SPEAKERS CONTENTS INSERTS
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IMPROVING WATER QUALITY: STATES' PERSPECTIVES ON THE FEDERAL WATER POLLUTION CONTROL ACT
WATER RESOURCES AND ENVIRONMENT
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
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ONE HUNDRED SEVENTH CONGRESS
FEBRUARY 28, 2001
Printed for the use of the
Committee on Transportation and Infrastructure
For sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: (202) 5121800 Fax: (202) 5122250
Mail: Stop SSOP, Washington, DC 204020001
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
DON YOUNG, Alaska, Chairman
THOMAS E. PETRI, Wisconsin, Vice-Chair
SHERWOOD L. BOEHLERT, New York
HOWARD COBLE, North Carolina
Page 3 PREV PAGE TOP OF DOCJOHN J. DUNCAN, Jr., Tennessee
WAYNE T. GILCHREST, Maryland
STEPHEN HORN, California
JOHN L. MICA, Florida
JACK QUINN, New York
VERNON J. EHLERS, Michigan
SPENCER BACHUS, Alabama
STEVEN C. LaTOURETTE, Ohio
SUE W. KELLY, New York
RICHARD H. BAKER, Louisiana
ROBERT W. NEY, Ohio
ASA HUTCHINSON, Arkansas
JOHN COOKSEY, Lousiana
JOHN R. THUNE, South Dakota
FRANK A. LoBIONDO, New Jersey
JERRY MORAN, Kansas
RICHARD W. POMBO, California
JIM DeMINT, South Carolina
DOUG BEREUTER, Nebraska
MICHAEL K. SIMPSON, Idaho
JOHNNY ISAKSON, Georgia
ROBIN HAYES, North Carolina
ROB SIMMONS, Connecticut
MIKE ROGERS, Michigan
SHELLEY MOORE CAPITO, West Virginia
Page 4 PREV PAGE TOP OF DOCMARK STEVEN KIRK, Illinois
HENRY E. BROWN, Jr., South Carolina
TIMOTHY V. JOHNSON, Illinois
BRIAN D. KERNS, Indiana
DENNIS R. REHBERG, Montana
TODD RUSSELL PLATTS, Pennsylvania
MIKE FERGUSON, New Jersey
SAM GRAVES, Missouri
C.L. (BUTCH) OTTER, Idaho
MARK R. KENNEDY, Minnesota
JOHN ABNEY CULBERSON, Texas
BILL SHUSTER, Pennsylvania
JAMES L. OBERSTAR, Minnesota
NICK J. RAHALL II, West Virginia
ROBERT A. BORSKI, Pennsylvania
WILLIAM O. LIPINSKI, Illinois
PETER A. DeFAZIO, Oregon
BOB CLEMENT, Tennessee
JERRY F. COSTELLO, Illinois
ELEANOR HOLMES NORTON, District of Columbia
JERROLD NADLER, New York
ROBERT MENENDEZ, New Jersey
CORRINE BROWN, Florida
JAMES A. BARCIA, Michigan
Page 5 PREV PAGE TOP OF DOCBOB FILNER, California
EDDIE BERNICE JOHNSON, Texas
FRANK MASCARA, Pennsylvania
GENE TAYLOR, Mississippi
JUANITA MILLENDER-MCDONALD, California
ELIJAH E. CUMMINGS, Maryland
EARL BLUMENAUER, Oregon
MAX SANDLIN, Texas
ELLEN O. TAUSCHER, California
BILL PASCRELL, Jr., New Jersey
LEONARD L. BOSWELL, Iowa
JAMES P. McGOVERN, Massachusetts
TIM HOLDEN, Pennsylvania
NICK LAMPSON, Texas
JOHN ELIAS BALDACCI, Maine
MARION BERRY, Arkansas
BRIAN BAIRD, Washington
SHELLEY BERKLEY, Nevada
BRAD CARSON, Oklahoma
JIM MATHESON, Utah
MICHAEL M. HONDA, California
RICK LARSEN, Washington
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SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT
JOHN J. DUNCAN, Jr., Tennessee
SHERWOOD L. BOEHLERT, New York
WAYNE T. GILCHREST, Maryland
STEPHEN HORN, California
VERNON J. EHLERS, Michigan
STEVEN C. LaTOURETTE, Ohio
SUE W. KELLY, New York
RICHARD H. BAKER, Louisiana
ROBERT W. NEY, Ohio
ASA HUTCHINSON, Arkansas
RICHARD W. POMBO, California
DOUG BEREUTER, Nebraska
MICHAEL K. SIMPSON, Idaho
HENRY E. BROWN, Jr., South Carolina
BRIAN D. KERNS, Indiana
DENNIS R. REHBERG, Montana, Vice-Chair
C.L. (BUTCH) OTTER, Idaho
JOHN ABNEY CULBERSON, Texas
Page 7 PREV PAGE TOP OF DOCBILL SHUSTER, Pennsylvania
DON YOUNG, Alaska
PETER A. DeFAZIO, Oregon
ROBERT MENENDEZ, New Jersey
GENE TAYLOR, Mississippi
EARL BLUMENAUER, Oregon
JAMES P. McGOVERN, Massachusetts
NICK LAMPSON, Texas
BRIAN BAIRD, Washington
FRANK MASCARA, Pennsylvania
MARION BERRY, Arkansas
ROBERT A. BORSKI, Pennsylvania
BOB FILNER, California
EDDIE BERNICE JOHNSON, Texas
JUANITA MILLENDER-MCDONALD, California
BILL PASCRELL, Jr., New Jersey
MICHAEL M. HONDA, California
JAMES L. OBERSTAR, Minnesota
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Craig, Jon, Director, Water Quality Division, Oklahoma Department of Environmental Quality, and President, the Association of State and Interstate Water Pollution Control Administrators, accompanied by Roberta Savage, Executive Director, Association of State and Interastate Water Pollution Control Administrators
Hoeven, Hon. John, Governor, State of North Dakota, on behalf of the National Governors' Association
Kitzhaber, Hon. John A., Governor, State of Oregon
Tulou, Christophe A.G., Deputy Director for Intergovernmental Liaison, the Environmental Council of the States
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Blumenauer, Hon. Earl, of Oregon
McGovern, Hon. James P., of Massachusetts
Otter, Hon. Butch, of Idaho
Young, Hon. Don, of Alaska
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Page 9 PREV PAGE TOP OF DOC Craig, Jon
Hoeven, Hon. John
Kitzhaber, Hon. John A
Tulou, Christophe A.G.
IMPROVING WATER QUALITY: STATES' PERSPECTIVES ON THE FEDERAL WATER POLLUTION CONTROL ACT
Wednesday, February 28, 2001
House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Water Resources and Environment, Washington, D.C.
The subcommittee met, pursuant to notice, at 10:00 a.m., in room 2167, Rayburn House Office Building, Hon. John J. Duncan, Jr. [chairman of the subcommittee] presiding.
Mr. DUNCAN. I would like to welcome everyone to the first Water Resources and Environment Subcommittee hearing of the 107th Congress.
I should say the first of many. As some of you know, when I was Chairman of the Aviation Subcommittee, I think we held more hearings than any other subcommittee in the Congress. I expect we will be just as busy in this subcommittee because we have many areas of jurisdiction, plus I do feel that hearings are very educational for myself and for other members.
Today, we will hear from witnesses who will present State perspectives on the Federal Water Pollution Control Act, the Clean Water Act. We are very fortunate to have two very distinguished panels today.
Page 10 PREV PAGE TOP OF DOC First, we will hear from Governor Hoeven of North Dakota representing the National Governors' Association and Governor Kitzhaber of Oregon. We are very pleased to have both of the governors with us.
Next, we will hear from Mr. Christophe Tulou, Deputy Director, Environmental Council of the States, the group that represents the heads of State environmental agencies and Mr. John Craig, Director of Oklahoma's Water Quality Program and President, Association of State and Interstate Water Pollution Control Administrators, the group that represent State water quality program directors.
We have not asked the witnesses to focus on any specific issues. Instead, I hope to hear from them about the issues they think the Congress should focus on so we can take their input, knowledge and experience into account as we set our agenda for this Congress. I also hope this hearing will provide the members with an overview of current issues relating to the Clean Water Act and its programs.
Of course we will ask EPA Administrator Whitman to testify at a later hearing about the Administration's priorities. A few days ago I had a very nice meeting with her in which we discussed a great many issues. At a later hearing, we will also hear from various stakeholders on specific clean water issues such as water infrastructure needs, total maximum daily loads, wetlands issues and regulations, and other matters.
However, since States implement the Clean Water Act, it is particularly appropriate that we listen to them about the priorities and needs of Clean Water programs. Not all of issues raised today will be legislative issues, but as everyone knows, this committee and subcommittee has the primary oversight jurisdiction for most of these programs, so it is just as important for us to oversee the implementation of Federal programs like the Clean Water Act as it is to legislate changes.
We all share the goal of protecting and improving water quality. While there may be some disagreements on how best to achieve that goal, I hope that by listening to the experts and people such as the governors who have firsthand experiences with the problems, that we can work together in a bipartisan manner and then make significant progress toward achieving the goals that all of us have.
Page 11 PREV PAGE TOP OF DOC I would now like to recognize my good friend, the distinguished Ranking Member of the Subcommittee, the gentleman from Oregon, Mr. DeFazio for any comments he may wish to make.
Mr. DEFAZIO. Thanks, Mr. Chairman, for scheduling this first hearing on water quality issues. I believe that this bodes well for the efforts of this subcommittee under new leadership in this Congress.
I particularly want to welcome my Governor here today. He has a reputation both within the State and I believe nationwide of putting forward innovative programs to protect and enhance our environment, both for the current generation and for future generations. I look forward to hearing his concerns and views on the Clean Water Act and what we can do to make it work better in partnership with concerned States like Oregon.
I believe that the Clean Water Act is, for the American public, one of the most successful and favored of our environmental laws. I can remember when I was young and driving across the country, driving across a bridge in the midwest in Ohio and there was a sign on the bridge that said, ''Do not throw lighted objects from bridge, flammable substance below.'' I looked out the window of my car and there was a river. This was not to long after the Cuyahoga River had burned for several days.
The American people demanded and Congress delivered upon a promise, a very successful promise. We accomplished some of the easiest parts of the Clean Water Act in terms of adding to sewage treatment capacity and getting primary point solution pollution resolved, although there are still challenges there. Certainly there are challenges when it comes to infrastructure but there are other concerns that have to do with nonpoint source pollution. I think maybe we will get into some of that today. There are concerns that much of the infrastructure we put in place to meet the Clean Water Act is already aging or over capacity.
Earlier this month, I participated in an announcement of a report of the Water Infrastructure Network which documents the needs in this area, $23 billion a year of annual shortfall to meet current known needs. I am hoping, Mr. Chairman, that we will be able to move forward with hearings and the development of legislation to address some of those unmet needs in cooperation and coordination with our partners at the State level.
Page 12 PREV PAGE TOP OF DOC I look forward to hearing the testimony and thank you for holding this hearing.
Mr. DUNCAN. Thank you very much.
Mr. Horn. I will pass until I can ask some questions.
Mr. DUNCAN. Mr. McGovern?
Mr. MCGOVERN. I have a statement which I would like to submit for the record.
Let me say briefly that I appreciate you holding this hearing today on water quality issues.
I think as the only New England member on this particular panel, I want to associate myself with your comments and the Ranking Member's comments about the importance of Federal support for clean water infrastructure. I hope that maybe some of the witnesses can touch on that issue today in their testimony. I hope this subcommittee will focus a great deal of attention on that issue in the coming months.
I have long felt that we should develop a Waste Water and Drinking Water Infrastructure Trust Fund similar in scope to TEA21. The infrastructure needs, not only in New England, but throughout the country, are so incredibly great that we are not going to make very much progress unless we put more of a Federal commitment behind it.
I appreciate you holding these hearings and look forward to working with you in the months ahead.
Mr. DUNCAN. Thank you very much.
Ms. KELLY. Thank you.
I want to thank you very much for holding the hearing today and also, I want to thank our witnesses for coming to testify because the perspective that you offer us today is so important to the work that we are going to undertake in the committee this year.
Page 13 PREV PAGE TOP OF DOC I wanted to comment briefly on one of the issues I know to be of great importance to all States. That is wastewater infrastructure.
For several years now I have been working to strengthen the Federal commitment to the Clean Water State Revolving Fund. It is my hope that this year we are going to finally be able to take the steps we need in order to ensure that the State Revolving Fund funding levels start reflecting more accurately the tremendous needs that we face. I know in my State alone, New York, we face close to a $20 billion wastewater infrastructure need over the next 20 years.
I just recently reintroduced the Clean Water Infrastructure Financing Act which authorizes $3 billion a year for the State Revolving Fund over the next five years. This funding level would more than double the funding that we provided annually for the State Revolving Fund in the last few years. We need to do more to strengthen this program. I hope to work with you, Mr. Chairman, and my colleagues, in addressing this important issue in the coming months.
I am very much looking forward to hearing the testimony of our witnesses.
Mr. DUNCAN. Thank you very much.
Mr. SHERWOOD. Thank you, Mr. Chairman. I am glad to be a part of these hearings. I am interested to hear what the governors have to say.
I am from a district in Pennsylvania that is in the Chesapeake Bay Program and we have lots of combined sewer overflow problems and acid mine drainage problems. We have lots to work on and I am here to learn about sensible solutions on which we can all work.
Mr. DUNCAN. Mr. Baird.
Mr. BAIRD. Thank you.
I want to compliment you for hosting the hearing and welcome our witnesses, particularly my friend, Governor Kitzhaber from the South. We share the Columbia River and a number of related water and salmon issues. Governor Kitzhaber has been a national leader on these kinds of issues and I welcome him here today.
Page 14 PREV PAGE TOP OF DOC Mr. DUNCAN. Thank you.
Mr. OTTER. Thank you.
I would like to thank you for calling this hearing today and I am pleased this committee is starting off the 107th Congress by focusing on the important issues to the States. It is the States, counties and cities that are forced to comply with thousands of rules and regulations that originate here in Washington, D.C.
I look forward to working with you and the subcommittee to provide much more flexibility to the States, cities and the counties.
Mr. DUNCAN. We will go ahead and start with our first panel. As I said previously, we are very pleased and honored to have today two outstanding governors, Governor Hoeven and Governor Kitzhaber. We proceed in the order the witnesses are called for the hearing. Governor Hoeven, we will start with you. You may begin your statement.
STATEMENT OF HON. JOHN HOEVEN, GOVERNOR, STATE OF NORTH DAKOTA, ON BEHALF OF THE NATIONAL GOVERNORS' ASSOCIATION
Governor HOEVEN. Thank you, Mr. Chairman.
Good morning, Mr. Chairman and members of the subcommittee. I am John Hoeven, Governor of the State of North Dakota. I am here today representing the National Governors' Association.
I currently serve as a member of the National Governors' Association Committee on Natural Resources. Governors are looking forward with great enthusiasm to working with Congress as well as with the new Administration. I appreciate the opportunity to provide testimony today on Clean Water Act issues and other environmental priorities of the National Governors' Association.
Page 15 PREV PAGE TOP OF DOC Reauthorization of the Clean Water Act is among the most important goals for the Nation's governors. We recognize that achieving such an ambitious feat in this Congress may not be possible. Nevertheless, we believe there are important issues that can be addressed short of reauthorization and we are committed to working with this subcommittee to accomplish that end.
Many States use a holistic, watershed approach focuses on water supply, water quality, water conservation, flood protection, land use and protection of wildlife resources. We believe a watershed approach is the best way to achieve water quality standards.
To achieve successful watershed management, States must remain responsible for pollution protection and priority setting. States must also have the flexibility to set appropriate standards and utilize alternative management programs and provide equivalent water quality programs. The governors believe that watershed programs can allow States to tailor their efforts to best manage their environmental circumstances and conditions. For example, North Dakota accesses Section 319 funds for a wide array of watershed projects such as wetland restoration and improved flood management.
Watershed approaches also enable States to address nonpoint sources. Unlike industrial sources that are regulated at the point of discharge, nonpoint source runoff control requires the highest degree of innovation and flexibility to achieve progress.
The governors believe that nonpoint source pollution controls should be handled on a watershed basis. The decision to implement voluntary or enforceable mechanisms must be left up to the States. Unless Congress or the EPA acts, regulations will go into effect this fall that require States to develop total maximum daily loads, TMDLs, for impaired water bodies. The governors are concerned that the regulations will lead to a shift in the traditional relationship between States and the Federal Government beyond what was intended by Congress. Farmers in North Dakota and across the United States are very concerned about these regulations.
Page 16 PREV PAGE TOP OF DOC Governors believe that TMDLs can be valuable tools used to achieve the Clean Water Act's goals but they should not be the only or even the primary tool. The failure of the current regulation to allow for alternative programs to achieve water quality standards is a significant flaw and should be rectified either through legislation or by a revised regulation.
The most significant role the Federal Government can play is to assist States by providing funds needed to achieve water quality goals. We know that the new Administration is sensitive to the unfunded mandate implications of the TMDL regulation and we hope we can work with EPA and the Congress to address our concerns.
The governors believe that the Federal National Pollutant Discharge Elimination System Permit Program has an important role to play for controlling point sources. At the same time, we believe that States should have the flexibility to design functionally equivalent programs for concentrated animal feeding operations, CAFOs. Functionally equivalent CAFO programs can be tailored to our needs to bring nonpoint sources into compliance with water quality standards, including voluntary and incentive-based State programs.
The most significant change in the CAFO regulation proposed by the former Administration revises the definition of a CAFO by decreasing the number of animal units that trigger the need for a permit. Such a change will dramatically increase the number of permits that States will be required to issue, monitor and if necessary, enforce. Some States have noted that the proposed change in definition may triple the number of animal feeding operations that are subject to an NPDES permit.
The regulation's cost analysis assumes that the cost of increased State oversight and enforcement requirements for such facilities that fall under the regulation as a result of the proposed changes will be minimal. Under the proposal, States would be mandated to implement a variety of new activities including monitoring ambient water both upstream and downstream from animal feeding facilities, establishing a reporting system and inspecting land application sites, in addition to the facilities themselves. The increase in the State's workload, in fact, would be significant and is unnecessary. For example, in North Dakota, we have State standards that are in place that are being successfully implemented at the State level.
Page 17 PREV PAGE TOP OF DOC Governors believe that the proposed CAFO regulation will have a substantial, direct effect on State costs. We hope that the EPA will reexamine the cost assumptions and we urge the Congress to conduct a hearing to determine the actual impact of the proposed changes and the burden to States.
We also would like to address State revolving funds. The State revolving funds are essential tools to address water quality and drinking water needs. The SRFs are State programs driven by priority concerns that vary among the States. Funding of the SRFs is vital and allows States to allocate funds to a diversity of projects and communities. As you know, several municipal and industry organizations have attempted to quantify future infrastructure needs with estimates ranging from $200 to $330 billion over the next 20 years.
In order to continue to provide constituents with clean water and safe drinking water, the governors recognize that solutions to this problem will be advanced by various interest groups. Proposals offering visions and specific plans to rectify the situation must be thoroughly reviewed. Congress should evaluate these options to determine their scope, recognition of States' leadership role and administrative simplicity. Any solutions adopted by Congress should provide the States with flexibility in how we use the money, eliminate set-aside requirements, allow States to shift grant funds and provide States the flexibility to recognize communities with special needs.
Finally, we want to raise a non-Clean Water Act issue over which the Subcommittee has some jurisdiction. Governors recognize that a comprehensive Superfund bill is probably unlikely to achieve bipartisan support in this Congress but we stand ready to work with this Subcommittee and others toward that end whenever Congress is ready. The possibility for brownfields legislation stands to have a better chance this year and governors believe that a bill encouraging brownfields revitalization is critical to the successful redevelopment of contaminated former industrial properties. There is no question that voluntary cleanup programs and brownfields redevelopment are currently hindered by a pervasive fear of Federal liability under the Federal Superfund law. We support legislation that with limited exceptions, will preclude enforce by EPA where cleanup has occurred or is being conducted under State programs and will provide liability protections for innocent owners and owners of property contiguous to contaminated sites.
Page 18 PREV PAGE TOP OF DOC Governors recommend that at brownfield sites, there be real assurances that a release of liability under State cleanup laws protective of human health and the environment constitutes, by operation of law, a release from Federal liability.
Another provision we believe is very important to include in any brownfields bill is a requirement that the governor's concurrence be obtained before a site in his or her State can be added to the National Priorities List.
Lastly, we would like to see a bill that includes a waiver of sovereign immunity for Federal facilities so that States can enforce State environmental laws. We seek to hold the Federal Government to the same standard of compliance as other parties in our States.
Again, I want to thank you, Mr. Chairman and members of the subcommittee, for this opportunity to share our views and I would be happy to take questions.
Mr. DUNCAN. Thank you very much, Governor Hoeven. You are right, we will be having hearings on the brownfields legislation shortly.
Governor Kitzhaber, we are certainly pleased to have you with us. Thank you for taking time out from your busy schedule to be with us. You may begin your statement.
STATEMENT OF HON. JOHN A. KITZHABER, GOVERNOR, STATE OF OREGON
Governor KITZHABER. Thank you.
For the record, I am John Kitzhaber, Governor, State of Oregon.
I would like to thank you and the members of the subcommittee for the opportunity today to testify on Oregon's perspectives of the Federal Water Pollution Control Act.
This Federal Act, which I will refer to as the Clean Water Act, is the center of extensive efforts by both private citizens and public officials in Oregon to restore water quality and aquatic habitat and all the beneficial uses that flow from healthy, functioning watersheds.
Page 19 PREV PAGE TOP OF DOC Today, I would like to comment on three aspects of that Act, first, Oregon's experience with Section 303(d) establishing total maximum daily loads or TMDLs; second, the streamlining of Section 404 permitting; and finally, the importance of Section 401 certifications.
First, I would like to mention several themes that run through all of Oregon's activities related to the Clean Water Act. Oregon is committed to doing whatever we must to achieve and maintain clean water and fully functioning aquatic habitats. We support strong national standards with flexibility for the States on how to meet those standards.
We have asked State and Federal agencies to work with local watershed councils and with landowners in support of watershed-based solutions to our water quality and species issues. Healthy watersheds, we believe, are the foundation of both economic and environmental sustainability.
The Federal Government must be a fully committed partner in these efforts at the ground level. Federal representatives must be available to participate with those who are making the key decisions about natural resource management in the States. The Federal Government must also lead by example and comply with the same Federal standards that are placed on States and private citizens. That is not the case today. For example, the dams operated by the Army Corps of Engineers in the Snake and Columbia River systems violate our water quality standards.
Finally, the Clean Water Act must be reauthorized in a way that supports new approaches, emphasizes local partnerships, offers meaningful and attractive incentives, removes disincentives and empowers private land managers to be good stewards of their lands.
To return to the three specific program examples, first is Oregon's experience with Section 303(d), Total Maximum Daily Loads. As one of the first States to tackle this program, Oregon has a great deal of experience, much of it learned the hard way, in how to approach doing TMDLs. We have currently established a schedule which will complete TMDLs for all Oregon basins by the end of 2007. We have developed a technical approach and with the strong support of our legislature, have assembled a technical staff that is sufficient to do the job.
Page 20 PREV PAGE TOP OF DOC Our effort is based in and draws its inspiration from a program we proudly call the Oregon Plan for Salmon and Watersheds. The Oregon Plan emphasizes a voluntary local participation through public/private partnerships to restore and protect water quality and aquatic habitats and watershed values in general.
The Oregon Plan is working. Although it is too early to document dramatic changes in watershed health, we can easily document the dramatic commitment of Oregonians. We now have over 90 watershed councils covering nearly the entire State, all dedicated to the same values that underlie the Clean Water Act.
That said, we still face challenges that Congress and the Federal agencies can help us with. First and foremost, we need the type of technical assistance that many Federal agencies, such as the NRCS, the BLM and the U.S. Forest Service, can provide. The fact is the States do not have the resources to provide all of this technical effort and it is unlikely that TMDLs can be fully implemented without the solid and ongoing funding and staffing of these activities in the Federal agencies.
Second is streamlining of Section 404 permitting. Oregon is committed to assuming the responsibility for issuing fill and removal permits pursuant to Clean Water Act, Section 404. Up to now, the process has required multiple permits from both Federal and State agencies and has not only created a delay in getting watershed restoration projects moving forward, but also a disincentive for private landowners wanting to make a positive contribution to restoring watershed health.
Oregon's new program will provide a one-stop center for such permits and will speed the process considerably without sacrificing any of the environmental protections necessary to assure that activities affecting the beds and banks of our waterways improve rather than impair water quality and habitat.
Finally is the importance of Section 401 certifications. The State of Oregon places great importance on our responsibilities to review Federal permits and actions for consistency with the Clean Water Act. We see this as one of the best opportunities to assure that Federal actions have the effect of helping rather than hurting water quality programs and is leading the way by setting a good example.
Page 21 PREV PAGE TOP OF DOC At the top of our 401 concerns is dam relicensing and dam operations because of the significant impacts these operations have on water quality. It is critical that Congress bolster States' 401 authority and resist anything that would make that authority more difficult to implement. We will fully cooperate to streamline Federal processes such as dam relicensing but not if the purpose of that effort is to weaken the State's role in 401 certification.
In conclusion, Mr. Chairman and members of the subcommittee, let me thank you again for granting me this opportunity to briefly comment on a few of Oregon's concerns and issues relating to the Clean Water Act.
Mr. DUNCAN. Governor, thank you very much.
Governor Hoeven, my friend, Governor McWhorter, a member of the other party left office a little over six years ago but he used to meet with the Tennessee delegation once every year. Every year, he would start off, please, no more unfunded mandates.
Speaker Gingrich when he first became Speaker in 1995 asked every committee and subcommittee to hold their first hearing on unfunded Federal mandates.
You said in your testimony you have seen a shift or noticed a fairly recent shift in relationship between the Federal Government and the States and you mentioned the potential tripling of animal feeding operations required to get clean water permits. Are things getting better or worse? What do you see in regard to that?
Governor HOEVEN. The shift we have seen in recent years has made it more difficult for us to do business. Again, we always want to make sure we are doing our best from a common sense standpoint to protect the environment in regard to all these issues, but we also have to do what is practical in our State. What works in Tennessee or perhaps in North Dakota, New York or California may differ. So we need to empower folks on the scene to get the job done right.
Page 22 PREV PAGE TOP OF DOC The tripling, for example, would be if the new requirement under the CAFOs were moved down to 300 animal units instead of the current 1,000. You can see it potentially would create a greatly increased burden on the State in terms of the enforcement and so forth. That is an example of one unfunded mandate that we are seeing. That is the type of thing we are continuing to see coming down from the EPA. It could be any number of issuesthe permitting process or any of the regulatory requirements.
In terms of where we see this going, President Bush and his Administration is talking about a new federalism and in that process what they have made apparent to the governors is that there is going to be a real effort on the part of the Administration and the regulatory agencies to work with governors to empower them to do what makes sense in their particular Stateagain, good, prudent standards, but flexibility to get the job done.
Mr. DUNCAN. I can tell you that my sympathies in sports always seem to lie with the underdog and in that vein, I have noticed it seems all the rules and regulations that come out seem to have their hardest or most adverse impact on small businesses, small farms, even small municipalities. I am wondering if you have also noticed that. It seems like big government primarily helps the big bureaucrats who work for the government and extremely big business, but some of the smaller and even now some of the medium-sized businesses, farms or municipalities seem to have more difficulty complying.
Governor HOEVEN. You are exactly right on that. For example, State revolving funds are very important to us. We need the flexibility to use them in a way that is beneficial. For example, we just had a large potato processing facility constructed in the south central portion of our State. It is a huge boom to farmers growing potatoes there.
While we want to see more money for SRF programs, we also need the flexibility to be able to use them in ways that work for us. In New York State, they may need to use it for industrial purposes but when you provide us with funds to do these things, make sure you give us the flexibility to do what works and what makes sense in our States.
Page 23 PREV PAGE TOP OF DOC Mr. DUNCAN. I don't want to see the regulations imposed in such a way that we run more small family farms out of business.
Governor Kitzhaber, you are a sponsor of the Western governors policy called ''Enlibra.'' Would you tell us a little about that? Part of it is based on some rewarding results rather than programs. Would you tell us about that and do you think the Federal Government is following or going along or is it placing barriers in the way of results oriented approaches?
Governor KITZHABER. The term ''Enlibra'' was actually coined by my friend, Governor Levitt of Utah. He believes this doctrine will be a success when you can find it in word check. That is a hybrid latin word meaning to move towards balance. It grew out of conversations the two of us had about some win-wins between environmental stewardship and economic development. In Utah, it had to do with Clean Air issues. In Oregon, it had to do with salmon restoration under the Endangered Species Act.
We tried to glean the common elements that led us to a win-win rather than a frustrating win-lose scenario which is very frequently the case in these kinds of conflicts in the west. What emerged was a set of eight principles starting with national standards, neighborhood solutions which is an acknowledgment, first of all, of the importance of Federal environmental standards and a desire to not lower the bar on these standards but to give States some flexibility in how they go about achieving them.
Another one was markets before mandates. I think the essence of this is to recognize that many of the things we need to do to comply with Federal environmental standards, the ESA for example, involve private landowners. While regulations are very important, there is a limit to the effectiveness of regulations because they provide the incentives to keep people from doing what is wrong but they don't provide any incentives for people to do what is right.
We basically found in the Oregon Plan for Salmon and Watersheds the Federal approach, a cooperative, collaborative approach with private landowners. I think our Federal environmental statutes are sound. I think the way they are implemented through the Federal agencies creates the primary problem. We have agencies that have different statutory mandates, that are not necessarily coordinated, that are like the blind men looking at the elephant; environmental policy does not follow political lines or agency boundaries. It needs to be much more holistic.
Page 24 PREV PAGE TOP OF DOC To the extent that the process of implementation with the States as full partners can be facilitated, I think that would be a great improvement.
Mr. DUNCAN. Thank you very much.
Mr. DEFAZIO. I would be remiss if I did not introduce one other notable Oregonian. Our Governor is esteemed, but before becoming Governor he held a much more important political position. He was President of the Oregon State Senate. The current President of the Oregon State Senate, Gene Durfler, is sitting behind Governor Kitzhaber, and I would like to recognize him and thank him for being here today.
Governor Hoeven referred to this in talking about animalfeed lot operations. I realize the State at this point is working with the legislature to revise standards we put in place to deal with animalfeed lot operations and the possibility of pollution from those areas. Yet, the EPA has come into the State in what I see as a very heavy handed manner. Instead of recommending changes using the OSHA model where you come in, do a survey, tell people what they can do to better comply, and I think virtually all Oregonians that I know want to comply, they are just dropping heavy fines on folks.
Do you have any concerns or comments on how that process could be improved?
Governor HOEVEN. We do have some concerns. Senator Pressler and I sent a letter to Charles Finley, who is the Acting Director of Region X, EPA, I think in October about this very issue.
We are a delegated State and we have had a law regulating feed lot operations through the Department of Agriculture since about 1987. We have about 500 of those that we permit. About 80 percent are dairy operations. We have had a cooperative relationship with the EPA since about 1995 but a few years ago they began to express concerns about whether our statutes were really aligned with Federal objectives. In fact, our statutes do not directly regulate operations that can fine unimproved surfaces like unvegetated soils and our threshold time level was four months as opposed to 45 days.
Page 25 PREV PAGE TOP OF DOC The EPA came to eastern Oregon in a couple of instances and just nailed some farm operations with no past history of violations with no warning and very heavy fines. A $50,000 fine is pretty big for a small family operation.
We have legislation going through right now that will bring our laws into alignment. We have also proposed by 2002 to bring all of these operations under the authority of the Oregon Department of Agriculture through a bill called Senate Bill 1010, which I am sure you are familiar with.
I do not question the importance of regulation and enforcement of Clean Water Act standards, and regulation and enforcement is a tool, but if it is the only tool we have in our toolbox, actually getting compliance is going to be a long and arduous process. We hope that they will back off a bit and let us get this bill through because the industry and the legislature are all working to achieve a program that meets the national standards and its regulatory requirements.
Mr. DEFAZIO. Do we have any indication they may, because I understood they were about to go on another round of search and find?
Governor HOEVEN. As a matter of fact, they started their operations again yesterday. Ironically, the first ranch they came in on is owned by the individual who is the chairperson of the Oregon Environmental Quality Commission, the Oregon equivalent of the EPA. I do not know whether that was on purpose or just a blunder but it will certainly have some interesting results. I do not know the outcome of the inspection either.
Mr. DEFAZIO. I share your concerns there and I think most if not all members of our delegation would like to help in those efforts to get more reasonable approaches to bring people into compliance.
You raised an issue on TMDLs about alternative programs not being allowed. I was wondering what you were getting at there; you sort of alluded to it in your testimony.
Page 26 PREV PAGE TOP OF DOC Governor HOEVEN. Again, we want to make sure we are taking a holistic approach in watershed management, so when we have drainage coming off a variety of fields, to try to track back to each individual field to find what pollutants are coming off that field, is very difficult. We want to utilize measurement techniques through our State health department, our ag department and so forth so that we can monitor and maintain the standard at that wetland or whatever it is we are trying to manage, but do it in a way where we can bring folks together and get them to collectively participate in a good, common sense solution rather than using solely TMDLs to measure each and every field.
Mr. DEFAZIO. Governor Kitzhaber, you referred to TMDLs and the intent of our State to have fully complied by 2007. I have one concern in this area. I have looked at the TMDLs and most of what they are talking about in Oregon is temperature related. I do not know what basis some of these TMDLs have in history. Generally, in my part of the State, the land runs cooler in the summer because we have impoundments and we are able to augment them.
This year, even with that augmentation, I expect virtually every river in the State, if we have a warm summer with a drought, is going to exceed the Federal TMDL. I am a little concerned about what sort of enforcement you might see from the Feds and how they accommodate acts of God and/or how these are based on historic conditions as opposed to an ideal conditions for some of the species we are trying to protect.
Governor KITZHABER. I cannot comment on how Congress deals with acts of God. You are probably better prepared to do that than I am.
We have a bill, Senate Bill 1010, that was passed a number of years ago which gives the enforcement authority for compliance with Clean Water Act standards where it reaches streams that run through agricultural operations to the Department of Agriculture rather than the Oregon Department of Environmental Quality because the industry is more comfortable with that agency as opposed to what is essentially primarily a regulatory agency, although the Department of Agriculture does have regulatory authority.
Page 27 PREV PAGE TOP OF DOC The problem you touch on speaks to the need to look on a watershed basis when you are establishing TMDLs because if you look at the reach of a stream that runs through an agricultural operation, there are a lot of things they can do to improve water quality and make their contribution to the TMDL.
However, if people are doing other things upstream, you ultimately do not achieve that, so the Oregon Plan for Salmon and Watersheds is sort of the umbrella coordinating entity that tries to put the individual TMDLs for different reaches of streams into a larger watershed context.
The Oregon Department of Environmental Quality is looking at the temperature standard and reviewing that right now because of some of the concerns you have raised.
Mr. DEFAZIO. My time has expired. Thank you, Governor. Thank you, Mr. Chairman.
Mr. DUNCAN. Mr. Horn?
Mr. HORN. Thank you. This is indeed a very interesting hearing. I am delighted to see two governors come here because you are responsible for quite a number of people and land throughout the United States.
What is the governors thinking and to what degree is the Clean Water State Revolving Loan Fund, what kind of thought have the governors given to that in terms of filling those funds and the little towns in Americawhere I grew up in Californiaand I know a town that needs water and maybe there are 650 people living there. What is your thinking on how we best fund that?
Governor KITZHABER. We rely, and particularly small communities will rely increasingly on funds passed through to the States for infrastructure. These are small towns that simply do not have the population base to make the infrastructure investments necessary to comply with Clean Water Act standards. A lot of these towns are towns that got caught in the transition in the west from primarily a natural resource-based economy to an information-based economy. They have had an out-migration of young people because they cannot find the job options, so it is really a downward spiral.
Page 28 PREV PAGE TOP OF DOC To the extent that we can, we should increase the State revolving funds and allow us to make those infrastructure investments in small, rural communities that will stabilize those communities economically and give them the ability to comply with the Federal Clean Water Act standards.
Mr. HORN. How do you see it, Governor?
Governor HOEVEN. The same way. State revolving funds are incredibly useful in our State and I think in all States but particularly for the rural States that have these smaller communities, it is a vital source of funding for an amazing array of projects, everything from the development of clean drinking water for that community to some of the economic development issues like I mentioned with the new potato processing plant.
I know that the Bush Administration feels that value added agriculture is going to be a real key to the success of agriculture and to the economic vitality of rural America. We need these SRF funds in order to capitalize on that. We need the flexibility as a State to be able to use them creatively and well.
Those needs will differ in every State and it will differ quite a bit in the industrialized States from some of the rural areas. The funds are vitally important and the flexibility to use them creatively is very important.
Mr. HORN. Have the governors added what the possible cost would be to meet various standards on the water processing, the distribution system and so forth? We happen to live in a capital city here where they had not really changed the distribution system until around the middle of the century. I do not mean the 20th Century either, I mean the earlier one. We know throughout the Nation, there is a lot of infrastructure that needs to be built. What is your figure for it over time and how do we deal with that?
Governor HOEVEN. In my testimony I referred to several municipal and industrial organizations that have put together some figures but the governors as an association have not put together that figure.
Page 29 PREV PAGE TOP OF DOC Mr. HORN. Should they? I think we would like your advice on it. Can we get it State-by-State as to this infrastructure that has to be brought up to speed?
Governor HOEVEN. That is something I would take back to the Association and my guess is they would be responsive to it.
Mr. HORN. We have a number of models on how you deal with that. Everyone says there is a surplus, what are you worried about, just give us the money and put it on the stump. The great trust funds that have changed America are the Interstate Highway Trust Fund and the Airport Improvements Fund. Do you think we should go that route? What is the unit with the interstate? Every time you get your car and your truck up there to get gasoline and diesel pumped in there. What is your thinking on that?
Governor KITZHABER. I am not sure I understand the question.
Mr. HORN. Where do we get the money? A lot of people say use the surplus. There are about 2,000 people that want part of the surplus and it is hard to say where to put it. Should there be a trust fund, should there be a nickel say for every 100 gallons of water and how do we get that, and what kind of trust fund do you put it in?
Governor KITZHABER. I would not back away from a revenue source dedicated to creating a corpus large enough to support these kinds of infrastructure investments. The State of Oregon currently is using a flow from our State lottery tothis is the proposalgenerate $200 million in bonds for exactly this purpose. We would be paying the debt service on that for another 15 years.
I think there is a responsibility at the State level to raise resources for this and I certainly think there is a responsibility at the Federal level. One the one hand, you cannot have Federal environmental standards and not have the ability to actually have those implemented at the local level. Part of that is certainly the State responsibility both fiscally and from a personnel standpoint. I do think the Federal Government needs to provide resources as well as technical expertise through the budget of the natural resource agencies to help us do that.
Page 30 PREV PAGE TOP OF DOC Mr. HORN. Governor Hoeven, how do you feel about a trust fund to get money for that State revolving loan fund?
Governor HOEVEN. First, on behalf of the National Governors' Association, we do not have a policy on that issue. For something like that, the governors would have to get together and determine what their policy is going to be.
Speaking as an individual governor, one of the things I have tried to do here today is emphasize flexibility for the States. It is very important we have Federal funding for SRF and all these important water development purposes. How the States may want to raise their share, be it a match or however, they may want some flexibility in that regard.
For example, in North Dakota, we are using some of the tobacco settlement dollars for our State water needs. We have a comprehensive State Water Development Program. I think it is a very strong program and we are using funds from that source to do some of the bonding. States may need some flexibility in how they approach the issue.
Mr. HORN. Maybe we could solve it by having an Indian tribe and a casino in every State and dedicate it there. They seem to have the money and some of you do not.
Mr. DUNCAN. Mr. Taylor.
Mr. TAYLOR. I want to apologize to the governors for running late. I appreciate you being here.
I was wondering if either, now or later, of you could supply to the committee, if the Governors' Association has an estimate of what the unfunded liability is for your various cities and States as far as getting up to the standards. How would we need to fund the Clean Water Revolving Fund in order to fulfill that need? I doubt you would have it off the top of your head but I think it would be great information for this committee.
One of the things we have been trying to do on those federally-maintained channels, which I am sure the State of Oregon has several and I would presume Nebraska would have a barge canal or two, just guessing is to get the Corps of Engineers to do good things with the dredge material that is generatedcreate reefs, create islands, create habitat. One of the frustrations I have experienced and I think also others, is the Corps keeps coming back to say there has to be a local cost-share. If it cost more than just putting the dredge material in the least cost place as opposed to the best environmental place, then the locals would have to come up with I believe 20 to 30 percent of the cost.
Page 31 PREV PAGE TOP OF DOC Being from a coastal State, I would make a request of you that if you could speak to the other governors from coastal States to see if we could not get your organization to support getting the Federal Government to pay for this 100 percent. I think doing something good for the environment is in everybody's interest. It is not just in Oregon's interest, not just in Mississippi's interest.
Since we have destroyed so much of our wetlands by omission and commission, I think as a Nation we would be much better off trying to rebuild some of them since we will be doing that dredging anyway. I would like to hear your thoughts on that because I have never visited your State, so I would like to hear if it would be applicable to what you are doing.
Governor KITZHABER. Certainly the issue of dredging and dredge spoils is a huge issue in Oregon. I know Congressman Baird can speak with authority on this as well. Right now we are undergoing a process of whether or not we will be able to deepen the Columbia River Channel, which is what allows us to bring cargo containers all the way to Portland which is our major export port. That is where most of the northwest wheat goes out. Evergreen out of Taiwan recently announced discontinuing to come up to Portland. Part of that is market conditions but if the channel is not deepened at some point, it will be difficult to continue bringing in those kinds of ships.
There are two issues. One is the environmental impact of the dredging itselfwhat are you stirring up on the floor of the Columbia and what implications does that have for fish and wildlife resource restoration in the Columbia River Basin. The second is what do you do with the spoils?
We have been exploring a variety of creative options of trying to locate places up and down the Pacific Coast that need significant fill, for example. We are costing that out as a possible opportunity to offset the fact that the Federal Government does not pay for all this.
Page 32 PREV PAGE TOP OF DOC I think we would continue to try to encourage more Federal participation in deferring the costs of those channel deepening exercises which really are part of interstate and even international commerce.
Mr. HORN. Governor Hoeven, please accept my apologies. Thanks for being such a gentlemen as to not point them out. My mistake.
Governor HOEVEN. I appreciate that. The Corps does a lot of work in our State and we would like to see as minimal a State match as possible. Clearly to the extent we can get more funding for Corps work, which is extensive, and reduce the State's burden in that process, we are very supportive of that.
The National Governors' Association does not have an official policy on that particular issue. I can always take it to them if you would like.
Mr. TAYLOR. That would be my request.
Mr. DUNCAN. I understand that Governor Kitzhaber has another appointment and has to leave us at this time. Mr. DeFazio?
Mr. DEFAZIO. I would like to thank the Governor for participating in today's hearing, and I look forward to his continued communication with me and other members of the committee on these issues. Mr. Baird had one brief question he wanted to direct to the Governor.
Mr. DUNCAN. That is fine.
Mr. BAIRD. Very briefly, could you identify the top two or three successes you have had in the regulatory streamlining process and what we, as a committee, should be attentive to and what the obstacles are? That may take longer and we can discuss it another time but it is a critical issue.
Governor KITZHABER. I would say the top two successes, which are successes in the making, I would not say we are over the top yet, are the Oregon Plan for Salmon and Watershed Restoration and a 3 million acre Blue Mountain demonstration project in eastern Oregon which is forest health demonstration project. The success of both of those efforts depends to a large extent on the availability of Federal technical assistance, consultation under NEPA and under the ESA.
Page 33 PREV PAGE TOP OF DOC I am distressed to learn, and I may be wrong, that the agencies are being asked to take a 20 percent cut at this point. I must tell you that to cut the ability of our natural resource agencies to actually make investments in our natural resources in the west does not make any sense to me. I do not want to get in the middle of this tax cut debate, but somewhere between $900 billion and $1.6 trillion, there ought to be a little bit of money to enhance the ability of our BLM, our Forest Service and the National Marine Fisheries Service to manage a huge natural resource in this country.
If you do not make those investments, these little rural communities may get a little tax reduction, but they are not going to have the ability to survive. What you can do is make sure we adequately fund our natural resource agencies.
Mr. BAIRD. Thank you.
Mr. DUNCAN. Thank you, Governor, for being with us. We know you have a very busy schedule, a very difficult job and we appreciate you being with us.
We will try to move quickly with the remaining questions for Governor Hoeven. I believe Mr. Sherwood was the first one here, so I will go to him next.
Mr. SHERWOOD. I am very interested in talking with you a bit about nonpoint source pollution. Being from eastern Pennsylvania, we are in the Chesapeake Bay Program and we have worked on nonpoint source pollution a great deal with agricultural runoff and forestry operations.
We have been reasonably successful but we are all concerned about EPA taking a big stab at taking over that for themselves. I wondered how that applied to North Dakota and what successes you thought you had had in controlling agricultural nonpoint source pollution?
Governor HOEVEN. I think a simple visit to North Dakota would demonstrate very clearly the States can do a good job of managing the runoff from fields into their wetlands and other areas, rivers, lakes and so on and truly comply with the standards set by the Clean Water Act.
Page 34 PREV PAGE TOP OF DOC I think a simple evaluation of what the States have been doing and making sure they are enforcing the standards if there are any areas where they are deficient would satisfy not only you but anyone else that the States are doing a good job. So when we ask for flexibility to do what makes sense in our States, I think that does take care of it.
Both Congress and EPA have the oversight they need to come in if there are individual circumstances or situations that need to be addressed.
Mr. Sherwood. Thank you.
Mr. DUNCAN. Mr. Honda?
Mr. HONDA. No questions.
Mr. DUNCAN. Mr. Gilchrest?
Mr. GILCHREST. Welcome, Governor. You come from a beautiful State and a great region of this great country.
I would like to ask a couple quick questions. One deals with something Mr. Sherwood brought up with TMDLs. My perspective on TMDLs is that it is making another attempt to improve stormwater management and to take the next step in improving best management practices for agriculture. I think if EPA, the States and the local jurisdictions that have ultimate control over land use, the county commissioners or county councils, mayors or planning and zoning commissions, if we can look at this as a positive thing as opposed to a negative, overreach, regulatory agency like the EPA taking away our rights, I think everyone will benefit. In the long run, we want to clean up our Nation's rivers and waterways.
Could you give us your perspective on how your State is improving stormwater runoff and best management practices for agriculture? About 50 years ago, the amount of livestock we had in this country was about the same as we have right now but 50 years ago the livestock was dispersed all over the country on mostly small farms. Now the concentration of that livestock in much more of a concentrated way does cause problems with groundwater, runoff, where do you spread that chicken manure or cow manure or hog manure, whereas before you might have had 1,000 chickens in the backyard or even 10,0000 in the backyard and now you have 80,000 chickens in the backyard.
Page 35 PREV PAGE TOP OF DOC I see TMDLs as a way, if we can all work together on this, on how to use the talent of America to become more sophisticated in the way in which we use our resources.
Governor HOEVEN. This may go to Congressman Sherwood's question as well. We are not saying you should not use TMDLs, we are saying if the EPA comes in and has one standard and one approach for everybody, that does not work very well because you have such a tremendous variety of circumstances throughout the United States. What works for us in our State in a rural setting with a certain type of farming and production agriculture, and a certain type of livestock production, and a certain type of value-added agriculture and processing may be very different from what works with storm sewer runoff in an industrial area or in a large metropolitan area.
I think that is what the National Governors' Association wants to make sure is incorporated in any of these approaches. Let us make sure we have good, high standards. We all want a clean environment but let us make sure the tools, the measurement system, and the flexibility we provide to the various States is sufficient so we can all do a good job for you.
Mr. GILCHREST. I could not agree with you morehold high standards, have the best science, understand the nature of the quality of that water so that people can depend on itthey know they are not drinking contaminated water or water that has an excess amount of nitrogen in it and so on.
In Maryland, I have gone around with EPA and the Maryland State Department of the Environment to every county about two years ago when this first came out with the county commissioners, planning and zoning and farmers, the private sector, and sat in a meeting in every county in my district and explained the concept of TMDLs and that we all had to work together to come up with a basic standard and improve water quality. It was pretty successful.
I will close with sort of a suggestion. About two years ago, I read a book called ''Water'' and the book shows what the hydrologic cycle was like in the United States from the year 1500 to the present. What was it like before Europeans or whoever else inundated and populated and infragmented the hydrologic cycle? It is an interesting perspective on water and how we have become dependent upon it over the last 500 years.
Page 36 PREV PAGE TOP OF DOC Mr. DUNCAN. Mr. Otter?
Mr. OTTER. Coming from Idaho, I am a little concerned about all these new potato processing plants going into South Dakota and now you are getting them licensed because we cannot even license expansions in Idaho under the EPA rules.
Would you agree or disagree with this statement. The States cannot be trusted to do what is right? Would you agree or disagree with that?
Governor HOEVEN. I would tend to disagree with that.
Mr. OTTER. Strongly?
Governor HOEVEN. Very strongly.
Mr. OTTER. The reason I repeat that is because that was a statement made by a regional officer of the EPA in northern Idaho relative to a Superfund site up there that they claim they could clean up in three years, and that was 18 years ago. They claimed they could clean it up for $28 million and that was over $200 million ago. I am not sure I want to look to the EPA for any kind of direction. In fact, I would look to the States.
There is one tendency that does concern me. We have a tendency to underbid some of this stuff and I noticed the EPA has estimated $22.8 million is what it would take in order to implement the TMDL standards, about $500,000 per State. Would you agree or disagree with that?
Governor HOEVEN. I would strongly disagree with that statement.
Mr. OTTER. I would too. We agree on a lot of things and I am glad we do.
As Lieutenant Governor of Idaho for 14 years, I watched as my chief executive constantly withstood the barrage not only from EPA but from many other Federal agencies, efforts to come in and mandate certain responsibilities. One of the things that concerns me, and I am proud of the fact it was now Governor Kempthorne of the State of Idaho that was then Senator Kempthorne that brought in the first no more unfunded mandates, although it has not worked very well.
Page 37 PREV PAGE TOP OF DOC I am concerned and I would like to know about your general concern, especially in the area of the environment, about this constant practice of using the Federal Government's authority to collect money to turn around and give it back to the States along with a lot of rules and regulations on how to execute the expenditure of those funds.
Anytime we divide the authority to collect from the responsibility to spend, I would have a problem with that in our system of government. I would ask that if you have an opinion on that, what is it and does the National Governors' Conference have an opinion on the responsibility to spend from the authority to collect?
Governor HOEVEN. It goes to a States' rights issue, a federalism issue and there is no question the governors feel very strongly that they have to have the ability to manage their issues in their States with the flexibility in a way that makes sense, and that truly differs among the States.
Mr. OTTER. Thank you.
Mr. DUNCAN. Mr. Brown.
Mr. BROWN. I do not have a question. I am real pleased to be a part of this committee and sit here and listen to this testimony. Having come from the State legislature for 16 years in South Carolina, we certainly recognize by coming to Washington we want to be sure we do not impose any further regulations or maybe try to repeal some of those that make doing business in the States more difficult.
I applaud you for your input and would certainly continue to warrant that input from time to time.
Mr. DUNCAN. Mr. Kerns.
Mr. KERNS. As a new member of the committee, I look forward to working with you and other Members of the subcommitte.
Governor, thank you for your presence here today.
Page 38 PREV PAGE TOP OF DOC While I do not have a direct question, I would like to say as a member of the committee, I hope we can foster an environment in which those regulators overseeing the States have more of a spirit of cooperation. That is, an environment which is a more friendly environment instead of adversarial. I believe that we should work together to educate and work hand in hand so that the States have the ability and opportunity to make decisions for themselves rather than hearing from the Federal Government.
Mr. DUNCAN. Governor Hoeven, it has been an honor to have you with us. I am going to tell my close friend, Don Sunquist that you have done an outstanding job representing the Governors' Association here today.
Governor HOEVEN. He is a good man, I enjoy him very much and appreciate the opportunity to be here. It is very encouraging to hear your comments.
Mr. DUNCAN. Thank you.
Mr. DUNCAN. Our second panel consists of Mr. Christophe A.G. Tulou, Deputy Director for Intergovernmental Liaison, Environmental Council of the States and Mr. Jon L. Craig, President and Director, Water Quality Division, Oklahoma Department of Environmental Quality, representing the Association of State and Interstate Water Pollution Control Administrators.
These gentlemen are the real experts in this area and we are honored to have you with us.
Mr. Tulou, we will allow you to begin your statement first and then Mr. Craig.
STATEMENT OF CHRISTOPHE A.G. TULOU, DEPUTY DIRECTOR FOR INTERGOVERNMENTAL LIAISON, THE ENVIRONMENTAL COUNCIL OF THE STATES; AND JON CRAIG, DIRECTOR, WATER QUALITY DIVISION, OKLAHOMA DEPARTMENT OF ENVIRONMENTAL QUALITY, AND PRESIDENT, THE ASSOCIATION OF STATE AND INTERSTATE WATER POLLUTION CONTROL ADMINISTRATORS, ACCOMPANIED BY ROBERTA SAVAGE, EXECUTIVE DIRECTOR, ASSOCIATION OF STATE AND INTERSTATE WATER POLLUTION CONTROL ADMINISTRATORS
Page 39 PREV PAGE TOP OF DOC
Mr. TULOU. Thank you.
My name is Christophe Tulou. I am the Deputy Director for Intergovernmental Liaison with The Environmental Council of the States. I have also had the opportunity to testify before this subcommittee before as the Secretary of the Department of Environmental Control and Natural Resources in the State of Delaware.
We thank you for the opportunity to provide the views of those people who head the State environmental agencies around the country on a very important question related to the Clean Water Act.
I would like to mention a couple of overarching concerns and issues that we have. One is that we feel very strongly that the Clean Water Act needs to be upgraded. It was a very good idea the Congress had in passing the Clean Water Act and reauthorizing it over time to come back and revisit the Act to see what new circumstances we might face, what new knowledge we might need to bring.
It is a good thing we can say there is a lot of new circumstance and a lot of new learning that has come from the experience of working with the Act and there are many challenges we are facing today that the Act does not give us the tools we need to approach them and also the flexibility that we need to accomplish the Act's goals.
I would like to mention that the issue of devolving environmental management responsibility to the States is no longer a hypothetical. It is done, it is substantially already in place. The States are doing a substantial amount of the work of environmental management in the country, including already managing over 70 percent of the delegable programs that Congress has said could be managed by the States. So that is already being done.
We are taking care of well over 80 percent and probably well in excess of 90 percent of the environment enforcement that takes place in this country and we are responsible for collecting well over 90 percent of the environmental information we use to evaluate whether we are doing a good job and whether the tools we are working with are appropriate.
Page 40 PREV PAGE TOP OF DOC I will focus the remainder of my remarks on the gaps that exist between the aspirations of the Clean Water Act and the resources that are available, talk a bit about TMDLs and also animal feeding operations.
In terms of closing gaps, we certainly are aware of the huge need to deal with water and wastewater infrastructure needs. I know the governors were a bit hard to pin down in terms of their particular estimation of what that need is but we do know you are working with a number of groups who have made those estimates and provided their recommendations on how to proceed. We wish you well in addressing that important issue.
I would also note there is another gap a bit less heralded but extraordinarily important. When you look at the proposals for dealing with wastewater infrastructure for example, a significant part of those proposals is the States' responsibility for making the whole process work.
What we are finding in working with EPA and all the States is there is a substantial gap in our capacity to manage not only water and wastewater infrastructure issues, but all of the other challenges that the Clean Water Act presents and the local and State challenges we face in terms of water quality.
Our estimate, although it is being refined as we speak, is somewhere in the order of $600 to $700 million. That is per year. So there is a great deal of capacity at the State level that needs to be established in order to do the job of the Clean Water Act as it exists now and to perform additional duties you might deem important as we move forward.
On the issue of total maximum daily loads, I would like to say it is pretty clear the Clean Water Act, as it has been implemented, particularly dealing with traditional point sources, has been extraordinarily successful. A lot of rivers that used to burn do not burn anymore and there are a lot of fish in rivers that did not have fish. We are still faced with a tremendous challenge.
Page 41 PREV PAGE TOP OF DOC A substantial portion of the waters of this country are not meeting the goals the Clean Water Act established in terms of how we might want to use those waters and that goes to the issue of nonpoint source pollution. There is a little bit of remaining work to be done on point sources but the preponderance of the additional work relates to the stuff that runs off our streets, parking lots, farm fields, backyards, wherever that water may fall and where it might ultimately go.
Pursuant to a number of challenges by environmental organizations, the States have already begun to move forward aggressively to put TMDLs in place. As you know, the EPA has also put out a marker in terms of a new regulation to govern how that process should work. One of our chief concerns about all that is the cost associated with performing the task of identifying those TMDLs, which are the beginning of a process.
The TMDL itself is a number. That number assumes that somebody is going to do something about that number. In other words, we need to reduce the loadings of pollutants into our water so that we can swim in it, fish in it, and do other things. Last year, in a letter to the President, the governors suggested the estimated cost for doing that would be $1 to $2 billion per year.
The other chief concern we have is the issue of flexibility. The previous panel talked a good deal about the need for that and the rationale for flexibility in meeting these challenges is pretty apparent when you think about it. Dealing with point sources is a relatively simple proposition. You identify the pipe, identify what is coming out of that pipe, figure what the water can handle and put technology in place in order to reduce the amount of pollution coming through the pipeline.
With nonpoint sources, we are talking about a much more complex situation. There are no two watersheds, much less any two States in this country, that are facing the same challenge with nonpoint source pollution. Therefore, we are going to need to work creatively, flexibly and now all of a sudden, in conjunction with people, in order to get those things resolved.
Page 42 PREV PAGE TOP OF DOC One of the true benefits of recognizing the need to control nonpoint source pollution is the fact it has drawn people together. Instead of pointing to smoke stacks and discharge pipes, the citizens of this country are beginning to appreciate first of all, that they like clean water and secondly, they might have some responsibility for helping us achieve that.
The approach is not one of telling them what that answer should be but of working with them to identify how to rectify those problems.
With regard to animal feeding operations, the key word is flexibility. To require permits for all those activities which are quite variable and to extend permitting to as many facilities as EPA is proposing would be an extremely limited approach in the first instance, and extraordinarily costly in the other.
That gets back to the issue of the administrative burden the States face, the cost of providing those services. It is not just an enforcement issue, just the process of issuing permits is a time-consuming and costly process. We are having trouble, as you probably know, just handling the workload as it relates to point sources. Having to do that for thousands and thousands of animal feeding operations in each State could present us with a burden we could not overcome.
In conclusion, we would look forward to working with you to reauthorize the Act. We understand you are faced with significant challenges and decisions with regard to water and wastewater infrastructure and other issues. We simply want to reassert that we have had a lot of experience and gained a lot of expertise in recent years in dealing with these issues. We look forward to sharing that with you.
Mr. DUNCAN. Thank you.
Page 43 PREV PAGE TOP OF DOC Mr. CRAIG. Thank you.
My name is Jon Craig. I am President of ASIWPCA and I direct the water programs in the State of Oklahoma for the Department of Environmental Quality. Robbie Savage, our Executive Director of ASIWPCA, is with me today.
ASIWPCA has a long history of working with your staff and your staffSusan, Ken, Jimmy and all the othersare very good and keep us advised and come to us for advice. We are very, very appreciative of the staff you have. You are very fortunate.
ASIWPCA is made up of program directors from the States and the interstate organizations. We have been around for many years and have dealt with the Clean Water Act and watched it change, not necessarily through reauthorization, but often through interpretation and court decisions.
I got into this program two days before the Clean Water Act was passed in 1972. Sometimes I feel like things have gone downhill every day since, if you know what I mean.
States have a lot of challenges when it comes to dealing with the Clean Water Act as we see it today. When the Clean Water Act was first passed back in 1972, we thought it was going to be so simple. All we had to do was make every stream fishable and swimmable. Well, I guess we are still waiting because we are not there now. Fishable and swimmable certainly has expanded in meaning.
We have worked with the Federal agencies, with EPA, and other organizations whether it be ECOS, NGA or whatever to get where we are going and we have made a lot of progress. The mention that we do not have rivers burning anymore means a lot. We had rivers burning in the 1960's. The fact that we have fish and streams today that there was nothing in other than pollution in the 1960's verifies that we have made a lot of progress. We did not do it alone, we did it together. We did it with the help of Congress.
I hear a lot of buzz words today that most water program administrators are familiar with and strongly support, whether it is a watershed approach, more funding, more flexibility. These are terms we are all familiar with and all strongly believe in.
Page 44 PREV PAGE TOP OF DOC That Clean Water Act was passed by Congress in 1972 not because Congress did not have anything to do, but because there was a problem. That Clean Water Act of 1972 gave clear responsibility to the States to restore our waters. That is what we have all been working for and that is what we all believe in. That law was necessary. We would not be where we are without the Federal authorization given by Congress.
ASIWPCA thinks there should be certain guiding principles to achieving the goals of the Clean Water Act. States have to maintain the lead role. That doesn't mean that Congress should put the money on the stump and let States do whatever they want. States need to be accountable but States need to maintain the lead role.
EPA and the States do not need to be at odds, anymore than ASIWPCA would need to be at odds with ECOS or with NGA or anyone else. We all have the same goals and need to be working together to achieve those goals.
We need to focus not on the procedures but on the outcome. If we are trying to reach fishable, swimmable, then how we get there is not nearly as important as getting there. That has been one of our major problems. We are hung up on procedures instead of outcomes.
We need to recognize that the Clean Water Act is not just water alone; it affects many other programs. That is the reason I mentioned we do work well with other agencies, whether State or Federal.
States need good scientific and technical data in order to make decisions. When I was a boy, if my mother told me I had to do something just because, that only worked until I was about 10 or 11. It worked for her until I was 18 but it did not necessarily satisfy me. Many of the things we end up doing, we do not feel there is a good scientific basis for why we are doing them. So a lot of us are like we are at 10 or 11, we begin to question why we are doing them. So we need good scientific bases for the decisions we are directed to carry out.
We need to increase funding. You have mentioned there is a surplus everyone wants. We do not have a problem with all of them wanting it if you will just give it to the States and help us get all these FTEs, we will be back next year asking you for more money. More money is a good idea but that is not the only thing we need. Throwing money at this, putting every dime we can get will not solve all of our problems.
Page 45 PREV PAGE TOP OF DOC ASIWPCA and ECOS are working with EPA right now on a gap analysis to try to identify the financial needs, both infrastructure and for management of the water programs. We are trying to refine the earlier study done by EPA and States.
One of the things that is needed is to set priorities. Right now, it seems everything is a priority. We get to the point where there are so many little fires that we cannot take care of any of them. We need a well designed program with expected outcomes instead of a knee jerk reaction to everything that comes up.
The idea of a watershed approach is a very good idea and it is not a new one. If we look at the State of Oklahoma and we tried to approach water quality as if we were shooting at it with a shotgun and just pellets hit here and there, we do a lot of things but you don't get measurable success.
We need to look at a complete watershed and try to fix that watershed. When we talk about priorities, we need to look at the worst, most polluted watersheds first. We need to make progress where there is a problem instead of treating them all the same.
Sometimes we do not see flexibility. Regardless of what you and the State have as a program and regardless of the success you have, that is not right because you did not follow these procedures. So sometimes we find ourselves scrapping things that work and find ourselves starting over under a new set of regulations to accomplish the same goal. That is extremely frustrating to States.
Sometimes with everything having the same priority, I remember what one of my friends who worked with me many years ago used to say. When I was much younger, I would show up at the office about 7:00 a.m. and I would say do this, do this, do this, do this. Ben would get my attention because he would stop me and say, ''Jon, you have given me about a dozen things to do in the first ten minutes. Now, which one do you want me to do first.'' He really got my attention because he made me realize that he might eventually do all dozen but which ones did I really want him to do first; which were really priorities?
Page 46 PREV PAGE TOP OF DOC For those of us who work in the Clean Water Act, we become extremely frustrated with everything being a priority. We find we cannot do any of them well.
Mr. DUNCAN. Your testimony certainly makes a lot of sense to me in a lot of different ways. I am going to interrupt you because we are coming up on a long series of votes and I want to have a couple members have a chance to ask you a few questions.
Mr. DeFazio. In the interest of time, I would put one question to the panelists.
I have been involved with a group in developing legislation to provide for a new water structure, clean water initiative which would basically provide some of the funding we have identified in terms of the shortfall. I do not know if either of you are familiar with that and what we are doing. If you could comment on it, I think it is very important that there be a Federal/State partnership in terms of addressing some of your concerns.
Mr. CRAIG. No State is going to ever turn down Federal money or if they do, someone else will replace them shortly. I keep remembering that Congress over the years has set up a number of funding programs and some have been extremely important.
One of the problems is that the funding generally goes down as new programs are created. Congress set up the State Revolving Fund for both water and wastewater and it has been extremely successful. There have been so many loans made to communities who could not have done anything without it.
Representing ASIWPCA, I would say we would like to see any other programs funding tied as closely as possible to the existing programs that States have already set up, rather than creating or having to create new programs, but I am convinced that such programs can be folded into existing programs.
Mr. DEFAZIO. It is our intention that it be developed along those lines. We look forward to any input your group could provide.
Page 47 PREV PAGE TOP OF DOC Mr. TULOU. I just want express our appreciation for your interest in helping with that deficit.
I will reiterate the point I made in my testimony that States have to have the financial capacity to do the job in order to accomplish the results we are all hoping we can attain. There is no distinction between the level of interest in clean water in Congress than there is at the State or local level. Additional resources applied in a way that will give us the maximum capacity to provide the results you are looking for would be most welcome.
We would be happy to work with you on that.
Mr. DUNCAN. Mr. Brown.
Mr. BROWN. I do not have any questions but I am in sympathy with you because having served in the State legislature, we recognize the impact you are having with those regulations.
I might ask a question. Looking at the Clean Water Act, what parts of the Clean Water Act do you find difficult to achieve?
Mr. TULOU. The key struggle we are having right now is how to define our expectations and particularly our processes for dealing with nonpoint source pollution. Nonpoint source pollution is one of the major remaining challenges to watch quality that we face. Nonpoint source pollution also engages your constituents in a much more personal way. There is no solution the Government can put in place; it is a solution that has to be built by the people living in the regions affected by poor water quality. That is something I do not think Congress anticipated all that well in 1972. It is something the cultures of the environmental agencies have not grappled with effectively.
Mr. DUNCAN. Mr. Kerns.
Mr. KERNS. Having worked in State Government, I am concerned by increased mandates and regulations which may impede the overall objective of water quality. Do you find these increased mandates, regulations and directives have the reverse effect than what they originally intend?
Page 48 PREV PAGE TOP OF DOC Mr. TULOU. I am not sure that is true. I think the motivations and intentions are reasonably good. We would have some complaint and some suggestions about the means. The goals are pretty much the same, but can we get there in a better, more effective way that builds partnerships we are going to need to achieve and maintain clean water, or are our methods going to be perceived as impediments, as burdens, as unfunded mandates and as penalties on those with whom we will have to work in order to achieve those goals?
I think those are clear choices and what we need to do is choose the former.
Mr. DUNCAN. Mr. Craig, I agree with you that we should not just throw money at problems, that we have to try to make sure the money out there is spent wisely and that taxpayers are getting the most bang for the buck.
You stressed the need for flexibility to allow the States to focus limited resources on things that are priorities. Does current law hinder a State's ability to do that? Is there anything in current laws, rules or regulations that are impeding a State's flexibility?
Mr. CRAIG. Yes, sir. Most of the problem does not come with the existing law. That law was enacted in 1972 and a lot of it was pretty straight. Regulations seem to take the law and add a lot of good ideas. Good ideas are not necessarily directed by the law, they are just good ideas added by regulation.
The TMDL rule is one of the best examples in the world. If you look at Section 303(d) of the Clean Water Act talking about TMDLs, it is about that long. If you look at the regulation we are now facing, we are talking about well over 100 pages. So the regulations are so explicit and often go so far with good ideas that the States and the regulated communities find it impossible to do.
In Oklahoma alone, for instance, we have redone all of our regulations in the Water Quality Division in the past year and we have done away with the good ideas. We are sticking to what the law says. We have literally cut our regulations in half.
Page 49 PREV PAGE TOP OF DOC Mr. DUNCAN. I wish you would get with your counterparts in other States and see if you can come up with a list of ridiculous, harmful or unnecessary regulations that we could potentially remove from the books either by encouraging the EPA to take another look at them or holding a later hearing about some of those, or even in some legislation if we have to go to that extent. We would appreciate it if you could at some point in the next few months get together with some of your people and come up with some good suggestions for us or help us in that regard. Do you think you could do something like that?
Mr. CRAIG. Yes, sir. I am certain we can.
Mr. DUNCAN. Mr. Tulou, you heard Governor Kitzhaber recommend a results oriented approach. Can you give us any recommendations in that regard of how we could best achieve something like that? I think that sounds good to all of us. Talking about it in a general way and getting down to specifics of what we need to do is sometimes two different things.
Mr. TULOU. I think it is a good point just generically to help us focus. A lot of environmental requirements are proxies for environmental results. If you are busier, if you do more permitting, if you do more enforcement actions, you are judged to be doing a better environmental job.
In reality, there are some things we do very well, like come to work and work eight, ten or twelve hours a day that we get credit for perhaps, but the measure is wrong.
I think the Clean Water Act as originally construed is a wonderful document because it says you need to look at what is going on in the environment and work towards creating a result we can all appreciate. The Act refers to fishing, swimming and results we can relate to, which is very important. In practice, we focus on parts per million and parts per billion, and other concepts people just do not understand.
The point is people want to know whether there is a fish there, whether they can catch that fish and whether they can eat the fish. They do not care a whole lot about parts per billion. One of the good things about the innovations States introduced to this whole process, watershed management, is it provides the capacity to get all the necessary people working together to produce and measure that result.
Page 50 PREV PAGE TOP OF DOC So when Governor Kitzhaber talks about results, that is what he is talking about. In his case, it is literal. He is talking about salmon and all that is required to sustain the salmon. Dams aside, you have to have a certain water quality and a certain water temperature. That takes a lot of work.
What we need is a process that allows desired results for a particular water body to be identified. Those would be the water quality standards, and the designated uses. Simply applying permits to all of the animal feeding operations is not a guarantee one is going to achieve those results.
Mr. DUNCAN. I have just spent six years chairing the Aviation Subcommittee and I heard somebody say the FAA, and I think they do a good job in most ways, but I heard somebody say the FAA does not regulate airplanes, it regulates paper.
Superfund has been very much criticized for having spent practically all the money on lawyers and bureaucracy and paperwork. What people want to see is less paperwork and more actual cleanup work and something being done besides pushing paper.
Mr. TULOU. I think that is a good point and that is where a permitting process can get in the way. Permitting requires a fair amount of resources to be dedicated to papers instead of environmental results. We know the results we want, we know how to measure and we can tell whether or not the things we are doing are getting us there. Let us have our people do that rather than push paper.
Mr. DUNCAN. We want you to know just what I said to Mr. Craig, we want specific suggestions and ideas and practical things, things that we can do, not pie in the sky kinds of things.
The timing has worked out perfect because there is the start of our votes. We thank you very much for coming. You have been outstanding witnesses.
That will conclude this hearing.
Page 51 PREV PAGE TOP OF DOC [Whereupon, at 11:40 a.m., the subcommittee was adjourned, to reconvene at the call of the Chair.]
Statement of Hon. Earl Blumenauer of Oregon
Today's hearing is the perfect opportunity to highlight the need for improved coordination of the many federal, state, and local jurisdictions that participate in water quality programs. Each of these groups has the potential to play a unique, yet complimentary role in fulfilling the goals of the Water Pollution Control Act.
In the past, federal agencies have approached water problems as distinct engineering challenges. Treating our watersheds as machines has cost billions of dollars, yet our communities face increasing flood risk and 40% of our waters fail to meet our drinking water, recreation or aquatic habitat needs.
In 1991, the Intermodal Surface Transportation Efficiency Act (ISTEA) changed the way all levels of government worked together to solve transportation problems with system-wide planning, federal flexibility and a requirement for meaningful citizen participation in regional decisions. Similarly, in the 106th Congress, I introduced Water Vision 2000, which calls for a ''Water ISTEA''demanding that federal agencies use the same principles when working with our communities to solve problems in our watersheds.
The Water Vision 2000 principles set the stage for fundamental changes in federal participation in water management. Water Vision 2000 recognizes the efficiency of regional planning by requiring federal agencies to consider their impacts on the entire watershed before they act. Water Vision 2000 calls on federal agencies to better coordinate their activities in our watersheds and provide flexibility in how local communities meet their water challenges. People care about clean water, wildlife habitat, and flooding, and they want to be part of the solution. Water Vision 2000 calls for full public involvement.
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Within today's discussion of the Clean Water Act were some of the same principles underlying Water Vision 2000, including an emphasis on encouraging the federal government to provide funding and stringent standards for water quality, but flexibility in ways to implement them. The governors highlighted the need for a watershed-wide, cross jurisdictional approach to CWA enforcement. I look forward to working with this Subcommittee, the National Governors' Association, the Western Governors' Association, the Environmental Council of the States, and the Association of State and Interstate Water Pollution Control Administrators to ensure the future of clean water for this country.
Testimony of the Association of State and Interstate Water Pollution Control Administrators
Mr. Chairman, Members of the Committee and Subcommittee: My name is Jon Craig, President of the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA) and the Director of the Water Quality Division, Oklahoma Department of Environmental Quality. I am accompanied today by our organization's Executive Director, Robbi Savage, who is based here in Washington and is available to work with you and the members of your excellent staff on a day-to-day basis.
As you know, Mr. Chairman, ASIWPCA is the national, professional organization of State officials who are responsible for the implementation of the Clean Water Act and other water-related programs. As those on the front line, the Association's membership has a unique perspective on the issues before this Committee.
The 1972 Clean Water Act gave the States the lead role in the development and implementation of the water quality program. ASIWPCA and its State members support the Clean Water Act and its goals to restore and maintain the nation's water quality. And, while significant progress has been made over these past 3 decades, States still face many challenges. In the last decade alone, State Water program administrators have been the recipients of a multitude of new Federal mandates and growing public expectations. Regrettably, fiscal support has not kept pace with these increasing demands.
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Mr. Chairman, we thank you for conducting these hearings, the subject of which is most timely. States and the Federal agencies involved in the planning, development, and implementation of our national water quality programs need to come together as partners to craft the Clean Water program of the future. In order to successfully implement these programs and to maximize our limited fiscal and personnel resources, the Association recommends the following as guiding principles:
1. The States must maintain the lead role in the nation's clean water programs.
2. USEPA requirements need to be more flexible, and the Agency must work more cooperatively with the States to address the varied and complex program needs. To this end, ASIWPCA recommends that there be a more intense focus on:
Desired environmental outcomes, in lieu of process and procedure; Implementation of and consistency with existing statutory authority, available resources, and State water quality agency jurisdiction; and Recognition of and compatibility with the multi-statute, interactive nature of the Clean Water Act's programs.
3. The Federal government needs to concentrate on its primary responsibilitiesthat is, to develop and share sound scientific protocols, set national goals, provide technical support to the States, and serve as the conduit for taxpayer funded support to the States and their environmental programs.
Page 54 PREV PAGE TOP OF DOC 4. States need increased funding to match the level of governmental requirements placed on their programs. Over the past several years, the GAP associated with Federal mandates has widened the GAP between what is expected and what is funded. To the States, this is known as ''Unfunded Mandates,'' and it is strictly prohibited in Federal law. In addition, the various funding vehicles need to be more flexible and supportive of watershed problem solving.
5. Diversion of resources from the core environmental programs to the ''Initiative Du Jour'' must end. Existing programs should, wherever possible, be utilized to achieve our mutual environmental objectives.
6. Well-designed programs, enhanced by phased and iterative management approaches is crucial to success.
Taking a Watershed Approach to Decision Making: The next generation of water quality problems are significantly different from those faced by the States in the past. These complex problems need to be resolved at the watershed level taking a holistic, rather than a piecemeal approach. States need to be able to focus limited resources on priorities that can achieve tangible water quality improvements. In addition, the patchwork of water quality programs must be considered in the decision-making process.
Furthermore, in their efforts to comply with the requirements of the Clean Water Act, USEPA, States, and local governments should work together to identify opportunities to promote the watershed approach. USEPA should not prescribe, limit, or second-guess the States in such problem solving. It has been proven time and again that a top down approach cannot produce and sustain the desired environmental result.
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Functionally Equivalent, Performance-Based Programs: Successful resolution of water quality problems will require collaboration and creative problem solving that may well expand beyond the Clean Water Act to encompass aspects of other statutes, including the Farm Bill, the Transportation Act, the Endangered Species Act, etc. Because of this expanding statutory framework, States will be called upon to design programs, in active partnership with their stakeholders, that fit their circumstances. It is for these reasons that the USEPA must assure that the Clean Water Act requirements are performance based. States' equivalent programs ought to be deemed acceptable if they achieve the same or better environmental results in the watershed.
Adaptive Management: States and local governments have worked diligently to improve water quality, and the public and private sector have invested over $1 trillion since the passage of the 1972 Clean Water Act. Yet, even with this tremendous investment, many waters have not attained the desired environmental goal, due in large measure to the pressures of increasing population growth and changing land hydrologic uses combined with increasing uses for recreation and commerce. Therefore, it is unrealistic to expect all program components to be the highest priority. The national program, therefore, needs to continue to support adaptive management. States need to be able to apply management practices, evaluate progress, adjust programs and secure necessary funding over time. The Clean Water Act does not envision the creation of a perfect plan, but rather sets forth a cyclical 35 year process to move toward the Act's goals.
USEPA POLICY DEVELOPMENT
Page 56 PREV PAGE TOP OF DOC The USEPA has the responsibility for setting the national course for our environmental programs. However, the recent pace of USEPA policy development is unprecedented. The plethora of rules and policies issued over the past several months will significantly affect already-overburdened State and Local programs. And, while States have been successful in their efforts to increase State program funding, the additional mandates imposed by the former Administration were not accompanied by commensurate funding or technical assistance, and the States' abilities to expand programs to carry them out are limited. Among the topics that the new requirements address are:
Revision of the total maximum daily load (TMDL) rule;
Proposed permit requirements for concentrated animal feeding operations (CAFO's);
USEPA 304(a) criteria for nutrients, fish advisories, and methyl mercury;
Regulation and permitting of Sanitary Sewer Overflows (SSO's); and
Expanded permit coverage for stormwater.
It is of concern that the USEPA has taken to prescribing approaches that neither maximize existing resources nor build on effective programs. The test of time has shown that States deliver more cost-effective management and that they can, with greater flexibility, provide equal or better environmental results. Some of the requirements in these new policies need to be revisited. Many of the issues are discussed in further detail below.
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1. Total Maximum Daily Loads (TMDL's)
The passage of the Clean Water Act provided the States with the authority to establish water quality standards, build and manage permitting and enforcement programs, finance municipal wastewater treatment facilities, and develop nonpoint source (NPS) and watershed management programs. The establishment of TMDL's was authorized in the 1972 statute, yet the professionals at the Federal and State environmental agencies knew that TMDL development would be expensive, time consuming, and speculative given limited data and abatement technologies. It must be recognized that USEPA's priorities varied and did not, until fairly recently, include TMDL's. It must also be recognized that the current slew of litigation is focused at the Federal level, with the impact of the consent orders directly affecting the resources and workload at the State and local levels. States agree that TMDL's should be a meaningful component of State water quality management programs. And, as the Congress looks at the Clean Water Act, the Association calls to your attention four fundamental challenges that we believe should be addressed:
1. The significant lack of funding to implement the programs,
2. Inadequate resources and data to successfully address nonpoint source and other water quality problems in the current program,
3. Major gaps in available science, data, research, and monitoring, and
4. Insufficient attention given to multi-media and multi-jurisdictional water problems.
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The scope of Section 303(d)(1)(A), which authorized the TMDL program, is fairly limitedspecifically the States must:
Identify waters that do not meet water quality standards (WQS) after application of existing basic point source control requirements,
Prioritize those waters, and
Determine the total waste load the water body is able to receive and still meet WQS (with a margin of safety).
USEPA has gone beyond those boundaries in the new rule, promulgated over the specific objectives and direction from Congress. This poses significant problems for State water pollution control managers. The new rule envisions TMDL's with a high level of quantification and certainty, but in terms of fully addressing and resolving the nation's remaining water quality problems, that expectation is, at times, unreasonable. States will have difficulty implementing portions of the rule that appear to go beyond the plain reading of Section 303(d). TMDL's should not be used as surrogates to impose requirements that USEPA would have no authority to apply. Unless stakeholders are willing to support TMDL's, the partnerships that the States have worked so diligently to construct (particularly in the nonpoint source arena) will begin to unravel.
The workload is staggering. For example, if one assumes an even distribution of TMDL development nationwide, with no additional TMDL's called for under the new rule:
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1.5 TMDL's would need to be approved each workday for the next 10 years by each of the 10 USEPA Regional Offices.
Assuming (optimistically) that an ''80% savings'' could be achieved (taking advantage of lessons learned, economies of scale, and delisting inappropriate waters), States would have to produce (and USEPA approve) 1.5 TMDL's per week per USEPA region for the next 10 years.
ASIWPCA Recommendations for TMDL's
Given the magnitude of the task before us, a practical and flexible approach is needed. The Association believes that some provisions of the new rule need to be reconsidered and refined. Specifically, the Association recommends that the:
States develop TMDL's for waters impaired by pollutant(s) where TMDL's are the appropriate solution. Their scope should be limited to a reading of the statutesi.e. a credible technical analysis that identifies the maximum allowable pollutant load or other conditions necessary to attain water quality standards (WQS) for pollutant(s) of concern.
States are authorized to delist waterbodies using the same procedures and methodologies that apply to listings, i.e. a high burden of proof should not be required. If WQS are attained or a TMDL is approved, a waterbody should be delisted.
Artificial and unreasonable deadlines should not be imposedStates should be able to set priorities and schedules, in consultation with the public.
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Implementation plans should not be required as part of TMDLS. This is not to say that TMDL's should be developed but not implementedin fact, implementation is essential and fully supported by the States. However, Section 303(d) does not authorize implementation as a component of this provision. It is critical that the:
States be allowed to take adaptive management approaches, particularly where nonpoint sources are of significant concern.
States be able to implement a variety of controls as expeditiously as possible, as described in the upgraded nonpoint source management programs and other mechanisms recognized under State and Federal law.
In the interim period before TMDL development and approval, States should have wide latitude to operate programs and issue/reissue permits. There should be no expansion of USEPA permit authority in States that have been delegated authority under the National Pollutant Discharge Elimination System (NPDES).
2. Section 106 State Management Assistance
Section 106 of the statute authorizes funds for the day-to-day management of the State programs. The continued resolution of clean water problems is placing enormous resource demands on States. Section 106 funding was static for decades. The Congress last year heard the call of the States for additional resources and appropriated a $50 million funding increase. Even with this significant increase to $172 million, the estimated shortfall is in the range of $480$700 million annually. However, this estimate significantly understates the ever-increasing monitoring and TMDL-development/implementation needs.
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ASIWPCA Recommendations on 106
The Association urges Congress to reauthorize Section 106 at a more adequate level and to work with States and the USEPA to increase annual appropriations. To successfully implement the State water programs, a funding level of $350 million is needed annually.
Tribal water quality programs are important to the overall success of national efforts and should be funded independently, not as a set-aside or at the expense of State programs.
3. Infrastructure Financing and the Clean Water State Revolving Loan Fund (CWSRF)
Congress created the CWSRF in 1987 to finance municipal, nonpoint source, and estuary pollution control needs. This innovative program was immediately established in all 50 States, which accounts for its initial and continuing success. There have been more than 6,800 loans executed with a total value of $23 billion. SRF Projects have been built at less expense, 50% faster, and with four times the buying power of construction grants.
It is surprising and regrettable that over the last 8 years, Federal funding for the CWSRF has declined-despite significant infrastructure needs exceeding $200300 billion. As the water programs continue to evolve, CWSRF should be evaluated and refinements incorporated to assure that the program continues to be capitalized. Specifically, the Association believes strongly in the following principles:
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The CWSRF program should continue to be the infrastructure-financing mechanism. The limited Federal funds available need to be used efficiently to resolve priority problems.
Significant additional capitalization is needed.
The SRF should be refined to take a more comprehensive and balanced approach to watershed clean up and protection.
More flexibility is needed to make water pollution control affordable in hardship situations.
Over time, there have been a host of studies and reviews of the total funding needed to construct and maintain wastewater treatment facilities. The USEPA, for example, issued its GAP study, which documented infrastructure needs in the hundreds of billions. Most recently, a coalition of water industry interests has issued the Water Infrastructure Now Report. Though this report provides a useful perspective on infrastructure financing, it raises significant State concerns. For example, the recommendations are limited in scope. The vast array of water program demands are not fully considered in the report, and the specific needs of the States are not adequately addressed. Specifically, the report does not adequately consider the broad array of nonpoint and other watershed needs, focusing instead on funding municipal treatment works.
The coalition calls for an annual funding level (up to over $15 Billion), a funding level that is unlikely to be appropriated. ASIWPCA is not supportive of the Federal creation of new State finance authorities that duplicate or supplant the highly effective CWSRF and other existing State financing programs. In addition, ASIWPCA is not supportive of a federally mandated grant program. Rather, States need wide latitude to make the best use of limited funding to address impaired watersheds.
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ASIWPCA Recommendations on the CWSRF
Increase CWSRF funding. Significant additional funding above $2.4 billion is needed annually to capitalize the SRF.
Expand eligible uses of the CWSRF. The cumulative impact of USEPA regulatory and policy requirements impose significant burdens that should be recognized. CWSPF eligibilities should be expanded beyond current provisions
(that cover traditional municipal wastewater treatment, combined sewer overflows (CSO's), sanitary sewer overflows (SSO's), nonpoint source control, and implementation of Section 320 estuary plans) to include:
Acquisition of land, easements, and rights of way related to wastewater treatment.
Loan repayment periods extended up to 40 years or a facility's useful life.
Funding privately owned point sources such as CAFO's.
Other possibilities that some States suggested are:
Outreach and technical assistance.
Private as well as public clean water utilities.
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Address affordability. For some communities and individuals, loans or increased wastewater utility rates are not affordable. Hardship/low income assistance should be allocated in the SRF.
In the CWSRF States should be able to blend a variety of financing mechanisms (loans, principal subsidies, and grants) to achieve affordability. Each State should be able to define ''small and hardship'' as well as the target level of affordability.
States should have the option to exempt small/hardship communities from Title 11 and Federal crosscutting requirements (see below).
Eliminate earmarks or set-asides. States should have maximum flexibility in allocating funds. Special set-asides for innovation, low-income assistance, etc. are restrictive and limit States' ability to meet local needs.
Limit Federal involvement and minimize requirements. Congress intended that States have the primary role in the establishment and long-term management of the CWSRF. Federal requirements should be limited and attached only to initial uses of the capitalization grant amount. Loan recipients should be exempt from the detailed project requirements of the 1970's Title 11 construction grants program and Federal crosscutting laws. State, not Federal, laws should apply (e.g. related to Davis Bacon wages).
Relationship to the Drinking Water SRF. States should be able to transfer funds between the Clean Water and the Drinking Water SRF's as their circumstances and priorities merit.
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Increase coverage of State administrative costs. State CWSRF administrative expenses have become more costly over time as the fund has grown and the allowable level is tied to the amount of annual Federal capitalization (4%). States should be authorized to use:
4% of Title VI capitalization (Federal and State),
0.5% of the SRF's current value, or
Up to $400,000 annually.
Federal tax law restrictions. The private activity volume caps limit the use of tax-exempt bond proceeds for private sector water pollution abatement. The investment rate (arbitrage) restrictions unduly limit the State ability to invest bond issue and other CWSRF. These barriers should be removed.
4. Nonpoint Source (NPS) Management
The majority of the remaining water quality problems in the United States are due in large measure to NPS pollution. These sources include rural and urban runoff, development and urbanization, air deposition, abandoned mines, and natural sources (e.g. from leaching, erosion, and wildlife). Reductions affect large segments of society, involve millions of sources and many levels of government, and therefore require careful attention to land use management. This requires the investment of at least as much time and resources as States have devoted to point sources.
Page 66 PREV PAGE TOP OF DOC Under Section 319, States are putting into place strategic frameworks to guide and leverage a broad array of Federal, State, and local activities. They have made significant progress, but they still face critical issues.
ASIWPCA Recommendation for NPS's
States should continue their lead role and have wide latitude to create the NPS programs needed to achieve and maintain beneficial uses. State program adequacy should be judged based on the results that can be achieved. Acceptable strategies should include cooperative and regulatory approaches, financial incentives, interagency agreements, technical assistance, educational programs, land use authorities, etc.
The TMDL requirements need to be more compatible with NPS realities, i.e. take an adaptive management approach.
USDA programs should be greatly enhanced, including technical assistance and environmental/conservation funding for impaired waters in the 2001 Farm Bill.
319 authorization levels should support the program's growth, i.e.: For the first several years of authorization as least: $500 million annually; for later years: $1 billion annually. The definition of what qualifies as matching funds should be more flexible. A 40% State match of general funds is sometimes difficult to achieve when there are large Federal land holdings. States should be encouraged to (and get credit for) leveraging a broad range of funding.
Page 67 PREV PAGE TOP OF DOC Eligible uses of the funds should be very broad (planning, technical assistance, assessment, program administration/implementation, enforcement, education, demonstrations, and training) and include local program institution and stormwater management.
5. Animal Feeding Operations (AFO's)
ASIWPCA supports the development of a comprehensive AFO Strategy. Many States have extensive programs that are effective. They should not be required to dismantle them and issue Section 402 permits.
ASIWPCA Recommendations for AFO's
AFO's should be required to develop manure management plans that are consistent with sound agronomic practices and water quality protection needs.
Both cooperative and regulatory mechanisms should be acceptable. Their adequacy should be judged based on broad, national performance expectations and water quality results (not process). Components of an acceptable State program should be defined as:
Education and technical Assistance
Comprehensive manure management plans
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Statewide water quality monitoring
When States use a regulatory approach, small CAFOs should be allowed sufficient time to voluntarily comply, thereby avoiding regulatory permitting.
Due to resource and other limitations, arbitrary deadlines are not appropriate. States must have latitude to coordinate and prioritize in conjunction with other important State programs. AFO implementation should be targeted to impaired and other high priority waters.
Additional financial assistance should be provided for producers and State and USDA Natural Resources Conservation Service staff.
The eligibilities for Section 319 Nonpoint Source, CWSRF, and EQIP funding should be extended to cover all concentrated animal feeding operations (CAFO's).
State Water Quality Standards
States are concerned about the recent changes USEPA has made to Section 304(a) criteria that cover nutrients, impaired waters due to fish advisories, methyl mercury, and sediment. USEPA intends to require that State adopt water quality standards (WQS) criteria for those parameters in all waters within 3 years (or be subject to USEPA promulgation).
States appreciate and need better science from USEPA, but they question whether that has been achieved, particularly with regard to nutrients. In addition, State resources are inadequate to develop appropriate and defensible WQS criteria for all waters within the expected timeframe. This could unnecessarily increase both the number of TMDL's required and the associated municipal, industrial, and nonpoint source compliance costs. Waters that exceed USEPA's 304(a) nutrient criteria may be healthy. The utility of adopting WQS criteria for impaired waters with fish advisories or methyl mercury is questionable when States has no authority to control the source of the problem (e.g. air deposition).
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ASIWPCA Recommendation for 304(a) Criteria
States should continue to be responsible for determining whether and what WQS refinements are appropriate or necessary. They should not be required to adopt criteria unless:
The pollutants have been determined to interfere with a designated use and
Adoption would be useful in pollution control decision-making.
The Arsenic Rule
There is continuing concern about the USEPA-promulgated Arsenic Rule. ASIWPCA concurs with the issues raised by its sister organization the Association of State Drinking Water Administrators (ASDWA) concerning:
Lack of adequate health effects at lower levels
Estimates of costs that do not fully account for disposal
Cumulative costs of regulations and problems assuming POU or POE treatment for small systems when the regulatory ''acceptance'' of such treatment has not been vetted.
Many States continue to express concern with USEPA's final rule on regulating arsenic in drinking water. Questions about actual health effects at low levels and the potential large cost implicationsparticularly for small systemsshould warrant an approach where the standard is eased from 20 ppb to 50 ppb as an initial step.
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Once the health effects research has been completed and better cost data gathered from those systems that will have to install treatment and deal with waste disposal issues, USEPA can re-evaluate the standard during the six-year contaminant review process. This phased approach would result in an immediate reduction of arsenic in systems that have higher levels, allow better cost data to be developed based on actual system experience, provide time for USEPA to complete its health research to determine whether there is a linear or non-linear threshold for arsenic exposure, and promote the development of cost-effective technologies that can be tested and available at such time as the standard may be further lowered and affect more systems.
Mr. Chairman, members of the Subcommittee, on behalf of the State water quality regulators and their Association, ASIWPCA, I thank you for providing me with this opportunity to share our views and perspectives with you. We look forward to having the opportunity to work with you and members of your staff to craft legislative language to address the concerns highlighted in this statement.
I am available to address any questions you may have at this time, and our Executive Director is also available to work with members of your staff. Again, thank you for allowing me to appear before you today.
Statement of the Honorable John Hoeven, Governor of North Dakota
Page 71 PREV PAGE TOP OF DOC Good morning, Mr. Chairman and members of the Subcommittee. I'm John Hoeven, Governor of the State of North Dakota, and am here today representing the National Governors Association. I currently serve as a member of the National Governors Association Committee on Natural Resources. Governors are looking forward with great enthusiasm to working with this Congress, as well as the new Administration, on a variety of environmental, energy and agriculture issues. I appreciate the opportunity to provide testimony today on Clean Water Act issues and other environmental priorities of the National Governors Association.
Clean Water Act Reauthorization
Clean water is central to the United States' economic and environmental well-being. I think we would all agree that the Clean Water Act is generally considered to be an effective environmental law that has resulted in significant improvements to water quality across the country.
We have achieved a great deal in the last three decades, but our progress has, in some respects, been based on solving the easiest problemsthe large industrial facilities, municipal sewage treatment plants, and other point sources. Reaching the remaining sources of water pollution requires a strong state-federal partnership, program flexibility, appropriate timelines, and adequate funding.
A successful partnership must acknowledge the limited resources available today for water resource management and demand improved intergovernmental cooperation in order to maximize existing resources. Additionally, the federal/state/local relationship must be refined to streamline requirements in a way that removes unnecessary and unproductive burdens on state and local governments in the implementation of clean water act requirements.
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Reauthorizing the Clean Water Act is among the important goals for the nation's Governors, but we recognize that achieving such an ambitious feat in this Congress is probably not possible. Nevertheless, we believe that there are important issues that can be addressed short of reauthorization, and we are committed to working with this Subcommittee and others to accomplish that end.
I would like to discuss some clean water programs that present opportunities to effectively enhance water quality, afford states significant flexibility to manage our water resources, and improve the state-federal partnership.
The Governors are committed to managing the quality of the nation's water through holistic, community-based watershed plans that are designed to meet water quality standards. The most effective management of water resources requires recognizing all the interconnections within the watershed, including surface and groundwater as well as wetlands.
The holistic watershed approach utilized by many states that focuses on water supply, water quality, water conservation, flood protection, land use, and protection of fish and wildlife resources, we believe, is the best way to achieve water quality standards.
We know that Congress recognizes the role that states play in bringing impaired waters in watershed into attainment with water quality standards. Most states are developing watershed programs to guide the identification of impaired waters, establishing methods for identifying sources of impairment, allocating responsibility to both point and nonpoint sources, setting milestones of progress, and determining how federal funds are utilized by public entities implementing water programs to achieve the milestones.
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States must remain responsible for pollution prevention and priority setting. States must also have the flexibility to set appropriate standards and utilize alternative management programs that provide equivalent water quality protection. The Governors believe that watershed programs can allow states to tailor their efforts to best suit their environmental circumstances and conditions. We should be allowed to direct resources toward priority needs at the local level.
Nonpoint Source Management.
The Governors are committed to developing effective strategies that will reduce nonpoint source pollution caused by runoff from agricultural, commercial, and residential sites. However, unlike industrial sources that can be regulated at the point of discharge to demonstrate measurable reductions in pollution, nonpoint source runoff requires the highest degree of innovation and flexibility to achieve progress. Overcoming the complexity and variety of existing nonpoint source control problems will clearly take significant funding, time, and education.
The Governors believe that nonpoint source pollution controls should be handled on a watershed basis. The decision to implement voluntary or enforceable mechanisms must be left up to the state.
State Revolving Funds
The State Revolving Funds (SRFS)the Clean Water State Revolving Fund, and the Drinking Water Revolving Loan Fundare essential tools to cost-efficiently address water quality and drinking water needs. As envisioned by Congress, the SRFs are state programs driven by priority concerns that vary among states. Funding of the SRFs is vital and allows states to allocate funds to a diversity of projects and communities. Many states have used the SRF to establish loan programs targeted to farmers for controlling agricultural nonpoint sources, such as animal manure and septic system rehabilitation, and for the abatement of leaking underground storage tanks.
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In the past year, reports have emerged from the Environmental Protection Agency (EPA) and municipal groups outlining the future crisis facing the nation as the useful life of wastewater and drinking water infrastructure begins to expire. Additionally, the cost of meeting numerous clean water and drinking water regulations is predicted to be considerable for municipalities, particularly for smaller communities. Several municipal and industry organizations have attempted to quantify future infrastructure needs, with estimates ranging from $200$330 billion over the next 20 years. In order to continue to provide constituents with clean water and safe drinking water, the Governors recognize that solutions to this problem will be advanced.
Proposals offering visions and specific plans to rectify the situation must be thoroughly reviewed. Congress should evaluate these options to determine their scope, recognition of the states' leadership role, and administrative simplicity. Any solution adopted by Congress should provide states with flexibility in the use of water program money, eliminate set-aside requirements, allow states to shift grant funds among programs, and provide states the flexibility to recognize communities with special needs.
Unless Congress or EPA acts, this fall, regulations will go into effect that require states to develop Total Maximum Daily Loads (TMDLs) for impaired water bodies. The Governors are concerned that the regulations will lead to a shift in the traditional relationship between states and the federal government beyond what was intended by Congress in the Clean Water Act.
Page 75 PREV PAGE TOP OF DOC Legislation may be necessary to provide states additional technical, scientific, and funding resources; more flexibility; and adequate time to implement the TMDL program. Given the great diversity of water resources among states and regions in the nature of water resources a uniform national approach is incompatible with attaining state water quality standards. There simply must be more than one acceptable method with which to improve water quality.
Governors believe TMDLs can be valuable tools used to achieve the Clean Water Act's goals, but they should not be the primary tool. The TMDL program should focus on results, not process. The failure of the current regulation to allow for alternative programs that can achieve water quality standards is a significant flaw and should be rectified either through legislation or by a revised regulation.
Creating TMDLs based on sound science, appropriation load allocations, and public participation requires a significant investment of time and resources. The Governors believe that all states should have a comparable timeframe to develop and implement scientifically credible and practical TMDLS. Congress should adopt an amendment to the Clean Water Act that gives states at least fifteen years to comply with the TMDL mandates. Each state should be provided the flexibility to establish its own priorities and associated milestones within the timeframe provided.
The most significant role the federal government can play is to assist states by providing funds needed to achieve water quality goals. We know that the new Administration is sensitive to the unfunded mandate implications of the TMDL regulation, and we hope we can work with EPA and the Congress to address our concerns. Resource needs for improving and maintaining the quality of the nation's waters are a shared responsibility between the federal government and the states. Historically, federal funding for state implementation of water quality goals has been extremely limited and, when adjusted for inflation, actually has been dramatically reduced during the last twenty years.
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Congress should also recognize that some watersheds have insufficient scientific and technical information to accurately assess nonpoint source contributors to impaired water bodies. Legislation is needed to provide funding for scientific studies to demonstrate the most effective methods to assess water quality, gather scientific and technical information, and bring impaired waters into attainment with water quality standards.
NGA is a strong proponent of controlling run-off from nonpoint sources to improve water quality. While the Governors believe that the federal National Pollutant Discharge Elimination System (NPDES) permit program has an important role to play, NGA's policies regarding concentrated animal feeding operations (CAFOs) endorse the flexibility for Governors to design functionally equivalent programs best suited to their states' needs to bring water bodies into compliance with water quality standards, including voluntary and incentive-based state programs. Many states have developed or are implementing nutrient management and non-NPDES permitting programs that address animal feeding operations, some of which may qualify as models for the nation.
Our concerns about the proposed EPA regulation on CAFOs include the definition of a CAFO, elimination of 25-year, 24-hour exemption, permits, and assumption on state government impacts.
The most significant change proposed by the regulation is revising the definition of CAFO by decreasing the number of animal units that trigger the definition. Such a change will dramatically increase the number of NPDES permits that states will be required to issue, monitor and, if necessary, enforce. Some states have noted that the proposed change in definition may triple the number of animal feeding operations that are subject to an NPDES permit. States have reported that current backlogs of existing CAFO permits, as well as other NPDES permits, have yet to be eliminated. A new regulation that increases the number of NPDES permits will only add to the paperwork burden, imposing more costs and personnel needs.
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An equally significant change under consideration would eliminate the current exemption from permitting for a feedlot that may potentially discharge only in the event of a 25-year, 24-hour storm. Under the option proposed, feedlots would be required to obtain an NPDES permit, even if a discharge never occurs. Again, the burden on state permitting programs is likely to be exceedingly large if every feeding operation must obtain a permit.
Lastly, we take issue with the cost analysis in the proposed CAFO regulation that the changes being considered will result in only incremental average annual costs that will not impose a significant burden on states. This conclusion is based in part on the assumption that only a small number of facilities will be required to obtain individual permits. As we have outlined above, general permits, will in all likelihood be inappropriate for most facilities, requiring states to issue individual permits in the wide majority of cases.
Additionally, the regulation assumes that state programs are presently issuing CAFO permits. Many states, however, are regulated under a non-NPDS state permit program or utilize voluntary programs. Because the proposed regulations would not allow such programs to serve as functional equivalents to an NPDES permit program, states would be required to dismantle successful programs and institute a new regulatory framework, imposing new costs and staff resources, or subject the regulated community to two redundant permitting programs.
The regulation's cost analysis also assumes that the cost of increased state oversight and enforcement requirements for facilities that fall under the regulation as a result of the proposed changes will be minimal. Under the proposal, states would be mandated to implement a variety of new activities, including monitoring ambient water, both upstream and downstream from animal feeding facilities, establishing a reporting system, and initiate the inspection of land application sites in addition to facility operations. The increase in the states' field workload, in fact, would be significant.
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For all of the above reasons, Governors believe that the proposed CAFO regulation will have a substantial direct effect on state costs. We urge that the assumptions expressed be carefully reexamined, and that Congress conduct a hearing to determine the actual impact of the proposed changes to the CAFO requirements and to evaluate the burden to states of implementing a regulation that adds significant permitting and monitoring requirements.
Superfund and Brownfields
States currently address 90 percent of all contaminated waste sites and EPA addresses the other 10 percent on the National Priorities List. States use successful and innovative state cleanup laws and voluntary clean up and brownfield programs to cleanup sites quickly, efficiently, and fairly.
The states have had a strong interest in Superfund reform and believe that a few critical changes are needed to improve the Superfund program's ability to clean up the nation's worst hazardous waste sites quickly and efficiently. We recognize that a comprehensive Superfund bill is unlikely to achieve bipartisan support in this Congress, but we stand ready to work toward cooperatively with this Committee and others toward that end whenever the Congress is ready.
The possibility for brownfields legislation appears to have a better chance this year, and like many others, the governors believe that brownfields revitalization is critical to the successful redevelopment of many contaminated former industrial properties. It is important that any brownfield legislation supports and encourages successful state programs by providing the clear incentives and flexibility states need to continue them.
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There is no question that voluntary cleanup programs and brownfields redevelopment are currently hindered by the pervasive fear of federal liability under the federal Superfund law. Many potential developers of brownfields sites have been deterred because even if a state is completely satisfied that the site has been properly addressed, and even if the site is not on the National Priorities list, there is the potential for EPA to take action against the cooperating party under Superfund's liability scheme.
We support legislation that, with limited exceptions, will preclude enforcement by anyone (other than by a state) at sites where cleanup has occurred or is being conducted under state programs and by providing needed liability protections for innocent owners and owners of property contiguous to contaminated sites. Governors recommend that at brownfields sites there be assurance that a release of liability under state cleanup laws protective of human health and the environment constitutes, by operation of law, a release from federal liability. In addition, CERCLA should be amended to give credit, in the form of a legal release, to those who have cleaned a site to protection standards in accordance with a state voluntary cleanup law protective of human health and the environment. These changes would greatly encourage voluntary cleanup and thus increase the number of cleanups completed.
Another provision that we believe is very important to include in any brownfields bill is a requirement that the Governor's concurrence be obtained before a site in his or her state can be added to the National Priorities List. It is currently EPA policy to seek the concurrence of a governor before listing a site, and we believe that this practice should be codified.
Page 80 PREV PAGE TOP OF DOC Lastly, we would like to see a bill that includes a waiver of sovereign immunity for federal facilities, so that states can enforce state environmental laws. Such authority has already been provided in the Clean Water Act, the Clean Air Act, and the Resource Conservation and Recovery Act. Congress confirmed its commitment to state enforcement of environmental laws at federal facilities in 1992 under the Federal Facility Compliance Act, but the authority under the Superfund law is less clear. States seek clear authority to require and oversee response activities at federal facilities. As you may know, federal facilities and former federal facilities are among the worst contaminated sites in the nation. We seek to hold the federal government to the same standard of compliance as other parties in our states.
Nonpoint Source Pollution Aspects of the Coastal Zone Management Act
Since it was enacted in 1972, the Coastal Zone Management Act (CZMA) has been instrumental in assisting coastal states to manage growth and conserve resources. The CZMA provides a national framework to efficiently consider and balance an array of critical and sometimes conflicting activities, including fisheries development and enhancement, commerce and industrial port development, energy exploration and production, public access and recreation, waterfront restoration and housing, and wetlands preservation and coastal preservation.
The CZMA is also a model for state and federal partnerships. It is the only federal statute that requires federal activities to be consistent to the maximum extent practicable with state policies. The CZMA's consistency provisions have reduced conflicts between states and federal agencies by establishing processes to ensure regular communication and participation in project planning. The Governors support reauthorization of the CZMA.
Page 81 PREV PAGE TOP OF DOC Again, thank you, Mr. Chairman, for this opportunity to share our views with the Subcommittee.
Testimony of Governor John A. Kitzhaber of Oregon
Chairman Duncan, members of the Subcommittee, thank you for the opportunity to testify regarding Oregon's perspectives on the Federal Water Pollution Control Act.
This federal act, which I will refer to as the Clean Water Act, is at the center of extensive efforts by both private citizens and public officials in Oregon to restore water quality, aquatic habitat, and all of the other beneficial uses that flow from a healthy function.
In the brief time that I have today, I will comment on the Clean Water Act with regard to the following three topics:
1. Oregon's experience with Section 303(d)Total Maximum Daily Loads (TMDLs).
2. The streamlining of Section 404 permitting.
3. The importance of Section 401 certifications.
But first, I'd like to mention several themes that run through all of Oregon's activities relating to the Clean Water Act.
Page 82 PREV PAGE TOP OF DOC First: Oregon is committed to doing whatever we must do to achieve and maintain clean water and fully functioning aquatic habitats. We do not want Congress or any other entity of federal government to do anything that will weaken environmental protection mandates, weaken environmental standards, or weaken efforts to assure full compliance with those mandates and standards.
Second: Forging and maintaining partnerships is the key to achieving environmental protection, especially at the watershed level. By their nature, these partnerships involve willing participation and cooperation of a diverse group of stakeholders who are brought together by a common cause: the need to assure that their watersheds are fully able to function as attractive and healthy places in which to live; and places in which to earn a living. This common desire for healthy watershedsas the foundation for both environmentalists and economic sustainabilityis a motivating factor distinct fromand more powerful than, either the ''carrot'' or the ''stick.''
And being a different kind of motivation, it requires a special and sometimes unconventional relationshipand mutual respectbetween government and the private sector. It is critically important that the federal agencies recognize this and adopt a flexible approach that allows for the sometimes unpredictable and unconventional nature of local public-private partnerships. One size does not fit all, and it is counterproductive to stubbornly force local partners to adhere to inappropriate processes and unrealistic time lines.
Third: The federal government must be a fully committed member in these partnerships at the ground level. For federal agencies to regulate from afarto exercise rigidly inflexible oversight, or to speak in abstractionswill not be effective because this kind of participation does not translate into the realities of life at the local level. The opportunity lies in federal representative with the attitudes and skills necessary to participate at the watershed level with those who are making the key decisions about natural resource management.
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Fourth: It should go without saying that the federal government must complyin word, deed, and resultwith the Clean Water Act, with other federal environmental protection mandates, and with all state laws enacted pursuant to these federal mandates. That is not the case today. For example, dams managed by the Corps Of Engineers regularly violate water quality standards; forests and range lands managed by the US Forest Service and Bureau of Land Management often contain waters that also violate provisions of the Clean Water Act. Such examples of Federal Non-Complianceparticularly when the Environmental Protection Act is enforcing compliance at the state levelis not only damaging to the environment but also to public faith in the federal government as a trust-worthy partner. Correcting this situation should be a high priority of Congress and with the federal agencies.
Fifth: Having said that, we must also acknowledge the many positive contributions of federal agencies, programs, and staff to water quality protection. In fact, full implementation of the Clean Water Act in Oregon would be impossible without these substantial contributions in areas including monitoring, research, technical assistance, and education outreachin addition to the management of water resources on federal lands themselves, whichat its bestcan serve as a very constructive example for the management of water resources on private lands. Full implementation of the Clean Water Act requires that Congress adequately fund these activities and services in the federal agencies.
Sixth: As a final overall theme: The Clean Water Act must be reauthorized and brought up to date. Oregon Senator Ron Wyden, through his Watershed Stewardship Act, is one of those who has proposed concepts for watershed management that reflect the opportunities and realities of today.
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We also support new approaches that emphasize local partnerships, offer meaningful and attractive incentives, remove disincentives, and empower private lands managers to be the best possible stewards of water quality and of all the other natural resources on their lands. Other ideas for positive change include overtly tying together the important and interlinked environmental mandateslike the Clean Water Act and the Endangered Species Act, for example. By whatever means and through whatever vehicles Congress chooses to address these good ideas, they should be reflected in a reauthorized new version of the Clean Water Act as soon as is practicable.
Now, to return to those several specific program examples:
1. Oregon's experience with Section 303(d)Total Maximum Daily Loads
As one of the first states to tackle this difficult program, Oregon has a great deal of experiencesome of it gained the hard wayin how to approach establishing TMDLs. We now are working through a schedule that will complete TMDLs for all Oregon basins by the end of 2007. We've developed a technical approach andwith the strong support of our Legislaturehave assembled a technical staff sufficient to do the job. Our effort is based inand draws its inspiration fromthe program we proudly call the ''Oregon Plan for Salmon and Watersheds.'' The Oregon Plan emphasizes local participation, public-private partnerships, voluntary activity, incentive-based strategies, consensus building, the fostering of economically and environmentally sustainable approaches to restore watershed health. The Oregon Plan is working. While, it's a little too early to document changes in watershed health, we can easily document the dramatic commitment of Oregonians. We now have over 90 watershed councils covering nearly the entire stateall dedicated to the same values that underlie the Clean Water Act.
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Nonetheless, we still face challenges that Congress and the federal agencies can help us with. First and foremost we need the type of technical assistance that federal agencies can providefor example, the guidance on private natural resource management plans provided by the Natural Resources Conservation Service (NRCS), and also the Water Quality Restoration Plans from the Forest Service and Bureau of Land Management (BLM) that come very close to being TMDLs and that greatly assist the process of completing TMDLs in those many Oregon watersheds that contain federal lands. The state doesn't have the resources to provide all of this technical effort, and it is unlikely that TMDLs can be fully implemented without the solid and ongoing funding and staffing of these activities in the federal agencies.
2. The streamlining of Section 404 permitting
Oregon is committed to assuming responsibility for issuing fill and removal permits pursuant to Clean Water Act Section 404. Up to now, the process has required multiple permits from federal and state agencies, and has not only created a delay in getting watershed restoration projects moving forward, but also a disincentive to private landowners who want to make a positive contribution to watershed health.
Oregon's new program will provide a ''one stop'' center for such permits and will speed the process considerably without sacrificing any of the environmental protections necessary to assure that activities affecting the beds and banks of our waterways improve, rather than impair, water quality and habitat.
3. The importance of Section 401 certifications
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The State of Oregon places great importance on our responsibility to review federal permits and actions for consistency with the Clean Water Act. Given the shear volume of federal activity, we must be selective about which permits and actions to review and which to grant 401 certification. At the same time, we see this as one of the best opportunities to assure that federal actions have the effect of helping, rather than hurting, our water quality programsand of leading the way by setting a good example. But, for the letter and spirit of the Clean Water Act to be fulfilled, the federal agencies must both cooperate in the 401 process, and be responsive to our comments, suggestions, and stipulations. Presently, at the top of our list of 401 concerns, is dam re-licensing and dam operation. Dams can have a range of very significant impacts on water quality, and it is imperative that federal agencies licensing or operating dams be responsive to the comments we provide. It is critical that Congress bolster the states' 401 authorities and resist anything that would make that authority more difficult to implement. We will fully cooperate to streamline dam relicensing processes. But clearly that
Oregon would oppose any effort to remove or weaken the mandatory conditioning authority that federal and state environmental agencies must be able to exercise for the sake of to protect water quality and endangered species.
In conclusion, Mr. Chairman, let me again thank you and the members of the Subcommittee for granting me this opportunity today to briefly present a few of Oregon's concerns and issues relating to the Clean Water Act. I have also submitted written testimony to the committee on behalf of the Western
Governors Association I'd very much appreciate hearing your views on these matters, and I will gladly address any questions you may have.
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Statement of Hon. James P. McGovern of Massachusetts
1 would like to thank the distinguished Chairman, Mr. Duncan, for holding today's hearings on State's perspectives on the Clean Water Act.
I would also like to thank the distinguished panelists for being here today and I look forward to hearing your testimony.
There are a number of Clean Water Act legal and regulatory issues that I know will be raised in today's hearing. A recent U.S. Supreme Court decision regarding the Army Corps of Engineers' jurisdiction over wetlands through their 404 authority and an Appropriations rider blocking the implementation of the EPA's TMDL program are topics that I am sure we will address in this subcommittee in the coming months.
As the only member from the New England region on this subcommittee, I would like to emphasize the need for increased federal support for clean water infrastructure. The distinguished chairman, ranking member and other members of the subcommittee are familar with the various ''needs'' estimates for the cost of clean water infrastructure over the next 20 years. All of these estimates indicate that the cost to address our clean water infrastructure needs far outstrips what we are spending. And I am confidant that I speak for many, if not most, of my New England colleagues in stating that we hear about this need first hand in boards of selectmen and town council meeting across our districts.
Last Congress I co-sponsored H.R. 828, the CSO Partnership Act, to authorize $15 billion in CSO grants. I thank Mr. Barcia and the committee leadership for working to get this program authorized, and I look forward to working in the coming months to get funding for this program appropriated.
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I am also cosponsoring Representative Kelly and Representative Tauscher's Clean Water Infrastructure Financing Act that will reauthorize and expand the Clean Water State Revolving Loan fund at a level of $3 billion per year. I hope that we can have a markup on this legislation in the coming months.
Additionally, last Congress I expressed interest holding a hearing on the development of a wastewater and drinking water infrastructure trust fund similar to TEA21. There have been a number of studies and proposals on this topic and I strongly encourage the committee to explore this possibility.
Thank you, Mr. Chairman, and I request that my statement be included in the record of this hearing.
Statement of Hon. Butch Otter of Idaho
Chairman Duncan, Ranking Member DeFazio: I would like to thank you for calling this hearing today. I am pleased that this committee is starting off the 107th Congress focusing on the importance of the states. It is the states, counties, and cities, Mr. Chairman, that are forced to comply with the thousands of rules and regulations that originate in Washington, D.C. One size does not fit all, Mr. Chairman. I look forward to working with you and this subcommittee to provide more flexibility to the states. I would also like to thank Governor's Hoeven and Kitzhaber for being here today and offering their testimony. Governor Kitzhaber's Oregon borders my own Congressional District, and I would hope that he supports strengthening local control over water quality and use.
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Mr. Chairman, the Environmental Protection Agency's proposed TMDL rule is a disaster waiting to happen. Issued in defiance of Congressional intent, this rule will devastate industries throughout our country. In my own state of Idaho, it will hurt farmers and small-businessmen who have, in good faith, tried to comply with the Clean Water Act. And it will impose enormous new burdens on State, local and tribal governments that the Federal government tasks to enforce them. The new rule forces the states to adhere to EPA's schedule in establishing TMDL rules. It would subject thousands of farmers and other activities now considered to be non-point sources of pollutants to obtain federal permits. It would allow the EPA to regulate TMDL's on thousands of miles of rivers in this nation if the states fail to meet EPA's stringent rules. The prohibition against the TMDL rule taking effect expires in October, Mr. Chairman. Let's make sure the rule is terminated long before then, and replaced with sensible, state-friendly policies.
Mr. Chairman, I also hope this committee will take a hard look at the proposals that would threaten the operation of federally-operated dams along the Columbia-Snake River system. The dams along the Columbia-Snake River basin are vital for producing irrigation for thousands of Idaho families, farms and businesses. What's more they provide an important transportation link to export goods to the sea. I was astonished by a recent federal court judge's ruling interpreting conflicting federal laws. She held that the dams are not in compliance with the Clean Water Act, and that the Army Corps has less than 60 days to get in compliance. These dams produce thousands of megawatts of power that is critical to the economy of the West. Some environmental groups believe that we cannot have renewable electricity and clean water. They should look at the facts. Hydroelectric power is the cleanest, most efficient use of our water supply for the future. I look forward to working with this committee in the coming months on legislation to increase our supply of renewable energy while protecting our environment.
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Testimony of Christophe A. G. Tulou, Deputy Director for Intergovernmental Liaison
Mr. Chairman and Members of the Subcommittee: My name is Christophe Tulou, and I am the Deputy Director for Intergovernmental Liaison for the Environmental Council of the States (ECOS). ECOS is the organization representing the heads of the state environmental organizations across the country.
I thank you for the opportunity to share the views of state agency leaders on the Clean Water Act. There are many particulars, but I would like to begin with one overarching concern of the states. The Clean Water Act, like most of the other major environmental statutes, needs a comprehensive upgrade. The original intent of Congress to reauthorize these statutes on a regular basis to consider new scientific and health information, technical innovations, and changing public perceptions regarding environmental protection was well founded. Much has changed in recent years in terms of our clean water challenges and our understanding of what is required to meet them. For example, we now better realize that the answers to today's pressing water quality issues must embrace complex ecosystems and relationships. The Act needs comprehensive review and its approaches must be better integrated, not only internally among the Act's own provisions, but also with air, waste and other statutes.
States have assumed a preeminent role in managing water quality and other environmental issues. Of the federal programs Congress deemed delegable to the states, over 70 percent have been delegated. States are performing over 80 percent of environmental enforcement actions. States also collect over 90 percent of the data that EPA and we use to define the effectiveness of our programs. Not only are states fully engaged in managing our environment, they are also in a position to recognize first-hand the opportunities for improving the Clean Water Act.
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I will focus the remainder of my remarks on the gaps between Clean Water Act aspirations and available resources, the on-going struggle with Total Maximum Daily Loads (TMDLs), and the debate over the management of animal feeding operations.
CLOSING THE GAPS
States are keenly aware of the need to replace aging drinking water and waste water infrastructure, and appreciate the huge costs that effort will incur. I am sure you have received at least a couple of views of how to close an estimated $23 billion per year gap in funding for upgrading aging and inadequate systems. We appreciate the strong interest among members of this Subcommittee, and Congress in general, to address this critical need.
Providing additional billions to fix aging pipes and plants is essential, but no matter how that is ultimately done, states will be expected to play a significant management role. Unfortunately, there is the significant gap in the resources states need to manage existing mandates to clean up our water. EPA, working with the states, estimates that the water quality program management gap is around $700 million per year. In addition, states continue to face extraordinary needs to manage nonpoint issues, including the establishment of Total Maximum Daily Loads (TMDLs), as well as proposed new rules to manage animal feeding operations. As the Subcommittee considers its options for addressing the nuts and bolts of water infrastructure, we urge you to support state program management capacity to meet those needs as well as the rest of our water quality challenges.
The General Accounting Office (GAO) has concluded that states also need additional resources and scientific support for water quality monitoring to support the establishment of TMDLs. More and improved federal research and development activities aimed at state and regional problems like TMDL implementation are also urgently needed.
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We appreciate the magnitude of the issues and decisions confronting Congress. But we believe we all can acknowledge that the resources to meet our nation's water quality challenges are inadequate. We urge agreement that these efforts deserve and require new funding.
ESTABLISHING AND MOVING BEYOND TMDLS
From its inception, the Clean Water Act envisioned the identification of impaired waters and the implementation of measures to reduce the loads of pollutants that prevented use of those waters for fishing, swimming, drinking and other traditional and necessary uses. While great strides have been made in reducing pollution from industrial facilities and municipal sewer systems, these TMDL provisions lapsed. The fact that 40 percent of our waters still do not meet water quality criteria despite the hefty investment to control point sources highlights the significance of managing remaining pollution sources to attain desired clean water goals.
Pursuant to a multitude of suits brought by environmental organizations to spur action on TMDL requirements, many states are now embarked under court orders on the difficult task of establishing these pollution limits. EPA has also issued a TMDL regulation to govern the process. The states are very concerned about the significant shortfall in their financial capacity to fulfill this mandate. Last July, the National Governors' Association (NGA) wrote to President Clinton noting that the then-pending regulation could ''cause major financial burdens on our state environmental agencies and severe economic impacts on our states,'' estimating that the overall cost to states would be ''between $1 billion and $2 billion annually.''
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Most states, faced with an absence or at least significant uncertainty about the federal role in meeting these challenges, have embarked on a remarkable and innovative array of watershed approaches working closely with the variety of parties responsible for creating and solving water quality problems. Many states are concerned that the new rule will not adequately embrace and allow full beneficial use of these approaches that are designed to meet the unique circumstances that affect individual watersheds and the waters they contain. The Governors, in their July 2000 letter to the President, summarize this concern by stating that the regulation ''does not afford states significant flexibility in the management of water resources, requiring instead a ''one-size-fits-all'' approach to the management of water quality. Distinctive water quality problems in every state necessitate the application of tailored approaches to addressing those problems.''
ANIMAL FEEDING OPERATIONS
Flexibility is also a watchword as states and EPA assess options for controlling pollution from animal feeding operations (AFOs) and confined animal feeding operations (CAFOs). As with broader watershed initiatives, states have been compelled to identify innovative and flexible approaches to managing the impacts associated with AFOs and CAFOs, utilizing permits where appropriate as well as nutrient management planning and other non-NPDES permitting techniques. Fundamentally, we believe that EPA should recognize permit and non-permit approaches to feeding operations that are functionally equivalent as judged by the requirements of the Clean Water Act, and should recognize existing programs which achieve equivalent or better environmental results.
Page 94 PREV PAGE TOP OF DOC We emphasize that NPDES permitting is not a necessity in the quest for water quality, but an important tool that in specific instances is the best way to achieve clean water objectives. States are in a far better position than EPA to make that determination. A ''one-size-fits-all'' permitting approach threatens not only the affordability and administrative capacity to achieve water quality, it also unwisely limits approaches that could provide superior environmental results. These results should drive AFO/CAFO policy decisions.
The Clean Water Act has not been reauthorized since 1987. We must bring the Act up to date with our current circumstances to attain its laudable goals. It cannot be modernized piecemeal. Just as we are dealing with a complex and interrelated environmental system, we must respond with an integrated and flexible law.
States are not stakeholders in this effort. We are crucial partners in the federal effort to achieve clean water. While state investments in environmental protection have risen sharply in recent years as the relative federal share in our efforts has dropped, we still face a significant gap between national clean water objectives and our capacity to deliver. We look forward to working with you to ensure we have the means to attain the aspirations of the Clean Water Act.
I thank you, Mr. Chairman, and the Members of this Subcommittee for soliciting the views of the states and for the opportunity to testify before you.
Page 95 PREV PAGE TOP OF DOCStatement of Hon. Don Young of Alaska
I thank Chairman Duncan for providing members with the opportunity to hear from our nation's Governors and other state organizations on Clean Water Act issues and priorities.
States are at the front line of environmental protection. They look at improving water quality from the perspective of those in the fieldtrying to achieve environmental resultsnot the perspective of those in Washingtonissuing mandates that may have no environmental benefits.
Regulatory actions taken or proposed by the prior administration have generated a great deal of controversysuch as the TMDL rule, and the animal feeding operations proposal.
I am pleased that we are seeking the advice of Governors and state organizations as we examine these and other Clean Water Act issues in this Congress.
I also look forward to working with state organizations as we try to address water infrastructure needs.
We all recognize that aging and inadequate water infrastructure is a significant problem that our nation must addressor risk losing the water quality improvements we have gained over the past 25 years.
Page 96 PREV PAGE TOP OF DOC Finding a solution to that problem will require all of usstates, Congress, the Bush administration, municipalities, and other stakeholdersto work collaboratively together.
This will be a busy subcommittee. I look forward to working with all of you.