul, MN
J.F.Puckett, MD, Hattiesburg, MS
Tom Mattison, Jacksonville, NC
James L. Conner II, Durham, NC
Peter and Margaret Schubert, Durham, NC
John Colvin, Albuquerque, NM
Karen McCue, Albuquerque, NM
Colin Sillerud, Albuquerque, NM
Dorothy D. Meyerink, Henrietta, NY
Joel Clark Mason, Chappaqua, NY
Mr. Bobbie D. Flowers, New York, NY
Carol Witbeck, Clackamas, OR
Peter M. Lavigne, Portland, OR
Megan Kemple, Eugene, OR
John Thornton, Grants Pass, OR
Ann Easterly, Oregon City, OR
Connie Earnshaw, Portland, OR
Catherine Thomasson, MD, Portland, OR
Kay Ryan Biondo, Waldport, OR
Shirley L. Brown, Sublimity, OR
Richard Katz Do, East Stroudsburg, PA
Kim Danley, Salt Lake City, UT
Marilyn Dinger, Kaysville, UT
Judy Strang, Monroe, VA
Peter H. Richardson, Norwich, VT
Dave Robinson, Curlew, WA
Marva E. Schuelke, Everett, WA
Liz Marshall, Mount Vernon, WA
Carol Melton, Seattle, WA
Jerry Burke, Petersburg, WV
Lou Schmidt, Bristol, WV
Vince Dudley, Charleston, WV
Charles ``Larry'' Harris, Morgantown, WV
__________
STATEMENT OF AMERICAN TREE FARM SYSTEM
[ROBERT SIMPSON AND RALPH POSNER]
MEMBERS OF NATION'S LARGEST FOREST OWNER NETWORK CONVINCED EXISTING
SYSTEM PROTECTS WATER QUALITY, FEAR NEW RULES MIGHT ADD TO SPRAWL
WASHINGTON, DC.--MEMBERS OF THE 66,000-STRONG AMERICAN TREE FARM
System today appeared before a hearing of the U.S. Senate Committee on
Environment and Public Works to voice opposition to an EPA proposal
that would greatly affect forest management. If enacted, the proposal
would regulate forestry activities as a ``point source'' of pollution,
equating forestry with sewage disposal and reversing nearly three
decades of policy under the Clean Water Act. Furthermore, the proposal
would shift regulation to the Federal level despite years of success
and cooperation at the State level.
On behalf of Tree Farm's 66,000 family forest owners, Tom Thomson,
a New Hampshire Tree Farmer, testified, ``The EPA proposal will place
an undue burden on small landowners. The result will not lead to added
environmental protection, but may encourage family tree farmers among
the best nation's forest stewards--to sell off their land to
developers.''
Under EPA's proposed rule changes, landowners may be required to
obtain a Federal permit for almost all forest management activities.
The proposed permitting process could lead to significant and
unnecessary administrative delays, making it harder for small family
forest owners to practice sustainable forestry.
EPA studies indicate that forestry presently contributes only a
negligible fraction of pollution to streams and rivers. This tiny
percentage is growing even smaller--under existing programs--as a
result of responsible forest owners who follow State best management
practices aimed at protecting watersheds and water quality. Forestry is
not included in EPA's list of leading sources of impairment to lakes,
reservoirs, estuaries or shoreline waters.
``Water quality is improving because forest landowners, foresters
and logging professionals are serious about best management
practices,'' said Thomson. In fact, 47 States have adopted best
management practices for forestry. On average, individual compliance
for these practices is almost 90 percent.
``What's remarkable is that the current system we have now is
working,'' said Bob Simpson, national director of the American Tree
Farm System. ``There's no reason to add another layer of regulation.
Responsible forest owners know how to protect water quality, and
they're doing it.''
______
Society of American Foresters
FOREST SCIENTISTS VOICE OPPOSITION TO EPA'S WATER QUALITY REGULATIONS
(BY MICHAEL GOERGEN)
Washington, DC--At a press briefing today, the Society of American
Foresters (SAF) once again voiced its strong opposition toward an EPA
proposal that would categorize forestry activities on private forest
lands as a ``point source'' of pollution. The hotly contested EPA
proposal, which would in essence equate forestry with sewage disposal,
is being examined by the U.S. Congress during a series of hearings on
Capitol Hill.
``Professional foresters have been working to improve water quality
from forests for over 100 years. SAF supports efforts aimed at reducing
nonpoint source pollution from forestry operations,'' according to Dr.
George Ice, a research hydrologist representing SAF. ``However, SAF is
opposed to the regulatory changes proposed for forestry because the
science EPA used to draft the proposal is inadequate, the current
programs in place are successful, and the costs of EPA's proposal would
be astronomical.''
EPA's proposed rule fails to acknowledge that managed forests can
benefit water quality. For example, officials in New York State
recently decided that the best way to protect the water supply of New
York City was by managing forests in the Catskill Mountains. Clearly,
the EPA cannot make an informed decision about the impact of forestry
activities on water quality without understanding that properly managed
forests preserve water quality.
``SAF recognizes that if forest management is conducted improperly
it can be a problem for water quality, which is why we are working to
ensure that every forest management operation has involvement by
forestry professionals,'' says Dr. Ice. ``Water quality in forests
would be better served by fully supporting existing nonpoint source
control programs. We should be rewarding landowners for high quality
forest management, not burdening them with excessive regulations, red
tape, and high costs.''
______
FORESTRY AND WATER QUALITY
Forests cover one-third of this nation's land, are the
source for 80 percent of our freshwater, and contribute to a mere 7
percent of impaired waterbodies.
Best Management Practices (BMPs) are designed to minimize
pollution impacts from various forestry activities. Landowners comply
with BMP's 85 to 90 percent of the time. Repeated assessments show
improving compliance.
Every State with significant commercial forestry
operations has a forest nonpoint source control program, some of these
are voluntary and others are regulatory.
In 1996, EPA dropped silviculture from its list of the
seven leading sources of river and stream impairment.
The largest source of pollution in estuaries came from
industrial discharges (56 percent of the total), followed by urban
runoff, municipal point sources, upstream sources, and agriculture.
Forestry is a very minor source compared to other pollution sources.
The largest source of pollution to ocean shorelines was
urban runoff (55 percent), followed by septic systems, municipal sewer
discharge, industrial pollution, and land disposal of wastes. Again,
forestry is a minor problem.
Officials in New York State recently decided that the best
way to protect the water supply of New York City was by managing
forests in the Catskill Mountains.
It has cost an estimated $5 million to conduct a TMDL
assessment on just one river South of Portland, Oregon. The assessment
recognized phosphorus as a problem in the watershed, and set limits to
reduce phosphorus levels. However, those levels are not achievable
because the basic geology of the area causes the problem, not land
management.
A 1998 Washington Department of Ecology (DOE) report (DOE
1998) estimated that it would cost $6.7 million annually for 15 years
to conduct the 666 TMDLs for waterbodies listed as water quality
limited in 1996. This will result in reduced efforts in other
environmental programs including:
Lreduced nonpoint source technical assistance to
landowners and policy development
reduced statewide and regional watershed reports and
coordination
reduced timber practice watershed analyses and policy
development
reduced water quality assessments and coordination
with tribes
reduced technical assistance on lake protection and
restoration
reduced technical assistance on groundwater protection
reduced aquatic pesticide management
______
March 21, 2000.
Hon. Rod Grams,
U.S. Senate,
Washington, DC.
Dear Senator Grams: The Minnesota Forestry Association (MFA) is one
of the oldest conservation organizations in Minnesota and the only
organization dedicated exclusively to the stewardship of all forest
resources in the State. Our membership is made up almost entirely of
non-industrial private forest landowners that endorse a broad spectrum
of forest management objectives. Non-industrial private forest
landowners own over 40 percent of the forestland in Minnesota.
I am writing on behalf of our members (nearly 1000 individuals) to
request that you do not support the Environmental Protection Agency's
attempt to declare silvicultural practices as ``point sources'' of
pollution and regulate forest management activities under the National
Pollution Discharge Elimination System (NPDES).
While MFA certainly supports and promotes responsible forest
management to protect and improve water quality, we do not agree there
is a need for this additional burden of unnecessary Federal regulation
and expense on Minnesota's non-industrial private forest landowners.
Studies show that forest management activities in Minnesota contribute
very little to the pollution of our water resources. More importantly,
Minnesota has very effective voluntary programs in place to protect
water quality. These include extraordinarily high voluntary compliance
with water quality and wetland best management practices, the
development and implementation of new timber harvesting and forest
management guidelines that also address water quality, and many
continuing education opportunities for both landowners and resource
managers.
Thank you for considering our request. We are counting on your
support to prevent this unnecessary and expensive new Federal
regulation.
Sincerely,
Terrance J. Weber,
Executive Director.
______
Kentucky Forest Industries Association,
March 21, 2000.
Hon. Jim Bunning,
U.S. Senate,
Washington, DC.
Dear Senator Bunning: As Chairman of the State Tree Farm Committee
our organization represents 937 tree farmers which manage over 242,000
acres. All of these forest landowners practice sustainable forestry and
are certified by professional foresters as members of the American Tree
Farm System. These forest landowners are exemplary stewards of the
forest and practice responsible forest management as members of the
most successful voluntary forest conservation program in the United
States.
On behalf of the Tree Farmers in Kentucky I would like to make you
aware of our opposition to EPA changing the definition of silviculture
from a nonpoint source to a point source of pollution. This would
require permits for forests activities and has the potential to stop
forest management and destroy our grooving wood industry in Kentucky
State studies have shown that less than 3 percent of non-point source
pollution originates from logging and forest management activities. In
addition this small amount of pollution has been addressed by the State
with the passage of the Forest Conservation Act in 1998 which makes
silviculture best management practices for water quality mandatory
starting in July of 2000.
Current regulations more than address potential pollution problems
related to silviculture. It would make much better sense to allow State
regulations to address problems and increase EPA 319 grant finding for
voluntary programs to educate and inform private forest landowners. I
appreciate the opportunity to comment on this important issue and would
be glad to supply any additional information on this subject.
Sincerely,
Steve Rogier,
Kentucky Tree Farm Chairman.
______
Montana Forest Owners Association,
Montana Tree Farm Committee,
Evaro, MT, March 22, 2000.
Hon. Max Baucus,
U.S. Senate,
Washington, DC.
Subject: Proposed Revisions to the Water Quality Planning and
Management Regulation
Dear Senator Baucus: I am current chair of the Montana Tree Farm
Committee and president of the Montana Forest Owners Association.
Together, our organizations directly represent 400 nonindustrial
private forest landowners in Montana who practice sustainable forestry;
indirectly, we speak for thousands more who are concerned with good
forest stewardship on their forest lands.
We are committed to clean water goals identified in Section 303(d)
of the Clean Water Act. We support our State's Total Maximum Daily Load
process, which successfully addresses many of the issues identified in
EPA's proposed rules. We also support Montana's Best Management
Practices program and Streamside Management Zone rules, both of which
evaluate and ensure the effectiveness of silvicultural practices in
addressing key water quality issues.
However, we do not support the proposed EPA changes, which seek to
define forest management activities as point source discharges. But we
do support improving water quality through increased flooding of
Section 319, so that voluntary programs may be developed to educate and
inform nonindustrial private forest landowners.
While all the nuances of the proposed rule changes are unclear, the
stark implication is that, for the first time, all forest management
activities undertaken by Montana landowners are subject to Federal
regulations imposed by the EPA. This EPA ruling could eventually
require that landowners obtain point source discharge permits for all
silvicultural practices--including activities ranging from timber
harvest, to thinning, to pruning, to slash disposal, to cutting the
annual family Christmas tree.
Not only does this rule legitimize a high level of Federal
intrusion into private forest land management, required permits would
add significant expense and delay to implementing forest management
plans while inhibiting many smaller landowners from even trying to
manage their forests. Further, if Federal permits are required prior to
conducting such forestry activities, individual citizens and
environmental groups will be able to challenge (either seriously or
frivolously) the issuance of these permits in Federal court.
Additionally, permitting may require Federal examination of private
lands to ensure that no possible threatened species or their habitats
exist on that land.
The EPA suggests that this rule will be implemented only on a case-
by-case basis. However, historic enlargement and imposition of Federal
regulations and the wide spread use of the court system by political
interest groups suggests otherwise. Regardless of how the rule is
interpreted now, it constitutes a very large foot of Federal control in
the very small, vulnerable, and increasingly marginalized door of
private property roots.
In the final analysis, the unintended consequences of such
rulemaking are poorly understood by environmental and land management
agencies. If the ultimate result of such heavy-handed regulations is to
dissuade nonindustrial private forest landowners from even trying to
manage their forests, then we can say good-bye to sustainable forestry
on hundreds and thousands of significant forest acreages in Montana and
millions of acres across the country. The implications of
``nonmanagement'' are not pretty. Private lands will face increased
wildfire potential (together with increased potential for loss of human
life in the wildland-urban interface) and insect and disease
infestations; further, landowners will be provided with yet another
incentive to subdivide and develop increasingly scarce open spaces and
forest land.
We believe that EPA's proposed rules, defining all silvicultural
activities as point source discharges, are ill-advised and
counterproductive. The regulatory bureaucracy mill be enlarged and
sustainable forestry practiced, especially on small forest acreages,
will be harmed.
Thank you for this opportunity to comment on this important issue.
Sincerely,
Thom Liechty,
Chair, Montana State Tree Farm Committee;
President, Montana Forest Owners Association.
______
Freeman Farm,
Knox, PA, March 21, 2000.
Hon. Rick Santorum,
U.S. Senate,
Washington, DC.
Re: EPA's Proposed Federal Water Regulation
Dear Representative Peterson: You received a copy of my letter of
January 12, 2000 directed to Ms. Carol Browner, Administrator in
opposition to the EPA's proposed Federal water regulations under
section 303(d) of the Clean Water Act. Thanks for your reply of
February 9, 2000. We have been advised that of the nearly 30,000
comments sent to EPA regarding their proposed ruling, roughly 70
percent related to the forestry issue The Tree Farm community
represented approximately 14 percent of the total.
Joan and I are one of the 1378 Pennsylvania's Tree Farmers and
65,000 National Tree Farm forest landowners whose practices are
certified as sustainable by professional foresters. Along with other
Tree Farmers in the State we support clean water. These forest
landowners are exemplary stewards upholding nearly 60 years of
responsible forest management and members of the most successful
voluntary conservation program in the history of United States.
We ask that you say ``NO'' to the EPA's proposed rule charge and
permitting forestry activities on private lands. Please say, ``YES'' to
improving water quality through increased finding of Section 319, so
that voluntary programs (like the successful American Tree Farm System)
may educate and inform private forest landowners.
Sincerely,
George W. Freeman,
1990, 1997 Pennsylvania Tree Farmer of the Year
1998 National Tree Farmer of the Year.
______
Hon. Wayne Allard,
U.S. Senate,
Washington, DC.
Dear Senator Allard: I am the chairman of the Colorado State Tree
Farm Committee. We represent over 300 forest landowners who actively
practice sustainable forestry under the guidance of the Colorado State
Forest Service and other professional foresters. We support the use of
the Best Management Practices for the Protection of Water Quality
developed by the Colorado State Forest Service.
Our members advocate the education of private forest landowners in
the use of responsible forest management practices. We are affiliated
with the American Tree Farm System, which has a sixty-year history of
responsible forest management throughout the United States. Tree
Farmers have established the most successful voluntary forest
conservation program in the history of this country.
I am writing today to ask for your help in preventing the
Environmental Protection Agency from making a big mistake. The EPA is
proposing revisions to the Total Maximum Daily Load (TMDL) and National
Pollutant Discharge Elimination System (NPDES) permit programs. We
believe that these changes will shift regulation of forest management
activities from State-level to Federal supervision.
These revisions will require Colorado to submit costly
implementation plans for every TMDL. Worse still, they may alienate
many forest landowners who, through our efforts and those of the
Colorado State Forest Service, have voluntarily chosen to practice
responsible forest management on their property.
I urge you to review and reject EPA's proposed revisions and then
support improving water quality through increased funding of Section
319, so that voluntary programs (like those of the American Tree Farm
System and the Colorado State Forest Service) may educate and inform
private forest landowners.
Thank you for considering our suggestion.
Colorado State Tree Farm Committee:
Wes Rutt, Chair,
Michael Hughes, Secretary,
Wayne Baasch,
Ray Ramos,
Gary Hiner,
Ray Mehaffey, Vice Chair,
Joel Stewart, Treasurer,
Raul Bustamante,
John Smethurst,
Jan Hackett.
______
Charlane Plantation,
March 20, 2000.
Senator Michael Crapo,
U.S. Senate,
Washington, DC.
Dear Senator Crapo: As the current National Outstanding Tree
Farmers as named by the American Forest Foundation and the American
Tree Farm System, we represent some 65,000 Tree Farmers across our
country managing over 25,000,000 forested acres. We are writing you
about our concern for one of the most important issues ever to face us.
I'm sure that you are aware of the issue of Total Maximum Daily Loads,
or TMDL's, as they pertain to forestry. Mainly, that forestry
activities have in the past been considered a non-point source of
TMDL's, and that the EPA is now seeking to make forest activities a
point-source. It is certainly no secret that all of the American Tree
Farmers in our country have always supported clean water, air, and
sustainable forestry practices, and therefore stand as shining examples
of good stewards of the land. As you may be aware, by it's own
admission the EPA has determined that forestry has contributed less
that 7 percent of the levels of TMDL's. In 1996, EPA dropped forestry
from it's list of leading sources of river and stream impairment. It is
therefore absolutely shocking and staggering to all of us in the
forestry community that the EPA would seek to change the current status
of forestry activities. This change amounts to punishing all of the
private landowners that supply our country with the all-important
resource of wood for the good stewardship practices that we have been
following for nearly 60 years. The American Tree Farmers stand as one
of the finest group of practicing environmentalists in the world. As
private landowners, we are and always have been concerned with sound
environmental practices, and to be subjected to this outrageous
regulation is more than a slap in the face for us. Please say NO to
this unreasonable rule change that would cause permitting of forestry
activities on our private lands. Please say YES to improving water
quality through voluntary programs like the successful American Tree
Farm System, that educate and inform private forest landowners. Thank
you for your kind attention to this matter.
Sincerely,
Chuck and Rose Lane Leavell,
National Outstanding Tree Farmers, 1999-2000.
______
Statement of Sharon Buccino, Senior Attorney, Natural Resources
Defense Council
Mr. Chairman and members of the committee: Thank you for the
opportunity to talk with you today about critical steps needed to
address the more than 20,000 water bodies across the country that still
do not meet water quality standards. My name is Sharon Buccino. I am a
Senior Attorney in the public lands program of the Natural Resources
Defense Council (NRDC). NRDC is a non-profit organization with over
400,000 members across the country. NRDC's members depend on clean
water to enhance their quality of life and protect their health.
NRDC supports EPA's efforts to revive the Clean Water Act's (CWA)
Total Maximum Daily Load (TMDL) program. We also support EPA's proposal
to eliminate the current regulatory exemption for silviculture from the
CWA's National Pollutant Discharge Elimination System (NPDES) permit
requirements. I will make four main points in my testimony today.
First, I want to clarify that EPA's silviculture proposal applies only
to point sources. Second, I will provide some examples demonstrating
the need for the EPA's new regulations--where silviculture point
sources are causing significant water pollution and therefore an NPDES
permit is appropriate. Third, I will explain EPA's legal authority for
eliminating the silviculture exemption. Fourth, I will explain why non-
point sources should be included in the TMDL process.
In 1972, Congress recognized that technology-based controls alone
would not deliver clean water to the American public. Congress
established the TMDL program to identify those water bodies which did
not meet water quality standards and to develop a plan to restore the
water quality of these impaired waters. Until recently, the TMDL
program was largely ignored. Citizens across the country had to bring
suit to force EPA and States to begin to address their obligations
under the program. Yet, despite this effort, almost 40 percent of the
Nation's waters assessed by States still do not meet water quality
standards. These polluted waters include approximately 300,000 miles of
river and shoreline and 5 million acres of lakes.
More needs to be done by EPA and the States if the TMDL program is
to succeed in cleaning up our nation's waters. EPA has proposed changes
to the TMDL regulations, as well as a few changes to the regulations
for point source discharge permits under the NPDES program that it
believes will improve the implementation of the program. NRDC supports
some aspects of the proposed rule and opposes others, but we strongly
support effective implementation of the TMDL program, most of which is
already in the existing statute and regulations, to clean up impaired
waters.
One important piece of EPA's proposed rule changes is the proposal
to eliminate the current exemption that silvicultural point sources
enjoy from NPDES permit requirements. Logging and logging roads degrade
water quality in many parts of the country. Numerous scientific studies
document the harm to water quality and aquatic ecosystems caused by
logging and logging roads. Current State practices fail to address
adequately water pollution from logging activities. Where a
silviculture activity meets the statutory definition of point source
and it is causing significant water pollution, there is no excuse for
not requiring a discharge permit. Timber companies should not be exempt
from CWA requirements that other industries must comply with. EPA has
appropriately decide to eliminate the special carve-out from CWA
requirements that timber companies now enjoy.
The American public has already waited almost 30 years for
effective implementation of the TMDL program. NRDC has urged EPA to
move forward expeditiously with new regulations that will make the TMDL
program more efficient and effective. We hope Congress will not
interfere with this progress. In particular, we urge Congress not to
adopt the legislation proposed by Senators Lincoln and Hutchinson. I
have with me today a letter signed by over 250 organizations and
citizens across the country opposing the exemptions for timber
companies from CWA requirements contained in S. 2041 and S. 2139. I
have attached this letter as Attachment 1 to my testimony and ask that
it be entered into the record.
I. EPA'S SILVICULTURE PROPOSAL DOES NOT AFFECT NON-POINT SOURCES.
Significant misunderstanding exists about the scope of EPA's
silviculture proposal. It does not affect non-point sources. The
proposed EPA regulations seek to facilitate better implementation of
the TMDL program by amending existing regulatory exemptions for certain
silvicultural point sources to require, on a case-by-case basis, the
issuance of NPDES permits by EPA or delegated States where necessary to
implement wasteload allocations identified in the TMDL process. The
Clean Water Act only requires NPDES permits from point sources. EPA's
proposal does nothing to require permits from non-point silvicultural
activities. The proposal simply eliminates the blanket exemption from
the definition of point source that most silvicultural activities have
enjoyed pursuant to regulation.
The only silvicultural activities potentially affected by EPA's
proposal are those that fall within the statutory definition of point
source. The Clean Water Act defines ``point source'' to mean:
any discernible, confined and discrete conveyance, including
but not limited to any pipe, ditch, channel, tunnel, conduit,
well, discrete fissure, container, rolling stock, concentrated
animal feeding operation, or vessel or other floating craft,
from which pollutants are or may be discharged. This term does
not include agricultural stormwater discharges and return flows
from irrigated agriculture.\1\
---------------------------------------------------------------------------
\1\ 33 U.S.C. Sec. 1362(14).
Activities that do not involve a confined and discrete conveyance
are completely outside the scope of EPA's silviculture proposal.
EPA's silviculture proposal does not even appear to cover all point
sources. After having identified the set of activities that would be
considered ``point sources'' under the Clean Water Act, EPA only
proposes to consider requiring an NPDES permit where: (1) those
activities affect an impaired water body, that is a stream, lake or
estuary that fails to meet water quality standards; (2) EPA has written
a TMDL, presumably as a result of a State failure to do so; and (3) a
specific finding has been made that the activity contributes to a
violation of water quality or is a significant contributor of
pollutants to waters of the United States. Where such conditions exist,
it is entirely logical and appropriate to use the NPDES system as the
mechanism to ensure that appropriate pollution controls are adopted by
those sources.
EPA's proposal will not affect those silviculture operations that
are taking appropriate steps to prevent water pollution. If a timber
company is following all the best management practices (BMPs) adopted
by a State and those BMPs are effective in preventing water pollution,
EPA's proposal will not apply. In this case, either the affected water
body will not be in violation of water quality standards or, if the
water body is impaired, other sources are the problem. Both the
preamble and the regulatory text of EPA's proposal clearly State that
the Agency will only consider requiring an NPDES permit from a
silviculture activity not previously regulated if the activity is a
significant source of a water pollution problem.
Unfortunately, there are many places where silviculture operators
are not taking the steps necessary to prevent water pollution. It is
these operations that are the subject of EPA's proposal. This is why
EPA's silviculture proposal is an important step toward delivering
clean water to the American public.
II. SILVICULTURAL ACTIVITIES CONTRIBUTE SIGNIFICANTLY TO WATER
POLLUTION IN MANY PARTS OF THE COUNTRY
Numerous States have identified various silvicultural activities as
sources contributing to the water quality impairment of water bodies
listed under Section 303(d) of the Clean Water Act. In the 32 States
that report source information to EPA as part of their 303(d) lists,
approximately 350 are impaired as a result of silvicultural activities
including harvesting and logging road construction/maintenance. See,
EPA Access97 TMDL/303(d) Data base, summary table attached as
Attachment 2. In Montana alone, 193 of the listed water bodies are
impaired as a result of ``silviculture.'' Id. An additional 33 water
bodies are affected by logging roads and maintenance. Id. Still another
30 water bodies are listed because of harvesting. Id.
Of the remaining States that do not report source information in
their 303(d) lists, significant logging occurs in several. These States
include Idaho, Washington, Oregon, Colorado, Kentucky, and Vermont.
Information gathered from the Idaho Department of Environmental Quality
indicates that of 731 water quality limited stream segments on the
State's 1998 303(d) list, 573 are listed for sediment. Of these, at
least 220 are listed primarily because of silvicultural practices on
public land. Senator Crapo, I have brought a map of Idaho that vividly
demonstrates the extent of the problem in your State. The map is
attached as Attachment 3.
Furthermore, in many cases, logging activities have a detrimental
impact on water quality even though the effect may not result in the
violation of a water quality standard. State 303(d) lists only include
those water bodies where violations of water quality standards have
occurred. The list of streams and other waters harmed by logging
activities is much longer than the list of affected 303(d) water
bodies.
Numerous scientific studies document the harm to water quality and
aquatic ecosystems caused by logging and roads. Roads and logging can
significantly degrade stream ecosystems by introducing high volumes of
sediment into streams, changing natural streamflow patterns, and
altering stream channel morphology. NRDC has recently published an
annotated bibliography that provides an overview of primary research,
almost all from peer-reviewed journals, documenting the adverse
environmental impacts of roads and logging. NRDC, End of the Road: The
Adverse Ecological Impacts of Roads and Logging, A Compilation of
Independently Reviewed Research (December 1999). A few of the many
studies summarized in the NRDC bibliography are discussed in more
detail below. The chapter relevant to water quality is attached as
Attachment 4.
In one study, scientists found that logging activities in steep and
high-rainfall forests of Oregon, Washington, British Columbia and
Alaska accelerated erosion rates thus increasing sedimentation rates of
streams. Chamberlin, T.W., R.D. Harr and F.H. Everest. 1991. Timber
harvesting, silviculture, and watershed processes. American Fisheries
Society Special Publication 19: 181-205. Sedimentation and altered
stream structure reduced available fish cover and food supplies. Id. In
another, scientists found the volume of fine sediment present in
streams increased in direct proportion to logging in the watershed and
stream crossings by roads. Eaglin, G.S. and W.A. Hubert. 1993. Effects
of logging and roads on substrate and trout in streams of the Medicine
Bow National Forest, Wyoming. North American Journal of Fisheries
Management 13: 844-846. Still another study found that 30 years after
clearcut logging occurred, average and peak stream flows in the
watershed studied were still higher than pre-logging flows. Troendel,
C.A. and R.M. King. 1985. The effect of timber harvest on the Fool
Creek Watershed, 30 years later. Water Resources Research 21: 1915-
1922. Another study found that forest road erosion was a source of fine
sediment in stormflow runoff, even after mitigation measures. Swift
Jr., L.W. 1984. Soil losses from roadbeds and cut and fill slopes in
the Southern Appalachian Mountains. Southern Journal of Applied
Forestry 8: 209-216. In still another study, scientists found that
forest roads extended the natural channel network, initiated new
channels, and increased the susceptibility of steep slopes to
landsliding. Montgomery, D.R. 1994. Road surface drainage, channel
initiation, and slope instability. Water Resources Research 30: 1925-
1932. This study specifically found that road cuts intercepted
subsurface flow and diverted it to roadside ditches. Id.
III. CURRENT STATE PRACTICES FAIL TO ADDRESS ADEQUATELY WATER POLLUTION
FROM SILVICULTURAL ACTIVITIES
State forest practices have not adequately addressed water
pollution from logging, road construction and other silvicultural
activities. Logging on State and private lands is generally governed by
State forest practices. The quality of State forest practices varies
widely across the country. While many States have developed some kind
of best management practices (BMPs) for logging, the rigor of these
operational guidelines varies from State to State. In most States,
compliance with BMPs is merely voluntary. Even in States where BMPs are
enforceable, State agencies lack the resources to monitor adequately
compliance with the BMPs or their effectiveness in protecting water
quality. Furthermore, few States require logging operators to provide
prior notice either to the State or to the public of timber harvesting.
Consequently, States have little or no opportunity to limit the
environmental damage before it occurs.
In Tennessee, for example, non-compliance with the State's
voluntary BMPs has led to significant environmental damage. At one
highly visible cut along U.S. Interstate 40, State inspectors
responding to numerous citizen complaints found that logging operations
only complied with 9 percent of the BMPs. Large volumes of sediment
have washed into numerous small streams from the site's steep, denuded
hillsides, eventually ending in the Tennessee River and the Buffalo
River. Dogwood Alliance, Report on the Humphreys County, Mid-South Cut
(January 2000). According to the Dogwood Alliance, a non-profit citizen
organization, over 98 percent of all soil erosion on forested lands in
Tennessee can be traced to roads, skid trails, and log landings. Id.
I have brought a couple of photos with me that illustrate quite
vividly the damage logging practices can cause. One is a photograph of
a skid trail at the Humphreys County, Mid-South cut. The second is a
photograph of the stream below the skid trail. It is this kind of
activity and damage that make EPA's silviculture proposal necessary.
When logging occurs in a way that does not cause these kinds of
results, EPA's proposal does not apply. When logging occurs in way that
does cause these results, a permit is entirely appropriate to prevent
the harm. I think few would disagree that the skid trail pictured here
is a ``discernible, confined and discrete conveyance . . . from which
pollutants are discharged'' into a stream. Since the skid trail falls
within the CWA's definition of point source, the Act requires the
timber operator to obtain an NPDES permit before discharging any
sediment or debris into the stream below. These photographs are
attached as Attachment 5.
In West Virginia, water pollution from logging activities goes
unregulated and timber companies are fighting to stay free from
environmental controls. See, Ward, K., ``Timber, farming fight to
remain unregulated,'' Charleston Gazette (August 27, 1999). Compliance
with the State's BMPs is effectively voluntary. As a result, the BMPs
are frequently not followed and logging and road construction has led
to significant degradation of water quality. ``Timber has few
regulations,'' Charleston Gazette (November 25, 1996). Even where the
BMPs are followed, significant environmental damage can result. At one
timber cut in Monongalia County, for example, the logger mulched the
road as required by the State BMPs, but the road still washed away
resulting in sediment buildup in the nearby stream. Id.
Virginia's logging guidelines are also voluntary. While the
Virginia Department of Forestry has the authority to fine loggers if
they pollute a stream or river, the agency has rarely done so. The
Department's director, Jim Garner, describes the Department of
Forestry's philosophy as a ``soft approach'' to making sure loggers do
not pollute the State's rivers and streams. See, Nixon, R. and M.
Hudson, ``Foresters Take Low-Key Approach,'' Roanoke Times (November
23, 1998). In fact, evidence shows widespread noncompliance. An annual
audit of logging sites by the Department found more than 90 percent
failed to meet all the agency anti-erosion guidelines. Id. One forest
warden has described the impact of unregulated forest practices on
water quality as follows: ``I've seen streams completely destroyed.
Afterwards, you don't know where the stream channel was. It's all a big
muck.'' Id.
Significant damage to water quality from logging occurs even in
States with arguably the best forest practices, like California and
Oregon. In California, over 30 water bodies are listed as impaired
because of logging or logging roads. A recent report by an independent
scientific review panel concluded that California's forest practice
rules fail to protect beneficial uses of the waters--fisheries. Report
of the Scientific Review Panel on California Forest Practice Rules and
Salmonid Habitat, prepared for The Resources Agency of California and
the National Marine Fisheries Service (June 1999). In particular, the
report documents the failure of California's forest practice rules to
protect anadromous salmonid populations. Id. at i. Sedimentation and
turbidity from roads and logging have interfered with salmon spawning.
Id. at 12. In reviewing California's Coastal Nonpoint Pollution Control
Programs, the National Oceanic and Atmospheric Administration and EPA
explicitly found that ``additional [forestry] management measures are
necessary in order to attain and maintain water quality standards.''
EPA/NOAA, Coastal Zone Act Reauthorization Amendments (CZARA) Findings
(July 1998), notice of availability published in 63 Fed. Reg. 37094
(July 9, 1998).
Although revised in 1994, the Oregon Forest Practices Act and its
implementing regulations fail to ensure attainment of water quality
criteria, meet antidegradation requirements or fully protect aquatic
species, including imperiled salmon and trout. In data collected
pursuant to Section 305(b) of the CWA, Oregon's Department of
Environmental Quality conservatively estimates that over 25 percent of
all stream miles now listed for temperature impairment are on private
forestlands. This is true despite general compliance with current
standards and guidelines. The current policies do not restrict riparian
harvest adequately to ensure full protection of salmonid and other
aquatic life from habitat degradation related to sediment, altered
temperature regimes (due to shade reduction and management-related
stream morphology changes) and depletion of instream large wood. See
e.g., National Marine Fisheries Service, ``A Draft Proposal Concerning
Oregon Forest Practices.'' (submitted to the Oregon Board of Forestry
Memorandum of Agreement Advisory Committee and the Office of the
Governor February 17, 1998).
Oregon's official State science team concluded that ``current rules
for riparian protection, large wood management, sedimentation, and fish
passage are not adequate to reserve depressed stocks of wild
salmonids.'' The scientists recommended greater vegetation retention in
riparian areas and landslide paths, protection of floodplains, better
control of road-related sedimentation and other measures. Independent
Multidisciplinary Science Team. 1999. Recovery of Wild Salmonids in
Western Oregon Forests: Oregon Forest Practices Act Rules and the
Measures in the Oregon Plan for Salmon and Watersheds. Technical Report
1999-1 to the Oregon Plan for Salmon and Watersheds, Governor's Natural
Resources Office, Salem, Oregon.
The current Oregon program is particularly weak in its protection
for small streams, where little or no vegetation retention is required.
NMFS, ``A Draft Proposal Concerning Oregon Forest Practices.''
Monitoring data shows significant post-harvest temperature increases
for portions of smaller streams lacking riparian protections (Oregon
Department of Forestry, Riparian Functions Issue Paper, 1999), as well
as increased fine sediment. Thom, B.A., K.K. Jones, and R.L. Flitcroft.
1999. Stream Habitat Conditions in Western Oregon. Monitoring Program
Report 1999-1 to the Oregon Plan for Salmon and Watersheds, Governor's
Natural Resources Office, Salem, Oregon.
IV. FEDERAL LOGGING GUIDELINES ALSO FAIL TO ADDRESS ADEQUATELY WATER
POLLUTION FROM SILVICULTURAL ACTIVITIES.
In addition to logging on State and private lands, significant
logging occurs on lands managed by Federal agencies, primarily the U.S.
Forest Service (USFS) and the Bureau of Land Management (BLM). The
National Forest Management Act provides for standards and guidelines
for logging in the national forests. 16 U.S.C. Sec. 1600 et seq. BLM
manages its land under the Federal Land Policy and Management Act. 43
U.S.C. Sec. 1701 et seq. Forest management plans incorporate best
management practices to address water quality impacts from logging and
logging roads. For the most part, these standards are more rigorous
than State guidelines. See, e.g., GAO, Public Timber: Federal and State
Programs Differ Significantly in Pacific Northwest, GAO/RCED-96-108
(May 1996), at 4-6.
Even Federal BMPs, however, fail to protect water quality
adequately. Logging continues to add large loads of sediments to
streams, destroying fish habitat, modifying stream flows, changing
stream temperatures, and altering stream channels. Logging on Federal
lands has also led to massive landslides, damaging property and costing
lives, as well as ravaging ecosystems. ``Siuslaw Study Ties Landslides
to Roads, Clear-cuts,'' The Oregonian (May 23, 1997). In some
instances, sedimentation has been so severe that it has shut down
drinking water supplies. GAO, Oregon Watersheds: Many Activities
Contribute to Increased Turbidity During Large Storms, GAO/RCED-98-220
(July 1998), at 4, 6 (describing contribution of human activities,
including timber harvesting, to the shut down of the water treatment
system in Salem, Oregon, in February, 1996).
In Alaska's Tongass National Forest, the USFS has documented the
failure of BMPs to protect water quality adequately. In its 1995 report
to Congress, Anadromous Fish Habitat Assessment, the USFS stated:
Current practices on the Tongass do not meet either the goal
of the Tongass Land Management Plan to ``preserve the
biological productivity of every fish stream on the Tongass,''
or the long-term goal of avoiding the possible need for listing
of salmon and steelhead stocks under the Endangered Species
Act. . . . [T]imber harvest practices on the Tongass observed
as part of this study were found to increase risk over natural
risk levels to both habitat productivity and to individual
stocks of salmon and steelhead.
USFS, Anadromous Fish Habitat Assessment (AFHA) (1995), at 7. The
USFS stated further, ``even completely implementing current procedures
would not be fully effective in protecting anadromous fish habitat
productivity and salmon and steelhead stocks over the long term.'' Id.
Among other things, the AFHA report specifically addressed the
detrimental environmental impacts associated with the location and lack
of maintenance of roads constructed to facilitate clearcutting on
Tongass National Forest lands. The USFS found:
[p]roblems were noted associated with design, construction,
maintenance, mitigation, and closure of roads, especially on
steep, unstable slopes. Stream crossings are sometimes designed
for less than critical flow, and ditch relief culverts are
sometimes not sufficient to maintain the hydrology of steep
slopes, hollows, and wetlands Culvert crossings of roads on
steep mountain-slope channels was another concern These
culverts have a tendency to fail and plug with bedload,
becoming persistent maintenance problems.
AFHA, Appendix C, at 37.
More recently, in its 1998 Annual Monitoring and Evaluation Report,
the USFS discusses the failure of current Fish and Riparian Standards
and Guidelines to effectively maintain and improve fish habitat.
According to the study and analysis of the Petersburg Ranger District,
455 miles of road have been surveyed. Of the 107 crossings on Class I
streams, the Forest Service assumes that 50 percent of these culverts
do not allow for the successful passage of fish. The statistics are
even worse for the 257 Class II streams that were surveyed: about 85
percent of these culverts are not adequate to pass fish. USFS, Annual
Monitoring and Evaluation Report for Fiscal Year 1998, at 22 (``10
percent may not be adequate''; ``75 percent are assumed inadequate to
pass fish at all design flows'').
The problem with culverts is not limited to the Petersburg
district. A recent effectiveness monitoring study in Hoonah, Alaska,
revealed that from a total of 13 Class I stream culvert crossings
identified ``all of these . . . were judged to have characteristics
that impede upstream migration by adult and/or juvenile anadramous
fish.'' See Riley & Paustian, Fish Passage at Selected Culverts
Crossings on the Hoonah District Road System (March 23, 1999), at 1-2.
In addition, 17 of the 19 Class II culvert crossings surveyed were
``judged to be partial or complete upstream migration barriers for
resident fish species.'' Id.
It is worth repeating that where timber companies and States and
getting the job done to protect water quality, EPA's silviculture
proposal will not apply. EPA's proposal is necessary because
unfortunately the job is not getting done in many places.
V. THE CLEAN WATER ACT SUPPORTS EPA'S ACTION
Contrary to the claims of some, the CWA supports, even arguably
requires, EPA's action. The CWA itself contains no exemption for
silvicultural activities from the definition of ``point source.'' The
only explicit statutory exclusion from the definition of point source
is for agricultural stormwater discharges and return flows from
irrigated agriculture.\2\
---------------------------------------------------------------------------
\2\ 33 U.S.C. Sec. 1362(14).
---------------------------------------------------------------------------
Courts have consistently found that the list provided in the CWA's
definition of point source is not exhaustive. See, e.g., Kennecott
Copper Corp. V. EPA, 612 F.2d 1232, 1243 (10th Cir. 1979) (Congress
defined ``point source'' broadly so that it would be applicable to
thousands of contemplated point sources, not all of which would
possibly be enumerated); U.S. v. Earth Sciences, Inc., 599 F.2d 368,
373 (10th Cir. 1979) (Congress defined point source broadly to include
``any identifiable conveyance from which pollutants might enter the
waters of the United States'').
Courts have also held that the definition of point source should be
interpreted broadly to further the purposes of the CWA. Earth Sciences,
599 F.2d at 373 (``We believe it contravenes the intent of FWPCA and
the structure of the statute to exempt from regulation any activity
that emits pollution from an identifiable point.''); Quivira Mining Co.
v. EPA, 765 F.2d 126, 129-30 (10th Cir. 1985), cert. denied, 474 U.S.
1055 (1986)(``it was the clear intent of Congress to regulate waters of
the United States to the fullest extent possible''); Community Ass'n
for Restoration of the Environment v. Sid Koopman Dairy, 54 F.Supp.2d
976, 981 (E.D.Wash. 1999) (manure spreading operations considered point
source to further clear intent of Congress in the CWA to insure that
animal wastes do not pollute the water of the United States);
Washington Wilderness Coalition v. Hecla Mining Co., 870 F.Supp. 983,
988 (E.D. Wash. 1994) (`` `point source' must be interpreted broadly to
effectuate the remedial purposes of the CWA''). The CWA's purpose is to
restore and maintain the quality of the nation's waters.\3\ Regulating
silvicultural activities that meet the statutory definition of point
source and which convey pollutants, such as sediment, into impaired
streams furthers this purpose.
---------------------------------------------------------------------------
\3\ 33 U.S.C. 1251(a).
---------------------------------------------------------------------------
In the absence of clear statutory language excluding silvicultural
activities from the definition of point source, EPA has the authority
to include them. In NRDC v. Costle, the U.S. Court of Appeals for the
D.C. Circuit explicitly held that ``the power to define point and
nonpoint sources is vested in EPA.'' 568 F.2d 1369, 1382 (D.C.Cir.
1977). This is consistent with the deference courts have given to
agency interpretations of broad statutory language. See, e.g., Chevron
U.S.A. Inc. V. NRDC, 467 U.S. 837, 842-45 (1984) (if the statute is
silent or ambiguous with respect to a specific issue, the question for
the court is whether the agency's answer is reasonable).
Since the only basis for the current categorical exemption of most
silvicultural activities from the definition of point source is an EPA
regulation, EPA has the authority to change this regulation as long is
such change has a rational basis. Chevron, 467 U.S. at 863-64 (``An
initial agency interpretation is not instantly carved in stone. . . .
[T]he agency . . . must consider the wisdom of its policy on a
continuing basis.''); Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto
Ins. Co., 463 U.S. 29, 42 (1983) (recognizing that ``[r]egulatory
agencies do not establish rules of conduct to last forever'' and must
be given ``ample latitude'' to adapt their rules and policies); Center
for Science v. Department of Treasury, 797 F.2d 995, 998-1000 (D.C.Cir.
1986) (noting that an agency may change its course with or without a
change in circumstances as long as it provides a reasoned analysis).
As explained above, eliminating the point source exemption for most
silvicultural activities is necessary to address water quality problems
in many areas of the country. Logging and logging roads have introduced
high volumes of sediment into streams and changed natural streamflow
patterns. Silvicultural activities have contributed to the impairment
of numerous water bodies. In order to meet their obligations under the
CWA to restore and maintain the quality of the nation's waters, EPA and
the States must be able to limit silvicultural discharges.
While some silvicultural activities may fall outside the statutory
definition of point source, others do not. Courts have characterized
point sources as those activities that can be isolated as the source of
pollution. Earth Sciences, 599 F.2d at 371; Avoyelles Sportmen's
League, Inc. V. Marsh, 715 F.2d 897, 922-25 (5th Cir. 1983) (vehicles,
such as bulldozers, involved in land clearing activities are point
sources); Beartooth Alliance v. Crown Butte Mines, 904 F.Supp. 1168,
1173 (D.Mont. 1995) (nonpoint sources are limited to uncollected runoff
which is difficult to ascribe to a single polluter).
In some cases, it is certainly possible to identify silvicultural
activities as point sources that cause water impairment. Sediment from
logging and logging roads may be conveyed into streams and other waters
during storm events through channels or ditches. The Tennessee skid
trail is a good example of the kind of silviculture activity that falls
within the statutory definition of point source. In these cases, it is
entirely appropriate, and in fact legally required by the CWA, to
require an NPDES permit.
Eliminating the silviculture exemption as proposed does not
unlawfully preempt State authority. While Section 319 of the CWA gives
States primary responsibility for the development non-point source
controls, EPA's proposal only addresses point sources. EPA proposes to
change the regulatory definition of ``silvicultural point source'' to
eliminate the categorical exclusion of most silvicultural activities.
Any regulation of silvicultural activities would still be limited to
those activities that fall within the statutory definition of point
source.\4\
---------------------------------------------------------------------------
\4\ See 33 U.S.C. 1362(14).
---------------------------------------------------------------------------
No previous case law bars EPA's action. Given the existing
regulatory silviculture exemption from the definition of point sources,
courts have not had to address the issue of whether a particular
silvicultural activity falls within the statutory definition of point
source. Courts have deferred to EPA's previous decision to exclude
silvicultural activities from point source controls. Likewise, courts
will defer to EPA's decision now to include silvicultural activities as
long as a rational basis exists for doing so.
Where Congress intended to exclude silvicultural activities from
CWA requirements it explicitly did so. For example, in Section 404 of
the CWA regulating the discharge of dredged or fill material, Congress
listed ``silviculture,'' in addition to and separate from
``farming.''\5\ Also in Section 404, Congress listed ``forest roads,''
in addition to and separate from ``farm roads.''\6\ In contrast, the
exception from the statutory definition of ``point source'' is limited
to ``agricultural stormwater discharges and return flows from irrigated
agriculture.''\7\ Congress did not include silviculture in the
exemption. Consequently, it should not be read into the exemption. See
Indep. Bankers Ass'n of Am. V. Farm Credit Admin., 164 F.3d 661, 667
(D.C.Cir. 1999) (``[W]here Congress includes particular language in one
section of a statute but omits it in another section of the same Act,
it is generally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion.'') (internal quotation marks
omitted) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)).
---------------------------------------------------------------------------
\5\ 33 U.S.C. 1344(f)(A).
\6\ 33 U.S.C. 1344(f)(E).
\7\ 33 U.S.C. 1362(14).
---------------------------------------------------------------------------
VI. NON-POINT SOURCES SHOULD BE INCLUDED IN THE TMDL PROCESS
As explained above, EPA's silviculture proposal does not require
permits from non-point sources. In fact, nothing in EPA's proposed
changes to the TMDL and NPDES rules requires permits from non-point
sources. EPA has acknowledged that States have the primary
responsibility to regulate non-point sources. The TMDL process is a
critical mechanism for ensuring that controlling pollution from non-
point sources is efficient and effective. The TMDL process will
accomplish little if it does not consider pollution from non-point
sources.
Excluding non-point sources from a program designed to address
aggregate pollution rather than discrete sources would make virtually
no sense. The purpose of the TMDL program is to address situations
where point source controls have not done the job in meeting water
quality standards. Section 303(d) requires each State to identify
waters where technology-based controls (i.e., the effluent limitations
applicable to point sources under Section 301) are inadequate to attain
water quality standards. Unfortunately, in many circumstances, control
of point sources alone is insufficient to meet water quality
standards.\8\ Approximately 90 percent of the waters listed by States
as impaired fail to meet water quality standards at least in part as a
result of polluted runoff from diffuse or non-point sources.
Approximately half of all impaired water bodies violate water quality
standards as a result of non-point sources alone. Excluding these
waters from the TMDL program would simply ignore the problem rather
than provide an effective means of restoring water quality.
---------------------------------------------------------------------------
\8\ 33 U.S.C. 1313(d)(1)(A).
---------------------------------------------------------------------------
Moreover, excluding non-point sources from the TMDL process would
unfairly continue to force point sources to bear the lion's share of
the water pollution control price tag despite clear evidence that non-
point sources contribute substantially, and in many watersheds
exclusively, to water body impairment. For this reason, several
industries strongly support inclusion of non-point sources in the TMDL
program. The Association for Metropolitan Sewerage Agencies (AMSA), for
example, has urged Congress to support EPA's plan to expand the
regulation of non-point sources through the TMDL program. In a January
20, 2000, letter to this committee, AMSA described inclusion of non-
point sources in the TMDL program as ``critical to the success of the
Clean Water Act.''
Finally, the protracted schedule for listing and completion of
TMDLs in the proposed regulations would be entirely unnecessary, and in
fact would constitute unreasonable and unlawful delay of an already-
overdue program, if it were limited to the comparatively easy task of
identifying and quantifying point source wasteload allocations. The
proposed regulations provide States 15 years, 2 years beyond the
current 13-year schedule, to establish TMDLs for waterbodies listed as
impaired. If the TMDL process only involved point sources, there would
be little reason for such a long time period to develop TMDLs.
From a legal perspective, EPA is well within its authority, if not
subject to a legal duty, to include non-point sources in this program.
Section 303(d)(1)(A) requires States to identify all waters for which
technology-based pollution controls are not sufficient to implement any
applicable water quality standard. Section 303(d)(1)(C), in turn,
requires the development of TMDLs for all of the waters identified
under (d)(1)(A). The only waters explicitly excluded from TMDL process
are those that have attained water quality standards. All other waters
must be addressed and for them to be addressed effectively non-point
sources must be included in the mix of regulatory and non-regulatory
controls.
While the legislative history of Section 303(d) is sparse, it
clearly reflects that Congress understood that non-point sources
contribute substantially to the pollution of many watersheds and should
be taken into account in the TMDL process.\9\ As Oliver Houck, a
Professor of Law at Tulane Law School, has written:
---------------------------------------------------------------------------
\9\ H.R. Rep. No. 92-911, at 105 (1972).
The only logical interpretation of [the] legislative history
behind section 303(d) is that nonpoint sources were a big fact
of life in achieving water quality standards, and they would
have to be included in the assessments of polluted waters and
their TMDL allocations. Were they not included, a process to
ensure that municipal and industrial limits were ``consistent
with water quality standards'' would make no sense; it,
literally, could not be done.\10\
---------------------------------------------------------------------------
\10\ Houck, Oliver A., TMDLs: The Resurrection of Water Quality
Standards-Based Regulation Under the Clean Water Act, 27 Envtl. L. Rep.
10329, 10337 n. 100 (1997).
The argument that the TMDL program is intended solely to identify
additional point source controls is inconsistent with the CWA. Such
interpretation undermines the CWA's purpose to restore and maintain the
quality of the nation's waters.\11\ A program that ignores 90 percent
of the problem cannot be said to be consistent with restoring the
quality of the nation's waters. Courts avoid interpreting a statute in
a way that would produce an illogical or unreasonable result. See,
e.g., In re Pacific-Atlantic Trading Co., 64 F.3d 1292, 1303 (9th Cir.
1995). If Congress had intended to limit the TMDL program to point
sources, it would have explicitly done so. Congress used the term
``point sources'' repeatedly throughout the CWA and could have limited
Section 303(d)'s application to point sources if it so chose, but it
did not.
---------------------------------------------------------------------------
\11\ 33 U.S.C. 1251(a).
---------------------------------------------------------------------------
Contrary to critics of EPA's proposal, the Agency makes no attempt
to regulate non-point sources. A critical distinction exists between
the identification of non-point sources in a TMDL and regulation of
non-point sources. A TMDL provides a ``pollution budget,'' i.e., the
amount of a particular pollutant that a water body can bear and still
meet water quality standards. Identifying all the sources, both point
and non-point, of a pollutant is essential to completing the pollution
budget. A TMDL is also designed to allocate the budget, or maximum
load, among the various sources affecting the water body. A State's
decision to allocate load reductions to non-point sources does not
bring that operator into a permit or regulatory program. Under EPA's
proposal, a State may choose a broad range of controls, including
voluntary or incentive-based actions, to ensure that the allocations
for non-point sources are met.
VII. CONCLUSION
In my testimony, I have tried to explain the limited impact of
EPA's silviculture proposal--that it only applies to activities which
meet the statutory definition of a point source and are known to
contribute to water quality impairment. EPA's proposal would not apply
to timber companies and States that are getting the job done to
maintain and restore water quality. However, in many places the job
unfortunately is not getting done. It is these places where water
quality is impaired as a result of logging or logging roads that make
EPA's proposal necessary. I have also tried to explain the importance
of including non-point sources in the TMDL program. I hope that
Congress will recognize the need for EPA's proposal and support the
Agency's efforts to ensure clean water for all Americans.
Thank you for the opportunity to testify. I would be happy to
answer any questions that you may have.
Attachment 1
Over 200 Organizations Oppose Clean Water Act Special Interest
Loopholes (H.R. 3609, S. 2041 and S. 2139)
March 9, 2000.
Dear Senators and Representatives: We--the attached 207
organizations and 76 individual citizen clean water advocates--strongly
oppose legislative proposals recently introduced in the House and
Senate that would create a huge new special interest loophole in the
Clean Water Act for forest industries that pollute our nation's rivers,
streams, lakes and oceans.
Our organizations represent hundreds of thousands of members who
use the nation's waters for recreational, commercial and subsistence
purposes. These new bills, H.R. 3609, S. 2041 and S. 2139, would
threaten the water quality that our members and the American public
rely on for these important uses. We not only object to the substance
of these bills, we are concerned by reports that they might emerge as a
legislative rider on an appropriations bill--a particularly
inappropriate backdoor strategy for attempting to overturn a
longstanding provision of the Clean Water Act. We ask you to oppose
this anti-environmental legislation, whether it is in the form of a
stand-alone bill or a rider.
In sum, these bills would create an unprecedented statutory
exemption from the Clean Water Act's National Pollutant Discharge
Elimination System (NPDES) for logging activities that cause point
source discharges into waters of the United States. These bills have
been spurred by an aggressive misinformation campaign about a recent
rule change proposed by the Environmental Protection Agency (EPA) that
would require certain point source discharges from silvicultural
activities to obtain NPDES permits. The proposed rule would require
that logging-related direct discharges get NPDES permits only under
certain narrow circumstances, including when such discharges are
causing significant pollution of waters that are already too polluted.
Contrary to the rhetoric of those opposing this rule, EPA's proposal
only addresses point sources--it does not purport to regulate non-point
sources--and regulation of these point sources is not inconsistent with
the Agency's authority under the Act.
The Clean Water Act contains no exemption from the definition of
``point source'' for silvicultural activities. Although EPA has not
treated most silviculture activities as point sources in the past, the
Agency has found that an automatic exemption in EPA's rules is no
longer appropriate if we are to achieve the Clean Water Act's goal of
fishable and swimmable waters. In those cases where a forestry-related
practice meets the statutory definition of ``point source'' and the
activity is a significant source of water pollution, EPA and the States
must be able to regulate and control pollution from that activity. Any
regulation of logging pollution would still be limited to those
activities that already fall within the statutory definition of ``point
source.'' Logging and logging roads degrade water quality in many parts
of the country. Numerous scientific studies have documented the serious
harm to water quality and aquatic ecosystems that can be caused by
logging practices and logging roads. Roads and logging can
significantly pollute and even destroy stream ecosystems by introducing
high volumes of sediment and nutrients into streams, changing natural
stream flow patterns, and damaging vital aquatic habitats. Eliminating
the automatic exemption from point source regulation for silvicultural
activities that have point source discharges is necessary to address
water quality problems in many States.
Regardless of your view of EPA's current rulemaking proposal, there
is no legal or public policy justification for the environmentally
destructive loophole in the Clean Water Act that H.R. 3609, S. 2041 and
S. 2139 advance. These bills would weaken one of our nation's most
successful environmental laws for the benefit of a few forestry
companies at the expense of clean water. Please stand up for clean
water and responsible forestry practices by opposing H.R. 3609, S.
2041, S. 2139 and any related anti-environmental rider that would
exempt silviculture point source pollution from the Clean Water Act.
Sincerely,
Brad McLane, Alabama Rivers Alliance, Birmingham,
AL; Beth K. Stewart, Cahaba River Society,
Birmingham, AL; Kenneth Wills, Alabama
Environmental Council, Birmingham, AL; Dan
Murchison, Chilton Pride, Chilton County,
AL; Gershon Cohen, Earth Island Institute,
Haines, AK; Bob Shavelson, Cook Inlet
Keeper, Homer, AK; Shawn Porter, Arkansas
Watershed Alliance, AR; Bill Kopsky,
Arkansas Public Policy Panel, Little Rock,
AR; Nick Zunick, Senior Patrol Leader, Boy
Scout Troop Fifteen, Hot Springs, AR; David
Reagan, Ouachita Watch League, Hot Springs
Nat'l. Pk., AR; Mariah Myers, Sierra
Student Coalition, University of Arkansas,
Fayetteville, AR; Robert Lippman, Glen
Canyon Action Network, Flagstaff, AZ;
Barbara Vlamis, Butte Environmental
Council, Chico, CA; Michael McFarland,
Fresno Audubon Society, Fresno, CA; Kyle
Haines, Klamath Forest Alliance, Etna, CA;
Patricia McCoy, Southwest Interpretive
Association, Imperial Beach, CA; Mary Bull,
Save the Redwoods/Boycott the Gap Campaign,
Fort Bragg, CA; Craig Thomas, Center for
Sierra Nevada Conservation, Georgetown, CA;
Robin Mayer, Magic, Stanford, CA; Stephen
Sayre, Lassen Forest Preservation Group,
Chico, CA; Vivian Parker, Shasta Chapter,
California Native Plant Society, Kelsey,
CA; Tarren Collins, Santa Lucia Chapter/
Sierra Club, Atascadero, CA; Kent
Stromsmoe, Forestry Monitoring Project,
Martinez, CA; Geoffrey Smith, Sierra Club,
San Diego Chapter, San Diego, CA; Britt
Bailey, Center for Ethics and Toxics,
Gualala, CA; Steve Nicola, California
Indian Basketweavers Association, Nevada
City, CA; Wendy Blankenhiem, Community
Action Network, Medocino, CA; Jonathan
Kaplan, WaterKeepers Northern California,
San Francisco, CA; Dr. Rob Schaeffer, SAFE:
Save Our Ancient Forest Ecology, Modesto,
CA; Jess Morton, Audubon-Palos Verdes/South
Bay, San Pedro, CA; Ara Marderosian,
Sequoia Forest Alliance, Weldon, CA;
Christine Ambrose, Citizens For Better
Forestry, Arcata, CA; Mary Ann Matthews,
State Forestry Coordinator, California
Native Plant Society, CA; Chris Maken,
Concerned Citizens for Napa Hillsides,
Napa, CA; Redwood Mary, Plight of The
Redwoods Campaign, Ft. Bragg, CA; Tom
Wodetzki, Alliance for Democracy, Mendocino
Coast Chapter, Albion, CA; Jean Crist,
Protect Our Watershed, Magalia, CA; Chris
Poehlmann, Gualala River Improvement
Network, Annapolis, CA; Patricia M.
Puterbaugh, Lassen Forest Preservation
Group, Chico, CA; Christopher M. Papouchis,
Animal Protection Institute, Sacramento,
CA; Irvin Lindsey, Outdoor Science
Exploration, Santa Cruz, CA; Steve
Sugarman, Social & Environmental
Entrepreneurs, Malibu, CA; Alan Levine,
Coast Action Group, Point Arena, CA; Holly
Hannaway, LightHawk, Aspen, CO; Harlin
Savage, American Lands Alliance, Boulder,
CO; Jacob Smith, Wildlands Center for the
Prevention of Roads, Boulder, CO; Jon
Jensen, Center for Native Ecosystems,
Boulder, CO; Sloan Shoemaker, Aspen
Wilderness Workshop, Aspen, CO; Annie
White, CU-Sinapu, Boulder, CO; Steve
Glazer, High Country Citizens' Alliance,
Crested Butte, CO; Jeffrey A. Berman,
Colorado Wild, Boulder, CO; Margaret Miner,
Rivers Alliance of Connecticut,
Collinsville, CT; Sharon Buccino, Natural
Resources Defense Council, Washington, DC;
Steve Holmer, American Lands Alliance,
Washington, DC; Ed Hopkins, Sierra Club,
Washington, DC; Joan Mulhern, Earthjustice
Legal Defense Fund, Washington, DC;
Courtney Cuff, Friends of the Earth,
Washington, DC; Brock Evans, Federation of
Western Outdoor Clubs, Washington, DC;
Catrina Ciccone, Lutheran Office for
Governmental Affairs, Evangelical Lutheran
Church in America; Washington, DC; Nick
Brown, World Wildlife Fund, Washington, DC;
Aaron Viles, U.S. PIRG, Washington, DC;
Mike Leahy, National Audubon Society,
Washington, DC; Amy Lesser, Center for
Environmental Citizenship, Washington, DC;
Rebecca Wodder, American Rivers,
Washington, DC; James S. Lyon, National
Wildlife Federation, Washington, DC; Tim
Eichenberg, Center for Marine Conservation,
Washington, DC; Brock Evans, The Endangered
Species Coalition, Washington, DC; Doug
Sloane, Southeast Forest Project,
Washington, DC; Mary Beth Beetham,
Defenders of Wildlife, Washington, DC; Ted
Morton, American Ocean Campaign,
Washington, DC; Karsten A. Rist, Tropical
Audubon Society, Miami, FL; Beth Frazer,
Community Watershed Project, Athens, GA;
Doug Haines, Georgia Legal Watch, Athens,
GA; Ohana Foley, Student Peace Action
Network, Haiku, HI; Linda Appelgate, Iowa
Environmental Council, IA; Marti L.Bridges,
Idaho Rivers United, Boise, ID; G.A.
Bailey, Selkirk-Priest Basin Association,
Priest River, ID; Liz Sedler, Alliance for
the Wild Rockies, Sandpoint, ID; J. Dallas
Gudgell, Idaho Conservation League, Boise,
ID; Lee Halper, Land, Air & Water Society,
Jerome, ID; Chuck Pezeshki, Clearwater
Biodiversity Project, Moscow, ID; Lynne
Stone, Boulder-White Clouds Council,
Ketchum, ID; Katie Fite, Committee for
Idaho's High Desert, Boise, ID; Albert
Ettinger, Environmental Law and Policy
Center of the Midwest, Chicago, IL; Frank
Ambrose, Indiana Forest Alliance,
Bloomington, IN; Tom Anderson, Save the
Dunes Council, Michigan City, IN; Cliff
Smedley, Stewards of the Land, Johnson, KS;
Larry Zuckerman, Pure Water For Kansas,
Program of the Kansas Wildlife Federation,
Pretty Prairie, KS; Cheryl Bersaglia, Upper
Cumberland Watershed Watch, McKee, KY; Liz
Natter, Democracy Resource Center,
Lexington, KY; Jan Jennemann, Mercer Water
Watch, Salvisa, KY; Coleman Smith, Citizens
Environmental Defense League, Bowling
Green, KY; Judith D. Petersen, Kentucky
Waterways Alliance, Munfordville, KY;
Barbara Warner, Marion County Water Watch,
Lebanon, KY; Jill Mastrototaro, Lake
Pontchartrain Basin Foundation, Metairie,
LA; Cyn Sarthou, Gulf Restoration Network,
New Orleans, LA; Michael Kellett, RESTORE:
The North Woods, Concord, MA; Pine DuBois,
Jones River Watershed Association,
Kingston, MA; Josh Kratka, National
Environmental Law Center, Boston, MA; Ed
Himlan, Tom Spiro, and Brandon Kibbe, The
Massachusetts Watershed Coalition, MA; Kai
Newkirk, E.A.R.T.H. (Ecologically Aware and
Responsible Together at Hampshire),
Amherst, MA; Laura Rose Day, Natural
Resources Council of Maine, Augusta, ME;
Ray Fenner, Superior Wilderness Action
Network, St. Paul, MN; Nancy Clay Madden,
MS Coast Audubon Society, Jackson, MS;
Larry Smith, Pine Woods Audubon,
Hattiesburg, MS; Judi Brawer, American
Wildlands, Bozeman, MT; Joe Gutkoski,
Montana River Action Network, Bozeman, MT;
Jeff Juel, The Ecology Center, Inc.,
Missoula, MT; Robin Cunningham, Montana
Fishing Outfitters Conservation Fund,
Gallatin-Gateway, MT; Cold Mountain, Cold
Rivers, Missoula, MT; Cesar Hernandez,
Flathead Chapter of the Montana Wilderness
Association, Kalispell, MT; Larry Campbell,
Friends of the Bitterroot, Hamilton, MT;
Elizabeth O'Nan, Protect All Children's
Environment, Marion, NC; Dan Whittle, North
Carolina Environmental Defense, Raleigh,
NC; Cathie Berrey, Katuah Earth First!,
Asheville, NC; Rick Dove, Neuse
RIVERKEEPER, New Bern, NC; Marion Smith,
Neuse River Foundation, New Bern, NC;
Andrew George, Southern Appalachian,
Biodiversity Project, Asheville, NC; Ginger
Bush, Rockingham County Watershed
Preservation Coalition, Inc., Colfax, NC;
Hope C. Taylor, Clean Water Fund of NC,
Asheville, NC; Meredith McLeod, Hickory
Alliance, Chapter of the Blue Ridge
Environmental Defense League, Greensboro,
NC; Robert Perks, Pamlico-Tar River
Foundation, Washington, NC; John Runkle,
Conservation Council of NC, Raleigh, NC;
Candice Carr, ASHE, Active Students for a
Healthy Environment, Asheville, NC; Jean
Spooner, NCSU Water Quality Group, North
Carolina State University, Raleigh, NC;
Chuck Rice, North Carolina Wildlife
Federation, NC; Nancy L. Girard, New
Hampshire Conservation Law Foundation,
Concord, NH; Marie A. Curtis, New Jersey
Environmental Lobby, Trenton, NJ; Harold E.
Taylor, Pompeston Creek Watershed
Association, Cinnaminson, NJ; Hugh Carola,
The Fyke Nature Association, Ramsey, NJ;
Julia M. Somers, Great Swamp Watershed
Association, New Vernon, NJ; Karen R.
Halliday, New Mexico Wilderness Alliance,
Albuquerque, NM; Kerry Sullivan, Natural
Resources Protective Association, Staten
Island, NY; Day Star Chou, Flushing Greens,
Green Party of NY, NY; Kathrn Martini and
Tara Kehoe, HEART, Syracuse, NY; Gordon
Douglas, Friends of the Great Swamp,
Pawling, NY; Jennifer Nalbone, Great Lakes
United, Buffalo, NY; Manna Jo Greene,
Hudson Valley Sustainable Communities
Network, Cottekill, NY; William Peltz,
Capital District Labor-Religion Coalition
Albany, NY; Erik Holland, Civilian
Filibuster, Reno, NY; Jason Tockman,
Buckeye Forest Council, Athens, OH;
Margaret Ruff, Oklahoma Wildlife
Federation, Oklahoma City, OK; Judy Guise-
Noritake, Pacific Rivers Council, Eugene,
OR; John Taylor, Sisklyou Audubon Society,
Grants Pass, OR; Michael Donnelly, Friends
of Breitenbush Cascades, Salem, OR;
Dominick Dellasalla, World Wildlife Fund,
Klamath-Siskiyou Region, Ashland, OR; Tom
Burns, Concerned Friends of the Winema,
Chiloquin, OR; John E. Barry, Range Ecology
Group, La Grande, OR; P. Sydney Herbert,
Oregon Shores Conservation Coalition,
Portland, OR; George Hutchinson, Rogue
Group and Oregon Chapter Sierra Club, OR;
Nina Belk Northwest Environmental
Advocates, Portland, OR; Claudia McCue,
Corvallis Area Forest Issues Group, Monroe,
OR; Donald Fontenot, Cascadia Forest
Alliance, Portland, OR; Shannon Wilson,
Many Rivers Group Sierra Club, Eugene, OR;
Ric Bailey, Hells Canyon Preservation
Council, La Grande, OR; Tom Dimitre,
Headwaters, Ashland, OR; Jim Britell,
Kalmiopsis Audubon Society, Port Orford,
OR; Nathan Tublitz, Eugene Natural History
Society, Eugene, OR; Susan Jane Brown,
Northwest Environmental Defense Center,
Portland, OR; Lovenia Warren, Salmon for
All, Astoria, OR; Jay Letto, Central
Cascades Alliance, Hood River, OR; Lisa P.
Brenner, Oregon Clearinghouse for Pollution
Reduction, Portland OR; Mary Ann Lucking,
CORALations, Inc. Carolina, PR; Kathy
McDeed, South Carolina Forest Watch,
Westminster SC; Wendy Smith, World Wildlife
Fund--Southeast Rivers, Nashville, TN;
Donald B. Clark, United Church of Christ,
Network for Environmental & Economic
Responsibility, Pleasant Hill, TN; Rev.
Walter Stark, Cumberland Countians for
Peace & Justice, Pleasant Hill, TN; Louise
Gorenflo, Obed Watershed Association,
Crossville, TN; Edward C. Fritz, Texas
Committee on Natural Resources, Dallas, TX;
Live Oak Alliance, Austin, TX; Theodore C.
Mertig, Environmental Action, EI Paso, TX;
James Facette, Center for Social Justice
and Global Awareness, San Antonio, TX;
Denise Boggs, Utah Environmental Congress,
Salt Lake City, UT; Steve Moyer, Trout
Unlimited, Arlington, VA; Jack Dunavant,
Southside Concerned Citizens, Halifax VA;
David Bookbinder, American Canoe
Association, Springfield, VA; Tim SanJule,
Rivanna Conservation Society, Palmyra, VA;
Shenandoah Ecosystems Defense Group,
Charlottesville, VA; Dave Muhly, Virginia
Forest Watch, Wytheville, VA; Detta Davis,
The Clinch Coalition, Coeburn, VA; Jackie
Hanrahan, Coalition for Jobs and the
Environment, Abingdon, VA; Richard Flint,
Committee for Improvement of Dickenson
County Inc., Clintwood, VA; Rick Parrish,
Southern Environmental Law Center,
Charlottesville, VA; Dick Austin, Devil's
Fork Trail Club, Dungannon, VA; Christopher
M. Kilian, Conservation Law Foundation,
Montpelier, VT; Job C. Heintz, Vermont
Natural Resources Council, Montpelier, VT;
Wally Elton, Ascutney Mountain Audubon
Society, Springfield, VT; Stephen Crowley,
Vermont Chapter of the Sierra Club, South
Burlington, VT; Jim Northup, Forest Watch,
Montpelier, VT; Brady Engvall' Friends Of
Grays Harbor, Westport, WA; Greg Wingard,
Waste Action Project, Seattle, WA; David
Jennings, Gifford Pinchot Task Force,
Olympia, WA; Helen Ross, Seattle Audubon
Society, Seattle, WA; Joe Scott. Northwest
Ecosystem Alliance, Bellingham, WA; Dr.
Herbert Curl, Jr, Seattle Audubon Society,
Seattle WA; Susan Crampton, Methow Forest
Watch, Twisp, WA; Timothy J. Coleman,
Kettle Range Conservation Group, Republic,
WA; Bill Hallstrom, Green-Rock Audubon
Society, Beloit, WI; David J. Zaber
Wisconsin's Environmental Decade, Madison,
WI; Eric Uram, Sierra Club Midwest Office,
Madison, WI; David J. Zaber. Western Lakes
Wildlife Center, Monona, WI; Dr. Margaret
Janes, Potomac Headwaters Resource
Alliance, Mathias, WV; Mr. Francis D.
Slider, Mountaineer Chapter of Trout
Unlimited, Buckhannon, WV; Jim Summers,
West Virginia B.A.S.S. Federation,
Worthington, WV; Dianne Bady, Ohio Valley
Environmental Coalition, Huntington, WV;
Dan Heilig, Wyoming Outdoor Council,
Lander, WY; Jonathan B. Ratner, Sublette
Riders Association, Pinedale, WY; Danna
Smith and Douglas Sloane, Dogwood Alliance,
Southeastern United States.
INDIVIDUAL CLEAN WATER ADVOCATES
Wanda B. Stephens, Fayetteville, AR
Holly Ferguson, Fayetteville, AR
Moira Johnston Block and Alvin Lee Block, M.D., CA
Cory Chew, Los Angeles, CA
Cralan Deutsch, CA
Kirk Mobert, Point Arena, CA
Heidi Marshall, Point Arena, CA
Thomas Davis, Napa, CA
Lucy Kenyon, Santa Rosa, CA
Holly Mitten, Moss Beach, CA
Mary Knight, Willits, CA
Anthony Morris, Willits, CA
Talia Eisen, Los Angeles, CA
Kathie Lech, Willits, CA
Fred and Phyllis Mervine, Ukiah, CA
Elise Kelley, Davis, CA
Rainer Hoenicke, Napa, CA
David H. Walworth, MD, Soqiel, CA
James Woods, Penn Valley, CA
Diane Solomon, C.P.A., San Jose, CA
Meade Fischer, Corralitos, CA
Eric Sunswheat, Potter Valley, CA
Douglas F. Wallace, Ft. Collins, CO
Tom Dickinson, Boulder, CO
Estelle Gahn, Fort Collins, CO
Daniel Mandelbaum, Washington, DC
Benna Kolinsky, Washington, DC
Marc Goncher, Atlanta, GA
Jason Barringer, Atlanta, GA
Ernest L. Horton, Marietta, GA
Renuka Dhungana, Marietta, GA
Marion B. Hilliard, Orange Park, FL
Chris Norden, Moscow ID
Monte D. Wilson, Potlatch, ID
Leslie A. Manskey, Bloomington, IL
Robert E. Rutkowski, Esq., Topeka, KS
Tina Montgomery, Louisville, KY
Carrie DeJaco' Louisville, KY
Melanie Hurst, Louisville, KY
Owen Muise, Plymouth, MA
Cynthia S. Brown, PhD., Saint Paul, MN
J.F.Puckett, MD, Hattiesburg, MS
Tom Mattison, Jacksonville, NC
James L. Conner II, Durham, NC
Peter and Margaret Schubert, Durham, NC
John Colvin, Albuquerque, NM
Karen McCue, Albuquerque, NM
Colin Sillerud, Albuquerque, NM
Dorothy D. Meyerink, Henrietta, NY
Joel Clark Mason, Chappaqua, NY
Mr. Bobbie D. Flowers, New York, NY
Carol Witbeck, Clackamas, OR
Peter M. Lavigne, Portland, OR
Megan Kemple, Eugene, OR
John Thornton, Grants Pass, OR
Ann Easterly, Oregon City, OR
Connie Earnshaw, Portland, OR
Catherine Thomasson, MD, Portland, OR
Kay Ryan Biondo, Waldport, OR
Shirley L. Brown, Sublimity, OR
Richard Katz Do, East Stroudsburg, PA
Kim Danley, Salt Lake City, UT
Marilyn Dinger, Kaysville, UT
Judy Strang, Monroe, VA
Peter H. Richardson, Norwich, VT
Dave Robinson, Curlew, WA
Marva E. Schuelke, Everett, WA
Liz Marshall, Mount Vernon, WA
Carol Melton, Seattle, WA
Jerry Burke, Petersburg, WV
Lou Schmidt, Bristol, WV
Vince Dudley, Charleston, WV
Charles ``Larry'' Harris, Morgantown, WV
NOTE: other attachments are kept in committee files.
__________
STATEMENT OF ROB OLSZEWSKI, DIRECTOR, ENVIRONMENTAL AFFAIRS, THE TIMBER
COMPANY, ON BEHALF OF AMERICAN FOREST & PAPER ASSOCIATION
INTRODUCTION
Mr. Chairman, members of the committee, my name is Rob Olszewski
and I am Director of Environmental Affairs for The Timber Company,
which represents the timberland assets of Georgia-Pacific Corporation.
I appreciate the opportunity to present my testimony today on behalf of
the American Forest & Paper Association on the Environmental Protection
Agency's (EPA) August 23 proposed regulations to revise the Total
Maximum Daily Load (TMDL) program under Section 303(d) and
modifications to the National Pollutant Discharge Elimination System
(NPDES) permit program under Section 402 of the Clean Water Act. You
will hear that these proposed rules are a radical departure from the
existing Federal statute and case law. Mr. Chairman, as a member of the
TMDL Federal Advisory Committee Act (FACA) group that met to develop
guidance for the EPA on these water quality issues, I am struggling to
see how the August proposal resembles much of the nonpoint source
discussions held over one and one-half years. The August proposal is as
monumental as reauthorization of the Clean Water Act--in fact we
believe it is a reauthorization of the statute without your
concurrence. The forestry community hopes your committee will view it
that way given the enormous economic and administrative burdens that
will be imposed on landowners, manufacturers and State agencies.
AF&PA is the national trade association of the pulp, paper and
forest products industry. We represent approximately 84 percent of
paper production, 50 percent of wood production and 90 percent of
industrial forestland in the United States. Nationwide, there are
approximately 8 million non-industrial private landowners who own 59
percent or approximately 288 million acres of the total productive
timberland. After the forest products industry, the farming community
owns the largest fraction of private timberlands in the country. The
Timber Company owns land throughout the country including Arkansas,
Virginia, Florida, West Virginia, South Carolina, Georgia, Louisiana,
Oregon, North Carolina, California and Mississippi.
As stated, AF&PA represents the manufacturers of the country's
paper supply who also have serious concerns with the proposals. While I
will confine most of my remarks to the forestry components of the rule,
I do want to highlight issues of concern to the manufacturing segment
of our industry. The forestry community shares many of those concerns.
First, EPA needs to ensure that TMDL listings and TMDL development
are based only on high quality data. While the proposal's requirement
that States develop a listing methodology is an excellent start, it
does not go far enough. Second, EPA should provide a clear procedure to
take waters that meet certain criteria off the impaired waters list
between State listing cycles, especially if EPA extends the listing
cycle to 4 or 5 years. In light of the harsh regulatory consequences
that result from listing, such as offset requirements and other interim
restrictions before TMDLs are developed, the proposals should ensure
that only waters truly in need of TMDL development remain on the list.
Finally, an issue I will discuss in more detail from the forestry
perspective is that of implementation plans. EPA's criteria for TMDL
approval will result in the Agency rejecting more State-developed
TMDLs, with EPA issuing Federal implementation plans (and Federal
permits) in their place. I will defer to the other witnesses testifying
today to discuss these issue in more detail from the manufacturing
perspective.
The proposed rules are a top-down Federal approach being imposed on
States and private industrial and non-industrial forest landowners
throughout the country. Some important stakeholders in the issue
including the National Association of State Foresters, the U.S. Forest
Service; the Society of American Foresters; and the agriculture and
ranching community have serious concerns with the proposed rulemaking.
In fact, I am unaware of any comments submitted by a State or Governor
that supports the removal of forestry as a nonpoint source activity.
TWO ISSUES: FORESTRY REDESIGNATED AND TMDLS
Today I will discuss two particular issues contained in the August
23 proposals. The first issue deals with EPA's decision to abandon
almost 30 years of statutory interpretation of the Clean Water Act and
case law by eliminating the designation of forestry activities as a
``nonpoint source'' activity. The second describes how EPA selectively
used the FACA group to impose indirect Federal oversight on activities
conducted by millions of landowners throughout the country. Finally, I
will address briefly how we believe the Federal EPA can assist States
and communities in getting on-the-ground results to protect and
maintain water quality nationwide.
Let me first explain the background of the existing regulation
defining these forestry activities as nonpoint sources. In the original
Clean Water Act (CWA) regulations, EPA chose to exclude certain
activities, including all silvicultural activities, from the NPDES
program, without regard to whether they were point sources. When
environmental groups challenged this, the Federal courts ruled against
EPA and ordered the agency to identify those activities that are point
sources. EPA responded with rules in 1976 that identified four discrete
activities associated with forestry operations as point sources. They
concluded that everything else associated with forestry is a nonpoint
source. By way of explanation, EPA stated in the proposed rulemaking
that ``the [Clean Water Act] and its legislative history make clear
that it was the intent of Congress that most water pollution from
silvicultural activities be considered nonpoint in nature'' and be
addressed under section 208 of the statute. 41 Fed. Reg. 6233, 6234
(February 12, 1976).
EPA has proposed to eliminate the following activities from
categorization as a nonpoint source: nursery operations; site
preparation; reforestation; cultural treatment; thinning; prescribed
burning; pest and fire control; harvesting operations;
surface drainage and; road construction and maintenance. Instead, EPA
proposes to redefine them as point sources. The proposed rule would
give EPA or NPDES-authorized States the authority to designate
silvicultural activities as point sources requiring NPDES permits. The
designation would be triggered when the State or EPA determines that
the silvicultural activity ``contributes to a violation of water
quality standard or is a significant contributor of pollutants to
waters of the United States.'' EPA states that it will only exert this
authority in impaired waterbodies on a case-by-case basis where a State
fails to develop a reasonable assurances program that BMPs can achieve
load reductions in an impaired waterbody and the activities are not
enforceable. In fact, EPA attempts to reassure the affected landowners
by stating that it will only take 2 hours to prepare a notice of intent
to file for a Federal permit. If the national forest system timber
sales program is used as a guide, actually obtaining the Federal
approval to conduct a harvesting operation is the real time question.
Moreover, although EPA claims they will use this authority sparingly,
this limitation does not apply to designations by States.
There are a tremendous number of administrative and legal issues
consequences involved in developing and imposing permit requirements on
forest landowners. For example, EPA lists some criteria for determining
what constitutes a reasonable assurance program but withhold saying
which programs are approvable. Other issues include how a permit would
even be administered and the ``miniscule'' issue of an EPA permit
program that triggers consultation under the Endangered Species Act.
Further, AF&PA has a far different interpretation of the EPA's
statutory authority under the Section 402(p) provisions we would like
to include as part of the public record. Mr. Chairman, we are going
down an abyss that will lead to staggering economic consequences.
LEGAL AUTHORITY
Not only does the forestry community disagree with the time
required to obtain a permit, the reasonable assurance test and how it
would work; the logic for requiring one is flawed. EPA provides two
reasons for its change of interpretation. First, that the 1987 CWA
amendments did not categorically exempt silvicultural activities from
the stormwater program similar to the agricultural exclusion provision.
Therefore, they assert the authority to ``close the regulatory gap''
and label all silvicultural activities as point sources. Second,
Congress never explicitly stated that silviculture was a nonpoint
source.
We believe these farming and forestry activities are ``nonpoint''
sources and there is no legal or statutory authority for EPA to revise
the regulations by eliminating the nationwide recognition of forestry
as a nonpoint source activity merely to address some unidentified last
resort situations on an individual basis. AF&PA believes that the 1972
Act and its 1977 and 1987 amendments clearly intended not to regulate
water pollution from most silvicultural activities through the Section
402 or 404 permit programs. In fact, the 1987 Amendments enacted the
Section 319 provisions to specifically address nonpoint source runoff,
including silvicultural activities, through a State-based best
management practices program. The Section 319 1987 Amendments revised
the Section 208 program that required States to develop ``a process to
. . . identify silviculturally related nonpoint sources of pollution''
and set forth procedures and methods to control to the extent feasible
such sources. In November 1990 EPA promulgated stormwater regulations 3
years after the 1987 Amendments were enacted. At that time, EPA
declared that silvicultural point sources do not include the very same
activities they claim today are point sources. In addition, an EPA
Phase II stormwater report presented to Congress in 1995 did not
identify silviculture activities as appropriate for regulation under
the stormwater program. Similarly, EPA should not reverse its earlier
positions in this proposed rulemaking, if they only took the time to
review the forest water quality facts obtained from their own
publications and contained in my statement.
Even more confounding, in 1977, Congress enacted the Section 404
discharge of dredged and fill provisions which specifically exempted
the identical silviculture activities from the requirement to obtain
permits. In the legislative report language of the 1977 statute,
Congress stated: ``construction of farm and forest roads is exempted
from section 404 permits. The committee feels that permit issuances for
such activities would delay and interfere with timely construction of
access for cultivation and harvesting of crops and trees with no
countervailing environmental benefit.'' In another passage of the same
report, the committee states ``no permits are required'' for activities
listed in Section 208(b)(2)(F) through (I) ``for which there are
approved best management practice programs.'' How can the same exact
silviculture activities that are specifically exempt under one point
source program be subject to Section 402 permits under another program?
Mr. Chairman and members of the committee, the American people always
thought it was the responsibility of the Congress of the U.S. to
reauthorize statutes and enact laws, not the executive branch of
government.
TOTAL MAXIMUM DAILY LOADS
The second issue was the only focus of the FACA. States identify
impaired waters (those waters not meeting water quality standards) and
establish priority rankings and develop total maximum daily loads
(TMDLs) under Section 303(d) of the Clean Water Act. Heretofore, a TMDL
has been a numeric calculation of the amount of pollutants a waterbody
can receive from point source discharges, nonpoint source runoff,
natural background; with a margin of safety. Setting aside the
scientific difficulty of actually calculating a ``daily'' load from
nonpoint source activities, the proposed rule requires States to submit
an ``implementation plan'' under Section 303(d). The plan would contain
not only the numeric calculation but also eight required elements
including control actions and measures that must be implemented before
EPA would approve the TMDL. The big issue, and one that was unresolved
in the FACA group report, is whether the implementation plan should be
submitted for approval by EPA under Section 303(d) or submitted under
303(e). We do not believe that Section 303(d) provides EPA with the
authority to require implementation plans, nor does it provide, as EPA
contends in the proposal, that implementation plans can be approved,
disapproved, or taken over by EPA. This is not a minor legal issue but
one that has enormous consequence for private landowners.
For example, lets examine the situation where EPA rejects an
implementation plan because the Agency does not believe the forest
stream side zone (SMZ) management width requirement established by a
multi-stakeholder State best management practices group is sufficient
to protect water quality. The Agency, having given themselves the
authority to take over the State program, is now free to re-write the
implementation plan, change the State's SMZ requirement and then impose
an NPDES permit requirement because the State allegedly does not have
sufficient enforcement authority. This is not theoretical, but exactly
the type of authority the Agency is proposing to grant to itself.
Moreover, the Agency is exposing itself to countless citizen provisions
if it does not exercise this authority to the satisfaction of
environmental activists.
According to EPA's August 1997 Memorandum published in the Federal
Register, ``implementation of a TMDL depends on other programs and
activities; a TMDL alone does not create any new or additional
implementation authorities.'' The numeric TMDL itself must be approved
by the EPA but no reading of the statute or its legislative history
calls for the preparation and submission of an implementation plan
under 303(d). We believe the continuing planning process described in
the Clean Water Act's Section 303(e) provision is the implementation
phase for the 303(d) listed stream segments.
ECONOMIC IMPLICATIONS
These rules will impose serious constraints on economic growth and
opportunity in our rural communities. EPA's economic analysis
accompanying these proposed rules claims that between 600 and 1200
landowners per year will be affected and total administrative costs to
sources and EPA/States would fall between $3.72 and $13.22 million. Mr.
Chairman, there is no way that the economic burden on landowners,
loggers, State agencies and the Federal Government would be so limited.
There are literally thousands of silvicultural ``events'' in each State
every year. According to AF&PA's assessment, supported by the work of
five independent forest economists at well-respected academic
institutions around the country, the incremental economic burden to
landowners, operators, communities and government agencies could easily
exceed $1 billion annually, nationwide. The administrative costs alone
of an NPDES program for silviculture, even in the unlikely event that
it would be invoked sparingly, would exceed EPA's estimates by several
folds. Because the economic impact will far exceed $100 million
annually, EPA must comply with the Unfunded Mandates Reform, Executive
Order 12866, and the Regulatory Flexibility Act by conducting a more
detailed and comprehensive benefit-cost economic analysis of the
proposed rule.
PROGRESS IMPROVING WATER QUALITY
EPA contends that because silviculture activities are a cause of
water quality impairment this gives them discretionary license to label
such activities as point sources. While the forestry community
recognizes that we are not perfect and we can improve our performance,
the fact that silviculture can cause water quality impairment provides
no justification to reverse 30 years of congressional writings. The EPA
citation of silviculture's impact on water quality is selective and in
some cases directly contradicts reports accompanying the proposed
regulations. Every State with significant forest management activities
has developed forestry best management practices or rules and submitted
them to the Agency as part of the Section 319 nonpoint source program.
The most recent publicly available data from EPA's website, the 1996
national TMDL tracking data base, indicates that only 11 States listed
silviculture as the cause of impairment on their Section 303(d) list of
impaired waterbodies where total maximum daily loads would actually
have to be performed. These are the only waterbodies where the Agency
purports the rule will apply. Further, almost two-thirds of the stream
segments listed were from one State. Placing these numbers into
perspective and upon closer examination of the Federal and State
reports, the following information clearly reveals that forestry is a
relatively minor cause of water quality impairment across the country:
Silviculture accounts for approximately 7 percent of the
total impaired river miles nationwide;
The relative amount of total river and stream impairment
due to silviculture dropped from 9 percent in 1988 to 7 percent in
1996;
The number of river and stream miles classed as ``major
impairment'' due to silviculture dropped 83 percent between 1988 and
1996;
The length of river and stream miles impaired from natural
causes is about twice the length of impairment due to silviculture;
Silviculture represents one-tenth of 1 percent of the
impaired coastal waters;
Silviculture represents less than 1 percent of lake
impairment;
EPA's 1996 National Water Quality Inventory report dropped
silviculture from the chart as one of the seven leading sources of
impairment to rivers and streams; and
Compliance with State forestry best management practices
is reaching 90 percent or more.
To underscore the AF&PA record, I would like to share with you some
of our accomplishments. Through the Sustainable Forestry Initiative
(SFI) program, in which all members participate as a condition of
membership, many members are not simply striving to achieve full
compliance with Best Management Practices (BMPs) to protect water
resources during forestry operations--they are providing a framework
for going beyond conformance with voluntary guidelines. Equally
important, member companies are committed to fostering the practice of
sustainable forestry through landowner education efforts on all
forestlands.
In 1997, AF&PA member companies began reporting on the number of
acres and miles of streams that are enrolled in wildlife and fisheries
agreements with conservation groups and public agencies that specify
on-the-ground management practices. Almost 11 million acres,
representing 20 percent of the total acres in the SFI program, and
4,286 miles of stream have been enrolled in these agreements. The SFI
program has established State Implementation Committees in 32 States
that receive more than $3.1 million from AF&PA members and allies to
foster their responsibilities to promote SFI principles. While
industrial forestland constitutes approximately 15 percent of the
nation's forested acreage base, AF&PA members are also committed to
expanding and promoting sustainable forestry into the broader forestry
community.
A BETTER WAY
It is plainly evident from the reaction by the majority of State
agencies, State water quality agencies, Governors and others that the
proposed rules were formulated without the advice and input from those
stakeholder groups who will be ultimately responsible for implementing
the regulations. Mr. Chairman and members of the committee, there is a
better way. It requires additional funding of the Section 319 program,
greater cooperation among multiple State agencies engaged in nonpoint
activities, more partnerships with private landowners and stakeholders
and better dialog between EPA Regional Offices and the States to make
improvements to water quality happen. However, the Federalization of
nonpoint source activities as proposed under these circumstances will
create dissension and not accomplish the mutual goals shared by
everyone. Once again Mr. Chairman, these proposed rules would interrupt
the progress in improving water quality. Every State with existing
Memorandums of Understanding among State agencies and Federal agencies
in some circumstances, including your own, will need to be rewritten
and negotiated all over again. Is this what we want to do?
For industrial facilities and wood lot owners, this proposal will
cause significant administrative delays. It will discourage the
practice of sustainable forest management, create disincentives to
expand forest cover in the U.S., stifle economic opportunity and
prosperity in communities desperate to be part of the economic revival
in this country and make it more difficult for people to make a living
off their land.
This concludes my remarks, Mr. Chairman, and I would welcome any
questions you or members of the committee may have.
______
STATEMENT OF DINA J. MOORE, RANCHER, KNEELAND, CA, ON BEHALF OF THE
NATIONAL CATTLEMEN'S BEEF ASSOCIATION
Good morning Mr. Chairman and members of the subcommittee. I am
honored to be here today to address this subcommittee on behalf of the
National Cattlemen's Beef Association. The National Cattlemen's Beef
Association (NCBA) is the marketing and trade organization for
America's one million cattle farmers and ranchers, representing the
largest segment of the nation's food and fiber industry.
While my full-time job is as a partner with my husband and family
in a commercial cattle ranch and non-industrial timber business in
Northern California, I am proud to actively participate in our local
watershed efforts. I have done extensive work with the Environmental
Protection Agency (EPA) on Total Maximum Daily Loads (TMDL), conducting
Historical Narrative interviews, assisting in public outreach and
education and working collaboratively with the EPA in building a
consensus on the development of TMDL's. I also founded and am the
current president of our local watershed working group--the Yager/Van
Duzen Environmental Stewards, or YES. The Mission Statement of YES most
clearly States one of my personal goals: ``[t]o ensure the
Environmental Integrity of our watershed while maintaining our heritage
and the economic sustainability of our endeavors.''
EPA has, through the Section 319 program, empowered the States to
take the responsibility for developing their own nonpoint source
pollution management plans. By establishing the Proposed Regulatory
Provisions, will EPA be promoting a duplicative effort to that of the
States by taking over the authority of developing implementation plans?
States understand the need for clean waters just as landowners of a
working landscape understand the need for clean waters. Each State
knows how best to achieve workable, realistic water quality goals for
that State. In turn, the States can promote the implementation of Best
Management Practices to the landowners. The more we can empower those
who are responsible for managing the working landscape, the higher the
degree of success. The best approach needs to get all the way down to
the grass roots level. We need to enable those responsible for managing
a working landscape to work from the grass roots level up to design and
implement Best Management Practices in their own watershed. The most
successful way of attaining clean water must come from the watersheds
up, not the Federal Government down.
The driving force is the fear of litigation from the more radical
sector of the environmental community. Just as EPA is considering more
stringent regulations, so is the National Marine Fisheries Service
(NMFS) considering expanding their listings to now include Steelhead as
threatened. Because of the threat of litigation and the fact that NMFS
and the State of California Division of Forestry and Fire Protection
are not in concurrence as to how to best protect Steelhead, NMFS is
threatening listing the species as threatened. The more sensitive
species of Coho and Chinook salmon have already been listed as
endangered. Unfortunately, the landowner is caught in the crossfire
between a State and Federal Agency. As is the case in our watershed, we
as landowners and managers have just worked with EPA on the development
of the TMDL. Now, we are faced with working with the State on the
Implementation Plan and NMFS on their listings. Our watershed was
declared as impaired because the level of sedimentation affected the
cold water fisheries, in particular the documented decline of salmon
and steelhead. So which Federal Agency is in charge? As non-industrial
landowners we are dealing with multiple State and Federal agencies who
are not working together collaboratively to resolve the problem. Those
agencies have the same objectives, the same driving force of concern
over litigation, but different agendas and timelines.
The entire process and building of trust and collaboration begins
anew each time another agency is brought into the process. The 319
program could be the mechanism for integrated State and Federal
efforts. The Federal Government should not place more constraints on
the State by taking on more authority thus creating more fragmentation.
They should be using their powers to encourage States to implement a
``one stop shop'' where landowners can deal with all the agencies at
one time and place. The resource, government and landowner would best
served if government could address resource issues in a clear and
consistent manner, with a single unified voice. There is no safe harbor
for landowners that have worked collaboratively with a single agency.
The private sector will clearly incur costs from more stringent
regulation. That is evident in the Forests of California. Non-
industrial landowners are faced with having to cut more timber to cover
the cost of greater regulation than they would like to from a
stewardship or sustainable perspective. As more regulation is being
mandated from multiple national and State agencies, the same land base
and the same landowner is responsible for meeting the requirements that
are set forth by those agencies. With this EPA proposed Regulatory
Revision Federal Program being expanded, ultimately a cost will trickle
down to the landowner and his only way of covering that cost is with
heavier extraction from the land based resource that he manages. There
is no compensation, reimbursement or incentive to the landowner for the
time and knowledge that it takes to comply with regulation. As the
landowners deal with more stringent regulation they will either hire
help to work their land resource in their absence; or will they hire a
professional consultant to help them weave their way through meeting
the regulatory requirements of the different and multiple governmental
agencies. Both are an out-of-pocket expense to the landowner, and the
cost can be staggering. The monetary return that comes from a cattle
ranching enterprise alone is minimal. The cattle and the range that
they live on provide enough of an economic return to pay for their
direct costs, overhead costs as well as provide families with a below
poverty level of income--even when the cattle market is in an upswing.
This enterprise alone cannot not cover the previously mentioned hidden
costs. Other resources will need to be developed and extracted.
While the argument is often made that there is grant money
available, that too can be a cumbersome and unwieldy process. As
landowners in a watershed that has been declared as impaired, we from
the grass roots level are undertaking the burden of doing assessments
and inventories. There are grants available to help, but many programs
require matching funds, not taking into account the costs that we have
incurred by writing grants or the time and energy spent hiring
professional contractors to do the work and assessments for us.
Although EPA does have the 319 and 205 grants available, the turn
around time on getting those moneys is 18 months from the time of
submittal of an application to an actual grant being awarded. That
timeframe is simply put, outrageous.
Delisting and listing of watersheds needs to be clarified. The
Proposed Regulatory Provision does help ensure that listing
methodologies are more specific and subject to public review. Again, I
refer to our watershed and my own experience in the Yager Creek and Van
Duzen River Watershed. None of the multigenerational landowners knew
that it had been listed as impaired. Pacific Lumber Company is a
neighboring landowner in the lower part of the basin. The concern has
been expressed that this is more a political process than a scientific
process. When EPA did the TMDL, it broke the watershed into three
distinct areas: the lower basin, middle basin, and upper basin. Those
areas were characterized by different geologic types, channel types,
distribution of anadromous fish, vegetation types and land management/
ownership patterns. The results of a Sediment Source Assessment
commissioned by EPA stated that natural erosion accounted for 84
percent of the erosion in the middle part of the basin. This portion of
the watershed is comprised of ranches, and land ownership is comprised
of multigenerational families. Concurrently, on our ranch we
participated in an ongoing study by University California Cooperative
Extension on the affects of cattle grazing in a riparian area. After an
on-ground assessment using 3 different Federal field assessment tools--
EPA's habitat field assessment data sheet, NRCS Stream visual
assessment protocol and Bureau of Land Management's (BLM) proper
Functioning Worksheet--our stream with the EPA assessment rated 18.40
out of 20 (20 being the highest mark), NRCS rated 9.4 out of 10 and
BLM's rated properly functioning. Given all of the above information, I
question whether our portion of the watershed should have been listed
as impaired. If this information had been available before listing, and
if the small non-industrial landowners that manage the middle portion
of the watershed had been involved in the public review process, it
could have been a different outcome. Not only does the listing process
need to be methodical and scientifically sound, there also needs to be
a clear process, which can be undertaken to ensure that waterbodies can
be delisted. There is no clear-cut avenue to take in a delisting
process.
It all gets back to the single working landscape, the individual
land owner and his need to manage the resource in a sustainable manner
that meets the needs of the resource and provides his family with a
living. We, as multigenerational managers of a working landscape, know
that we cannot mine the resource without long-term negative affects. We
have been given the resource to hold in trust for future generations.
Often times we feel that we are meeting the needs of government to the
detriment of the environment we are managing. My counterparts in the
mainstream environmental community recognize the cost to the
environment of greater regulation and are speaking the same language
that we are; let's provide greater incentives and less costly
regulation. Let's look at tax incentives and cash incentives for
encouraging stewardship. Let's hold out a carrot rather than wield a
stick.
My perspective and view is one of working together collaboratively
on resolving resource issues on the working landscape. I firmly believe
that those who have a longtime multigenerational commitment to taking
care of the working landscape will protect it. Other options that
become a reality when we are no longer economically sustainable are
selling to larger industrial landowners or breaking large landscapes
into subdivisions and ranchettes, which clearly cause a degradation to
the environment. I recognize the important role and need that
regulation has served in protecting the environment. Nevertheless, I
firmly believe that further regulation will swing the pendulum in a
direction that will not serve in the best interest of the resource,
government or non-industrial landowner.
Thank you, for the opportunity to participate in this important
decision. I look forward to a day when we all are working
collaboratively on resolving the issues of managing a natural working
landscape.
PROPOSED RULE CHANGES TO THE TMDL AND NPDES PERMIT PROGRAMS
----------
SATURDAY, MAY 6, 2000
U.S. Senate,
Committee on Environment and Public Works,
Whitefield, NH.
The committee met, pursuant to notice, at 1 p.m. at White
Mountains Regional High School, Whitefield, NH, Hon. Robert C.
Smith (chairman of the committee) presiding.
IMPACT OF PROPOSES RULES ON FORESTRY PRACTICES
Present: Senator Smith.
OPENING STATEMENT OF HON. BOB SMITH, U.S. SENATOR FROM THE
STATE OF NEW HAMPSHIRE
Senator Smith. The Environment and Public Works Committee
of the U.S. Senate will please come to order; and let me, first
of all, express my sincere gratitude to White Mountains
Regional High School for their courtesy.
We're delighted to be here, and I want to also extend my
appreciation to the EPA Administrator, Chuck Fox, who came all
the way up from Washington to be here. You got to see some nice
country, though, Mr. Fox?
Mr. Fox. Yes.
Senator Smith. Also, sitting here with me, of course, to my
right is your distinguished State Senator, Fred King. I've
invited him to be up here to take all the tough questions. John
Pemberton from the Environment and Public Works staff and Ann
Klee from the Environment and Public Works Committee and Will
Wrobleski of Congressman Sununu's staff are here.
Also from the Congressman Bass' office, Bill Williams is
here. Bill, if you would like to make a statement--I was going
to make a brief opening statement, but, if you'd like to make a
comment or two, your statement will be submitted for the
record. Then I'm going to turn it over to Mr. Fox.
Let me just say that it's very appropriate that we're here
in the beautiful White Mountains of New Hampshire to discuss
the environment. There are 780,000 acres of White Mountains and
the extensive private forests that are home to hundreds of
miles of pristine waters and beautiful forests. In fact, water
in New Hampshire covers 115,000 acres; everything from the
small ponds to Lake Winnipesaukee. Each year, over a million
summer visitors come up here, more summer probably then in
winter, to enjoy our mountains and lakes and seashore. These
forests--spruce and pine--are famous as the King's Woods for
mast wood for ships in the early days of our history. They also
add beauty to our landscape and wealth to the land.
Much of this area has great historical significance. The
Connecticut River, where the ``white-water men'' risked their
lives to bring the loggers the logs from the northern regions
to the manufacturing centers. The 2,100-plus mile-long
Appalachian Trail is right near us. It stretches along the
mountain from Georgia to Maine; or from Maine to Georgia would
be better put, probably. It winds through the heart of the
White Mountains and traverses many of New Hampshire's greatest
mountains.
And as the Senator from New Hampshire, and now the chairman
of the Environment and Public Works Committee, I view it a
privilege and an honor to protect these resources, not only for
us here today, but for many generations to come. Our children
and grandchildren will follow us into these beautiful, scenic
mountain and forests, and we must protect the resources for
them.
I think the residents here have a lot to be proud of what
our timber companies, tree farmers, and farmers are doing today
to preserve the land, as well as the natural resources. I've
been up here many times in the past 16 years, as all of you
know, and I know that you are good stewards. You have a lot to
be proud of and I'm proud of you for being good stewards. I
could go on forever talking about that.
The purpose of the hearing today is to examine the
Environmental Protection Agency's proposed rule on Total
Maximum Daily Loads, which we will probably call TMDLs
throughout the hearing.
Since the EPA released this proposed rule last August,
we've spent a lot of time talking with New Hampshire folks,
Senators, and our colleagues, and State and local officials
across the country. Mr. Fox came in and had a private
discussion with me about this proposal, as well. There's been a
lot of communication and many of you may have attended the
recent University of New Hampshire's symposium that we held in
Bedford a couple of weeks ago. We talked there about the
impacts of this rule if it were finalized.
I'm usually asked, ``Why is the EPA pushing this very
controversial rule through quickly?'' I think that Mr. Fox will
respond to that. I don't have the answer, because it is hard to
explain the urgency of the rule, but we'll hear from Mr. Fox
shortly on that.
EPA's desire to rush this is especially frustrating because
Administrator Browner has admitted that EPA failed in the
drafting of a clear rule. It's not a clear rule. Even Mr. Fox
had suggested substantial changes to the rule will be
necessary. He indicated as much in a letter to me. Almost every
industry has expressed strong concerns about this rule. But
we're still looking at a deadline of June 30 on the
finalization of this rule.
It's clear to me that it would be appropriate to slow that
process down. Perhaps, EPA should look at a reissue of the
proposed rule that provides all stakeholders an opportunity,
not just the Washington folks or lobbyists in Washington, DC,
but folks like you, to leave their views heard. We are probably
going to have another one in the south in the next 4 to 5
weeks, as well, so that we can listen to what's on your mind
and, perhaps, take a time out on the rule before we implement
it.
While I may not have a full knowledge of the thought
process that went into the proposed rule at EPA, I do know that
the silviculture industry in this State should be commended for
its stewardship and work to protect the environment. Mr.
Manfredonia of Region I at EPA stated that ``silviculture and
forestry operations are not, to the best of his knowledge and
data, an issue for water quality.'' That's what he said. Yet
today, we're faced with a rule, the proposed rule that could
take effect as early as June 30; and I believe that could have
a dramatic impact on the people who depend on this land and
this water for their livelihoods in more ways than one. Because
if it's not, this scenic beauty is not here, people won't come
here and spend money as tourists; and also, if you have a
woodlot, you could be in a position where you would not be able
to earn your livelihood.
This proposed rule, if it is implemented, would regulate
you for the first time under a Federal permit, under the Clean
Water Act. This could have a dramatic impact on the forestry
industry, but it also could have a dramatic impact on small
family forestry and agriculture operations--small farmers, and
small loggers, woodlot owners where margins are thin, and the
survival of these businesses themselves could very well be in
jeopardy.
I saw Tom Thomson here earlier. Tom's been down to
Washington and testified on this issue. He's a tree farmer from
Orford. He's fought through a lot of adversity, as you all
have. He represents many of you in terms of what you went
through with the Ice Storm here, where we helped to get some
Federal funds to help you through that. But we should be proud
of that stewardship and that conservation of open space.
I think Federal permitting of forestry activities makes an
assumption that you're not good stewards. That's my problem
with it. I would rather be more in line with saying, ``Well, if
there are problems here and we're not doing something right,
then what are they? What's the science? Let's talk about it,
and let's work together.'' Instead, let's look upstream a
little bit and decide what we have to do to keep the water
problem from having a negative impact on agriculture or
forestry. What have people like Tom Thomson's done that would
lead EPA to believe they need to impose a permit have him to
cut down a tree? That's the bottom line.
The EPA says the States will be implementing this program.
But in New Hampshire, it's very important to note here, we do
not have delegated authority to issue permits. So, we fall into
the category the EPA calls a ``rare'' situation, but that's
small comfort for those of us--those of you who are on this
land, because the EPA under this ``rare'' situation would be
responsible for issuing the permits in New Hampshire and not
DES.
Hopefully, Mr. Fox will be able to address that point, as
well, as to whether or not there's some responsibility on that.
In order to address the many concerns and I've heard on the
implementation of the regulations and the concerns with the
rule, Senator Mike Crapo of Idaho and I have introduced, with
16 other co-sponsors, S. 2417, the ``Water Pollution Program
Enhancement Act of 2000.'' This is not a hearing on that bill.
This is a hearing on the issue of the proposed rule. I want to
make this very clear, but I did want to note that the purpose
of this legislation is to take care of three concerns that I
think have been outlined in the hearings we've held over the
past 2 months and, as well as, comments that I've heard from
the New Hampshire environmental symposium a couple of weeks
ago.
First, the States are in great need of increased funding to
implement nonpoint source programs, conduct monitoring to
develop scientifically based water quality programs, and to
issue permits, and list waters under existing requirements. So,
we provide an additional several million dollars for States to
do just that.
Second, there are a lot of unanswered questions about the
costs and scientific basis underlying TMDLs and their
implementation, as well as, a host of alternative programs or
mechanisms that exist at the State level that may be more
effective to accomplish the same goals.
In other words, is there any other way that we could
accomplish the goal of maintaining clean water here in the
North Country on our forest lands and on our agricultural
lands, other than the implementation of a Total Maximum Daily
Load rule?
I don't think we've answered that question satisfactorily,
and it should be answered, in my view, before we mandate more
regulations or requirements on the private sector and the
States.
Also, our legislation directs the National Academy of
Sciences to try and answer some of these questions prior to any
implementation of any new rule.
Third, to use a professional sports analogy, we need a time
out. This came upon us awfully quickly. People now who make a
living off the land are now hearing for the first time that
suddenly they're going to need a permit to chop a tree down or
to farm their land. We need a time out to analyze whatever
battle we have to look at it carefully, and so that's why we're
here today.
And this is a great State and it's a great country, but I
think we need sound science. It is important, as well, and I
think we need to look at it very carefully.
Let me just say that we will have as witnesses Mr. Fox
first and then three other panels of very distinguished
witnesses. At the end, if there are people here who would like
to make a statement, 1 or 2 minutes, please, because we won't
be able to do everybody; or ask a quick question of anyone,
myself, or the staff, or Mr. Fox, we'd be glad to allow enough
time for that. We'll see, if time permits, if we might be able
to get a question or two directed to any others on the panels.
We do have a limited amount of time.
So, let me thank you again for being here, Mr. Williams.
STATEMENT OF BILL WILLIAMS, STAFF MEMBER OF REPRESENTATIVE
CHARLES F. BASS
Mr. Williams. Thank you, Senator, this will be fine. I just
need to go on record. I will read the last two lines of
Congressman Bass' 2-page testimony; and the final two lines
are:
In closing, I want to again thank Chairman Smith and the
committee for holding this extremely important hearing. I hope
that the testimony presented today by myself and others will
convince the EPA to reconsider this proposed rule.
Thank you very much.
Senator Smith. Thank you very much, Mr. Williams, and the
entire statement will and--and/or letter from Congressman Bass
will be made a part of the committee's record.
[The prepared statement of Representative Bass follows:]
Statement of Hon. Charles F. Bass, A Representative in Congress from
the State of New Hampshire
Chairman Smith and members of the committee, I would like to
express my gratitude to you for holding this hearing today on the
Environmental Protection Agency's (EPA) proposed rules regarding Total
Maximum Daily Loads (TMDLs) from silviculture operations and for
affording me the opportunity to submit my statement for the record. I
have serious concerns about the EPA's proposal to reclassify
silviculture from a ``non-point source'' activity to a ``point source''
activity under the Clean Water Act (CWA).
The EPA's proposal would mandate regulation of all silviculture
activities as point sources of pollution under the National Pollutant
Discharge Elimination System (NPDES), opening up all private landowners
to NPDES permit regulations. Specifically, this regulation would
include previously exempt categories, such as nursery operations
runoff, site preparation, reforestation activities, thinning,
prescribed burning, pest and fire control, harvesting operations,
surface drainage, and road building and maintenance.
I am concerned that removing the exemption on these activities may
unnecessarily impose heavy-handed Federal regulation on forestry
activities. The silviculture industry has a long history of seeking
common-sense solutions to achieve effective, sustainable land
management. In a 1996 EPA report to Congress, forestry activities were
identified as the smallest source of nonpoint source pollution,
contributing approximately 3 percent to 9 percent of nonpoint source
pollution to our nation's waters. Due to the relatively small impact of
this industry, I believe that landowners should be encouraged to work
directly with States and local governments to find answers to pollution
problems. New Hampshire's forest landowners, through the use of Best
Management Practices, the New Hampshire Professional Logger Program,
the Sustainable Forestry Initiative, and Tree Farm Program, have
contributed considerable resources and effort to protection of water
quality.
Furthermore, in the original rulemaking process following enactment
of the CWA, the EPA recognized that Congress's original intent was to
designate forestry activities as a nonpoint source of pollution.
Therefore, this proposed rule would represent a departure from 30 years
of regulatory practice. This change would subject landowners to citizen
suits for permitted activities, not to mention potential fines, and
necessitate Federal permits for most forest management activities,
which would be subject to unnecessary and potentially costly delays.
The burden of these rules could force landowners to forfeit their
stewardship of the land in favor of giving into the ever-present
pressures of development, which we can all agree is not in the best
interest of the environment.
Although we all share the common goals of categorically improving
the quality of our nation's streams and rivers, we must not impose an
excessive Federal regulatory burden that could cripple the silviculture
industry. Instead, I would encourage continued cooperation between the
Federal Government and the States to provide the necessary incentives
to landowners to maintain healthy forests.
In closing, I want to again thank Chairman Smith and the committee
for holding this extremely important hearing. I hope that the testimony
presented today by myself and others will convince the EPA to
reconsider this proposed rule.
Senator Smith. Mr. Fox has indicated that after his opening
statement, he will be available for questions. This is a field
hearing so we don't have to follow all the formalities that we
do in Washington. That's what we're here for, to hear your
views on these proposed rule changes.
Mr. Fox, welcome. I appreciate your coming up here and
taking the time out of a busy schedule to be here and to hear
from our constituents.
STATEMENT OF J. CHARLES FOX, ASSISTANT ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY, WASHINGTON, DC
Mr. Fox. Thank you, Mr. Chairman, and Senator, it is a real
pleasure to be here. It's rare that we get a chance to come
outside of the Beltway for field hearings. We spent some time
out in the forest this morning with Tom Thomson, and I couldn't
agree with you more that there is some outstanding examples of
stewardship in New Hampshire. They've been doing an admirable
job of protecting water quality.
Enacting the Clean Water Act of 1972 has dramatically
improved the health of rivers, lakes, and coastal waters
throughout the country. It has stopped billions of pounds of
pollution from being dumped in the water and doubled the number
of waterways that are safe today for fishing and swimming. Many
waters today are thriving centers of health communities.
But despite this tremendous progress in reducing water
pollution, almost 40 percent of the Nation's waters as tested
by the States still do not meet water quality goals. My earlier
testimony to this committee in February described over 20,000
water bodies identified by the State as polluted in 1998. It
also described our effort, begun almost 3 years ago, to work
with a diverse Federal Advisory Committee to review the TMDL
Program and identify needed improvements in existing
regulations.
I would like to take this opportunity to reiterate that
this is not a new rule. It is, in fact, a revision to the
existing regulations, much as which were promulgated in 1985
during the Reagan administration.
This afternoon, I would like to work--focus on the work we
have done since my February testimony with a range of
interested parties to address the important issues raised in
the proposed regulations.
Mr. Chairman, I would also like to describe the
Administration's strong opposition to the legislation you
recently introduced with Senator Crapo calling for a delay of
several years in finalizing revisions to the TMDL program
regulations.
Earlier this week, EPA and USDA released a joint statement
describing areas of agreement on the TMDL rule. Mr. Chairman,
I'd ask that a copy of the joint statement be included in the
record.
Senator Smith. It will be made part of the record.
Mr. Fox. The key elements of the joint statement describe
changes the EPA expects to include in the final TMDL rule on
topics of interest to the USDA. For example, the joint
statement outlines how EPA and USDA propose to address the job
of restoring polluted waters that are impaired as a result of
forestry operations. Our joint forestry proposal is discussed
in much more detail in my written testimony.
In April, I sent you a letter outlining the expected
changes to the proposed rule in response to many comments we
received. These changes emphasized that States will have to
identify and clean up polluted waters through the TMDL program.
The changes will give States more time, allowing them to tailor
TMDLs to local conditions, and endorse voluntary programs by
giving them full credit for the development of TMDL pollution
budgets. The changes would also streamline the regulatory
framework considerably. My written testimony provides more
details on these changes.
I briefly would like to turn to the legislation you
introduced with Senator Crapo. The bill includes some important
provisions expanding authorizations for State clean water
grants. But the Administration must strongly oppose the bill
because it would delay the final TMDL regulations by up to 3
years and, perhaps, longer. It calls for a study of the
scientific basis for the TMDL program.
While we agree that there are technical issues associated
with the development of TMDLs, the essential scientific bases
for developing TMDLs and restoring polluted waters are well
established. We respectfully suggest that there is no major
scientific dispute related to the development of TMDLs that
requires the attention of the National Academy.
Section 6 of S. 2147 would prevent the finalization of the
TMDL regulations until the completion of the study by the
National Academy.
An enactment of this proposal could result in the effective
shut-down of the TMDL program in many States, as they and other
parties defer work on TMDLs until the comprehensive studies
mandated by Congress are completed. Sadly, Congress would be
telling thousands of communities across this country that are
eager to get to work to stand down, to pack up their clean
water plans, and put them into the deep-freeze for the
foreseeable future while a panel of scientists meets in
Washington behind closed doors for almost 2 years to write a
report.
Mr. Chairman, yesterday, I received copies of letters from
two New England States that also oppose this provision of your
bill and indicated the support for EPA's changes to the
proposed, and I ask also that these letters be included in the
record.
Senator Smith. They will be made part of the record.
Mr. Fox. Finally, Mr. Chairman, in closing, I consistently
hear from critics of the TMDL program that it is more of the
old, top-down, command-and-control, one-size-fits-all approach
to environmental protection. I've also heard many
mischaracterizations and falsehoods that are simply
irresponsible attempts to generate opposition to the rule. In
fact, the TMDL program offers a vision of a dramatically new
approach to clean water programs. This new approach focuses
attention on pollution sources in proven problem areas, rather
than all sources. It is managed by the States, rather than the
EPA. It is designed to attain the water quality goals that the
States set and to use measures that are tailored to fit each
specific water body. This approach has proven to be effective
in places like the Great Lakes, Chesapeake Bay, and Long Island
Sound. It is an approach that will form the foundation of
achieving clean water goals throughout the country.
Thank you very much.
Senator Smith. Thank you very much, Mr. Fox.
Senator Fred King has indicated he didn't have an opening
comment but wishes to speak.
Senator.
STATEMENT OF HON. FRED KING, SENATOR FROM THE STATE OF NEW
HAMPSHIRE
Senator King. Thank you, Senator Smith. I just wanted to
say thank you for bringing this hearing to New Hampshire. It's
certainly an extraordinary thing to have that happen, to have a
field hearing on a bill that's as important as this. I do have
a letter that I will submit into the record. I won't read it,
because I know a lot of people are ready with comments that
they'd like to make.
Several weeks ago, I wrote to the congressional delegation
relative to this rule. I received very positive comments back
from our other Senator and two Congressmen. So, I believe that
the New Hampshire delegation is well aware of the situation and
how it will potentially impact our economy. From what I've just
heard, the State will have an opportunity to participate in the
implementation of this rule. I will tell you that I sit as the
vice chair of the committee in Concord known as the
Administrative Rules Committee. All the rules that are adopted
by State agencies have to come to that committee for a review.
So, if this follows what would appear to be the historical
pattern where Congress passed a law, or the Clean Water Act,
EPA implemented rules and allowed States to implement those
rules, the Legislature then passes the law, and what happens
ultimately in Concord, our Department of Environmental Services
will also be writing rules. So, we'll be watching the
rulemaking process very carefully.
I think that the only comment I would make is that if
anyone believes that you can conduct timber operations the way
we historically do in northern New Hampshire by first getting a
permit from the Federal Government, and dealing with the red
tape, and still allow the timber operations to operate at a
profit, it just isn't going to happen. If we're going to
continue to harvest trees, we have to do it with sound
techniques. To impose a Federal regulation is going to prohibit
the cutting of trees. I will say that it is my personal belief
that that isn't the role of Washington, anyway. I think cutting
the trees is becoming a bad thing in the eyes of some people. I
hope this isn't the case. Thank you.
Senator Smith. Thank you, Senator King. Your letter
addressed to the committee will be made part of the record.
It's approximately 1:40 p.m. now; and at no later than
2:15, I will move to the second panel. I'll just start with a
couple of questions; and if anyone wishes to move up to the
microphone, I'll try to recognize you at that time.
One of the pieces of information that I came up with, Mr.
Fox, was that on the GAO study, and please comment whether it's
accurate or not, that, apparently, there are only six States,
that were able to manage water quality under these rules, and
only three of them had the majority necessary to develop the
TMDLs for nonpoint sources. The State said that shortages in
staff and resources are why there is such a lack of data.
How do we comply with these additional requirements under
this proposal, along with what Senator King just said about red
tape. If you don't have the resources and the staff to do it,
how do you propose to do that in the short period of time once
the rule is implemented on June 30?
Mr. Fox. You are correct. The General Accounting Office
report did raise questions about the adequacy of our water
quality data in this country; and I can't disagree with many of
the conclusions that are included in that report. We do need to
do a better job of making an investment in this country in
providing high-quality data; but, I would respectfully suggest
that there is ample data in the vast majority of the cases that
we could take action today. That's what we did in the Great
Lakes in 1978; that's what we did in Chesapeake Bay in 1985.
The GAO Report, I think, importantly found that the more
data we get, the more water quality problems we find. And it's
very, very unlikely that there will ever be a situation where
we are, in fact, doing TMDLs on the water that simply doesn't
need it and it usually goes the other way around.
Senator Smith. As I indicated in my opening statement, New
Hampshire does not have the delegating authority to issue the
Clean Water Act permit for point source. So, my assumption is
that the EPA would have to implement that.
Let's use a hypothetical that says the State develops a
TMDL for a water body that is impaired by both non-both
nonpoint source and point source activities; so, if that
happened, would it be--it would be EPA's job to issue the
permit in that scenario, I assume?
Mr. Fox. The way the program is structured in New
Hampshire, the State does have the lead in defining a list of
waters that do not meet their standards. The State would have a
lead in developing the TMDL itself. That TMDL would allocate a
pollution budget for that water body, and then EPA would have
the responsibility for the permits that are as part of that
TMDL operation of those permits. However, many TMDLs will have
nonpoint source and voluntary programs in them; and, of course,
the State would implement those, and EPA would give them full
credit in the pollution budget for those State voluntary
programs.
Senator Smith. How would the nonpoint source portion be
implemented under that?
Mr. Fox. I don't know New Hampshire as well as I need to,
but many States have an agricultural cost-share program, for
example, where you can estimate how many acres of land will be
enrolled in conservation practices; there might be a buffer
strip program as part of the State Forest Program. There are
ways that we could start finding the kinds of pollution
reductions that would come from a voluntary program; and based
on that analysis, those credits would then be given to the TMDL
program.
Senator Smith. Just one followup, and then we'll take this
gentleman's question.
Using New Hampshire as an example now, who would make the
decision whether a forestry or an agriculture operation is
either a point source or a nonpoint source? Who would actually
make that decision?
Mr. Fox. I'm glad you raised the forestry question. It's
the subject of a good deal of attention I've been hearing in
this community. I would like to just say, unequivocally, that
EPA's not going to be issuing permits for every time you cut
down a tree. That's just not what we propose.
Our initial proposal is simply focused at what we call bad
actors. Operators that are, in fact, causing a significant
water quality problem; States who need to make a scientific
determination that they are, in fact, causing that problem; and
it is only after the determination gets made, there can be any
authority given to the State or the Federal Government to step
in and require that Best Management Practices be used.
Based on the comments that we've received from State
foresters, we modified that proposal, because the State
foresters were afraid that our initiative would upset a State
forestry program, and my understanding is that New Hampshire
has a very good one.
And so the proposal, as it now stands, says that if you
have a State forestry program that is achieving water quality
goals, then there will be no permitting authority conveyed to
either the State or EPA. Our goal is to really support the
State forestry programs and achieve our shared goals in water
quality.
But in terms of your specific question: Who makes that
determination? That would be made by the regulatory agency,
whether it is the State or EPA; and in this State, being a
nondelegated State, most of those decisions would be made by
the EPA.
Senator Smith. I would just say if you would state your
name clearly for the clerk; and if it's not Smith or easy to
spell, spell it, if you would?
Mr. Demos. OK. My name is John Demos and I'm with the
American Lands Alliance, which is a national environmental
organization. I represent them in the Northeast up here. First
of all, I would like to go on record as supporting the rule
change.
As you stated earlier, 40 percent of our riverways and
water bodies are great in this country, and I believe,
according to the EPA, about 215 million Americans, the vast
majority of Americans, live within 10 miles of a polluted body
of water.
We'd also like to go on record as opposing your bill,
Senator; although, we're very happy with what you're doing on
the national wildlife refuge and your position on environmental
riders.
Mr. Fox. We are, too.
Mr. Demos. Yes. I think this may be a tempest in a teapot
for New Hampshire. If you look at statistics, it shows that--
official Government statistics--water quality degradation into
silviculture in the State is like zero percent. It's very low
for agricultural, too. So, unless, you know, more studies are
done to determine that silviculture is causing the water
quality problem here, any rule change is probably going to have
very little effect.
I was also talking to a logger here earlier who was very
concerned, and I think there needs to be some clarification
about this rule change, that this rule would affect all timber
operations in the State, regardless; as the Senator has said,
you'll have to get a permit to cut down a tree.
And to go over it again, and you were touching on it a few
minutes ago, my understanding is if--you would have to
determine if it's a greater body of water, first of all; you
would have to determine if silviculture was the major source of
pollution, second; and then under the TMDL programs, it would
only affect point source pollution; and the point source would
mean a culvert, a pipe. That's the statutory definition, that's
correct?
Mr. Fox. Yes.
Mr. Demos. Now, the fellow I talked to earlier, I believe
there's a lot of misinformation out there. He is afraid that
any timber operation would be treated as a point source. And I
hoped that you could clarify that?
Mr. Fox. You are a very well-informed individual. You said
it precisely, and I'm not sure I could do better than that; and
I would just sum it up and say that the silviculture provisions
that we have proposed will have virtually no impact on the
State of New Hampshire based on the current status of the
silviculture in New Hampshire.
What people don't always appreciate is I was confirmed by
Mr. Smith's committee who represent water quality interests in
the Nation. There are silvicultural problems in other parts of
the country, but I think you've summed it up very well. It
would have virtually no impact, in fact, all of New England.
Our current statistics show there's only two very small
segments in Vermont out of all of New England that would be
affected by this.
Mr. Demos. Thank you.
Senator Smith. Thank you, Mr. Demos.
Let me just say that since people are beginning to come to
the mike, I do have my self-imposed 2:15 rule for this panel.
Again, if you could ask your question, there will be a comment
period at the end for anybody who wishes to make anything for
the record. So, if you could try to make the question brief so
that Mr. Fox, I, or whoever you ask it to can respond.
Mr. Thomson. Thank you. I'll be as brief as I can. My name
is Tom Thomson, a tree farmer from Orford. I have a statement
and I've got a question addressed to Mr. Fox; but, first, I'd
like to thank Mr. Fox for coming up from Washington. I've spent
some time earlier in the woods with you and hope you come back
in the future. And I will suggest that all hearings in
Washington, DC be held outside of the Beltway.
Senator Smith. Good suggestion.
Mr. Thomson. The statement is: I would like to suggest that
EPA increase the funding through Section 313, which would go to
the State to expand Best Management Practices, as well as,
education. But do it on a voluntary basis, not regulatory
basis. I encourage you to use New Hampshire as an example for
other States to follow.
And I would like to ask you this question, Mr. Fox. Which
is more environmentally damaging to our society, the tree farm
or forest that we manage and work as a sustainable forest,
protecting water quality, or the farm and forest being replaced
by housing developments, shopping malls, and asphalt pavement,
which we know today is urban sprawl?
Thank you.
Mr. Fox. Mr. Thomson, the more I spend time with you, the
more I do realize there's a lot we agree on. I think it is
important to state for the record that the forestry operations
in effect can have tremendously beneficial impacts on water
quality, and the comparison that you made is hands-down. The
benefit for water quality would be the forest cover as opposed
to a suburban landscape. Good forestry practices are an
essential part of achieving our clean water goals, and I would
agree with you.
I would also add that we have proposed very sizable
increases in voluntary section 319, funding for nonpoint
sources. This was a program which was at $100 million
nationwide 2 years ago. This year's budget, the President has
proposed $250 million. So, it's a sizable increase. We are now
working with Congress to try to get that increased, so it comes
out to people like you and States like New Hampshire.
Senator Smith. I'll just move to this side for this
gentleman.
Mr. Spalding. I have a question for Mr. Fox. My name is
Donald Spalding and I'm from Whitefield.
In ``Through the Looking Glass,'' Humpty-Dumpty declares
that words ``will mean what I choose them to mean.'' What I'm
referring to here is that phrase navigable waters of the United
States regulated by the 1972 Clean Water Act, but now that's
come to mean that swampy hollow in my back woods or the mud
puddle big enough to attract the rats and the passing ducks.
And so my question is: What, if any, guarantees are there
in these proposed rules that the language will not be subject
to the same kind of abusive, excessive, and over-reaching
interpretations eventually?
Mr. Fox. It is a fair question. We all draft these rules
with the greatest intent in our democracy; and these rules have
been interpreted by others.
I would say that the Clean Water Act, as initially
envisioned in 1972, not only defined waters of the United
States in a very broad way, but the 1972 Act actually also
defined a TMDL program which we're now trying to implement.
We believe, and I don't just make this stuff up, I go
through my attorneys, the Department of Justice, in developing
our interpretation. We have a very thorough inter-agency
process, and I'm assuming that future Administrations will do
the same, and we're doing our best to implement the letter and
the intent of the law, as well as, the regulations.
Mr. Spalding. Thank you very much.
Senator Smith. Yes, sir?
Mr. Edwards. My name is Tim Edwards, and I'm from the
southeastern part of the State; and it took me 2\1/2\ hours to
come here today, because it's pretty important to us down
there, too.
I represent two different organizations, two different
groups relative to sportsmen, but I also represent one of the
largest landowners in the southern part of the State, and my
question is for Mr. Fox.
With any regulation or any rule, typically, there are
specific reasons for putting that rule in place, but there are,
very imminent threats for the need of that rule. Could you just
take a minute to explain in New Hampshire, specifically, just
one example of why this rule is necessary? Then please take a
minute to explain within New England why this rule is
necessary, specifically, for the silviculture issues? I think
that would kind of help me a little bit to understand why the
EPA feels that it's necessary to consider silviculture itself
as a point source solution.
Mr. Fox. That's a fair question. I should start with saying
that I testified earlier that the silviculture provision of
this rule will not have a very significant affect on New
England. I would argue that it is the body of the TMDL proposal
that would have the biggest significance and the biggest
importance for New England.
We've spent a lot of time talking about forestry; but, in
the practical sense, it's a very small piece of this overall
proposal.
The urgency for this proposal, and why it is out there
today, is there has been a whole lot of litigation over the
past decade. The States throughout the country are beginning to
implement the TMDL program like they've never implemented it
before, and we've received a lot of interest from the States to
craft a national framework for how this program is going to be
used over the next decades. And we convened a diverse Federal
advisory committee to help us develop recommendations and hear
recommendations on the basis of those proposals. This has been
basically 3\1/2\ years in the making, and it's been in response
to a lot of concerns by States and litigation around the
country.
Mr. Edwards. [Off-microphone] And [inaudible] to that, but
what--give me a specific example in New Hampshire?
[Senator Smith instructs the Court Reporter to just take
testimony only from people speaking at the microphone.]
Mr. Fox. Well, in New Hampshire, I know the next witness
will give us the details, but there are some, at least, dozens,
if not a few hundred, of waters identified in the State as
polluted and not meeting water quality standards.
I know the Merrimack River is on the list. As we were
coming up here, we crossed it a couple of times.
Mr. Edwards. Specifically related to the silviculture?
Mr. Fox. That's what I said. The silviculture proposal will
not have as much of an impact here in New England; but, I'll
tell you, it will have an impact out in the Pacific Northwest.
Mr. Edwards. [Speaking from audience.] Well, why would the
rules----
[The Court Reporter interrupted the proceedings and asked
Mr. Edwards to come back to the microphone to speak.]
Mr. Edwards. I apologize. I thought I could get a specific
answer, and I obviously didn't.
I'll ask the specific question again: With any rule or any
regulation, there is typically a need or an imminent threat to
cause the necessity for the rule. Within New Hampshire, I'm
looking for just one very specific example of why this rule
change is necessary within this State related to the
silviculture industry? And it's a very simple question.
You've come to New Hampshire and we appreciate that, and I
would expect that you would have one specific example related
to the silviculture industry. I'm very aware, as a sportsman,
of the issues surrounding the Merrimack River, the Androscoggin
River, and the Ammonoosuc, and many other rivers here, and, I'm
actually, a strong proponent of the Clean Water Act. It's a
good law. But I am also looking at groups, like myself, who are
very good stewards of the land and we don't make a lot of money
off of the land. We make, perhaps, just enough each 7 years
from the logging to pay the taxes to leave it in open space.
And down in the southeastern part of the State, and Senator
Smith will, perhaps, confirm this, we've got a major problem
with development. And one of the issues right now is in the
last 2 years, we've seen hundreds and hundreds of acres put up
for development purposes, primarily, because it's getting
tougher and tougher to make money by keeping it in open space
and be able to continue to pay the taxes, even with the current
use statutes in the State. And this is just one more burden
that looking at my piece of property, which is one of the
largest pieces of property in the southern part of the State
and very valuable, if I were to sell it and have it developed.
I'm just trying to understand how am I going to continue to
keep that in open space while having to be concerned that I may
get, and I use this term loosely, but it's a couple of
environmentalists that come up and decide that we are doing
something wrong, they petition the State House that something
has to be done, and then, before I know it, I'm into a full
regulatory issue with EPA and I'm having to deal with things on
a point source solution, and I might get to the point where I
don't have the money to pay the taxes on it any more.
And I guess this goes back to the other question that Mr.
Thomson had: What is more important to the EPA? And, you know,
is it open space or is it developing it?
And I really am looking for one very specific example in
New Hampshire that shows the need for this rule. I don't want
to hear that it would affect us, because it will affect us. As
soon as a rule is in place, there are always small factions,
and I deal with this both as a sportsman, as well as, a
landowner and, as well as, an ordinary citizen; there are
always small factions that once a rule is put in place, those
small factions focus on that rule and they use that rule to the
extreme.
So, this is one more rule; and, we, in New Hampshire, are
very careful, especially, with our House of Representatives and
our Senate, that we do not put rules in place, unless there is
a necessity for that rule, because rules can be abused.
Mr. Fox. Well, I honestly don't have the answer that you
want to hear; but I will very distinctly say that there are
provisions of this rule that don't affect some States. There's
a provision here dealing with concentrated animal feeding
operations. This doesn't affect the State of New Hampshire
much, either. This is a national rule, a national scope, and
that's how we've developed it; and I can also tell you, and we
won't do it now, but there's a whole lot of protection in here
to prevent people like you from being subject to citizens'
suits, and I don't think, frankly, that's a realistic end
point, either.
Senator Smith. Let me ask it a different way, Mr. Fox.
Regarding the impact on say, a woodlot owner, how if the rule
passes, if he wants to do some activity on his woodlot, cutting
trees, for example--how is he going to know whether he has a
point source? How's he going to know whether the water is
impaired? How's he going to know whether he needs a permit
before he cuts his trees? How will he know this? Or does he
have to petition somebody at the EPA to go out and log?
Mr. Fox. It's actually going to be, I think, fairly
straightforward. First and foremost, the State has an
opportunity to have a statewide forestry program that is
protective of water quality. The State will have 5 years to do
that. If the State's program--and by all attempts that occurs,
the State will probably meet that certification; if that
program's adequate, there's no permitting authority.
Second issue, say, that the State does not have an adequate
program in time, which we find it inadequate, we are now in a
different position.
First off, there is no authority whatsoever for us to issue
permits, unless that water is defined as impaired by
silviculture. The citizens can get that information from the
State. We publish it on the Internet. It's widely known of
whether it's polluted water; and if there is polluted water,
again, the permit is only going to be required when the
regulatory agency makes a specific finding of the land that is
causing the problem.
Senator Smith. All right, but let me go one step further;
and then I'll take some questions.
Let's just say that somebody on their woodlot decides to
conduct some activity, and a citizens' group sues EPA, because
they claim you're not enforcing the Clean Water Act as
prescribed under the rule. What happens? Wouldn't that person,
forester, or individual, have to stop his activity pending that
lawsuit?
Mr. Fox. The short answer is: I don't believe so. But I can
spend some more time with my lawyers and your lawyers. As I
talked about this earlier, first, the citizens don't have a
permit under which to make a lawsuit or make a challenge; so,
the citizens would be challenging through a petition process if
the State or the Federal Government failed to issue a permit.
Second, you know, if we rejected that, we would then find
ourselves in court, and the judge would have to make a finding
that the State or the Federal Government acted arbitrarily and
capriciously, which is a very high standard. So, I don't
believe that is really going to happen. But we do have a very
litigious society today, and I'm not going to say that there
aren't any attempts at that, but I just don't think that's a
practical point based on how we can stretch this rule.
Senator Smith. I believe that you sincerely believe that.
My concern is that litigation does take time; it takes a long
time. And that, you know, a year or two in court by some
citizen group that has no interest in the land in question
could very well have a severe hardship on an individual for no
justification if there were no water quality standards being
violated.
One of my concerns is that innocent people would be
subjected to this when, in fact, there was no reason for this.
If they are violating the water standards, that's another
issue, obviously; but, anyway, thank you for your answer.
Yes, sir?
Mr. Hall. Thank you. Thank you, Senator. Alan Hall. I'm the
Executive Director of the National Farm Bureau. I'd like to ask
Mr. Fox some questions about the costs to agriculture and the
forestry industry.
What are EPA's cost estimates for these particular
industries?
Mr. Fox. We are revising the cost estimates based on
comments that we have received. As we proposed this, we
estimated a national cost for the forestry provision of about
$10 to $13 million nationwide, based on the economic analysis
that we did.
Mr. Hall. And agriculture?
Mr. Fox. The agriculture costs under this, I'm not sure. We
found fairly insignificant costs on agriculture as a result of
this; and the reason I say that, just so that you'll understand
this, we did our costing analysis looking at the impact of this
rule, and that is an incremental cost analysis.
It was, actually, the Reagan administration that first
required nonpoint sources to be included. So, we look at the
costs, the incremental costs associated with this rule, as
opposed to the existing base line; and in the average, it cost
agriculture quite minimal.
This is not in a vacuum. We didn't just create this with
no existing rule that's out there.
Mr. Hall. When will you be able to release the particular
estimates?
Mr. Fox. We release these pursuant to the Federal law,
Federal Executive order. We give the proposal and the final, as
well.
Mr. Hall. Thank you.
Senator Smith. Yes sir?
Mr. Pratt. I am Representative Leighton Pratt from
Lancaster, and my question is concerning if we had a forest
plan--can't think of the proper title--but forest Management
Plan that's being carried out at the State's University, will
that be effective?
Mr. Fox. Absolutely. My experience shows that in most
cases, that is absolutely going to be effective; and it will be
sufficient for me in applying to these rules, that's right.
Mr. Pratt. Thank you.
Senator Smith. Yes, sir?
Mr. Derose. Yes, my comment will be to the Senator----
Senator Smith. If you could just give your name?
Mr. Derose. I'm sorry. My name is Joe Derose, D-e-r-o-s-e,
and I'm a music teacher at Profile High School, and I'm here
with my friends representing the Dalton Gang. We have property
up on the Dalton Mountain. We're a cowboy and shooting club.
My question is this to you, Senator, because, Mr. Fox, I--
you're paid by the EPA, and you and that great bureaucracy up
there, your jobs are dependent upon you doing what you're doing
today, and you do a very good job at it. So, with all the
smiles and all the politeness, I'm going to change that a
little bit.
Senator Smith, why should I believe that the EPA or any
other government bureaucracy that is so top heavy now and have
forced their way into our lives, to such an incredible degree,
should keep their word anybody anything? I'm looking at the
current Administration. Why should we believe that you people
aren't liars----
[Applause.]
Mr. Derose [continuing]. Liars? That's the question I'm
going to ask of you.
Senator Smith. Well----
Mr. Fox. I see I don't get all the tough ones.
Senator Smith [continuing]. Well, I guess I could take the
easy route out and say, ``I'm not a member of the
Administration''; but I think that faith and trust in
government, government officials, and how one conducts him or
herself in government has to be earned. I think there is ample
cause for many people in our country today to be dubious of
actions of our Federal Government in many areas; there's also
many reasons for us not to be proud of some of the things that
our Federal Government does. But I just want to point out here,
in fairness, I think that everybody has the same motive, in
terms of wanting clean water, and clean air, and beautiful land
to enjoy for future generations.
I'm involved in the Everglades restoration, for example,
which doesn't have anything to do with New Hampshire, except
for the fact that, maybe, your grandchildren 1 day might like
to go down and see alligators. You cannot see them in the White
Mountains; at least, I don't think so.
And so, my view is this: What is the best way and this is a
sincere difference, I think, that I have with the
Administration on this--what is the best way to ensure that for
the future that we will have clean water?
Now, we're taking a rule here now; and if you look at the
true background of this proposed rule, you would have to say,
because the EPA says it's going to delay the permit requirement
for 5 years, well, it's going to review the Best Management
Plan. But it takes time.
And so, I would have to say: ``Is there such an urgency
that this rule would have to be put in by June 30?'' That's
less than 60 days away. In other words, have been up here
managing your lands for decades, centuries. Have we created
some problems around the country? Probably more in other areas
than in New Hampshire, yes.
But what is the best way to resolve this? Is it to have
some other rule which almost criminalizes the landowner, in the
sense, that he's got to or she has got to respond to some
permitting requirement? Or would it be better to come and say,
``Look, we've got some problems and we need to do this a little
better. Here are the reasons why we have to be careful how
close we cut trees to streams.'' Get the science out of what
happens.
We used to have the people from the National Environmental
Protection Agency tell us that we shouldn't put any trees
across a stream, because it blocked the water; but, in fact, we
find out that fish spawn in those pools.
My point is that I don't think it's so urgent that in the
next 60 days to implement this plan. I'd rather take the next 6
months to a year and get the science--and it's not 3 years or
2, it's 18 months under this process--to find out what science
we have on this, and find out how good it is, and that's all. I
think that if that were to be done, if that process were to be
implemented, instead of proposing this rule assuming that all
or many folks are going to be bad stewards, and we need this
rule, we need the permitting, we need to make you aware that
you're going to have to pay a fine or buy a permit, and then
you're going to be punished if you violate this rule.
Rather than that, I'd rather say, ``Let's find out what it
is we need to do right,'' so that we're not creating dirty
water down the road. Furthermore, someone just said it in a
question, that we're not creating parking lots; and how does
the development of industrial parks on the land that could be
maintained in perpetuity for the use of all of us? That's my
own view. Is it so urgent after many, many centuries of working
this land that it's got to be done in the next 60 days? And I
am not--I just cannot believe that that is the case; and that's
where I'm coming from.
[Applause.]
Senator Smith. Yes, sir?
Mr. Cherry. Mel Cherry, Conway, NH, and I would like to ask
a question of Mr. Fox. Do you own any farmland or forestry
land?
Mr. Fox. No, I don't.
Mr. Cherry. Do you own any land?
Mr. Fox. Yes, I do.
Mr. Cherry. Well, may I ask how much?
Mr. Fox. It's probably a quarter acre.
Mr. Cherry. Thank you. Thank you, sir.
[Applause.]
Senator Smith. Senator King.
Senator King. Yes, I would like to ask a question.
I've lived on the banks of the Connecticut River here for
about 40 years; and every spring, when the snow melts and the
water comes and we have flood conditions, the water looks like
coffee grounds. The brooks that are running off the mountains
look like you could go out and walk on them. That's been going
on since time began.
When the water is going down, all the fish are still there,
the muskrat and its mate, and so on, are on the shores, the
ducks and geese are healthy. What is so different about that
and this issue of a runoff from timber harvest? What are you
going to do about that? How are you going to prevent nature
from melting that snow and contaminating the rivers in the
future?
Mr. Fox. Not only will we not prevent nature from melting
snow--I'm really not sure that that would in any way--I think
that that is a pollution problem you just described.
My understanding of New Hampshire's pollution problem is
they're mostly related to bacterial and microbiological
contaminations from inadequately treated sewage from some
cities and failing septic systems, that there are some problems
associated with industrial facilities; but I do not think of
New Hampshire waters as polluted by sediment.
Senator King. Well, I was describing, what happens. One
July, the Connecticut River went up its banks and all the
cornfields were flooded. What I'm describing is what nature
does to the rivers on an ongoing basis. Timber harvests do not
create pollution from sewage, either.
So, with the natural course of a timber operation, it may
or may not provide the same type of issues in these brooks and
streams. It happens every year on an annual basis. It doesn't
do any permanent damage.
Mr. Fox. In fact, timber operations will tend to stop that
kind of stuff because of the forestry that streams are much
more beneficial of pure water quality.
Senator Smith. I see two gentlemen standing. So, we'll make
these the last two questions, so that we can move to the next
panel.
Yes, sir?
Mr. Kleen. I thank you, Senator. I'm Rich Kleen with New
Hampshire Citizens for a Sound Economy here in Concord. Just a
brief question for you, Mr. Fox, a point of clarification on
your remarks. This is not a new rule. It's a revision.
Is it not true, though, under the revision that the EPA if
it rejected a TMDL, it would require a Clean Water Act, some
permit for a nonpoint source, and isn't that a change from what
currently exists?
Mr. Fox. I would like to make this perfectly clear,
because, apparently, this is one of the obvious misconceptions
that I've heard.
We require no permits for nonpoint sources. We never have.
We never will. We don't have the authority to do so, and that's
just, frankly, a falsehood that's been spread.
Mr. Kleen. Thank you very much.
Senator Smith. Yes, sir.
Mr. Hounsell. Thank you, Senator. My name is Bill Hounsell.
I'm from North Conway, NH. I work as a consultant to the
environmental end of Federal issues through local communities.
From the lowest level, I work.
My question would be: In New Hampshire, the people in the
early 1980's passed the constitutional amendment to our
Constitution that says that if our legislature passes some
laws, mandated programs onto us, that they also find a way to
fund them on the State level.
Is there any consideration--Senator Smith offered, as his--
part of his bill, a funding; and that issue is how to fund it?
Is there any consideration as this EPA rule is impacted onto
the State of New Hampshire that our DES is also receiving
Federal money that would bring aboard some of the engineers
that would help oversee it? Eighty percent of our Department of
Environmental Services are now funded by Federal grants. So,
when you say we have our Department of Environmental Services,
we do have in our Federal Government.
And finally, my simple question is to you, backing up the
Senator's bill, is that part of what's already in there? If
not, shouldn't we take the time to find out how the funds are
going to come in, rather than just leave it to Senator King and
the Legislature to figure out how to do it?
Mr. Fox. In listening to comments on our proposal, the
State's raised the funding issue, repeated it to me, and I
think this is a very important one. We were successful in
working with the President and the White House, including a
very sizable increase in this year's budget for the TMDL
program. We have increased the two main accounts that affect
this one. It's called section 106, State Grants Account; and
we've increased this from a base line of $150 million up to
$250 million--I'm sorry, a $100--we've added $45 million to
that. We took the Section 319 program from $100 million up to
$250 million; and so, this has been a very sizable increase.
Now, is it enough? Would we like to see more? Of course, we
would; but we're having a tough enough time to try and get this
one through Congress; given the budget resolutions that
Congress has passed, this is not a bad place to start.
Mr. Hounsell. And a second, a followup, if I could?
Senator Smith. Yes.
Mr. Hounsell. The USDA is on this rural development. Also,
are you taking into consideration funding some grants through
their program for communities under 10,000 that would be
impacted by this? Or is that another avenue for funds that
hasn't been contemplated?
Mr. Fox. That's a very good idea, and I'll take that back.
Thank you.
Mr. Hounsell. Thank you.
Senator Smith. I think that's for legislation. We have a
bill out. It's $750 million to assist the Department of
Environmental Services and other similar departments around the
50 States. So, in that we do increase the money considerably
from what it is now, to, I think, it was in the vicinity of--is
it $150 million?
Mr. Fox. Right.
Senator Smith. $150 million nationwide.
Let me thank you, Administrator Fox, for taking the time to
be here. I know there were some tough questions and--but I also
wanted--to compliment every questioner because you were very
polite and considerate. You offered your views, and we
appreciate that. These are tough issues that we all face, and
we're trying to deal with them as best we can in terms of our
own philosophical views. Oftentimes, Congress and
Administration doesn't agree. It's not unique. It happens a
lot. Even if it's the same political body and, many times, we
have major differences in Congress and the Administration; so,
I want to thank you very much.
Mr. Fox. Thank you.
Senator Smith. And you're welcome to stay if you'd like----
Mr. Fox. I will.
Senator Smith [continuing]. Or you can leave. There will be
some questions at the end, if you----
Mr. Fox. No, in fact, I had planned on staying for the
whole hearing. If there are any questions, I'd be happy to
respond.
Senator Smith. Thank you.
And at this point, let me call on the second panel, which
will be Mr. Harry Stewart, the Director of Water Division, New
Hampshire Department of Environmental Service; Mr. Phil Bryce,
the Director of the New Hampshire Division of Forests and
Lands; Commissioner Ronald Lovaglio of the Maine Department of
Conservation; and Mr. Ronald F. Poltak, Executive Director,
Northeastern Interstate Water Pollution Control Commission.
While you're being seated, gentlemen, let me just indicate
that your entire statements are a part of the formal record. If
you have any opening comments you'd like to make, if you could
summarize them in 2 to 3 minutes, I'd appreciate that; and your
statements will be made part of the record.
Mr. Stewart, why don't we start with you.
STATEMENT OF HARRY STEWART, DIRECTOR OF WATER DIVISION, NEW
HAMPSHIRE DEPARTMENT OF ENVIRONMENTAL SCIENCE, CONCORD, NH
Mr. Stewart. Thank you, Mr. Chairman. First of all, before
I start, I have a letter here from Governor Shaheen, which I
will present to you----
Senator Smith. That will be made part of the record.
Mr. Stewart. Governor Shaheen indicates strong support for
the forest products industry in this letter, requests another
round of public review and comment with regard to the TMDL
rules, once the revised rules have been finalized,
particularly, for the forest products component of the rule,
and also requests consideration of increased funding at this
stage for the TMDL rule which is desperately needed.
Mr. Chairman, I am Harry Stewart, director of the Water
Division, New Hampshire Department of Environmental Services.
Thank you for the opportunity to testify before the Senate
Committee on Environment and Public Works on the EPA's proposed
TMDL rules.
NHDES and other State environmental agencies across the
country were highly critical of the EPA's proposed TMDL rule,
dated August 23, 1999. The regulated community and the public
were also highly critical, as demonstrated by the approximately
30,000 comments received by EPA on the proposed rule. NHDES
viewed these proposed regulations as being too burdensome on
both the State environmental agencies and the regulated
communities, and as too prescriptive, removing the flexibility
of States to tailor programs to State-specific priorities and
needs.
Since then Chuck Fox, Assistant Administrator for Water at
EPA, should be commended for his efforts to be responsive to
these concerns, particularly, the State concerns. In letters
dated April 5, 2000 to key Senators, including Senator Smith,
and the joint statement between EPA and the Department of
Agriculture, dated May 1, Mr. Fox has indicated numerous
changes in the proposed rule which will address a high
percentage of the issues raised by the States and other
parties. These proposed provisions go a long way to address the
concerns of the States by providing greater flexibility to
tailor TMDL approaches to State-specific needs. In my written
testimony, I go into detail about these changes.
Similarly, the joint Department of Agriculture and EPA
statement indicates a very positive step to address the
forestry concerns and suggests an approach that is likely to
work in New Hampshire. Under any reasonable criteria, New
Hampshire has an ``adequate'' program; ``adequate'' is the term
that's been used in some of the EPA documents. With an
``adequate'' program, a State falls out of the scheme of the
TMDL regulations with regard to silviculture.
By any reasonable criteria, New Hampshire has an adequate
program in place, which includes three critical elements:
Implementation of best management practices, training and
outreach, and compliance and enforcement.
With regard to compliance and enforcement, in New
Hampshire, when water quality problems caused by forestry
operations are identified, they are typically short term and
are corrected through the joint efforts of the Department of
Resources and Economic Development--and Phil Bryce, the State
Forester, will be talking in a moment--and NHDES. These efforts
virtually always first included compliance assistance; and,
when necessary, enforcement under State statutory authorities.
In fact, we expect that site-specific water quality problems
would virtually always be addressed under State programs long
before they rise to any threshold for Federal involvement, such
as long-term water quality impairment.
Although, we are pleased that EPA has been very responsive
to the concerns expressed by the States and other parties, we
have not yet had an opportunity to examine the actual wording
of the proposed revisions which address these concerns.
Consequently, we urge EPA to publish the actual language of
proposed changes for public review as soon as possible,
especially for the forestry provisions, to allow evaluation and
comment on the changes prior to final promulgation. This
approach is appropriate, considering the magnitude of the TMDL
comments and expected changes.
Finally, please note that, as in most other States, New
Hampshire's TMDL program is significantly underfunded.
Additional Federal support for State development of TMDLs is
needed, irrespective of the results of the EPA rulemaking.
Additional funding is proposed in both Senate bill 2417 and
the President's proposed budget. The President's budget
contains $45 million for Federal fiscal year 2001, which
translates into just over $200,000 for New Hampshire to assist
with TMDL development. We have several concerns with the
proposed funding in the President's budget. This is a good
start, but we estimate that we need around $420,000 for an
adequate TMDL program in New Hampshire.
Due to the way a new EPA Formula for the section 106 moneys
work, Senator, if the appropriation were to increase by $5
million to $50 million, all of the extra funds would go to New
Hampshire, Vermont, Rhode Island, and, I believe, 10 other
States, because of the way section 106 formula works. So, if
the present funding were increased by $5 million, the
additional funds would go only to New Hampshire and 12 other
smaller States.
Under the President's fiscal year 2001 budget, the State
match requirements for the proposed new TMDL funding are also
too rigid to enable New Hampshire to access all of this money.
For the new money, there's been some changes in the rules in
terms of the State match proposed, which make it very difficult
for New Hampshire, particularly with the education funding
problem we have here to use, even the $200,000. So, we suggest
that the match requirements be changed.
We urge you to provide additional funding for water quality
analysis and TMDL development with minimum match requirements
and maximum flexibility on how the Federal funds may be
matched. This is the only way to ensure that the funds will be
fully utilized by all States to make significant progress
toward the goals of the Clean Water Act.
Thank you for the opportunity to testify on the proposed
TMDL regulation. We look forward to working with Congress and
the EPA to ensure that our Nation's waters are protected and
improved, while ensuring that our forest products industry and
other traditional activities can continue to flourish in an
appropriate and responsible way. Thank you.
Senator Smith. Thank you very much, Mr. Stewart.
Mr. Philip Bryce.
STATEMENT OF PHILIP BRYCE, DIRECTOR, NEW HAMPSHIRE DIVISION OF
FORESTS AND LANDS, CONCORD, NH
Mr. Bryce. Yes, thank you, Senator. I have submitted a
written copy for the record. My name is Philip Bryce. I am
director of the Division of Forests and Lands. Thank you for
the opportunity to testify today on the EPA's proposed TMDL
Rule.
The Division of Forests and Lands is the primary State
agency responsible for the enforcement of forestry laws,
including, in cooperation with the New Hampshire Department of
Environmental Services, those protecting water quality. Law
enforcement officers from my agency regularly conduct onsite
inspections of logging operations to ensure compliance with
water quality and other timber harvesting laws.
The State also provides training in compliance with
forestry laws and implementation of BMP's through the
Professional Logger Program, which is a volunteer program. The
recommended timber harvesting practices that are highlighted in
that Program for controlling soil erosion have been around in
New Hampshire for, at least, 20 years. And implementation of
these practices has been a critical component in reducing the
impacts of logging on water quality over that time.
As a State forester, I oppose the proposed rules on three
major grounds.
The first is: The proposal is a major departure from the
historical interpretation and implementation of the Clean Water
Act, and is not supported by statutory authority.
The second is: The proposal ignores the relatively minor
contribution made by forest management to water quality
problems nationwide, and threatens to disrupt the effective
approach taken by the State foresters and our Federal partners
to achieve these results.
And third: The proposal will be extraordinarily difficult
to implement in practice and will result in drastically higher
costs for both States that must develop TMDLs and the
landowners and operators who might become subject to NPDES
permitting requirements.
I certainly understand that EPA has been working on
addressing some of those concerns. However, until we see a new
rule written and see the language of that rule, it would be
very difficult to tell the degree to which concerns have
actually been addressed.
New Hampshire has a long and some proud tradition of
protecting personal and property rights while working
collaboratively to resolve public issues and problems. I have
characterized this as a balanced and collective form of
forestry leadership. The top-down approach promulgated by the
EPA is viewed by many as a threat to maintaining that spirit of
collaboration between the private and public sector that has
worked so well here in New Hampshire to address natural
resource challenges.
As we work to address environmental protection and forest
stewardship through constructive dialog, a broad spectrum of
interests, from representatives of the forest products industry
to those, who are some of the staunchest critics of that
industry, have sat down and identified more than once the need
for additional education, monitoring, and enforcement of
existing laws.
For example, the final report of the Forest Liquidation
Study Committee to the State's Forest Advisory Board concluded
that, with respect to improving forest practices, we need
increased efforts to educate individuals about sound forest
management, better data-gathering on the level and harvesting
activity within the State, and enhanced enforcement of existing
laws. What we really need are the resources to carry out these
recommendations. Specifically, in our New Hampshire Statewide
Forest Resources Plan, it's recommended that the State
``Provide consistent, swift and equitable enforcement of
forestry laws'' and that we secure funds for five additional
Ranger positions.
I recognize, as I stated before, that the EPA has been
working to address some of the issues and our concerns around
the proposed rules; and, I, again, would like to thank them for
that effort. However, there remains a great deal of uncertainty
as to the degree to which the EPA is addressing these concerns.
Questions remain: And I'd like to go through these very
quickly.
--Do these rules lead to the improvement of water quality
beyond the capability of existing State laws?
--Is EPA considering forestry and silviculture as a
nonpoint pollution source or not? This is a critical question.
And I do not understand this, yet.
--Under what specific circumstances will EPA issue a clean
water permit or require the States to do so?
--What is the relationship between the existing BMP's under
the 319 Program and BMP's recognized under the new rule? If the
319 BMP's are not acceptable, what are the new criteria?
--Regardless of current policies or the intent of EPA, what
is the actual impact on landowners and forestry activities if
there is full enforcement of the proposed rules?
To what extent will additional regulation drive landowners
to convert land to non-forestry uses? We heard that a little
earlier. And if the States have a lead, who has the final say
with respect to the application of this rule?
Now, I would like to emphasize that we really need to see a
copy of the actual rule in order to understand the degree to
which those questions are answered. We really need to see a
copy of the language, as it will be presented in the rule; and
I would suggest that the major policy changes that have been
made, be presented for comment in the form of rule language.
In closing here, while we do look forward to working with
EPA to protect our water quality, we know what's important here
in New Hampshire. We don't believe that the proposed rule is
the correct approach. Even with the changes in policy, we are
concerned that it creates ominous and uncertain Federal
regulation over silviculture and forest management.
Our collective efforts on behalf of the public to protect
water quality should focus not on additional permitting and a
shift to Federal control, but on monitoring, education, and
additional support to the States to enforce existing law.
Thank you for the opportunity to provide this testimony.
[Applause.]
Senator Smith. Thank you very much for your testimony, Mr.
Bryce.
I neglected to point out that this is a New England
hearing. Mr. Poltak is here from Massachusetts and Mr.
Lovaglio--have I got that right?
Mr. Lovaglio. Yes.
Senator Smith [continuing]. From Maine, Augusta, ME. Thank
you very much, and I appreciate you both being here.
Let me turn to you, Commissioner Lovaglio, for your
comments from the Maine Department of Conservation.
STATEMENT OF RONALD B. LOVAGLIO, COMMISSIONER, MAINE DEPARTMENT
OF CONSERVATION, AUGUSTA, ME
Mr. Lovaglio. Thank you very much, Senator Smith, and
distinguished guests. I am Ron Lovaglio, speaking on behalf of
the State of Maine. I serve as Maine's commissioner of the
Department of Conservation, but today, I am representing all of
Maine's natural resource agencies, as well as, the
administration of Governor King.
In January of this year, Maine's commissioner of
Environmental Protection and I submitted joint comments on
EPA's proposed TMDL rules. At the same time, our State
Forester, Thomas Doak, submitted comments, as did the
commissioner of the Department of Agriculture. Our concerns
were substantial and I call attention to those letters attached
as part of this testimony.
In the months since the end of the comment period in
January, EPA has confusingly restated its position.
In ``Achieving Cleaner Waters,'' that was released in
March, EPA acknowledged that forests are essential to
maintaining clean water. However, EPA provided no further
insight into how costly TMDLs and the threat of permits would
enhance State efforts.
In their April 5 letter to Senator Shuster and the
committee, the EPA regretted the confusion for the TMDL
proposal and summarized the key elements of final regulation:
To give States more time to develop lists of impaired waters;
to give them more time to develop TMDLs; and they tried to
clarify that permits will not be needed for forestry
operations, which we heard here today, when these operations
are managed by State programs ``that are proven effective.''
Administrator Fox's April 5 letter is included and a list
of ``Key Elements of the Expected Final Regulation.'' The EPA
dropped the major components of their original proposal,
including: threatened waters, offsets for new pollution, the
public petition process, and the potential for Federal permits
to be applied to forestry operations.
However, the letter supplied few details about how the
remaining program would address nonpoint sources.
On May 1, a joint statement by EPA and the Department of
Agriculture attempted to qualify the April letter; it states
that no permits will be required for point source forestry
operations for 5 years, and it specifies that EPA will develop
guidelines for States to follow in designing BMP's. It then
states that forestry operations would be exempt from permit
requirements, and that the State's BMP's need to be recognized
by EPA as ``adequate.''
And at this time, also on May 1, it did not mention
removing the public petition component that was mentioned in
April. The letter also references increases in conservation
funding, but identifies no new money to implement BMP's.
This proposal, in our view, effectively leaves EPA with
direct oversight over State efforts.
Maine has little confidence that EPA's efforts to finalize
a rule by the end of June that will result in a practical
mechanism to apply the best analytic tools and the best
remedies to the issue of clean water.
Moreover, we are frankly, concerned about a seeming
reluctance on EPA to recognize that State, rather than Federal
approaches, particularly in the area of nonpoint pollution
sources, have proven most successful in recent years.
To suppose that States cannot develop BMP's without Federal
guidelines and Federal judgment of adequacy is an overzealous
and unnecessary application of Federal power.
I'd like to speak specifically to forestry, as well as,
agriculture.
Silviculture has not been identified as a major source of
impairment in Maine's 303(d) list. The EPA's own review of that
list described Maine's nonpoint source pollution program as
``exemplary and one of the best in the Nation.''
It is not appropriate to now require States to submit to a
one-size-fits-all federally defined, determined to be
``adequate'' BMP's.
Maine has a strong Forest Practices Act that includes
criteria for sustainable water quality.
In unorganized towns, which cover 10 million of our acres,
we have land use regulations, whose primary function has been
to drastically improve water quality over the last 20 years,
principally, from forestry operations. It is a national success
story accomplished by the State without Federal intervention.
The gap EPA proposes to close by continuing to include
forestry operations, I believe, is largely theoretical.
Evaluating threatened or impaired water on the basis of
evaluated opinion, rather than data, is akin to being convicted
before the evidence is presented.
In nonpoint source issues, without real data, it is
difficult to pinpoint which sources are contributing what;
consequently, it then becomes guilt by association.
Requiring a major safety margin on top of that evaluative
opinion adds insult to injury--a real cost to forest landowners
and farmers.
So, what needs to be done?
States should develop BMP's without Federal ``guidelines''
for approval. There should be----
[Applause.]
Mr. Lovaglio [continuing]. There should be real Federal
funding assistance; help people without dictating. And we
should develop real data on loads. Support pilot programs to
find different approaches that work, as opposed to one-size-
fits-all.
In our view in Maine, Senate bill 2417, your bill, Senator
Smith, is a much preferred alternative. The bill recognizes
that the most effective way to improve water quality and reduce
nonpoint pollution is to increase funding to State programs
that reach landowners directly, and improve practices on the
ground. The bill supports innovative State approaches that
build on watershed management efforts. And finally, the bill
provides critical money to develop water-quality data and to
develop a better understanding of how and where TMDLs can be a
useful tool; and, in fact, where they cannot.
On behalf of Maine, thank you very much and we appreciate
having the opportunity to comment on this panel today. Thank
you.
[Applause.]
Senator Smith. And we're delighted to have you. I've been
fishing up around Moosehead Lake. There are some paper
companies up there and it was a pleasant experience. I didn't
catch any fish, but I saw a lot of moose.
Mr. Poltak, Ronald Poltak, executive director of the
Northeastern Interstate Water Pollution Control Commission from
Lowell, MA. Welcome, sir.
STATEMENT OF RONALD F. POLTAK, EXECUTIVE DIRECTOR, NEW ENGLAND
INTERSTATE WATER POLLUTION CONTROL COMMISSION
Mr. Poltak. Thank you, Senator.
Senator Smith. You had a long ride; longer than mine.
Mr. Poltak. Quite a long ride. I want to thank you for the
opportunity to be here and I want to thank your staff for
inviting me to testify. My name is Ronald Poltak and I am the
chairman and director, actually, executive director, of the New
England Interstate Water Pollution Control Commission. It is an
agency that was established by an Act of Congress in 1947 to
work with the six New England States and New York, charged with
the responsibility to coordinate water pollution control
programs.
And, with that said, I appear before you this afternoon as
a lifelong resident of the State of New Hampshire, born and
brought up in this State. I'm very proud to have worked in the
State Government for 20 years prior to have taken on this
position.
I appear before you this afternoon with full recognition of
the fact that the six New England States and New York have--and
I won't go into the details--have submitted very formal written
comments relative to the content of the regulations as
proposed, and we do have difficulty with many of the provisions
within the content of those regulations.
However, we do support the intent of the TMDL process with
respect to what it means in terms of enhancing water quality
across the Nation. Those comments are submitted for the record.
They are available and I also appreciate the efforts of Chuck
Fox and, more importantly, to some degree, his staff, who have
worked with us in earnest at the State level to try to correct
some of the difficulties we've had, in terms of the direction
this program will head in.
I expect that many of the changes will be implemented, and
I expect many of those changes will result in positives
relative to the TMDL process which is essential to ensure water
quality across the width and breadth of the Nation.
I also speak on behalf of other interstate commissions.
There are six others like ours in this country. We work with
the States, as I said earlier, and we have a very important
role to play, in terms of the implementation of the Clean Water
Act. I want to just elaborate a little bit on what that role is
and how important it is, Senator, that you and the committee
understand and recognize the interstate role and the interstate
objectives.
We have been charged with the responsibility through an Act
of Congress on monitoring and assessing water quality within
our areas of jurisdiction. We have established over time a
uniform or consistent set of uses and criteria to protect our
public waters. We have established wastewater control
requirements. We review and approve projects. We also develop,
along with other States, 305(b) water quality assessment
reports, which are essential to the basis on which section 106
funding is derived; also to explain where water impairments
across the country are located.
In accomplishing these roles, it should be noted that the
interstate commissions are well established and have developed
strong working relationships and trust among Federal, State,
and local entities.
Our Commission was established, as I said, over 54 years
ago, and our role is to provide consistency and equity among
two or more States, and in some basins between EPA regions and
the States. We can establish a process to define appropriate
goals and program elements of TMDL development processes. We
develop and adopt water quality standards. The first water
quality standards adopted across New England, in terms of
consistency, along with the States of New York, New Jersey, and
Pennsylvania, were developed by our Interstate group, and we're
proud to say that those standards are still in place, and we
are there to provide consistency and assurances to the public
that those water quality standards will not be violated.
We have worked and continue to work with the States and
dischargers in implementing the TMDL program.
In our view, on waters having interstate basin commissions,
EPA should recognize and will, I would assume, work through the
interstate commissions in the establishment of TMDLs. There's a
very important reason for that. It is because the commissions
can help secure agreement on management approaches and maintain
consistency across State lines. We are, as commissions, made of
State members, and we also have the Federal Government through
EPA at our table on our executive committees.
We have a strong working relationship and trust, and
operational plans that matured over time. We have the ability
to implement TMDL activity among the 25 river basins that come
under our jurisdiction in New England, not the least of which
are the Connecticut and the Merrimack, and we've already begun
coordinated efforts to make TMDLs happen.
I just want to take 2 more minutes to talk about two more
subjects. In terms of the regulations themselves, the subject
of flexibility must be discussed.
In order for the TMDL program to be effective, flexibility
and consistency with existing statutory authority is critical
and must be provided in the final TMDL regulations. The final
rulemaking needs to adequately reflect the partnership
established with the States under the 1972 Clean Water Act. It
is important to note that the Federal Water Pollution Control
Act, section 101(b) gave States ``the primary responsibility
and rights to prevent, eliminate, and reduce pollution.''
These presently proposed regulations do not reflect this
leadership role for States outlined by Congress. State and
interstate organizations must be afforded greater flexibility
and resources to support their important role in implementing
this critical program.
If the TMDL program, in fact, utilizes a watershed approach
to reduce pollution, and we know that it intends to, then State
and interstate organizations need to have the primary role and
responsibility in implementing this program. Since these
entities are better suited to that role than the Federal
Government, it is critical that sufficiently flexible
provisions be granted to States and interstate organizations in
order to account for and address local site-specific factors
which deviate from the national perspective and the one-size-
fits-all phrase.
With respect to current funding, Harry elaborated on that.
On a national basis, I just concluded working with EPA
Headquarters on a gap analysis study within the context of
program implementation capability. That gap analysis study,
which will be shared publicly in the near future has
demonstrated that, in fact, on the whole, States and
interstates on an annual basis are $26.5 million short on an
individual basis of implementing all of the program objectives
that are subjected to them through the Clean Water Act process.
If we're going to be able to make strides to narrow that
gap, it's going to take substantial funds. While the current
level of funding will be very much appreciated, in the sense of
the additional $45 million in the 106 program, in my opinion,
funding is still woefully inadequate in order to get the job
done, it should be a threefold increase in funding in order to
make the right things happen.
Additionally, I would simply mention the fact that there
is, within the context of the Administration's proposal, 60
cents of every Federal dollar to be matched with 40 cents of
State and interstate money. We simply can't make that match.
This is a mandated program, and a match of that size is of an
amount that is excessive, in our estimation, and that should be
no more than 10 percent of it; or, better still, given the
level of record matches presently under the 106 program, it
should simply be maintained at that. I think that is a thought
for consideration; but simply stated: ``The match is too high
for us to make the program work.''
With that said, I thank the committee. My bottom line is:
Don't forget the benefits of the interstate basin commissions,
and I appreciate the opportunity to talk with you all today.
Thank you.
[Applause.]
Senator Smith. Thank you very much, Mr. Poltak. I also
wanted to congratulate your City of Lowell for its
participation in the Merrimack River Basin Study. We have
several mayors now, both in Massachusetts and New Hampshire,
looking at the holistic approach to managing the water quality
of that river. You know, it's great to have all of them on the
same level, two different parties, different philosophical,
political views; however, all united on the holistic approach
to the use of the Merrimack River study. It was great, and we
appreciate your support there.
Let me just remind you that the same rules as the previous
panel, if someone has a question, feel free to step up to the
mike and ask any one of the panelists. I'll start with a couple
of questions, in the event that you want to take some time to
think of a question.
Mr. Stewart I was interested when you use the term ``re-
propose the rule.'' Could you elaborate on what you would
expect in re-proposing the rule?
Mr. Stewart. We were thinking in the New Hampshire context
and how we would work on rulemaking, and I know that Chuck has
his own rules, and so forth, on how he has to do things.
But in the New Hampshire context, if we had the magnitude
of comment and very significant changes to the rule, we would
likely go out with another public process for review, receive
comment again, and then promulgate the final rule.
Senator Smith. How long would you want?
Mr. Stewart. It could be a couple of months in New
Hampshire. Now, he's dealing with the national rules; so, I
don't want to make any assumptions as to what that would take
on the national level, and he has his own deadlines.
Senator Smith. Under the rule as proposed, do you have any
idea what it would cost the State of New Hampshire? Mr. Poltak
brought up a very good point about the Federal/State split in
the mandate. What would that cost the State of New Hampshire if
it was to be implemented, as is?
Mr. Stewart. I have an estimate of the DES costs, but
that's really under the existing rule or the new rule; and,
again, I would estimate that $420,000 to $430,000 is really the
cost for an adequate TMDL program, in terms of our ability to
start the program, to do the studies, and perform a necessary
water quality analysis. I don't have a handle on the regulated
community costs.
Senator Smith. Mr. Bryce, you mentioned that the rule would
be hard to implement in practice. Walk us through what would
happen?
What obstacle would a landowner or a forester in the
scenario we have here have to address to deal with this role.
Mr. Bryce. I'm not sure that I completely understand that
myself right now.
With respect to bad actors, I would say, as stated in my
comments to the EPA, I'd say, that bad actors won't even bother
filing for the permit. They don't comply with the law. That's
why they're bad actors.
Issues with respect to permitting the landowners, include
making sure that they are able to do it correctly in time. Time
is a big issue when you're looking for a permit, because you
don't always know 2 months, 3 months, 6 months, a year in
advance, exactly what you're plans are going to be. So, when it
comes to permitting for forestry activities, the shorter the
time period that's involved, the less burdensome it is on the
landowner.
Senator Smith. Let me just go back to Mr. Stewart for a
moment. In terms of budgeting, wouldn't it be beneficial to
know the costs in a little more detail on the proposed rule
before you were asked to adhere to it or asked to follow the
Federal rule?
Mr. Stewart. Yes, I understand what Mr. Fox is suggesting
is his estimates of the costs and I don't know what the
timeframe for that is, but I understand that there are
adjustments being made in terms of the total fiscal impact of
the rule.
With regard to the permitting elements, the way I see this
is that the reality, because we're talking about impaired
waters here, and identifying an operation that has impaired
water, and then it qualifies and comes under the NPDES permit.
In New Hampshire, I believe, that before we go to that point,
that Phil's operation--the Forest Division and the DSY
Division--would be the only fact particular operation, first
with technical support and then reinforcement necessary long
before the NPDES permit program kicked in.
Senator Smith. Let me ask for a brief comment from each of
you--you all deal with water quality one way or another in your
current position.
Would an 18-month delay, in your view, do any damage to the
environment? I'll start with you, Mr. Poltak. Would an 18-month
delay for science cause any damage to the environment. It's
tough to quantify that, but, in your professional----
Mr. Poltak. I would respond this way: What is proposed, as
Chuck said earlier, are revisions consistent with the existing
rule and this rule will remain in place, the programs would
remain in place, the efforts of the States and Federal
Governments, to the extent that we've observed today, would
stay in place; the opportunity to move forward, in terms of the
importance of the TMDLs, and in light of the various court
orders and decisions that have been handed down across the
country, could be impacted relatively, in terms of our need to
move forward.
My suggestion, and it's only a suggestion, and we are going
to take it up soon, the six New England States and New York,
when we meet a week from Monday, is that in the spirit of
compromise a second review of the revised rules is in order
prior to enactment. Chuck, as I said earlier, has been
accommodating to state comments in order to make this rule a
more palatable one from the prospective of implementation.
I think, on the other end of the spectrum, with respect to
your legislation, which we're also going to be taking up in
depth next Monday. We will be commenting on formally regarding
provisions which we do support. Getting back to the issue of
the question you asked, I believe, there's some middle ground
that could be struck if we, as States and interstates, had the
opportunity--and I suggested this to Chuck earlier--to see the
actual language shared with the public and be able to have
assurances that all of our comments and the majority of the
sense have been responded to. I believe they may well have.
There is the opportunity to put this initiative into effect
prior to 18 months, but that remains to be seen. I do not see
the waters of the country, if you will, being significantly
deteriorated if there were to be a delay.
Senator Smith. Mr. Lovaglio, same question?
Mr. Lovaglio. Well, first, to quickly answer the question,
when I look at the great success we've had in Maine, including
the levels of praise from EPA, a delay of that level would have
absolutely no affect on water quality. We're already doing what
needs to be done.
I think the logical question is: Why are we even
considering this? This whole change appears to me to be a
solution in search of the problem.
[Applause.]
Mr. Lovaglio. I don't think we should be arguing the delay.
I think we should be arguing whether we go forward with this at
all.
Senator Smith. Do either of you other gentlemen wish to
comment, or is it pretty well clarified? Do you wish to make a
comment to that question?
Mr. Bryce. I stated that if you want to work on protecting
water quality, it should be in other areas, and I made some
suggestions in my testimony of monitoring, consistent
enforcement, and education.
Mr. Stewart. From the prospective of the State programs, I
really see this rule in two pieces: One is the silviculture
and--and the agricultural funding, and it really doesn't matter
much, to be honest.
From a prospective of the State programs, as Ron indicated,
there are some benefits, in terms of moving forward. The 18
months involvement, you know, it's kind of an incremental risk,
because what we've seen across the country is a bunch of
lawsuits related to the TMDL program. We have been fortunate in
New Hampshire not to have one of those, and so there's this
incremental risk that could be incurred, if you will, as the
program component of the rule is delayed.
Senator Smith. Thank you very much. Yes, sir?
Mr. Poltak. Just in closing, I just wanted to make sure
that there was clarity. The judicial branch of Government has
mandated that we must move forward as States and in response to
public needs, in terms of what we do with regard to managing
TMDLs.
And with that said, I think our job is to have a total
understanding and appreciation of the effort and where this
program is going to head with respect to these revisions; but
relative to its impact on water quality, there's no doubt that
the impact on water quality will be positive.
Relative to your question earlier, we developed a TMDL on
the Long Island Sound estuary. The cost of developing that
TMDL, yet to be implemented, is in excess of $3 million, alone.
On the other hand, we can develop a TMDL for a local stream
segment, a part of a watershed, for as little as $50,000. We
have put together a national assessment of the costs associated
with developing TMDL for a specific purpose, and we'd be glad
to share that with the committee.
We've had long discussions with EPA relative to our
differences of opinion between EPA and the States and
interstates relative to what they see the cost to be. There is
a disparity there. Chuck and the States recognize that; but it
has been well defined, and it can be answered in detail for
you.
Senator Smith. Thank you very much.
I'm going to take these three gentlemen's questions and
then we'll move on to Panel 3. Go ahead, sir.
Mr. Mitchell. I'm Steve Mitchell from Vermont. Is it all
right to speak here?
[Laughter.]
Senator Smith. Yes.
Mr. Mitchell. I've been a logger here for 50 years, and I
don't know if these gentlemen have ever been in the logging
business. I've taken programs, the State of Vermont has got the
40-acre clear-cut deal; I've been to classes; I've logged for
50 years. I started with a horse and a bucksaw, and I've worked
my way to skidders, and stuff.
We have all of these laws on the books for revenue. Just to
give you gentlemen an idea of what it cost--a lot of times,
putting a culvert in for a brook is 500 bucks, easy. That's
just the one cost. But what, to me, a lot of you people in
Washington are not realizing, I'm an independent logger. I
don't work under a forester, but I still have to go by the best
forest management practices.
What is going to happen, not just to me, but to thousands
of us loggers across the Nation, if I have to wait a year for a
permit?
I'll tell you how I log. Right now, I've got probably seven
more loads of wood to cut on one particular landowner's land.
I've logged it since 1976. This is the 50th time I've been back
through there. The loggers are doing a hell of a job; but the
point is, what if I had to get a permit? Tomorrow, I don't have
a job after I get this done. I'll go out and hunt for a
woodlot, and I drive to Massachusetts to get people to visit
with them. This is the problem.
I believe in clean water. I do everything I can. I clean
the brush all out, and all that. But for me, if this is
implemented, this isn't just going to affect just the logger.
It's going to affect machinery operators--the Caterpillar, John
Deere, all of the people. It's going to affect the building
industry; because, with these regulations that we are getting
today--if you only go look around--go to Berlin, the paper
mill, how much wood do they have in their yard? Not very much.
Go to Davison's in Littleton, NH. They're down to 1 day sawing.
They saw about 200,000 feet of logs a day. These industries are
going to suffer. The Nation will suffer. We don't need this
rule.
I can understand furthering the loggers' education. I've
got no problem with that. I go to classes. I don't like it, but
I go, anyway.
Think about something. You want to propose a $27,000. Think
about it, $27,000--would you pay $27,000 for a small violation?
Mr. Fox. No.
Mr. Mitchell. OK. All right, if you took that, the
landowner can't--most of them couldn't. OK, that's enough to
stop the landowner from wanting to do any logging.
What's it going to do to the farmers? He can hardly spread
his manure on his own place. You're going to fine him $27,000,
too?
Senator Smith. Do you have a question for the panel?
Mr. Mitchell. OK, the question to Mr. Fox is: Do we need
this regulation?
[Applause.]
Senator Smith. Maybe, at the end, if Mr. Fox wishes, he'll
respond to your point.
Yes, sir?
Mr. Bogeu. My name is Doug Bogeu, and I'm the
representative of Clean Water Action from the southern part of
the State. I traveled a long way to be here, as well. And I'm
very concerned just on the last point that there hasn't been
much discussion of the benefits of dealing with the problem of
water pollution and the need to address this problem, both in-
state and nationally. But I will make more comments further in
the comment section. Right now, I just have a couple questions.
One, really, for Mr. Stewart.
Can you tell us--I don't know if you have a copy of the
list of impaired waters with you today. Can you tell us how
many impaired waters there are on the current list for the
State of New Hampshire? How many are in the north country in
New Hampshire right now?
Mr. Stewart. I don't have that list with me. I believe that
four or five reach across the State. I don't believe there's
any in the north country. I haven't looked at the list in a
good while; so, I'm hedging. So, yes, I guess that's the best I
can do off the top of my head.
Mr. Bogeu. OK, thank you.
I looked at a report that DES sends to Congress every 2
years. I only have the 1996 report; but in that report, they
listed 70\1/2\ miles of rivers that were considered impaired
under the Clean Water Act. And then when you look at the list
of how many were due to silviculture and to agriculture,
silviculture was zero. OK? And I'm sure, I think everybody's
pretty much pointed that out, that silviculture is not known to
cause any of the water problems at this point.
[Applause.]
Mr. Bogeu. And with agriculture, as well, there was a total
of 5.5 miles. That's 8 percent of the rivers. Now, this is
enough to argue that we don't need the rules. It is enough to
argue that people shouldn't be so concerned about the impact on
their operations here in New Hampshire.
Isn't it right? I know this has been said before, but we
seem to have to keep making the point. Isn't it right that
there has to be an impaired water designation before any
permits can be required of any landowner, or any timber
operation, or any agricultural operation in the State under
these proposed rules?
Mr. Stewart. That's correct. I would reinforce that whether
these rules exist or don't exist, the reality is that if
there's an impaired water caused by a silvicultural operation,
and the State Division of Forest or the Department of
Environmental Services becomes aware of it, it will be
addressed. By technical support, education, and then,
ultimately, enforcement to get compliance, if necessary. So,
yes.
Mr. Bogeu. Well, based----
[Applause.]
Mr. Bogeu [continuing]. Based on what you know of the
current practices in the north country throughout the State, do
you think that there is likely to be any impaired waters
designated in this region or any permits required of anybody in
the region because of that problem?
Mr. Stewart. I don't believe that this NPDES element is
going to kick in in New Hampshire if the rule existed, no.
Mr. Bryce. And the question then becomes: What is the
reason why we would need the rule; and what helps does bringing
anything else along with it? This gets back to my questions
about some of the new policy changes. What do they really mean
to the landowner? I don't believe I understand that.
We see no reason for the rule. We see that we don't need to
have that hanging out there. It doesn't help us protect water
quality.
Mr. Bogeu. Well, if you're asking the question to me, and
not just rhetorically, we do need more effort on clean water. I
live downstream. OK? I know it's probably not as big a problem
up in the north country, but we have quite a few impaired
waters down in the southern part of the State, and we're
finding more and more pressure to use other water supplies.
People are tapping into the Merrimack River for drinking water,
and we need to ensure that the quality of those waters, so----
[Inaudible comment from the back of the auditorium.]
Mr. Bogeu. I think, though, there really hasn't been enough
discussion of the benefits of the TMDL rule, in general, and I
think this hearing has been somewhat one-sided. I just have one
other question. This is, I think, to someone involved, either
Mr. Bryce or Mr. Lovaglio--to the timber industry.
Now, it's my understanding that the forestry industries
have been exempted in a regulatory way, not written into the
Clean Water Act; but for the last 28 years, since the Act was
written, the forestry industry has not been a subject to Clean
Water regulations.
And I would like to ask you if any one on the panel can
explain to us why you think that exemption should be continued
indefinitely. It is being discussed to not try to move forward
with these rules.
Mr. Lovaglio. Well, I can only speak for Maine, but I have
a strong suspicion, it's equally the same in New Hampshire. We
have strong water quality rules and regulations in place that
are well informed and have proven effective; have received
compliments of the EPA. And so, I think that we have something
that's working, and we just have no need to start developing
new rules. We have, basically, a state-level, statewide
approach to water quality that's working.
So, I don't find a need to be considering what the Feds
believe are adequate BMP's, and trying to bring in a new
regulatory mind frame into an infrastructure that already
exists within the State that is doing an outstanding job on
water quality.
[Applause.]
Mr. Bogeu. So, if I could make just a final comment, I
really feel that we should be thinking of the issue on the
national level. I agree that there probably aren't great
problems in New England and, certainly, not in the north
country area in this regard, but there are many in other parts
of the country. I mean, people have died from runoff from
floods, from clear-cutting out West, and we shouldn't be trying
to dictate in how they deal with problems out there, just as we
don't want them to dictate how we deal with the situation here
in New Hampshire. So, you know, we really need to be thinking
more on those lines, rather than just how does it affect us
here. Thank you.
Senator Smith. While the last gentleman comes up, let me
just say, in balance, as the chairman of the committee, I hear
your comment and I respect your views, but I've made a very
determinate effort to be as balanced as possible on this.
Indeed, Deputy Administrator of EPA has a different position
and most of the people have in this room, I thought, testified
very forcefully on his position. He was a single panelist; so,
he had the opportunity to do that with no interruption.
In addition, there will be two additional panels who will
come on and there will be individuals on those panels, who,
perhaps, have a different position; and, fine. We have anyone
of the audience who--allow the microphone pretty much to be
open to anyone like yourself who has different views. We are
trying to keep it as balanced as possible, but I understand
your point.
Yes, sir.
Mr. LeBrie. I am Cliff LeBrie and I'm a forester in the New
Boston, New Hampshire area and have been for 45 years. And I'm
in agreement with the fellow with the pad; and after hearing
what they had to say, the question arises: Why do we need EPA?
[Applause.]
Mr. LeBrie. And you, Senator, have you had an answer to the
question you asked at the very beginning when you opened the
panel in regards to EPA's input?
It doesn't do any good to get into calling them bad names,
and what not; but, traditionally and historically, their
mandates have imposed great hardships on the average landowners
throughout the country. And I'm skeptical when they make a
power play to enter into any other activity that affects the
individual landowners in the State. Thank you.
[Applause.]
Senator Smith. Thank you. Thank you very much, sir. And
unless anyone--anyone have a comment on the panel? If not, let
me say thank you to the four panelists who have been here,
especially, those who came from Maine and Massachusetts, quite
a ways away. Although, some of us came from New Hampshire
almost as far I guess when you go south to north.
At this point, I call up the third panel, but before we do,
we'll take a 5-minute recess.
[Recess.]
Senator Smith. The hearing will come to order. We have two
more panels; and then at the end, as I indicated, we'll have a
few minutes at the end if anyone wishes to make a statement or
ask a question of any of the panelists who might still be here
at the end of the session.
I'd like to introduce Mr. John Hodsdon, director of New
Hampshire National Association of Conservation Districts from
Meredith; Mr. Eric Kingsley, executive director of New
Hampshire Timberland Owners Association; Mr. Charles Niebling,
policy director for the Society for the Protection of New
Hampshire Forests; and Mr. Joel Swanton, manager of Forest
Policy of Champion International in Bucksport, ME. Welcome to
all of you, gentlemen. Glad to have you here, appreciate your
time, and your testimony; and why don't I just start with you,
Mr. Hodsdon, and move right down the table.
Please proceed, Mr. Hodsdon.
STATEMENT OF JOHN HODSDON, DIRECTOR, NEW HAMPSHIRE NATIONAL
ASSOCIATION OF CONSERVATION DISTRICTS, MEREDITH, NH
Mr. Hodsdon. Thank you. I'm John Hodsdon. I'm here as one
of the directors of the National Association of Conservation
Districts, NACD; but I'd like to let it be known that I'm a
vegetable farmer in Meredith, down in the Lakes Region, and
some of these other things are volunteer jobs I get into. You
have my testimony from NACD's position on TMDLs. Also, a letter
that I sent in as the chairman of the Water Committee of the
New Hampshire Association of Conservation Districts for comment
back in January on the TMDL process, and I'm also one of the
volunteer supervisors on the Belnap County Conservation
District.
I would like to thank Senator Smith and his committee for
this opportunity for Conservation Districts to reaffirm their
support for clean water, and also to express some our concerns
with the proposed TMDL process. Good to have you back in New
Hampshire.
Senator Smith. Thank you.
Mr. Hodsdon. Some of you may not be familiar with
Conservation Districts. There are roughly 3,000 nationwide, led
by some 16,000 volunteer supervisors or leaders, volunteer
boards; and, incidentally, there are 10 districts in New
Hampshire organized along county lines.
We are involved in protecting and enhancing water quality,
as well as, especially, soil quality. We were at one point
known as the Soil Conservation Districts, and then Soil and
Water Conservation Districts, and then just Conservation
Districts.
We work with landowners on a voluntary basis, helping them
protect their natural resource concerns. And this we do for
landowners, it started out 60 years ago, primarily, working for
the agricultural community; and then quickly, the forestry, as
well. A lot of our work now is also with the communities, the
planning boards, and other land use agencies to help provide
advice, again, strictly on a volunteer basis. We're
nonregulatory.
I would like to mention our partners, especially the
Natural Resources Conservation Service, formerly known as the
Soil Conservation Service, as you may remember. They are
invaluable assistance. They provide the technical advice,
conservation, and technical assistance that is indispensable
for getting sound conservation out there on the land and
protecting our natural resources.
I would also like to mention that there's been an attrition
in the number of personnel they have to help us, even as we had
more to do over the past 20 years, with level funding or worse.
The NRCS personnel in New Hampshire is now just about half of
what it was 20 years ago. And if we could get more funding into
319 and other such programs, which is what we need to increase
the rate of progress. We also need more funds in the
conservation technical assistance line item of NRCS's budget,
so that there'll be somebody there to do the job with us.
We found that a voluntary incentive-based approach has been
very effective in reducing polluted runoff, sediments,
nutrients, erosion. Farmers are more than willing to cooperate.
As a matter of fact, if we look at last year, farmers'
requests for cost-share assistance in one program, the
Environmental Quality Incentive Program, which we used to help
in the funding of various conservation practices, in New
Hampshire, in the middle of the year, was about $2.2 million. I
think it went a little higher than that. The total money
available was just a little over $400,000. About a 5 to 1
difference there. And that much more that could have been done
if money was available and the farmers were willing, but some
of these things are very expensive, particularly, in the manure
management. The manure storage structures, with some of the
newer, more modern standards that are required for a stream-
bank erosion, go beyond the financial ability of the farmer.
And remember, there's a big public input into this, a
public benefit from having these done, as well.
Basically, the program has been effective the way we've
been doing it, and we can make more progress if we had more
money going into the conservation/technical assistance, into
the EQIP funding, into the 319 to help out those EPA-funded
programs.
And also, I would like to bring up another one, 208(j),
which has been, more or less, dormant for quite sometime. I
believe it would be worthwhile to put some funding through that
process and that would get it much more directly to the farmers
or foresters that need it than necessarily spending so much of
it in the State bureaucracy. I'm sorry, Harry.
Mr. Stewart. [Inaudible comment from the audience.]
Mr. Hodsdon. These regulations, which came out last August
23, as I read them, for TMDLs, are very prescriptive. The one-
size-fits-all approach, I would say, is inefficient and will be
expensive.
It is quite clear that Congress did not intend TMDLs to be
used to regulate nonpoint source pollution; plus the fact that
this regulatory approach will not be as effective as a
voluntary incentive approach for the vast majority of what we
are facing.
Therefore, EPA should not try to use the TMDL program to
regulate nonpoint source pollution; also, that it should not
direct the States to do it.
Chuck Fox said, essentially, that they're not doing that,
so the regulation should not call for using TMDLs for nonpoint
source pollution.
There's another concern I have concerning the tendency to
try to convert what we now call nonpoint sources to point
sources. I know the dairy industry in this State is worried
about that. Cows would become a pollution source by calling
them a point source. If EPA decides they wanted to do that, it
would not be good.
Now, another concern I would like to throw out at this
point is we talked about the margin of safety in the TMDL
regulations, and it is not at all clear what you mean by this.
I took a guess at it, and I may be wrong. I think possibly that
you may mean that when our level of understanding, in other
words, our ignorance, about what the actual situation is, how
bad it is, in a watershed, or what would it take to reduce the
pollution that the standards should be much stricter?
Now, in a traditional margin of safety question, when we
were, say, introducing something new into the environment that
hadn't been there before and we really weren't sure just what
the effects were going to be, we'd want to be more cautious,
and that is appropriate. But you're trying to use that kind of
reasoning to justify stricter standards. I think it is not what
should be done. There's no scientific reason to use stricter
standards for effluent limitations.
OK, I think I've used up my time and then some. I'll take
questions later.
Senator Smith. That's all right. Thank you very much, Mr.
Hodsdon.
Mr. Kingsley.
STATEMENT OF ERIC KINGSLEY, EXECUTIVE DIRECTOR, NEW HAMPSHIRE
TIMBERLAND OWNERS ASSOCIATION
Mr. Kingsley. Thank you, Senator, and I certainly
appreciate the opportunity to discuss the EPA's proposed TMDL
rules with you. And I also want to thank the couple hundred or
so people who took one of the first nice Saturdays in the
spring to join us.
As the executive director of the New Hampshire Timberland
Owners Association, I have the honor of representing over 1,500
landowners, loggers, foresters, and wood-using industries in
this State. Our members own and responsibly manage well over a
million acres of productive forestland. The forest industry in
this State contributes, roughly, $4 billion, or 11 percent of
the State's gross product to our economy annually. We're the
second most heavily forested State in the Nation, and we're
covered with mixed hardwood, white pine, and spruce-fir
forests. Very, importantly, and different from other--4 out of
every 5 acres of our land is in the hands of private
landowners.
New Hampshire's commercial forestry has long contributed to
the State's efforts to protect water quality, and we make every
effort to assure that our activities do not unnecessarily
contribute to impairments of streams, rivers, lakes. I think
you've heard this throughout the day.
In recent years, efforts on the part of landowners,
loggers, foresters, and forest industries have significantly
increased awareness of steps that can be taken to improve water
quality during a forestry operation. This list is far, far from
comprehensive, but I want to share with you some of those
things: The Tree Farm Program is part of a national program;
and it recognizes private landowners for making good
stewardship. We have over 1,650 tree farmers managing a little
over a million acres here in New Hampshire. I'd point out that
the White Mountains Regional High School is a registered tree
farm.
The Professional Loggers Program, which has been mentioned
before, is a joint effort of our organization, as well as, the
University of New Hampshire and the Cooperative Extension. This
provides training and professional development opportunities
through the State's logging community; and one of the areas it
focuses upon is Best Management Practices.
We conduct landowner workshops in cooperation with the
National Resource Conservation Service to help landowners and
municipal officials understand the opportunities to protect
water quality during timber harvesting operations, and we
participate in the Sustainable Forestry Initiative, which is
part of the national program sponsored by the American Forest
and Paper Association.
New Hampshire's forestry community has made a commitment to
water quality. These programs demonstrate that commitment.
Unfortunately, what we're seeing from EPA's strict new rules
may undermine these efforts.
As part of the rules proposed last August, EPA may
reclassify some forestry activities from nonpoint source
activities to point source activities, placing forestry under
an entirely new regulatory regime. The EPA proposal has the
potential to treat forestry activities, including those that
contribute significantly to wildlife habitat, under the same
regulatory regime as factory discharge.
New Hampshire's private landowners, who have a long history
of contributing to the State's water quality, are threatened by
this bureaucratic, top-down proposal, and understandably so.
It's very difficult to understand the benefits that this would
bring to New Hampshire, but it's easier to grasp the downside.
One of the problems that comes out of the EPA proposal is
that it is made in isolation without connecting to the larger
environmental and economic system. New Hampshire is a rapidly
developing State; and it's been mentioned before, the
landowner's
constantly under pressure to convert forestland to other uses.
We permanently lose, roughly, 20,000 acres of working land each
year to development. Managing forestland for economic return is
a very, very marginal business, and requires a long-term
commitment on the part of the landowner. Actual imposed costs
or landowner expectations of future costs will be capitalized
into land values. This reduction of forest land values relative
to other land uses--typically, development--will increase the
pressure to convert to land to these other uses. The EPA's
proposal fails to recognize that, given the choice between
bureaucratic red tape and development, many landowners may be
forced to develop their land. This is particularly true of
small, nonindustrial landowners, upon which this proposed
regulation would fall quite heavily. Nonindustrial private
forest landowners, many of them who harvest infrequently have
responsibly managed their holdings for generations, own almost
70 percent of our State's farmland and forestland. Many of
these landowners, it's estimated by the USDA's recent survey,
to be roughly 84,000 in New Hampshire alone, do not have the
technical expertise necessary to comply with the complicated
Federal requirements. While the impacts of the EPA's proposed
TMDL regulation is of enormous concern for our entire industry,
we believe that it would hit these landowners first and
hardest.
I urge you to use your influence as Chairman to help the
EPA recognize the positive, proactive steps that the forest
industry and forest landowners have taken to protect water
quality. Instead of pursuing their Washington-based approach,
EPA would accomplish far more by working with citizens and
industry to support and expand upon existing activities to
protect water quality. By encouraging collaborative approaches,
rather than the confrontational actions proposed, the
Environment and Public Works Committee, can take a leadership
role in developing solutions that work.
I would note that the EPA has said a number of times that,
at this point, we have no impaired streams due to silviculture.
Of course, the New Hampshire Department of Environmental
Services has to revise that list every 2 years. We may not have
anything to worry about for 5 years.
Senator, forest landowners need to take a view that is much
longer than 5 years. My members grow and manage crops in their
forest on a rotation of 50, 100, 100-plus years. Saying that
something won't happen for 5 years is akin to telling a corn
farmer, ``Don't worry. The new harvesting regulations don't
kick in until July.'' It's as simple as that. Thank you.
[Applause.]
Senator Smith. Thank you very much. Charles Niebling, the
Society for the Protection of New Hampshire Forests.
STATEMENT OF CHARLES R. NIEBLING, SENIOR DIRECTOR, POLICY AND
LAND MANAGEMENT SOCIETY FOR THE PROTECTION OF NEW HAMPSHIRE
FORESTS
Mr. Niebling. Thank you, Senator Smith, Senator King,
Staff. I am Charles Niebling, director for Policy and Land
Management with the Society for the Protection of New Hampshire
Forests. The Forest Society is a nonprofit conservation
organization dedicated to the wise use of New Hampshire's
natural resources, and their complete protection in places of
special environment or scenic quality.
In addition to our role as a land trust and a conservation
advocate, we also own and sustainably manage 33,000 acres of
productive woodlands in 123 reservations across the State. We
not only preach good forestry and conservation, but we practice
it, as well.
I appreciate the opportunity to offer these remarks on the
EPA's proposed TMDL and NPDES rule revisions. I'm here today to
offer our general support for the new directions addressing
agricultural and silvicultural issues set forth in the May 1,
2000, joint statement issued by the Department of Agriculture
and EPA, but to also express views about further changes that
need to be made.
Throughout our 99-year history, the Forest Society has
championed the importance of water quality as a core part of
its land conservation and forest management work.
Senator, my written remarks summarize that history and
we're very proud of it, but I won't belabor that right now.
Senator Smith. That will be part of the permanent record.
Mr. Niebling. Thank you.
When we submitted our comments on the proposed TMDL rule
revision in January, we indicated that we opposed the
revisions, because we did not support the reclassification of
forestry operations from the nonpoint source category to the
point source category.
We also opposed the removal of authority for monitoring
TMDLs from the State to the Federal level. We argued that
placing too heavy a regulatory burden on private landowners,
especially in a State like New Hampshire where development
pressure on our forests is very great, might predispose land to
development. From a long-term nonpoint source water quality or
forest sustainability standpoint, Senator, forestry operations
will always be better than the best parking lot or residential
subdivision.
Thus, we were encouraged this week when we received a copy
of the joint statement issued by USDA and EPA, announcing
modest changes in the proposed rule. It would seem that EPA is
listening to the people of New Hampshire and thousands of
others around the country, who believed that the original draft
rule simply went too far.
We want to particularly commend EPA and USDA for formally
recognizing the following points in their joint statement:
First, that State governments and local citizens should
take the lead in developing pollution budgets for impaired
waterways;
Second, that voluntary and incentive-based approaches are
the best way to address nonpoint source pollution;
Third, that EPA will work with States that may need help in
developing forestry BMP programs for a period of 5 years before
they start issuing NPDES permits;
And finally, that only if a State does not have an approved
forestry BMP program, after 5 years, will the State or EPA have
the discretion to issue permits.
Unfortunately, from our standpoint, the joint agreement
does not go far enough. Our greatest concern is that the final
rule will continue to define forestry activities as a point
source category, controverting over 25 years of Clean Air Act
statutory interpretation. We are also concerned that EPA wants
to have the authority to approve State BMP programs based on,
as yet, undefined criteria.
Until and unless the silvicultural aspects of the rule are
modified to affirm forestry activities in the nonpoint source
category, the Forest Society cannot support it. We are
encouraged by the movement EPA has shown in recent weeks.
Regardless of whether EPA makes further modifications, we hope
that they will re-notice the draft rule for further public
comment.
The Clean Air Act will go down in history as one of our
Nation's most successful environmental laws. The improvements
to New Hampshire made through regulation of point source
pollution are extraordinary and well documented.
Now, we face the far more complex challenge of reducing
nonpoint source pollution. With respect to forestry, we believe
that New Hampshire's approach of aggressive promotion and
education of voluntary BMP's has worked relatively well and can
continue to work.
Are there problems with some forestry operations?
Absolutely. We do not believe more burdensome regulations will
necessarily solve the problem.
Senator, we support elements of the Water Pollution
Enhancements Act of 2000 because we believe it targets Federal
assistance and support where it will have the greatest positive
impact. Three specific needs in New Hampshire that could be
addressed through provisions of this Act are:
First, improved compliance education of forestry BMP's;
Second, support for a stronger enforcement capability
within the Water Resources Division of DES and the Division of
Forests and Lands within our Department of Resources and
Economic Development;
And I will note, for the record, that New Hampshire has had
10 forest rangers since 1949, when their only responsibility
was fire detection and prevention. It's time that that was
addressed; and, perhaps, these funds could enable an enhanced
capability in that area.
And finally, support for BMP compliance monitoring on
active forest harvesting operations.
You know, we have said for years that BMP's are being
widely implemented on forestry operations and they're working;
but the fact of the matter is, we don't have good information
to support that contention, and we need that. And we certainly
need it before we contemplate any further regulation of those
practices.
So, with that, thank you for the opportunity to testify on
this important issue.
Senator Smith. Thank you very much. As I----
[Applause.]
Senator Smith [continuing]. Introduce Mr. Swanton from
Champion International, I'd like to also applaud his company
for its leadership in making, at least, initiating a proposal,
making thousands of acres of timberland that they own
accessible to the public for a recreation's partnership and
initiative. I think it's certainly far-reaching and it's
certainly welcome. And I know there are many folks in the north
country, and probably some of the flatlanders, as well, who get
up here to enjoy it; but let me introduce you and thank you for
being here today.
STATEMENT OF JOEL SWANTON, MANAGER OF FOREST POLICY, CHAMPION
INTERNATIONAL
Mr. Swanton. Thank you, Senator. Senator Smith, and Senator
King, and members of the staff. My name is Joel Swanton. I am a
resident of Holden, ME, but I have responsibilities of
representing Champion International in its forest resources
operations as manager of Forest Policy in the Northeast region.
We appreciate the invitation to share our concerns about the
EPA's proposed rules, and also our comments concerning your
proposed legislation, S. 2417.
Here, in the Northeast, we are responsible for the
sustainable management of over 1 million acres of forestland
between Maine and New Hampshire, part of a large ownership of
close to 5 million acres in the United States. We, the
foresters, and the people who work on these lands, and the
communities that we live in, depend directly on the health and
productivity of these forests for our livelihood.
One of the core values and responsibilities of the
forestland ownership is water quality, and we take that
responsibility personally and seriously. Our ownership in New
Hampshire, 170,000 acres, I just referred to, just north of
here right at the tip of the State, includes the headwaters for
the Connecticut and parts of the Androscoggin Rivers. Both are
very important bodies of water in this region.
EPA's proposed changes are not justified, either in terms
of need or improved environmental benefits as they regard to
the implications on silvicultural operations. I think you've
heard that over and over again today, and probably many times
more before we complete the hearing.
In our region, and you heard also, silviculture and
forestry is not a significant threat to water quality. The
successful voluntary and regulatory initiatives in this region
are already in place to ensure that silvicultural activities
are undertaken with measures to protect water quality. These
programs would be jeopardized with the proposed changes in the
rules. And while we appreciate Mr. Fox's efforts to improve the
proposed rule with the recent joint announcement, the proposed
changes falls quite short of what we would see as improvements.
I'd like to talk a little bit about our forest management
activities. We've talked a lot about the rules, and processing,
and policy today. If we could for a minute, let's go out in the
woods.
Our activities in the Northeast region include harvesting,
forest management road construction, and other silvicultural
activities to improve the health, and quality, and productivity
of our forests. All of these activities that we conduct on the
ground have planning and monitoring components that address
water quality.
Before we begin any activity on our lands, our foresters
develop plans incorporating State regulations and Best
Management Practices, development under the Clean Water Act, as
well as, our own riparian management and guidelines. We
consider the silvicultural prescription for area, the timing
and season of the operation, the type of soils, the potential
for erosion, and the type of equipment or operation. Once
activity begins, we monitor and inspect these operations on a
regular basis. Should a water quality issue arise, we are able
to address it quickly.
As you heard earlier from the State agencies, there is
ongoing monitoring of all of our operations on our property at
all times by State agencies; and an informal amount of
monitoring by the many members of the public using the land
that also assures that if a water quality concern arises, we're
going to hear about it.
We also conduct a broader annual water quality BMP audit of
our operations in this region, often involving outside natural
resource professionals who identify areas for improvement.
In addition to what is required by law, Champion
International, and many other members of the forestry industry,
are participating in a voluntary national program called the
Sustainable Forestry Initiative, SFI.
Under SFI, we must meet or exceed all established BMP's and
State water quality regulations under the Clean Water Act. And
for us, that has the strength of membership requirement within
our trade organization. If we don't meet those standards, we're
not a member.
SFI requires that we establish riparian protection measures
for all streams and lakes; and Champion has developed and
implemented riparian management guidelines for our ownership,
that, in most cases, far exceeds State standards.
We're also the first company in the United States to commit
to full third-party verification of our performance under the
SFI standards; and these reviews look at both the systems we
have in place to protect water quality, as well as, our
performance on the ground. We have engaged Price Waterhouse
Coopers to conduct these audits on a national basis, and we'll
have all of them done on the U.S. ownerships by the middle of
2001; but, in the Northeast region, it will be reviewed again
in October of this year, and it will be the fourth time since
1996 that we've had an external review of our operations.
We also support the efforts you've heard about to encourage
other landowners to protect water quality. We purchase wood
from many of the landowners in this region, and our foresters
require that loggers and landowners that sell wood to us to
comply with State water quality regs. and BMP's, and we audit
those operations for their performance.
Also, under our commitment to SFI, we sponsor and support
training for loggers and landowners to address water quality
issues. And in Maine and New Hampshire, under SFI, we
participate in a process for the public to raise concerns about
forest practices. By calling an 800 number, people can identify
site-specific areas of concern, such as water quality, and be
assured of a followup on that operation by a forester who will
focus on education and change in behavior, if necessary.
You've heard over and over again, the EPA, nationally and
regionally, recognizes that silvicultural and forest management
activities are not a significant source of water quality
impairment. I believe, in part, due to the efforts that we've
just described.
I attended the March meeting this year with the members of
the New Hampshire forestry community with the EPA's Regional
Staff, and heard EPA staff 's statement which you read earlier,
that ``silviculture in New England is not a threat to surface
water,'' it begs the question: Then, where is the problem?
EPA's own data illustrates silviculture nationally is at or
near the lowest source of water pollution, again, even below
the natural sources.
We think that the existing network of regulatory and
voluntary oversight works very well, and EPA's own statistics
tell us that that's accurate. These rules are just plain
unnecessary. The inclusion of these activities as point source
discharges subject to TMDL's in impaired waterways could pit
forest landowners and sparsely populated rural areas, like the
north country of New Hampshire, against heavily populated
municipalities when it comes time to determine TMDL's
determinations.
One point that I would like to make and it's very unique to
this region, and I'm a little bit upset that we had to share
it, because it's very obvious to those of us who live here, a
Federal permitting process, such as this, would invite
increased intervention and lawsuits by special interest groups
who want to challenge private forestry practices. Large,
private forestland ownerships, like ours in this region, have
been targeted by national and regional preservation groups for
the purpose of conversion to public ownership and removal from
those lands of the timber harvesting and management that
sustains our economy in this region. This is not some thought
up agenda. It's very real.
Since 1995, numerous legislative and public policy
initiatives to ban or restrict forest management practices have
been initiated in attempts to make private ownership of these
lands economically unviable. Including silvicultural activities
in this rule as a point source would provide a valuable tool
for that agenda.
Consider simply the impact on our operations just from the
NPDES permitting process. Let's go out into the woods, as I
mentioned earlier.
Last winter, folks in this region had a heavy snowfall. The
snowmobile industry loved it, but it makes our operations very
difficult. Loggers on our ownership were faced with 5 to 6 feet
of snow. We had to make some decisions to move into areas where
we could safely and economically operate for the rest of the
winter on relatively short notice. How long would it have taken
us to get a Federal permit under EPA's proposed rule in order
to meet that need?
This year, we had an early spring thaw; perhaps, just
today. We always shut our operations down during mud season;
but toward the end of the winter season, we'll move the
operations to areas where the environmental risk is going to be
minimal. That happened in late February and early March this
year. Much earlier than normal. We had to react fairly quickly,
and the flexibility to react to weather changes like that to
minimize risks could be lost under the requirements for Federal
permits.
And the last example, many of the loggers and landowners in
this region deal with on a constant basis. Our business is not
a steady, ongoing business. It's not always the same every day.
Markets change. Last summer, the market for hardwood pulpwood
in this area was glutted for a variety of reasons. Our
operations had to be changed and moved on relatively short
notice, so that they could be put into areas where we could
productively work and operate throughout the summer with the
change in market conditions. How would we have that kind of
flexibility under a NPDES permit?
The proposed revisions to the rule announced last week do
not address our concerns. The revised proposal still calls for
changing the designation of silvicultural activities from the
nonpoint source to point source. We would still be subjected to
NPDES permits, and there's no justification for it.
The revised approach is even more expansive than the
original rule; and, again, once EPA and USDA impose that
jurisdiction over forestland activities on private lands, for
the first time, as a result of that, environmental and
governmental organizations would have the ability to dictate
those forest management activities on private lands. And that's
not what this country's all about, Senator----
[Applause.]
Mr. Swanton [continuing]. Also, we heard earlier, the
criteria for acceptable State programs is unclear; and we've
heard that from the State agencies, as well.
The real test of whether this proposed rule and the recent
changes are needed at all lies with this question, and I will
even venture an answer to that: Will this proposal result in
any improved ability of EPA, or the State agencies, or private
landowners to prevent or correct water quality problems from
forestry operations? The answer is: No.
We do not believe this rule should be finalized.
Senator, we support your efforts to address water quality
issues in a more meaningful way through your proposed S. 2417.
We think its focus on improving resources for the State along
the lines of funding and improving the data quality makes
sense, and we think really states the issues here.
We also support legislation introduced by Senators Lincoln
and Landrieu to codify the existing nonpoint regulatory status
of silviculture, so we're not constantly battling these issues
every few years; and we hope you will consider these issues as
an important part of the debate when you hold hearings.
Senator, you made the comment in your opening statements
about a little bit of the history here; and on my way over here
this morning, I was thinking back. Think of where we were a
generation ago, or, perhaps, less than a generation ago. A
little bit west of here lies the Connecticut River; and on May
6, a generation ago, that river was full of logging activities,
moving the product to market. How far we've come in less than
one generation, where Society used to manage land--the water is
edge out for towns, and farms, and the forest; and we've now
turned 180 degrees in less than one generation. We don't need
to be making things more complicated. We need to make things
work, and some flexibility and reality here would help.
We appreciate the opportunity to testify. Thank you very
much.
[Applause.]
Senator Smith. Thank you very much, Mr. Swanton. If anybody
wishes to speak, step up to the microphone, and I'd be happy to
take your questions.
If I thought for 1 minute that any legislation that I
proposed or would vote for would contribute to the destruction
of the water quality in any way, I wouldn't support it. People
want to do better. And I think if we went back a hundred years,
there's no question that the waterways were used for logging,
and the rivers were certainly the main centers of commerce.
Everybody expelled their waste and to move it out, as if it
would never come back to haunt us. Well, we've changed that
now. Some of these laws that were passed in the 1960's, 1970's,
and 1980's, including the Clean Water Act, were good laws that
were emergency measures that needed to correct the problem. I
think if you look over the last 30 years, however, with good
stewards--folks like all the people here at this table and
others who will testify--that people are attempting now to move
away from the Federal regulation and into good long-term
stewardship. That's what we're trying to accomplish on the
committee. It's difficult. Mr. Fox and others from EPA I think
have the same goals that we do, but we all need to look now
forward to a different approach, a new paradigm, if you will.
This is an opportunity to bring in cooperation, rather than
confrontation. This is a confrontational rule that, I think,
will be not productive; although, it may be well-intentioned.
Mr. Robinson. A question for Mr. Swanton. You made the
comment about the river being full of trees 80 years ago; but
80 years ago, the White Mountain National Forest was pretty
much totally stripped of trees. It's through efforts, such as
your company's doing now, that we don't do those practices any
more. I think that's been pointed out, that we do work with
keeping our forests going all the time, instead of stripping
them once every 80 to 120 years. And, maybe, you could add some
comments to that?
Mr. Swanton. Yes, my comment was not meant to denigrate our
ancestors. At the right time and the right place, that was the
situation that they dealt with.
The White Mountain National Forest looked pretty good this
morning as I had an opportunity to fly over it, despite what it
may have looked like over 100 years ago. And I think as our
society evolves and our economy improves, we are fortunate to
live in a country that's got the wealth and the ability to
ensure natural resources the way we do, and we do things
differently than we did 50 years ago. We think differently than
we did 20 years ago. We've got that opportunity to move ahead.
When the river was full of logs 70 years ago, that was the
right thing to do during that time. When our first European
ancestors settled here, they cut from the water's edge in and
they cleared land for cities, and cleared land for farms, and
they managed land for forests.
My point was that in the case of the short time of a
generation, we now treat the edges of water bodies and water
quality 180 degrees differently than we did less than a
generation ago. We preserve, we conserve, and we make sure that
that water quality stays clear, and we continue to learn. But
prescriptive rules are not going to achieve those goals.
Senator Smith. I might also add to that, Mr. Swanton, in
what I would consider a new paradigm of environmental policy,
we would have to expect that as we did 50, 75 or 100 years ago,
the next century will have different practices from what we
have now. We need to give ourselves the flexibility to adjust
with new technology that comes our way. We're doing that with
the Everglades in South Florida. We're not going to implement a
36-year plan that says we're locked into it for 36 years. We're
implementing a plan that says every 2 years or so, we can look
and see if the pilot project is working on some particular
aspect of that project; and if it isn't we can make changes.
That's sound science and prudent management.
Let one ask a question of the panel.
When I made my opening remarks, I mentioned the EPA Region
I individual--I don't mean to get him into trouble here but Mr.
Manfredonia, who was quoted as saying that ``forestry is not
an, issue for water quality here in New Hampshire.''
I'm asking the three of you: Have you been getting direct
comments from anybody from EPA over the past several months,
over the last year or so, that somehow you're doing something
wrong; or that any of your members are doing something wrong?
Are you not following good environmental standards or quality,
water quality standards? Is there something that's happened
that would lead you to believe from any comments that any
individual made here on the ground that EPA or DES, that
somehow there was a problem here with water quality based on
the forest?
Mr. Kingsley. Senator, the comments we've been receiving is
that we're doing things right, and that the commitment that the
forest industry has made, and the commitment that the State's
Conservation Community has made, and the partnerships that
we've made with the State Government here have paid off in
terms of water quality. You know, I heard Mr. Fox, he and I
spent some time together before coming here, saying that this
really should not be an issue for us.
Once this rule is in place, it is not going to go away; and
I think one thing that everyone knows in this room is it's
never going to get ratcheted down. And we have some very real
concerns about how this rule may be implemented in the future.
The core issue remains unresolved and that is: In some
circumstances in the EPA's proposal, they will regulate
forestry as a point source solution, and that simply is not
acceptable.
Mr. Niebling. I haven't heard any comments. I would say
that in the 14 years that I've been involved in forest policy,
we've really seen extraordinary improvements, both in terms of
our understanding of BMP's and which are most effective; in
terms of landowners' receptivity to apply them and without
having to be retold to do it, on a strictly voluntary basis; in
terms of the relationship between the regulated community and
the Department of Environmental Services, and the Division of
Forest and Lands, it seems like much more of a team approach.
Now they resolve what issues there may be and become less
confrontational.
Mr. Robinson. Thank you.
Senator Smith. Thank you. What about from your perspective
or Champion's?
Mr. Swanton. Senator, we're not aware of any implications
from EPA that our organization has a problem with forestry
operations that would constitute the need to move them to point
source.
As you've heard, we continue to receive positive comments
from both State agencies and EPA about the voluntary efforts
and the collaborative efforts that we've taken with State
agencies and the EPA; to address forestry issues from a
nonpoint source prospective to existing State regulations and
BMP's, it's working.
Senator Smith. Mr. Hodsdon, do you have a question?
Mr. Hodsdon. Yes. You'd be interested in the comments that
I have heard a couple of times. The Professional Loggers'
Program and the practices and workshops of the Timberland
Owners' Association, that Mr. Kingsley has been promoting over
the last few years, have made a dramatic improvement in the
forest practices of BMP's.
Senator Smith. Thank you very much. I'll make this the last
question for this panel.
Mr. Wood. Thank you very much, Senator. My name is Jonathan
Wood. I am here today as the chair of the Policy Committee for
the New England Society of American Foresters, and I thank you
for the opportunity to have a field session here in the
northern country. It's truly refreshing. Thank you very much.
My question relates to our role as foresters. The New
England Society of American Foresters is about, oh, 1,200
natural resource professionals throughout the New England
States who do everything from implement the Best Management
Practices on the ground and harvesting operations, educating
young foresters in our schools, working with an industry,
private consulting, and also in the policy arena; and we're
finding the policy arena more and more important because the
impacts that far-reaching laws like this might have on our
ability to manage those resources.
Our organization opposes the rule. We have great concerns
about it, and it's unusual for our organization to actually
take a public standpoint. Because of the diversity of the
organization, we have a lot of dedicated scientists who are
truly, truly dedicated to the health of forests and ecosystems
and to the quality of the waters that they provide for all
Society.
My question is: As we, as practicing foresters, delve into
the arena of policy on a more and more necessary basis, how do
we get our word across? How can our understanding of the
science be put into the political arena in a meaningful manner?
I respect the panel very much, and I think you might have
some insight into that. You spoke very eloquently about
forestry being on a 100-year basis. Yet, we are consistently
faced with opportunities and challenges of new regulations that
impact us on a much more frequent basis; and it's very
challenging to adjust to that.
How can scientists get their influence more effectively put
into the political process so that we're not challenged in this
manner in the future?
Mr. Niebling. Is it Bruce Vincent who said that the world
is run by those who show up?
[Laughter and applause.]
Mr. Niebling. And I think many in the forestry community
haven't been showing up, and that goes for practicing
foresters, and loggers, and scientists, researchers--
particularly, researchers.
You know, people in research tend to want to seal
themselves away from controversy and simply go about their
science without having to concern themselves about how that it
is going to be used, and maintain some impartiality,
independence from the issues of the day so that they're not
inadvertently influenced by it.
But I think we don't have the luxury in this country or on
this planet of those of us involved in the business of
producing the goods that people need to use every day to not be
engaged in and participate on a regular basis in these policy
discussions. We just don't have that luxury any more.
Mr. Wood. Thank you.
Senator Smith. I just might add a footnote. The
Environmental Protection Agency has a wealth of data and
information. A lot of people who do research that could be
provided in a nonconfrontational and an informational way,
could also enhance what we do. Sometimes, you get the Madison
Avenue lawyer who comes in before the zoning board with the big
proposal for a development. He or she is somewhat intimidating
for a person who works on the Board of Adjustment, or the local
planning board, or zoning board. I think we certainly could do
much more to seek partnership and cooperation rather than
confrontation.
Does anybody have a final comment?
Mr. Kingsley. Senator, I just simply wanted to ask if I'd
be able to enter a few things in the record?
I think you know that a lot of New Hampshire landowners
have some real concerns about the TMDL proposal. I have some
letters from people that I'd like to enter into the record.
Also, given the fact that Mr. Fox took the opportunity to
enter the USDA/EPA statement earlier this week into the record,
I'd like to provide the response to those concerns.
Senator Smith. All of this will be made part of the record.
Let me just State for the record that I will leave the record
open until next Friday, close of business, the committee
records; so that if anybody wishes to provide me with testimony
or statements on either side of the issue, or any agency or
individual, we'd be happy to make that part of the record. So,
any new information that you have will certainly be received
and put in the record.
Mr. Kingsley. Thank you, Senator.
Senator Smith. If the next panel would come forward?
Mr. Tom Buob, University of New Hampshire Cooperative
Extension; Ms. Nancy Girard, Conservation Law Foundation; Mr.
Scott Mason of Northwinds Farm, Coos County Farm Bureau from
North Strafford, NH; and Mr. David Paris, Water Supply
Administrator, Manchester Water Works, Manchester, NH. This
will be the last panel; and, as I indicated earlier, we will
have some time at the end if anybody wishes to make a statement
for the record at the end of the hearing.
It is going a little bit longer than I anticipated; but
with your patience, we'll finish. I did not want to be in a
position to shut people off from making comments, because
that's what we're here for.
So, let me start with you, sir, Mr. Buob.
STATEMENT OF TOM BUOB, UNIVERSITY OF NEW HAMPSHIRE COOPERATIVE
EXTENSION
Mr. Buob. Senator, my name is Tom Buob and I work for the
University of New Hampshire Cooperative Extension located in
Grafton County at North Haverhill. And in my position as an
extension educator, I've spoken with a lot of farmers over the
past year or so on the issues related to improving management;
and, basically, they have some concerns about the increased
level of proposed regulatory guidelines from EPA.
Most of their concerns seem to be that regulations or
increased regulations will not necessarily address the nonpoint
source pollution issues and it will result in increased costs
for agricultural production. Regulation is or can be fairly
complex, resulting in confusion, frustration, and undue
paranoia. I think some of this has been evident in some of the
meetings that we have held, and that Scott Mason has held for
the Farm Bureau in other parts of the State.
I realize that many people do not give much credence to
voluntary methods of reducing nonpoint source pollution. But as
an extension educator in the crop and soil management area for
more than 20 years, I feel that a voluntary stewardship effort
based on education is much more effective than any regulatory
approach. Farmers basically live in their own environment.
They're very interested in protecting that environment, because
they're the first ones that are affected.
Farmers have been doing many things correctly and are
actually very interested in making changes which will improve
the environment and reduce the risks of nonpoint source
pollution.
The USDA agencies, including UNH Cooperative Extension, the
NRCS, FSA, Farm Services Agency, local conservation districts,
and local conservation groups have all been working together in
the Connecticut River Valley to address issues in agriculture,
which will reduce or minimize the impact on nonpoint source
pollution on water quality, both ground water and surface water
quality.
Through on-farm research and education, I feel that the
risk of nonpoint source pollution has been decreased. We have a
decreased nutrient loading annually by 70,000 pounds of
nitrogen and 25,000 pounds of phosphorus just in Grafton
County.
A renewed effort is now underway to take the work that has
been done in Grafton County and spread throughout the
Connecticut River Valley from the Canadian border down to the
Massachusetts border.
Obviously, financial incentives work. But there also is a
need for increased funding for research and educational needs.
I'd just like to make a few points. The bottom line is to
protect or enhance water quality, while sustaining the
viability and profitability of agricultural operations, and
maintain the working landscape.
Most farmers and their families live where they work, and
they're the first ones to be affected by anything that goes
wrong. They do not ignore the environment around them.
New England is not like the rest of the country. In fact,
if you look at the three northern New England States, their
approaches to nutrient management are very different. One-size-
does-not-fit-all.
There are more than 250 different soil types across New
England States; so, site-specific management practices are
necessary.
There is a need to develop better tools, and they have to
actually work on the land. You can't just develop tools and
hope they'll work. You have to show that they will work.
Regulations are static; management has to be dynamic to be
successful. Technology, unlike regulation, is in constant
motion; and all you have to do is pick up the paper, and you'll
see that.
Voluntary stewardship, based on good science, education,
and learning, will allow agriculture to adapt to changes and
still minimize the risk of pollution.
I believe that a program that supports research, education,
and training along with financial incentives to make the needed
changes that are identified, will be far more successful in
addressing the environmental issues than any regulatory
program. Thank you, sir.
Senator Smith. Thank you very much.
Ms. Nancy Girard of the Conservation Law Foundation. I made
a mistake of calling it the Conservative Law Foundation and,
maybe, that was wishful thinking. I apologize for that.
Welcome, and I'm glad you're here.
STATEMENT OF NANCY L. GIRARD, VICE PRESIDENT & DIRECTOR,
CONSERVATION LAW FOUNDATION NEW HAMPSHIRE ADVOCACY CENTER
Ms. Girard. Thank you, Senator; and good afternoon, Senator
Smith, Attorney Pemberton, and Attorney Klee.
For the record, I am Nancy Girard. I'm vice president and
director of the Conservation Law Foundation's New Hampshire
Advocacy Center. Thank you for this opportunity to testify
before the committee to address the Environmental Protection
Agency's proposed revisions to regulations implementing the
Clean Water Act's Total Maximum Daily Load, National Pollutant
Discharge Elimination System, and Water Quality Standards
programs.
As the committee is well aware, EPA proposed substantial
rule revisions to these programs on August 23, 1999. Like
numerous interested parties, the Conservation Law Foundation
filed comments with EPA to address concerns with the proposed
revisions. In our comments, CLF strongly opposed the proposed
revisions and requested that EPA withdraw them and reconsider
its approach.
By way of background, let me describe the Conservation Law
Foundation. CLF works to solve the environmental problems that
threaten the people, and natural resources, and the communities
of New England. We maintain an advocacy staff including over 25
lawyers and scientists. Our advocates use law, economics, and
science to design and implement strategies that conserve
natural resources, protect public health, and promote vital
communities in our region. Founded in 1966, CLF is a nonprofit,
member-
supported organization with over 10,000 members. We maintain
advocacy offices in Maine, New Hampshire, Vermont, and
Massachusetts. Our advocates focus on issues of national,
regional and local significance, as well as, those issues that
may affect States, such as Connecticut, Rhode Island, and New
York.
We firmly believe that EPA's proposed regulatory revisions
will significantly affect efforts throughout New England,
including New Hampshire, and nationally, to correct major water
pollution problems and clean up watersheds.
New England, like many other regions, continues to have
significant water pollution problems. Each of the New England
States has identified waters that fail to meet State water-
quality standards. These pollution problems include: nutrient
pollution that imperils recreational use and aquatic habitat in
our lakes, ponds and coastal areas, sedimentation that harms
important fisheries, disruption of natural river flows, and
toxic pollution and pathogens that threaten public health. EPA
and the States must enhance their efforts to document and
correct these critical pollution problems.
As an important component of the approach to clean up New
England's polluted waters, CLF strongly supports the Clean
Water Act's TMDL provisions set forth at 33 U.S.C., section
1313(d).
Over a quarter of a century ago, Congress enacted the 1972
Clean Water Act, which established detailed provisions,
designed to ensure prompt clean up of the Nation's waters.
Indeed, water-quality-based effluent limitations were to be
achieved over 22 years ago; water quality suitable for fish,
wildlife, and recreation was to be attained over 16 years ago;
and discharges were to be eliminated over 14 years ago.
Central to achievement of these timelines, section 303(d)
of the 1972 Act mandated the total maximum daily load, TMDL,
program, which is designed to ensure prompt identification of
impaired and threatened waters, and the setting of maximum
daily pollutant loads for those waters. Under the time line
intended by Congress, pollutants suitable for load calculation
were to be identified by October 1973, States were to identify
impaired waters and submit TMDLs for those waters by April
1974; EPA was to approve or disapprove that identification and
those TMDLs by May 1974, and in the event of disapproval, was
to establish TMDLs by June 1974. Thus, TMDLs, whether EPA
approved or EPA established, for all impaired waters were to be
in place 25 years ago.
This clear congressional intent remains unfulfilled, and
remains unfulfilled to this day. The cause is not far to seek:
EPA has massively failed to comply with their statutory
obligations.
Only recently, in response to numerous lawsuits filed
across the Nation challenging the inaction of EPA and the
States, have initial steps been taken to implement the TMDL
provisions of the Clean Water Act. Only with significant
additional funding and effort devoted to implementation will
the TMDL provisions of the Clean Water Act achieve their
initial purpose and promise. The proposed regulatory provisions
will simply confuse and undermine implementation efforts.
The TMDL requirement is one of the cornerstones of the
Clean Water Act. In order to assure that remaining water
pollution problems are effectively addressed, it is critically
important that the TMDL program not be undermined or weakened.
Instead, the program should be strengthened and fully
implemented. The first major step taken in actually
implementing these long-ignored provisions of the Clean Water
Act should not be to substantially revise existing regulatory
requirements.
CLF's comments to EPA raised several important substantive
issues, including that the rule revisions would: unlawfully
delay development of TMDLs; unlawfully abdicate EPA's
responsibility to develop TMDLs when States fail to; undermine
public participation in the TMDL development process;
unlawfully add factors for determining whether agricultural and
silvicultural activities fall within the CWA's definition of
point source discharge of a pollutant; create an inadequate and
unlawful offset or trading program that would allow polluting
discharges to continue without meeting water quality standards;
and exempt existing discharges from compliance with water
quality standards, even if they expand their discharge up to 20
percent.
Each of these concerns address facial violations of
specific statutory requirements of the Clean Water Act. Unless
each of them is addressed, and EPA's approach substantially
revised, the proposed regulatory revisions would cause endless
legal challenges and interminable delay in correcting critical
water pollution problems.
Due to the complexity of the proposed regulatory revisions,
their broad scope, and their fundamental flaws, EPA should
revisit its approach and provide an additional opportunity for
public comment. Indeed, each of the provisions of the proposed
revisions warrant an independent rulemaking. As a result, CLF
has requested and continues to urge EPA to withdraw the
proposed revisions and take a fresh look at needed improvements
in the TMDL program.
What we're asking is the same thing you've heard at the
State House, which, essentially, under New Hampshire law, under
541-A, would be to pull the rule. Start again. We're advocating
for this.
CLF is very concerned with recent written and oral EPA
statements to Members of Congress, including Senator Smith,
highlighting potentially major changes to the initial rule
proposal without providing any detail or specificity regarding
possible changes.
Given the likely major revisions that will occur in a final
rule, CLF believes that the rule revisions should be noticed
for additional public comment. Without an additional
opportunity for public comment, we are concerned that all
interested parties, not just special interests, but all
interested parties will be deprived of an opportunity to
meaningfully express their views in the process.
In conclusion, CLF continues to oppose EPA's proposed
regulatory revisions. Without substantial changes, the proposed
revisions will violate specific requirements of the Clean Water
Act, cause major confusion and unnecessary controversy, and
massively delay clean up of polluted waters. The TMDL program
should be implemented, not weakened. Adoption of the proposed
revisions without substantial changes would represent a major
setback for efforts to clean up polluted waters across New
England and the Nation. Thank you, Senator.
Senator Smith. Thank you very much.
Mr. Scott Mason of Northwinds Farms, Coos County Farm
Bureau.
Mr. Mason, you may proceed.
STATEMENT OF SCOTT MASON, NORTHWINDS FARM, COOS COUNTY FARM
BUREAU
Mr. Mason. Thank you very much. I am Scott Mason from
Northwinds Farm, Coos County Farm Bureau. I would like to
submit for the record my written comments. I'd like to thank
you for providing this opportunity to speak on the EPA proposed
TMDL and AFO-CAFO rules. I am Coos County Farm Bureau
president, a vice president for New Hampshire Farm Bureau,
chairman of the AFO-CAFO Committee, chairman of the American
Farm Bureau Dairy Committee, a member of the Coos County
Conservation District, member of the State Technical Committee
for NRCS, and serve on a bi-state committee developing
certification standards for Nutrient Management Planners. I'm
also a commercial dairy farmer milking 150 registered Jerseys,
and we also raise sweet corn.
I would also like to thank Senators Smith and Crapo for
introducing Senate bill 2417. This bill shows some common
sense. EPA is trying to treat the nonpoint pollution problem
the same way they have dealt with the point pollution--point
source pollution problem. It is my understanding that Congress
saw a difference in the way the two should be dealt with when
the Clean Water Act was written.
If the EPA is allowed to proceed with TMDL and AFO-CAFO, as
proposed, American agriculture will be greatly reduced. The
bill points out that there is a lack of funding to deal with
nonpoint problems, both at the State level and at the landowner
level.
EPA is unwilling to look at the progress agriculture has
made through true voluntary programs. EPA's idea of a voluntary
program is that you will voluntarily conform, or we will fine
you into voluntary compliance. Natural Resources Conservation
Services have had a long tradition of voluntary conservation
programs.
There is a major difference between agricultural and
industrial pollution. Ag pollution is not profitable to the
farmer. Any farmer that is a livestock/crop farmer needs his or
her nutrients in the field to grow the crops. Manure may be a
byproduct of livestock, but is also an input for crop farming.
Whereas, in industry, pollution is a cost to get rid of as
cheaply as possible.
If you come to my farm, and test the water, and find
nutrients that have come from my farm, then I'm losing money.
That is also true with pesticides. At $40 a gallon, I want to
make sure that the spray stays in the field and keeps working.
This is why nonpoint Ag pollution control can and should be
handled differently than industrial pollution.
In order to make good policy decisions concerning the
relationship with forestry, agriculture, and the environment,
you must also take a look at the traditional cost-share
programs of NRCS. Funding is the major problem with trying to
improve water quality today. This Administration has replaced
funding of government programs that actually clean up the
environment and reduce possible contamination with programs
that educate the general public and create more government
bureaucracies.
The current EQIP funding for New Hampshire is a third of
what the old ACP program was. However, the Connecticut River is
listed as a historic river and Silvio Conte is building
learning centers. Not only has funding levels gone down, but
bureaucracy has gone up.
It is now a 2-year process for money to be made available
to the farmers through EQIP. Money is made available by
priority watersheds, within which many watershed projects are
rated, for environmental impact. Each project must be estimated
for the cost and the impact that it will have on the
environment at this time. This creates quite a bit of excess
work. For instance in our county this year, we have six
projects and we probably only have funding for two or three.
There probably will be man-hours, of well over 300 hours, in
deciding which one of those three will get funded. It is
possible for a better-quality project not to be funded because
it is outside of a priority watershed. Most farms in New
Hampshire are not eligible for funding, because they are
outside of the priority watersheds; or the money available for
their watershed is not sufficient to do the project. There are
only two watersheds in New Hampshire currently receiving enough
money to build a manure storage system for a family sized dairy
farm.
A farmer can only apply once every 5 years for cost-share
money. That means that he must apply all funding for all of the
projects he needs to complete within the next 5 years at the
time he applies. In order to comply with both AFO-CAFO and TMDL
requirements, some farms would need almost the entire EQIP
money for the State of New Hampshire at that one time.
However, another rule would cap the cost share at $50,000
per farmer per contract. Remember, you do not actually have to
be polluting to be held liable in citizen litigation. All they
need to prove is that you are not in compliance.
We have seen a growth in EPA and DES funding of farm
projects. However, to qualify for funding, the watershed must
be identified as a problem area and the individual farm must be
identified as a problem. DES has assured farmers that they will
not penalize farmers for participating in these programs.
However, I question whether the farmer is creating a public
record of environmental misdeeds that could be later used
against him in a citizen litigation. This has been done in
Washington State by at least one citizen litigation lawsuit out
there.
I'd like to take a few minutes to talk about my experience
on the SBREA Panel that reviewed the current proposed changes
to the AFO-CAFO regulations. Most of the farmers are aware that
the EPA currently classifies all farms over 1,000 animal units
as a CAFO. EPA is currently in the process of reducing the
minimum size of a CAFO to 300 animal units. They also would
like to change the definition to include replacement heifers on
a dairy farm.
If these changes occur in the regulation, then all the
dairies above 150 cows will be classified as CAFOs. What this
does is it subjects the family farmer to citizen litigation.
Congress allowed citizen litigation with point pollution
sources. I'm guessing that it was because Congress felt that a
private citizen needed more power to defend him or herself from
corporate America.
But to now allow citizens, or maybe more aptly put as
multimillion or billion dollar environmental organizations with
well-paid attorneys to sue family farmers, seems a bit unfair.
Most farmers will choose to either sell or to settle out of
court. Farmers do not have the money to fight these cases. The
legal fees alone can run into the hundreds of thousands of
dollars.
EPA is also looking at mandatory 100-foot setbacks from the
water for spreading manure. Yet, they allow me to spread sludge
to within 10 meters of the river. I think the difference
between these two setbacks have more to do with the fact that
cows don't vote than good-quality science.
In conclusion, I feel that the EPA is over-responding with
the TMDL and the AFO-CAFO regulations. Nonpoint pollution can
and should be handled better at the State level. Currently,
there are economic forces at work driving the dairy industry in
two different directions: (1) smaller part-time farmers; and
(2) larger and larger farms. I feel that the cost to comply per
cow will be greatest on the mid-size family farms if these
changes come about.
Farms, such as myself, will have a choice: We'll either
have to get bigger in order to comply; we'll either have to get
smaller; or we'll just have to get out. In the Northeast, that
means more farmland will be made available for development.
Privately, most DES and EPA officials I have spoken to feel
that farms are less of a problem than sprawl for the
environment. Congress must also look at the NRCS EQIP program.
The application procedure needs to be simplified and the
funding level needs to be restored.
EPA cost share needs to be given to NRCS and distributed to
farmers and landowners. NRCS had a perfect vehicle to get this
money out to the right landowners. We need to empower State
technical committees to develop funding procedures that make
sense to the individual States. More research needs to be done
to make sure that the proposed regulations will actually have
the desired effects and won't actually cause some of the
problems they're trying to prevent.
I would encourage this committee to call a halt to the EPA
trying to expand the Federal Government's role in nonpoint
pollution. Thank you.
Senator Smith. Thank you. Mr. Paris----
Mr. Fox. [Indicating from the audience.]
Senator Smith. I want to thank Mr. Fox for coming up. He
does have a plane to catch, and there aren't too many right
here. So, he has got to go. But, that he has also indicated
that he would take any questions for the record and respond to
them in writing. So, thank you very much, Mr. Fox, for your
time here. We really appreciate it.
[Applause.]
Senator Smith. Mr. Paris, welcome.
STATEMENT OF DAVID PARIS, WATER SUPPLY ADMINISTRATOR,
MANCHESTER WATER TREATMENT PLANT
Mr. Paris. Mr. Chairman, thank you very much for this
opportunity to address the committee today. I understand that
our written statement, and that is the statement of American
Water Works Association, on whose behalf I'm appearing here
today, has been introduced for the record. I will briefly
summarize those comments, and would like to elaborate on how
this measure may possibly impact us in New Hampshire, actually,
Manchester Water Works.
But before I get into that, it's important to note that
this is the beginning of National Drinking Water Week and it's
not one of those things that comes up on everybody's calendar,
unfortunately. I have brought along some hats from Manchester
Water Works and you are welcome to take them back to
Washington. I would hope you would wear them in the Beltway
because they reflect upon actually some efforts that we made in
Manchester to educate fourth graders.
The measure that we have before you today,----
[Laughter and applause.]
Senator Smith [continuing]. There's a message in there
somewhere----
Mr. Paris. There is a message in there somewhere, yes. The
message I would like to review, though, is that----
Senator Smith. There goes your hat.
[Laughter.]
Mr. Paris [continuing]. Is that the opportunity to
implement measures today will provide protection for water
quality for the future, and we heard speakers speak to how
today's water quality is different than it was a hundred years
ago; and with the change in our demographics in Society, it's
important that we take steps, be them contentious and
controversial, to assure that drinking water, in particular, is
protected for the future. A little bit about the American Water
Association for those of you who have never heard of it, it
represents the water utilities in the United States. We have
56,000 members; Manchester Water Works, and the fair share of
the larger utilities in the State of New Hampshire are members
and overall AWWA represents about 161 million Americans who
drink community waters, from a community water source.
We, at AWWA, support the efforts to establish TMDLs. It's a
good concept and we see it as a step toward the future, toward
the 20-year, the 50-year, a hundred-year look toward the future
of protecting water quality. However, we have to tell you that
we feel it falls short currently in a couple of really
important areas.
First, the controversial elements of TMDL, our concern
whether it can be implemented by EPA and to provide assurances
that TMDLs will be followed. We think that some measures have
to be done here to provide assurances; but we feel strongly,
and I feel, personally, very strongly, that voluntary
incentive-based measures are far more effective in establishing
a long-term guarantee that these types of measures will be
followed in the future.
The types of things that water suppliers are concerned
with, some of them that you have heard mentioned are nutrient
loading, pathogen loading, and sediment release, and those
types of issues become very important for people who are
drinking the water that is effected by those things.
The second issue that American Water Works brings forward
to the table here, and it's been one of the issues that we
brought up before, is that we feel the Nation's waters--and
it's too bad that Chuck has left--need to be classified with
drinking water as a highest and best use.
Currently, for those of you that look at these types of
standards, drinking water, and the use of our Nation's water
for drinking doesn't receive any significant reference. We felt
that this was a good opportunity to put that into the rules. It
becomes a very pertinent issue when these rules are
implemented. Citizens of our great Nation deserve that
consideration.
Now, getting on to Manchester, I have a unique opportunity
to speak from both sides of the podium. It's almost too
schizophrenic for me to handle. I'm here from the American
Water Works Association and I'm speaking to you as a water
supply administrator. Manchester Water Works, and there are a
fair number of timberland owners here, who might recognize it
as one of the major landowners in the southern part of the
State of New Hampshire. We own 8,000 acres of property,
forested watershed and we maintain that forest with the
services of a professional forester, Mr. Ethan Howard, for
those of you who know Ethan.
Additionally, within 10 years, Manchester will be looking
toward the Merrimack River as a source of its supply to supply
that community of 128,000 people and that continues to grow on
about a 2- to 3-percent basis annually.
One critical aspect that we see with the Watershed
Protection Plan is that in order to maintain a healthy forest,
periodic cutting and releasing is important. We have practiced
those--I say ``we'' in the collective--for over 120 years in
Manchester, and that those practices assure, really, a higher-
quality water than it would without those practices being
followed.
The Best Management Practices involved with this forestry
release program are of critical importance. Demonstration
plots, and when I was a young employee of Manchester, just
running the Water Treatment Plant, I had an opportunity to go
to Hubbard Brook Experiment Station. That's right up the road
here in Lincoln, NH. The Forest Service ran a demonstrate plot
there; and they demonstrated that if you did not follow Best
Management Practices with your forestry release programs, you
would release nutrients, and nitrates, and various other, and
you could demonstrate sediment and erosion if you did not do it
right. And I think the people in this room do it right. I think
we've heard today from people who are very responsible in their
forestry practices.
Senate bill 2417, Senator, is another opportunity to expand
the science. We support that. We support its provisions for
resource development and resources that will help implement the
aspects of the rule. Our interest is to see that they get
followed in some way, shape, or form.
And another interest, certainly, that's important here is
the urban nonpoint source discharge issue. It hasn't really
seen a whole lot of discussion here today. But as well as
agricultural and silviculture can have a significant impact, it
does have a significant impact on water quality.
And dealing with the issues of emerging pathogens, those
things that make you sick that get into water, and ever
tightening regulation, again, I wish Chuck was still here, it's
important to understand that drinking water is ever more
dependent upon source water protection initiatives. Things that
people do to protect the water before it gets to the cities to
be sure that it's clean and pure to drink.
The regulatory environment creating incentives to insure
that this happens is, by far, the best way to do it. Those
incentives have to be supported.
I hope that our written testimony and observations have
helped you today. I realize I'm the last guy here on the
podium, and I'm here to answer any questions. Thank you very
much.
Senator Smith. Last, but not least, thank you very much.
I'd like to just say, Mr. Mason, that if cows could vote,
we'd probably eat more chicken;----
[Laughter.]
Senator Smith [continuing]. At least, I think so. Let me
just--again, we'll take a few questions; and if anyone has a
question for this panel, please, feel free to walk to the mike.
Mr. Mason, what is the ultimate goal here?
My assumption is that we don't want to close down a farm or
close down forestry operation and turn it into some industrial
entity. And I think that's a reasonable assumption here.
If this rule were to be implemented, could that happen;
and, why? What specifically is going to happen to encourage one
off the land.
Mr. Mason. I know we're short on time, but I'll tell you a
quick story.
A good buddy of mine in college, his grandfather lived in
the State of Maryland, and this is back in about 1920, 1925,
and the State came out and they said he's going to have to put
a thermometer--you've got to remember, this is back in the days
where you put the milk in a jug and you put it into a spring,
and that's how you kept your milk cold--kept your milk cold--
and the State came out and said, ``You have to put a
thermometer in that spring and find out how cold it is.'' And
the old gentleman said that he knew that that was the first
step; and sooner or later, if that spring is not cold enough,
that they're going to make him refrigerate it, and he might
just as well sell the cows now.
And there will be a certain percentage of farmers that, one
more regulation is enough. When house lots are--I was just
talking to a farmer on the seacoast and he just sold house lots
for $70,000 a quarter acre. I mean, when you're looking at
that, one more regulation, one more headache, is enough to say,
``Enough's enough.''
If we get into citizen litigation, as a farmer, if you're
on paper worth a million dollars, and a lot of farmers are
today because of our land values, and there's a possibility
that your son may get in a fight on a school bus and give
somebody's other son a bloody nose, and now that person has a
vendetta against you, that they pick up something in the TMDL
or AFO-CAFO and sue you, you may lose your operation. That's
enough to get a lot of fellows to start thinking it's time to
get out. And I think citizen litigation is probably the biggest
problem that we, as farmers, see in the AFO-CAFO.
Senator Smith. Anyone else?
[No response.]
Senator Smith. Ms. Girard, what, in your professional
opinion, science exists today to implement a TMDL strategy or
plans? As you indicated, you felt that even the EPA proposal
was not strong enough.
Do we have the science to be able to implement a plan that
effectively, I mean, and realistically, do we have that much
science available to do that?
Ms. Girard. We're always gathering science. We're always
finding new things. We're also impacting on our water quality.
So, I don't use science as a benchmark to stop implementation.
If you go to the original Clean Water Act, it didn't
require a standard that you have complete knowledge of the
science in order to implement TMDLs. It said to maintain margin
of safety; implement to the best professional judgment that you
could. So, back in 1972, they were encouraging implementation
with the information they had at the time. What you've seen in
this process has been voluntary implementation in many States,
New England, particularly, who have gone ahead and developed
BMP's to try to stay ahead of these types of issues.
One of the biggest issues in this debate has been what
TMDLs has represented for other States in the Nation, where
they have not gone through voluntary implementation programs.
I am particularly concerned about waiting to, hopefully,
develop what is considered adequate science that you may not be
able to achieve in a year, 2 years, or 3 years. I don't want to
see efforts to improve our water quality be sidetracked by
having that scientific development hung up.
So, from that prospective, I would much prefer to see the
standard be implemented. If necessary, when additional science
is devised, reviewed, and accepted, then amend your standard at
that point, but do not hold up the implementation of the
regulatory process until this develops.
Senator Smith. I'm sorry. I didn't see the gentleman
standing here. Yes, sir?
Mr. Kinneth. My name is Robert Kinneth and I own a few
acres a little north of here, and that's my concern, and that's
why I'm here.
I thank you, Senator Smith, for holding the hearing and
allowing us up here in the north country to have our say. I
think it's important and I thank you.
A few years ago, I was part of a committee on the Hubbard
Brook area. I was an RCD member of the northern four counties
in New Hampshire at the time. I think there's much to be
learned there. That review went on for several years. Some of
the questions were asked 15 years ago that we've been talking
about today, of the people that were running the area; and,
physically, you know, getting their hands dirty. I'm certain
that there is much to be learned from that study. I'm sure that
data is somewhere.
I urge you, Senator Smith, to look into that and use that
for the decisions on this bill and this proposal, and the new
rules and regulations.
The comment by the young lady to simply set down rules and
regulations without understanding the impact of those by a
fellow that's got a very sore back, because he's worked all of
his life in trying to make a living, and a very meager living,
cutting wood, and putting him under a permitting process that
takes months, is going to drive him in poverty. If that's the
process, then do it. But I think it's wrong. Thank you.
Senator Smith. Thank you, sir.
Yes, sir?
Mr. Kencht. Senator, my name is Stan Kencht, spelled K-e-n-
c-h-t. I'm from Lancaster, NH. Just following up on your
question, you asked Scott Mason concerning from a farmer's
viewpoint what is the worst part of these regulations.
I would agree with what Scott said; that the citizen
lawsuit, the potential for a citizen lawsuit is the scariest
part of the regulation.
One of the other parts of the CAFO regulation, as I
understand it, is once you're in violation of any pollution,
then you come under the definition of a CAFO, regardless of the
size of your operation. So, if you're like me, and you have 30
head of beef cattle and you're in violation of something, then,
you're automatically categorized as a CAFO and subject to
potential citizen's litigation.
I would just like to comment. You said that Mr. Fox would
respond to comments or respond to questions that are part of
the record. I just have a question.
I believe that in this public hearing process, the only
thing that we, as citizens, have to take back with us is the
credibility of what's spoken to us here. And during part of Mr.
Fox's remarks, his comment was that he did not believe that the
CAFO regulations would impact New Hampshire at all.
Now, Mr. Mason's comments, obviously, contradict that. I
would just ask Mr. Fox to rectify his statement that they would
not impact New Hampshire; and then, Mr. Mason, that they would.
I would ask him to rectify that for the record?
Senator Smith. He would respond to that and make sure we
have your address before we leave, so we can get back to you.
Mr. Kencht. Thank you.
Senator Smith. Yes, ma'am?
Ms. Tarker. Edith Tarker. I spent a day on a bus looking
around Coos County looking at various forest lots. One of your
staff people was there. I got a little better understanding of
some of the Federal funding that Mr. Mason was speaking of.
What is your view, Senator Smith, as to whether we can see
an increase in the funding of EQIP and some of these other
alphabetical programs which are designed to help tree farmers/
loggers and the farms here, the dairy farms? There seem to be a
number of them. And some of them got short-changed in order to
get the Ice Storm money. It was a cost or a funding shift
program. In other words, we got a lot more money, but it was
directed toward Ice Storm damage.
Now, apparently, there's need for money for building some
of these manure storage facilities and other practices which
would be helpful on woodlots.
Are we apt to be getting more money here in New Hampshire
for those kinds of helps to tree farmers and to dairy farmers?
Senator Smith. Well, first of all, let me say that I did
for the first time--I didn't think I'd ever live to see it--but
for the first time in a long time, 30 years or so, we're
beginning to run some surpluses at the Federal Government
level. I'm hoping that with the surpluses (a) we can give some
money back to the taxpayers; (b) we can peg down and pay off
the National Debt, which is about $3.5 trillion. We did make a
downpayment of a couple hundred paltry billion on that this
year; but, certainly, we ought to be able to look at programs
like this, that I would call infrastructure. Infrastructure
would be environmental enhancement, promoting good environment
policies, rather than being at the end, the punitive end, the
fine end, if you will. Rather, the Government should get into
promoting these practices and grant dollars, in general, in
those areas, I would be supportive of.
I think if you look over the past 30 years, the State of
New Hampshire has been a donor State. Not in everything. We get
more than we put into the Federal Highway Trust Fund, for
example; but I believe, that we've been a donor State, in the
sense that a lot of the States have these huge welfare and
inner-city problems that New Hampshire doesn't have. We have
them, but not as serious as others.
So, I think we have a good, valid reason to make requests
for this kind. Whether they're revolving loan programs, grants,
or any type of a process where we could get moneys to help. We
do this with my bill, which increases from $150 to $750 million
on the TMDL issue to promote good practices to have a pilot--
several pilot programs around the country, and so forth. So, I
think that's proactive.
And I think, respectfully, the area where I disagree with
Mr. Fox and, perhaps, with Ms. Girard, as well, is that I think
we all believe that we share those objectives, but I believe
the best way long term to handle these environmental problems
is to stop creating more of them. If we constantly have to hold
a glass under the faucet and the faucet keeps running, we're
going to run out of glasses pretty soon. I want to shut the
faucet off and I think the best way to do that is to teach, and
to help, and work with the landowners. They can teach us a few
things, I'm sure, and to do the right thing and look to the
next generation after the next election. It's very easy to say
that we want to do something immediately to clean up the mess
that we created that took 200 years to do it. But sometimes, we
can't do that; and I think we have to be honest about it, and
say, ``Let's set good policy.'' If it takes grant money, and
some of the types of programs that you suggested, I'd be all
for it. I mean, I think we should get our share of it.
I think it ought to be based, frankly, on good performance
on how well we are on the steward of the land. I don't think
somebody who's doing a lousy job in stewarding the land should
get it, but I think that the States and landowners who do
should get that help. And I think New Hampshire, frankly, is as
good as any State in that regard.
So, unless either of the staff has comments specifically on
these programs, I'm done.
At this point, if anyone has any question of any one of the
panelists who are up here or any panelist who is still here,
feel free to come up and we'll respond to any question that
might be asked. Did you have a question?
Mr. Sullivan. A comment.
Senator Smith. Yes, sir?
Mr. Sullivan. Well, thank you, Senator. I just have a quick
comment. My name is Mark Sullivan and I live in Whitefield.
I've heard a lot of interesting things here, and what troubles
me more than anything else is that EPA has an unclear rule, no
clear concept of what their long-range implications of the
unclear rule are, and no plan to implement the unclear rule.
My ending comment is that, to me, this seems to be a
glaring example that a draft is a horse designed by
bureaucracy.
[Laughter.]
Senator Smith. Well, I would agree with you, because one of
the things that I have found in all of the environmental laws
that I've worked with over the past 16 years that I've been in
Congress, they were all good-intentioned, and many of them were
very effective, including the Clean Water Act. But I think it's
important that we do have clarity in these laws. If there's an
individual out there somewhere who--let's just use the example
of a farmer--if he is or she is a lousy farmer, who's really
polluting the environment, has absolutely no concern for the
land for whatever they're doing, then that person is violating
the law and that person should be, in my view, brought up short
for doing it.
But I don't think we should pass rules or implement rules
that make everyone criminals; for the same reason we don't want
to put everybody in jail because somebody commits a crime. And
so, that's my only concern.
I think in the long run, it would be nonproductive, and I
don't want to repeat myself, but I'm trying to look beyond the
laws of the past which have been very effective. We don't want
to walk away from those laws, but we can, in my view, down the
road, stop more problems in the future a lot more quickly if we
work with landowners, the private stewards, to see to it that
we don't create more of these problems. I'm afraid that this
rule, with the greatest respect to those who support it, it's
going to have the exact opposite effect. I think it's going to
drive people--not everybody. I mean, Champion lumber company is
going to be around. I don't think we're going to drive them off
the land, but we may drive off Tom Thomson or some other small
woodlot owner or landowner who may not be able to do that, and
that's my concern. And if we do that, in the long run, we're
not benefiting the land; we're not getting the results that we
want. So, I agree with you.
And now, just step up. Yes, ma'am?
Ms. Derose. My name is Bonnie Derose, D-e-r-o-s-e. Senator
Smith, I really appreciate this opportunity. I'm not a farmer.
I'm not a forester. I'm here as a U.S. citizen who conducts
their daily life, their daily public life in English and I
expect the same of others, and I vote.
I have in my hand some literature which shows great success
by EPA, clean water, clean air, and to that, I have to say,
``If it ain't broke, don't fix it.''
Part of what I think motivates people to design laws, such
as this--there are too many damn laws, as you've dubbed it--is
the success that the EPA has already had. This is going to
affect the life expectancy of the EPA. Historically, in
Washington, when something is successful, the budget gets cut.
So, what's the EPA going to do? Let's get more regulations, so
we can have a longer life; and those more regulations are going
to cost the taxpayers. This is analogous to the psychologist
and other ancillary people in public school systems who find
more and more labels for dysfunctional children to be in
Special Ed., another black hole.
There used to be a saying of people holding office, public
office, whether it be city, State, county, or Federal, that
they were public servants. The number of laws that are now,
like this proposed law, punitive and damaging to the citizens,
have made the citizens of the United States servants to the
Federal Government, and that's not right.
There's been a lot of discussion today about where the
funding for this law is going to come from; and the split of
60/40, maybe, it's 50/50, maybe, it's 30/70, it all adds up to
100 percent on the taxpayer. Whether they're paying their State
to put forth the State's part of it or the Federal taxes to put
forth the Federal part of it, it still adds up to 100 percent
for the citizens of the United States.
To that, I would like to say to the people here in the
audience, whether you're getting it or giving it, when somebody
controls your money, they are controlling you. Thank you very
much.
Senator Smith. Thank you.
[Applause.]
Senator Smith. We are going to continue to take the
questions for those who wish to ask them. Let me just state, in
case some people leave, a whole transcript of this hearing,
including the remarks that all of you have made, will be
available. It's going to take a little while, but you can get
it by e-mail to www.senate.gov/epw/. Also, you could write to
the Environment and Public Works Committee in Washington, DC
and we'll provide you copies, but it's going to be a while
before we have a hard copy of it, but it will be available if
you'd like to have it.
Also, I want to thank Jeff Rose of my staff and Stacy
Durgin, both of them who worked the environmental issues here
in the State; and I know they've been up here on numerous
occasions working with all of you on these issues, and I
appreciate their help.
So, anyway, now, let's just take these questions and then
we'll wrap up. Let me go over this side, I guess.
Mr. Balch. My name is Si Balch, spelled S-i B-a-l-c-h. I'm
chief forester at the Mead Paper Company here in New England. I
would like to thank you for having the hearing. I think it's a
great thing to do; so, thank you very much. I live in Wilton,
ME.
I've got about 30 years' experience with forest operations
here in the Northeast; plus, I've worked for a number of
corporations that have land across the country. I've been
working in water quality, both at a company level and at a
State level for, at least, 10 years. I'm on the Advisory
Council of Water Qualities in the State of Maine. Mead owns
about 600,000 acres, of which 100,000 is in New Hampshire. The
rest is in Maine. We are also members of AF&PA, supporting SFI.
I'm afraid I don't have a lot of faith in the promises of
the EPA at this point. I would like to say that I think that
the TMDL part of the program has not been supported as well as
it should have been over the years, and that lawsuits over the
past few years have proven that.
And so, I would encourage the development of the TMDL
program as originally envisioned. That does not mean that I'm
encouraging it to include silviculture and other nonpoint
sources. And I'm fascinated by this magic where a nonpoint
source suddenly becomes a point source. We are seeing it in
agriculture.
Now, we've heard a lot about silviculture. We heard from
Mr. Fox today a classic divide and conquer. It doesn't apply to
you in New Hampshire; so, don't worry about it. Forget it. It
applies--it will apply across the country, and our colleagues
in the rest of the country will bear the brunt of it.
Agriculture is fascinating, because, actually, there is a
law which exempts agriculture from most of this; and, yet, EPA
has magically said that feed lots suddenly are not agriculture.
Guess what? Now, they're a point source. So, you're going to
see this continual subdivision or definition to get where they
want to go.
A couple of points. If TMDLs are not based on science, they
will be indefensible, and they would be back in court; and
then, your tax dollars and my tax dollars would have been
wasted on a worthless product and will be further wasted
defending them in court. And when the EPA goes to court to
defend its own regulations, that's our tax dollars.
Your bill, 2417, does go quite a long way to fixing some of
the problems, and I would like to endorse that. Very simply,
nonpoint sources should not be implemented into the TMDL
process. You need to retain the definition of most
silvicultural operations as nonpoint sources. We heard Mr. Fox
say that they would follow the intent. The very clear intent of
Congress in the past has been the silvicultures and nonpoint
source. Let's honor that.
I will not bore you with the whole list, but I am going to
submit it in writing.
I would like to tell one short story of my experience. One
of the recent pieces of legislation to the coastal zone
management, which requires States to develop and enforce the
BMP's, enforce the BMP's within the coastal zone.
Well, in the State of Maine, the coastal zone, for some
reason, is approximately 100 miles from the coast. It's not a
couple of miles along the coast. It's 100 miles inland. We
studied it. The State studied it. We submitted a plan that said
that forestry was not a significant contributor to pollution
within the coastal zone.
The EPA came back and said, ``Nice try, but you have to
leave it in there.''
So, the business of the State being able to create its own
program, and say, ``There, we got turned down flat by the EPA''
So, I don't have a lot of faith in that process.
I'd be happy to answer any questions.
Senator Smith. Thank you very much. Let me make a quick
request. At the risk of offending anyone, they tell me that we
were only supposed to have this school until a little after 4
o'clock. It's 5:20 p.m. We were supposed to give up the school
here. So, every--anything that you have in writing, we can
accept as a written record; and, if you could just summarize in
a minute or two your comments, it would be appreciated so that
I can get everybody since I promised it.
Yes, sir?
Mr. Bonney. Hello. I'm David Bonney. I am a Maine licensed
forester residing in Newry, ME. I have practiced forestry for
21 years in the States of Maine, New Hampshire, and New York. I
am currently employed by Wagner Forest Management, which is
headquartered in Lyme, NH. Wagner manages large acreages in New
England, New York, and parts of Canada.
As a practicing forester, I strongly object to the EPA's
proposed efforts to redefine forest management activities as a
point source polluter.
If this action is allowed, the ability of landowners to
responsibly manage their land will be adversely impacted. This
ability to manage forestlands is crucial to the economy
supported by the management of our forests.
Landowners currently follow the State and local laws, along
with implementing Best Management Practices when conducting
forest management activities. To require the landowners'
practicing forestry to go through the delay and expense of
receiving Federal permits, given the effective programs already
in place, is completely unacceptable.
These proposed permit requirements threaten the forest
landowners' already narrow profit margin. These requirements
would also open the door for other laws and civil lawsuits.
Landowners faced with not having the opportunity to
profitably manage their holdings may choose to sell to
developers.
This permanent loss of forestland would impact the
environment to an extent that no forestry activity would ever
induce.
I urge that the determination of forest activities as a
nonpoint source polluter not be reversed. Thank you.
Senator Smith. Thank you very much, sir.
Yes, sir?
Mr. Spalding. My name is Donald Spalding, again, from
Whitefield. We've heard a lot today about what might happen
under this proposed rule, but I would like to relate a case
where it actually did happen in different but very similar
circumstances.
It involved Ben Lacy, a small apple juice producer in rural
western Virginia. He had a NPDES permit, similar to what is
being proposed here, to discharge wash water from his operation
into a local stream. He thus had to do quarterly testing of his
effluent and file the Quarterly Monitoring Reports with the
State.
One day, at a time his business was beset with disasters,
staffers from the Virginia Department of Environmental Quality
showed up for a routine audit of his reports. Because of his
troubles, he told them to come back another time. Instead, they
returned with a platoon of FBI and police and seized all his
records.
They found that over several years, he had reported a few
incorrect numbers, mostly in advertently. The Virginia attorney
general wouldn't prosecute, nor would the area Federal grand
jury indict, but the intrepid Feds. shopped around until they
found one grand jury that would.
As a result, he was taken to Federal court, convicted on
eight counts of ``making false statements,'' and was facing 24
years in jail and $2 million in fines. That is, until the judge
in the case discovered that your government and mine had
suborned testimony from the chief witness against him, a
disgruntled former employee, and threw the case out. And at no
time in any of this was there any question of illegal pollution
or exceeding TMDLs. In fact, a local environmentalist group
tried to testify on his behalf.
Senator Smith. Thank you.
Yes, sir?
Mr. Cohen. My name is Nick Cohen and I'm from Plainfield,
NH. I represent myself, as well as the Sierra Club and a number
of other organizations working here in New Hampshire
maintaining trails.
Since New Hampshire is better at implementing Best
Management Practices, according to what we see as the condition
of our waters on a national basis, the economic competitiveness
of New Hampshire timber would actually benefit from more
stringent Federal regulations, because that will equalize the
expenses devoted to environmental protection by all timber
producers throughout the Nation currently; because we, in
effect, do a better job without spending more, and it puts us
at a competitive disadvantage. So, we could certainly--I think
we're looking at something that would improve our position.
The economic pressure of New Hampshire and worldwide
forests will certainly increase dramatically in the future;
especially, since the world is developing a great demand for
timber worldwide. And it's important to have regulations in
place now to provide additional protection for the environment,
which might be very difficult to obtain in the future.
Also, I see as I walk over different areas of the State
that not all New Hampshire private timber owners use good
practices. I, by the way, do timber management on my own land.
And occasionally, we come across areas which have been clear-
cut. Very badly managed, as far as soil conservation is
concerned. So, there may be some need for regulations in the
future on that basis.
I've heard mentioned the 100-year planning basis for
timber. I think you've got to start thinking in terms of
thousands of millions of years; especially, if we're going to
be living here that long, because it's going to be on that
scale that we have to take care of this planet.
Then, on nonpoint pollution, which is the last thing I want
to mention here. Eventually, nonpoint source pollution
manifests point source pollution when it collects, you know, in
a waterway, or something like that. So, it's all part of the
same pollution problem. And I don't think that by changing it,
the designation from one to another, or arguing about it, that
you can successfully exempt forestry or agriculture from the
total picture. It's just more difficult to get a handle on, and
it might be that it's easy to identify poor practice by finding
a point where you can identify a point source pollution and
associate it with a particular operation, as far as
legislation's concerned.
So, I think in the future, you're going to find that it
doesn't matter what type of pollution you're talking about.
It's all going to come under the same kind of regulation. Thank
you.
Senator Smith. Thank you very much.
Yes, ma'am?
Ms. Packer. Thank you, Senator. My name is Sara Packer. I'm
a forester with Wagner Forest Management out of northern
Vermont. I'm an active member of the Society of American
Foresters and I serve on boards of both Vermont Sustainable
Forestry Initiative and the Vermont Woodlands Association.
I share with many others in this room a strong commitment
to the responsible management and protection of our natural
resources, and I do not believe that an expanded Federal
regulation is necessary to meet the goal of achieving fishable
and swimmable waters.
Silvicultural activities have been exempt from a Federal
permitting process since the original Clean Water Act and
multiple State laws and programs, along with various voluntary
initiatives and educational programs, have proven successful in
addressing the protection of water quality on forest management
operations.
Our ability to own and responsibly manage forestland is
critical to the environmental and economic health of this
region. Requiring landowners to go through the delay and
expense of receiving a Federal discharge permit will,
undoubtedly, threaten their ability to efficiently and
profitably manage forestland, and many landowners, who have
helped to maintain and protect our open space and working
landscape, may choose to sell their land to developers.
It is clear, that the permanent loss of this forestland
poses a far greater environmental threat than any forest
management activity ever could. Thank you.
Senator Smith. Thank you very much, ma'am.
Let me again repeat. If you can, to be as brief as
possible, so we cannot get in trouble with the school here.
Yes, sir?
Mr. Gorham. I'm Frank Benny Gorham. I'm a beneficiary of
Broad Acres Trust, land of 500 acres; land that's been in the
family for over 150 years, and I was in forestry 64 years
before they even thought of--before the White National Forest
was created. We are very concerned.
Mother Nature takes more precipitous actions than the
cutting and harvesting of trees. Now, I'm not talking just
about the Ice Storm.
Just last year, last fall, there was a horrendous southwind
that damaged several hundred beautiful trees and blew them over
and uprooted them. And everywhere there's streams, and it's
going to take the dirt and everything from the uprooted trees
and wash it down to someplace, who knows where? And there's
probably going to be a point source pollution done by Mother
Nature.
And the year before that, it was on the northern slope of
Mt. Madison, the wind blew in the opposite direction; blew
trees directly over all of the hiking trails that went across
our land. We cleared those. And am I going to get permission to
clear a tree that Mother Nature blew down? How long is that
going to take? Those kinds of things are what concern us.
One of the things that we are doing is to have a
conservation easement on the land abutting the National Forest
that's in the family land; and, in fact, next Tuesday, the
White--Society of Protection Management Forest people are
coming with us. And I think that when you see the stewardship
of the land that has been in the family this long, and it
doesn't have to have any Federal protection in order to survive
and to be equally good or better than our adjoining White
Mountain National Forest.
And I thank you for giving me the opportunity. I wrote you
a particular story on the stewardship of that land, and I hope
you read it on the way back just for your entertainment. Thank
you.
Senator Smith. Thank you very much.
Yes, sir?
Mr. Akillion. Hi, Senator Smith. I'm Rich Akillion from the
New Hampshire Citizens for a Sound Economy. In the spirit of
your 2-minute rule, I will submit our comments----
Senator Smith. I appreciate that.
Mr. Akillion [continuing]. And I appreciate the opportunity
to submit them by Friday.
Three quick points. First is I, and our members, believe
that EPA has overstepped its authority here. Our Congress makes
laws; and EPA, they help promulgate rules. Their interpretation
of treating some nonpoint sources as a point source, I believe,
is their overstepping of their authority.
Second, the threat of lawsuits is very real to Mr. Mason,
in his comments. I think that's a real-life story and I think
to us as citizens, it could be challenged. I could be wrong,
but I believe our States are open to lawsuits if they do not
enforce TMDLs if they are implemented. That's a cost borne by
all of us.
And finally, on the limits of sound science, I see sound
science as updated and reliable information; and before we
charge it to something, a new foray, if you will, I think the
most reliable information, and the impact to us, and the cost
associated are very important. I thank you for the opportunity
to speak here in New Hampshire. Thank you.
Senator Smith. Thank you, Mr. Akillion.
Yes, sir?
Mr. Bogeu. My name is Doug Bogeu. I'm with Clean Water
Action; and I do want to state again for the record, my
organization was not invited to participate in this hearing,
and neither were many other environmental, public health, and
public interest organizations throughout the State. And we
know, Senator Smith, you have our address, because we attended
your gathering a few weeks ago, and we appreciated that
opportunity. But, you know, frankly, it was difficult to find
out even that this hearing was happening; where it was
happening. We only really found out this past week. And I would
submit that while some of the people here deserve to have their
concerns here, so, too, do the people that live downstream and
people that are effected by the pollution that we're trying to
address with this issue.
I would like to ask or request whether you would hold
another hearing in some other location? You know, hopefully, in
New Hampshire; but, you know, somewhere in New England where
people are being directly affected by the pollution that this--
these rules are meant to address. And really, it plays where a
larger cross-section of the population can reasonably attend.
Not everybody's willing to drive 2 or 3 hours on a Saturday to
be here. So, I would like to make that request. I know it's
difficult to set up these hearings, but we do feel this issue
is so important that it does a greater hearing and more
opportunity for the public to speak out on it. Not to the issue
at hand. I mean this is basically about clean water. The
fundamental issue here is protecting our water, our drinking
water, our other water resources, and those that are needed for
the environment.
And, you know, as Miss Girard tabulated earlier, there have
been numerous deadlines that have been missed. This issue has
been around for a long time.
Senator, you asked earlier, ``What's the urgency?'' Well, I
say, ``Well, for 28 years of inattention to this issue is the
urgency.'' People are dying for clean water. And I don't mean
that just, you know, rhetorically. People are dying because
they are not getting safe drinking water because of
contaminants that are in their water, and a good proportion of
those contaminants are coming from nonpoint source pollution,
not necessarily from silviculture or agriculture, even but from
many different sources, and those do need to be addressed. And
we cannot delay another 5 years, another 10 years and study,
study, study. That's what we've been hearing for 30 years. OK,
this was written into the original law and it needs to be
implemented. You know, this is also not just a State law. This
is not a New England law.
You know, yes, the problem may not be so bad and New
England may be in much better shape in regard to these
pollution problems than other regions; but, again, we should
not be dictating to the rest of the country what they should be
doing about their water problems. It needs to be addressed on
the Federal level.
It's quite clear, the Federal Government has been unwilling
to address it for 30 years now. And some States want to do
more; some of them don't. But they all need to be held to the
same standard. So, we do feel this really needs to go forward.
I would just like to say to the people that have come here
today, I would hope that you, listening to all sorts of things
you heard from all the different panelists and other
commenters, that you would feel some resentment that you've had
to take up a whole afternoon on a beautiful spring Saturday to
address, basically, a nonissue; and nonissue is not the TMDL
rules. It's not how we're going to address getting cleaner
water.
The issue--the nonissue is that this is going to have a
significant effect on your livelihood; and I hope that you've
caught by now that there have been numerous pieces of
misinformation that have been spread by the forest products
industry and others. I picked up this flier, as many of you
have probably seen it, and there's one lie after another; and I
really just have to say that you've got to listen to the facts.
Don't just take their word for it. I know you don't trust the
Government. We don't trust them, either. You know, we've got
plenty of gripes with the EPA and other Federal and State
agencies, but the fact is that this is not as bad as some of
the people have tried to portray it as. And I hope that you're
not willing to be manipulated and duped by all the special
interests people, particularly, multinational corporate
interests that want to see these Federal regulations sunk.
That's what we've been dealing with for 30 years, and you've
got to understand that there's a much bigger issue here, and
there are lots of stakes. So, that's, really, just what I
wanted to say, and thank you for your time.
Senator Smith. Thank you.
Yes, sir?
Mr. Berti. Thank you, Senator. My name is Robert Berti, B-
e-r-t-i. I am a Selectman from the Town of Rumney. I'm a
practicing forester, but I don't want to talk to the issue of
forestry.
I've been a Selectman going on 18 years; and over that
period of time, I've seen the eroding of control at the local
level, from the State and from the Federal; and instead of
government working from the bottom up, we're getting into a
relationship of government from the top down. And I think
that's a very dangerous precedent to be set.
I know it's sort of a boring reading, but I would encourage
every Federal agency and person working in the Federal
Government to read portions of the Federalists Papers, who were
basically written by people who were the Framers of our
Constitution. And very early on, they were concerned about a
very strong Federal Government taking over from what is legally
and rightfully State responsibilities.
And I would just suggest that the issue here isn't nonpoint
or point pollution. It's really the encroachment of vast
bureaucracies, and I'm not a conservative, but I do think that
the Federal Government is encroaching ever so much on our daily
lives in areas they don't have the right and the constitutional
right to do that.
And Senator Smith very, very early on today made a point of
the King's Pine, and the King's Spruce, and also, the King's
Oak. I just hope we don't become where it's the EPA's Maples,
and Birches, and Pines.
Senator Smith. Thank you very much.
Yes, sir?
Mr. Saird. Thank you, Senator. My name is Bill Saird and
I'm chairman of the First Policy Address Force for the
Associated Industry of Vermont, and it's good to see you again.
Senator Smith. Nice to see you.
Mr. Saird. In contrast to the earlier speaker, I want to
clarify the record here that this has been an open hearing; and
anybody who's attended has had the opportunity to speak.
Senator Smith. Well, I'll just say to the gentleman who
said that had two opportunities to speak.
Mr. Saird. That's true.
I would further add that it is a shame that we had to take
this afternoon to take up a subject that shouldn't have come up
at all. It really has been well established, I think on all
sides, that this is a solution looking for a problem. But I
would submit, it's a solution in the form of a sledgehammer
trying to pound in a thumbnail. And in so doing, it's
destroying the furniture that's being held together by that
thumbnail.
The people who have created this environment, it is so
evident by so many, are decent, hardworking, private property
owners, Americans. And if this was so much in jeopardy, why are
people so afraid that something's going to happen to it? Why
are people so afraid? Why do people on one hand compliment all
the wildlife, habitat that's been created, the recreational
beauty and scenic beauty; and on the other hand, not trust the
people who have done the job in creating it? I think, that is
what I think is at issue today.
The point has been made earlier that implicit in this
regulation is the assumption and the message that the people in
the local governments and the State governments can't be
trusted to take care of their own environments. And also admit
to you that nobody cares more about the environment than the
people who live in the local areas, who earn their living here,
and who will provide their local government. And they certainly
have more common sense, and more flexibility, and more capacity
to manage that environment well than anybody from Washington.
Now, what do I mean when I say who can I trust from our
Federal Government? Well, we have heard today the very careful
use of language. You heard the EPA say, ``Well, we have no
intention of regulating nonpoint sources,'' but they forgot to
say that they're going to call parts of agriculture and parts
of forestry point sources. That trend will increase.
Now, who should be distrusting or mistrusting whom? There's
three examples that we have to go by in Vermont of where we can
decide who deserves the trust and who doesn't.
Our National Forest had built into the original law the
provision that any local Select Board had to approve an
acquisition before that acquisition could go through by the
National Forest. After 70 years, that was just thrown out the
window by the National Forest.
When the Silvio Conte Refuge was being created, we were
assured over and over again, verbally, just like we were
assured verbally today, that that would not be a land
acquisition program. And yet, last year, 28,000 acres were
purchased by the Federal Government.
Now, the Wetland rules are an even better example, because
that's an EPA-administered program. We were assured in Vermont
that that would be State-run, State-governed, and the EPA would
basically stay out of it. But what really happened after a
period of time, when the State did not do what the EPA wanted,
the EPA made it very clear that if they did not conform, if
they did not bend to the will of the EPA, the EPA was going to
take over the program. And that's what's going to happen in
this program.
Now, they may try and back people up by saying nothing's
going to happen for 5 years. But, eventually, the time will
come where the EPA will govern forestry in our Nation if we
allow this rule to go through.
Now, the wording is: You have nothing to worry about, as
long as you've got an improved plan. You have nothing to worry
about, as long as you have an effective plan. Well, who's going
to decide whether it's effective or approved? It's going to be
the Federal Government.
And so, when those definitions change and they make it so
that the State plan is not effective by their terms or not
approved by their terms, then you will have to have Federal
permits. And these are just some of the reasons why I think we
need to oppose this rule.
Frankly, you've asked a couple of questions over and over
again: Why is it that this rule is being proposed when nobody
says it's necessary? It's because the command-and-control
mentality can't stand the idea that a free person somewhere,
someplace, is making a decision without Federal permits.
And why the rush? Why do you need it done so quickly?
Because they want to get the rule in place before the Clinton/
Gore administration comes to an end.
I hope you'll do everything in your power to stop this
awful rule from being imposed, so that the people, who have
created this beautiful place and worked so hard to do so, can
remain strong, free, self-reliant, and independent. Thank you
very much.
[Applause.]
Senator Smith. Yes, sir?
Mr. Brusick. Thank you, Senator, for the opportunity. My
name is Brendan Brusick, and I live in Columbia, NH on Simms
Stream; and I'm one of the people that live downstream, and I'm
here to tell you only the facts.
I live in the base of Simms Stream just before it enters
the big Connecticut River. The watersheds have been heavily
logged for hundreds of years. Some of this, in recent years,
it's been done by some of the so-called bad actors. I live
there; I swim there; I fish there; and I hunt there; and I
drink the water in this watershed, and so does my family.
Simms Stream is beautiful. It's crystal clear and it's due
to the work that the State agencies have done to enforce the
laws and keep that water clear. We don't need any TMDL to tell
us how to keep that water clean. Thank you.
Senator Smith. Thank you very much.
[Applause.]
Senator Smith. OK, last question.
Mr. Thomson. Senator Smith, I have a question for Chuck
Fox, but I'm going to mail that to him as long as the hearing
will be open until next Friday; is that correct?
Senator Smith. Yes, we'll keep it open for comments.
Mr. Thomson. Just one personal comment I'd like to make for
myself and our families, but also, for the national tree
farmers. I'd like to thank you for having this field hearing
and the good work that you do, and I thank you.
Senator Smith. Let me also thank our sound man over there,
Bob Molloy. Every microphone worked, and that doesn't happen
very often in appearances around the country, Bob; so, thank
you very much for your patience. And I know we went a lot
longer than we were supposed to and I appreciate it.
And, Janet Grant, thank you. That's a tough job that you
have to get all this stuff down. I don't know how you do it,
but thank you.
Let me also say to the brave souls that have stayed to the
end, thank you very much for your patience and we appreciate
it.
As you know, the EPA has said that they would finalize the
rule by June 30; and assuming that if they do that, unless some
intervening action is taken one way or the other, or modified,
that will happen, I would assume, on June 30.
There are some other proposals out there, other than the
legislation that I've introduced, but we're going to be working
on this thing all the way through until June 30 to see if we
can come up with some other resolution, not necessarily my
specific legislation, but just something that, perhaps, works a
little better, and we'll try--I can't make commitments I can't
keep, but we'll see what happens.
But let me also thank all of the panelists who were here
today for being here. It was a wonderful opportunity for me to
hear from everyone, and with a lot of different views, and I'm
grateful.
As somebody said earlier, we ought to have more hearings
out in the field, and I agree with that. We can get a lot more
information from real people that way, I think.
So, thank you very much again; and, at this point, the
hearing is adjourned.
[Applause.]
[Whereupon, at 5:43 p.m., the committee was adjourned, to
reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Hon. Bob Smith, U.S. Senator from the State of
New Hampshire
Good Morning. It is a pleasure and very appropriate that we are
here today in the beautiful White Mountains of New Hampshire to discuss
the environment. The 780,000 acres of the White Mountains and the
extensive private forests around it are home to hundreds of miles of
pristine waters. In fact, water covers 115,000 acres in New Hampshire,
everything from small ponds to Lake Winnipesaukee, which is twenty-two
miles long and eight miles wide. Each year, over a million summer
visitors, come to New Hampshire to enjoy our mountains, lakes and
seashore scenery. The forests of pine, spruce and hard wood add beauty
to the landscape and wealth to the land.
Much of this area has historical significance, such as the
Connecticut River, were ``white-water men'' risked their lives to
convey lumber logs from the northern region to the manufacturing
centers. The 2,155-mile long Appalachian trail, which stretches along
the Appalachian Mountain chain from Georgia to Maine, winds through the
heart of the White Mountains and traverses many of New Hampshire's
highest mountains. As a Senator of New Hampshire and Chairman of the
Environment and Public Works Committee, it is my privilege to protect
these resources not only for us here today but for generations to come.
The residents of New Hampshire can be proud of what our timber
companies, tree farmers, and farmers are doing today to preserve our
natural resources for future generations. They are good stewards of the
land.
I could go on forever about the vast resources and people of New
Hampshire, but that's not what all of you are here today to hear. The
purpose of this hearing is to further examine the Environmental
Protection Agency's proposed rule on Total Maximum Daily Loads (TMDLs).
Since EPA released this proposed rule last August, I have spent
considerable time talking with New Hampshire stakeholders, Senators,
and State and local officials across the country, as well as many of
you who attended the recent University of New Hampshire environmental
symposium, about the impacts this rule would have if it were finalized.
A common question is always asked of me: Why is EPA pushing this very
controversial rule through the process so quickly? Unfortunately, I do
not have the answer to that question; and that makes my job very
difficult. I hope that Assistant Administrator Chuck Fox, who will be
testifying this afternoon, will be able to provide an answer.
EPA's obvious desire to rush to judgment on this rule is especially
frustrating when you consider that Administrator Browner has admitted
that EPA failed in drafting a clear rule; Mr. Fox himself has suggested
that substantial changes to the rule will be necessary in a letter to
me; and almost every industry has expressed strong concerns about this
rule. Notwithstanding all of that, EPA is rushing to finalize this
rule. It is clear to me that it would be far more appropriate for EPA
to slow the process down and perhaps reissue a newly drafted proposed
rule so to provide all stakeholders an opportunity to comment, not just
those that are represented by lobbyists in Washington, D.C. EPA should
listen to all of those concerns and take a ``time out.''
While I may not understand the thought process at EPA, I do know
that the silviculture industry of this State should be commended for
their stewardship and work to protect the environment. Even the EPA
acknowledges this: Mr. Manfredonia of Region I EPA stated that
``silviculture and forestry operations are not, to the best of his
knowledge and data, an issue for water quality.''
Yet we are faced with a proposed rulemaking that could have a
dramatic impact on the people who depend on the land and water for
their livelihoods, regulating them for the first time under the Federal
permit program of the Clean Water Act. This rule would not only impact
large industries, but it could also have a dramatic impact on small
family forestry and agriculture operations, where the margins are so
thin, the survival of these businesses could be in jeopardy. It would
impact people like Tom Thomson, a small family tree farmer that was
named the 1997 Outstanding Northeastern tree farmer of the year. Tom
has fought through the adversity of the ice storm to continue a family
business. We should be proud of his stewardship and conservation of
open space and not allow Federal permitting of his land. What have
people like Tom Thomson done to their land that would lead EPA to
believe they ought to have a permit to cut down a tree?
The EPA claims the States will be implementing this program. But in
New Hampshire we do not have delegated authority to issue permits. So
we fall into that category EPA claims is a ``rare'' situation, with EPA
responsible for issuing the permits in New Hampshire.
In order to address the many concerns I have heard on the
implementation of the existing regulations and the concerns with the
proposed rule, I have introduced along with Senator Crapo and 16 other
co-sponsors, S. 2417 the ``Water Pollution Program Enhancement Act of
2000.''
The purpose of this legislation is to take care of three concerns
that have been outlined in the hearings we have held over the last 2
months, as well as comments made at the New Hampshire environmental
symposium a few weeks ago.
First, the States are in great need of increased funding to
implement nonpoint source programs, conduct monitoring to develop
scientifically based water quality programs, issue permits and list
waters under existing requirements.
Second, there are a lot of unanswered questions about the costs and
scientific basis underlying the implementation of TMDLS, as well as a
host of alternative programs or mechanisms that exist at the State
level that may be more effective to accomplish the same goals of the
TMDL program. These questions need to be answered before we mandate
more requirements on the States and private sector. This legislation
directs the National Academy of Science (NAS) to answer these
questions.
Third, we need to take a time out, analyze these unanswered
questions, continue to learn from the existing TMDL regulatory program,
and then reissue the proposed TMDL rulemaking, taking into account the
NAS study.
The environment of this great State and the Country is very
important to me, but so is sound science. I look forward to listening
and learning from all of you today who have to work within this
regulatory program for years to come. Thank you.
__________
Statement of Harry T. Stewart, P.E., Director, Water Division, New
Hampshire Department of Environmental Services
Mr. Chairman, members of the committee, I am Harry Stewart,
Director of the Water Division, New Hampshire Department of
Environmental Services.
Thank you for the opportunity to testify before the Senate
Committee on Environment and Public Works on the United States
Environmental Protection Agency's Proposed TMDL regulations.
The New Hampshire Department of Environmental Services (NHDES) and
other State environmental agencies across the country were highly
critical of the Environmental Protection Agency's proposed TMDL
regulations dated August 23, 1999. The regulated community and the
public were also highly critical, as demonstrated by the approximately
30,000 comments received by EPA on the proposed rule. NHDES viewed
these proposed regulations as being too burdensome on both the State
environmental agencies and the regulated community, and as too
prescriptive, removing the flexibility of States to tailor programs to
State-specific priorities and needs. Specific comments were contained
in our letter dated January 20, 2000 to EPA. We also supported, and
participated in the development of, the extensive comments to EPA by
the New England Interstate Water Pollution Control Commission (NEIWPCC)
and the Association of State and Interstate Water Pollution Control
Administrators (ASWIPCA).
Chuck Fox, Assistant Administrator for Water at EPA, should be
commended for his efforts to be responsive to these concerns. In
letters dated April 5, 2000 to key senators and Congressmen, including
Senator Smith, and the ``Joint Statement of the Department of
Agriculture and the Environmental Protection Agency Addressing
Agricultural and Silvicultural Issues Within EPA Revisions to TMDL and
NPDES Rules'' dated May 1, 2000, Assistant Administrator Fox has
indicated that numerous changes in the proposed rule which will address
a high percentage of the issues raised by States and other parties.
For example, the April 5, 2000 letter included a table, ``Key
Elements of the Expected Final Regulation for Restoring America's
Polluted Waters''. These proposed revisions go a long way to address
the concerns of the States by providing greater flexibility to tailor
TMDL approaches to State-specific needs. Specifically:
Four years are provided for States to develop lists of
polluted waters rather than 2 years. Although we would prefer, and the
States recommended, a 5-year cycle, a 4-year cycle is a significant
improvement and is reasonable. This means we can focus our limited
resources on activities to improve water quality, rather than
developing lists.
States are provided more flexibility, such as allowing 15
years for TMDL development for impaired waters, than in the original
proposal.
``Threatened-waters'' was dropped as a category. This was
an ambiguous category which we believe would have increased the listed
waters with no environmental or program benefit.
A proposed public petition process was dropped,
eliminating a procedure by which citizens could potentially have
bypassed State processes and unnecessarily drain State resources to
deal with these petitions.
The requirement for pollution offsets was eliminated. This
also would have been a very difficult program for the States to
implement.
The Statement of May 1, 2000 from DOA and EPA in part states: ``In
States that develop and maintain forestry BMP programs that are
recognized by EPA as adequate (i.e., generally consistent win this
guidance) will have no exposure to NPDES permit requirements. . . . The
idea is that forest operators in States with approved programs will
know what is expected of them, what BMPs are effective in reducing
pollution and need to be implemented.'' This indicates a very positive
step to address the forestry concerns and suggests an approach that is
likely to work in New Hampshire. Under any reasonable criteria, New
Hampshire has an ``adequate'' program in place which includes three
critical elements:
Implementation of best management practices. It is
important to note that a manual has been developed by the New Hampshire
Department of Resources and Economic Development (NHDRED), in
cooperation with NHDES and the University of New Hampshire, entitled
``Best Management Practices for Erosion Control and Timber Harvesting
Operations in New Hampshire'' dated February 2000. As other States seek
to implement BMPs, this manual is likely to become a model document, at
the national level, for concisely providing practical information on
BMPs on timber harvesting to operators and the public.
Training and outreach. NHDES, NHDRED-Division of Forests
and Lands, and nonprofit organizations like the New Hampshire
Timberland Owners Association and the Society for the Protection of New
Hampshire Forests jointly provide training on an ongoing basis on BMP
implementation and over environmental protection considerations.
Compliance and enforcement. In New Hampshire, when water
quality problems caused by forestry operations are identified, they are
typically short term and are corrected through the joint efforts of
NHDRED and NHDES. These efforts virtually always first include
compliance assistance and, when necessary, enforcement wader State
statutory authorities. In fact, we expect that site-specific water
quality problems would virtually always be addressed under State
programs long before they rise to the threshold for Federal
involvement, such as long-term water quality impairment.
Although we are pleased that EPA has been very responsive to the
concerns
expressed by the States and other parties, we have not yet had an
opportunity to examine the actual wording of proposed revisions address
these concerns. Consequently, we urge EPA to publish the actual
language of proposed changes for public review as soon as possible,
especially for the forestry provisions, to allow evaluation and comment
on the changes prior to final promulgation. This approach is
appropriate considering the magnitude of the TEAL comments and expected
changes.
Finally, please note that, as in most other States, New Hampshire's
TMDL program is significantly underfunded. Additional Federal funding
to support State development of TMDLs is needed, irrespective of the
results of the EPA rulemaking.
Additional funding is proposed in both Senate Bill 2411 and the
President's proposed budget. The President's budget contains $45
million for Federal Fiscal Year 2001, which translates into just over
$200,000 for New Hampshire to assist with TMDL development. We have
several concerns with the proposed funding in the President's budget:
This additional funding is a good start but is not
adequate to sustain an effective long-term TMDL program in New
Hampshire. NHDES has estimated that an additional $420,000 per year for
staffing and analytical costs is necessary for New Hampshire to support
the TMDL program. The President's proposed budget contains half of this
amount.
Due to the way a new EPA Formula for the Section 106
moneys work, if the appropriation were to increase by $5 million to $50
million, ALL of the extra funds would go to New Hampshire, Vermont, and
a number of other smaller States--the larger States have already gotten
their share. To illustrate, with an increase of $5 million, New
Hampshire would receive about an additional $110,000, Vermont an
additional $175,000 and Rhode Island an additional $320,000 for a 50
percent increase in 106 funds to these States. Due to the way EPA's new
106 formula works, at $45 million, the larger States will have already
gotten increases to 50 percent and will receive no more additional
funds until the smaller States have ``caught up''.
Under the President's fiscal year 2001 budget proposal, the State
match requirements for the proposed new TMDL funding are too rigid to
enable New Hampshire to access all of this money. Based on EPA draft
guidance, these ``strings'' include:
(1) A 60/40 split between Federal and State costs for the ``new''
Section 106 money (that is, 3 ``Federal'' dollars for every 2 ``State''
dollars). This is an extraordinary match requirement that we believe
should be reduced to a 90/10 split between Federal and State dollars.
(2) An extremely narrow definition of ``State match'', relative to
traditional practices, is proposed. New Hampshire currently faces
significant State budget shortfalls caused by problems with education
funding. Consequently, the potential for ``new'' State money to expand
the TMDL program is virtually nonexistent during this period. We need
flexibility consistent with current practice.
These proposed requirements should be changed if the goal is to
have these funds rapidly and effectively utilized by all States, not
just those with surplus State funds available to meet rigid match
requirements.
We urge you to provide additional funding for water quality
analysis and TMDL development with minimum match requirements and
maximum flexibility on how the Federal funds may be matched. This is
the only way to ensure that the funds will be fully utilized by all
States to make significant progress toward the goals of the Clean Water
Act.
Thank you for the opportunity to testify on the proposed TMDL
regulation. We look forward to working with Congress and the EPA to
ensure that our nations' waters are protected and improved while
ensuring that our forest products industry and other traditional
activities can continue to flourish in an appropriate and responsible
way.
__________
Statement of Philip A. Bryce, Director, New Hampshire Division of
Forests & Lands
Thank you for the opportunity to testify regarding the
Environmental Protection Agency's (EPA) proposed Total Maximum Daily
Load (TMDL) rule and the National Pollutant Discharge Elimination
(NPDES) Permit System.
The mission of my agency is to protect and promote the values
provided by trees and forests. Forests and Lands is responsible by
statute for ``all matters pertaining to forestry, forest management,
and forestlands within the jurisdiction of the State.'' This includes
acquisition and management of State-owned forestlands, forest fire
protection, insect and disease control, the State forest nursery, the
natural heritage inventory program, natural resource education and
forest policy.
The Division of Forests and Lands is also the primary State agency
responsible for the enforcement of forestry laws, including, in
cooperation with the NH Department of Environmental Services, those
protecting water quality. Law enforcement officers from my agency
conduct onsite inspections of logging operations to ensure compliance
with water quality and other timber harvesting laws.
The State also provides training in compliance with forestry laws
and implementation of Best Management Practices through the
Professional Logger Program. Recommended timber harvesting practices
for controlling soil erosion have been around in New Hampshire for at
least 20 years. Implementation of these practices has been a critical
component in reducing the impacts of logging on water quality.
As a State forester, I am strongly opposed to the proposed rules on
three major grounds:
1. The proposal is a major departure from the historical
interpretation and implementation of the Clean Water Act, and is not
supported by statutory authority.
2. The proposal ignores the relatively minor contribution made by
forest management to water quality problems nationwide, and threatens
to disrupt the effective approach taken by the State Foresters and our
Federal partners to achieve these results.
3. The proposal will be extraordinarily difficult to implement in
practice and will result in drastically higher costs for both States
that must develop TMDL's and the landowners and operators who might
become subject to NPDES permitting requirements.
As stated earlier this year in my comments to the EPA, the proposed
rules will do little, if anything, to improve water quality in the
State of New Hampshire. It is a poor allocation of collective public
and private resources to protect the environment. It is our experience
that those few individuals who have little regard for the law will
ignore any new permitting process. For the rest, a permitting process
will divert energy away from other efforts that have a proven track
record of success in protecting the environment, particularly the
implementation of BMP's.
New Hampshire has a long and proud tradition of protecting personal
and property rights while working collaboratively to resolve public
issues and problems. I have characterized this as a balanced and
collective form of forestry leadership. The top down approach
promulgated by EPA is a threat to maintaining that spirit of
collaboration between the private and public sector that has worked so
well here in New Hampshire to address natural resource challenges.
An outstanding example of that spirit is Good Forestry in the
Granite State. Not only does it have a chapter on water quality, but it
incorporates a complete copy of the State's BMP's recognizing even
further the importance we place in New Hampshire on protecting our
water resources.
As we work to address environmental protection and forest
stewardship through constructive dialog, a broad spectrum of interests,
from representatives of the forest products industry to the staunchest
critics of that industry, have identified more than once, the need for
additional education, monitoring, and enforcement of existing laws.
For example, the legislatively mandated New Hampshire Forest
Resources Plan recommends that we develop and implement forest
practices regulations under the following guidelines: scientific
information shows a clear need; voluntary measures are in place;
education and incentives have not changed behavior; and monitoring
shows that current practices are not sustainable.
The Plan also recommends that the State ``Provide consistent, swift
and equitable enforcement of forestry laws'' and that we ``Secure
funding for five additional (Forest) Ranger positions.''
In addition, the final report of the Forest Liquidation Study
Committee to the State's Forest Advisory Board concluded that, with
respect to improving forest practices, we need increased efforts to
educate individuals about sound forest management, better data
gathering on the level and harvesting activity within the State, and
enhanced enforcement of existing laws. What we really need are the
resources to carry out these recommendations.
I recognize that the EPA has been working to address issues
surrounding the proposed rules. There remains a great deal of
uncertainty as to the degree to which the EPA is responding to these
issues. Questions remain:
1. Do these rules lead to the improvement of water quality beyond
the capability of existing State laws?
2. Is EPA considering forestry and silviculture as a non-point
pollution source or not? This is the critical question.
3. Under what specific circumstances will EPA issue a clean water
permit or require the States to do so?
4. What is the relationship between existing BMP's under the 319
program and BMP's recognized under the new rule. If the 319 BMP's are
not acceptable, what are the new criteria?
5. Regardless of current policies or the intent of EPA, what is the
actual impact on landowners and forestry activities if there is full
enforcement of the proposed rules?
6. To what extent will additional regulation drive landowners to
convert land to non forestry uses?
In summary, while we look forward to working with EPA to protect
water quality, the proposed rule is misguided. Even with recent changes
in policy, it creates ominous and uncertain Federal regulation over
silviculture and forest management. I am concerned that it also opens
the door for abuse by those who do not support active management and
stewardship of our natural resources.
Our collective efforts on behalf of the public should focus not on
additional permitting and a shift to Federal control, but on
monitoring, education and additional support to the States to enforce
existing laws.
Thank you for the opportunity to provide this testimony.
__________
State of New Hampshire,
Department of Resources and Economic Development,
Concord, NH, May 4, 2000.
Hon. Bob Smith,
U.S. Senate,
Washington, DC.
Dear Senator Smith: I am writing to express my dismay about the
proposed Environmental Protection Agency rule revision that would
change forestry from a nonpoint source to a point source, thereby
requiring a Federal permit to execute standard timber management
practices.
My primary objection is that many States, including New Hampshire,
already have programs in place to ensure protection of clean water. The
Division of Forests and Lands, one of four divisions within the
Department of Resources and Economic Development, is the State
government agency responsible for the enforcement of forestry laws,
including those laws protecting water quality. The division's law
enforcement staff inspects logging operations in the State to ensure
compliance with these laws. In addition, our forest rangers promote
educational programs, such as those offered through certified logger
programs, to encourage awareness of and compliance with environmental
protection regulations.
I firmly believe that our efforts should be aimed at monitoring,
education and, when necessary, enforcement of existing laws. These
current practices are infinitely preferable to implementing additional
Federal regulations. Realistically, the new permitting processes will
be ignored by those individuals who have little or no regard for the
law and will place an untrue burden on law-abiding woodland owners both
in the Granite State and nationwide.
I regret that I am unable to attend your May 6 field hearing, but I
hope you will take my concerns into consideration as the U.S. Senate's
Environment and Public Works Committee reviews the proposed EPA rule
change.
Thank you for your support.
Sincerely,
George M. Bald,
Commissioner.
__________
Statement of J. Charles Fox, Assistant Administrator for Water,
Environmental Protection Agency
introduction
Good afternoon Mr. Chairman. I am Chuck Fox, Assistant
Administrator for Water at the Environmental Protection Agency (EPA). I
appreciate the opportunity to testify before this committee on the work
we are doing--in cooperation with other Federal agencies, States, and
local communities--to identify polluted waters around the country and
restore their health.
My testimony to your committee in February described in some detail
the key elements of the Clean Water Act program for restoring polluted
waters--generally known as the ``Total Maximum Daily Load'' or TMDL
program. It described the over 20,000 waterbodies identified by States
as polluted in 1998. It also described our effort, begun almost 3 years
ago, to work with a diverse Federal Advisory Committee to review the
TMDL program and identify needed improvements in existing regulations.
And, my earlier testimony described the changes to the current TMDL
regulations that EPA proposed in August of last year.
Rather than review these topics again today, I would like to focus
on work we have done since February with a range of interested parties
to discuss the important issues raised in the proposed regulations.
As a result of these discussions, I am confident that we can
develop a final regulation that addresses many of the suggestions we
have heard while still providing for a strong, common-sense program--
led by the States and local communities--to identify and restore the
Nation's polluted waters.
I will also review some recent developments related to the TMDL
program. For example, a Federal court in California recently confirmed
the EPA's long-standing view that the Clean Water Act calls for
polluted runoff from nonpoint sources to be accounted for in the
identification of polluted waters and in the development of TMDLs.
Finally, Mr. Chairman, I will describe the Administration's strong
opposition to the legislation (S. 2417) you recently introduced with
Senator Crapo calling for a delay of several years in finalizing
revisions to the TMDL program regulations.
consultation with parties interested in tmdls
Over the past several months, EPA has worked closely with many
groups and organizations interested in the TMDL program and in the
proposed revisions to the current TMDL regulations. We have also made a
special effort to review the many public comments we received on the
proposed regulations.
Consultation with States
As I indicated in my testimony in February, the Clean Water Act
provides that States have the lead in the identifying polluted waters
and developing TMDLs.
It is critical that States stay in this leadership role and that
they are partners in developing and implementing the program for
restoring polluted waters described in our final regulations.
In developing the proposed revisions to the TMDL regulations, we
worked closely with State officials, including a group set up by the
Association of State and Interstate Water Pollution Control
Administrators (ASIWPCA) and the Environmental Council of the States
(ECOS). In addition, four senior State officials were members of the
Federal Advisory Committee on the TMDL program.
Consultation with the U.S. Department of Agriculture
For the past several years, EPA and the United States Department of
Agriculture (USDA) have worked in close cooperation to design and
implement programs to protect water quality.
EPA and USDA worked together in developing the Clean Water Action
Plan several years ago, developed the EPA/USDA Animal Feeding Operation
Strategy issued last year, and worked with other agencies to draft the
Unified Federal Policy for management of water quality on a watershed
basis proposed earlier this year.
When the proposed TMDL rule was published last August, concerns
were raised in comments by the USDA. In response to these concerns, I
met with Under Secretary for Natural Resources and the Environment,
James Lyons, and we established a joint EPA/USDA workgroup to review
concerns of USDA with the TMDL proposal.
The USDA/EPA workgroup has been meeting on a regular basis over the
past 3 months and these meetings have involved several dozen staff from
different parts of both agencies. These intensive discussions have
helped both agencies think through how our programs can best be
coordinated.
EPA and USDA recently released a Joint Statement describing areas
of agreement on the TMDL rule. Mr. Chairman, I ask that a copy of the
joint Statement be included in the record.
Some of the key elements of this Joint Statement describe changes
EPA expects to include in the final TMDL rule on topics of interest to
the USDA. For example, the Joint Statement outlines how EPA and USDA
propose to address the problem of restoring polluted waters that are
impaired as a result of forestry operations. The USDA/EPA forestry
proposal is discussed in more detail later in my testimony.
In addition, the Joint Statement addresses the treatment of diffuse
runoff in our August TMDL proposal. EPA remains committed to voluntary
and financial incentive approaches to reduce runoff from diffuse
sources of pollution where there is reasonable assurance that these
controls will be implemented. The proposed rule would not require Clean
Water Act permits for runoff from these sources.
The President's fiscal year 2001 Budget backs up this commitment to
voluntary and incentive-based programs with proposals that State grants
for polluted runoff programs be increased from $200 to $250 million and
that funding for conservation assistance programs at the US Department
of Agriculture be increased by $1.3 billion. The benefits that result
from these and other assistance programs will be given due credit in
the TMDL process.
Since the majority of polluted waters are polluted in whole or in
part by runoff from diffuse sources, a management framework that does
not address them cannot succeed in meeting our clean water goals. As I
discuss in more detail later in this testimony, this view was recently
endorsed by a Federal court in California.
Review of Comments on the Proposed Regulations
I want to assure the committee that EPA is fully, and carefully,
reviewing the public comments on the proposed regulations.
The Agency received over 34,000 comments on the proposed TMDL
regulation. The comments fall into three general groups:
We received some 30,546 postcards addressing control of
water pollution from forestry operations. Many of these comments are
virtually identical.
We received 2,747 comments from diverse individuals and
organizations expressing a view on one or two elements of the proposal.
We received 781 comments from groups or individuals
expressing comments on multiple parts of the proposal.
The Administrator and I view each and every comment as important.
In anticipation of extensive comment, EPA began working to organize and
evaluate comments received even before the close of the comment period.
Since the comment period closed, we have reassigned staff as needed to
review and summarize comments.
This is an important effort begun over 3 years ago with the
convening of a Federal Advisory Committee. EPA has made every effort to
assure a full and careful review of public comments. If anything, the
high level of interest in the regulation has given us an extra measure
of determination to assure that the final TMDL rule is based on a
careful consideration of the record.
expected changes to proposed tmdl regulations
I want to outline our current thoughts on how to change the
proposed revisions to the TMDL regulations and proceed with the
important work of restoring America's polluted waters.
Delivering the Promise of the 1972 Clean Water Act
The final rule will provide a common-sense, cost-effective
framework for making decisions on how to restore polluted waters. EPA
expects that the final rule will:
Tell the Full Story.--Provide for a comprehensive listing
of all the Nation's polluted waters;
Meet Clean Water Goals.--Identify pollution reduction
needed to meet the clean water goals established by States in water
quality standards;
Encourage Cost-Effective Clean-Up.--Assure that all
sources of pollution to a waterbody are considered in the development
of plans to restore the waterbody;
Rely on Local Communities.--Foster local level, community
involvement in making decisions about how best to meet clean water
goals;
Foster On-the-Ground Action.--Call for an implementation
plan that identifies specific pollution controls for the waterbody that
will attain clean water goals;
Commit to Environmental Results.--Require a ``reasonable
assurance'' that the needed pollution reductions will be implemented;
and
Assure a Strong Program Nationwide.--EPA will establish
lists of polluted waters and TMDLs where a State fails to do so.
Enhancing State Flexibility in Managing Polluted Waters
States will have the lead to identify and clean up polluted waters
through the TMDL program. The final regulation will expand the
flexibility that States have to tailor programs to the specific needs
and conditions that they face. EPA expects that the final rule will:
Give States More Time.--Allow States 4 years to develop
lists of polluted waters, rather than 2 years as under current
regulations;
Give States More Time.--Allow States to develop TMDLs over
a period of up to 15 years, rather the 8-13 year timeframe of the
current program;
Tailor to Local Conditions.--Tailor implementation plan
requirements and add flexibility to account for different types of
sources causing the water quality problem; and
Endorse Voluntary Programs.--Give full credit to voluntary
or incentive-based programs for reducing polluted runoff through
diverse control measures, including best management practices (BMPs).
Streamlining the Regulatory Framework
In response to comments from many interested parties, the final
rule will be streamlined and focused on what is needed for effective
TMDL programs. EPA expects that the final rule will:
Drop Threatened Waters.--Drop the requirement that
polluted water lists include ``threatened'' waters expected to become
polluted in the future;
Allow More Flexibility in Setting Priorities.--Drop the
proposed requirement that States give top priority to addressing
polluted waters that are a source of drinking water or that support
endangered species;
Drop Petition Process.--Drop the proposal to provide a
public petition process for review of lists of impaired waters or TMDL
program implementation;
Drop Requirements for Offsets of New Pollution.--Drop
proposals to require offsets before new pollution can be discharged to
polluted waters prior to the development of a TMDL; and
Phase-In Implementation.--New requirements for polluted
waters lists become effective in 2002 and new requirements for TMDLs
will be phased in over an 18-month period.
USDA/EPA Forestry Approach
In finding a common view of the best approach to reducing forestry
impacts on water quality, EPA and USDA agreed that a number of States
are doing an outstanding job of managing forest operations and
preventing water pollution. We want to recognize and rely on these
strong State programs to both prevent water pollution and to fix those
pollution problems that do occur.
Not all States, however, currently have strong forest management
programs. Many of these States are working hard to upgrade programs
over the next several years. These efforts need to be encouraged and
supported.
Finally, some State forestry programs may not be adequate to
prevent water pollution problems for the foreseeable future. In
situations where States choose not to develop approvable programs
within 5 years, EPA and USDA recognize the need to have a ``safety
net'' for water quality. The safety net that we envision is to empower
State environmental agencies to issue Clean Water Act permits for
discharges of stormwater from forestry operations, in very limited
circumstances.
Let me be clear that, under our approach, no Clean Water Act
permits would be issued for at least 5 years from the date of the final
TOOL rule. And, no permits would be issued in States that now have, or
that develop, adequate forest water quality programs. The final rule
will describe basic criteria of adequate programs, including
appropriate best management practices identified in consultation wash
USDA.
Where a State has not developed a strong forest water quality
program after 5 years, forestry operations might be asked to have a
permit, but only if:
the forestry operation resulted in a ``discharge'' from a
point source (diffuse runoff from a silviculture operation will not be
subject to a permit under any circumstances);
the operation contributes to a violation of a State water
quality standard or is a significant contributor of pollutants to
waters; and
the State Clean Water Act permit authority determined that
a permit, as opposed to a voluntary or incentive-based program, was
needed to assure that pollution controls would be implemented.
EPA may also designate forestry operations as needing a permit, but
our ability to do so is even more limited than that of the State. In
addition to meeting the conditions mentioned above, the EPA would need
to be establishing a TMDL where a State did not do so.
EPA agrees that, where a State finds that a permit is needed, best
management practices, rather than numeric effluent limits, are
appropriate as permit conditions.
In addition, because States have the discretion to issue permits,
forest operators that have not been told by the permit authority that
they need a permit will not be subject to government or citizen
enforcement for failure to have a permit.
IMPORTANT RECENT DEVELOPMENTS RELATING TO TMDLS
I want to briefly review some recent, important developments
related to the TMDL program.
Reducing Workload and Assuring Adequate Resources
State officials have expressed concern over the workload and costs
of the TMDL program. EPA is making every effort to respond to this
concern. Last month, EPA issued a regulation eliminating the
requirement that States submit lists of polluted waters this year; new
lists will not be due until 2002. The decision to eliminate the 2000
listing process has saved States and others hours of work and has
allowed us all to concentrate on the important job of developing TMDLs
for the over 20,000 waterbodies already identified as polluted.
States are also concerned about the costs of administering the TMDL
program. The annual appropriation available to States to administer and
directly implement TMDLs and the clean water program has steadily
increased from $131 million in 1993 to a proposed $410 million in the
Administration's proposed 2001 budget.
The President's fiscal year 2001 Budget increases State grant
funding for TMDLs by $45 million in fiscal year 2001 alone. When States
match this new funding, about $70 million in new funding will be
available for implementing the TMDL program.
In addition, EPA has provided States with the discretion to use up
to 20 percent of funding under section 319 to develop TMDLs and for
related work. The President's request for 319 funding in fiscal year
2001 is $250 million and thus provides up to $50 million in additional
TMDL funding.
And, EPA expects that the final rule will support more cost-
effective development of TMDLs by specifically encouraging States to
develop TMDLs for groups of polluted waterbodies on a watershed scale.
EPA has worked with States to develop detailed assessments of the
costs of key elements of the clean water program. Based on this
analysis, and in consultation with the Office of Management and Budget,
EPA projects that the funding proposed in the President's budget would
be sufficient for States to administer the TMDL program in 2001 under
the final TMDL regulations expected to be promulgated this summer.
Garcia River Decision
A Federal court in California, reviewing a challenge to a TMDL
developed for the Garcia River, concluded last month that the Clean
Water Act authorizes EPA to establish TMDLs for waters ``polluted only
by logging and agricultural runoff and/or other nonpoint sources rather
than by any municipal sewer and/or industrial point sources.''
The court noted that the Supreme Court has consistently referred to
the Clean Water Act as establishing a ``comprehensive and all-
compassing'' program of water pollution regulation. The court found
that the logic of section 303(d) required that listing and TMDLs were
required for all impaired waters, and concluded that excluding nonpoint
source impaired waters would have left a ``chasm'' in the statute. And,
the judge found that Congress' passage of section 319 in 1987 was
consistent with the view that section 303(d) covered nonpoint sources
of pollution because TMDLs were needed for the planning required under
Section 319.
This decision confirms EPA's long-standing interpretation of the
Act. It also makes clear that the requirement to list waters polluted
by diffuse or nonpoint sources, and develop TMDLs for these waters, is
based on the Clean Water Act rather than the existing or proposed TMDL
regulation.
GAO Report on Water Quality Monitoring
Also in March, the General Accounting Office released a report
critical of data used by States and EPA to make water quality
decisions.
EPA has responded to the report in detail, agreeing with some
conclusions and disagreeing with others.
EPA agrees with the GAO conclusion that some States lack the data
that they need to fully assess the water pollution problems in their
State. In many States, the lack of an extensive, and expensive,
monitoring network prevents the State from evaluating all waters on a
regular basis. Given limited resources, however, knowledgeable State
managers focus monitoring resources on the most likely problem areas.
The GAO report recognizes this approach and reports ``State
officials we interviewed said they feel confident that they have
identified most of their serious water quality problems.'' The GAO
report suggests that the polluted waters identified from this
monitoring may not be all of the polluted waters in the State. It does
not indicate that the polluted waters that are identified as polluted
are improperly identified as polluted. In other words, the TMDL program
may not be focused on enough waterspout it is not focused on the wrong
waters. In addition, if a waterbody is listed as polluted by mistake,
it can be removed from the list.
Some observers have incorrectly concluded that the report found
that States do not have the data that they need to develop TMDLs. There
are several problems with this conclusion.
First, GAO generally found that States do have the data they need
to develop TMDLs for point sources.
Second, while most States now lack detailed data to develop a TMDL
for waters polluted by nonpoint sources, the development of these site-
specific data has not been a priority of State monitoring programs. EPA
and States recognize and expect that, once the process of developing a
TMDL is begun, sometimes, several years later, States will need to
supplement the initial screening data used to identify the problem with
more detailed assessments needed to develop a TMDL. The lack of these
data today is not a reason to delay a TMDL.
Third, GAO concludes that the lack of detailed nonpoint source
related data makes it ``difficult to directly measure pollutant
contributions from individual nonpoint sources and, therefore, assign
specific loadings to sources in order to develop TMDLs.'' This would be
a concern if EPA's existing or proposed TMDL regulations required that
States have data to assign specific loadings to individual sources, but
they do not. Rather, EPA's proposed regulation specifically provided
that allocations to nonpoint sources may include ``gross allotments''
to ``categories or subcategories of sources'' where more detailed
allocations are not possible.
Atlas of America's Polluted Waters
States submitted lists of polluted waters in 1998. Over 20,000
waterbodies across the country are identified as not meeting water
quality standards. These waterbodies include over 300,000 river and
shore miles and 5 million lake acres. The overwhelming majority of
Americans--218 million--live within 10 miles of a polluted waterbody.
A key feature of the 1998 lists of polluted waters is that, for the
first time, all States provided computer-based ``geo--referencing''
data that allow consistent mapping of these polluted waters. In order
to better illustrate the extent and seriousness of water pollution
problems around the country, EPA prepared, in April of this year, an
atlas of State maps that identify the polluted waters in each State.
The maps are color coded to indicate the type of pollutant causing the
pollution problem. And, bar charts show the types of pollutants
impairing stream/river/coastal miles and lake/estuary/wetland acres.
Mr. Chairman, I ask that a copy of the Atlas of America's Polluted
Waters be included in the hearing record.
Economic Analysis
Several Members of Congress have suggested that EPA did not conduct
an adequate assessment of the cost of the TMDL regulation. As you know,
Mr. Chairman, cost assessments of proposed regulations are strictly
governed by statute and by Executive Order.
In compliance with these requirements, EPA described the
incremental costs of the proposed regulation. We did this work
carefully and fully, in compliance with applicable guidelines. EPA is
working with States and others to define the overall costs of
administering the TMDL program, including both the base program costs
and the incremental costs of the new regulations. EPA is committed to
providing an estimate of these costs prior to promulgation of the final
TMDL regulations.
Many commenters on the proposed revisions to the TMDL regulations
indicated an interest in EPA's estimate of the overall costs of
implementing the TMDL program and restoring the Nation's polluted
waters.
It is important to note that several provisions of the Clean Water
Act call for attainment of water quality standards adopted by States.
Notably section 301(b)(1)(C) of the Act requires that all discharge
permits include limits as necessary to meet water quality standards.
The TMDL process does not drive the commitment to meet water quality
standards. Rather, it provides a comprehensive framework for
identifying problem areas and allocating pollution reductions necessary
to fix problem among a wider range of pollution sources (i.e. not just
point sources).
EPA recognizes that the TMDL process imposes some administrative
costs for States, communities and pollution sources. We believe,
however, that these administrative costs could be largely offset by the
significant savings to be achieved over the next decade as a result of
the TMDL process. By bringing all sources of pollution in a watershed
together, the local community and the State can work together to
evaluate various approaches to achieving needed pollution reductions.
For example, the cost to remove a pound of a given pollutant may be
high for some sources and low for others.
The TMDL process lays out these considerations and lets the local
community decide how to meet its clean water goals. EPA expects many
communities to opt for cost-effective approaches, many of which rely on
low cost controls over nonpoint sources.
Under the final revisions to the TMDL rules to be published this
summer, opportunities for shifting pollution control responsibility
from high cost point source controls to lower cost controls over
nonpoint sources will be greatly enhanced. Under the new rules, States
and EPA will be able to defend point source permits that alone will not
result in attainment of water quality standards because the TMDL must
provide a ``reasonable assurance'' of implementation of other needed
pollution reductions.
Under the TMDL rules in effect today, ``reasonable assurance'' is
not a necessary element of a TMDL and cost effective sharing of
pollution reductions is much less likely. As I have testified,
``reasonable assurance'' of implementation can be established based on
voluntary and incentive-based programs.
EPA is developing rough estimates of the costs of attaining clean
water goals using the TMDL model and not using the TMDL model (i.e.
relying on point source controls only to meet water quality standards)
and will make this estimate available in conjunction with promulgation
of the TMDL regulation.
opposition to s. 2417
Mr. Chairman, the legislation you introduced with Senator Crapo, S.
2417, includes some important provisions expanding authorizations for
State clean water grants. But the Administration must strongly oppose
the bill because it would delay final TMDL regulations by at least 3
years, and perhaps much longer.
The bill would expand authorizations for several key State grant
programs, including the clean water program management grants under
section 106 of the Clean Water Act and the nonpoint pollution control
grants under section 319 of the Act. The Administration believe that
adequate State grant funding for clean water programs is critical to
effective operation of the Nation's clean water program. We have
proposed an increase of $150 million over the past 2 years in funding
for State nonpoint control programs and an increase of $45 million in
fiscal year 2001 for State water program grants. However, the
Congressional Budget Resolution limits domestic discretionary spending
such that it will be very difficult to meet the Administrations's
proposed increases. Given the Congressional Budget Resolution, the
funding levels proposed in the bill are unrealistic. One of the
unintended consequences could be to divert funding from other valuable
water quality efforts. The Administration stands ready to work with
Congress to achieve our ambitious goals of substantially increased
funding for important water quality work.
The section 106 grant authorization would increase to $250 million
with $50 million of this amount reserved for implementation of TMDLs.
The President's fiscal year 2001 budget provides an increase of $45
million in the section 106 grant that is reserved for TOOL development
with an appropriate State match. This $45 million increase would bring
the total amount of the section 106 grant to $160.5 million in fiscal
year 2001.
The bill would authorize $500 million for the section 319 grant
program, which is double the President's fiscal year 2001 request. Some
$200 million of this amount would be reserved for grants to implement
nonpoint pollution control projects. Further, the bill would
significantly lower the current non-Federal matching requirement. The
Administration recommends maintaining the current non-Federal match,
which is a more appropriate rate of 60 percent Federal funds with the
remaining project costs provided by non-Federal funds. For any given
level of available Federal funding, the bill's proposal of a 90 percent
Federal matching requirement would result in fewer projects funded, and
fewer areas and people being served.
Provisions of S. 2147 call for a study of the scientific basis for
the TMDL program. While there are technical issues associated with the
development of TMDLs, many of the essential scientific bases for
developing TMDLs and restoring polluted waters are already available.
There is no need for a review of this science by the National Academy
of Sciences. In addition, other objectives of the study, such as
assessments of total costs of meeting water quality standards, are
questions that the National Academy of Sciences is not best suited to
answer.
Section 5 of the bill provides for the funding of five watershed
management pilot projects. States and EPA already have extensive
experience in the development and implementation of watershed
management projects at several geographic scales. For example, the
National Estuary Program has invested tens of millions of dollars in
watershed management projects on over 28 estuaries around the country.
Numerous other watershed management projects have been completed or are
underway. It would be a mistake to divert $2 million to these five
projects when this funding is badly needed to support broader State
efforts to develop TMDLs.
Finally, section 6 of S. 2147 would prevent the finalization of
TMDL regulations until the completion of the study by the National
Academy of Sciences. The Administration is strongly opposed to this
provision of the bill.
Enactment of this proposal could result in the effective shut-down
of the TMDL program in many States as they and other parties defer work
on TMDLs until the comprehensive studies mandated by Congress are
completed. Sadly, Congress would be telling thousands of communities
across the country that are eager to get to work restoring the over
20,000 polluted waters to stand down--to pack up their clean water
plans and put them into the deep-freeze for the foreseeable future
while a panel of scientists meets here in Washington, behind closed
doors, for almost 2 years, to write a report.
Many States have strong public confidence in their TMDL programs
and expect to work cooperatively with the public in listing polluted
waters and developing TMDLs. State efforts to meet commitments to the
public to run effective TMDL programs would be hampered because many
affected pollution sources could cite the congressionally mandated
national study as a reason to delay any action on TMDLs before release
of the study and subsequent revision of the rules. Public confidence in
the TMDL process could be seriously eroded.
Citizens may step-up efforts to seek court orders to complete lists
of polluted waters and TMDLs. Without final regulations to guide EPA
and State efforts to implement the TMDL program, courts could issue
detailed judicial guidance for the TMDL program.
I hope, Mr. Chairman, that I can convince you and other Members of
Congress that we do not need to postpone any longer these important
improvements to the TMDL program. We have a solid legislative
foundation in the Clean Water Act. We have a good TMDL program that
will be even better with the revisions to the program regulations that
we will finalize this summer. Most importantly, people all over the
country want to get to work restoring polluted rivers, lakes, and
coastal waters, and they want to start now.
CONCLUSION
The 1972 Clean Water Act set the ambitious--some thought
impossible--national goal of ``fishable and swimmable'' waters for all
Americans. At the turn of the new millennium, we are closer than ever
to that goal. Today, we are able to list, and put on a map, each of the
20,000 polluted waters in the country. And, we have a process in place
to define the specific steps to restore the health of these polluted
waters and to meet our clean water goals within the foreseeable future.
It is critical that we, as a Nation, rededicate ourselves to
attaining the Clean Water Act goals that have inspired us for the past
25 years. The final revisions to the TMDL regulations will draw on the
core authorities of the Clean Water Act, and refine and strengthen the
existing program for identifying and restoring polluted waters.
Mr. Chairman, I consistently hear from critics of the TMDL program
that it is more of the old, top-down, command-and-control, one-size-
fits-all approach to environmental protection. In fact, the TMDL
program offers a vision of a dramatically new approach to clean water
programs.
This new approach focuses attention on pollution sources in proven
problem areas, rather than all sources. It is managed by the States
rather than EPA. It is designed to attain the water quality goals that
the States set, and to use measures that are tailored to fit each
specific waterbody, rather than imposing a nationally applicable
requirement. And, it identifies needed pollution reductions based on
input from the grassroots, waterbody level, rather than with a single,
national, regulatory answer. In sum, we think we are on the right track
to restoring the Nation's polluted waters.
The final revisions to the existing TMDL regulations will support
and improve the existing TMDL program and they will be responsive to
many of the comments we have heard from interested parties.
Thank you, for this opportunity to testify on EPA's efforts, in
cooperation with States and other Federal agencies such as the
Department of Agriculture, to restore the Nation's polluted waters. I
will be happy to answer any questions.
__________
JOINT STATEMENT OF THE DEPARTMENT OF AGRICULTURE AND THE ENVIRONMENTAL
PROTECTION AGENCY
Abstract: The Environmental Protection Agency (EPA) has proposed
revisions to existing regulations for administering the Total Maximum
Daily Load (TMDL) provisions of the Clean Water Act (CWA). The
Department of Agriculture (USDA) identified a range of issues with
respect to the proposed TMDL rule. EPA and USDA convened a process to
review and discuss these issues with the goal of resolving the issues
prior to final issuance of the regulations. This paper, which has been
prepared jointly by EPA and USDA, describes the agreement between the
two agencies concerning development of final TMDL regulations.
INTRODUCTION
Under the TMDL program, States provide a comprehensive listing of
all the Nation's polluted waters. The States then develop ``pollution
budgets,'' or TMDLs, for waters impaired by nonpoint and point sources
of pollution. Pollution reductions called for by a TMDL budget are
designed to meet certain safe levels of pollutants that allow
beneficial uses, such as swimming or fishing, established in water
quality standards adopted by States.
Congress established the TMDL program in the CWA of 1972. EPA's
early work to implement the Act focused on establishing effluent
limitations through National Pollutant Discharge Elimination System
(NPDES) permits for point sources like factories and wastewater
treatment plants. Lawsuits filed against the EPA in the late 1980's and
1990's, however, have compelled the development of TMDLs on specific
schedules and for all impaired waters, including waters impaired by
nonpoint sources of pollution (e.g. agriculture and forestry).
To improve implementation of the TMDL program, EPA convened a
Federal Advisory Committee and proposed amendments to existing TMDL and
NPDES regulations in the Federal Register on August 23, 1999.
EPA/USDA AREAS OF AGREEMENT
In response to concerns with the proposed TMDL rules at USDA, Under
Secretary Jim Lyons of USDA and EPA Assistant Administrator Chuck Fox
decided to form an interagency workgroup to review key issues. Working
through the winter, this group reached agreement on the issues of
interest to USDA and EPA has agreed to reflect these agreements in its
final TMDL rule.
State and Local Governments Should Have the Lead
The EPA and USDA agree that State governments and local citizens
should take the lead in developing pollution budgets for impaired
waterways. To enhance flexibility in State programs, the following
revisions are expected to be included in the final TMDL rule:
(1) eliminate the requirement that States give top priority to
development of TMDLs for certain types of impaired waters;
(2) eliminate the requirement that States identify ``threatened''
waters;
(3) lengthen the time period for States to develop periodic lists
of impaired waters from 2 years to 4 years;
(4) grant States up to 15 years to develop TMDLs for their impaired
waters;
(5) do not impose a deadline for attainment of water quality goals;
and
(6) drop the proposal to require new discharges to polluted waters
to obtain ``offsets'' for new pollution.
Reducing Agricultural Impacts on Water Quality
Two general forms of agricultural runoff, ``return flows from
irrigated agriculture'' and ``agricultural stormwater discharges,'' are
statutorily exempt from NPDES permit requirements and treatment as
point sources. However, USDA and the agricultural community had
concerns that the EPA proposal moved away from traditional notions of
what is a nonpoint source of pollution and strategies for reducing
impacts through voluntary efforts and Best Management Practices (BMPs).
EPA and USDA agree that voluntary and incentive-based approaches are
the best way to address nonpoint source pollution. Water quality
improvements that farmers make through Federal conservation programs,
or on their own initiative, will be given due credit in the development
of TMDLs. If a farmer will invest in voluntary conservation practices
to improve water quality the ``pollution budget'' will recognize those
investments in developing a strategy for future cleanup. Under the EPA
proposal, States have the flexibility to allocate pollution load
reductions between nonpoint and point sources as they consider
appropriate and are not required to allocate pollution reductions to
specific categories (e.g. agriculture) in proportion to pollution
contributions.
Controlling Water Quality Impacts of Forestry Operations
USDA raised concerns with EPA's proposal to allow States, and in
some cases EPA, to issue a Clean Water Act permit where needed to
correct a water pollution problem caused by discharge of stormwater
from forestry operations.
USDA and EPA have developed a modified approach that grants States
flexibility in designing their TMDL program. Under this approach, no
NPDES permits will be required for point sources of polluted stormwater
from forestry operations for 5 years from publication of the final
rule. During that time, EPA will work with the USDA and the public to
develop guidance for States to follow in designing and adopting
forestry BMP programs for the protection of water quality.
In States that develop and maintain forestry BMP programs that are
recognized by EPA as adequate (i.e. generally consistent with this
guidance) forest operations will have no exposure to NPDES permit
requirements. States will be encouraged to grant forest operators that
are implementing BMPs in good faith an exemption from any directly
enforceable State water quality standards. Since existing Federal law
requires forest operations on National Forest System lands to be
conducted consistent with water quality requirements, operations
conducted on these lands will be exempt from NPDES authority.
The idea is that forest operators in States with approved programs
will know what is expected of them, what BMPs are effective in reducing
pollution and need to be implemented. If for some reason the
implementation of the core set of BMPs results in a pollution problem
then the State must commit to refining or better tailoring the BMPs as
necessary to attain water quality goals.
Only if a State does not have an approved forestry BMP program
after 5 years, will the State or EPA have the discretion to issue NPDES
permits in limited cases where the operation results in a discharge
that causes water pollution problems. Any NPDES permits that are issued
by EPA will call for implementation of BMPs, as opposed to attainment
of numerical effluent limitations; EPA expects that State NPDES permit
authorities will follow this approach. States will not be required to
issue NPDES permits to forest operations discharging polluted
stormwater; it will be a matter of their discretion. Dischargers that
are not required to get a permit will not be subject to citizen or
government enforcement action under the Clean Water Act.
TMDL Program Funding
States have identified a need for increased funding to support more
complete assessment of the condition of waters and development of TMDLs
for polluted waters. Adequate funding of the TMDL program is key to its
implementation. The EPA is currently developing estimates of the
overall cost of the TMDL program and the analysis will be available
when the final rule is published. The President's fiscal year 2001
budget increases funding for State administration of the TMDL program
by $45 million. The budget also increases funding for State programs to
reduce polluted runoff by $50 million. USDA agricultural conservation
programs are dramatically enhanced by the fiscal year 2001 budget. The
Environmental Quality Incentives Program (EQIP) would be increased from
$200 million to $325 million. The Conservation Reserve Program (CRP)
would be expanded to 40 million acres. Under current authority
additional CRP continuous sign up incentives totaling $100 million in
fiscal year 2000 and $125 million in each of fiscal years 2001 and 2002
will be available. Finally, under the President's budget 250,000 acres
would enroll annually in the Wetlands Reserve Program (WRP), which will
reach its statutory 975,000 acre cumulative cap in fiscal year 2001.
This kind of Federal budget response is necessary to provide State and
local partners the tools to successfully build their TMDL programs.
CONCLUSION
The final TMDL regulations will provide an improved framework for
restoring our polluted waters. Much work remains to be done to meet
clean water goals. The EPA and USDA will continue to work with State
and private partners in improving the communication and outreach
essential for successfully implementing the TMDL program.
______
Department of Environmental Protection,
Boston, MA, April 27, 2000.
Hon. Michael D. Crapo,
U.S. Senate,
Washington, DC.
Dear Senator Crapo: The Commonwealth of Massachusetts supports your
efforts through Senate 2417 to increase funding for States to implement
the Federal Clean Water Act, and particularly, the new TMDL rules under
the Act. As you know, Secretary Bob Durand has supported the need for
this funding. I wanted to raise several more specific issues related to
your efforts.
According to a recent resource allocation model, the Massachusetts
Department of Environmental Protection would need to increase staffing
levels by an order of magnitude in order to keep pace with the
analytical elements of the TMDL rule. Nationwide, the financial gap for
clean water programs (excluding infrastructure) is at least $1.3
billion. We appreciate your leadership in recognizing and addressing
this funding shortfall.
We also support the inclusion of the provisions relating to State
functional equivalency, watershed approaches, pollution trading, and
non-regulatory tools for solving water quality problems. The
Commonwealth embraces these concepts and has developed a nationally
recognized program that is backed by strong State statutes and
regulations. We believe that by recognizing the effectiveness of strong
State programs, your bill will promote creative and cost-effective ways
of improving water quality. To signal your commitment to State
functional equivalency, watershed-based pollution trading, and other
innovations, Senate 2417 could explicitly require that the final rules
contain provisions to encourage such innovations.
While we support the funding and State flexibility provisions of
the bill, we do not support the proposed 13-month delay in the issuance
of the new TMDL rule. The U.S. EPA, as stated in a letter to
Congressman Shuster dated April 5, has indicated a willingness to
modify the TMDL regulations to address many of the concerns expressed
by the States. We believe that EPA should be given the opportunity to
implement the final TMDL rules. The proposed study by the National
Academy of Science (or another appropriate group) could be used to
review the States' experiences under the new rule and make
recommendations for any necessary modifications.
Please do not hesitate to contact me or Arleen O'Donnell of my
staff at (617) 292-5975 for any additional information or assistance.
Thank you for your leadership on this very important issue.
Sincerely,
Lauren A. Liss,
Commissioner.
______
Functional Equivalency--Massachusetts Approach
FUNCTIONAL EQUIVALENCY BASIC CONCEPT
``Functional equivalency'' is a term used to describe one or more
State programs which will achieve the same outcome, standard of
performance, or level of protection as a Federal requirement. In the
context of TMDL's, the Federal regulations would establish the baseline
program, and then allow States to propose functionally equivalent
programs. EPA would establish approval criteria and procedures,
including public notice and comment.
SCOPE OF FUNCTIONAL EQUIVALENCY
Functional equivalency could be constrained or open-ended. For
example, EPA could allow State substitutions based on equivalency for
each individual component of the Federal TMDL program, such as 303(d)
listing methodology, TMDL development, and implementation plans. A less
prescriptive approach might allow equivalent State program for any or
all of these three parts for the TMDL program. The most flexible
approach would be to allow States to propose their own TMDL programs
which will provide the same results overall as the Federal baseline
program. Massachusetts supports flexibility, based on the premise that
States can achieve better results by integrating TMDLs within their own
existing watershed programs than by setting up a partially duplicative,
separate and competing TMDL program.
TYPES OF FUNCTIONAL EQUIVALENCY
There are two basic ways to achieve the same or better results
(i.e., functional equivalency) that may be used in combination. First,
requirements may be equivalent because they are different but as or
more stringent that the baseline requirement. A State TMDL program
could be functionally equivalent by providing for some more and some
less stringent substitutions for baseline program elements, provided
that the overall program is as protective or preferably more
protective. Second, requirements could be more or less broad in scope
than the baseline program, provided that the overall program results
are the same or better than the baseline program. While flexibility
could extend to equivalency based on breadth in scope as was proposed
for Phase 2 alternative stormwater programs, in the context of TMDLs,
comparable or greater stringency of requirements is likely to yield
more consensus on the comparison necessary for a finding of functional
equivalency.
Functional equivalency could also be determine by compliance with
another similar program. For example, States with an approved CZMARA
Section 6217 program implemented statewide (not just within the more
limited coastal zone) should be allowed to substitute those
implementation plans for the nonpoint source component of their TMDL
implementation plans. A consistent definition for ``reasonable
assurance'' should be identified for both programs to allow
comparability. Additionally, States with comprehensive environmental
regulations from which loading reductions can be projected should be
given appropriate credit for equivalency.
Functional equivalency could also be based on flexibility in TMDL
schedules. States such as Massachusetts with well-established watershed
planning and management efforts underway would benefit from selectively
postponing the TMDL analysis for certain parameters in the near term,
instead relying on 305(b) and other assessment data to move directly to
implementation using State law authorities for permitting, compliance,
and enforcement. If the effort does not achieve or show progress toward
results within an acceptable timeframe (e.g., 5 years), only then would
the State need to invest the resources to produce an ``official'' TMDL.
Where implementation of a watershed plan or comprehensive coastal
management plan (CCMP) serves the same purpose as a TMDL implementation
plan, the 5-year renewal would evaluate progress and trigger the need
for more vigorous action as warranted (e.g., moving from generic
loading assumptions to more analytical reduction allocations).
ELIGIBILITY FOR FUNCTIONAL EQUIVALENCY
To address concerns about too much latitude in functional
equivalency leading to failures by States; to make progress toward
water quality goals, alternative State programs could be limited to
States with explicit State law authority over nonpoint sources. EPA
might also limit eligibility for equivalent programs to States with
disparate pollution sources other than large-scale agricultural or
silvicultural runoff that are simply not amenable to NPDES permitting;
such a limitation would be appropriate because these States are most in
need of flexibility due to the complexity of both their TMDL analyses
and implementation plans.
A STATE TMDL STRATEGY AS THE BASIS FOR FUNCTIONAL EQUIVALENCY
A State TMDL Strategy could provide the basis for a functionally
equivalent program. Massachusetts developed its TMDL Strategy in 1998.
Together with the existing implementation of the Watershed Approach
already underway, the Strategy earned the highest grade for any State
in the National Wildlife Federation study of TMDL programs. The
Strategy sets out a schedule for development of TMDLs by 2012,
beginning with a pilot program and concentrating on pollutants with
established protocols. The 1998 list identified 908 segments of
impaired waters, resulting in the need to perform 1454 TMDLs
(Massachusetts has not tackled the TMDL problem through limiting its
303(d) list). TMDLs would be a component of the Watershed Management
Plans for each of the State's 27 basins. The Strategy relies on a
variety of regulatory programs for implementation to address water
quality problems, including the State Clean Waters Act, the Wetlands
Protection Act, a comprehensive stormwater program, the Water
Management Act (withdrawals/flows), new source approvals for water
supplies, a comprehensive program for septic systems, and linkage of
water quality problems of SRP funding decisions. The watershed approach
includes extensive stakeholder involvement which will provide a forum
for negotiating load allocations.
______
Rhode Island Department of Environmental Management,
Providence, RI, May 3, 2000.
Hon. Michael D. Crapo,
U.S. Senate,
Washington, DC.
Dear Senator Crapo: I am writing to commend you for introducing
legislation to increase authorizations for grants to States to carry
out important clean water programs (S. 2417). I also, however, urge you
to delete section 6 of the bill that would delay the issuance of final
regulations for the ``Total Maximum Daily Load'' or TMDL program for
several years pending completion of a study by the National Academy of
Sciences.
The primary provision of S. 2417 would recognize the significant
needs that States have for increased funding for management of clean
water programs and for providing financial assistance for projects to
reduce water pollution. The authorizations provided in the bill for
funding under Clean Water Act section 106 (State program management)
and 319 (nonpoint pollution control programs and projects) would
dramatically increase Rhode Island's ability to meet the Nation's clean
water goals.
Section 6 of the bill would delay the issuance of final regulations
to guide efforts to identify and restore impaired waters around the
country through the TMDL program and call for a study of several
related issues by the National Academy of Sciences. I recommend that
this provision of the bill be deleted for several reasons.
EPA is listening to State Concerns.--Rhode Island has
worked closely with the EPA over the past several months to explain
concerns with the TMDL regulations the Agency proposed last August. I
believe that EPA is listening to State concerns and based on the letter
issued by the EPA Assistant Administrator for Water, Chuck Fox is
likely to address many of the most significant concerns in the final
TMDL regulations.
Court Challenges Will Continue.--In many States, courts
have stepped in to set specific schedules and other requirements for
development of TMDLs. The development of national TMDL regulations that
address many of the issues raised in suits is critical to successfully
persuading judges that States and EPA have a coherent national program
for restoring impaired waters. For example, judges have directed that
States develop TMDLs on 7-year schedules, rather than the 15-year
period provided in the proposed TMDL regulations. Without clear
national regulations, States will face continued court challenges and
continued judicial intervention.
Increase Administrative Complexity of the TMDL Program.--A
delay in issuance of final TMDL regulations would make an already
difficult program more complex and uncertain. For example, States need
to be planning now to develop lists of impaired waters by April of
2002. The proposed delay of 18 months in issuance of TMDL rules could
result in new listing requirements shortly before the lists are due. In
addition, many States are now actively building TMDL programs. States
are not likely to agree to every element of the final TMDL rules EPA is
working on, but the costs of having to restructure programs several
years from now to meet new regulations may well be greater than the
cost of imperfect rules published this summer.
Public Misunderstanding.--It is clear that most Americans
support the Clean Water Act and want to see polluted waters cleaned up
as soon as possible. Many States are now making good progress in
working with the public to build confidence in State TMDL programs. The
proposed delay in finalizing TMDL regulations will be described as an
effort to delay the important work of restoring polluted waters. This
could reduce public support of State TMDL programs and set back State
efforts to involve the public in this important work.
Science is Not the Issue.--The job of restoring impaired
waters poses a range of technical issues. At the same time, the
critical scientific bases for developing TMDLs are well established and
there is no fundamental scientific uncertainty preventing the
development of TMDLs. While States and EPA are discussing many policy
issues related to the TMDL program, the National Academy of Sciences is
not likely to be able to significantly contribute to this discussion.
Many States have had difficult and trying experiences with the TMDL
program over the past several years. Recently, however, States have
made some good progress in building TMDL programs that have both sound
science and strong public support. The proposed changes recently
addressing our concerns. Although some States still have issues that
need to be worked out, I believe that it is time to move forward with
an updated TMDL program and EPA action to finalize TMDL regulations
this year.
I look forward to working with you on this important issue.
Sincerely,
Jan H. Reinsma,
Director.
__________
STATEMENT OF HON. OLYMPIA J. SNOWE, U.S. SENATOR FROM THE
STATE OF MAINE
Thank you, Mr. Chairman. I appreciate you holding this hearing
today, and honoring my request to have a field hearing near my State of
Maine, offering a forum for my constituents to voice their concerns
about the Environmental Protection Agency's proposed rule on TMDL.
I also want to thank you, Mr. Chairman, for following through on my
request to hear testimony today from Maine Conservation Commissioner,
Ronald B. Lavaglio, who is representing the State of Maine. He will
raise questions as to just how these EPA regulatory changes would
improve, in a timely and meaningful basis, the future of water
monitoring in Maine under TMDL. The proposed rule could also impact
permitting under the National Pollution Discharge Elimination System
(NPDES). As a matter of fact, last November, the State requested that
EPA grant it the statewide authority to handle the NDPES permitting
process, and a decision is expected by May 16.
First of all, I would like reiterate my strong support for clean
water. Maine is unique because of its outstanding rivers, streams and
lakes that wind for over 32,000 miles throughout the State along with
17 gorges, 61 waterfalls, 31 white water rapids and nearly 6,000
lakes--all part of the six major watersheds in the State.
I am proud to say that my State of Maine has been at the forefront
of the EPA's TMDL program since it was established under Section 303(d)
of the Clean Water Act. Given Maine's dedication to this program, and
the State's long history of assuring excellent water quality for our
residents, the proposed rule raises concerns about whether or not EPA
is heading down a bureaucratic road that supersedes the State's
responsibilities to adhere to its Clean Water Act responsibilities.
As you know, TMDL is a calculation of the maximum amount of
pollutant that a body of water can receive and still meet water quality
standards. Water quality standards are set by State agencies using a
formula that identifies the use for each body of water--such as
drinking water supply, recreation, and fishing--and the allowable
amount of a single pollutant for each body of water. The calculation
must include a margin of safety to ensure that the waterbody can be
used for its designated purpose and must also account for seasonable
weather variations.
Under the Clean Water Act, States are currently tasked with
identifying ``non-point'' sources of pollution, which come from
multiple sources rather than one fixed entry point. The Environmental
Protection Agency regulates ``point source'' pollution for the Federal
Government. These pollutants are discharged from clearly known sources,
such as visible drainage pipes, ditches, and tunnels. The recently
proposed EPA rule would--for the first time--enable the EPA to regulate
non-point sources of pollution for bodies of water affected by
agriculture and forest activities.
The proposed rule has generated a great deal of concern within the
State's forestry and agriculture industries from whom you will hear
today, as well as within the Maine Department of Environmental
Protection and the Department of Conservation. Earlier this year, the
State brought to my attention its concerns that the current science and
available data behind the TMDL process for non-point source pollutants
may not be able to support the program as prescribed in the August 23,
1999, proposed rule. The true impact of these non-point sources--
including rain runoff that originates from fields and timberland--is
often hard to determine with any amount of scientific certainty.
Since silvaculture, or forestry, has not been identified as a major
pollutant source for water bodies listed on Maine's non-source
monitoring list, I join Maine officials in questioning how the costs
associated with this proposed rule could impact Maine's economy, forest
management, and regulatory overhead costs for forest operations.
In an effort to address these concerns, the U.S. Department of
Agriculture and the EPA formed an interagency workgroup to review key
issues. USDA had asked the EPA to clarify when discharges from
silvaculture activities would be required to have a Clean Water Act
permit, and how such permits should be structured.
In addition, the USDA asked EPA to provide a comprehensive cost
estimate and funding proposal for its TMDL initiative, and EPA is
developing estimates of the overall cost. This information, however,
will not be available until the final rule is published, according to
EPA, and this raises economic concerns. Even though the Administration
has requested increased funding for TMDL programs for Fiscal Year 2001,
this does not ensure that the States will actually realize increased
funding to carry out a more complete assessment of the conditions of
waters and a development for TMDLs for polluted waters once the
appropriations process is completed.
An additional concern raised by the National Milk Producers
Federation is that the proposed rule will disrupt a number of
conservation and environmental programs established under the Freedom
to Farm Bill of 1996. The American Farm Bureau Federation has stated
that, while point sources can be shut off with a simple turn of the
handle, there is no way for farmers to shut off the vagaries of
weather, and predicting and controlling runoff from storm events is
difficult. EPA's command and control approach is not possible in a
perfect world, the Farm Bureau says, because rain would still fall.
The State's environmental and conservation agencies have also made
the point that, by reaching beyond its TMDL monitoring authority, the
EPA will not have the resources to review Maine's TMDL submissions on a
timely and meaningful basis. The State fears that this will add to the
complexity of the TMDL program without providing real solutions to non-
point source pollutants.
It is important that all of these concerns be addressed before any
proposed rule change is finalized, and I have written Carol Browner,
the EPA Administrator, to share the questions and concerns raised by
Maine's conservation and environmental regulators and its agricultural
and forest products industries. I also joined 24 other Senators in a
letter to EPA that raised similar concerns, requesting that the
proposed rule be withdrawn because it of its enforcement based
regulation, which is counterproductive to current methods that have
proven to be effective, especially through State voluntary initiatives.
My colleagues and I emphasized that we all place great importance on
the need to continue to clean up our nation's lakes and rivers, and
that we must work together to achieve these goals.
The USDA and EPA issued a joint statement on May 1, 2000, that they
believe addresses the silvaculture and agriculture concerns that have
been raised about the proposed rule and that these revisions in the
Agreement may be included in the final TMDL rule. The industries
involved, however, are not showing that same confidence. This hearing
will provide an important forum for State officials, the industries,
and other organizations who will be affected by the revisions to share
their reactions and will allow this committee to learn whether their
concerns have been addressed. Because of the far reaching impacts any
final rule would have, I request that the committee urge the EPA to
take the time to make sure that the rule gives the States the
flexibility they need to build on State water protection efforts in a
cost effective manner by using appropriate scientific and technical
information that will actually lead to the reduction of pollution from
both point and non-point sources.
Mr. Chairman, I will continue to work with you and our colleagues
in the Senate and with the EPA to ensure that the interests of my State
and yours are represented on this issue in order to ensure continued
improvements for the protection of our nations' rivers and streams.
I thank the Chair.
__________
State of New Hampshire,
Office of the Governor,
Concord, NH, May 5, 2000.
Senator Bob Smith, Chairman,
Committee on Environment and Public Works,
U.S. Senate,
Washington, DC.
Dear Chairman Smith: Thank you and the members of the Committee on
Environment and Public Works for taking the time to conduct a hearing
in Whitefield, New Hampshire on the proposed Total Maximum Daily Load
(TMDL) rule and the National Pollution Discharge Elimination System
(NPDES) permit process. I appreciate the opportunity that you have
provided to New Hampshire residents to present their concerns on the
TMDL rule to both the committee members and EPA officials.
As Governor, I have been a strong advocate for both the forest
products industry, which has expressed significant concerns with the
proposed TMDL rule, and the environment. We must continue to strike the
right balance for New Hampshire between the needs of this important
traditional industry and environmental protection if we are to maintain
our strong economy and quality of life.
The original proposed TMDL regulations were highly criticized by
the New Hampshire Department of Environmental Services, the New
Hampshire Department of Resources and Economic Development, and New
Hampshire businesses. The proposed regulations were too burdensome on
both DES and the regulated community, particularly the forest products
industry. The proposed rules were also too prescriptive, removing the
flexibility of States to tailor programs to State-specific priorities
and needs.
New Hampshire has been successful in developing partnerships
between State government and business that improve both the economy and
the environment. It is critical that Federal regulations provide us the
flexibility to develop innovative solutions and programs that are
tailored to meet the needs of New Hampshire.
Forestry is a critical component of New Hampshire's heritage, and
our economy, especially in the North Country. Our long history of
forest stewardship is reflected in the many tree farms that are found
across New Hampshire. We must maintain this working landscape by
supporting working forests, not discouraging them. New Hampshire
already has programs in place to prevent and resolve environmental
problems potentially caused by forestry operations. This program
includes three critical elements:
Implementation of best management practices. It is
important to note that a best management practices manual for timber
harvesting operations was published in February 2000 by the Division of
Forests and Lands of the New Hampshire Department of Resources and
Economic Development (DRED), in cooperation with DES, the University of
New Hampshire, Federal agencies including USDA and EPA, and the New
Hampshire Timberland Owners Association.
Training and outreach through partnerships of State and
Federal agencies and nonprofit organizations including the New
Hampshire Timberland Owners Association and the Society for the
Protection of New Hampshire Forests.
Technical assistance, compliance and enforcement by DES
and DRED.
Under any reasonable criteria, our existing programs are effective.
There should never be a need for Federal NPDES permits for forestry
operations not already covered by existing requirements because these
problems will be addressed at the State level.
EPA has recently proposed, in conceptual form, a number of changes
in the proposed rule, which move in the right direction. Chuck Fox, the
Assistant Administrator for Water, should be commended for his efforts
to be responsive to public comments. However, the many who have shown
such deep concern and who would be affected by these new rules deserve
the opportunity to review and evaluate the details of EPA's proposed
changes. I urge EPA to publish the actual language of proposed changes
for forestry for public review as soon as possible to allow evaluation
and comment on the changes by all interested parties prior to final
promulgation. This is only appropriate considering the magnitude of the
comments received about the TMDL rules as originally proposed, and the
significance of expected changes.
As in most other States, New Hampshire's TMDL program is
significantly underfunded. Additional Federal funding to support State
development to TMDL's is needed, regardless of the results of the EPA
rulemaking. The President's budget contains $45 million for Federal
fiscal year 2001, which translates into just over $200,000 for New
Hampshire to assist with TMDL development. This is a good start, but is
not adequate to sustain New Hampshire's TMDL program. I request that
you consider adding at least another $5 million to the President's
budget proposal. At the $50 million level, small States like New
Hampshire will receive a 50 percent increase in section 106 funding,
equivalent to what large States are already receiving at the $45
million funding level under EPA's new formula for distribution of
section 106 funds.
The President's proposed budget also includes rigid conditions for
the State match for the ``new'' Section 106 moneys which New Hampshire
and many other small States will not be able to meet. Consequently, I
would also request that you change these provisions and ensure that any
additional funding for the TMDL program includes maximum flexibility
for matching these Federal funds. This is the only way to ensure that
the Federal funds allocated for New Hampshire will be fully utilized to
make significant progress toward the goals of the Clean Water Act.
I look forward to working with you to ensure that New Hampshire's
waters are protected and improved while ensuring that our forest
products industry and other traditional activities can continue to
flourish.
Very truly yours,
Jeanne Shaheen.
__________
Statement of Hon. Charles F. Bass, Representative in Congress from the
State of New Hampshire
Chairman Smith and members of the committee, I would like to
express my gratitude to you for holding this hearing today on the
Environmental Protection Agency's (EPA) proposed rules regarding Total
Maximum Daily Loads (TMDL) from silviculture operations and for
affording me the opportunity to submit my statement for the record. I
have serious concerns about the EPA's proposal to reclassify
silviculture from a ``non-point source'' activity to a ``point source''
activity under the Clean Water Act (CWA).
The EPA's proposal would mandate regulation of all silviculture
activities as point sources of pollution under the National Pollutant
Discharge Elimination System (NPDES), opening up all private landowners
to NPDES permit regulations. Specifically, this regulation would
include previously exempt categories, such as nursery operations
runoff, site preparation, reforestation activities, thinning,
prescribed burning, pest and fire control, harvesting operations,
surface drainage, and road building and maintenance.
I am concerned that removing the exemption on these activities may
unnecessarily impose heavy-handed Federal regulation on forestry
activities. The silviculture industry has a long history of seeking
common-sense solutions to achieve effective, sustainable land
management. In a 1996 EPA report to Congress, forestry activities were
identified as the smallest source of nonpoint source pollution,
contributing approximately 3 percent to 9 percent of nonpoint source
pollution to our nation's waters. Due to the relatively small impact of
this industry, I believe that landowners should be encouraged to work
directly with States and local governments to find answers to pollution
problems. New Hampshire's forest landowners, through the use of Best
Management Practices, the New Hampshire Professional Logger Program,
the Sustainable Forestry Initiative, and Tree Farm Program, have
contributed considerable resources and effort to protection of water
quality.
Furthermore, in the original rulemaking process following enactment
of the CWA, the EPA recognized that Congress's original intent was to
designate forestry activities as a nonpoint source of pollution.
Therefore, this proposed rule would represent a departure from 30 years
of regulatory practice. This change would subject landowners to citizen
suits for permitted activities, not to mention potential fines, and
necessitate Federal permits for most forest management activities,
which would be subject to unnecessary and potentially costly delays.
The burden of these rules could force landowners to forfeit their
stewardship of the land in favor of giving into the ever-present
pressures of development, which we can all agree is not in the best
interest of the environment.
Although we all share the common goals of categorically improving
the quality of our nation's streams and rivers, we must not impose an
excessive Federal regulatory burden that could cripple the silviculture
industry. Instead, I would encourage continued cooperation between the
Federal Government and the States to provide the necessary incentives
to landowners to maintain healthy forests.
In closing, I want to again thank Chairman Smith and the committee
for holding this extremely important hearing. I hope that the testimony
presented today by myself and others will convince the EPA to
reconsider this proposed rule.
__________
STATEMENT OF RONALD LOVAGLIO, COMMISSIONER, MAINE
DEPARTMENT OF CONSERVATION
Senator Smith, members of the Committee on Environment and Public
Works, distinguished guests, I am Ron Lovaglio, speaking on behalf of
the State of Maine. I serve as Maine's Commissioner of the Department
of Conservation, but today am representing all of Maine's natural
resource agencies, as well as the Administration.
In January of this year, Maine's Commissioner of Environmental
Protection and I submitted joint comments on EPA's proposed TMDL/NPDES
rules. At the same time State Forester Thomas Doak submitted comments,
as did Maine's Department of Agriculture. Our concerns were
substantial:
Resources to implement EPA's proposal are inadequate. TMDL
development and implementation as proposed, within the given timetable,
would require at least a doubling of State resources. We consider EPA's
own oversight capability of this process inadequate.
Inclusion of ``threatened'' waters is unnecessary and
burdensome, especially in light of the public review process that EPA
proposed. The definition EPA provides leaves open virtually any water
body, and the adjacent landowners, to entanglement in this complex and
potentially costly process, in a divisive and potentially litigious
public forum.
The proposal will not advance us any faster toward
achievement of clean water goals. Application of TMDLs and NPDES
permits to nonpoint sources such as forestry would be highly
impractical, costly, and burdensome to private landowners, businesses,
and the State agencies. No new, on-the-ground measures for achieving
better protection of waters from pollution are proposed. Resources for
this regulatory program would be better spent on improving technical
assistance and education.
EPA's new authority under the proposal would be too broad
and inflexible. At the same time, protocols for the exercise of that
authority are vague. As an example, applying NPDES permits to
silviculture is left to the States, but with oversight unpredictably
exercised by EPA.
Forests typically provide the cleanest water of all land
uses. Increased regulations, or even the perception of such an
increase, act as a disincentive to manage land as forest, and as an
incentive to convert land to other uses with higher water quality
impacts.
EPA received tens of thousands of comments on its proposal. In the
months since the end of the comment period in January, EPA has somewhat
confusingly restated its position.
In ``Achieving Cleaner Waters'', released in March, EPA
acknowledged that forests are essential to maintaining clean water for
wildlife and for human use in many parts of the country. However, EPA
provided no further insight into how costly TMDLs and the threat of
NPDES permits would enhance State efforts to apply a combination of
voluntary and regulatory approaches to the forestry water quality
problems that do occur. Instead, EPA lamely justified its sweeping
change in how forestry is addressed as ``backstopping the States''.
EPA Assistant Administrator Charles Fox's April letter to
the Transportation Committee included a list of ``Key Elements of the
Expected Final Regulation.'' The letter indicates some new resources
available for TMDL implementation and for voluntary and incentive-based
polluted run-off programs. The ``Key Elements'' included more time for
polluted waters lists and TMDL development, and appeared to reaffirm
EPA's commitment to voluntary approaches with respect to nonpoint
pollution sources. In fact, EPA dropped major components of their
original proposal, including threatened waters, offsets for new
pollution, the public petition process, and the potential for Federal
permits to be applied to forestry operations. However, the letter
supplied few details about how the remaining program would address
nonpoint sources, and pointedly made reference to a Federal lawsuit in
California which in EPA's words affirms ``the statutory basis for
including these sources in the TMDL process''. In that case the court
did not rule on the manner in which California implemented EPA's TMDL,
however. In effect, implementation of TMDLs for nonpoint sources
remains a black box lacking substantive guidance by EPA, testing by the
States, or interpretation by the courts. Indeed, the court suggested
that the plaintiffs could seek redress by appealing California's
restrictions, while simultaneously acknowledging that easing or failing
to implement restrictions might lead to loss of funding to California
from EPA.
Earlier this week EPA and USDA issued a joint statement
which reiterated some of the same modifications to the original EPA
proposal, including threatened waters, offsets, and timelines for
development of TMDLs. Removing the public petition component, as
articulated in April, is not mentioned in this most recent document. In
addition, under the joint proposal, no NPDES permits for forestry would
be required, but only for 5 years. Thereafter, forestry would be exempt
from NPDES permits, but only if States were implementing a forestry
Best Management Practices Program approved by EPA. So-called
``guidance'' for such State programs would be developed by EPA within
the same timeframe. The letter also references increases in
conservation funding, but identifies no new resources for developing
and implementing BMP programs. This proposal, in our view, would
effectively leave EPA with direct oversight over State efforts.
Maine has little confidence that EPA's efforts to finalize a rule
by the end of June will result in a practical mechanism to apply the
best analytic tools and the best remedies to the issue of clean water.
Further, we are concerned with a seemingly reluctance on EPA's part to
recognize that State, rather than Federal approaches, particularly in
the area of nonpoint pollution sources, have proven most successful in
recent years. At the same time Federal resources have not matched the
need for water quality monitoring, and voluntary and incentive-based
pollution prevention.
Maine's water quality efforts, administered through several
agencies, combines water quality laws, incentives to landowners, and
best management practices. While not perfect, we have made impressive
progress, in partnership with numerous stakeholders.
In our view, Senate Bill 2417 presents a much preferred
alternative. The bill recognizes that the single most effective way to
improve water quality and reduce nonpoint pollution is to increase
funding to State programs that reach landowners directly, and improve
practices on the ground. The bill supports innovative State approaches
that develop and build on watershed management efforts. Finally, S.
2417 provides critical resources both for monitoring to develop the
water quality data needed to make informed decisions, and to develop a
better understanding of how and where TMDLs can be a useful tool--and
where they may not be.
Thank you for the opportunity to comment today.
______
Maine Department of Agriculture,
Food & Rural Resources,
Augusta, ME, May 5, 2000.
Hon. Robert Smith,
Committee on the Environment and Public Works,
Washington, DC.
Dear Senator Smith: After reviewing the Proposed Revisions to the
Water Quality Planning and Management Regulation, 40 CFR Part 130, the
Maine Department of Agriculture, Food and Rural Resources offers the
following comments:
1. Identifying threatened or impaired waters on the basis of
``Evaluated Data'' [continuing]. This is the issue of greatest concern
to our department, for a number of reasons. First, is the fact that it
is not based upon hard facts but deductive reasoning or assumptions. It
requires one to reach out on the basis of such factors as ``Historical
Adjacent Land Uses or ``Location of Sources'' to make a determination
that a waterbody is being impaired or threatened. Therefore, if a farm
is located next to a waterbody that appears to have symptoms of water
quality problems, it is likely to be considered as the or a source.
That is akin to being convicted before being proven guilty. Second, is
the minimum elements that are required, once a TMDL is developed for a
waterbody, including the requirements for:
a. Load Allocation.--A load allocation is to be assigned to all
sources and if possible, to specific sources, based upon ``reasonably
accurate estimates''. If supporting data is not present to make a
definite determination that water quality is impaired or threatened, it
stands to reason that the source or sources can not have been
identified either or how much of a load is being contributed by those
sources. Assumptions must be made again, as to the suspected sources
which without data or documentation is kind of like ``Guilt-by-
Association''. In other words, because an activity is a possible
source, it therefore is a source and must reduce its guestimated
contributing pollutant load. This can be an unfair burden to be placed
upon farmers.
b. Margin of Safety.--Requiring a margin of safety for a TMDL that
was developed upon the basis of Evaluated Data amounts to adding insult
to injury for the suspected, potential sources, such as farmers.
Farmers will be required to implement even greater measures in order to
achieve reductions in assumed pollutant load levels.
c. An Allowance for Future Growth.--This seems like another unfair
burden to place upon known or suspected sources of a pollutant(s) as it
is based upon best guesses that may or may not be realized. Farmers
should not be penalized for activities beyond their control and which
might never happen.
d. Implementation Plan.--This is perhaps the most troublesome
element of a TMDL developed upon the basis of Evaluated Data. It
requires a description of the management measures and/or actions which
will be implemented to achieve the load allocations and a demonstration
that those measures or actions are expected to achieve the required
pollutant loads. This is required for a waterbody that may not have
data to positively determine it has a pollutant(s) problem or where the
sources are or how much each potential source contributes. Other
elements of an implementation plan that are of concern to this
department include the need for milestones. These are measurable
incremental milestones to determine whether or not progress is being
made to reach water quality standards. A monitoring plan must be
developed to obtain the data necessary to make such determinations,
even though no background data may be present. It makes sense for water
bodies that have good data and a point source(s) but not for Evaluated
Data and for non-point sources of pollution. If you do not have good
background data or know for sure where the pollutant(s) are coming
from, these would be, at best, shots-in-the-dark. And, if the
milestones were not being met, along a predetermined time line, the
proposed regulations would require enforceable actions to see that they
were met.
2. Another concern by this department is that of non-point sources
as compared to point sources.--Point sources are known entities
contributing known quantities of a pollutant or pollutants. Non-point
sources are generally assumed sources which may or may not contribute
unknown quantities of a pollutant or pollutants. The problem of
regulating non-point sources is compounded when coupled with
waterbodies considered threatened or impaired upon the basis of
evaluated data. How is it possible to assign pollutant(s) loads to
potential non-point sources which may or may not be contributing to a
water quality problem? And then to require enforcement to make sure
assumed corrective actions or measures are being implemented to achieve
arbitrarily chosen milestones along an arbitrarily chosen time line?
3. Unfunded Mandates Reform Act.--On page 46043 of the draft, you
State ``In addition, since today's proposal does not impose any
requirements on the private sector, the private sector will incur no
costs. Thus, today's proposal is not subject to the requirements of
section 202 and 205 of UMRA''. We disagree with this statement in that
it will be the private sector, including farmers, that will have to
implement measures to reduce (in most cases assumed) pollutant loads.
It is by no means clear that all of the measures required to be
implemented by the suspected pollutant source will be fully funded.
Then there is the issue of maintenance of the measures and the
potential impact that some of the measures may have on a farming
operation, particularly if those measures go beyond standard
agricultural Best Management Practices. These costs could be
substantial to a farming operation.
In summary, the Maine Department of Agriculture, Food and Rural
Resources is concerned about the impact that the proposed regulations
will have on farmers and recommends that you re-consider some of your
proposed requirements. We are particularly concerned with the proposal
to require TMDL's for waterbodies assumed to be threatened or impaired
on the basis of ``Evaluated Data'' and when the sources of suspected
pollutants are non-point. It is our recommendation that TMDL's only be
required for those waters which have strong supporting data; whether
the sources of pollutants is point or non-point. We do however feel
that the implementation plan for such TMDL's should be adjusted to
reflect the source of pollutant. If it is from a point source or
sources, the implementation plan proposed is appropriate. If however,
the source or sources are non-point, where an unknown amount of load is
coming from a number of suspected sources, more flexibility should be
allowed for the implementation plan requirements. For waters which are
assumed to be threatened or impaired from non-point sources on the
basis of evaluated data, we recommend an entirely voluntary program
which focuses on education and information. Data gathering should take
place on these waters during this time so that an accurate
determination of water quality becomes available for future
decisionmaking. This would be a much more defendable approach and one
which would not unfairly burden a potential pollutant source (farmers)
in the watershed of a waterbody in which a water quality problem is
assumed.
Thank you for your consideration of our comments and concerns. We
would be glad to discuss any of the issues raised.
Sincerely,
Peter N. Mosher,
Director, Office of Agricultural, Natural
and Rural Resources.
______
Maine Department of Environmental Protection,
January 19, 2000.
Ms. Carol Browner, Administrator,
Environmental Protection Agency,
Washington, DC.
Dear Ms. Browner: The Environmental Protection Agency's proposed
changes to the TMDL and NPDES programs are a source of concern to our
agencies, our customers in the broad communities we serve, and the
citizens of Maine. As Commissioners of two of Maine's major natural
resource agencies, we submit the following comments regarding the
Proposed Revisions to the Water Quality Planning and Management
Regulation: Proposed Rule, 40 CFR Part 130. Our comments address
specific issues important to Maine. In addition, the Maine Department
of Environmental Protection (MEDEP) has communicated other issues
jointly with other New England States in the consensus comments
submitted by the New England Interstate Water Pollution Control
Commission, dated December 9, 1999.
STAFF RESOURCES WILL NOT BE SUFFICIENT
While we commend EPA's effort to expand the scope of and accelerate
the schedule for the TMDL process, we, like many other States, are
concerned about the resources available to do the job. We expect that
the effort as proposed would require, at a minimum,.double the staff
resources currently available for Maine's TMDL work. We also question
whether US EPA will have the staff available to review the States' TMDL
submissions on a timely and meaningful basis.
Maine has been at the forefront in using TMDLs as a key aspect of
our regulatory process. We have been moving forward with the TMDL
process as quickly as any other State. Maine recently completed a TMDL
for the Salmon Falls River, which forms a portion of the boundary
between Maine and New Hampshire. Getting approval of the TMDL was not
easy. Maine DEP submitted the TMDL in May 1999, and it was approved
after revision in November 1999.
Maine is also concerned that the current science and available data
behind the TMDL process, particularly in the case of non-point source
pollutants, may not be ready to support the program as prescribed in
the proposed rule. We like the idea of developing a market-based system
for trading offsets to reduce pollution loads, and we hope that
practical methods to do so will be developed in the coming years.
Maine also submits that the States should have more latitude in
setting its own criteria and priorities for TMDL development, based not
only on the nature and severity of impairment, but also on how quickly
a water body might be restored to attainment. We believe we should
direct our resources to provide a balance between the difficult and the
achievable cases. Added requirements to the TMDL process and the NPDES
program without significant additional resources will detract from the
State's overall ability to address water quality issues.
THE PROPOSED RULES MAY NOT ADD REAL LEVERAGE IN ADDRESSING NON-POINT
SOURCE POLLUTION
Regarding non-point source issues, particularly for silviculture
and agriculture, we question whether the proposed rule will really
advance us any faster toward our clean water goals. Maine is working
hard within both the agriculture and forestry communities to develop
and implement Best Management Practices (BMPs). In recent years, Maine
has passed both a Forest Practices Act and a Nutrient Management Law.
MDEP includes non-point source pollution in our TMDL process to the
maximum extent possible within the constraints of available data and
science. And we already have enforcement authority for specific
instances of discharges into the State's waters.
EPA's treatment of and requirements for ``reasonable assurance''
for non-point sources is open-ended and nonspecific, but includes most
of the very same mechanisms that the State already implements under its
319 program and through its water quality laws. At the same time,
protocols by which NPDES permits would be applied to non-point sources
are left to the States to develop with Federal oversight and
opportunities for public challenge. The proposed definition of
``threatened waterbodies'' in the TMDL leaves open the possibility that
NPDES permit issues may be raised before a TMDL can be completed for a
watersheds, thus spawning procedural debate that could actually delay
implementation of efforts to reduce pollution. Maine is concerned that
the proposed TMDL process may turn out to be a circuitous, costly, and
contentious route to get us to where we are today: quantifying non-
point source loads when data and resources are available, prescribing
BMPs for non-point sources, providing technical and financial
assistance when possible, and taking enforcement action when
appropriate.
WHY THE NEED TO REMOVE THE CATEGORICAL EXCLUSION FOR SILVICULTURE
While water pollution from silviculture may be a major cause of
impaired waters in other regions, silviculture has not been identified
as a major source for water bodies on Maine's 303(d) list. Instances of
water pollution from logging operations do occur, and nonpoint source
pollution issues are taken very seriously in Maine. Effective State
water quality laws and programs encourage use of Best Management
Practices. In August, Maine delivered its ``Nonpoint Source Control
Program: Program Upgrade and 15-Year Strategy'', including a
substantial forestry component, in accordance with its mandate under
the Clean Water Act Section 319 and CZARA Section 6217. EPA's own
review described Maine's nonpoint source program as ``exemplary . . .
one of the best in the nation''.
While EPA's representation of the change in silviculture's status
is that of a ``backstop'' that will come into force only in very rare
instances, the proposed rules for treating forestry operations as point
sources are vague; they provide broad authority without clear
guidelines for the exercise of that authority. As stated above, we
suggest that providing the authority for NPDES permitting of forestry
activities, even as a backstop, will politicize the entire TMDL
process, from the 303(d) listing and the reasons for impairment, to the
TMDL itself, to the implementation plan. The proposed rules for
requiring an NPDES permits would require extensive analysis, and could
cause administrative delays and contentious implementation. The State's
efforts to implement the provisions of the proposed rules (or defend
its application of them) could divert scarce resources away from
direct, effective mechanisms including enforcement of pollution laws,
monitoring and training in use of Best Management Practices (BMPs).
Finally, the proposed process could provide an inappropriate and
inefficient forum for debate or litigation of State forestry and water
quality policy.
EPA's estimates of additional costs and burdens to the State due to
the proposed changes may dramatically underestimate the landowners and
State's actual costs of administering the program, especially given the
importance and widespread nature of forest management in Maine's
economy. The costs to Maine's economy and to forest management are even
more uncertain. In the worst case, the proposed rules could increase
regulatory overhead for many responsible forest operators without a
substantial change in actual practice.
Taken as a whole, the proposed rules magnify the complexity of an
already underfunded water quality assessment, planning and permitting
system. We hope you will consider our comments and concerns.
Thank you for this opportunity to provide comments on this
important matter.
Sincerely,
Martha G. Kirkpatrick, Commissioner,
Maine Department of
Environmental
Protection.
Ronald Lovaglio, Commissioner,
Maine Department of
Conservation.
______
State of Maine, Department of Conservation,
Augusta, ME, January 18, 2000.
Ms. Carol Browner, Administrator,
Environmental Protection Agency,
Washington, DC.
Ms. Browner: The Environmental Protection Agency's proposed changes
to the TMDL and NPDES programs are a source of great concern to the
Maine Forest Service, the broad communities we serve, and ultimately to
the citizens of Maine. We are writing to register the Maine Forest
Service's strong opposition to the changes as proposed.
The proposed rules increase requirements of the TMDL and NPDES
programs, and substantially increase the burden to State agencies,
without a commensurate benefit to water quality. Of greatest concern is
extending these programs to nonpoint sources, particularly with the
proposed removal of the categorical exclusion of silviculture from the
definition of ``point source''. This single change would severely
hamper forestry practice and collaborative development of forest policy
in Maine.
EPA's representation of the change in silviculture's status is that
of a ``backstop'' that will come into force only in very rare
instances. The proposed rules, taken in their entirety, are vague in
their implementation; provide broad authority without clear guidelines
for the exercise of that authority; and finally, effectively impose on
States a new mechanism for Federal oversight and public participation
(including litigation) in forest policy and regulation based on
hypothetical water quality impacts.
WHY THE NEED FOR ADDITIONAL FEDERAL REGULATION?
The highest quality water in Maine and nationwide comes from
forested watersheds, and millions of dollars are spent in other States
to restore forest cover in impaired watersheds. Maine's own
``enforceable authorities'' relating to nonpoint source pollution,
including that from forestry, were deemed adequate by a recent EPA
study. Simply stated, the ``gap in regulatory coverage'' that EPA seeks
to close by removing the categorical exclusion of silviculture is
largely theoretical, or at best a regional issue. From the Maine Forest
Service's perspective, EPA's proposal is unnecessary and does not
ensure significant, real changes in ``on the ground'' forestry
practices to protect water quality.
Instances of water pollution from logging operations do occur, and
nonpoint source pollution issues are taken very seriously in Maine.
Effective State water quality laws and programs encourage use of Best
Management Practices. In August, Maine delivered its ``Nonpoint Source
Control Program: Program Upgrade and 15-Year Strategy'', including a
substantial forestry component, in accordance with its mandate under
the Clean Water Act Section 319 and CZARA Section 6217. EPA's own
review described Maine's nonpoint source program as ``exemplary . . .
one of the best in the nation''.
WILL EPA'S CHANGES HELP?
EPA's proposed rules ignore the nature of nonpoint pollution
sources and Best Management Practices. Protocols for treating forestry
operations as point sources are vague, but likely would require
extensive analysis, administrative delays, contentious implementation
plans (potentially mandating specific BMPs), and burdensome permits.
The State's efforts to implement the provisions of the proposed rules
(or defend its application of them) will divert scarce resources away
from direct, effective mechanisms including enforcement of pollution
laws, and monitoring and training in use of Best Management Practices
(BMPs).
The proposed rules include numerous requirements for States to
``enhance'' implementation of the TMDL/NPDES programs, including new
requirements for preparation of 303(d) lists of impaired or threatened
waters, submission to EPA of a methodology for listing and requirements
for setting priorities; and required elements of a TMDL and
implementation plans. These requirements alone will place a substantial
burden on the State. EPA's treatment of and requirements for
``reasonable assurance'' for nonpoint sources includes most of the very
same mechanisms that the State already implements under its 319 program
and through its water quality laws; in effect, preparation of a
particular watershed TMDL will likely be a longer, more circuitous,
more costly, and potentially contentious route to many of the same
measures already being directed toward nonpoint sources.
EPA's analysis indicating small economic impacts to small entities
is predicated on the simple assumption that few silvicultural
operations will be designated point sources. However, EPA and the
analysts who prepared the study agree that the frequency of such
designation is ``highly uncertain.'' The uncertainty of economic
impacts further underscore that the rules would increase regulatory
overhead without substantial change in actual practice.
WHEN WOULD THE PROPOSED RULES APPLY, AND WHAT WOULD THEY CONTRIBUTE?
EPA contends that it will require silvicultural sources to obtain a
NPDES permit only in ``limited'' circumstances. Our concern and
responsibility is for a consistent, progressive policy addressing
forestry water quality issues for the long term. There are numerous
avenues for the proposed rules to become a future battleground for
contentious forestry issues, even before any specific TMDLs identify
forestry as a significant pollutant source in a given watershed. The
proposed definition of ``threatened waterbodies'' in the TMDL rules
establishes grounds for including waterbodies or watersheds currently
meeting water quality standards, and with the opportunity for citizen
petitions to establish a TMDL, leaves open virtually any waterbody to
examination. NPDES permit applications and attached conditions are open
to public challenge and subject to ``discretion'' and interpretations
of EPA regional administrators. Any application of EPA permits to
forestry will likely invoke review and consultation under provisions of
National Marine Fisheries Service's new designations of Essential Fish
Habitat, and the Endangered Species Act. With proposed listing of
Atlantic salmon as endangered in Maine, NPDES permit issues may well be
raised before a TMDL can be completed on any of the watersheds,
spawning needless debate and detracting from current conservation
efforts.
Taken as a whole, these regulatory mechanisms make the prospects
for ``limited'' application of NPDES permits seem remote, and magnify
the complexity of an already confusing Federal permitting system. EPA
characterizes the likelihood of exercising its authority under the
silviculture provision as ``unpredictable.'' Not recognizing that there
will be future attempts to debate or litigate State forestry and water
quality policy via the proposed rules suggests a lack of long-term
vision beyond the first years of the proposed rules' implementation.
Finally, EPA's assertion that new or significantly expanding
dischargers might be granted NPDES permits by obtaining offsets in
pollutant from nonpoint sources such as silviculture is highly
impractical, and sends the wrong message to forestry operators who are
already being required virtually to eliminate any discharges through
use of Best Management Practices. Based on current Maine law which
prohibits unlicensed discharges of pollutants from any source, forestry
will likely not be eligible for offsets as proposed by EPA.
Maine is seeking delegation to administer EPA's NPDES program.
Maine has what EPA has characterized an ``exemplary'' nonpoint source
program and silvicultural policies. The proposed rules will add
pressure, including court actions, both to EPA and the State, to expand
our 303(d) list, as well as to address silviculture as a point source
and require individual NPDES permits if the categorical exemption is
removed. EPA's estimates of additional costs and burdens to the State
due to the proposed changes may dramatically underestimate the
landowners and State's actual costs of administering the program. The
unknown costs and increased burdens of the proposed rule is clearly not
warranted by current impacts of silviculture to water quality.
Sincerely,
Thomas C. Doak,
Director, Maine Forest Service.
__________
Statement of Ronald Poltak, Executive Director, New England Interstate
Water Pollution Control Commission
Mr. Chairman, members of the committee and subcommittee, my name is
Ronald Poltak, Executive Director of the New England Interstate Water
Pollution Control Commission. The Commission is a federally sanctioned
interstate agency charged with water pollution management
responsibilities working with the six New England States and New York.
I appear before you this afternoon on behalf of the Commission,
which supports the intent of the TMDL process which is before you
today. As interstate agencies like ours are set up to manage on a
watershed basis, we believe the EPA should encourage States to use
interstate commissions to maintain consistency across the State lines
in the development of TMDLs.
I also speak on behalf of other interstate commissions and the
Interstate Council on Water Policy (ICWP), and the role they have
played or can play in forwarding the goal of clean water under the
Clears Water Act, specifically through the TMDL process.
1. I see the following as key interstate roles on shared
waterbodies:
Monitoring and assessing water quality;
Establishing uniform or consistent uses and criteria to
protect them;