SPEAKERS CONTENTS INSERTS
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THE FUTURE OF THE TMDL PROGRAM: HOW TO MAKE TMDLS EFFECTIVE TOOLS FOR IMPROVING WATER QUALITY
WATER RESOURCES AND ENVIRONMENT
TRANSPORTATION AND INFRASTRUCTURE
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HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
NOVEMBER 15, 2001
Printed for the use of the
Committee on Transportation and Infrastructure
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
DON YOUNG, Alaska, Chairman
THOMAS E. PETRI, Wisconsin, Vice-Chair
SHERWOOD L. BOEHLERT, New York
HOWARD COBLE, North Carolina
JOHN J. DUNCAN, Jr., Tennessee
WAYNE T. GILCHREST, Maryland
STEPHEN HORN, California
Page 3 PREV PAGE TOP OF DOCJOHN 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
JOHN COOKSEY, Louisiana
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
MARK STEVEN KIRK, Illinois
HENRY E, BROWN, JR, South Carolina
TIMOTHY V. JOHNSON, Illinois
BRIAN D. KERNS, Indiana
Page 4 PREV PAGE TOP OF DOCDENNIS 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
JOHN BOOZMAN, Arkansas
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
BOB FILNER, California
EDDIE BERNICE JOHNSON, Texas
FRANK MASCARA, Pennsylvania
Page 5 PREV PAGE TOP OF DOCGENE 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
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
BILL SHUSTER, Pennsylvania
JOHN BOOZMAN, Arkansas
DON YOUNG, Alaska
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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
Mehan, Hon. George Tracy III, Assistant Administrator, Office of Water, U.S. Environmental Protection Agency
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PREPARED STATEMENT SUBMITTED BY WITNESS
Mehan, Hon. George Tracy, III
THE FUTURE OF THE TMDL PROGRAM: HOW TO MAKE TMDLS EFFECTIVE TOOLS FOR IMPROVING WATER QUALITY
Thursday, November 15, 2001
House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Water Resources and Environment, Washington, D.C.
The subcommittee met, pursuant to call, at 9:30 a.m. in room 2167, Rayburn House Office Building, Hon. John J. Duncan, Jr. [chairman of the subcommittee] presiding.
Mr. DUNCAN. I want to first of all welcome Administrator Mehan and thank him for taking time out from your busy schedule to be here with us for this hearing about the EPA's TMDL program.
The focus of this hearing is how we can or what do we need to do to create a smarter, more efficient program that recognizes the proper lead that the States should take in improving our water quality. The total maximum daily load, or TMDL program, is an important tool in helping us evaluate and improve our water quality throughout the country. As with any tool, however, it must be used properly to be beneficial.
Under the Clean Water Act, States and the Federal Government attempt to improve our water quality by working with point sources to install water treatment technology. Where that does not fully meet the need, the States have primary responsibility to develop TMDL standards. The States also work with their nonpoint sources to curtail output and improve water quality.
Page 9 PREV PAGE TOP OF DOC As we learned from the National Academy of Sciences in our June hearing on this subject, the States should first clearly identify how a water body is being used and then a State can establish water quality standards to protect those uses, because those uses do vary widely.
While we have made improvements in water quality over the past 30 years, and Chairman Boehlert is introducing a resolution that I have agreed to co-sponsor celebrating some of those achievements over the last 30 years, the States have provided information to the EPA estimating that approximately 20,000 bodies of water did not meet water quality standards.
Unfortunately, that doesn't provide an adequate picture. Because first, some water bodies have multiple pollutants. Secondly, there is no consistent definition of even what a water body is and third, the States have different water quality standards that they apply and methods that they use for collection of data and information on this subject.
In fact, there are bodies of water included on some State lists without adequate supporting data to show that the water quality is impaired. Even where there is data, it is unclear how reliable it is. And in some cases, the EPA has required listing even when the States believe they lack sufficient supporting data.
According to a General Accounting Office report issued in March of 2000, only six States have enough data or information to determine whether or not their waters meet standards, and for non-point sources, only three States have enough data to identify sources and develop TMDLs.
Yet under the July 2000 TMDL regulation, the States or the EPA would develop and implement over 4,000 TMDLs a year for the next 10 years. Concerns about that rule caused Congress to put the new TMDL rule on hold and directed the EPA to conduct additional cost studies. Congress also told EPA to work with the National Academy of Sciences to review the science used in this program.
Page 10 PREV PAGE TOP OF DOC In August of this year, EPA released its draft report on TMDL program costs. The draft report indicates the average cost of developing TMDLs over the next 15 years will be $63 million to $69 million a year. However, in February of 2000, the Association of State and Interstate Water Pollution Control Administrators provided this Subcommittee with an estimated TMDL development cost to States over the next 15 years at between $670 million to $1.17 billion each year. So there's a wide discrepancy there, and that's something that we need to look into.
The draft EPA report estimates the annual cost to implement TMDLs is between $1 billion if a cost effective approach is taken and nearly $4.5 billion if the program is not flexible. However, cost analyses submitted to the EPA estimate a total annual average TMDL compliance cost of above $8 billion a year. In addition, the EPA's draft cost report fails to include any cost estimate for small businesses to comply. And the effect on small businesses and small farms is, as everyone knows, always one of my biggest concerns.
The States also believe that the July 2000 rule would greatly reduce State flexibility. In fact, in a letter to President Clinton, the National Governors' Association said, ''The restrictive language of the regulation will virtually eliminate the flexibility of States to offer opportunities to reduce overall pollution between watersheds.'' And that also is something that is of concern to me, because I don't like the Federal Government not giving the States leeway and flexibility in programs of whatever type.
The cost issue is not whether to adopt a program that improves water quality, but rather how to do it in the most cost effective way.
On the issue of the science supporting the TMDL program, the National Academy of Sciences report released in June confirmed that many water bodies listed as impaired under the TMDL program lacked water quality data supporting the listing, and also that under pressure from unrealistic deadlines the TMDL program is becoming an administrative exercise instead of focusing on improvements in water quality. Thirdly, the TMDL program does not allow the use of the best available scientific information.
Page 11 PREV PAGE TOP OF DOC One of the most significant recommendations in the National Academy of Science report is the application of the scientific method to the TMDL process. The NAS report calls this ''adaptive implementation.'' Under this process, adjustments would be undertaken as we improve our understanding of a particular water quality problem and its solutions.
The EPA's July 2000 TMDL rule would make adaptive implementation impossible. Fortunately, the EPA intends to issue a new proposal next spring. The challenge the EPA faces is how to make the TMDL program flexible enough to incorporate new information and allow cost effective solutions to water quality problems.
I look forward to hearing from Administrator Mehan on the EPA's plans to improve the TMDL program. But first, I want to recognize my good friend, Chairman Boehlert, for any statement or comments he wishes to make at this time.
Mr. BOEHLERT. Thank you, Mr. Chairman.
No statement, I'm just anxious to hear from Administrator Mehan.
Mr. DUNCAN. Thank you very much. Mr. Gilchrest.
Mr. GILCHREST. Thank you, Mr. Chairman.
Very briefly, the TMDL concept was in the original Clean Water Act, fundamentally, but never put into practice, enforced or really thought about until about three or four years ago. When we first heard about it, Mr. Chairman, what we did, myself, EPA and the Maryland Department of the Environment went around to every county in my district. We brought in people from public works, planning and zoning, county council, county commissioners, mayors, you name it, anybody that would have anything to do with land use.
And we explained the concept of TMDL in that it was fundamentally trying to solve two problems, improve best management practices for agriculture and improve stormwater runoff, looking at it from that perspective. We did use, I think when you recommended this morning, Mr. Chairman, that we use adaptive practices with this, that's what we assumed we were going to do, use adaptive practices so everybody knew what the concept was, how we dealt with it from an agricultural perspective and how we've dealt with it from a stormwater perspective. We've been working on it ever since that time with not a great deal of difficulty.
Page 12 PREV PAGE TOP OF DOC So I think if enough information is out there, the Federal Government can't do it by itself, but there certainly is a great deal of cooperation from people on the ground who know what the goals are. We can work, the adaptive part of that is, if you know what the goal is, you can work in a flexible manner to achieve that.
So I hope we move forward with at least this concept once we get all the kinks out. Thank you very much.
Mr. DUNCAN. Mr. Gilchrest, thank you very much. I knew you had done that, you had mentioned that before, but I have to tell you, I am very, very impressed with that. I doubt that any other member has gone to that extent in regard to this program, and I think it's very commendable that you have done that. I think probably because you did do that, that's why you have had the success that you've had.
Mr. CULBERSON. Mr. Chairman, thank you. I just want to thank you for putting this hearing together. I'm still a relatively new member of the Committee, having joined it this summer. But I want to personally express my deep appreciation to you and the gratitude of the people I represent in Texas for your focus on the practical impact of these regulations that the EPA and other Federal agencies have passed. You have consistently, in the time that I've been here, held hearings and focused the attention of this Subcommittee on ensuring that the Federal Government, the EPA in particular, understands that the work that they do has a profound impact on not only the cost of business across the country but a tremendous impact on the lives of people.
I also want to thank you for your work in protecting the power of State and local governments and express my strong support for what you're doing with the work of this Subcommittee, sir.
Mr. DUNCAN. Thank you very much.
Page 13 PREV PAGE TOP OF DOC We will proceed at this time with the hearing. This is a little unusual, we usually have a whole table full of witnesses and have several panels. But we've got only one witness here today. This is unusual, but we have a very important witness here today. We have from the Environmental Protection Agency, as I have mentioned, the Honorable George Tracy Mehan, III, who is the Assistant Administrator for the Office of Water here in Washington. So we will allow Administrator Mehan to give his testimony at this time. You may proceed with your statement, sir.
TESTIMONY OF HON. GEORGE TRACY MEHAN, III, ASSISTANT ADMINISTRATOR, OFFICE OF WATER, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Mr. MEHAN. Thank you, Mr. Chairman, members of the Committee. Again, I am Tracy Mehan, Assistant Administrator for Water at EPA. I'm happy to discuss our efforts to revisit the whole issue of the total maximum daily load rule and program as well as explore our efforts at providing States and tribes with greater flexibility and hopefully the ability to even utilize market-based approaches that provide economic incentives for early reductions and minimize the cost of implementation as an important part of our strategy.
At the outset, let me say that I envision, and this is my view, but I envision TMDLs to in effect be a kind of information based strategy which, if done properly, and properly conceived, can inform, empower and energize citizens, local communities and States to improve water quality at the local watershed level. The basic information derived from a sound TMDL could liberate the creative energies of those most likely to benefit from reduced pollutant loadings to their own waters in their own neighborhood.
In effect, I see this, if done right, and if we can get it correct, carrying forward the principles beyond federalism to subsidiarity, which is beyond sovereign to sovereign, but to all citizens in the private sector.
Page 14 PREV PAGE TOP OF DOC As you properly indicated, Mr. Chairman, next year marks the 30th anniversary of the Clean Water Act. I don't want to repeat your own observations, but the great success we've had over 30 years dealing primarily with point source discharges, the traditional pipe in the water, and certainly the part of the world that I've spent the last eight years of my life profession, the Great Lakes, there is no greater evidence of the success of the Clean Water Act than what we saw in that part of the world.
However, despite past progress in reducing water pollution, still, again, as you indicated, almost 40 percent of the Nation's waters assessed, these are just the assessed waters by the States, still do not meet water quality goals established by the States under the Clean Water Act. Section 303(d) of the Clean Water Act established the TMDL program as far back as indicated, 1972, requiring States to identify waters not meeting those standards, which we're also calling of course, impaired waters, and to establish in effect pollution budgets, which is really what a TMDL is really all about, to restore the quality of those waters.
The Act requires EPA to approve or disapprove lists in the TMDLs as well as to develop a list of TMDLs if the State action is disapproved or not forthcoming. So I'd like to describe the efforts here to reevaluate the June-July 2000 rule in our efforts to improve that program, if I may.
Now, in July 2000, EPA issued the revisions to the TMDL and the National Pollutant Discharge Elimination System programs. The rule, as you indicated, amended regulations which were first issued as far back as 1985 and then amended in 1992. The rule was intended in part, at least as I understand it, to address issues that were arising in numerous lawsuits brought against EPA because of the deficiencies in the State, and I would say the Federal, program. Forty lawsuits in 38 States were moving management of the program out of the agency and into the courts. The specifics of the rule and the way in which it was issued created much of the controversy.
Page 15 PREV PAGE TOP OF DOC In October of 2000, Congress in fact prohibited EPA from expending funds from fiscal years 2000 and 2001 to implement the rule. And in the conference report accompanying EPA's 2001 appropriations bill, Congress directed EPA to contract with the National Academy of Sciences and the National Research Council, to review the quality of the science used to develop the TMDLs. We also received Congressional direction to undertake a comprehensive analysis of costs associated with the TMDL rule as alluded by the Chairman.
Organizations representing many different interests, agriculture, industry and environmental groups, challenged many aspects of the 2000 rule in court. And because of these controversies and uncertainties, in August of 2001 EPA proposed to delay the effective date of the rule for 18 months. This delay until April of 2003 was made final and published in the Federal Register in October this year.
EPA hopes to develop a rule over the course of the next year and a half that leads to restoration of our Nation's impaired waters in the most efficient and cost effective way. The agency has begun a series of hearings or listening sessions, if you will, across the country to gather ideas from the public and interested organizations on ways to improve the TMDL program. Our final one will be December 11th here in Washington, D.C. We've been to Sacramento, Chicago, Oklahoma City and Atlanta so far.
We hope to propose a new rule in spring of 2002, and promulgate a final rule before April of 2003, at least the end of April. We recognize this is an ambitious schedule and we are early stage of the rulemaking process. We look forward to the opportunity to meet with you in the future to explain to you where we've come and how our thinking has crystallized in light of this comment period.
Regarding a number of related developments again mentioned in the Chairman's opening comments, in June the National Research Council published its report entitled Assessing the TMDL Approach to Water Quality Management, which recognizes that there is enough science, and I quote here, ''to move forward with decision making and implementation of the TMDL program.''
Page 16 PREV PAGE TOP OF DOC In addition to identifying research needs, the report calls for program changes to better account for scientific uncertainties, which will always be with us, to improve the water quality standards and monitoring programs, and to employ adaptive implementation. One of the most critical recommendations is for States to strengthen their monitoring programs. EPA will take a careful look at these recommendations as it develops revisions to the existing program.
I should say a word about EPA's draft study on the national cost of the TMDL program. This study examined the cost of developing the TMDLs as well as the cost of putting in place on the ground actions, i.e. permits and best management practices, to reduce pollutants causing poor water quality. The cost study addresses the full range of the TMDL program rather than just the cost of changes called for by the 2000 rule. So we look back and try to bring in all the costs to give a more realistic, what we hope is a more realistic, picture.
The draft study, and again this study is out for comment through December 7th, and we're looking forward to reviewing all those comments, but the draft study estimated the cost to develop all TMDLs necessary under the 1998 list to be about $69 million annually over the next 15 years. Cost to implement pollution reductions that may be required by the TMDLs were estimated to be between $900 million and $4.3 billion.
Now, regarding the rulemaking that we're in the midst of, there are many questions. And I'm not here to answer those questions, but to give you a sense of what we're looking at as we go through this listing process and development process. Some of the issues involve scope, timing and methodology for the lists. The inclusion within the TMDL itself of an implementation plan with reasonable assurances, the time frame in which a TMDL must be completed, the role of stakeholders in TMDL development and EPA's role in backstopping the States when a State fails to act.
I personally believe that EPA must also find ways within the context of the Clean Water Act to permit and offset growth and to allow States and tribes to implement voluntary trading programs that implement TMDLs or make progress towards attainment of standards pending development of TMDLs for impaired waters. These issues are intimately related to the successful implementation of the program as well as maintaining a strong competitive economy.
Page 17 PREV PAGE TOP OF DOC Now, some of the questions we seek to answer are, what should be the length of the listing cycle, in terms of 303(d) list. Should it be two, four, or five years, for instance? How broad should the list be? Should it include waters impaired by pollution or waters where a TMDL has been completed but standards have not yet been attained?
Should waters that are threatened but not yet impaired be on the list, as is the case under the current regulations? Should lists include monitoring schedules? What should be the role of the public in reviewing and EPA in approving the State's methodology of putting the list together? Should we combine the Section 305(b) water quality report and the Section 303(d) impaired waters listing processing? That's another question.
One of the most challenging issues concerning the implementation of the TMDL once completed, the 2000 rule attempted to make sure the TMDLs will not just be plans on the shelf, but were actually implemented to restore impaired waters. To accomplish this, the 2000 rule called for an implementation plan approved by EPA as part of the TMDL. With this method, EPA would have to adopt an implementation plan if a State TMDL was disapproved. The difficulty is that in many cases, EPA doesn't have the breadth of authority outside the Clean Water Act that States may have to accomplish implementation.
So again, there's a lot of issues there. Today's not the day to give you our answers, but obviously we're going to have to come up with some answers and some responses to these pertinent questions. In the meantime, we are working with our research and development office to develop load allocation models and best management practice designs to identify cost effective restoration treatment approaches. We'll be exploring whether there are other mechanisms and other Clean Water Act provisions that can help translate the calculation of pollutant reductions into environmental improvements.
Incorporating market based programs like trading and TMDL implementation strategies offers, we believe, tremendous potential water quality and economic benefits. Of course, we're working with our sister agency, USDA, to explore opportunities to use the USDA programs and expertise across the board in this area.
Page 18 PREV PAGE TOP OF DOC Another related issue concerns how EPA and the States can determine what constitutes reasonable assurance that pollutant reductions are technically achievable, and that there is planning, financing and institutional support for implementation. To give you an example where this is a real difficult issue, if you have an impaired water, and impaired, say, primarily by air deposition of mercury, as we see in many parts of the country, a lot of that isn't under our control in the water program. It's dependent on what happens here in Congress and with our air program.
So how we can provide reasonable assurance is somewhat difficult, although we've attempted to do that in some circumstances.
Another major issue raised in the litigation on TMDLs nationwide is the pace at which TMDLs are being developed. The 1985 and 1992 rules do not address this issue. The July 2000 rule addressed this issue by setting a requirement for States to establish evenly paced schedules over 10 to 15 years after a water is listed. EPA, in 1997, expressed an expectation prior, that is, to development of the new regulation, that TMDLs would be developed within 8 to 13 years from initial listing.
Another concern is the time frame in which water quality standards will be attained. The 2000 rule sets a goal of 10 years where practicable.
The Clean Water Act requires EPA to step in and do the TMDL if it disapproves a State submitted TMDL. Some courts, many courts, in fact, have applied a constructive submission theory or doctrine that holds that a State's failure to submit TMDLs over a long period of time may obligate EPA to disapprove those never-submitted TMDLs and to establish TMDLs for the State. As was noted earlier, given the long neglect of this provision, the agency was very vulnerable to the first wave of lawsuits that came along, given what was in a sense honoring the provisions of 303 in the breach.
Now, should States and EPA be afforded an extended amount of time, recognizing the workload and need for public participation? That's a question. What should EPA's role be if a State does not adhere to its schedule? Finally, what should be the role of EPA in issuing or objecting to NPDES permits in impaired waters both prior to a TMDL and after development if a State fails to take appropriate action? Again, all good questions, subject to this present comment period.
Page 19 PREV PAGE TOP OF DOC Even though the July 2000 rule is not in effect, the TMDL program continues to be very active. This is not anything we can escape. The current program operates under the regulations adopted in 1985 and 1992 and in many States, quite frankly, under court orders, consent decrees or settlement agreements brought about as a result of litigation.
As most of you know, EPA and the States, until the early 1990s, emphasized technology based pollution control programs required by the Clean Water Act, including of course, BAT, best available technology under the NPDES program. EPA and the States gave lower priority to the water quality based TMDL program and thus relatively few TMDLs were developed and many State lists of impaired waters were incomplete and not submitted in a timely manner.
Again of course, the wave of citizen suits has been noted. In over 20 States, these cases were resolved with agreements for States to identify their impaired waters and establish TMDLs. Where States fail to act, EPA must step in and identify the polluted waters or establish TMDLs. Unfortunately, these lawsuits against the agency continue with two new cases in Ohio and Nevada filed just last month. Indeed, it even goes further, we have one judge in Georgia who's mandating not only that EPA do a lot of TMDLs but do implementation plans also, which we're appealing that decision.
All States submitted their Section 303(d) list of impaired waters in 1998, and even though the requirement to submit a list in 2000 was set aside, over 12 States submitted lists last year. Approximately 20,000 water bodies, again as the Chairman noted, have been identified as impaired. The next list of impaired waters is due October 1st, 2002. Approximately 2000 TMDLs were approved in fiscal year 2001 for a cumulative total of 3500 TMDLs nationwide.
EPA has initiated an effort to improve State and EPA performance and the credibility of the program under the current rules, at least we've tried. This effort involves better integration and coordination of the basic elements of the clean water program, water quality standards, monitoring, TMDLs point and non-point source program implementation, development of additional technical tools such as models and programs, and the use of increased resources that have been provided over the past couple of years for States and EPA.
Page 20 PREV PAGE TOP OF DOC To improve the States' capability to monitor and assess water and respond to the National Academy of Sciences recommendations, EPA is taking steps to strengthen the State monitoring programs so States have more timely monitoring information to support their decision making. States should be able to monitor more of their waters and be in a better position to determine if all their waters are meeting standards.
The agency continues to encourage and support the use of a rotating basin approach, and seeks ways to strengthen State assessment methodologies. We would like to ensure that States' Section 305(b) water quality reports, as well as their Section 303(d) list of impaired waters are consistent, and use the best water quality data available. We also seek better ways to measure the water program's performance in meeting our GPRA goals and to improve public confidence in assessments of water quality.
To assist in establishing better assessments and lists, EPA worked with States and many stakeholders to develop a draft guide in May of 2001 called the Consolidated Assessment and Listing Methodology, or CALM. CALM is a compendium of best practices and a guide to the minimum elements of a comprehensive State monitoring program. It contains much information on best practices for monitoring and assessing water quality, including methods for determining when water quality standards have been met and how to identify sources of water quality impairment. We hope to have a first edition of CALM available late this fall, and I know that's soon upon us here, if not past.
Just last week, EPA distributed among its regions and States a new guidance, 2002 Integrated Water Quality Monitoring and Assessment Report on Guidance. And this guidance, we believe, is an important step in setting out a framework for an efficient and informative approach to monitoring assessment and listing activities. Our intention is that these activities support each other and that the story they tell about the health of our Nation's waters is indeed a consistent one.
Page 21 PREV PAGE TOP OF DOC This guidance calls for States to develop credible publicly reviewed methodologies through which they can more adequately determine if waters are meeting water quality standards, and if not, why not. The guidance also asks the States to identify waters using a common geographic locational data base, the U.S. Geological Survey's National Hydrography data set. Currently, the size and locations of water bodies identified by States can range from less than a mile to over 200 miles. We believe this is important for interstate and cross boundary waters.
Mr. DUNCAN. Administrator Mehan, what I'm going to ask you to do is just go ahead and kind of summarize these other initiatives and these success stories and then just take a couple minutes to do that. We do have several members here who want to ask some questions.
Mr. MEHAN. Just a couple of points and I'll be done, Mr. Chairman. I appreciate it.
Mr. DUNCAN. Sure.
Mr. MEHAN. I would recommend to you some of the success stories that are in the written testimony. And I want to just tell you one from my State of Michigan.
The first TMDL that was done in Michigan was on a body of water called Lake Maketawa near Holland, Michigan, on the Lake Michigan side of the peninsula, the most eutrophic lake in the State of Michigan, we have 11,000 lakes. What I saw, and I mentioned my vision of what a TMDL is, when that TMDL was done, it identified approximately 40 or 41 point sources, discharges, into the lake. But 90 percent or more, close to 90 percent of the pollution, phosphorus, was from non-point sources, stormwater, agriculture, septic tanks, etc.
Clearly, that legitimized and informed all the local stakeholders and local governments were energized, local watershed groups. The State targeted CREP dollars, Conservation Reserve Enhancement Program dollars, State bond issue monies came into it, a whole raft of approaches, most of which were non-regulatory, are all being brought to bear on this water body in light of the powerful and useful information that was generated through a TMDL.
Page 22 PREV PAGE TOP OF DOC Now, lots of questions remain as to how good that TMDL is or what's going to come of it, etc., etc. But I think at least, again alluding to my initial comments, if we can get it right, if we can do this in a reasonable and cost effective way, something like a TMDL is an absolute prerequisite for progress in dealing with future water quality, a simple budget, if you will, as to the pollution that impacts a given water body.
Beyond that, we do discuss trading and some non-point source guidance and a USDA workshop. And with that, Mr. Chairman, I'll rest and thank you for your time.
Mr. DUNCAN. Thank you very much for your testimony.
I've got just a couple of questions, both of which I alluded to or mentioned briefly in my opening statement. You mentioned in your testimony that the EPA originally estimated its costs of development of these plans over the next 15 years to be $63 million to $69 million. But the Association of State and Interstate Water Pollution Control Administrators estimated development costs of between $670 million and $1.17 billion a year. In the EPA draft report, it estimates that the less flexible method of implementation would result in costs of up to $4.3 billion, or a more flexible approach would still end up with costs of $906 million.
Why are there such wide discrepancies in those figures? I know you've worked in two different States, I think Missouri and Michigan, working with these types of programs. I'd like to know, will you assure us that under your leadership, the EPA will allow States as much flexibility as possible so that they can really achieve cost effective types of programs?
Mr. MEHAN. Absolutely. My conversation with most of the State water program managers usually runs along these lines. We want a water program, not a TMDL program. And they've got a lot of other concerns and issues.
On the other hand, with inevitable exceptions, most of them would tell you, again, something like a TMDL is a good idea and it's something that ought to be done if we're going to move from the total focus on point sources to dealing with the broader issues of runoff, whether it's wet weather flows or impervious surfaces or whatever.
Page 23 PREV PAGE TOP OF DOC So it's really more a question of how to accommodate the reasonable challenges they have across the board, not just doing a TMDL. So I've been through enough of these cost exercises, whether it's in rulemaking or other things, I remember in the GLI we had estimates of the cost ofthat's the Great Lakes Initiativeit grew from $200 million a year to $10 billion a year. It's sort of your economist versus my economist.
Anyway, you sort through those things. But the bottom line is, it has to be cost effective, it has to be sustainable. And it has to move the agenda forward in a way that doesn't bankrupt the State programs. I tell you that that's a given that I operate under.
Mr. DUNCAN. All right. Let me ask you, somewhat related to that, we had a hearing a few months ago where we had most of the witnesses estimate that if the EPA actually carried out 400 pages of proposed rules and regulations they had about runoff from animal feeding operations that 30,000 to 40,000 small farms would go out of business. I can tell you that I think the great majority of people in this world and the great majority of the Congress root for the underdogs in sports events, and I think that most of the sympathy that I have and I think most members of Congress have is with our small businesses and our small family farms.
Yet it seems that everything we do here in Washington, the big giants in whatever industry can comply with it, but the small guys go by the wayside and either are forced out of business or they're forced to merge. Everything we do helps the big get bigger and it hurts the small guy.
Then when we talk about these billions, eventually billions of dollars of costs, those costs have to be passed on to somebody. And once again, the wealthy can handle them without any problem. But there are a lot of lower income people out there, middle income people, who are really hurt if their water bill doubles or triples or quadruples.
And so in my first meeting with Administrator Whitman, very friendly meeting of about an hour or so, I told her I hoped that she would take and keep into consideration whatever action she or her agency took, what its effect would be on the smallest of the farms, the smallest of the businesses, and what effect it would have ultimately on the consumer, so that we didn't see a doubling or tripling of people's bills unnecessarily.
Page 24 PREV PAGE TOP OF DOC What I'm getting at is this. The Clinton Administration TMDL rule has a statement in there that says ''The EPA has strong and diverse authorities to implement controls over non-point sources.'' And there are a lot of people that are concerned that if we start going with heavy handed regulations and rules and regulations to all these non-point sources which can be translated in many cases to small farms or small businesses, that it's going to run a lot of people out.
What I'm asking, do you intend to use your Section 319 grants, as there's been some indication that the EPA wants to do to attempt to create Federal authority over non-point sources?
Mr. MEHAN. I thought this was a CAPO question, it's a 319 question. I'll start with the 319.
Mr. DUNCAN. It can be a little of both.
Mr. MEHAN. First of all, Section 319 of the Clean Water Act clearly focuses on non-point source pollution. And that's, I think, I feel fairly comfortable that's a fairly unexceptional interpretation of that.
The issue that I think you're alluding to is in our recent guidance on the 319 dollars. We are encouraging States, directing States to something like half of the money or a little less than half the money to do things that could aid the TMDL process, not just the development of TMDLs but monitoring and other work.
Again, suppose the Congress in its wisdom were to repeal Section 303 tomorrow. We still have a non-point source problem. We still are going to require something like a budget, a pollution budget on a watershed or a stretch of river to determine how we deal with it. And we feel that that's the context in which our guidance has been offered in terms of 319.
None of this leads to the conclusion that we have authority to permit under the NPDES program a non-point source, period. I think that's clear. And even the court cases that I've read that have been strong in pushing the TMDL program have drawn that distinction. CAPOs, of course, are a different matter, because they are specifically recognized as point sources in the Clean Water Act. So you've got sort of the traditional concerns of what's reasonable, what's cost effective, what's the impact on smaller versus more consolidated industries.
Page 25 PREV PAGE TOP OF DOC So we understand the sensitivity whenever TMDL is injected into a conversation. But nothing we did in that 319 guidance should be, nor do I think it is legally interpreted as anything that's sending a signal about non-point sources and the NPDES program.
Mr. DUNCAN. All right, thank you very much.
Mr. TAYLOR. Thank you, Mr. Chairman.
I want to thank our witness for being here today. What continues to frustrate many, I'm from coastal Mississippi, two-thirds of the continental United States, what's dumped in Iowa, what's dumped in Minnesota, if the wind's blowing the right direction, tide's going the right way, ends up in front of my district. So I'm very much aware of the point and non-point pollution, very much aware of TMDLs.
What continues to frustrate me is that now, under both Democrat and Republican Administrations, I hear people saying basically the same things you're saying. But I've yet to see any Federal official or Federal agency step forward and say, you know, there are some ways to fix this. I hear you well into your testimony talk about cost effective, sustainable restoration projects.
But the truth be known, I don't see yourselves or the Corps or Fish and Wildlife really working at things like aquatic restoration, working at things like wetlands creation, using dredged spoil or other means to use nature to clean up non-point pollution.
I'm always amazed to watch the dead zone in the Gulf of Mexico grow. It's now all the way from the mouth of the Mississippi River almost to the State of Texas. And amazed that folks will come to me and say, the marshes are dying for lack of nutrients on either side. On the other side of the levee from the Mississippi River, the Gulf is dying from too much nutrients.
Don't you think the EPA or somebody could step forward and say, well, maybe we ought to be taking some of that water out of the Mississippi River and dumping it into the marshes and kind of balancing this thing out? And the same thing at the mouth of no telling how many streams that the collective detergents and animal refuse and what-not, by the time it hits that water body, it's just overloading nutrients? Who's going to step forward and do that?
Page 26 PREV PAGE TOP OF DOC Mr. MEHAN. Congressman, let me just exercise the prerogative of a new boy here and say, I agree with everything you've said. In my prior life, which is almost 14 years as a State official, I always felt that under the Clean Water Act, it exclusively focused on the chemical as opposed to the physical and biological parameters of what affects the integrity of the waters.
I think we've also focused too exclusively, and we always have to worry about it, because it's an important part of the program, on the NPDES program as opposed to the broader issues, whether it's biological restoration or non-point source pollution. And as a farmer, resident of the Mississippi River Valley, and former chairman of the Upper Mississippi Basin Association, I totally agree with you in terms of the relationship of what goes on in the upper basin to what happens in the Gulf of Mexico.
I was confirmed on August 7th, had to deal with a few cleanup matters like TMDLs, arsenic and CAPOs, and now security in light of the horrible events of September 11th. But I can assure you that Administrator Whitman and I are very committed to looking at this and moving forward with a proactive agenda on both aspects of the Gulf, which is a, the loss of shoreland and wetlands, as well as the issue of nutrient over-enrichment and the dead zone, and have been in fact making a series of calls to people who have been active in this over the last few years to get a sense of their willingness to move forward and to deal with this issue.
Most recently, Administrator Whitman received a letter from six midwestern Governors, all asking that we begin to move forward on the Gulf issues, looking first and foremost at voluntary and incentive based approaches, which is certainly something I'm comfortable with. I can assure you, as I get my sea legs here and can move forward, the Gulf is important both in terms of those immediate issues of coastal erosion, but in terms of non-point sources, it's a world series type case.
Mr. TAYLOR. Mr. Mehan, if I may, and I know I have a lot of my Republican colleagues here, Mr. Gilchrest has a fairly similar district, the Mississippi River, the mouth of the Mississippi River would be the macro. The mouth of every stream in America is the micro. I really haven't seen an attempt even in the micro sense to use nature, to use marshes, to use aquatic plants, to clean up what is getting ready to flow into the lakes, what is getting ready to flow into the rivers. No one's stepping forward to do this.
Page 27 PREV PAGE TOP OF DOC And the Corps is saying, they just got a budget cut of 14 percent, we don't have any money to do it. Fish and Wildlife says, our job is to hang on to what we have. Someone's got to step forward and come up with a better way. It's not that difficult. Again, I'm frustrated after 12 years that no one, either in a Democratic or Republican Administration has stepped forward and said, we're going to do it. I'd sure like to hear you say you're going to do it.
Mr. MEHAN. Well, Congressman, with all due respect, maybe you need to look at what's going on at the State level, not just the Federal level. Because throughout America, there are State partners, State leaders, private leaders who are doing this thing. A good friend of mine, Donald Haye, with the Wetlands Institute in Chicago, is involved in very creative workups doing nitrogen forming on the Illinois River, which is one of the major tributaries of the Mississippi and one of the major sources of nutrients going into the Gulf. We're seeing this stuff all over America, and admittedly at the Federal level, things are always more difficult, more convoluted and more byzantine.
But I assure you, those of us who have been in the vineyards have been working on these things. And I think there's a willingness to pursue these on a broader basis throughout that part of the country.
Mr. TAYLOR. Mr. Chairman, apparently since I've got all the Democratic time
Mr. TAYLOR. Sir, if you would, last time I checked, three-fifths of the States are back in deficit spending. They don't have the money to do it. Who's kidding who? And I can tell you, as a former local official and a former State official of the State of Mississippi, if it had not been for the Federal mandates, we never would have cleaned up our sewage treatment and collection. We only did it, the only way we could explain it to the citizens is that the gun was to our head and we had to do it.
Page 28 PREV PAGE TOP OF DOC I really see this as a Federal responsibility. That water that starts off in Minnesota ends up in Mississippi. That's Federal. So please don't punt to the States. If I wanted to be in State government, I would have stayed in State government.
Mr. MEHAN. I'm not punting to the States, and there is a Federal role here. But I guess I just simply disagree that nobody's doing anything in this area. I think there's a lot of creative things going on, some under Federal auspices, much under State and private auspices. I think our 319 funding encourages habitat restoration. I think it's the way to go.
So I'm saying, I agree with you. That doesn't mean the battle's won or that we've done everything we can. But the direction you're outlining is one I am totally comfortable with and would certainly do everything I can to encourage.
Mr. TAYLOR. Thank you, Mr. Chairman.
Mr. DUNCAN. Thank you, Mr. Taylor.
I think your point is even where there is a Federal role, there's also a part for the State and local governments to play as well.
Mr. MEHAN. Yes, sir.
Mr. DUNCAN. I think most of us agree with that, Mr. Taylor, including Mr. Gilchrest.
Mr. GILCHREST. Thank you, Mr. Chairman.
Somewhat of a recommendation and then a question. I guess the recommendation is, and it goes along with what Mr. Taylor is saying about being at the end of the line, or being at the end of the flush, I guess you could say, down there in the Gulf of Mexico. To some extent, the Chesapeake Bay is at the end of the flush, because we start up there in Cooperstown, New York. We're a drainage basin for the Catskill Mountains, even the beginning of the Adirondack Mountains, some of the mountains, Appalachian Mountains up through Poconos in Pennsylvania and certainly the Blue Ridge Mountains in Virginia, West Virginia, even a couple of streams that come in from Delaware. So we're at the end of a lot of flushes.
Page 29 PREV PAGE TOP OF DOC So what I do in my district and when I talk about this with other people, certainly the district engineer for the Corps of Engineers in Philadelphia, and the district engineer for the Corps of Engineers that has Cooperstown, New York, and those other places, we refer to this as a hydrologic cycle. When I talk to people in my district, whether they are a farmer or a planning/zoning person, or a county commissioner or whomever, the term is always the hydrologic cycle and to some extent, actually I haven't used the term at the end of the flush, but I'll probably start using that, to give people the idea that drinking water doesn't come out of a bottle or a faucet. It's a cycle. And we as human being have pretty much interrupted that cycle.
And Mr. Mehan, you said something about air deposition. The Chesapeake Bay, about 30 percent of the pollution problem in the Chesapeake Bay is air deposition from our local drivers, of course, but it also comes as far west as Indiana.
So the issue here, I guess, as I see it, and as I work in my district, is not a Federal role alone. I get down in the marsh and the mud and the streams and the rivers and paddle in canoes with district engineers, EPA, local farmers, local people, and we all have our hats off, unless it's really cold and you don't have much hair, you keep your hat on. And we're not Federal people, we're not State people, we're not local people. We're just people putting our creative minds together on how we can improve the hydrologic cycle so that water quality gets a little bit better.
And I know there's a lot of bureaucratic, technical problems out there dealing with money. My own State, for example, I think went too far with nutrient management with agriculture. I think we could have accomplished that in a voluntary way, but they did it, and there is a cost to farmers. I will say, though, a lot of, the biggest industry in my district is agriculture. And most of these guys are small farmers, some of them making a living on as few as 35 cows, where they do intensive grazing.
The key is not so much that we don't have the available science, and I don't think the key is that we don't have the available resources, it's that if we disseminate the information to enough people, and they see the big and the little picture, and they can all work together to put in a buffer strip because of the conservation reserve program or a wetlands reserve program, or there is an understanding from an urban area of chemical/industrial area, how they can improve the cycle of storm water.
Page 30 PREV PAGE TOP OF DOC So I just, with the chance of sounding a little bit too idealistic or even naive, there is a phenomenon that occurs when human beings get together and they decide that they want to achieve a goal, they cannot only pool monetary resources, but they can pull together something that's much more important than monetary resources, and that's their intellectual skill, one that's based on knowledge.
The question I have is, and I know my staff is going to be worried about this as soon as I say it, some of my district people in the State of Maryland, my colleagues might be worried about it in the State of Maryland from the Congressional delegation, because I believe in this program so much that I think if we can work out the kinks, it can work well all over the country. I'd like to make Maryland a pilot project for TMDLs.
I don't know if that's possible to work out. But I think the available knowledge and skill and cooperation is present to achieve that particular goal.
I'm way over my time, Mr. Chairman, and I appreciate your patience.
Mr. DUNCAN. Do you have any response?
Mr. MEHAN. I'm always happy to discuss ways to improve the process. And I know with all the work on the Chesapeake, I look forward to talking to you about that at greater length.
I'd just comment, what I heard you describing was my ideal of a watershed approach. In my confirmation statement before the Senate, I pointed out that watersheds just aren't a hydrological reality, they're a social reality if done right. And they really can, if you develop these watershed groups, fit the model of an intermediate association which Alexis de Toqueville pointed out was the genius of Americans. Bringing all those people in where you end up with the whole that's greater than the sum of all its parts is what it's all about.
I think if the TMDLs can be viewed as a reasonable aid to informing, empowering and energizing people at that level, I'm totally in sympathy with your comments.
Page 31 PREV PAGE TOP OF DOC Mr. GILCHREST. What I'd like to do is give you a call in the next couple of days, maybe we can sit down and look at that.
Mr. MEHAN. I look forward to it.
Mr. GILCHREST. Thank you, Mr. Chairman.
Mr. DUNCAN. Thank you very much, Mr. Gilchrest.
Next on our side is Mr. Culberson.
Mr. CULBERSON. Thank you, Mr. Chairman.
Mr. Mehan, are you aware of the conference report language that's in the VA-HUD appropriations report that instructs EPA to consider the costs imposed on small businesses from implementation of the TMDL rule?
Mr. MEHAN. I'm not, but I personally do that as a matter of course.
Mr. CULBERSON. I've been very impressed with your testimony here today, sir. Apparently you have those thoughts in mind as well as the impact of the work that you do on the authority of State and local government, and I deeply appreciate it.
The conference language says that, quoting it directly, the national costs of the Total Maximum Daily Load program does not provide any information on the cost of regulatory changes to the TMDL program on small businesses. And notwithstanding specific language in the statement of managers accompanying the fiscal year 2001 Appropriations Act, directing the EPA to conduct that analysis, the conferees intend the EPA to estimate the cost to small businesses from implementation of that rule, whether those costs are imposed directly by the EPA or indirectly by State programs implementing EPA regulations.
Now, I know you're still fairly new in the job, but are you aware of any steps that the agency is taking to comply with that report language?
Mr. MEHAN. The draft cost study did not break out the small business sort of subcategory. But we definitely will be doing that after we get through the close of the public comment period.
Page 32 PREV PAGE TOP OF DOC Mr. CULBERSON. Would you then report back to this Committee and all the members of Congress specifically on the cost to small businesses of these regulatory changes in the TMDL program?
Mr. MEHAN. Certainly.
Mr. CULBERSON. Thank you.
And I also want to say, Mr. Chairman, in the legislature of the 1989 session we did pass legislation in the State house and senate to encourage and in fact, we were very successful in setting up salt marshes, reeds, whole beds, huge beds of reeds in the Sabine River Basin, in fact, to catch and filter out a lot of the sediments and nutrients that Mr. Taylor was describing. So Texas has done a great deal in that area, and I do like to see the States taking the lead in that effort.
Thank you, sir.
Mr. DUNCAN. Thank you, Mr. Culberson. I appreciate your asking that question, because when it came back to me at the end, I was going to mention that language from the VA-HUD conference report. So I do hope that you will follow or do the best you can to follow those instructions by the conferees in regard to the cost to small business.
Next, Mr. Rehberg.
Mr. REHBERG. Thank you, Mr. Chairman, and thank you for calling this timely meeting today. I appreciate having the opportunity to ask a number of questions or make a statement. I'm sorry I missed the beginning of your statement. I'm also sorry you didn't have an opportunity to finish your statement as far as some of the success stories.
Again, all due respect to my colleague from Mississippi, we are a headwater State in Montana. We take our responsibility very seriously. We do think about the underdog and the small business, and I come from one of the more vulnerable industries, the livestock industry. But the reason we take our responsibility at the headwaters very seriously is we know that if we don't do our job that the Federal Government will step in.
Page 33 PREV PAGE TOP OF DOC So we think we have a pretty good program in Montana, and I'd like to ask you your opinion of the projects that we've had in Montana and our success stories in Montana and whether you think that Montana can handle, in fact, the responsibilities and why then would we look to the Federal Government to circumvent or counteract or create a big brother situation for a State that we think is doing a pretty good job of managing their waters for the downstream States?
Mr. MEHAN. Well, in the written testimony I've submitted, we do discuss the Deep Creek Montana tributary, and I would commend that write-up to you as again a model of the kind of watershed collaborative stakeholder based process that we would hope a TMDL process properly conceived and executed would encourage. So there is obviously a Federal imperative here, because it stems from the Clean Water Act. But the genius of a lot of, the good part of our environmental law is it does use federalism as a tool to accomplish national ends.
So yes, I think every State can accomplish this. I mean, we've got to be realistic, we've got to be reasonable. But what we're talking about is making something better off than we found it. And there's going to be resources available probably through a Farm Bill, my guess is. That's not my bailiwick, but that's probably the single biggest piece of environmental legislation in play right now.
There's State resources that come to bear. Again, in Michigan, we had a bond issue that opened up $50 million for non-point source pollution and another $45 million for monitoring. So there will be State resources. There will be private resources, community foundations, local environmental groups, land conservancies that will want to kill two birds with onethat's probably a bad analogybut you know, get a two for one here, where they're getting biological treatment as well as habitat.
So yes, I mean, I think the glass is half full here. I think if we can get this right, if we can kind of legitimize TMDLs technically and politically, there's a great future ahead of this country in terms of moving out at the Federal, State, local and private levels, to deal with the broader issues of runoff and non-point source pollution.
Page 34 PREV PAGE TOP OF DOC Mr. REHBERG. To say nothing about the flexibility that we can create within the State and the time that we can implement. I think that is a testament to why a Federal and State partnership is a good idea. Because we have an opportunity to implement, you create the standards and we'll meet those standards.
So in my days in the State legislature and as lieutenant governor, we spent a lot of time trying to create the same kind of models you're talking about to meet those standards. What we don't need now is the Federal Government to step in and recreate through a rule legislative authority that they really don't have.
I think we have to remind the EPA or at least the Congress that they are not a land use agency, and they must limit the scope of their responsibility. I think the Clinton Administration didn't understand that, or they did but those chose to ignore it and went too far. And I thank this Administration for taking the time to review that rule. Thank you.
Mr. MEHAN. Congressman, I do appreciate your mentioning the States' role on the water quality standards, because I think that's forgotten. While there are Federal laws and directives here, and we put our criteria, the ultimate decision as to what a stream or lake looks like in terms of its designated or beneficial uses, that's a State decision.
Quite frankly, while we understand, and I've been a State official, how difficult it may be to change those from time to time, especially if they're inappropriate, the States do have control over their fate in terms of what standards are applied to what body of water.
Mr. REHBERG. And it also allows us that opportunity to determine whether the pollution is sufficient and credible. And the Federal Government seems to have a problem right now, they list everything and then the implementation gets messed up with the reporting. So I just thank you again for reviewing that rule.
Mr. MEHAN. Thank you.
Page 35 PREV PAGE TOP OF DOC Mr. DUNCAN. I've gone to three members on our side since Mr. Taylor had a chance to comment, and before I go to Governor Otter, I just want to go back to Mr. Taylor, if he has any comments or questions.
Mr. TAYLOR. Thank you, Mr. Chairman.
Mr. Chairman, the 2000 square mile dead zone in the Gulf of Mexico is a real thing. I'm going to take the gentleman from Montana at his word, so can we subpoena all those other States that drain into the Mississippi River and find out who the culprit is?
Mr. DUNCAN. All right, Governor Otter.
Mr. OTTER. Thank you very much, Mr. Chairman.
I just want to mention that I'm on the flush end of Rehberg's river.
Mr. OTTER. So I am sympathetic to Mr. Gilchrest's problem. But I will say that I think Wyoming has done a terrific job, as my colleague from Texas has mentioned there. And at least I end up with the least amount of bragging rights. I want to say that Idaho State government is also taking a hand in this, we're trying to get out ahead of the non-source point pollution, because we've got 3,850,000 acres in the Snake River drainage that we use that water.
And we've already established buffer zones, we are using plants. We now have buffer zones from where the water now comes off of the agricultural property, usually six to eight feet of plants that are there that do soak up a lot of those nutrients. We now have catch basins. Once we've built the catch basins to catch the runoff, then the Army Corps of Engineers came along and said, those look like wetlands to them, so we were really in trouble then, because we had dug ourselves into a bunch of wetlands problems.
But my problem is that I'm grateful, but I'm also concerned. Eleven months, almost 11 months now that I've been here, and this is the first time I've really been able to brag on the Environmental Protection Agency from Idaho. And I'm grateful for this opportunity to do so. It's too bad that we had to wait 11 months.
Page 36 PREV PAGE TOP OF DOC But you know, Idaho's got, in my district alone, in the first Congressional district of Idaho, we've got 87,000 miles of stream and stream bank and lake shore. I've got 119 municipal water systems and 119 municipal sewage systems. And every resident in my district lives on watershed. Whether it's their recreational activities, whether it's their commercial activities, whether it's their family activities, they are on watershed.
And unfortunately, Mr. Mehan, we cannot codify, or we have not codified, your thoughts that you bring into the ideation of how you're going to come up with implementation of some of these policies. So I think what we need to do is take some of these considerations that you're voluntarily making, at least as far as directed somewhat by conference rules, certainly, but we also need to put those into the rulemaking so that the States all understand those as well, and not those that just happen to have the benefit of your visit and then understand how you feel and how you say that. So I think what you need to do is really have that rulemaking put in place.
I also am concerned that we've shut down 36 lumber mills in my district during the last 8 years. We've lost a lot of jobs. We've shut down 9,000 miners. We've lost a lot of jobs. Once again, it's all the watershed.
We used to cut 200 million board feet in the Panhandle National Forest alone. We had a sustainable yield, sustainable cut program that was working pretty well. Last year we cut less than 20 million board feet. But we did burn 880,000 acres of overgrowth forest, now of which all that watershed is now running into our streams, causing some major TMDL problems.
So I think the program that we could get established, in a State-Federal, listen to me saying this, a State-Federal Government partnership, would be beneficial. But for 14 years as lieutenant governor of the State of Idaho, I didn't see that willingness and that partnership. I saw dictatorial and arrogant methods, and it was unfortunate.
So let me just say, I'm very encouraged by your comments. I'm also well aware that aside from these buffer zones that we are using, Mr. Taylor, we are using a lot of water hyacinths, they tell me, and other aquatic lilies in order to extract the nitrogen from the water. So I think we've got a pretty good process, and perhaps I could get you to come to Idaho and I could show you some of these spots.
Page 37 PREV PAGE TOP OF DOC Mr. TAYLOR. Mr. Chairman, apparently it's not Idaho or Montana.
Mr. TAYLOR. If we could get the rest of these guys in here, we could figure out who the culprits are.
Mr. DUNCAN. We're making progress, Mr. Taylor.
Mr. OTTER. Thank you very much, Mr. Chairman, and thank you very much, Mr. Mehan, for being here. It's very encouraging to hear you.
Mr. DUNCAN. Thank you very much, Governor Otter.
Mr. MEHAN. Excuse me, Mr. Chairman, could I make one comment?
Mr. DUNCAN. Yes, sir.
Mr. MEHAN. You know, another thing that's exciting in Idaho, at least from my personal view here, the work that our Region X has been doing with the State of Idaho and lower stakeholders on the lower Boise, a point/non-point source trading exercise, which we view as one of the models of things that we'd like to encourage, and great cooperation there. You may not be aware of this, but I'd encourage you to look into it. Our colleagues in Region X have really been leaders, and I know the State folks out in Idaho put a lot of time into that.
So I just wanted to call that to your attention.
Mr. DUNCAN. Thank you very much.
Mr. HORN. Thank you, Mr. Chairman.
The whole program of Total Maximum Daily Load program has had a very difficult situation. When the EPA was asked by Congress to review the program, we asked to go into the National Academy of Sciences. And then when that was put out, and when the National Academy of Sciences study was released on June 15th, 2001, we held hearings and then the courts again.
Page 38 PREV PAGE TOP OF DOC So I'd like, Mr. Mehan, to just ask a couple of simple questions. Oftentimes, the publicly owned treatment works are held accountable for disproportionate amount of pollution control during the implementation of the Total Maximum Daily Load program. While those agencies are not trying to skirt their responsibilities for reducing pollutants and improving impaired waters, they also want to ensure that the implementation plan produces a net benefit to the environment.
Now, will the new program employ a model for developing the Total Maximum Daily Load program that addresses all sources and have you met with the various publicly owned treatment works and are they in the front lines of implementing Federal mandates? What if any latitude will the regional administrators have in implementing the new program? And then what level of participation will the stakeholders have?
Mr. MEHAN. Of course what you're raising is the flip side of the debate of whether you should regulate non-point sources. Clearly the Clean Water Act doesn't, at least under the NPDES program, and I don't see any change in the political environment that would ever lead the political process to do that.
However, from the standpoint of point sources, and particularly POTWs, but others, too, that is viewed as somewhat of a basic inequity under the law, in that they're the ones that are under the NPDES thumb. Therefore, whenever you look for whatever reductions you can get, that's where you go and they put the screws to them.
That's getting harder and harder to do, I mean, I'm just being candid here, at the local level politically, to try to come in and kneecap the POTWs to get all the reductions you want to get because you're not doing anything with non-point sources. That's not working any more. It just really isn't.
And hence, things like watershed-wide permits that let you look at the thing as a whole watershed, and you're not just looking at point sources, but you're looking at storm water and CSOs and of course, non-point sources through whatever public assistance or incentive based programs are key. That's why I think trading, trading might be, and I don't want to go overboard here, but trading might be the sugar that makes the medicine of TMDL go down. And so that's why I'm very interested in pursuing it as a least cost approach to achieving water quality.
Page 39 PREV PAGE TOP OF DOC Even the POTWs will tell you, well, isn't that still extortion? I mean, trading might be a least cost approach to achieving water quality, but if I've got to go out and pay for BMPs from our non-point source, while it may be a fraction of the cost to put a black box at the end of the pipe, it's still under duress, and the answer is yes. But at least, it gives you some options.
And there may be other players who come into it. I've seen areas where community organizations, in order to allow for growth in the area, capitalized a fund to pay for BMPs to create some slack in the rope for future growth. So I'm very much aware of the issue and very much in dialogue with those sectors of the regulated community. That's definitely an issue at the heart of this TMDL deliberation.
Mr. HORN. What options will the stakeholders have for appealing decisions? Any? Or can you get them around the table at EPA?
Mr. MEHAN. Are you talking about under a normal permitting process? Or in the deliberations over the rule?
Mr. HORN. Either one. You seem to be open to having them get around the table and let's see what's going to happen.
Mr. MEHAN. Sure. Well, in addition to the listening sessions or public hearings I've described, we've been going through a series of intense, for want of a better word, focus group sessions with interested parties. That's just going to continue throughout the 18 months. I've certainly had conversations with groups like AMSA and WEF and any number of groups that are very much looking at this from the POTW perspective. I can assure you, those conversations are ongoing.
Mr. HORN. Well, I appreciate that, and I hope you can keep at it. Because we're just wasting time when we're in court, out of court, in study, get another study, but let's get down to it. And you sound like you want to deal with it.
Page 40 PREV PAGE TOP OF DOC Mr. MEHAN. We're feeling a lot of pressure. The Administrator gave us our marching orders to get this wrapped up in 18 months. In a way, as a manager I like that. Work expands to fill the time available, and we don't have a lot of time here. This is going to be a challenge. But my marching order is to get this done in the 18 months.
Mr. HORN. Thank you.
Mr. DUNCAN. Thank you very much. Mr. Lampson.
Mr. LAMPSON. No questions, Mr. Chairman.
Mr. DUNCAN. All right. Well, Assistant Administrator Mehan, thank you. And let me get into one last thing. Governor Rehberg sort of touched on it in a way. Many States, many State officials had concern about the July 2000 rule because it claimed authority for the EPA over the implementation of the TMDL program, when most State officials seemed to think that the Clean Water Act does not give the EPA this implementation authority.
As I mentioned earlier, I think you were an official in two different States, do you think the States can be trusted to carry out these and implement these TMDL programs?
Mr. MEHAN. Yes. I mean, I think they will face some legal obligation. If they were to fail in that, the chickens may come home to roost back at EPA. But sure, at the first instance, I assume most State delegated programs are trying to do the right thing and would follow through with it.
Again, this is obviously an issue that's at the heart of a lot of things we're looking at in this rulemaking. But I can tell you, and I'm just, without trying to prejudge the whole public dialogue here, I can tell you when that judge down in Georgia mandated that we do implementation plans for all the TMDLs in that part of the world, that was nothing, that was really greeted with a lot of heartburn by the career staff, because they realized practically speaking that we're just not in a position to do that kind of work. What we'll end up doing is cobbling together some sort of a pro forma that may or may not really address the needs of a given water body.
Page 41 PREV PAGE TOP OF DOC So we certainly see these States as a lead in that almost under almost any
Mr. DUNCAN. So what you're saying, you feel that the implementation authority really is and should be primarily in the States?
Mr. MEHAN. Well, yes. I think you start with that presumption. Now, to what extent States do or do not meet their responsibilities, what our role should be, you know, we've got certain oversight responsibilities that we should not neglect. But if we've delegated the program to the States and that's the design under the Clean Water Act, that's where it should be primarily.
Mr. DUNCAN. All right. Thank you very much, you've been a very fine witness and made a very good presentation.
Mr. OTTER. Mr. Chairman?
Mr. DUNCAN. Governor Otter.
Mr. OTTER. May I ask the witness just one more question?
Mr. DUNCAN. Sure.
Mr. OTTER. In this partnership role, when we arrive at the standards for the TMDL, is this a standard that the EPA is going to set by themselves, or are they going to take into consultation with the States, so that you already have an agreement on what the standard is? Part of the problem that we've had, I believe, is that the standard is set, but it doesn't fit what can happen in places like Idaho. That may well be a great standard for Mississippi, but it just doesn't fit in Idaho. I'm concerned that if we don't have this partnership in creating the rule and creating, the raising the bar, where we want to raise it to, that it's going to be more difficult to work together later on to achieve it.
Mr. MEHAN. Mr. Congressman, I think what I hear, listening to your comment, I think you probably, we probably ought to spend some time together. What I think needs to be understood is that the States are actually in, how do I put this, the lead in setting of the actual water quality standard for a given body of water. A water quality standard is essentially made of, this is over and beyond the technology based effluent guidelines. Once you get to the water quality standard stage, it's a combination of a designated use plus criteria which is a technical thing promulgated by EPA.
Page 42 PREV PAGE TOP OF DOC But what the uses are, whether it's for drinking water, whether it's for full body contact or whether it's a trout stream or whether it's something less, say tolerable for industry, that's really the State's call. And the problem is that historically, a lot of these designated uses and hence the water quality standards, were set, and over time, it's been pretty tough. It may not be appropriate to the body, but there's where politics gets into it. It's tough in the real world for a State official sometimes to look like he's writing off a water body or downgrading it.
But the fact is, for good or ill, that's primarily a State responsibility, not EPA's. Now you can argue about our guidance on the criteria, and a lot of technical issues. But in terms of the basic question of what's the standards, what's the designated use for a given water body, that is first and foremost a State responsibility.
Mr. OTTER. But that has been our challenge, sir, all along. We set one standard, we set one designated use. We know what we want to use it for. Unfortunately, we don't get that kind of agreement out of Washington, D.C. So subsequently, we end up arguing about the rule rather than arguing about the problem.
Thank you very much, Mr. Chairman. I appreciate the extra time.
Mr. DUNCAN. All right, thanks very much.
Mr. Taylor, any last word?
All right, Administrator Mehan, thank you very much. That will conclude this hearing.
[Whereupon, at 10:50 a.m., the subcommittee was adjourned, to reconvene at the call of the Chair.]
Testimony of G. Tracy Mehan III, Assistant Administrator for Water, U.S. Environmental Protection Agency
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Good morning Mr. Chairman and members of the Committee. I am Tracy Mehan, Assistant Administrator for Water at the U.S. Environmental Protection Agency (EPA). I look forward to discussing with you the status of the Total Maximum Daily Load (TMDL) Program and EPA's efforts to make the program a more effective tool to improve water quality. Providing States and Tribes with greater flexibility and the ability to utilize market-based approaches that provide economic incentives for early reductions and minimize the cost of implementation is an important part of EPA's strategy.
I envision TMDLs to be a kind of information-based strategy which, if done properly, can inform, empower, and energize citizens, local communities, and States to improve water quality at the local, watershed level. The basic information derived from a sound TMDL could liberate the creative energies of those most likely to benefit from reduced pollutant loadings to their own waters.
As you are aware, next year marks the 30th anniversary of the Clean Water Act (CWA). Thirty years ago, the Nation's waters were in crisisthe Potomac River was too dirty for swimming, Lake Erie was dying, and the Cuyahoga River had burst into flames. Many of the Nation's rivers and beaches were little more than open sewers. The 1972 Clean Water Act has dramatically increased the number of waterways that are once again safe for fishing and swimming. The Act launched an all-out assault on water pollution, including new controls over industrial dischargers, support for State efforts to reduce polluted runoff, and a major investment by the federal government to help communities build sewage treatment plants.
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Despite past progress in reducing water pollution, almost 40 percent of the Nation's waters assessed by States still do not meet water quality goals established by States under the Clean Water Act. Section 303(d) of the CWA established the TMDL program in 1972, requiring States to identify waters not meeting State water quality standards, also called impaired waters, and to establish pollution budgets, called TMDLs, to restore the quality of those waters. The Act requires EPA to approve or disapprove lists and TMDLs, and to develop lists or TMDLs if the State action is disapproved.
Today, I would like to describe EPA's re-evaluation of the July 2000 TMDL rule and our efforts to improve the program under the current regulations.
RE-EVALUATION OF THE JULY 2000 RULE
In July 2000, EPA issued revisions to the TMDL and National Pollutant Discharge Elimination System (NPDES) programs. This rule amended regulations, which were first issued in 1985 and amended in 1992. The rule was intended, in part, to address issues that were arising in numerous lawsuits brought against EPA because of deficiencies in State programs. Forty law suits in thirty-eight States were moving management of the program out of the Agency and into the courts. The specifics of the rule, and the way in which it was issued, created much controversy. On October 26, 2000, Congress prohibited EPA from expending funds from FY 2000 and FY 2001 to implement this rule. In the Conference Report accompanying EPA's FY2001 appropriations bill, Congress directed EPA to contract with the National Academy of Sciences/National Research Council to review the quality of the science used to develop TMDLS. Congress also directed EPA to undertake a comprehensive analysis of costs associated with the TMDL program.
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Organizations representing many different interestsagricultural, industry and environmentalchallenged many aspects of the 2000 rule in court. Because of these controversies and uncertainties, on August 9, 2001, EPA proposed to delay the effective date of the rule for 18 months. This delay, until April 30, 2003, was made final and published in the Federal Register on October 18, 2001.
EPA hopes to develop a rule over the course of the next year and a half that leads to restoration of our nation's impaired waters in the most efficient way. The Agency has begun a series of ''listening sessions'' across the country to gather ideas from the public and interested organizations on ways to improve the TMDL program. We hope to propose a new rule in Spring 2002 and promulgate a final rule before April 30, 2003. We recognize that this is an ambitious schedule. We are at an early stage of the rulemaking process, and I would welcome the opportunity to meet with the Committee in the future as we begin to crystalize our thinking.
RECENT ACTIONS AFFECTING THE RULE
National Research Council report
In June, the National Research Council published its report ''Assessing the TMDL Approach to Water Quality Management,'' which recognizes that there is enough science to ''move forward with decision-making and implementation of the TMDL program.'' In addition to identifying research needs, the report calls for program changes to better account for scientific uncertainties, to improve the water quality standards and monitoring programs, and to employ adaptive implementation. One of the most critical recommendations is for States to strengthen their monitoring programs. EPA will take a careful look at these recommendations as it develops revisions to the existing program.
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TMDL cost study
In August, EPA published a draft study on ''The National Costs of the Total Maximum Daily Load Program.'' This study examined the costs of developing the TMDLs as well as the costs of putting in place ''on-the-ground'' actions, e.g., permits and best management practices, to reduce the pollutants causing poor water quality. The cost study addresses the full range of costs of the TMDL program, rather than just the costs of changes called for by the 2000 rule. The draft study estimated the costs to develop all TMDLs necessary under the 1998 lists to be about $69 million annually over the next 15 years. Costs to implement pollution reductions that may be required by these TMDLs were estimated to be between $900 million and $4.3 billion dollars annually. Comments on this study are due to the Agency by December 7.
Stay of 2000 rule litigation
On October 12, 2001, the District of Columbia Circuit Court agreed to stay the litigation on the July 2000 TMDL rule pending further order of the court so long as EPA was taking ''reasonably prompt action'' to address the issues through new rulemaking. We will be reporting to the court on our progress in the new rulemaking every 90 days.
KEY ISSUES FOR RULEMAKING
The 2000 rule included a very detailed set of requirements for States to meet that relied heavily on detailed EPA oversight. Many of the objectives of the program could be better served through EPA support of State efforts in a framework that recognizes the need for flexibility to accommodate various effective approaches that States may wish to employ.
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Major issues that the new rulemaking effort will examine are similar to issues raised in the past: scope, timing, and methodology for the lists; the inclusion, within the TMDL itself, of an implementation plan with reasonable assurances; the timeframe in which a TMDL must be completed; the role of the stakeholders in TMDL development; and EPA's role in backstopping the States, when a State fails to act. I believe that EPA must also find ways within the context of the CWA to permit and offset growth and to allow States and Tribes to implement voluntary trading programs that implement TMDLs or make progress towards attainment of standards pending development of TMDLs for impaired waters. These issues are intimately related to the successful implementation of TMDLs and maintaining a strong competitive economy.
303(d) listing issues
Some of the questions we seek to answer are what should be the length of the listing cycletwo (as it is now), four, or five years? How broad should the list be? Should it include waters impaired by ''pollution,'' or waters where a TMDL has been completed, but standards have not yet been attained?
Should waters that are threatened, but not yet impaired be put on the list, as is the case under the current regulations? Should lists include monitoring schedules? What should be the role of the public, in reviewing, and EPA, in approving, the State's methodology for putting the list together? Should we combine the Section 305(b) water quality report and the Section 303(d) impaired waters listing processes?
Implementation plans and reasonable assurance
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One of the most challenging issues concerns implementation of the TMDL once completed. The 2000 rule attempted to make sure that TMDLs will not be just ''plans on a shelf'' but were actually implemented to restore impaired waters. To accomplish this, the 2000 rule called for an implementation plan approved by EPA as part of the TMDL. This meant that EPA would have to adopt an implementation plan if a State TMDL was disapproved. The difficulty is that in many cases EPA does not have the breadth of authority outside the CWA that States may have to accomplish implementation.
I think we all agree that it makes little sense to invest a lot of time and money into developing TMDLs that do not contribute to improving the nation's water quality; consequently, we are engaged in a number of efforts designed to help make TMDLs more effective. For example, we are working with our Office of Research and Development to develop load allocation models and best management practice design methods to identify cost-effective restoration and treatment approaches. Furthermore, we will be exploring whether there are other mechanisms, and other Clean Water Act provisions, that can help translate the calculation of pollutant reductions into environmental improvements. Incorporating market-based programs like trading in TMDL implementation strategies offers tremendous potential water quality and economic benefits. We are also working closely with United States Department of Agriculture (USDA) to explore opportunities to use USDA programs, activities, and expertise through locally-led efforts in support of watershed work, and natural resource conservation, protection and enhancement, including TMDL implementation.
Another related issue concerns how EPA and the States can determine what constitutes ''reasonable assurance'' that pollutant reductions are technically achievable and that there is planning, financing and institutional support for implementation.
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Timeframe for completing a TMDL and meeting water quality standards
One of the major concerns raised in the litigation on TMDLs nationwide is the pace at which TMDLs are being developed. The 1985/1992 rules do not address this issue. The July 2000 rule addressed this issue by setting a requirement for States to establish evenly-paced schedules over 1015 years after a water is listed. EPA expressed an expectation in 1997prior to development of the new regulationthat TMDLs would be developed within 813 years from initial listing.
Another concern is the timeframe in which water quality standards will be attained. The 2000 rule sets a goal of 10 years, where practicable.
EPA's role in developing the TMDL
While each year the pace of State activity has increased, the current pace of TMDL development falls short of what would be needed to complete TMDLs in 15 years. The CWA requires EPA to step in and do the TMDL if it disapproves a State-submitted TMDL. Some courts have applied a ''constructive submission'' doctrine that holds that State failure to submit TMDLs over a long period of time may obligate EPA to disapprove those never-submitted TMDLs and to establish TMDLs for the State.
What timeframe is needed? Should States and EPA be afforded an extended amount of time recognizing the workload and the need for public participation? What should EPA's role be if a State does not adhere to its schedule? Finally, what should be the role of EPA in issuing or objecting to NPDES permits in impaired waters both prior to a TMDL and after development, if a State fails to take appropriate action?
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CURRENT PROGRAM ACTIVITIES
Current regulations and court cases
Even though the July 2000 rule is not in effect, the TMDL program continues to be very active. The current program operates under the regulations adopted in 1985 and 1992, and, in many States, under court orders, consent decrees, or settlement agreements brought about as a result of litigation.
As most of you know, EPA and States, until the early 1990s, emphasized technology-based pollution control programs required by the CWA, including implementation of Best Available Technology by NPDES permittees. EPA and the States gave lower priority to the water quality-based TMDL program. Thus, relatively few TMDLs were developed, and many State lists of impaired waters were incomplete and not submitted in a timely manner.
A number of years ago citizen organizations began legal actions against EPA over the sufficiency of the lists of impaired waters and to hasten the development of TMDLs. In over 20 States, these cases were resolved with agreements for States to identify their impaired waters and establish TMDLs. Where States fail to act, EPA must step in and identify the polluted waters or establish the TMDLs. Unfortunately, these lawsuits against the Agency continue, with new cases in Ohio and Nevada filed last month.
Status of Lists and TMDLs
Page 51 PREV PAGE TOP OF DOC All States submitted their Section 303(d) lists of impaired waters in 1998, and even though the requirement to submit a list in 2000 was set aside, over 12 States submitted lists last year. Approximately 20,000 water bodies have been identified as impaired. The next list of impaired waters is due on October 1, 2002.
States and EPA also continue to develop TMDLs. Approximately 2000 TMDLs were approved in FY2001 for a cumulative total of over 3,500 TMDLs nationwide.
IMPROVING THE CURRENT PROGRAM
EPA has initiated an effort to improve State and EPA performance and the credibility of the program under the current rules. This effort involves better integration and coordination of the basic elements of the clean water program: water quality standards, monitoring, TMDLs, point and nonpoint source program implementation, development of additional technical tools (BASINS 3.0, improved models, protocols and model TMDLs), and use of the increased resources that have been provided over the past couple of years for States and EPA.
To improve the State's capability to monitor and assess water and respond to National Academy of Sciences/National Research Council recommendations, EPA is taking steps to strengthen State monitoring programs so States have more timely monitoring information to support their decision making. States should be able to monitor more of their waters, and be in a better position to determine if all their waters are meeting standards. The Agency continues to encourage and support the use of the rotating basin approach, and seek ways to strengthen State assessment methodologies. We would like to ensure that States' Section 305(b) water quality reports and their Section 303(d) lists of impaired waters are consistent and use the best quality data available. We also seek better ways to measure the water program's performance in meeting Government Performance and Results Act goals, and to improve public confidence in assessments of water quality and listing of impaired waters.
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Consolidated assessment and listing methodology (CALM)
To assist in establishing better assessments and lists, EPA worked with States and many stakeholders to develop a draft guide in May 2001 called the Consolidated Assessment and Listing Methodology or ''CALM.'' CALM is a compendium of ''best practices'' and a guide to the minimum elements of a comprehensive State monitoring program. It contains much information on best practices for monitoring and assessing water quality, including methods for determining when water quality standards have been met and how to identify sources of water quality impairment. We hope to have a first edition of CALM available late this fall.
Integrated report guidance
Just last week, EPA distributed among its Regions and the States, a new guidance, ''2002 Integrated Water Quality Monitoring and Assessment Report Guidance.'' This guidance is an important step in setting out a framework for an efficient and informative approach to monitoring, assessment, and listing activities. Our intention is that these activities support each other and that the story they tell about the health of our nation's waters is a consistent one. This guidance calls for States to develop credible, publically-reviewed methodologies through which they can more adequately determine if waters are meeting water quality standards and, if not, why not.
The guidance also asks that States identify waters using a common geographic locational database, the U.S. Geological Survey's National Hydrography Dataset. Currently, the size and locations of waterbodies identified by States can range from less than a mile to over 200 miles. Using the national hydrography dataset will result eventually in greater clarity regarding sizes of waters assessed and monitored. This is especially important for interstate and cross-boundary waters.
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OTHER INITIATIVES UNDER THE CURRENT REGULATIONS
Nonpoint source guidance
EPA is also seeking better ways, under the current program, to ensure that once TMDLs are developed they will be more than a plan on a shelf. They should help guide the reductions in pollutant loadings that are needed to meet water quality standards. This is particularly important when the federal government relies on a voluntary, incentive-based program for addressing nonpoint source pollution. On September 13, 2001, EPA issued a guidance, ''Supplemental Guidelines for the Award of Section 319 Nonpoint Source Grants to States and Territories in FY 2002 and Subsequent Years.'' This guidance provides that a portion of the Section 319 grant funds, for FY 2003 and beyond, should be used for developing TMDLs for nonpoint source waters and watershed plans incorporating TMDLS, as well as for ''on-the-ground'' actions to reduce pollutants. This guidance can be found at http://www.epa.gov/owow/nps/Section3l9/fy2OO2.html.
EPA is currently revising its Trading Policy. These revisions will build on the lessons learned from a number of recently-completed demonstration projects, and will address key regulatory issues related to TMDLs and permitting. Trading is an innovative way for water quality agencies and community stakeholders to develop common-sense, cost-effective solutions for water quality problems in their watersheds. Community stakeholders include States and water quality agencies, local governments, point source dischargers, contributors to nonpoint source pollution, citizen group, other federal agencies, and the public at large. Trading is another tool for communities to grow and prosper while retaining their commitment to water quality.
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The interest in trading is growing, though many programs are in the planning stages and actual transactions to date are limited. The development of a TMDL provides a promising opportunity for trading, in which stakeholders can implement the most cost-effective and/or equitable allocation of pollutant reduction responsibilities.
USDA TMDL workgroup
Because agricultural producers and silviculturalists work with such a large proportion of land area in the United States, EPA is making special efforts to seek input from the United States Department of Agriculture (USDA) as we begin development of a new TMDL rule. USDA is providing input that could help us to strengthen the agricultural, forestry, and natural resource systems perspective in the final rule.
Even though the NRC recognized that there is enough science to ''move forward with decision-making and implementation of the TMDL program,'' the committee also identified research needs. Indeed, the NRC challenged EPA to ''make substantial efforts to reduce uncertainty.'' EPA's Office of Research and Development is helping to meet these needs by developing diagnostic methods and models for determining TMDLs, as well as decision support tools for watershed managers to identify cost-effective approaches to meet TMDL limits. This research will assist in both establishing water quality criteria by developing ecological indicators for chemical and microbial pollutants, and implementing watershed management by developing load allocation models and cost effective restoration and treatment technologies.
TMDL SUCCESS STORIES
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The TMDL program, as if is currently being implemented, is helping restore wafers across the nation. Here are just a few examples:
Yakima River, Washington
The lower Yakima River basin is located in soufh-central Washington State. It is one of the most intensively irrigated and agriculturally diverse areas in the United States. Suspended sediment and persistent pesticide loads from irrigated agricultural areas of the lower Yakima River basin have long been recognized as serious impairments to water quality. The Washington State Department of Ecology, working with the local Irrigation District, the Yakama Indian Nation (the Yakama Indian Reservation covers over forty percent of basin, but is outside of the State's jurisdiction) and EPA, developed a TMDL in 1998 that included 20 year goals, with specific 5 year milestones to restore the river.
Empowered by the complementary concern over soil loss to farmers, the TMDL focused on actions at the farm level to meet the long term goal of a 90% reduction in sediments. Throughout the watershed, the partners have concentrated on individual farm efforts to construct settling ponds, as the principle technique to reduce soil loss. By 2000 results showed a 50% reduction and this year the results were close to 80%. The Yakama Indian Nation and Ecology joined in a data-sharing and cooperative monitoring agreement for the project.
Mecklenburg County, North Carolina
Typically, State environmental agencies develop TMDLs for impaired waterbodies. However, there are exceptions to this rule. Recently, Mecklenburg County started an urban fecal coliform TMDL to address the problem of harmful bacteria in the county's water. The county decided to develop the TMDL because the State was going to do it. The county believed it was in a better position to develop the TMDL because it knew all the local players who lived and worked in the watershed. In addition, the county had better access to data.
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The county worked with many local agencies including the Charlotte stormwater program, Charlotte Mecklenburg utilities, the State and many other stakeholders to develop the TMDL. Mecklenburg County had the lead role in developing the technical aspects of the TMDL e.g., the modeling, source assessment and allocation strategy, as well as coordinating meetings with stakeholders. The North Carolina Division of Water Quality has been involved throughout and will ultimately submit the TMDL to EPA's Region IV Office for approval. This locally-developed TMDL has many advantages: suggestions offered during the allocation process and the local entities are helping to develop the implementation strategy.
Deep Creek, Montana
Deep Creek is a major tributary of the Missouri River located in Townsend,
Montana. The creek provides spawning and rearing habitat for rainbow trout and brown trout. This habitat was impaired by excess sediments and high water temperatures due to unstable streambanks and loss of meanders in the stream. The sediment TMDL demonstrates how the TMDL process was used to begin mitigation activities even when there was incomplete knowledge of sediment sources and load rates. The TMDL set specific performance targets, such as percent reduction in the length of erosive streambanks. The TMDL is a dynamic plan of action, not just a static allocation of loads.
Local landowners, the Conservation District, and the Irrigation District are working with others to restore the creek. Restoration activities include channel modifications, planting of junipers and willows, widening of the riparian zone, and fencing to exclude livestock from the steam and riparian areas. Local landowners are providing the willows and junipers to stabilize the banks, and undertaking improved grazing management practices. The local Conservation District is managing the contracts for some of the work and, in addition, the Irrigation District is voluntarily limiting water withdrawals to protect the aquatic habitat.
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Boulder Creek, Colorado
Boulder Creek flows west toward Boulder, Colorado. The aquatic life in the creek was impaired by an excess of un-ionized ammonia in parts of the creek downstream from a wastewater treatment plant and other point source dischargers. High water temperature and pH were the primary causes of the ammonia and were linked to physical degradation of the creek's riparian zone. Species diversity and density were low even in areas of the creek with good water quality. Therefore, more stringent effluent limits and plant upgrades alone would not solve the problem. A combination of plant upgrades, best management practices and habitat restoration was needed to improve water quality in Boulder Creek. The cost of the studies needed to develop this TMDL were very modest: approximately $6,000.
The actions needed to improve water quality were phased. The first phase was the improvement of effluent quality at the wastewater treatment facility, followed by improvements of the riparian zone. Not only did instrearn conditions improve, but community cooperation and interest in the project were very high. The second phase involved reducing impact of irrigation return flows and the construction of rock/willow jetties to break up erosive currents.
The Boulder Creek Enhancement project has been an effective way to restore water quality. It combines nonpoint source control measures with traditional point source treatment to achieve water quality goals. Both the State of Colorado and EPA have praised the project for its use of alternative technology. Total cost of this project were in the range of $1.31.4 million.
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Over the next months, we will work with Members of Congress and their staff, other federal agencies, States, and other interested parties to develop a proposed TMDL regulation that is more workable, effective, and acceptable. Under the current program, we will continue progress in improving water quality nationwide.
Thank you, Mr. Chairman and members of the Subcommittee for this opportunity to testify on EPA's efforts, in cooperation with States and other federal agencies such as the Department of Agriculture, to restore the Nation's polluted waters.
I will be happy to answer any questions.