SPEAKERS CONTENTS INSERTS
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00–000 CC
1999
1999
REVIEW OF THE ENVIRONMENTAL PROTECTION AGENCY'S NEW AGRICULTURAL AND SILVICULTURAL REGULATORY PROGRAMS
HEARING
BEFORE THE
SUBCOMMITTEE ON DEPARTMENT OPERATIONS,
OVERSIGHT, NUTRITION, AND FORESTRY
OF THE
COMMITTEE ON AGRICULTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
OCTOBER 28, 1999
Serial No. 106–40
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Printed for the use of the Committee on Agriculture
COMMITTEE ON AGRICULTURE
LARRY COMBEST, Texas, Chairman
BILL BARRETT, Nebraska,
Vice Chairman
JOHN A. BOEHNER, Ohio
THOMAS W. EWING, Illinois
BOB GOODLATTE, Virginia
RICHARD W. POMBO, California
CHARLES T. CANADY, Florida
NICK SMITH, Michigan
TERRY EVERETT, Alabama
FRANK D. LUCAS, Oklahoma
HELEN CHENOWETH-HAGE, Idaho
JOHN N. HOSTETTLER, Indiana
SAXBY CHAMBLISS, Georgia
RAY LaHOOD, Illinois
JERRY MORAN, Kansas
BOB SCHAFFER, Colorado
JOHN R. THUNE, South Dakota
WILLIAM L. JENKINS, Tennessee
JOHN COOKSEY, Louisiana
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KEN CALVERT, California
GIL GUTKNECHT, Minnesota
BOB RILEY, Alabama
GREG WALDEN, Oregon
MICHAEL K. SIMPSON, Idaho
DOUG OSE, California
ROBIN HAYES, North Carolina
ERNIE FLETCHER, Kentucky
CHARLES W. STENHOLM, Texas,
Ranking Minority Member
GEORGE E. BROWN, Jr., California 1
GARY A. CONDIT, California
COLLIN C. PETERSON, Minnesota
CALVIN M. DOOLEY, California
EVA M. CLAYTON, North Carolina
DAVID MINGE, Minnesota
EARL F. HILLIARD, Alabama
EARL POMEROY, North Dakota
TIM HOLDEN, Pennsylvania
SANFORD D. BISHOP, Jr., Georgia
BENNIE G. THOMPSON, Mississippi
JOHN ELIAS BALDACCI, Maine
MARION BERRY, Arkansas
VIRGIL H. GOODE, Jr., Virginia
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MIKE McINTYRE, North Carolina
DEBBIE STABENOW, Michigan
BOB ETHERIDGE, North Carolina
CHRISTOPHER JOHN, Louisiana
LEONARD L. BOSWELL, Iowa
DAVID D. PHELPS, Illinois
KEN LUCAS, Kentucky
MIKE THOMPSON, California
BARON P. HILL, Indiana
Professional Staff
WILLIAM E. O'CONNER, JR., Staff Director
LANCE KOTSCHWAR, Chief Counsel
STEPHEN HATERIUS, Minority Staff Director
KEITH WILLIAMS, Communications Director
Subcommittee on Department Operations, Oversight, Nutrition, and Forestry
BOB GOODLATTE, Virginia, Chairman
THOMAS W. EWING, Illinois,
Vice Chairman
RICHARD W. POMBO, California
CHARLES T. CANADY, Florida
JOHN N. HOSTETTLER, Indiana
SAXBY CHAMBLISS, Georgia
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RAY LaHOOD, Illinois
JERRY MORAN, Kansas
JOHN COOKSEY, Louisiana
GREG WALDEN, Oregon
EVA M. CLAYTON, North Carolina,
Ranking Minority Member
MARION BERRY, Arkansas
BENNIE G. THOMPSON, Mississippi
VIRGIL H. GOODE, Jr., Virginia
DAVID D. PHELPS, Illinois
BARON P. HILL, Indiana
MIKE THOMPSON, California
GEORGE E. BROWN, Jr., California 1
DAVID MINGE, Minnesota
(ii)
1\ Deceased July 16, 1999.
C O N T E N T S
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REVIEW OF THE ENVIRONMENTAL PROTECTION AGENCY'S NEW AGRICULTURAL AND SILVICULTURAL REGULATORY PROGRAMS
THURSDAY, OCTOBER 28, 1999
House of Representatives,
Subcommittee on Department Operations,
Oversight, Nutrition and Forestry,
Committee on Agriculture,
Washington, DC.
The subcommittee met, pursuant to call, at 9:40 a.m., in room 1300, Longworth House Office Building, Hon. Bob Goodlatte (chairman of the subcommittee) presiding.
Present: Representatives Pombo, Canady, Moran, Cooksey, Walden, Clayton, Berry, Goode, Phelps, Hill, Minge, and Stenholm (ex officio).
Staff present: Dave Ebersole, senior professional staff; Kevin Kramp, subcommittee staff director; John Goldberg, professional staff; Wanda Worsham, chief clerk; Callista Bisek, scheduler/clerk, Anne Simmons, minority consultant; and Andy Johnson, minority consultant.
OPENING STATEMENT OF HON. BOB GOODLATTE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA
Mr. GOODLATTE. Good morning. The hearing of the Subcommittee on Department Operations, Oversight, Nutrition, and Forestry to review the Environmental Protection Agency's new agricultural and silvicultural regulatory programs will come to order.
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The purpose of this hearing is to receive testimony and written statements reviewing the Environmental Protection Agency's new agricultural and silvicultural regulatory programs. This hearing is intended to be a broad review of several new rules or guidelines that the EPA has promulgated that will have terribly negative impacts on American agriculture.
Because there are too many details to summarize in this statement, my remarks will be general.
To look at the issues that the subcommittee will review today at an operations level, one might confuse the issue with another one of our favorite subjects, the Food Quality Protection Act. Many of the same concerns, frustrations and skepticism members of this subcommittee have expressed about the EPA's implementation of the FQPA are present in the subject of today's hearing.
I expect the major themes of today's hearings will be to ask questions about the accuracy of the EPA's data, which is the basis of their new regulatory programs. In the absence of real, accurate data, EPA has made conservative default assumptions. These assumptions lead the EPA to the conclusion that nonpoint sources generally and agriculture specifically are the major sources of water quality impairment. Farmers, in the eyes of the Environmental Protection Agency, always seem to be guilty until proven innocent.
The EPA is also insisting on uniform national standards and processes. Instead of trusting the States to develop and enforce their own programs, the EPA wants veto authority over the States and the right to take over the State's program if the EPA believes that it falls sort of their mark. This Washington knows best arrogance challenges the basic fundamentals of federalism.
Arguably the most troubling aspect of the EPA's actions is their blatant disregard for congressional intent of the laws we pass to govern the protection of our environment. The violence the EPA is doing to the major environmental protection laws with these regulations is creative thinking at best and illegal at worst. I sincerely doubt that the EPA will be able to prove to me and others on this committee that they have the statutory authority to implement the regulations we are reviewing today. Congressional records, past practices and decades of case law all say that the EPA doesn't have the authority they seek.
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As with the implementation of the FQPA, the regulations that are the subject of today's hearing, the EPA is trying to stretch their limited authority to execute their extremist agenda. I suspect today's hearing will be only the first in a series that will detail just how far the EPA is willing to push their well-defined limits.
We have assembled a broad spectrum of panelists that will give a unique protective on the Environmental Protection Agency regulations. I look forward to hearing their testimony.
As the gentlewoman from North Carolina has not yet arrived, we will come back to her for her opening statement, and we'll move to the panel.
We are pleased to have with us Mr. Charles J. Fox, the Assistant Administrator for the Water, Environmental Protection Agency; Ms. Glenda Humiston, Deputy Under Secretary, Natural Resources and Environment of the U.S. Department of Agriculture; Mr. John Barrett from Edroy, TX; Mr. Robert J. Olszewski, director of environmental affairs for the Timber Company, on behalf of the American Forest and Paper Association; Mr. Ron Jones, director of the Texas Institute for Applied Environmental Research; Mr. Arthur R. Nash, Jr., deputy director, Michigan Department of Environmental Quality.
We have now been joined by the gentlewoman from North Carolina. Are you prepared to give an opening statement at this time?
OPENING STATEMENT OF HON. EVA M. CLAYTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH CAROLINA
Mrs. CLAYTON. I am prepared to say that I welcome the participants and will indeed submit my statement for the record later.
But I want to say that I am very supportive of the environment. I want to make sure that there is indeed the commitment of—the environment is very present in, really, my moral life. But I don't want to do it at the expense of small producers nor forestry. But we want to find a balance in this. So I want to look—to hear where that opportunity for a balance is. Thank you.
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[The prepared statements of Mrs. Clayton and Mr. Stenholm follow:]
STATEMENT OF HON. EVA M. CLAYTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH CAROLINA
I want to thank you for holding this hearing to review the Environmental Protection Agency's new environmental regulatory programs as they relate to agriculture and forestry.
This is an issue that is critical to rural America and indeed critical to all Americans. It is essential that we have clean water and clean air. However, we do not want to come to a point where we import all of our food, fiber and forestry products.
Recently, we have seen an array of new programs, regulations, and guidelines for everything from Animal Feeding Operation Strategy, to pollution discharge permitting, to a Clean Water Action Plan and Total Maximum Daily Loads. Each program I've named comes with its own individual goals, directives, timeliness and implementation outlines. When our farmers, producers, ranchers and foresters take a collective look at these programs they are confronted with a maze of different regulations, guidelines and directives that often defy comprehension.
There are questions on how compatible the programs are and there is no indication as to which program has priority when they are not compatible. This is unacceptable. American agriculture, American forestry, and our Government must come together and devise a comprehensive strategy to both preserve and protect the environment and foster an environmentally robust economy.
This strategy should be based on sound science and should have clearly defined and compatible objectives. This strategy must preserve the integrity of the environment but still give our farmers, ranchers and foresters a competitive equality so that they can stay in business. These should not be mutually exclusive.
Preserving the integrity of the environment is a priceless goal but let's not price ourselves out of the world market. Again, Mr. Chairman, I commend you for holding this hearing and I look forward to the testimony of all the witnesses.
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PREPARED STATEMENT OF HON. CHARLES W. STENHOLM, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. Chairman, thank you for holding this timely hearing on a subject of significance to agriculture, rural communities and ultimately to all Americans. Recent actions by the administration to revise and expand water quality regulations have generated considerable attention throughout the countryside and raised a host of questions and concerns.
Within the last year or so we have seen a Clean Water Action Plan, an Animal Feeding Operation Strategy, draft guidance on pollution discharge permitting, and draft regulations on Total Maximum Daily Loads. Each of these proposals contains dozens of new goals, regulations, timelines or directives. Frankly, the folks I talk to back home can't begin to figure out how all these proposals are going to work individually or interact with each other.
There are questions about the logic behind the goals and timelines within several of the proposals. It is not clear how each of these proposals will interact and which will supercede the other.
In addition, very serious concerns have been raised about whether some of these proposals exceed the authority Congress has given EPA under the Clean Water Act. Given our recent experience regarding air quality standards, these concerns may be well founded.
Taken all together, this collection of questions and concerns has caused many to wonder about the wisdom of the current approach. Considering how tight Federal conservation funds have become, and in light of the overwhelming workload facing our conservation agencies, I think it is critical that we use our limited resources wisely and well.
In fact, I have been so concerned about the lack of science supporting some of these proposals that I have introduced H.R. 2793 to ensure that sound science is used to drive future water quality policy for agricultural lands.
I hope this hearing will help us to better understand how the administration is planning to use these scarce funds and how we might evaluate these proposals in order to protect our Nation's waters more effectively and efficiently. I look forward to a productive hearing and the beginning of a helpful debate on each of these pending proposals.
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Mr. GOODLATTE. I understand the gentleman from Oregon also would like to give an opening statement. I am pleased to recognize him at this time.
OPENING STATEMENT OF HON. GREG WALDEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON
Mr. WALDEN. Thank you, Mr. Chairman and ranking member Clayton, for holding this hearing today on this important issue. Farmers and ranchers and the forest industry in Oregon are watching the actions of the EPA very closely, as you have outlined in your statement, Mr. Chairman.
The recently proposed TMDL regulations in particular are of great concern. One forester who is active in this area in my district wrote a very poignant letter to me recently. He said, and I quote, ''It is apparent from the action that the EPA has lost touch with the American people's interest in balancing environmental protection with the rights of citizens to participate in democratic society. They disregard the actions and initiative of Oregon and the private sector to advance the goals of the Clean Water Act and have now instead dictated a one-size-fits-all approach.''
We have got a lot of people in Oregon who are working very collaboratively—environmentalists, ranchers, forestry people—to meet the goals of the Clean Water Act. And when you get these overriding regulations in on top of them, it causes great consternation and discouragement out there. So they are bewildered by EPA's efforts to undermine this spirit of cooperation and, frankly, question their authority to do so, Mr. Chairman.
So I look forward to the testimony today; and, as I mentioned, I have to go to another markup at 10 o'clock but will return to participate in this hearing.
Mr. GOODLATTE. Thank you very much, Mr. Walden.
I would like to welcome all of the members of the panel. I want to tell you that all of your written statements will be made a part of the record, and we would be pleased to receive your testimony at this point, beginning with Ms. Humiston, then Mr. Fox and then to the other members of the panel.
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STATEMENT OF GLENDA HUMISTON, DEPUTY UNDER SECRETARY, NATURAL RESOURCES AND ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE
Ms. HUMISTON. Thank you, Mr. Chairman.
As you said, my name is Glenda Humiston. I am currently Deputy Under Secretary for Natural Resources and Environment, and I thank you for the opportunity to be here today and provide testimony and to respond to any questions the committee may have concerning the proposed actions and rules from USEPA.
I have several USDA folks with me I would like to point out in anticipation of specific questions: Tom Webber, Deputy Chief for Programs at NRCS; Tom Christensen, Acting Director of the Animal Husbandry and Clean Water Programs Division from NRCS. From the Forest Service I have with me Warren Harper, our Deputy Director for Watershed and Air Management. And also with us today is Donald Bay, Administrator of the National Agricultural Statistics Service.
EPA's proposed rules regarding TMDLs, Total Maximum Daily Loads, and the National Pollution Discharge Elimination System, NPDES, along with the guidance manual for the permitting of concentrated animal feeding operations are important issues. USDA expects to play an important role in helping other units of Government, tribes and landowners comply with these two rules and the concentrated animal feeding operations permitting guidance.
For example, USDA's Natural Resources Conservation Service may provide technical expertise to State and tribal water quality agencies to assist local communities and watershed groups in their assessment of watershed conditions when determining impaired or threatened water bodies; their development of watershed implementation plans; and their evaluation and selection of best management practices to reduce nonpoint source pollution from agricultural lands.
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NRCS may also provide individual landowners technical and financial assistance to help them comply with implementation plans to address TMDL requirements.
To develop TMDLs on forest and rangeland ecosystems, USDA's Forest Service has prepared a policy and framework for assisting States, tribes and EPA applicable to non-Federal forest and rangelands as well as our national forest system's lands. The framework is based on science, the use of prescribed land management practices, also known as BMPs, and adaptive management.
I want to emphasize two key elements of the USDA's role in improving the Nation's waters as Secretary Glickman expressed in his testimony before the Senate Environment and Public Works Committee in May earlier this year. First, Secretary Glickman said voluntary approaches to solving problems are a key component of the strategy USDA has used since the Dust Bowl era of the 1930's to assist farmers and ranchers in conserving our natural resources.
Second, he stated that the Department's natural resource conservation and environmental activities will continue to involve the public through locally-led conservation, involving people at the local level to identify various programs and funding sources that would help them best meet natural resource conservation and environmental goals.
Rather than continue with my written statement, which is a matter of the record, I would close by stating that we have sent in rather detailed comments to EPA on some concerns with the rule as well as suggestions on ways to improve it, and we anticipate working with them in the future as public comment comes in and we work through making the best possible rule that will serve the Nation's needs.
In closing, I would like to share an anecdote from a meeting I was at in Atlanta yesterday. I had the privilege of representing Secretary Glickman at one of the five regional private lands conservation summits yesterday in Atlanta. This was one of the national regional summits that we have had in the past 2 weeks looking at the opportunities and needs of private lands conservation efforts.
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As I was preparing for this hearing an exchange kept coming back to my mind, so I decided it was valuable to share it, and I think it illustrates a key point pertinent to today's hearing.
During my opening comments there, I remarked that one of the primary motivations for the private lands conservation summits was the growing frustration felt by many and vocalized by many with what appear to be an increasingly pervasive attitude, namely the growing belief that the only way to help the environment was by more regulation or more acquisition of private lands into public ownership.
Unfortunately, the public panel member from the Sierra Club misread that comment as a call for less regulation, and this, too, is an unfortunate situation. It appears that as we move forward on these issues they all have to be black and white. EPA wants more regulation, USDA wants less. And, frankly, that is not the case in either way.
I think what I would close with saying, as I said yesterday, the realty is some of the rules on the books we have now probably need a little beefing up based on new information. Some of the rules on the books we have simply need to be enforced rather than write new rules and regulations, and some of them need reform to target bad actors rather than broad paintbrushes of entire industries. And as we move forward working on these rules and regs today I hope we will look for where the balance is and the needs specific to all of the rules. Thank you.
[The prepared statement of Ms. Humiston appears at the conclusion of the hearing.]
Mr. GOODLATTE. Thank you.
Mr. Fox, welcome.
STATEMENT OF J. CHARLES FOX, ASSISTANT ADMINISTRATOR FOR WATER, ENVIRONMENTAL PROTECTION AGENCY
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Mr. FOX. Thank you, Mr. Chairman; and I appreciate your warm introduction.
What I might say is that you can trust that I will make myself available and my staff available throughout the course of these hearings to answer any questions, and I hope I can convince you that what we have proposed here is, in fact, a common sense way that allows a lot of flexibility at State and local levels.
As you know, my written testimony goes into a lot of details on this. I will just summarize that for you this morning.
This month is the 27th anniversary of the enactment of the Clean Water Act. Twenty-seven years ago many rivers, lakes and streams in this country were little more than open sewers. Enactment of the Clean Water Act has dramatically improved the health of our waters. It has stopped literally billions of pounds of pollution from fouling the waters, and today many rivers, lakes and streams are thriving centers for healthy communities.
Despite tremendous progress, almost 40 percent of the Nation's waterways assessed by States still do not meet their water quality goals. Several years ago, after taking a hard look at these problems, the administration concluded that implementation of the existing programs was not stopping the serious new water pollution threats to our Nation's waterways. In response to this concern, President Clinton and Vice President Gore announced in February 1998 the Clean Water Action Plan, which builds upon the foundation of the Clean Water Act, and it described over 100 different actions based on existing statutory authority to strengthen efforts to protect water resources.
I would note in particular Congress's support for the significant enhancement of our section 319 program which has provided an extra $100 million to States to combat some of the problems associated with polluted runoff.
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For many years since passage of the Clean Water Act pollution problems were so common that any reduction in pollution made a contribution to improving the health of our waters. Today, however, some of the most obvious water pollution problems have been addressed. To restore the health of these waters that remain polluted we need to complement the existing programs with a more focused effort to identify specific polluted waters and to find the specific measures needed to restore them to health.
The authors of the Clean Water Act in 1972 envisioned a time when this more focused approach to restoring polluted waters would needed, and they created the Total Maximum Daily Load provisions under section 303(d) of the act.
The TMDL program is really two basic programs. The first part is the identification of polluted waters. States develop lists of polluted water bodies, waters that do not attain State water quality standards, every 2 years. The second part of the program is the development of the actual TMDL. A TMDL is, in effect, a State's plan to restore the health of the polluted water. The TMDL specifies the amount of pollutant that needs to be reduced, allocates the reductions among sources and provides a guide to taking actions needed to restore a water body.
In 1996, we determined that there was a need for a comprehensive evaluation of the TMDL program and convened a Federal Advisory Committee composed of 20 individuals, including Mr. Barrett who will be testifying later. This diverse group provided us in July 1998 with a series of 100 consensus recommendations.
A little over one year later, President Clinton proposed these regulations—the proposed provisions to these regulations based in large part on the consensus recommendations of the Federal Advisory Committee. These key changes include schedules for TMDL development, priorities for TMDL development, implementation of TMDLs, and revisions to the permit program.
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We have recently extended the comment period on these proposed regulations based on a number of concerns that have been expressed to the agency, and we have now concluded the comment period will end on January 20, 2000.
Turning to the concentrated animal feeding operations issue, which the committee also asked me address very briefly, I think you are aware that we released with USDA a joint strategy on this in March of last year. Concentrated animal feeding operations do pose threats to water quality and public health mainly because of the amount of animal manure and waste water that they generate. Under the joint strategy the vast majority of an estimated 450,000 animal feeding operations nationwide are encouraged to develop nutrient management plans on a voluntary basis. Based on our estimates, approximately 5 percent of the animal feeding operations in the country may be required to implement nutrient management plans via the enforceable conditions of a permit. We estimate there is approximately 15 to 20,000 of these kinds of operations.
The strategy itself includes both short- and long-term recommendations for how these permits should be developed, and EPA is in the process of revising our best available technology standards for livestock operations which we expect to propose by December of 2000. These best available technology regulations were last modified in the 1970's.
Thank you, Mr. Chairman. That concludes my summary.
[The prepared statement of Mr. Fox appears at the conclusion of the hearing.]
Mr. GOODLATTE. Thank you, Mr. Fox.
Mr. Barrett, we are pleased to have your testimony.
STATEMENT OF JOHN BARRETT, COTTON PRODUCER, EDROY, TX
Mr. BARRETT. Thank you, Mr. Chairman, for your opening remarks.
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My name is John Barrett. I am a cotton farmer from south Texas. I would like to thank the committee for the opportunity to appear.
We in agriculture strongly believe that EPA's interpretation of the TMDL statute relative to nonpoint source runoff does not conform to the legislative intent expressed by Congress when the Clean Water Act was passed in 1972. But beyond the issues relating to statutory history and legislative intent, the very term Total Maximum Daily Load is counterintuitive to nonpoint source management.
Each one of the words—total, maximum, daily and load—imply a constant and regular engineered and controllable environment. However, nonpoint source professionals are well aware that nonpoint source runoff is distinctly unpredictable and unamenable to control.
Farmers cannot control the rain. If we could, I wouldn't have had a crop disaster from drought in 1996 and 1998 and then a flood from Hurricane Bret in 1999. Or the farmers and ranchers in North Carolina wouldn't have been flooded out by Hurricane Floyd in 1999. This is why Congress with great common sense developed the technology-based section 319 of the Clean Water Act.
In its zeal to redefine nonpoint source runoff as a discharge subject to the TMDL statute, EPA is attempting to drive a square peg into a round hole. The Federal section 319 nonpoint source program, along with all of the State nonpoint source programs, rely on technology-based approaches which are generally implemented as a suite of best management practices, or BMPs. These include buffer strips, terraces, grassed waterways and the like.
Technology-based approaches are considered to be implemented when they are put in place. In other words, implementation of the BMPs is equivalent to compliance. The TMDL statute that we are here to talk about today has an entirely different bar. Its requirement is that compliance is not achieved until water quality standards are attained. For nonpoint source runoff, not just farmers and ranchers but cities and other runoff sources, this requirement raises the not so hypothetical possibility that a source would have to be eliminated from a watershed in the event that BMPs and modified BMPs ultimately prove ineffective in attaining water quality standards.
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This drop dead end game does not make sense to reasonable people who understand the vagaries of weather, and the TMDL Federal Advisory Committee reached a unanimous agreement that BMPs implemented to achieve TMDLs would have to pass the bar of practicability established in section 319. Practicability very simply means that BMPs are limited to those which are economically achievable. Unfortunately, EPA has failed to introduce the concept of practicability in either the preamble or the proposed TMDL regulation.
EPA has made a conscious policy decision which it cannot possibly comply with. Under the approach EPA is proposing in the new TMDL regulation, if an EPA regional administrator disapproves of a State submitted TMDL and/or implementation plan then EPA must impose its own TMDL and implementation plan on the State and stakeholders in the watershed within 30 days. As politely as I can say it, this must be a joke. EPA can't even answer their mail in 30 days, let alone develop a TMDL and implementation plan.
Even worse, the Federal implementation plan equals Federal zoning and Federal land use planning. Cities can do this, some counties can do it, States can do it within limits, but the last thing most of us heard is that the Federal Government needs unambiguous statutory authority to do so. By this I mean Congress passing a law and not the administrator of the EPA passing a regulation.
Finally, I recently heard a very senior EPA official tell a group that this program will have a multi-billion-dollar impact. And I agree. However, EPA is officially claiming only $25 million on States and an unknown amount on the economy. This discrepancy should be investigated.
I want to commend and thank this committee for its past efforts to preserve family farmers and ranchers and its support of our successful efforts to promote a sustainable production environment. Thank you very much.
[The prepared statement of Mr. Barrett appears at the conclusion of the hearing.]
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Mr. GOODLATTE. Thank you, Mr. Barrett.
Mr. Olszewski, we are delighted to have you with us and welcome your testimony.
STATEMENT OF ROBERT J. OLSZEWSKI, DIRECTOR, ENVIRONMENTAL AFFAIRS, THE TIMBER COMPANY, ON BEHALF OF THE AMERICAN FOREST AND PAPER ASSOCIATION
Mr. OLSZEWSKI. Thank you for the opportunity to be here with you, Mr. Chairman. My name is Rob Olszewski. I am director of Environmental Affairs for the timber company which represents the timber land assets of Georgia Pacific Corporation and also a small landowner myself.
I am here to represent the American Forest and Paper Association on these new proposals today, and I would like to tell you a little bit about what we feel is a surprisingly aggressive approach that has been proposed by EPA in this area.
I would like to focus on two key issues contained in the August 23 proposals.
The first issue deals with EPA's decision to essentially abandon 27 years of statutory interpretation of the Clean Water Act and case law by eliminating the designation of forestry activities as nonpoint sources.
The second describes how EPA selectively used the Federal Advisory Committee report, which I also served on, incidentally, Mr. Fox, to impose indirect Federal oversight on activities conducted by millions of landowners throughout the country.
Finally, I will address briefly the potential for economic impacts on rural communities from the proposed regulations.
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Frankly, there is a very long term history that I would like to stand on in terms of a track record that we built in the forestry community in terms of dealing with nonpoint sources in silviculture. Wonderful successes we have had with cooperative effort and BMP development through forestry in environmental community in places like Florida, Georgia and States have chosen in some instances to regulate silviculture, and we believe that is their prerogative very strongly for them to make those decisions and take those issues on.
However, EPA, in spite of these facts, has proposed to eliminate the following activities from categorization as nonpoint sources: nursery operations, site preparation, reforestation, cultural treatments, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage and road construction and maintenance. Indeed, I don't know what is left in terms of silvicultural activities, Mr. Chairman.
Instead, EPA proposes to redefine these as point sources. The proposed rule would give EPA or NPDES-authorized the authority to designate silviculture activities as point sources requiring NPDES permits. The designation would be triggered when the State or EPA determines that the silvicultural activity contributes to a violation of water quality standard or a significant contributor of pollutants to waters to the U.S.
EPA states that it will only exert this authority on water bodies on a case-by-case basis where a State fails to develop a reasonable assurances program that BMPs can achieve load reductions in an impaired water body and activities are not enforceable. In fact, EPA attempts to reassure the affected landowners by stating that it will only take 2 hours to prepare a notice of intent to file for a Federal permit. If the national forest timber sales program is used as a guide, actually obtaining Federal approval to conduct a harvesting operation is the real time question here.
We believe these farming and forestry activities are nonpoint sources, and there is no legal or statutory authority for EPA to revive the regs by eliminating the nationwide recognition of forestry as nonpoint source activity merely to address some unidentified last resort situations on an individual basis. AFPA believes that the 1972 Clean Water Act and the 1977 and 1987 amendments clearly intended not to regulate water pollution for most silvicultural activities through the section 402 or 404 programs. In fact, the 1987 amendments, as Mr. Barrett outlined, enacted 319 provisions to specifically address nonpoint source runoff, including silvicultural activities through State-based best management practices programs.
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As clear and concise as that issue is, I would like to take you down an admittedly more complex issue because it deals with some difficult water quality jargon and acronyms that, frankly, make your head spin, but I will try to translate briefly.
States identify impaired waters and establish priority rankings and develop TMDLs under section 303(d). Heretofore, the TMDL has been a numeric calculation to the various loads contributing to the water quality violation. Setting aside the scientific difficulty of actually calculating loads from nonpoint sources as Mr. Barrett got into, the proposed rule requires States to submit an implementation plan under 303(d). The plan would contain not only the numeric calculation but also eight required elements including control actions and measures that must be implemented before EPA would approve the TMDL. The big issue, and one that was unresolved in the FACA report, is whether the implementation plan should be submitted for approval by EPA under section 303(d) or merely submitted under section 303(e), the States' continuous planning process.
We do not believe that 303(d) provides EPA with the authority to require implementation plans, nor does it provide, as EPA contends in the proposal, that implementation plans can be approved, disapproved or taken over by EPA. And let me say this is not a minor legal issue by any means but one that has enormous consequences for private landowners all over the country.
According to EPA's 1987 memorandum published in the Federal Register, implementation of a TMDL depends on other programs and activities. That TMDL alone does not create any new or additional implementation authorities. The numeric TMDL itself must be approved by EPA, but no reading of the statute or legislative history calls for preparation and submission of an implementation plan under 303(d). We believe the continuous planning process in the Clean Water Act section 303 provision is the implementation phase for the 303(d) listed stream segments.
Finally, Mr. Chairman, members of the committee, these rules will impose serious constraints on economic growth and opportunities in rural communities. Under these proposed regs, manufacturing facilities interested in expanding production and growing their businesses will be required to seek out and obtain a 1.5 to 1.0 pollutant offset for some undefined entity and location in a watershed, a very difficult problem lying ahead.
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This concludes my remarks, Mr. Chairman. I would be glad to welcome any questions you or the committee members have and continue to work with your folks as we deal with this issue.
Thank you.
[The prepared statement of Mr. Olszewski appears at the conclusion of the hearing.]
Mr. GOODLATTE. Thank you.
Mr. Jones, we will be pleased to have your testimony now.
STATEMENT OF RON JONES, DIRECTOR, TEXAS INSTITUTE FOR APPLIED ENVIRONMENTAL RESEARCH
Mr. JONES. Mr. Chairman, members of the committee, good morning. I am Ron Jones. I am director of the Texas Institute for Applied Environmental Research at Tarleton State University. The testimony I provide today is primarily based on our work with the dairy industry in the Bosque River in north central Texas and the water quality issues there. Our work in the Bosque River watershed is culminating in the development of a TMDL. I might say that a TMDL in a nutrient-impaired watershed, doing one is a sobering and difficult exercise.
I want to narrow my testimony to TMDLs and the implications—the long-term implications for production agriculture. The TMDL process is a water quality reconciliation process parallel to having a hopelessly overdrawn bank account without the option of bankruptcy. If the agricultural community does not move proactively to engage the process and develop an appropriate program to implement TMDLs, the TMDL process could become an unpayable debt both by agriculture and downstream water users.
Currently, we are contemplating and even attempting to apply a 30-year-old solution developed for municipal and industrial point sources to agricultural runoff issues. The NPDES program was never intended to address water quality problems that arise from runoff across hundreds of millions of acres of privately held lands. The NPDES program is a technology-based treat-and-discharge program designed for polluters with deep pockets. It has little to offer those who want to resolve agriculture runoff problems other than the capacity to enforce—to regulate and enforce.
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Now, regulation and enforcement are necessary, but they are far from sufficient to resolve the next generation of environmental problems having to do with farms, fields and feedlots.
Agriculture must take steps to develop an appropriate alternative. Otherwise, the EPA is put in the quixotic position of wielding the NPDES sword against an ocean of farmland. This regulation will not appropriately address the pollution problems farmers face, nor can farmers afford to implement NPDES solutions. Instead, we need an approach tailored to the needs of agriculture and its unique water quality problems.
Long-term solutions to water quality problems related to agriculture may look more like highway beautification and litter programs over the past 40 years than NPDES program. In the 1950's, the fine for littering in Texas was $10, and it was not enforced. In 1964, the Highway Beautification Act was passed addressing billboards, beautification, and litter. Federal monies were sent to States to launch local programs. Later, among other things in our State, Willie Nelson sang about Don't Mess with Texas, and later on we used the Adopt-A-Highway program. We also have provisions for fines up to $1,000 and these fines are being enforced.
This program has been very effective. Government is involved, but citizen involvement has made the difference. A new ethic has evolved. My generation, who grew up throwing cans and trash out our car windows, now has a conscience that goes off at the thought of littering. Our sons and daughters belong to the organization that just cleaned up that stretch of the road. Is it a perfect program? No. But it has been very successful.
The success of the effort can be attributed to the development of a smart and well-funded program with several points of entry. It was designed to change behavior over the long term. There was a role for government, a role for the corporate world and a role for the local community—all focused and producing change in the people using our Nation's highways.
There are no easy fixes to the Clean Water Act to properly cope with agricultural issues. There are no one-line amendments that can provide significant hope. It requires more than EPA getting tough with agriculture. We need new programs based on new ideas that are appropriate for the problem and the industry.
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As we work toward solutions let's put the emphasis on voluntary programs that are backed up by enforcement and that produce results. The country cannot afford the cost of programs that place Government in the possession of monitoring how land is used and managed. And agriculture cannot afford programs that place EPA regulators in the middle of farming activities.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Jones appears at the conclusion of the hearing.]
Mr. GOODLATTE. Thank you, Mr. Jones.
Mr. Nash, we are pleased to have you with us today.
STATEMENT OF ARTHUR R. NASH, JR., DEPUTY DIRECTOR, MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY
Mr. NASH. Thank you, Mr. Chairman.
I am Art Nash with the Michigan Department of Environmental Quality. I would like to thank this committee today for providing me the opportunity to address some concerns regarding the final USDA/USEPA Unified Strategy for Animal Feeding Operations that was released on March 9 of this year.
First, Michigan supports the concept of minimizing water quality and public health impacts in ensuring the long-term sustainability of animal agriculture. Although the strategy suggests that the emphasis will be on voluntary efforts to achieve these goals, Michigan has specific concerns with the strategy. The strategy lacks flexibility to implement functionally equivalent measures that result in environmental protection, and the strategy places too much emphasis on a command and control regulatory process. This is a wrong approach.
The strategy is very prescriptive and permit oriented through the NPDES program and thus does not lead to the establishment of a Federal and State partnership that is necessary for successful implementation. The strategy will also divert limited staff resources from higher priority programs within our State. The strategy does not clearly define the environmental benefits and outcomes it is designed to achieve.
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The strategy only recognizes functional equivalency where a State can demonstrate that its program meets requirements of an NPDES program system. This is a process, not an environmental goal. Establishment of a national performance standard is the best way to promote and measure environmental protection.
Michigan supports the establishment of a national performance standard to promote and measure environmental protection. And the 25-year, 24-hour storm exemption is a well-recognized national standard and design criteria that provides a realistic and environmentally protective performance standard.
Included with my testimony today is an attachment, attachment 1, that outlines what Michigan believes should be the components to determine a functionally equivalent State program.
Michigan and other Midwest States do not believe that the appropriate regulation of oversight of animal feeding should require such a monumental reprioritization of our water quality programs. The permit effort will be much greater than envisioned by EPA and would require significant resources to implement. Based on EPA's estimates, implementing the strategy could require an additional 1,000 permits in Michigan alone, which would almost double the number of individual permits we already issue in our State. Permitting will not provide any greater reduction in pollutant loading than would occur in the highly utilized voluntary program that we are developing with the Michigan Department of Agriculture.
Michigan has genuine concerns about the overall impact on its water quality programs with this particular strategy, and the resulting shift of resources from other higher priority areas could create an actual degradation of water quality within our State. The strategy attempts to use the Federal Clean Water Act to address nonenvironmental issues associated with animal feeding operations. We do not believe it is appropriate to use an environmental permit process in this manner.
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Because of Michigan's reluctance to follow the strategy's prescriptive permitting process, EPA region 5 has verbally threatened to withhold Federal Clean Water Act section 106 funding from our State.
We are also very concerned about the difficulty the USDA and EPA are having reaching consensus. A single example of that is USDA and EPA use different standards to determine animal units. The Department of Agriculture uses weight, EPA uses number of animals.
More significantly, USDA and EPA have struggled for months over the development of guidance for comprehensive nutrient management plans. We understand that this guidance may be published in the Federal Register in November of this year for comment and not finalized until the spring of 2000. This was indicated in the strategy as one of the most critical elements, yet it is months behind schedule.
Included with this testimony as attachment 2 is a comment letter on the draft strategy signed by all EPA region 5 and environmental and agricultural State directors. And that letter was sent in January of 1999. Concerns expressed in this letter have not been resolved in the final strategy.
In addition, for the record I would like to offer a resolution passed by the Environmental Council of States just I believe it was last month on animal feeding operations and concentrated feeding operations. However, I want to make it clear today to the committee that I am only here testifying on the behalf of the State of Michigan, not on behalf of the other States.
In summary, the strategy must allow the States flexibility to implement functionally equivalent programs that meet stated environmental goals and focus on implementation of strong voluntary programs, not processes. Michigan has a strong partnership with agriculture and is proceeding with an environmental sound approach to deal with animal feeding operations of all sizes. All we ask is to hold us accountable to environmental standards and results, not going through some type of process that doesn't make sense.
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I would like to thank the committee once again for this opportunity, and please do not hesitate to call us if we can assist you in any way as your work proceeds.
[The prepared statement of Mr. Nash appears at the conclusion of the hearing.]
Mr. GOODLATTE. Thank you, Mr. Nash.
Mr. Fox, you at the outset indicated your hope to be able to convince me and the other members of this committee on this issue, so let's start with the process. Tell me what your view of American democracy and the view of the EPA's is that would allow you to take a 27-year-old law that is well established in the minds of the people in terms of what its legislative intent is and purpose is—and I would agree with you it has done a very good job in dealing with point source pollution control—that would allow you to disregard volumes of regulatory language, legislative intent, subsequent legislative enactments, all of which make it clear that the Congress has no intent to pursue the line of action that you are about to pursue and how you can justify doing that without coming to this Congress for the legislative authority to do so?
Mr. FOX. Well, I will do my best to try and answer the question as you framed it. Suffice it to say there has been a lot of rhetoric that I have heard here about our authority, what our rule does, whether it is Federal land use controls or wielding the NPDES sword to oceans of farmlands.
I would just like to say that when the framers of the Clean Water Act in 1972 set up section 303(d) for the TMDL program, there was a very clear acknowledgment that the path that we were going to take as a Nation for water pollution control was going to focus at first on controlling point sources of pollution through best-available technologies.
What section 303(d) of the act—or section 303 of the act says is after you have done and applied these basic technologies you now need to assess whether or not you are, in fact, achieving the goals of the Clean Water Act. And if you are not, there might be additional site-specific actions that are warranted. And that is the essence of the TMDL program. I think it would be, frankly, nonsensical for us not to include nonpoint sources in this picture of trying to find solutions to the water quality programs in this country or the water quality program.
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Mr. GOODLATTE. Let me interrupt you there, Mr. Fox, and ask you, if it is indeed the direction which the Nation wishes to take, which I believe you just said, why wouldn't that be reflected by actions by the United States Congress? And, therefore, why wouldn't you propose to the Congress the very regulatory scheme that you have published and ask that it be enacted into law to eliminate any doubt about whether or not it was the intent of the people of the country through their elected representatives as opposed to an unelected bureaucracy to take those actions?
Mr. FOX. As you know, you will have ample authority under the Congressional Review Act, should you disapprove of our regulations, to disapprove of it.
Mr. GOODLATTE. That is not how a republic is supposed to work. It is not supposed to be whether or not the regulatory body can take an action and then find out whether that was the intent of the legislative body. No, we passed legislation that has, over a long period of time, been very clearly defined to not include the actions that you are taking, and now you are attempting to go in a different direction.
Let me get more specific, however. It is my understanding that the EPA's 1998 clean water action plan stated that the agency would work cooperatively with the U.S. Forest Service to first develop a pilot permit program for forest roads on Federal lands only. Instead, you have now published regulations requiring permits, permits for actually all forest management operations on both public and private lands; and I would assume that similar requirements will be made of farmers for the use of their own lands as well. Why the sudden reversal and can you tell us what dialog has gone on between you and the Forest Service that would cause you to suddenly attempt to expand this authority well beyond a Federal agency process within the Government to see if this type of very broad expansion of EPA's powers has any conceivable way of working and what the enormous cost of it would be and why have you abandoned this essentially demonstration project approach for one that is going to throw us into an enormously costly and complicated and, I would argue, totally unworkable approach?
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Mr. FOX. With all due respect, I would happy to get some move specific information to you, some of the premises by which I think I got a question in that were not exactly accurate. We don't in any way, shape or form plan on regulating by permits all silvicultural operation, and we don't have any secret plan to regulate agriculture. That is not what this rule is about at all.
Congress very clearly included in the Clean Water Act an agriculture stormwater exemption that said that agriculture operations are exempt from permitting under the Clean Water Act, and we absolutely agree with that.
Congress also said——
Mr. GOODLATTE. Let me interrupt you there. How are you going to be able to, as you said in your testimony, assign the portion of the loads that can be dumped, as you would put it, into streams unless you have a process whereby you control and regulate what each farmer and each silviculturist, each forester does with their land?
Mr. FOX. There has actually been a lot of science in the last 20 years that has helped us define precisely what quantities of pollution are coming off of various types of land uses. And we have done it in the Chesapeake Bay. In fact, in your home State of Virginia there is very good data that says when you implement the following voluntary programs, buffer strip programs or conservation practices, you will get the following reduction in pollution. Is the data the best that I would like it? No. Is it enough where reasonable people can make some estimates and determinations? Absolutely.
If I could go back though to the Clean Water Act very briefly——
Mr. GOODLATTE. So you would be telling me everything you are proposing in these regulations are entirely voluntarily and that the States and local governments and private landowners can voluntarily do them or disregard them as they choose?
Mr. FOX. The Clean Water Act that has very specific provisions about what we can and cannot do.
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Mr. GOODLATTE. Don't give me a circular argument. We have already talked——
Mr. FOX. The answer to your question is no.
Mr. GOODLATTE. The Clean Water Act does not authorize you to do what your doing.
Mr. FOX. With all due respect, I would disagree. And as the person confirmed by the Senate to uphold the Clean Water Act I would like to take a couple of minutes about this. The Clean Water Act very specifically identifies concentrated animal feeding operations as a source needing regulation under the Clean Water Act. I have little discretion in my ability to do that.
The Clean Water Act also says that we have an obligation to prepare TMDLs when the States have failed to do so. I have no discretion there. What we are trying to do with this proposed program is find the common sense way to do this, to push all the decisionmaking to State and local levels, but in the final analysis, if EPA has to it, I am bound under the Clean Water Act to do it.
Mr. GOODLATTE. That doesn't sound very voluntary at all. Is that your answer to the question?
Mr. FOX. In answer to the question, you are right. There is not 100 percent voluntary provisions in this. There are voluntary provisions, but there are also some regulatory provisions.
Mr. GOODLATTE. Thank you.
Mrs. Clayton.
Mrs. CLAYTON. Let me start off with the principle of the Clean Water Act. I want to make sure that—I think the Clean Water Act is a profoundly wonderful thing that the Government has done and the Clean Water Act needs to even be improved. The environment is the issue that is fundamentally appreciated and is, in my judgment, the new emerging issue for this county. And as it emerged into agriculture, obviously there are going to be tensions. And those tensions come more from the principle than the implementation.
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Now, I am from North Carolina where we have just had just tremendous understanding how the interdependency and the interconnection between what we do somewhere upstream affects someone downstream. And how over just a snap of the hand, the God of Creation can call us all to be in the same melting pot. So the drinking water and the pollution and all of those things become interacting.
I have a lot of farmers, I represent farmers here. I represent almost 602,000 people, and all of them want clean air and clean water. And also my farmers want the opportunity to make a decent living. So the tension between how we make a living and how we instinctively know we must improve how we do our water systems and how we farm and how we—how municipality—all of those come to be points of tension. But the implementation of those can defuse, if we have the process, the goals then get to be easier done.
And I think the problem, if I can identify the problem from my perspective, is in the implementation of it. Now, no one can deny that we have to do something about the lagoons in North Carolina. No one can deny that North Carolina has to have a role. No one can deny that farmers themselves have to have a role. But you have 2.5 million chickens dying in the water, 100,000 hogs dying in the water, and the lagoons that have been there unregulated is the way, perhaps, but too swift and most stringent regulation is also not the way. So we will have to find ways how we back into this process and be realistic.
This fight between agriculture and environment can go on. In the end, agriculture knows without a doubt there are going to have to be modifications. Anyone who suggests otherwise—and the agriculture industry that is indeed moving understands that and is trying to find ways to do that. So when you see that they are trying to do it, it seems to me we need to find how we bring those two together. And we certainly don't want the regulation to be so strenuous on small farmers that they are not able to make the living.
So good public policy that has the public good of the whole should always be the ultimate goal. But it shouldn't be to the expense of the smallest and the most vulnerable individuals in society. And in some cases those are small farmers, small hog farmers, or maybe citizens themselves who can't do those kinds of regulation.
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I want to make sure what this tension is all about. As we come to Agriculture and talk about it; we go to EPA, we talk about it; we go to Natural Resources, we talk about it.
Let me ask a couple of questions. My questions will be also—I had wanted to ask a similar question as the Chair asked about your interaction between your agency and the forestry. Tell me more about that. What are you doing really to facilitate that dialog?
Mr. FOX. We have—in developing the proposal for the TMDL, we convened a Federal Advisory Committee of diverse interests. They met for about 2 years. We processed their recommendations for a good year after that before we developed our final proposal which is just out for public comment this summer, and we are sill in the public comment period. I have had some sit-down meetings with the forestry, and I suspect that I will continue to do that.
Mrs. CLAYTON. Let me ask you. Wasn't it required that you have a conclusion of the data before you have the public regulation?
Mr. FOX. The dialog concluded that about a year and a half ago.
Mrs. CLAYTON. What were the results of those?
Mr. FOX. The dialog that we had I think was very positive. I don't want to in any way suggest that they endorsed the proposed regulations, but they gave us 100 consensus recommendations which we really tried earnestly to embody in the regulations.
But specifically what this proposal does to forestry, if I could just put that on the record, because a lot has been said about what it does and does not do, forestry is already regulated as a point source in a number of different areas. There is, in fact, a long issue of that. In fact, there have been permits issued for a number of silviculture operations for many years.
What we propose to do in this proposal that we are now getting public comment on is in the very series of isolated instances allow EPA to at some point perhaps require the best management practices get put in place.
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Now, what is the series of circumstances? It is important to put this on the record.
First, it has to be whether it is impaired water; and, second, it has to be where a State has not done a TMDL for that impaired water; and, third, it has to be where EPA actually finds significant contributors, individual landowners and their practices that are causing that impairment. Only when those conditions are met can EPA potentially step in and make a decision that a permit might be required.
Mrs. CLAYTON. Assuming that, let me ask you—I want to use Oregon as an example just because—I don't know this, but Oregon may have a better system even than North Carolina has in having taken some initiatives in organizing their forestry services. How would their having taken action then allow you—use that scenario. Would you come in after they have taken action?
Mr. FOX. No. In fact, I appreciate that comment. We can analyze Oregon. In fact, we can analyze North Carolina. Washington State, for example, recently enacted a program with the support of so many in the environmental community, forestry and State and Federal regulators to provide a series of best management practices for private forestry activities in the State. It is my expectation that this State-wide initiative would get a lot of credit in each one of the TMDLs that are being done on individual water segments throughout the State and that we will not be in a situation in Washington State where we are issuing permits because of the success of the State-wide program.
Mrs. CLAYTON. My time is up. I will have a second round, I think.
Mr. GOODLATTE. I think we will. Thank you, Mrs. Clayton.
The gentleman from Louisiana, Mr. Cooksey.
Mr. COOKSEY. Thank you, Mr. Chairman.
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Mr. Fox, I have read most of your testimony, and I find it interesting and intriguing. What is your educational background that qualifies you as a regulator?
Mr. FOX. I am a graduate of a land grant university in Wisconsin. I grew up in Wisconsin and Illinois. I have been in the water policy business for about 17 years.
Mr. COOKSEY. What is your undergraduate degree in?
Mr. FOX. Urban geography.
Mr. COOKSEY. What is urban geography?
Mr. FOX. Very briefly, it is a study of the impacts of urban society on the environment and natural resources that are around us.
Mr. COOKSEY. So you have taken some biology courses?
Mr. FOX. Yes, sir.
Mr. COOKSEY. Good. Great. Don't have a law degree?
Mr. FOX. No, sir.
Mr. COOKSEY. Good. That is wonderful, too.
I want to preface my remarks—Mr. Chairman, how much time do I have? Five minutes?
Mr. GOODLATTE. You do indeed.
Mr. COOKSEY. Okay—by stating that I want clean water in my district. I am a physician by education and know something about pathogens and carcinogens and even some of the bacteria that you mention in your testimony. But I want to give you a brief background about a case that occurred in my district. The point of the story is that your agency is not doing your own business, and I just don't think that you ought to be expanding into anything else.
Now, I am glad that my friend, Marion Berry from Arkansas, is here. Jay Dickey is the one that ought to be here because it is his district, but my district is separated from Arkansas by an imaginary line, the State line. There is a chemical industry just on the other side of the State line that actively dumps chemicals into a bayou that ends up in the river and ends up in my district. And a farmer who makes his living by farming and he wants clean air and clean land and clean water brought this to our attention.
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I was concerned enough about it that I said, I am going to go up there and look at it. I had seen videos. They brought videos. But I was advised that I should not go. My district director, who is the dean of the school of business at our university and president of the university after that and then he retired—he is my district director—went up and saw this site. Well, there is a major dumping of some chemicals into the river that ends up in my district in Louisiana.
We called the EPA office in Dallas, and they said they would look into it. We talked to the Arkansas DEC, and someone there said, well, quite frankly in Arkansas we don't really do much about getting rid of pollution because we don't want to interfere with some of the poultry industry and some of the other industries. So they are not very aggressive about it.
Then I said, I want to do something about this because it is a problem. I have seen the water, and I know it is there. My district director, who is imminently qualified to look and who I have a lot of confidence in, looked at it.
Then we got the message that the Dallas office said we are interested in this, and we will do something about it. They called your office, I guess the office that you work in here in Washington where you have all of these regulators. And the office in Washington told the Dallas office to leave it alone and not do anything about it. That was during the last year, and there was a lot of animosity in this town.
I did not want to bring up another issue and look as if I was being petty or partisan, because there was enough problems going on between Arkansas and Washington, the District of Columbia and the rest of the country. So I didn't do it. If I am guilty of anything, it is of not pursuing this.
But today we pursue it. I have all of the documentation. We have studies. I can show you exactly where it is. It is dumped right above the Louisiana line into the river, and it comes right down into my area.
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Now, this is an example of a regulatory agency that I think has done some good things over the years. It is really important that we have clean water and air, and I desperately want it because I know what pathogens can really do to people. I worked on an infectious disease unit in the largest hospital in New Orleans at one time. I worked in East Africa where they have a lot of infectious diseases.
But here I am talking about a carcinogen. A neurocarcinogen is what causes cancer.
Your agency, your people in Washington, in your Washington office told your people in the Dallas office to leave it alone. Now, when you have got that type of agency, a Federal agency that has a pattern of overreaching, that has people that I think in a lot of cases do not have the—the people that are regulators that lack the education and experience in this case, lack the integrity to regulate, I think that you have an arrogance of power or regulation to come to this Congress or even circumvent this Congress and want to regulate some more.
I hope there is someone here from the press because we have all of that material. All I have to do is hand it to them.
It is really damaging on the agency. I hate to see it because I have met Carol Browner. She has been very nice. She has had some good people in her office and done some good things, and I think she is trying to do the right thing.
But you as regulators need to back off and do what you are supposed to do and not give preferential or deferential treatment to some groups or areas because of who they are or where they are. That is part of the reason that I am in Washington right now because I don't trust career politicians. Now, you can give me any answer you want to, but that is my bias towards your coming up here and expanding into an area when you are not doing your existing work in a fair and evenhanded manner that I expect from a democracy. Are we any better than some of these emerging democracies in Europe, in Russia, in Africa when we have got that type of problem?
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Mr. FOX. I will get some more information for you, and I would be happy to follow up.
I can tell you that the idea that somebody in headquarters told region 6 to back off is certainly not consistent with anything that I have every heard at my agency or with our policy. I will look into this matter.
I would also say that your comments about the tension between States is one of the issues that we are really trying to address with our TMDL program and our animal feed operation strategy. There is a wide diversity, and some States do a better job than others. Part of our responsibility at the Federal level is to come up with a series of Federal minimums so that the States can feel free to go beyond that, but at least there is some basic Federal minimums.
I think it is important for the committee to keep in mind that the amount of manure produced in this country is very significant. When you look at some of the pathogen issues, I have talked to some of the people in New York who recently lost a lot of people related to e. coli and people in Milwaukee where you had a cryptosporidium outbreak, and these pathogens are very significant. We generate approximately 100 times more manure from livestock than we do from humans in this country on an annual basis. We have done a very good job for 20 years controlling human waste, but we really need to do a better job in controlling and managing animal waste.
Mr. COOKSEY. Absolutely, we do.
I have some people that we talked to recently that want to buy waste from sewage systems, many of which don't meet the EPA requirements. And some of these municipalities have got these long-term contracts or these sweetheart deals with their people that they won't sell these people their waste and they want to take the waste and use it—put it into a material that would be used for organic farming, which I think is good.
But it gets back to bad politics and bad politicians. My message to you is get the politics out of your agency, and when you come here make requests to give us better and cleaner water and air you will have a lot more credibility, and we will do the right thing for the future. That is about having clean air and water because I support that effort.
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Thank you, Mr. Chairman.
Mr. GOODLATTE. Thank you.
The gentleman from Illinois, Mr. Phelps.
Mr. PHELPS. Thank you, Mr. Chairman, for holding this hearing. I think it is very beneficial to all of us.
Rather than a specific data question, maybe if we could have all of the panelists just sort of interact in a way of giving an example—Mr. Barrett, you are a cotton farmer in South Texas. Mr. Olszewski and the rest of you that want to pitch in, can you give me an example of your operation, one is timber and one is farming, of what you would be facing with a problem in your operation that involved EPA regulation and Mr. Fox is the EPA person that is being contacted to talk with you, communicate with your situation and is telling you this is what you have to comply with. Can you give me an example of something that you are dealing with or anticipate dealing with that you would be contacting them? And then when you contact them, I would like Mr. Fox to respond how they would engage in that particular situation.
Mr. BARRETT. Well, the way it really works, the TMDL development process starts at the State level. The State identifies the water body that is impaired, let's say, by nutrients and puts it on this 303(d) list; and the stakeholders, which would include me, prepare a TMDL to control the nutrients.
At this point, I would like to ask the folks back in the gallery, there is a board on that back table underneath that chandelier. Could you pass that up to the front, please?
They would come into the watershed—the State would come into the watershed with this information that Mr. Fox referred to that has been prepared by the EPA over the past 20 years, these models. And the models that they have got basically assume that, for instance, fertilizer is a number one contributor to water quality problems. And the TMDL that they developed might have a requirement that I would reduce my fertilizer use by X percent, 20 percent or 50 percent.
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The real problem that we have is when you go out and actually do the data and study the situation, you can come up with some information like this board shows right here. This scientific data was prepared under an EPA-approved quality assurance program. What it basically shows is that in 1 year the farmers in this watershed put on 218,000 pounds of fertilizer on their farmland or about 3,000 acres of farmland. Immediately after that was done, it rained about 6 inches, and the rainwater brought 1,200 pounds of nitrate with the water onto the watershed. But the gauge runoff that was measured by the U.S. Geological Survey of EPA only contained 110 pounds of nitrate in the runoff water.
So the default assumption that EPA and others have been operating under for all of these years is that agricultural runoff is automatically a problem. Had we not had this kind of science and real data we would have had to reduce to comply with the TMDL our fertilizer applications by this percentage that would be contained in the TMDL. That would have economic losses to my farming operation. I put on fertilizer to make money. I don't put it on to have it run off down in the ditch, as this study very clearly shows.
That is one specific example.
Mr. PHELPS. Great, that is a good one.
So EPA, who has approved these chemicals in the first place to be used, or these fertilizers, Mr. Fox, do they not take maybe into account that if you have a 6-inch rain and there is movement and the fertilizer and those chemicals would come to a certain point? What kind of rationale would you use in that situation?
Mr. FOX. First, I am not aware that we actually approved, for the record, any fertilizers. I think our approval was more on the pesticide side of the house.
With respect to the example, though, I am checking with staff here. I am not aware of any TMDL that we have developed or, frankly, that the State has developed that would require a farmer to reduce the amount of fertilizer.
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Typically, the way that these TMDLs are prepared is they establish overall nutrient reduction loading goals that then could be met in any number of ways, whether it is reducing fertilizer, whether it is adding buffer strips, which in many cases could take out some of the nitrogen that he is talking about, whether it is managing the manure at the site differently. Typically, the TMDL doesn't get into that level of specificity, and that is the farmer's decision about how they are going to achieve the goals.
Mr. PHELPS. Mr. Barrett, is that how you understand it?
Mr. BARRETT. No. I absolutely disagree with that, Congressman.
I am working on a TMDL right now or working with the stakeholders that are developing a TMDL in the Royal, Colorado, area and deep southern Texas. The State agency—he is correct, they haven't approved that many TMDLs because this program is just catching fire here. But the TMDL that the State of Texas is preparing for that watershed contemplates—is seriously contemplating fertilizer use reductions. They are actually out there right now trying to quantify the environmental goals or the environmental results that would accrue if fertilizer use was reduced by given X percentages.
Mr. FOX. I would like to say that it sounds like the State of Texas is proceeding on that, although they have not adopted it. Nothing in our regulation would require them to do that at all. The goal of our regulation is to put forward a flexible, common-sense plan to meet water quality standards. You can decide how you want to do it, but we are trying to achieve the Clean Water Act's goals.
Mr. PHELPS. So, Mr. Barrett, the State officials then, are they coming down and reflecting this is what the Feds are telling us to do?
Mr. BARRETT. The Feds are very clearly—and it is repeated in these regulations—are requiring the States to allocate the assimilative capacity of a water body, for example, for nitrogen. They have to make that allocation between sources. They are dividing up a pie, and they are telling the nonpoint sources that they can have such a slice of the pie and telling the point sources that they can have such a slice of the pipe. Then it is up to the States and the sources to come up with some sort of a method by which they can get within their piece of the pie to meet the water quality standards.
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The problem comes about, as I alluded to in my testimony, if the technology-based methods that we have got out there such as nutrient management plans don't achieve that goal in the implementation plan part of the TMDL, then further reductions will be made. This is clearly said in EPA's regulation, preamble and guidance. During those further reductions is when we anticipate that environmentalists, cities and others would suggest that fertilizer use will have to be reduced.
Mr. PHELPS. Thank you.
I know that I run out of time, but I know the gentleman that works for Georgia Pacific, I would interested in sometime knowing what you deal with that brings him on board that has this kind of dialog that you are fearful of that, this new policy.
Mr. OLSZEWSKI. I would love to share that with you.
Mr. GOODLATTE. We do have a vote on the journal. Is the gentleman from Texas intending to return after the vote? We will start with you when we come back.
The subcommittee will stand in recess.
[Recess.]
Mr. GOODLATTE. If everyone will take their seats, the subcommittee will reconvene.
At this time, it is my pleasure to recognize the gentleman from Virginia, Mr. Goode.
Mr. GOODE. Thank you, Mr. Chairman.
I would like to ask Mr. Fox, as I understood what you said earlier, you have felt that since the Clean Water Act was enacted over 20 years ago that section 303(d) has always given you the authority to enact the TMDL regs that you are supporting; is that correct?
Mr. FOX. Section 303, and (d) in particular, is the basis for the TMDL specific provisions. But some of that—I don't want to be misleading. Some of the other provisions of our rulemaking are based on other parts of the Clean Water Act. For example, the debate that we have been having about forestry, that comes under the stormwater provisions that gives the agency the authority where we identify significant contributors of stormwater to require them to have permits in select cases.
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Mr. GOODE. That section of the act, in the new section that was done back in the 1970's, was it not?
Mr. FOX. Right, 303(d) in 1972. The stormwater provision was actually included in the 1987 amendments.
Mr. GOODE. So you have had the stormwater since 1987 and 303 since 1970 something?
Mr. FOX. Right.
Mr. GOODE. Why do you feel right at this time you have to go forward with this program? Why didn't you do it back in 1988 and in 1979?
Mr. FOX. The short answer to your question is that we still do not believe that national regulations for silviculture, for example, are appropriate and requiring permits——
Mr. GOODE. I want to know who was in your place—and I don't know who was head of the EPA in 1980—didn't act then? Why didn't they act in 1988? Why are you doing it now?
Mr. FOX. The distinction that I was trying to draw was the national uniform regulations still—we still believe don't make sense. But in the context of TMDLs, the reason that we are doing this now is that EPA has to have a backstop role under the statute, that if a State fails to take action we have to be in a position to take action to achieve the goals of the Clean Water Act.
Mr. GOODE. Why didn't have you that backstop role in 1988, in 1979?
Mr. FOX. We did. It has been in effect since 1972. It has been the subject of a lot of court cases recently; and we, in fact, are preparing literally hundreds of TMDLs today because of that.
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Mr. GOODE. So you are saying—I have not heard from the agricultural interests and the forest interests—well, in the 1980's and in the early 1990's like I am today—but you say that you were doing the same thing then, is that what you are saying?
Mr. FOX. What I am saying is the EPA has always had a backstop role in a case of a State failure to issue a TMDL, that we have to do that. That has been on the books since 1972. It hasn't been widely practiced, I will admit that. But in the last 5 or 10 years there has been hundreds of those done, and we are doing the backstop role.
What is new in this proposal is that we said for the first time if a State failed to do something in a watershed and the silviculture was in fact the cause of impairment in that watershed and that we could, in fact, identify which specific silvicultural operations were causing that problem, under this proposal EPA would have the authority to step in and to issue a best management practice base permit for that specific operation.
Mr. GOODE. Let me ask you this, how many TMDLs did you do in 1982?
Mr. FOX. Probably very few. Probably just a handful. I can get that information to you.
Mr. GOODE. How many in 1988?
Mr. FOX. A higher number but still probably very few. It has taken off in the last few years.
Mr. GOODE. How many did you do in 1998?
Mr. FOX. I am aware personally of at least a few hundred, and I can get more detailed information on that one.
Actually, it might be less than a few hundred in 1990. I know in 1999——
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Mr. GOODE. I guess it kind of changes with whoever is head of the EPA and how they look at all of these code sections and decide what they are going to do. Is that a fair assessment?
Mr. FOX. Actually, this was, in large part, spurred by a lot of litigation going on around the country where the courts consistently found that EPA had a nondiscretionary duty to do this. There was a lot of litigation. We had it in probably 30 different States.
Mr. GOODE. Have you had any in Virginia?
Mr. FOX. Yes, we have, in fact. We recently reached a settlement agreement, my understanding is, with the plaintiff.
Mr. GOODE. Who were the bringers of the suits in Virginia saying that you weren't doing what you should have been doing?
Mr. FOX. I believe it was the Chesapeake Bay Foundation and the Sierra Club Defense Fund, but I can get that specific information to you.
Mr. GOODE. In Virginia—impaired rivers and waterways, can you give me a few instances of impaired ones in Virginia?
Mr. FOX. Bear with me here for a second, and I will pull up my Virginia map. In general, in Virginia, because I am somewhat familiar with work on Chesapeake Bay, a lot of waters in Virginia are impaired because of nutrient pollution which comes not just from agricultural sources but municipal point sources as well. Pathogens are a cause of impairment in a lot of waterways in Virginia. That would typically be failing septic systems or some kind of sewage treatment problems. I am showing in my map sedimentation seems to be an issue in some places. That could be not just agriculture, but——
Mr. GOODE. Just give me some examples of the rivers.
Mr. FOX. I am not familiar with Virginia geography. A number of them seem to be in the Shenandoah Valley. A number of them seem to be out in the very western part of the State, but I would be happy to have this submitted for the record if you would like, a map of Virginia with of all of the listed waters.
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Mr. GOODE. Let me ask you this. Looking on there, can you tell me if the Smith River—is the Roanoke River on there?
Mr. FOX. I don't have the names of the rivers on this particular map.
Mr. GOODE. Let's say I was in a watershed. I am not in the Chesapeake Bay watershed. I am glad I am not. If I lived in the Chesapeake Bay watershed—say I lived in Amherst County, which is in your district, Mr. Chairman.
Mr. GOODLATTE. Good choice.
Mr. GOODE. If I lived in Amherst, which is on the James River, would I—if I want to wanted to cut down some trees on my land would I have to make sure that it was okay with the EPA?
Mr. FOX. I can't imagine that would be the case.
Mr. GOODE. Let me ask the forest——
Mr. GOODLATTE. If the gentleman would yield, just for your information the information that we have downloaded from the EPA's web site in this issue indicates that in the State of Virginia alone there are 6,445 miles of stream, creek, river and coastal areas that would be in this impairment. That is just a modest thing that the EPA is going to do here.
Mr. GOODE. Mr. Chairman, I have seen my time is up.
I would like to make this observation. I was in the State legislature for a right good while. If you want to regulate all of the nutrients going into the Chesapeake Bay, all you have to do is go sock it to every homeowner and tell them not to fertilize their yard because—but you don't want to do that because you have some of those Sierras and those people on you then.
Mr. GOODLATTE. I thank the gentleman for his observation.
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The gentleman from Texas, Mr. Stenholm.
Mr. STENHOLM. Thank you, Mr. Chairman.
So much to talk about, so little time to do it in, but on a subject that is extremely important to all citizens of the United States. I have no problem admitting that we have problems. My problem is those who define the problems as being much more serious than good, sound science happens to define at the time.
I can't say, Ron, I have particularly enjoyed working with you over the last 8 years because this subject is one of which there is no enjoyment. But I think the work of the Institute in Texas in first recognizing and admitting that we had a problem, in this case with dairy waste that was affecting local communities and also affecting downstream water use potential, that we have been trying to find some answers. And I think that we are making some fairly good progress now.
I have found in our experience that the best way we make progress is to work in cooperation with others. I think that is where we continue to run into the biggest part of the problem. We have a difficulty with some to recognize that perhaps their answer is not the only and the best answer. When they are in charge of writing regulations, we get into the problems that we see that end up turning back the clock years in what we could have done.
I think of Superfund, for example, and think of all of the money that we have wasted in litigation instead of actually spending the money in cleaning up. I look at the decisions that have been made because someone was unwilling to take the risk in deciding that a certain technology might work. But having denied the technology for years now all of a sudden it is coming back because we are now saying, well, maybe it will work and maybe we ought to take a chance on it.
I listened to a lot of the answers to the questions today, and there is two or three things that kind of pop out to me.
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Mr. Fox, this is where I think you and EPA need to spend a little time soul searching, because you take a lot of criticism up here and some of it—in fact, I would say most of it you deserve, but some of it you don't. I have been on both sides of this, but recently with some of your actions again have caused me to now be more of a critic of you than a supporter.
I didn't want to be there today. I didn't want to be there on the Food Quality Protection Act because I did believe that we were making good progress in that area. But all of a sudden somebody decided that we had to repoliticize it for some narrow focus rather than the big focus that the folks here are wanting us to look at.
In Michigan—when Mr. Nash states that Michigan is also very concerned about the difficulty USDA and EPA have in reaching consensus, why do we continue to have difficulty reaching consensus among two agencies that have the responsibility of solving the problem? What is it that causes EPA to have a different standard to determine animal units, for example?
Little things, little simple things like just deciding if you are going to measure animal units, how do you measure them? Why do we continue to have this mindset?
You don't have to answer that one today, but I sure hope in this and other areas that you will. Because if we can't build cooperation with our States and with EPA and USDA, you are not going to solve the problem. You are going to have political—you are going to have tremendous cost. As Mr. Jones and I have watched our dairymen spend millions of dollars meeting someone's guidepost 10 years ago, 15 years ago, that proves to be erroneous, and it has cost a tremendous amount of money that could have been spent solving the problem.
But it doesn't matter, it seems, what subject we are talking about. We always have this mindset among a few to disregard the science of a consensus. That is what gets you in trouble day after day and I would submit is unhelpful to solving the problem, as Mr. Cooksey was talking about a moment ago.
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Mr. Fox, do you believe there is adequate monitoring data available in most impaired watersheds to support creation of TMDLs, or will many have to rely on computer models and estimates to set the long-term background levels?
Mr. FOX. I believe we could always use more monitoring, to answer your specific question. I believe, in general, there is enough information to take a good stab at it in the vast majority of watersheds. There might be some that need additional data.
You won't find me in any way disagreeing with a number of your points, sir. I think we need to do a much better job of investing as a country in water quality monitoring. I couldn't agree more that the cooperation between our two departments is going to be very important in solving this problem for the Nation.
Mr. STENHOLM. I would certainly hope that you at EPA would utilize to the fullest extent the tremendous data that has been gathered by the Texas Institute and also be supportive of where we need additional data before someone—as I don't know much about the Virginia question except I think I kind of understood it, if you have got 6,000 miles and you are going to rely on computer models, you better darn sure have a good model or you are going to cause a lot of producers and consumers to spend a heck of a lot of money meeting that theoretical computer model. That is where cooperation between USDA and, I suspect, every State—I know Texas does, and I suspect every State has their own efforts going on now.
Here we have this constant frustration expressed by those at the State level. Here, for example, Mr. Fox was correct in saying that EPA is not requiring reduction in fertilizer use. That was an honest statement. But what they are doing is passing the buck to the States to make these hard decisions. They simply demand reductions in nutrient inputs to watersheds.
Obviously, this may lead to lots of awful restrictions. But since EPA doesn't spell these out in detail they say they are not requiring these bad things. That is kind of playing on words. It puts a problem on the State to say, well, what do we have to do to meet these requirements? You say, just anything that you want, but then you come out with certain guidelines at different times, whether it be on chemicals or fertilizers or whatever. That is not helpful.
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If we could spend a little more time over the next year or month or week talking to Michigan, talking to Texas, talking to the other 48 States and seeing what kind of guidelines do we need, it would work a lot better.
You know, I also would feel obligated to point out the cryptosporidium outbreak in Milwaukee was caused by an aging sewage system in the city of Milwaukee when dairy waste and slaughter waste were run through that system by a slaughtering plant. Any reporter listening to the previous answer regarding that would have thought that it was purely dairy farmers. It is not true. And it is not helpful when we use sensationalizing statements on anything.
Again, I want to repeat—because I get a bad rap around here for being against clean water and against clean air. I am not. I am for it. But I am so frustrated with the method in which we are going about it through the regulatory process that I tend to associate myself with the chairman's earlier statements regarding the interpretation.
One last question. I am indulging the committee right now, but, Mr. Fox, can you give us an update on the status of the lawsuit filed against the EPA by Wyoming regarding the clean water action they——
Mr. FOX. I can get you more detailed information. My understanding is that the Government has provided its papers to the court and plaintiffs in this case are going to be responding to our arguments within a month or so. I can get you the timing on that one.
Mr. STENHOLM. If I could have one last question, Mr. Chairman.
Ms. Humiston, you may be aware that we had a little discussion yesterday in this same room about how to protect the privacy of information in landowners' files at USDA's agencies. One of my colleagues seemed to be more comfortable with nothing in place to protect these files and the trust placed in USDA employees who work with these landowners on a voluntary basis. Can you tell us what the NRCS policy is regarding confidentiality of landowner files and associated data?
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Ms. HUMISTON. I can certainly get you a more detailed answer to that, but, in general, our policy is the information in our files is not available to the public. We do on occasion, as we work through problems, put together aggregated data, and we do this often working with, closely, the industries themselves to ensure that, to the best degree possible, good data is used in rulemaking processes and delivering allocation of resources. But we actually do have a very strict and firm policy in writing against release of that information.
Mr. FOX. If I could just add, Secretary Glickman and Administrator Browner have talked about this subject. We at EPA agree completely. There needs to be a firewall for this data. We have had some very successful discussions with USDA about how they could summarize the data that they have so that we don't have farm-specific data to protect their landowners, and we completely agree with that.
Mr. STENHOLM. You know, it is a shame that we even have to have these kind of discussions right now, because if we are going to solve this problem, it is going to take cooperation. That is the one ingredient that is missing in our effort. There is so much distrust that has been brought about by the more extreme views present in this country that it is getting much more difficult for us to have the kind of cooperation that is going to be required to solve the problem. If folks do not recognize that soon, we are going to have a—well, who knows what we are going to have, but I know the result is going to be. We are not going to have nearly as clean of water and pure air as we could have had we had a little better cooperative working relationship.
Everybody at that table has had a little different story to tell, but it all points in the same direction. Everybody wants to do the best job that they can. But to do that you have to have sound science. We have to invest a little more of our resources in helping to find the answer before somebody requires it if we are going to maintain the most competitive food supply, the best quality food, the best quantity of food, the safest food supply at the lowest cost to our people of any other country in the world. That is something that gets overlooked in all of this.
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There are those that would have us spend billions of dollars with potential benefit. That is unacceptable in this internationally competitive marketplace.
On a more positive note, Mr. Chairman, I would like to acknowledge that Don Bay, the Administrator of NESS, is with Glenda today. This will probably be his last time that he will be at the House Agriculture Committee hearings since he has formally announced he will be retiring in December after 42 years of USDA service.
Don, after having seen you around this room for about 21 of those, we wish you godspeed in your retirement. Thank you for your work.
Mr. GOODLATTE. I thank the gentleman.
The gentleman from Oregon, Mr. Walden.
Mr. WALDEN. Thank you, Mr. Chairman.
Mr. Fox, could you describe for me in some detail the workings of the Oregon Forest Practices Act?
Mr. FOX. I am sorry, I am not prepared to do that. I am not familiar with that.
Mr. WALDEN. I ask that question because Oregon was a leader among States and a leader in this Nation for establishing practices for how we manage our forests. So I ask that question somewhat facetiously because what is happening here today and what you are doing to your agency is crafting rules that trump in some measure that act. That is why people in my State are so frustrated in terms of the Federal Government doing a one-size-fits-all set of regulations to effect what happens in silviculture in Oregon.
Mr. FOX. If I could say a couple of things, number one, nothing in what we are doing should in any way be considered as trumping a good State program.
I would also say that the State of Oregon was a member of our backup committee. I have talked with their commissioner in a number of cases. I don't want to speak for him, but I know that he has issued press releases in support of our programs, sir.
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Mr. WALDEN. I am not totally surprised by that. I know him, as well, and I think he is making some good progress, but there are a lot of groups out there who are directly affected by the regulations that are concerned. They would like to see your agency extend the comment period for a while longer, 60, 120 days. I missed some of your testimony. I had to be in a markup in another committee. Are you willing to do that or did you address that issue?
Mr. FOX. I did in more detail in my written statement, but we have extended the comment period, more than doubled it. It now closes on January 20.
Mr. WALDEN. January 20. That would be helpful.
I have another question as well. One of the questions that I get asked a lot about is how these regulations are put over the top of agriculture and timber. Are these same regulations applicable to, say, homeowners who do various things, use various pesticides in their lawns and gardens and all of that? Are you going to apply the same standards there?
Mr. FOX. The short answer is that is going to be up to the States and those who develop the TMDLs. As Mr. Stenholm said, it is very true. What we are trying to do with this regulation is establish broad frameworks for communities and States to make decisions about how to best meet these challenges.
I fully expect that many watersheds will in fact look at homeowners, they will look at failing septic system problems, they very well may look at some of the fertilizer uses of homeowners if that is, in fact, a significant cause of impairment. The whole focus of this is to drive these decisions to a local level, to a State level where there is a much more closer connection to the problem and what is the most cost-effective solution.
Mr. WALDEN. So you feel it has to be done from the Federal level, that the local up process, the collaborative process is insufficient?
Mr. FOX. I am simplifying this greatly, but I would argue that the thrust of this whole program and these regulations that we are talking about is simply laying out the framework by which States and local governments will make decisions to achieve the goals of the Clean Water Act.
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Mr. WALDEN. I obviously have further concerns for this that I will take up later, Mr. Chairman. I appreciate your time.
Mr. GOODLATTE. Thank you.
The gentleman from Arkansas, Mr. Berry.
Mr. BERRY. Thank you, Mr. Chairman. I appreciate you having this hearing.
And I have to tell you, Mr. Fox, that my inclination here to just go after you like gangbusters is almost irresistible, but I am going to resist that.
Mrs. CLAYTON. I am holding him.
Mr. FOX. Thank you very much.
Mr. BERRY. I certainly share with the chairman the concern that you have tried to circumvent the Congress with what you are doing here. One of the reasons I think that we have got such a problem with what EPA does—and I deal with this on a daily basis, whether I am in my office, whether I am at home, in DC or Arkansas, no matter where I am, I get a call every day from somebody that has been walked on by an EPA employee out there thinking that God sent them here to regulate the land use in the State of Arkansas.
Now, your administrator once told me publicly that EPA employees did not get involved in things like wetlands determinations. I am here to tell you they do. If these people that work for your agency and get out on the ground and deal with landowners would focus on really cleaning up the water rather than finding some generally unfounded technicality that they can tax someone on and try to get them in a violation of some regulation that someone wrote that probably doesn't even own any land, we would probably be making a lot more progress than what we are. I can give you examples of that from now until this time tomorrow right off the top of my head.
I have never yet encountered in the field a responsible EPA employee. Now, I am sure there are some, but I can truthfully say I have never heard of them.
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I have heard of them stopping at the local cafe or coffee shop, and someone would be talking to them, and they would say, what are you doing in this part of the country? Well, we are here, we are coming after so and so. We think he is a bad actor, and we are going to get him. Or whoever it is, it just happens to be a landowner in the area. But this inspector or this employee of EPA has got his dander up for whatever reason. I can tell you that is not very helpful.
One question that I have for you is, what process do you have as an agency—in this committee we have been dealing with people getting abused by employees of the Department of Agriculture. We have a big problem that we are trying to deal with in that way. What process do you have as an agency when one of your employees abuses a citizen of the United States? What recourse do they have other than going before the Federal court and trying to save what little bit they have in the world from being confiscated by your agency?
Mr. FOX. The path that is usually chosen and certainly the first line would be through our inspector general which does do a lot of investigations of complaints, not just from citizens but other Federal employees. The inspector general has a number of hot lines available for people that they can be contacted and investigate these kinds of matters.
Mr. BERRY. Have you ever disciplined one of your employees for such actions?
Mr. FOX. Sir, if any action like you were describing came to my attention—that sounds like it is completely inappropriate and requires disciplinary action. I am not aware under my tenure of that circumstance happening. I do have some ongoing investigations that I am aware about, but none of them have come to closure yet that would require disciplinary action.
Mr. BERRY. So your process is just get in touch with the IG?
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Mr. FOX. Typically, I think it is most appropriate that an independent body investigate these and it is not investigated by the agency itself. Obviously, they could go to the Department of Justice which has some capabilities in this area as well.
Mr. BERRY. Would you for the record find out for me if that has ever happened and if you have ever had an employee disciplined, and then I would ask you to furnish me with the phone numbers that you just mentioned and any other information that you have so that the people that I am fortunate enough to represent at least have a running chance when one of your guys comes in and goes after them?
Mr. FOX. Okay.
Mr. BERRY. I would also like to ask you, all of these things that are going to be required by your clean water action plan, how do you expect all of that to be paid for?
Mr. FOX. A good bulk of the initiatives dealing with nonpoint source pollution were included in the President's budget. We added an extra $100 million in our EPA account. There were other moneys added in the President's budget and other Federal agencies. Congress enacted our request, and I know that we ended up doing very well before Congress in some of our investments. These are moneys that are, in turn, transferred to the States so the States can help landowners with some of their pollution problems. We have had a very modest investment within our programs to ensure that we can complete a number of initiatives, and I know a number of other Federal agencies have done the same.
I can certainly get you more detailed information on that as well.
Mr. BERRY. Thank you, Mr. Chairman.
Mr. GOODLATTE. I thank the gentleman.
We will do a second round of questions; and I would like to start, Mr. Olszewski, with a follow-up to something that the gentleman from Virginia, Mr. Goode, brought up. Would you comment on Mr. Fox's statement that a private landowner would not have to get the EPA permission or a State agency under an EPA mandate to cut some trees on his land?
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Mr. OLSZEWSKI. I would be pleased to do that.
First, let me say something that has made us uniquely different in this discussion, that the issues around this NPDS exemption and the approach to silviculture makes us, for some untold reason, uniquely different. We are targeted among the land uses of the country under this issue. That was never discussed at all at the FACA. That is a proposal that came out of EPA in tandem with the TMDL regs almost out of the blue. It makes little sense that this approach has taken place.
Out of EPA's own 305(b) reports from 1988 to 1994 silviculture was at the lowest leading source of pollution or impairment for rivers and streams shown in their summary charts. In 1996, EPA dropped silviculture from the chart as one of the seven leading sources of impairment to rivers and streams. There is other information such as that in our testimony.
But what this proposal puts EPA in the position to do is, if that water body that was mentioned earlier was impaired, there certainly has been a long history of development and you folks have very appropriately developed the 208 plan process, the 319 section of the Clean Water Act, to deal with nonpoint sources such as silviculture in terms of bringing our loads down.
As I said earlier and giving you an example right here, we have a long-term track record of tremendous success I would be proud to stand on with anybody around the table to talk to you more extensively about it. But yet for some reason EPA has chosen to propose this designation for us, which puts them in the position, in the example of the landowner trying to harvest his trees, of potentially being permitted by EPA to do that, if they decided that the State has done an inappropriate job in terms of developing that TMDL and is not dealing with those processes that Mr. Walden mentioned, that Forest Practices Act in Oregon that is developed in each of the individual States, a different approach. This is a State's prerogative issue up to now. And EPA is choosing to exercise some potential authority to oversee and indeed overstep, I think, into the States' long-term, long-standing approach where they have handled dealing with these nonpoint source issues, in this case silviculture issues.
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They could step in and deal with that landowner specifically, they could outline the implementation plan for the TMDL, and they could indicate that the stream side management zones, as directed by the State to protect water quality in those instances, are inadequate. They could take enforcement roles. They could develop a general permit for that landowner that he would have to follow or they could require that landowner to apply for an individual NPDS permit.
That is, frankly, what this proposal opens the door for EPA to do. It, frankly, opens the door that that landowner could indeed have to get an individual permit for his harvesting activity.
Mr. GOODLATTE. Thank you very much.
Mr. FOX. Could I respond, Mr. Chairman?
Mr. GOODLATTE. Yes, sir.
Mr. FOX. Thank you.
I would just like to state for the record that the way that we have constructed this regulation, the only circumstance that a permit would be issued is when there is a water quality problem that is identified from that individual landowner. Our estimates as to how much this would affect nationwide—we estimated the total cost of this to a multi-billion industry was probably only going to be $3 million to $10 million. We estimated that approximately 600 landowners out of probably tens if not hundreds of thousands would potentially be affected by this. We have tried to narrowly focus this——
Mr. GOODLATTE. Mr. Fox, let me interrupt you.
When you say ''potentially,'' I think you have to count everyone. It may, in fact, be there are a limited number of landowners who face a permitting process. But the fact of the matter is potentially on, just in the Commonwealth of Virginia, 6,445 miles of streams and other waterways, there are a whole lot of potential landowners who are subject to regulations that you will then have in place that some future bureaucrat can choose to impose more stringent requirements upon than you predict that you yourself would impose them on in the near future. Is that not correct?
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Mr. FOX. Only if, a, those waters are impaired because of silviculture, which I could get you that information, so there is going to be a very small subset; and, secondly, only if that individual operation was connected to a water quality problem. We can make some of these arguments——
Mr. GOODLATTE. But the definition of what is a ''water quality problem'' is subject to a great deal of interpretation and a great deal of abuse by the bureaucrats out in the field who choose to say this particular action constitutes a water quality problem.
Because, for example, when you cut down a tree, you are going to disturb some soil. When you build a road to get to the trees, you are going to disturb some soil. When you plow a field, you are going to disturb some soil. All of those activities go on on thousands and hundreds of thousands and millions of private property owners' land on a regular basis. That is our legitimate concern about opening the door to targeting what you say would only be a few bad actors.
Let me ask Ms. Humiston, you mentioned that you had sent comments and suggestions to the EPA concerning the new rulemaking concerning TMDLs. Have you made those available to the Congress?
Ms. HUMISTON. They just were sent in last week. We had to do some very extensive analysis of the entire rule.
Mr. GOODLATTE. Would you submit a complete set of those comments for the record? We would very much appreciate that.
Ms. HUMISTON. Yes.
Mr. GOODLATTE. Thank you.
Mr. Nash, I want to commend you for your testimony. It addresses exactly what the members of this committee have said consistently is the best way to keep our rivers and lakes clean—a set of performance standards that are flexible and suitable for the area of the country in which they are enforced. A national standard will not work for agriculture. The reason EPA is giving us a command and control regulatory system is to feed the bureaucracy, in my opinion.
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You indicate thousands—these are, as I understand, the proposed rules and guidance documents. You indicate thousands of individual permits would be issued under the EPA's current CAFO strategy. Do you have any estimates for what this will cost your agency in the State of Michigan?
Mr. NASH. Our initial estimates are at least 17 additional employees will be required, at a cost of approximately $65,000 per employee. That is our initial estimates of what would be required to fully implement the NPDS program for CAFO operations in the State.
Mr. GOODLATTE. So over a million dollars just for the State of Michigan. What would you estimate will be the cost to the individual landowners in your State?
Mr. NASH. I don't have that information available, Mr. Chairman.
Mr. GOODLATTE. Is it going to be substantial?
Mr. NASH. Substantial cost, right.
Mr. GOODLATTE. I thank you very much.
The gentlewoman from North Carolina.
Mrs. CLAYTON. I just want to follow again the process. I think I understood that the implementation of section 306 is that the State identify the polluted water areas; is that correct?
Mr. FOX. That is correct.
Mrs. CLAYTON. And then they will have the opportunity or have the responsibility, I guess I should say, of really coming up with a quality standard to correct it.
Mr. FOX. That is correct.
Mrs. CLAYTON. And so they will provide kind of the analytical and prescriptive plan and send that to you, right?
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Mr. FOX. That is correct.
Mrs. CLAYTON. Therefore, when their prescription in your judgment is not consistent with the analytical technical analysis that you make, are you making a parallel one at the same time? Are they sending it in and you evaluate it, is that how it goes?
Mr. FOX. That is typically how it goes.
Mrs. CLAYTON. Let's use my State of North Carolina as an example. Do you happen to know what is going on in North Carolina? I should know, but I don't know. To be honest with you, I don't.
Mr. FOX. I would say the same thing. I should, but I don't know. In the wake of the hurricane we have had to revise a lot of the work we were doing with the program just because of the devastation to so many of the rivers there.
Mrs. CLAYTON. Mr. Nash, you are in Michigan, right?
Mr. NASH. Right.
Mrs. CLAYTON. I gather capacity is an issue in all of that. In assuming if the Federal Government is not doing and you give it to the State to do it and the State has come up with their—Mr. Nash, in your case, your identification of how many staff people?
Mr. NASH. An additional 17 staff to implement NPDS for the CAFO.
Mrs. CLAYTON. I am assuming that this is based on your model of what you feel you need to do to make sure that your identified bodies of water are not polluted?
Mr. NASH. Yes. We also have the TMDL program, as we have been discussing here this morning. My comments were directed at just implementing the CAFO and the NPDS program for the CAFO operations separate from the TMDL process.
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We also have concerns, as other members of the panel here today, about the TMDL process. Specifically, one of our major concerns——
Mrs. CLAYTON. Was your response to the question that the chairman made was——
Mr. NASH. Was for CAFO operations, animal feeding operations.
Mrs. CLAYTON. So that is not the TMDL program.
Mr. NASH. No. Although that would cost us additional staff to do that.
Mrs. CLAYTON. The States are concerned with that, too. My line of questioning was for the TMDL program. So you were speaking of the other program?
Mr. NASH. The CAFO program, yes.
Mrs. CLAYTON. I do have a question for Ms. Humiston. You indicated that you have submitted comments on the rule. Was USDA engaged in developing the rules—are you commenting after the fact or were you engaged in the initial promulgation of the rules? If not——
Ms. HUMISTON. We are largely commenting after the fact.
Mrs. CLAYTON. No collaboration in the rules before they were published? RPTS THOMAS
DCMN MAGMER
Ms. HUMISTON. We did have employees of both Forest Service and NRCS as advisors during the FACA process. But again, as you know, Federal employees are in an advisory role there and did provide information.
We also had representatives on an EPA work group revising guidelines specific to poultry and pork operations. We did provide comments on the guidance manual for developing MPDES permits before it was published in the Federal Register, and we have worked with some of the economists on some of the costs potentially of this.
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But, no, we actually did not review the rule in draft form before it was published in the Federal Register.
Mrs. CLAYTON. Mr. Fox, is that consistent with the collaborative, cooperative spirit that I heard?
Mr. FOX. That was not my understanding, and I will follow up on this.
Normally, through the interagency review process and OMB they send all proposed regulations out to all Federal agencies for an opportunity for them to comment on it, and there is an official process of all agencies to sign off on a rule before it gets proposed. It sounds like something may have happened here, and I will have to look into it.
Mrs. CLAYTON. Let me move to the animal feeding program. Ms. Humiston, this is to you. What is the cost of developing the comprehensive nutrient management plan under that?
Ms. HUMISTON. Just some specifics, and I do have folks here who can get into more detail if you like.
The total cost to develop CNMPs on animal feeding operation is going to vary widely on system, geographic location and size. The average estimated cost for putting together a CNMP ranges from $7,200 for a dry waste storage system to $11,700 for wet waste storage systems. The average installation cost, however, per facility is estimated to be approximately $54,000. But, of course, there will be a wide range there.
Considering the above cost, it is estimated that $20 billion of private Federal, State, local government funds will be needed to develop and implement CNMPs on what we anticipate to be almost 300,000 AFOs. And I could go on. We have that split down into further detail, but that is the general numbers.
Mrs. CLAYTON. Is there any—either of your budgets—any implications for assistance financially with installation of any of these—all this——
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Ms. HUMISTON. You mean, many appropriations processes here?
Mrs. CLAYTON. Right.
Ms. HUMISTON. Actually, we have a couple issues. One is that, using staffing levels from fiscal year 1999, that actually is a concern of ours, even though we have promised to be able to deliver these by 2009, almost 300,000 of these, with staffing levels from fiscal year 1999, it would take us about 30 years to actually do it.
Staffing levels in fiscal year 2000 are anticipated to be somewhat lower, which obviously causes the problem to be worse. We are still analyzing numbers from the conference report last week that was signed.
But the other issue, too, is going to be—well, one of the things we are trying to do to try to solve that problem is we are aggressively moving forward with certification processes and contractual agreements with third party vendors. But the reality is we have to make sure that, as we move into that arena, that the same quality standards of work are being conducted, and also we have to work with——
Mrs. CLAYTON. Who at the local level provides the technical assistance to the farmers?
Ms. HUMISTON. Predominantly in this arena for an CNMP it would be NRCS technical assistance out of the field office.
Mrs. CLAYTON. Is there any collaboration with the farm service agency at all?
Ms. HUMISTON. The farm service agency typically overseas the cost share portions of that. They are part of the local working group developing geographic priorities and then have say over allocation of cost share dollars.
Mrs. CLAYTON. This does not relate——
Ms. HUMISTON. I am sorry, I must mention, too, that also we worked very closely across the Nation at the local level with cooperative extension in delivering these, and also our ag research service and land grant universities help us with improvements to technology constantly. So it is very much a departmental effort.
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Mrs. CLAYTON. Is there collaboration between USDA and EPA in the certification when these installations or this plan is put in place? Who says it meets the standard, USDA or EPA? Or is it a joint standard?
Ms. HUMISTON. What USDA is requiring currently—and we are getting our final rules out—actually, policy not rules—will be that people designing these comprehensive nutrient management plans will have to go through a rigorous certification process. And that includes our own employees. They will have to go through this certification process and clearly demonstrate ability to do this.
One issue we have I believe recently resolved is that any EPA employees who conduct oversight will also have to go through this certification process.
Mr. FOX. I would like to just say that EPA's interest in this is really limited to those very large animal feeding operations as well as those that are causing water quality impairments. The vast majority, 90—roughly 90 percent or more of the animal feeding operations will be dealt with through voluntary programs of the Department of Agriculture and the State Departments of Agriculture.
Mrs. CLAYTON. What triggers the larger one?
Mr. FOX. The Clean Water Act requires that anything that meets the definition of what is called a CAFO, a concentrated animal feeding operation, needs to have a permit under the Clean Water Act.
Mrs. CLAYTON. And that is number in your case and pounds in the——
Mr. FOX. Right. That is 1,000 animal units under our regulatory definitions from the 1970's.
Mrs. CLAYTON. We have a lot of them in North Carolina.
Ms. HUMISTON. I must point out also one other issue we did raise in our comments, and we will work out a solution as we go forward with this, there is some language in the rule that we have concern with that might cause farmers who have implemented conservation practices such as grassed waterways, terracing, et cetera, the potential to that is someone could decide to declare those a man-made conveyance which could—and you know how legal debates get; we are just trying to keep everything working here well in the middle—could have the possibility of throwing a significant portion of those AFOs into a CAFO designation, and that is something we will work through as we perfect the language of the rule.
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Mrs. CLAYTON. Mr. Chairman, let me ask one other question. Mr. Fox, do you know if EPA has any plans to assist in the situation in North Carolina as it relates to the pollution that is caused by the hurricane? Is there an assessment and emergency plan to see how—the implication of all the dead animals and the pollutants in the water?
Mr. FOX. I was down there about 3 weeks ago with James Lee Witt and Administrator Browner, and we have a very active and extensive role in some of the clean-up operations. As you well know, there are still literally thousands of communities and people that don't have safe drinking water. This has been one of our top priorities, to assess the potential contamination of some of the wells. Some of the animal carcasses that you refer to is a particular problem.
We have been working very effectively with the State. The State generally has lead on that part of the problem. We have a number of staff that are still down there trying to help provide technical assistance. We have also worked in some cases to see what financial assistance would be available to the State.
Mrs. CLAYTON. They were working with the State veterinarian in moving the carcass. What is the result of that?
Mr. FOX. My understanding, and this is now a couple of weeks old, was that they had come up with some effective mechanisms to deal with some of these carcasses, largely revolving around open burning in select locations. This seemed to be the best way to deal with potential public health threats and disease factors. Each worked with the State to assure that all the permits were expedited for that so it could go forward as soon as it needed to be.
Mrs. CLAYTON. I would appreciate if you could give me a report on that. I don't know if anybody else is interested in that. I certainly would be glad to share it with the committee it you are, but I need it for my benefit.
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Mr. GOODLATTE. If you would submit it to the committee, we would welcome it and share it with all the members.
I thank the gentlewoman.
Before I forget, if there is no objection, I would like to submit for the record letters from the National Association of State Departments of Agriculture and the National Council of Farmer Cooperatives, both expressing their strong concerns about these proposed regulations.
[The information appears at the conclusion of the hearing.]
Mr. GOODLATTE. At this time, I would recognize the gentleman from Louisiana, Mr. Cooksey.
Mr. COOKSEY. Thank you, Mr. Chairman.
There is a statement in our packet from the American Society of Civil Engineers. Are any of you panelists or people at the table representatives of that group? Is there anyone in the audience that is part of the ASCE there an engineer in the room? This is an interesting statement to read, and I have some questions, and I will—anyone can volunteer to answer this.
The ASCE—I think we need a lot more engineers in Washington and fewer lawyers maybe even fewer doctors, and we have got too many people with degrees in general studies. But their position is that they oppose the regulation because it is a violation of the Clean Water Act. It is their position that the proposed TMDL rule would delay the TMDL process in violation of the CWA and it is related to the section 303(d) requirements. And this gets back to States not fulfilling their responsibility.
Everybody has been pretty tough on Mr. Fox. Is there anyone that would like to volunteer to answer this to give him a break?
Mr. FOX. Thank you.
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Mr. COOKSEY. You agree with that position or disagree with that position and could you elaborate on it?
Mr. BARRETT. In the first place, Congressman, there has been a wide gap or a breadth between how different States have chosen or not chosen to implement their 303 program. I believe that, from the tenor of that remark, it comes back to some earlier testimony of mine that I think Mr. Fox might have been classifying as rhetoric wherein we feel the agricultural and other communities feel that 303, the TMDL statute, was written solely from the standpoint of controlling point sources in a water-quality-based environment when the technology-based approaches didn't work.
To reenforce that point or to give you an example of why we think that, when this body passed the 1987 amendments to the Clean Water Act, they passed for the first time section 319 which was designed to allow—provide a vehicle for States to manage non-point sources. And I know it is a violation of probably witness etiquette to quote Senators, but when section 319 was passed, Senator after Senator—I can provide you names, provide this in testimony—stood up and said, one after another, that 319 represents a first step in controlling pollution from non-point sources, a new section 319 establishes a program to begin the process of addressing this hitherto unregulated source of water degradation.
Here is Senator Simpson from Wyoming: For the first time we have included a provision in the Clean Water Act related to non-point source pollution that comes from farmlands, timber operations and other sources of runoff which are not considered point sources. This is 14 years after 303 was enacted, which the agency is now claiming gives them a hook at non-point sources. That is why we feel that the agency is pursuing an unlawful course here.
Mr. COOKSEY. So this really is the key point in the entire discussion today then.
Mr. BARRETT. Absolutely.
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Mr. FOX. If I could just say this, there has been a lot of questions here today about whether we have the legal authority to do this or not. And if the chairman would like, I would be happy to provide in writing for the committee every single point you would like to raise and challenge our legality on that, and I would get that back to you very fast.
Obviously, this is a committee of law. There are different interpretations on it. But I feel very strongly that we have a very solid foundation for each and every provision in our regulation, and in no way do I believe it is fair to characterize us as going outside the intent of Congress.
Mr. COOKSEY. I think that would be a worthwhile response on your part. And you did make a breach of etiquette by quoting Senators.
Mr. GOODLATTE. If the gentleman would yield, if Mr. Fox would submit that to the committee, we would share that with the members as well.
Mr. FOX. It would be most easy if you could submit—I have heard some of the allegations here that I could do, but if the committee would like some specific points for me to address, I would be happy to do that as well.
Mr. COOKSEY. I was about to say probably the only group that is felt to deserve the abuse they receive even more so than the EPA is the Senate. But anyway—particularly this time of year.
Well, I can't help feel that a lot of the delays in this whole process that are—you know, I feel like all of you are well-intentioned people that are trying to do the right thing. We are trying to do the right thing, too. A lot of the delays are indeed due to the lawyers and the litigation.
And I am still not adjusted to this environment up here where there is too much acrimony and there is not enough cooperative and collaborative effort to achieve the goals that need to be achieved for the public.
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And I certainly want to have clean water. I will give you an example. When I was in medical school, this was in the 1960's, we were aware of a study that showed—it was a very simple study. All it did was start at the top of Mississippi River, at the headwaters of the Mississippi River, and check the incidence of bladder cancer all the way down the river. And guess what? It increased every mile it went down the river. And it was due to the carcinogens.
And I hate to turn back to carcinogens, but as a physician that is a concern almost more so than the pathogens that you get from the animal waste. And they are both equally important. But it is because there were so many petroleum products dumped into the river. By the time you got down to Louisiana, to the mouth of the Mississippi, you have really got some bad water. And we were drinking, you know, bottled water back then, or I did after I got out of the military and was back in New Orleans. And it is a real concern.
So I understand why the Clean Water Act is important. And, Mr. Fox, I have got to say that you have handled all the questions pretty well; and we do support what your agency is doing. But there is the feeling out there that, at times, your agency overreaches and you have too many lawyers and not enough engineers in the agency. And it is just—it slows down the process. But, of course, that is the problem with this city.
And I will now defer back to the chairman of the subcommittee, who is of that other profession I just abused.
Mr. GOODLATTE. The gentleman from Virginia, Mr. Goode.
Mr. GOODE. To go back to Virginia, and, Mr. Fox, I noticed in your testimony you said that over 20,000 water bodies across the country are identified as not meeting water quality standards. Does the Chesapeake Bay currently meet water quality standards?
Mr. FOX. No.
Mr. GOODE. The Roanoke River dumps into Albemarle Sound in North Carolina, is that not true?
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Mr. FOX. Yes.
Mr. GOODE. Does that body meet water quality standards?
Mr. FOX. Looking at the maps of North Carolina and Virginia before me, again without any names, it seems there are some headwaters of the Roanoke River that are not meeting water quality standards for pathogens which would be typical of failing septic systems or inadequate sewage treatment of some kind.
Mr. GOODE. How far away from the headwaters of the Roanoke River would you have to be to be an impaired body and then come under all your rules and regulations?
Mr. FOX. It is tough to tell with this map. I can tell you——
Mr. GOODE. Mileage-wise, just ballpark.
Mr. FOX. Again, I hate to ballpark this stuff without the map.
Mr. GOODE. Let me ask you this, then. Most of Virginia is in the Chesapeake Bay watershed. Certainly a large chunk of the chairman's district and a part of my district is. Would everything within the watershed be covered?
Mr. FOX. Absolutely not. The way this works, the reason the Chesapeake Bay has been designated as not meeting water quality standards is because they have a dissolved oxygen problem that—basically, in the summertime, large stretches of the main stem of the Chesapeake don't have oxygen for fish or oysters or crabs to survive. This is largely a result of nutrient pollution from point sources and non-point sources alike. And so that is the reason why the Bay is classified as non-attainment.
As a practical matter, achieving the goals in the Chesapeake Bay is going to take many, many years, and we have recognized that, and we have been trying to work productively with Virginia municipalities, the State of Virginia, State of Maryland to come up with a plan that puts the TMDL development for the Chesapeake Bay out a number of years so that we can figure out what is the effect of our actions in the interim.
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So nobody is going to be requiring a TMDL for the main stem of the Bay for many years now. As we work on focusing on some of these smaller segments, then we can figure out how much more is needed to be done for the long term. Usually, these TMDLs are done on a schedule that takes up to 15 years. We acknowledge that there are a lot of challenges here, but we are also are realistic I think in saying that this isn't going to happen overnight.
Mr. GOODE. In North Carolina, from looking at your map, the Roanoke River that dumps into the Abermarle Sound, which portions of that are impaired, just looking at it?
Mr. FOX. Just looking at the map, when it gets over the State line it seems to be impaired. Some of this is because States do have different standards, and that might be some of the factors. The reason for impairment on the other one—when I get into North Carolina, it just says ''other'', so I don't know. I can't tell from this map. But we can certainly get you that information.
Mr. GOODE. Let me ask you this. Just take the Roanoke River as an example. If it was impaired south of the line, say near Roanoke Rapids, which is in Mrs. Clayton's district, how far back up river would you be imposing the TMDL standards?
Mrs. CLAYTON. He is getting personal now.
Mr. FOX. It is a very practical question, and it is a very difficult one to answer, and, hopefully, the answer is mostly a scientifically driven one. At least that is our intent for how we are going to do it.
We face at the mouth of the Mississippi River in Louisiana a dead zone that is about the size of the State of New Jersey, and that is a result of pollution coming from the entire Mississippi River basin. We are not going to be able to develop a TMDL for the Mississippi River that is effective any time soon. But we, hopefully, can look at some of these impairments like the Roanoke River and make some good scientific judgments about what is necessary to do upstream to achieve these water quality standards.
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Mr. GOODE. You know the gentlelady from North Carolina said you are getting personal. Well, if you keep just coming back upstream far enough you are getting real personal. Your TMDL is going to affect everything upstream, and that means everything in my district.
I don't see how you can say, well, we are going to chop it off down at South Boston, which is 25 miles up the river, or you are going to run on up the river to Roanoke, the chairman's district. That is probably about 150 miles up the river. You just said some of that river looked impaired there. Really all of Virginia, just about, except maybe a part of the ninth district, is going to be under the iron thumb of the EPA.
Mr. GOODLATTE. Would the gentleman yield?
As I understand these regulations, if you have an operation and you want to increase production on that operation you have to find offsets at a 1.5 to 1 ratio. It is going to absolutely destroy economic growth in areas.
I thank you.
The gentleman from Oregon.
Mr. WALDEN. Thank you, Mr. Chairman.
I have some letters here from some folks in my State and district. I would like to end up having them inserted in the record, if there is no objection.
Mr. GOODLATTE. Without objection, they will be a part of the record.
[The information appears at the conclusion of the hearing.]
Mr. WALDEN. Let me go back to you, Mr. Fox. You seem to be the magnet for questions today. Imagine that.
I want to just read for you a statement here and see if you challenge this or not. It is this: If Federal permits are required prior to conducting forest management activities, citizens will be able to challenge private land activities in Federal court through the issuance of these permits. Is that accurate?
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Mr. FOX. I don't believe that this is a likely outcome. If you will bear with me for a second, I will explain why. The way we have structured this forestry provision, it is based on discretionary authority that EPA has under the stormwater provisions to require permits when there is a big pollution problem. And it would be this discretionary authority that we would be using to say in some isolated cases that a permit is required or not. If a citizen wanted to challenge that, the citizen would have to say that EPA abused its discretionary authority and should have issued a permit, and generally the test in courts is going to be an arbitrary and capricious standard that the agency did not, in fact, issue that permit in accordance with basic scientific principles.
Mr. WALDEN. But couldn't someone—if you issued a permit for silviculture activity, could not another citizen challenge in Federal court the issuance of that permit?
Mr. FOX. If the person was not complying with the terms and conditions of that permit, yes, that person could be subject. In fact, though, permits act as a shield if the person is complying with the permit, which is one of the advantages that a number of large livestock operations have actually understood, that once they have a permit and they are complying with that permit, that shields them from any citizen action or any other complaints.
Mr. WALDEN. So you are telling me if you issue a permit to somebody doing forestry on their own land that there is no way anybody can challenge them?
Mr. FOX. Only if they are violating the terms of that permit and then would be subject first to State enforcement action. If the State fails to, then the Feds could and citizens ultimately could, and that is the basic structure of the Clean Water Act. It is a citizen suit enforcement provision in cases of violations.
Mr. WALDEN. So they can't challenge your agency for issuing that permit in violation of your own rules? Perhaps you didn't do the appropriate analysis?
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Mr. FOX. There have been rare cases where we get challenged that a permit we issue isn't sufficiently protective. Again, that typically ends up falling into weight of evidence, and the courts historically have deferred to the agency in their professional judgment on that.
Mr. WALDEN. See, that is a certainly different experience than what we witnessed in the Northwest——
Mr. FOX. Oh, absolutely.
Mr. WALDEN [CONTINUING]. Under the Bureau of Land Management and under the U.S. Forest Service. So perhaps you can understand why there is such concern out there about yet another agency coming in with another permitting process when this administration has failed miserably to sort out the problems with the Northwest forest plan that was supposed to end all this litigation, allow for harvest to occur on the remaining 20 percent of the lands after the 80 percent have been taken away under the agreements. And now all that is tied up in the Federal court system, and we are no better than we were prior to the Northwest forest plan.
So when I see another Federal agency marching forward with another set of rules now we are going to apply to private lands for this same sort of activity, I am sorry, I see something different, which is another way to shut down forestry in my State.
Mr. FOX. I would be happy to provide more of this information to you for the record, but, frankly, our program runs very differently, and I don't see that scenario happening. But you can make your own judgment based on that.
Mr. WALDEN. And I shall. Thank you.
Mr. GOODLATTE. I thank the gentleman.
This will conclude our hearing.
I want to say, Mr. Fox, I appreciate very much your perseverance. However, I think I definitely speak for myself and I suspect I speak for most of the other members, if not all the other members, that we are not convinced of either your authority to proceed in the fashion that these proposed regulations follow nor are we convinced of the wisdom of them. And we will continue to monitor this situation and hope for a changed approach on the part of your agency.
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I thank all the members of the panel for your participation.
The Chair would seek unanimous consent to allow the record of today's hearing to remain open for 10 days to receive additional material and supplemental written responses to any question posed by the members of the panel. Without objection, it is so ordered.
And this hearing of the Department Operations, Oversight, Nutrition and Forestry Subcommittee is adjourned.
[Whereupon, at 12:20 p.m., the subcommittee was adjourned, subject to the call of the Chair.]
[Material submitted for inclusion in the record follows:]
TESTIMONY OF ARTHUR R. NASH, JR.
Good morning. I am Arthur R. Nash Jr., deputy director of the Michigan Department of Environmental Quality. The Department of Environmental Quality is responsible for Michigan's air, surface water, groundwater, wetlands, waste management, and environmental cleanup programs.
I would like to thank the Subcommittee on Department Operations, Oversight, Nutrition, and Forestry for providing me the opportunity today to address some concerns regarding the final U.S. Department of Agriculture/U.S. Environmental Protection Agency (USEPA) Unified Strategy for Animal Feeding Operations (strategy) that was released on March 9, 1999.
Michigan supports the concept of minimizing water quality and public health impacts, ensuring the long-term sustainability of animal agriculture, building on the strength of existing programs, and focusing technical and financial assistance to support animal feeding operations as outlined in the guiding principle of the strategy. Although the strategy suggests that the emphasis will be on voluntary efforts to achieve these goals, Michigan has specific concerns with the final strategy. These concerns include the strategy's lack of flexibility to implement functionally equivalent measures that result in environmental protection and the fact that the strategy places too much emphasis on a 'command and control' regulatory approach. The strategy is very prescriptive and permit oriented and thus does not lead to the establishment of a Federal and state partnership that is necessary for successful implementation. The strategy will divert limited staff resources from higher priority programs. The strategy also does not clearly define the environmental benefits and outcomes it is designed to achieve.
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STATE FLEXIBILITY AND FUNCTIONALLY EQUIVALENT PROGRAMS
The strategy does not provide for the flexibility to recognize functionally equivalent state programs that meet environmental goals and standards. The strategy only recognizes functional equivalency ''where a State can demonstrate that its program meets the requirements of an NPDES [National Pollutant Discharge Elimination System] program.'' This is a process, not an environmental goal. The establishment of a national performance standard is the best way for the USDA and the USEPA to promote and measure environmental protection.
Michigan believes that all states must have the flexibility to implement their own functionally equivalent state strategies based on measures of environmental performance, not the mandated Federal process. Michigan supports the establishment of a national performance standard to promote and measure environmental protection. The 25-year, 24-hour storm exemption is a well-recognized national standard and design criteria that provides a realistic and environmentally protective performance standard.
Included with my testimony today is an attachment (attachment 1) that outlines what Michigan believes should be the components to determine a functionally equivalent state program. Basing a program on these components would provide more meaningful environmental protection than prescribing a permit process.
ENVIRONMENTAL BENEFITS AND OUTCOMES
Michigan and other states do not believe that the appropriate regulation and oversight of animal feeding operations should require such a monumental reprioritization of our water quality programs. Michigan is very concerned that the permit effort will be much greater than envisioned by the USEPA and would require significant resources to implement. Based on the USEPA estimates, implementing the strategy could require an additional 1,000 permits in Michigan alone, which would almost double the number of individual permits issued in our state. We are not certain that the additional effort for permitting will provide any greater reduction in pollutant loading than would occur in the highly utilized voluntary program that we are developing. Given the practical fiscal constraints our programs face and a lack of any new Federal resources for these purposes, Michigan has genuine concerns about the overall impact on its water quality programs. If the states are forced to permit these animal feeding operations, the resulting shift of resources from other higher priority areas could create an actual degradation in water quality.
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The strategy attempts to use the Federal Clean Water Act to address non-environmental issues associated with animal feeding operations. We do not believe it is appropriate to use an environmental permit process in this manner.
On August 6, 1999, the USEPA released the draft ''Guidance Manual and Example NPDES Permit for Concentrated Animal Feeding Operation'' (Guidance). This Guidance is based on the same premise as the strategy that the current Federal regulations require NPDES permits for all animal feeding operations with greater than 1,000 animal units and that the current Federal regulations are going to be changed to unambiguously require permits. Michigan is very concerned about the USEPA continuing to insist upon following a strategy that we do not view as being enforceable and is, in fact, contrary to the existing regulations. Because of Michigan's reluctance to follow the strategy's prescriptive permitting process, the USEPA region 5 has verbally threatened to withhold Federal Clean Water Act section 106 funding from Michigan.
Michigan is also very concerned about the difficulty the USDA and the USEPA have reaching consensus. One single example is that the USDA and the USEPA use different standards to determine animal units. The USDA uses weight and the USEPA uses numbers of animals. If farmers want to apply to the USEPA and the USDA for assistance on the same project, they must use completely different ways for counting animals. This issue has been debated since the strategy was first proposed and still no resolution has been reached.
More significantly, the USDA and the USEPA have struggled for months over the development of guidance for Comprehensive Nutrient Management Plans. The final strategy indicated that the Guidance would be available by September 1999. The Guidance still is not available. We understand it may be published in the Federal Register in November 1999 for comment and not finalized until spring— 2000. This was indicated in the strategy as one of the most critical elements, yet it is months behind schedule. For credibility in the farm community, the USDA and the USEPA must resolve issues in a timely manner.
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Included with this testimony (attachment 2) is the comment letter on the draft strategy signed by all USEPA region 5 Environmental and Agriculture Directors. A majority of the concerns expressed in this letter have not been resolved in the final strategy.
Thank you again for the opportunity to provide this testimony. The strategy must allow the states flexibility to implement functionally equivalent programs that meet stated environmental goals, and focus on the implementation of strong voluntary programs, not processes. The USDA and the USEPA must also complete the tasks outlined in the strategy in a timely manner. Michigan has a strong partnership with agriculture, and is proceeding with an environmentally sound approach to deal with animal feeding operations of all sizes. Please do not hesitate to call on us if we can assist the committee in any way as it proceeds. At this time, I would like to answer any questions you may have.
Testimony of J. Charles Fox
Good morning Mr. Chairman and members of the Subcommittee. I am Chuck Fox, Assistant Administrator for Water at the U.S. Environmental Protection Agency (EPA). I am pleased to be able to talk with you this morning about the Nation's clean water program.
This month marks the 27th anniversary of the enactment of the Clean Water Act (CWA). Twenty-seven years ago, the Potomac River was too dirty to swim in, Lake Erie was dying, and the Cuyahoga River was so polluted it burst into flames. Many rivers and beaches were little more than open sewers.
Enactment of the CWA dramatically improved the health of rivers, lakes and coastal waters. It stopped billions of pounds of pollution from fouling the water and doubled the number of waterways safe for fishing and swimming. Today, many rivers, lakes, and coasts are thriving centers of healthy communities.
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In my testimony today, I want to describe the work EPA is doing to carry the clean water program forward into the next century, giving special attention to our efforts to restore impaired waters and to reduce pollution from factory farms.
I. Clean Water For the Future—the Clean Water Action Plan
Despite tremendous progress in reducing water pollution, almost 40 percent of the Nation's waters assessed by States still do not meet water quality goals. Pollution from factories and sewage treatment plants, soil erosion, and wetland losses have been dramatically reduced. But runoff from city streets, rural areas, and other sources continues to degrade the environment and puts drinking water at risk. Fish in many waters still contain dangerous levels of mercury, polychlorinated biphenyls (PCBs), and other toxic contaminants. Beach closings are increasingly common.
Several years ago, after taking a hard look at the serious water pollution problems around the country, the Administration concluded that implementation of the existing programs was not stopping serious new water pollution threats to public health, living resources, and the Nation's waters, particularly from polluted runoff. We concluded that clean water programs lacked the strength, resources, and framework to finish the job of restoring rivers, lakes, and coastal areas.
In response to this concern, President Clinton and Vice President Gore announced, in February of 1998, a major new effort to speed the restoration of the Nation's waterways. The Clean Water Action Plan builds on the solid foundation of the Clean Water Act and describes over 100 actions—based on existing statutory authority—to strengthen efforts to restore and protect water resources.
The Action Plan is built around four key tools to achieve clean water goals.
A Watershed Approach. The Action Plan envisions an improved collaborative effort by Federal, State, Tribal, and local governments, the public, and the private sector to restore and sustain the health of the over 2,000 watersheds in the country. The watershed approach provides a framework for water quality management and is a key to setting priorities and taking action to clean up rivers, lakes, and coastal waters.
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Strong Federal and State Standards. The Action Plan describes how Federal, State, and Tribal agencies may revise standards where needed and make programs more effective. Strong standards are key to protecting public health, preventing polluted runoff, and ensuring accountability.
Natural Resource Stewardship. Most of the land in the Nation's watersheds is crop land, pasture, rangeland, or forests, and most of the water that ends up in rivers, lakes, and coastal waters falls on these lands first. Clean water depends on the conservation and stewardship of these natural resources. This Action Plan calls on Federal natural resource agencies to support State and local watershed restoration and protection.
Informed Citizens and Officials. Clear, accurate, and timely information is the foundation of a sound water quality program. Informed citizens and officials make better decisions about their watersheds. The Action Plan calls on Federal agencies to improve the information available to the public, governments, and others about the health of their watersheds and the safety of their beaches, drinking water, and fish.
We are making good progress in implementing the over 100 specific actions described in the Clean Water Action Plan. Congress has provided vital support to this work by appropriating critical funding, including almost doubling State grants for reducing polluted runoff.
A key accomplishment under the Action Plan is completion of State assessments of watershed health and initiation of several hundred Watershed Restoration Action Strategies to restore impaired waters on a watershed basis.
Other accomplishments include a new BEACH action plan, a response plan for pollution threats to coastal waters, new efforts to support establishment of riparian buffers, and a contaminated sediment strategy. Many other critical projects are underway at EPA, the Department of Agriculture, the Department of Interior, the Army Corps of Engineers, the National Oceanic and Atmospheric Administration, and other agencies, as well as in States, local governments, and the private sector.
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The Clean Water Action Plan is a sound blueprint that takes clean water programs into the next century. I ask, Mr. Chairman, that a copy of the first annual report of progress in implementing the Clean Water Action Plan be included as part of my testimony in the hearing record.
II. RESTORING AMERICA'S POLLUTED WATERS
The clean water programs that EPA and the States implement—ranging from financing assistance for sewage treatment facilities, to permits for dischargers, to technical assistance to reduce polluted runoff—are all intended to reduce water pollution. For many years after passage of the 1972 CWA, pollution problems were so common that any reduction in pollutants made a contribution to improving the health of waters. Today, however, some of the most obvious water pollution problems have been addressed. To restore the health of those waters that remain polluted, we need to complement existing programs with a more focused effort to identify specific polluted waters and define the specific measures needed to restore them to health.
The authors of the CWA envisioned a time when this more focused approach to restoring the remaining polluted waters would be needed and they created the ''Total Maximum Daily Load'' provisions of section 303(d) of the Act.
In my testimony today, I want to discuss the TMDL program, the story that it tells about the health of our waters, and regulatory revisions that EPA is proposing to strengthen the TMDL program.
TMDL PROGRAM BACKGROUND
The TMDL program authorized in section 303 of the CWA is really two programs.
The first part of the TMDL program is the identification of polluted waters. States develop lists of polluted waterbodies—waters that do not attain State water quality standards—every two years. States consult with the public in developing lists, rank waters on their lists based on the severity of the pollution, and set schedules for the development of TMDLs for each water body over an 8 –13 year period.
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The second part of the program is the development of the actual ''TMDL.'' A TMDL is, in effect, a State's plan to restore the health of the polluted water. It includes a quantitative assessment of water quality problems and the pollutant sources that contribute to these problems. The TMDL specifies the amount of a pollutant that needs to be reduced so that the waterbody will achieve State water quality standards, allocates reductions in the pollutant or pollutants among the sources in a watershed, and provides a guide to taking on-the-ground actions needed to restore a waterbody. TMDLs can focus on a small segment of a waterbody or on a group of waters in a larger watershed.
Where many polluted waters are clustered together in a watershed, many States have chosen to develop a more comprehensive approach to the problem—a Watershed Restoration Action Strategy as described in the Clean Water Action Plan.
States develop both the lists of polluted waters and specific TMDLs, both of which must be approved or disapproved by EPA. If EPA disapproves a State list or TMDL, EPA is required to establish the list or TMDL for the State.
Program Status. The TMDL program was designed to provide a safety net, catching water bodies that were not protected or restored by the implementation of the range of general pollution control programs authorized in the Clean Water Act. Until the early 1990's, EPA and States gave top priority to implementing these general clean water programs and gave lower priority to the more focused restoration authorities of the TMDL program. As a result, relatively few TMDLs were developed and many State lists were limited to a few waters and were not submitted in a timely manner.
Several years ago, citizen organizations began bringing legal actions against EPA seeking the listing of waters and development of TMDLs. To date, eighteen of these cases have been resolved with agreement for State actions to identify impaired waters and establish TMDLs. Where States fail to act, EPA will step in and identify the impaired waters or establish the TMDLs.
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In 1996, EPA determined that there was a need for a comprehensive evaluation of the TMDL program. The Agency convened a committee under the Federal Advisory Committee Act (FACA) to make recommendations for improving program implementation, including needed changes to the TMDL regulations and guidance. The TMDL FACA committee was composed of 20 individuals with diverse backgrounds, including agriculture, forestry, environmental advocacy, industry, and State, local, and Tribal governments.
In July 1998, the committee submitted its final report to EPA containing more than 100 consensus recommendations, a subset of which would require regulatory changes. The TMDL FACA committee recommendations helped to guide the development of the proposed revisions to the TMDL, NPDES, and water quality standards regulations.
EPA has already taken a number of other significant steps to improve State progress in listing polluted waters and developing TMDLs. For example, in August 1997, EPA issued two policy memoranda providing guidance for State lists and requesting that States work to improve the pace of establishing TMDLs. In particular, EPA asked that States develop 8–13 year schedules for developing TMDLs for all listed waterbodies, beginning with the lists due April 1, 1998.
States have made progress developing polluted water lists. All States submitted their 1998 lists and EPA has taken action on all but two of these lists. Although EPA approved the majority of lists, in a few cases EPA disapproved the list for failure to include waters that were clearly polluted, and then EPA added these waters to the 1998 State lists.
In addition, the number of TMDLs developed by States and approved by EPA has been steadily increasing over the past several years. Between 1972, when Congress passed section 303(d) as part of the Clean Water Act, and 1998, States and EPA had established approximately 1000 TMDLs. Since 1998, States have established, and EPA has approved, over 250 TMDLs for a variety of pollutants, including sediments and nutrients which are predominately caused by polluted runoff. Across the country, over 2000 TMDLs are under development.
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WHAT DO THE 1998 POLLUTED WATERS LISTS TELL US?
The 1998 State polluted waters lists tell us that the overwhelming majority of Americans—218 million—live within 10 miles of a polluted waterbody. Over 20,000 waterbodies across the country are identified as not meeting water quality standards. These waterbodies include over 300,000 river and shore miles and 5 million lake acres. Direct pollution discharges from sewage treatment plants and factories are the sole cause in only about 10 percent of polluted waters. Approximately 43 percent are impaired by polluted runoff from sources including agricultural lands and highway construction. Another 47 percent are impaired by a combination of point source discharges and polluted runoff (see attachment I— Sources of Impairment by Category).
The size of impaired waterbodies range from short sections of headwater streams to long sections of major rivers like the Mississippi and Colorado.
The pollutants most frequently identified as causing water quality impairment include sediments, excess nutrients and harmful microorganisms. Metals, including toxics, are also a contributor.
Some of the impairments are the result of ongoing discharges while others stem from historic or ''legacy'' problems resulting from past activities.
On average, there are about two pollutants identified for each of the impaired waters. This means that as many as 40,000 TMDLs will need to be done, although watershed approaches can be used to address many of these individual segments for greater efficiency.
To better illustrate the story that the 1998 polluted waters lists tell, I have several maps and graphs, including a national map depicting the percent of impaired waters by watershed (see attachment (2), and a bar graph indicating the leading reasons that waters do not meet their clean water goals (see attachment 3).
PROPOSED REGULATORY REVISIONS
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The lessons we have learned from the litigation and the FACA process provide clear guidance on constructive changes to the TMDL program.
On August 23, EPA proposed revisions to the regulations which will significantly strengthen the Nation's ability to achieve clean water goals, to ensure that the public has more and better information about the health of waters, and to provide States, Territories, and authorized Tribes clearer direction for identifying and restoring impaired waters. In addition, EPA proposed changes to the CWA discharge permit program and the water quality standards program that complement the proposed TMDL regulation revisions.
I want to briefly describe several of the key changes we have proposed to the TMDL program. More information about the rule is available on EPA's web site at www.epa.gov/owow/tmdl.
''Schedules for TMDLs—The proposed rule calls for States to develop schedules for establishing TMDLs within a 15 year timeframe. By proposing this 15 year period, EPA is recognizing that many States need to develop many TMDLs and that it takes time to develop a useful and effective TMDL. In addition, the regulation does not set a time period for implementing the TMDL, thereby giving States discretion to develop appropriate schedules for implementation.
Priorities for TMDLS —The proposed regulations also give States considerable flexibility in setting priorities for the development of TMDLs over the 15 year period. The only priority setting requirement in the proposed rule is that States would have to assign a high priority to waterbodies designated as a public drinking water supply and where the pollutant causing an impairment causes a violation of the maximum contaminant level, and/or for pollutants causing an impairment or threat for species listed as endangered or threatened under the Endangered Species Act.
Implementation of TMDLs—Current regulations call for TMDLs to include an allocation of pollutant reductions among sources. EPA's current guidance asks that there be a ''reasonable assurance'' that the source will actually attain its pollution reduction allocation. Without such assurance, the TMDL may not result in attainment of the water quality standard and would not be approved by EPA.
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The proposed regulations more explicitly define ''reasonable assurance''. In effect, ''reasonable assurance'' would mean a high degree of confidence that allocations in the TMDL will be implemented. For point sources, reasonable assurance would mean that NPDES permits will be consistent with any applicable pollution reduction allocation contained in the TMDL.
For nonpoint sources, reasonable assurance would mean that nonpoint source controls are specific to the pollutant causing the impairment, implemented according to an expeditious schedule, and supported by reliable delivery mechanisms and adequate funding. Some examples include regulations or local ordinances, performance bonds, memoranda of understanding, contracts or similar agreements. Voluntary and incentive-based actions may also be acceptable measures of reasonable assurance.
The proposed regulations also call for development of an implementation plan as part of the TMDL. An implementation plan would provide a framework for organizing pollutant reduction allocations and reasonable assurances of implementation into a coordinated package. States would be able to develop implementation plans for groups of TMDLs on a watershed scale as long as the scale of the implementation plan is consistent with the geographic scale for which the TMDL is being established.
Permit Program Revisions—We are also proposing that EPA have the same authority that a State has when establishing a TMDL to designate certain sources, such as large Animal Feeding Operations and large fish farms, as point sources and require them to have CWA permits where such permits would be needed to assure implementation of measures called for in a TMDL. EPA would use this authority only where a State had not developed an approvable TMDL and where such action would be needed to assure implementation of the TMDL.
In addition, States and EPA would have new authority to require that certain silviculture sources obtain a permit where the source contributes to the water quality impairment and a permit is needed to assure implementation of the TMDL.
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The new regulations would also provide EPA the authority to object to, and ultimately reissue, expired permits for discharges to impaired waterbodies in NPDES-authorized states where (1) reissuance is necessary to ensure reasonable further progress towards meeting water quality standards while a TMDL is being established, or (2) where it is necessary to ensure that a completed TMDL is adequately implemented.
Achieving Progress Before a TMDL is Established —The proposed regulations outline a new approach to achieving progress toward attainment of water quality standards in impaired waterbodies after listing and pending TMDL establishment. A large new or significantly expanding discharger to a polluted water would be required to obtain an offset of 1 1/2 times their proposed new or expanded discharge. The permit authority, however, would be able to reduce the amount of the offset under specified conditions.
EPA has extended the comment period on both proposed rules to January 20, 2000 and is actively seeking public comments and input from all interested parties. We are holding a series of public meetings around the country on this proposal to respond to questions and listen to alternatives. We are open to hearing any and all suggestions that will improve the proposal and help the Nation better achieve the goal of restoring polluted waters.
III. USDA-EPA STRATEGY FOR ANIMAL FEEDING OPERATIONS
The U.S. Department of Agriculture-EPA Unified National Strategy for Animal Feeding Operations (AFO Strategy), announced on March 9, 1999, outlines a flexible, common-sense approach to minimize the water quality and public health impacts of animal feeding operations (AFOs), while ensuring the long-term sustainability of livestock production in the United States. This unified, cooperative, USDA-EPA approach to AFOs was one of the many constructive agreements reached in development and implementation of the Clean Water Act Plan.
Farmers were among the first stewards of our Nation's natural resources and farmers consistently recognize the value of protecting water quality and the environment. By working with the farm community and others, I am confident that USDA and EPA can jointly implement this common sense approach to reducing the environmental and public health threats posed by large animal feeding operations.
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The strategy establishes a national performance expectation that all AFO owners and operators should develop and implement technically sound, economically feasible, and sitespecific comprehensive nutrient management plans (CNMPs) for properly managing the animal wastes produced at their facilities. The strategy reflects extensive public comment, including eleven public listening sessions around the country, and relies heavily on the stewardship ethic of producers.
While the vast majority of the estimated 450,000 AFOs nationwide are encouraged to develop CNMPs on a voluntary basis, between 15,000 to 20,000 large AFOs (generally those with 1,000 or more ''animal units'') will be required to implement CNMPs via the enforceable conditions of a CWA permit. EPA estimates that several thousand CAFOs now have CWA permits.
In my testimony today, I will concentrate on these large AFOs, called ''Concentrated Animal Feeding Operations'' or ''CAFOs''.
AFO Industry Trends. As a result of domestic and export market forces, technological changes, and industry adaptations, the past several decades have seen substantial changes in America's animal production industries.
These factors have promoted expansion of large ''factory farms'' with integration and concentration of some of the industries, geographic separation of animal production and feed production operations, and the concentration of large quantities of manure and wastewater on farms and in some watersheds. In terms of production, the total number of animal units in the U.S. increased by about 4.5 million (approximately three percent) between 1987 and 1992. During this same period, however, the number of AFOs decreased, indicating greater production from fewer, larger facilities and an overall consolidation within the industry.
Water Quality and Public Health Impacts of CAFOs. Despite significant progress in reducing water pollution, States report that up to 40 percent of the waters they assess do not meet water quality goals.
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While many diverse sources contribute to water pollution, States report that agriculture is the most widespread source of pollution in the Nation's surveyed rivers. In the 22 States that categorize impacts from specific types of agriculture, animal operations impact about 35,000 river miles of those miles assessed.
Large volumes of animal waste are produced in this country. More than five tons of animal manure are produced each year for every person in the United states, compared to about eighty pounds of solid human waste. The chickens on the Delmarva Peninsula generate 48 million pounds of nitrogen a year, as much as a city of about 500,000 people.
Concentrated animal feeding operations can pose a number of risks to water quality and public health, mainly because of the amount of animal manure and wastewater they generate. Manure and wastewater from these operations have the potential to contribute pollutants such as nutrients (e.g., nitrogen, phosphorus), sediment, pathogens, heavy metals, antibiotics, and ammonia to the environment.
Excess nutrients in water can result in or contribute to eutrophication, anoxia (i.e., low levels of dissolved oxygen), and, in combination with other circumstances, have been associated with outbreaks of microbes such as Pfiesteria piscicida and toxic algal blooms which may be harmful to human health. Nitrogen, in the form of nitrate, can contaminate drinking water supplies from ground water.
Pathogens, such as Cryptosporidium, have been linked to impairments in drinking water supplies and threats to human health. Pathogens in manure can create a food safety concern if manure is applied directly to crops at inappropriate times. In addition, pathogens are responsible for some shellfish bed closures.
AFOs can also cause catastrophic effects locally. In June 1995, animal waste contained in an eight-acre lagoon in North Carolina which did not meet acceptable standards, nor was maintained properly, burst through its dike, spilling some 22 million gallons of waste into the Neuse River. The spill was twice the size of the Exxon Valdez oil spill and killed fish along a 19-mile area.
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Improving the Existing CWA Permit Program for CAFOs. The AFO strategy describes short- and long-term activities to implement and improve the existing CWA permit program using a two-phased approach to permitting CAFOs.
During a first round of permits (i.e. Round I) beginning in FY 2000, EPA and States will issue permits to CAFOs under the existing CWA regulations. During Round II, beginning in about 2005, EPA and States will reissue CWA permits to CAFOs based on revised ''effluent guidelines,'' as well as revised regulations for CWA permitting and any other new information (e.g., new nutrient water quality criteria and standards).
To assist States in developing CWA permits for Round I, EPA is developing a permit guidance and an example permit. The guidance provides information on:
which facilities need to apply for a CWA permit;
the key elements of a CWA permit for CAFOs;
the relationship between CWA permits and CNMPs;
the types of CWA permits that may be issued to CAFOs;
public notice requirements;
copermitting of corporate entities that exercise substantial operational control over CAFOs;
land application of manure and wastewater; and
monitoring and reporting requirements.
EPA is currently providing the draft guidance and example permit for public review during a comment period that ends on November 24th. EPA is committed to working closely with all interested parties to improve this guidance document.
EPA and authorized States will issue Statewide ''general permits'' to cover the majority of CAFOs in FY 2000. General permits allow a covered facility to submit a simple notice of intent to be covered and then to work with the permit agency to develop a CNMP or other appropriate conditions.
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Because of the concentration of CAFOs in specific parts of the country, EPA expects that not all States will have enough CAFOs to warrant development of a general permit and that States that do not issue general permits will issue individual permits as needed.
Individual CWA permits should generally be issued to exceptionally large CAFOs, new CAFOs, and CAFOs that meet other criteria described in the draft guidance.
New Regulations for CAFOs. EPA is currently in the process of reviewing and revising existing regulations related to CAFOs.
First, EPA will propose revisions to the ''effluent guidelines'' that describe the ''best technology'' available to control water pollution from large animal feeding operations. EPA has consulted USDA on the best available technology. The new regulations will be specifically tailored to the poultry, swine, and beef/dairy industries.
Just recently, EPA and USDA agreed on procedures for the use of selected summarized regional and national USDA data, including clear guidelines to assure the proper management of the data.
EPA is also revising CWA permit program regulations relating to CAFOs. These regulations include definitions of CAFOs and other permit program requirements that are specific to the CAFO industry.
Any new CWA CAFO permits issued after these revised regulations are promulgated will need to reflect the revised regulations. Permits issued under existing regulations will remain in effect for the five year permit term.
Conclusion
Thank you, Mr. Chairman and members of the Subcommittee for this opportunity to testify on EPA's work to restore the Nation's polluted waters and to work with USDA and the agricultural community to reduce the water quality impacts of large ''factory farms.''
I will be happy to answer any questions.
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Testimony Glenda L. Humiston
Mr. Chairman and members of the Subcommittee, thank you for your invitation to the U.S. Department of Agriculture (USDA) to present testimony and respond to your questions regarding recent proposed actions by the U. S. Environmental Protection Agency (EPA). I am Glenda Humiston, Deputy Under Secretary for Natural Resources and Environment. I am accompanied by several USDA representatives: Thomas Weber, Deputy Chief for Programs, and Thomas Christensen, Acting Director of the Animal Husbandry and Clean Water Programs Division, Natural Resources Conservation Service (NRCS); from the Forest Service, Warren Harper, Deputy Director for Watershed and Air Management; and Donald Bay, Administrator of the National Agricultural Statistics Service.
The EPA's proposed rules regarding Total Maximum Daily Loads (TMDL) and the National Pollution Discharge Elimination System (NPDES), along with the guidance manual for the permitting of concentrated animal feeding operations (CAFO), will address water quality issues. USDA has worked with EPA in the development of these rules and guidance, and expects to play an important role helping other units of government, tribes, and landowners comply with them. For example, the USDA's Natural Resources Conservation Service (NRCS) may provide technical expertise to state and tribal water quality agencies to assist local communities and watershed groups in:
their assessment of watershed conditions when determining impaired or threatened water bodies,
their development of watershed implementation plans, and
their evaluation and selection of best management practices (BMPs) to reduce nonpoint source pollution from agricultural lands.
NRCS may also provide individual landowners technical and financial assistance to help them comply with implementation plans to address TMDL requirements.
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To develop TMDLs on forest and range land ecosystems, USDA's Forest Service has prepared a policy and framework for assisting states, tribes, and EPA applicable to nonfederal forest and range lands, as well as, National Forest System lands. The framework is based on science, the use of prescribed land management practices (BMPs), and adaptive management.
I want to emphasize two key elements of the USDA's role in improving the nation's waters as Secretary Glickman expressed in his testimony in May, 1999, before the Senate Committee on Environment and Public Works. First, Secretary Glickman said voluntary approaches to solving problems are ''a key component of the strategy USDA has used since the Dust Bowl era of the 1930's, to assist farmers and ranchers in conserving our natural resources.'' Second, he stated that ''the Department's natural resource conservation and environmental activities will continue to involve the public through locally-led conservation, involving people at the local level'' to identify various programs and funding sources that would help them best meet natural resource conservation and environmental goals.
USDA supports and encourages the use of voluntary, incentive-based natural resource conservation programs; community-based, locally led conservation efforts; and collaborative partnerships. USDA manages National Forests to protect and improve water quality. For private forestlands, USDA provides assistance to protect and improve water quality through the States.
Based on decades of experience working with farmers and ranchers, forest and woodlot owners and managers, and rural, urban, and suburban landowners, USDA has found that a four-pronged approach that includes research, education, technical assistance, and financial assistance consistently results in environmental improvements. These four elements are appropriate to any strategy dealing with NPS pollution control, multiple use management, silvicultural operations, animal waste management, threatened and endangered species, wetland and riparian area protection, range management, soil erosion control, and other natural resource concerns.
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UDSA believes the voluntary, incentives-based approach can play an important role in solving one of today's most pressing environmental problems—the growing environmental concern associated with animal feeding operations (AFOs). In response to this issue, USDA and EPA jointly developed and released the Unified National Strategy for Animal Feeding Operations in March, 1999. This strategy has set a national performance expectation that all animal-feeding operations will develop and be implementing comprehensive nutrient management plans by 2009. Importantly, the strategy emphasizes the critical role that the voluntary, incentives-based approach must play in helping AFO owners and operators to prevent environmental problems associated with their operations. Specifically, USDA and EPA estimate that most AFO owners and operators will seek out assistance from USDA and other qualified sources to develop voluntarily their plans, and that only 5 percent of all AFOs should be addressed through the Clean Water Act Permit Program.
USDA believes the voluntary, incentives-based approach should continue to play the dominant role in helping AFO owners and operators to achieve environmental expectations. For those farms and ranches where this approach has been used, USDA has found it results in enduring environmental protection for the natural resources, is cost effective, maintains the trust of landowners in the confidentiality of information on their operations, and provides for flexibility in adjusting to local conditions and landowner needs.
An example of the voluntary, incentive-based approach worthy of mention is the California Dairy Quality Assurance Program—a partnership of 14 private and public entities, including the dairy industry, USDA, and EPA. This is a program where local dairy farmers go through a nine-day training session to learn how to assess and monitor their own water quality. The training is supported by USDA's Environmental Quality Incentives Program, and other non-USDA programs. These dairy farmers also develop management plans to implement best management practices (BMPs) based on site-specific natural resource conservation needs.
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Ultimately, the success of the voluntary, incentives-based approach will be determined in large part by the public and private commitment to the four-pronged approach I explained earlier—research, education, technical assistance, and financial assistance. With proper long-term support and commitment for this four-pronged, voluntary incentives-based approach USDA, can help ensure the success of enduring natural resource conservation.
Again, Mr. Chairman, thank you for this opportunity to appear before the subcommittee. On behalf of my colleagues with me today, we welcome the opportunity to discuss further the issues with you and respond to your questions.
Testimony of Ron Jones
Mr. Chairman, Members of the House Committee on Agriculture:
Thank you for the opportunity to address the issue of TMDLs and agricultural water quality issues.
I'm Ron Jones, director of the Texas Institute for Applied Environmental Research at Tarleton State University. The testimony I provide today is primarily based on our work with the dairy industry in the Bosque River watershed in North Central Texas and the water quality issues there. Our work in the Bosque River watershed is culminating in the development of a TMDL. Developing a TMDL in a nutrient-impaired watershed is a sobering and difficult exercise.
I want to narrow my testimony to TMDLs and the long-term implications for production agriculture. The TMDL process, although inherently sensible, is a reconciliation process parallel to having a hopelessly overdrawn bank account without the option of bankruptcy. If the agricultural community does not move proactively to engage the process and develop an appropriate program to address water quality problems, TMDLs will become an unpayable debt both for agriculture and the citizens downstream.
We are contemplating and even attempting to apply a 30-year old solution to municipal and industrial point sources to agricultural runoff issues. The NPDES program was never intended to address water quality problems that arise from runoff across hundreds of millions of acres of privately held agricultural lands. NPDES is a technology-based treat-and-discharge program designed for polluters with deep pockets. It has little to offer those who want to resolve agriculture runoff issues other than the capacity to regulate and enforce. Regulation and enforcement are necessary, but they are far from sufficient to resolve the next generation of environmental problems related to farms, fields, and feedlots.
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Agriculture must take steps to develop an appropriate alternative, otherwise EPA is put in the quixotic position, through TMDLs, of wielding the NPDES sword against an ocean of farmland. This regulation will not appropriately address the pollution problem farmers face, nor can farmers afford to implement NPDES solutions. Instead we need an approach tailored to the needs of agriculture and its unique water quality problems.
Long term solutions to water quality problems related to agriculture may look more like highway beautification and litter programs of the last 40 years than the NPDES program. In the fifties, the fine for littering in Texas was ten dollars, and it was not enforced. In 1964, the Highway Beautification Act, addressing billboards beautification, and litter passed. Federal monies were sent to states to launch local programs. Later, in our state, Willie Nelson sang ''Don't Mess with Texas,'' and we encouraged citizen and corporate groups to ''Adopt-A-Highway.'' We also have provisions for fines up to $1,000, and these fines are enforced.
This program has been immensely effective. Government is involved, but citizen involvement has made the difference. A new ethic evolved. My generation, who grew up throwing cans and trash out the car window, now has a conscience that goes off at the thought of littering. Our sons and daughters belong to the organization that just cleaned up that stretch of highway. Is it a perfect program? Of course not, but it has been a very successful program.
The success of the effort can be attributed to development of a smart and well-funded program, with several points of entry. It was designed to change behavior over the long term. There was a role for government, a role for the corporate world, and a role for the local community—all focused on producing change in the people using our nation's highways.
There are no easy fixes to the Clean Water Act to properly cope with agriculture. There are no one-line amendments and no compromises. It requires more than EPA ''getting tough with agriculture.'' We need new programs based on new ideas that are appropriate for the problem and the industry.
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Government action addressing agriculture water quality problems must combine complex science with law that encourages voluntary compliance with regulatory backup and maintains the economic viability of production agriculture.
The science is an order of magnitude more difficult than the point source science we use under NPDES. When algae blooms in a lake, how do you trace the surplus nutrients back through hundreds of miles of branching watershed?
What are the voluntary land use and management decisions we want to encourage? It is difficult to imagine how government can oversee thousands of producers making decisions for millions of acres, but what are the scientifically based actions we want to encourage and how do we encourage them?
When Dow Chemical produces agricultural chemicals in an environmentally sound manner, the cost of doing so is included in the price of the product. Municipal wastewater treatment plants charge the producers of the waste. The majority of agricultural producers are not price makers and cannot pass abatement costs forward in the price of commodities produced. Our research indicates small producers are more heavily affected by the cost of compliance than larger producers. Just as the nonpoint and point source science is not parallel, the economic factors are not the same between industry and agriculture.
The first round of TMDLs probably will not prove to be successful because of the enormity of the nonpoint source problems and the inadequacy of the law. While we wait for legislation that does work, Congress should put funding in place to:
Cope with infrastructure needs to support water quality monitoring programs
Develop the science and economics to support the second round of TMDLs
Look at new ways to finance these programs
Perhaps the best deal agriculture can strike in dealing with environmental problems is to develop programs that:
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Employ good science and economics
Are community-based
Provide for flexibility in resolving the problem
Maintain the competitiveness of the industry in a global economy
Start a new small business division in EPA
Keep direct government regulatory programs one step removed from privately held lands
Like the Highway Beautification Act, let's put the emphasis on voluntary programs that are backed up by enforcement and that produce results:
The country cannot afford the cost of programs that place government in the position of monitoring how land is used and managed
Agriculture cannot afford programs that place EPA regulators in the middle of farming activities
Statement of Rob Olszewski
Mr. Chairman, members of the committee, my name is Rob Olszewski and I am director of environmental affairs for the Timber Company, which represents the timberland assets of Georgia-Pacific Corporation. I appreciate the opportunity to present my testimony today on behalf of the American Forest & Paper Association on the Environmental Protection Agency's (EPA) August 23 proposed regulations to revise the Total Maximum Daily Load (TMDL) program under section 303(d) and modifications to the National Pollutant Discharge Elimination System (NPDES) permit program under section 402 of the Clean Water Act. Mr. Chairman, as you will hear, these proposed rules are such a radical departure from the existing Federal statute and case law and the economic and administrative burdens so enormous, that it requires this committee's full attention and concern for farmers, foresters and ranchers all over this country .
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AF&PA is the national trade association of the pulp, paper and forest products industry. We represent approximately 84 percent of paper production, 50 percent of wood production and 90 percent of industrial forestland in the United States. Nationwide, there are approximately 8 million non-industrial private landowners who own 59 percent or approximately 288 million acres of the total productive timberland. After the forest products industry, the farming community owns the largest fraction of private timberlands in the country. The Timber Company owns land throughout the country including Arkansas, Virginia, Florida, West Virginia, South Carolina, Georgia, Louisiana, Oregon, North Carolina, California and Mississippi.
As stated, AF&PA represents the manufacturers of the country's paper supply who also have serious concerns with the proposals. I will, however, confine my remarks to the forestry components of the rule and will explain how this will also have a dramatic effect on rural economies and jobs.
As we consider the proposed rules and attempt to decipher an extremely complex issue, the forestry community is struck by the heavy-handed Federal approach being imposed upon states and private industrial and non-industrial forest landowners throughout the country. Some important stakeholders in the issue including the National Association of State Foresters, the U.S. Forest Service; the Association of State and Interstate Water Pollution Control Administrators; and the agriculture and ranching community have serious concerns with the proposed rulemaking.
I want to focus on two issues contained in the August 23 proposals. The first issue deals with EPA's decision to abandon 27-years of statutory interpretation of the Clean Water Act and case law by eliminating the designation of forestry activities as a ''nonpoint source'' activity. The second describes how EPA selectively used a Federal Advisory Committee Act (FACA) group report, of which I was member, to impose indirect Federal oversight on activities conducted by millions of landowners throughout the country. Finally, I will address briefly the potential economic impact on rural communities from the proposed regulations.
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Let me first explain the background of the existing regulation defining these forestry activities as nonpoint sources. In the original Clean Water Act (CWA) regulations, EPA chose to exclude certain activities, including all silvicultural activities, from the NPDES program, without regard to whether they were point sources. When this was challenged by environmental groups, the Federal courts ruled against EPA and ordered the agency to identify those activities which are point sources. EPA responded with rules in 1976 that identified four discrete activities associated with forestry operations as point sources. They concluded that everything else associated with forestry is a nonpoint source. By way of explanation, EPA stated in the proposed rulemaking that ''the [Clean Water Act] and its legislative history make clear that it was the intent of Congress that most water pollution from silvicultural activities be considered nonpoint in nature'' and be addressed under section 208 of the statute. 41 Fed. Reg. 6233, 6234 (February 12, 1976).
EPA has proposed to eliminate the following activities from categorization as a nonpoint source: nursery operations; site preparation; reforestation; cultural treatment; thinning; prescribed burning; pest and fire control; harvesting operations; surface drainage and; road construction and maintenance. Instead, EPA proposes to redefine them as point sources. The proposed rule would give EPA or NPDES-authorized States the authority to designate silvicultural activities as point sources requiring NPDES permits. The designation would be triggered when the State or EPA determines that the silvicultural activity ''contributes to a violation of water quality standard or is a significant contributor of pollutants to waters of the United States.'' EPA states that it will only exert this authority in impaired waterbodies on a case-by-case basis where a state fails to develop a reasonable assurances program that BMPs can achieve load reductions in an impaired waterbody and the activities are not enforceable. In fact, EPA attempts to reassure the affected landowners by stating that it will only take 2 hours to prepare a notice of intent to file for a Federal permit. If the national forest system timber sales program is used as a guide, actually obtaining the Federal approval to conduct a harvesting operation is the real time question. Moreover, although EPA claims they will use this authority sparingly, this limitation does not apply to designations by states.
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EPA provides two reasons for its change of interpretation. First, that the 1987 CWA amendments did not categorically exempt silvicultural activities from the stormwater program similar to the agricultural exclusion provision. Therefore, they assert the authority to ''close the regulatory gap'' and label all silvicultural activities as point sources. Second, Congress never explicitly stated that silviculture was a nonpoint source.
We believe these farming and forestry activities are ''nonpoint'' sources and there is no legal or statutory authority for EPA to revise the regulations by eliminating the nationwide recognition of forestry as a nonpoint source activity merely to address some unidentified last resort situations on an individual basis. AF&PA believes that the 1972 Act and its 1977 and 1987 amendments clearly intended not to regulate water pollution from most silvicultural activities through the section 402 or 404 permit programs. In fact, the 1987 Amendments enacted the section 319 provisions to specifically address nonpoint source runoff, including silvicultural activities, through a state-based best management practices program. Further, EPA itself promulgated stormwater regulations in November 1990, three years after the 1987 Amendments were enacted. At that time, EPA declared that silvicultural point sources do not include the very same activities they claim today are point sources. In addition, an EPA Phase II stormwater report presented to Congress in 1995 did not identify silviculture activities as appropriate for regulation under the stormwater program. Similarly, EPA should not reverse its earlier positions in this proposed rulemaking, if they only took the time to review the forest water quality facts obtained from their own publications and contained in my statement.
Even more confounding, in 1977, Congress enacted the section 404 discharge of dredged and fill provisions which specifically exempted the identical silviculture activities from the requirement to obtain permits. In the legislative report language of the 1977 statute, Congress stated: ''construction of farm and forest roads is exempted from section 404 permits. The committee feels that permit issuances for such activities would delay and interfere with timely construction of access for cultivation and harvesting of crops and trees with no countervailing environmental benefit.'' In another passage of the same report, the committee states ''no permits are required'' for activities listed in section 208(b)(2)(F) through (I) ''for which there are approved best management practice programs.'' How can the same exact silviculture activities that are specifically exempt under one point source program be subject to section 402 permits under another program? Mr. Chairman and members of the committee, the American people always thought it was the responsibility of the Congress of the U.S. to reauthorize statutes and enact laws, not the executive branch of government.
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As clear and concise as the first issue is, this second issue is admittedly more complex because it deals with water quality jargon and acronyms that would make your head spin. I'll try to translate. States identify impaired waters (those waters not meeting water quality standards) and establish priority rankings and develop total maximum daily loads (TMDLs) under section 303(d) of the Clean Water Act. Heretofore, a TMDL has been a numeric calculation of the amount of pollutants a waterbody can receive from point source discharges, nonpoint source runoff, natural background; with a margin of safety. Setting aside the scientific difficulty of actually calculating a ''daily'' load from nonpoint source activities, the proposed rule requires states to submit an ''implementation plan'' under section 303(d). The plan would contain not only the numeric calculation but also eight required elements including control actions and measures that must be implemented before EPA would approve the TMDL. The big issue, and one that was unresolved in the FACA group report, is whether the implementation plan should be submitted for approval by EPA under section 303(d) or merely submitted under 303(e). We do not believe that section 303(d) provides EPA with the authority to require implementation plans, nor does it provide, as EPA contends in the proposal, that implementation plans can be approved, disapproved, or taken over by EPA. This is not a minor legal issue but one that has enormous consequence for private landowners.
For example, lets examine the situation where EPA rejects an implementation plan because the Agency does not believe the forest stream side zone (SMZ) management width requirement established by a multi-stakeholder state best management practices group is sufficient to protect water quality. The Agency, having given themselves the authority to take over the state program, is now free to re-write the implementation plan, change the state's SMZ requirement and then impose an NPDES permit requirement because the state allegedly does not have sufficient enforcement authority. This is not theoretical, but exactly the type of authority the Agency is proposing to grant to itself. Moreover, the Agency is exposing itself to countless citizen provisions if it does not exercise this authority to the satisfaction of environmental activists.
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According to EPA's August 1997 Memorandum published in the Federal Register, ''implementation of a TMDL depends on other programs and activities; a TMDL alone does not create any new or additional implementation authorities.'' The numeric TMDL itself must be approved by the EPA but no reading of the statute or its legislative history calls for the preparation and submission of an implementation plan under 303(d). We believe the continuing planning process described in the Clean Water Act's section 303(e) provision is the implementation phase for the 303(d) listed stream segments.
Finally, Mr. Chairman and members of the committee, these rules will impose serious constraints on economic growth and opportunity in our rural communities. Under these proposed regulations, manufacturing facilities interested in expanding production and growing their businesses will be required to seek out and obtain a 1.5 to 1.0 pollutant offset from some undefined entity and location in a watershed. This provision is drafted from ''whole cloth.'' Sticking to the same logic EPA used to classify all silvicultural activities as point sources because they were not specifically exempted, where in the Clean Water Act does it specifically give the Agency authority to demand offsets? For industrial facilities and wood lot owners, this proposal will cause significant administrative delays. It will discourage the practice of sustainable forest management, create disincentives to expand forest cover in the U.S., stifle economic opportunity and prosperity in communities desperate to be part of the economic revival in this country and make it more difficult for people to make a living off their land.
There is another way to address the issue of forestry and nonpoint source water quality issues. The following represents our Clean Water Action Plan. Back in 1994, members of AF&PA committed themselves to the Sustainable Forestry Initiative (SFI)K. The SFI program is a comprehensive system of principles, guidelines and performance measures that integrates the perpetual growing and harvesting of trees with the protection of wildlife, plants, soil, air and water quality. All AF&PA member companies are required to comply with the SFIK or their membership will be terminated, as has occurred for some. Among the water quality commitments that AF&PA members make in subscribing to the SFI is the agreement to:
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Meet or exceed all established Best Management Practices (BMPs);
Meet or exceed all applicable state water quality laws, regulations and the requirements of the Clean Water Act for forestland;
Establish and implement riparian protection measures for all perennial streams and lakes and involve a panel of experts at the state level to help identify goals and objectives for riparian protection;
Individually, or through cooperative efforts, provide funding for water quality research.
In 1997, AF&PA member companies began reporting on the number of acres and miles of streams that are enrolled in wildlife and fisheries agreements with conservation groups and public agencies that specify on-the-ground management practices. Almost 11 million acres, representing 20 percent of the total acres in the SFI program, and 4,286 miles of stream have been enrolled in these agreements.
This concludes my remarks, Mr. Chairman, and I would welcome any questions you or members of the committee may have.
FORESTRY FACTS
Silviculture is at or near the lowest ''leading source'' of pollution or impairment for rivers and streams shown in summary charts in each of EPA's section 305(b) reports from 1988 through 1994. In the 1996 report, EPA dropped silviculture from the chart as one of the seven leading sources of impairment to rivers and streams.
The total number of river and stream miles impaired due to silviculture declined 20 percent between 1994 and 1996.
The relative amount of total river and stream impairment due to silviculture dropped from 9 percent in 1988 to 7 percent in 1996.
The length of river and stream miles impaired from natural causes is about twice the length of impairment due to silviculture.
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The number of river and stream miles classed as ''major impairment'' due to silviculture dropped 83 percent between 1988 and 1996.
Silviculture is not included in the summary charts of leading sources of impairment to lakes, reservoirs, estuaries or ocean shoreline waters according to EPA's 305(b) reports.
None of the 305(b) reports list silviculture as a public health or aquatic life concern.
None of the 305(b) reports list silviculture as a cause of groundwater impairment.
Statement of Larry C. Smith
America's conservation districts fully support the Clean Water Act's goal to restore and maintain the quality of the nation's waters. Conservation districts recognize and accept their responsibility to work with agricultural producers and other private landowners and operators in stemming runoff that contributes to water quality problems.
The Environmental Protection Agency published its proposed Total Maximum Daily Load Program (TMDL) regulations in the Federal Register on August 23, 1999. The proposed revisions will have a direct impact on state water quality programs, conservation district programs and landowners nationwide. Addressing impaired waterbodies identified under section 303(d) of the Clean Water Act will be a driving factor in the day-to-day business of allocating workload resources and making land management that will have a direct economic impact on producers and other landowners.
We believe EPA has exceeded its statutory reach by proposing the listing of nonpoint source-only impaired and threatened waters. The history of the Clean Water Act reveals that Congress intended to treat point and nonpoint sources of pollution differently. It is clear from the structure and language in the Clean Water Act that section 303(d) was intended to provide a tool for calculating water quality-based effluent limitations for point source discharges. The language in section 303(d) contains no reference to nonpoint sources, nor to runoff, nor to section 319 C the portion of the Clean Water Act designed specifically to address nonpoint sources of pollution. Instead, section 303(d) refers repeatedly to ''effluent limitations'' and to the requirements of section 301, which is entitled ''Effluent Limitations.'' The way in which it is written—repeated references to section 301 and no reference to 319—demonstrates clearly that Congress intended section 303(d) to deal exclusively with point source discharges.
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By allowing EPA to list, develop TMDLs and require implementation plans for nonpoint source-impaired waters, the proposed regulations constitute a big leap in the direction of Federal land-use regulation. Conservation districts do not support Federal land-use regulations—particularly under the guise of TMDL regulation.
Under the TMDL program, compliance with section 303(d) is not achieved until water quality standards are attained. In the case of nonpoint sources of pollution, if, for example, agricultural best management practices fail to result in completely meeting water quality standards, would agriculture have to be eliminated in a watershed? Further, EPA proposes to regulate agricultural and silvicultural practices such harvesting, site preparation, thinning, prescribed burning, land application and more by requiring landowners to obtain discharge permits for these activities. Once again, this amounts to a foray into Federal land-use regulation. Such activities were exempted under prior regulations, as they are under the Clean Water Act's section 404 program, and should remain so under the TMDL program.
EPA's proposal also would require that, in addition to impaired waters, states list ''threatened'' waters. Again, section 303(d) does not provide authority for EPA to impose this mandate. It also directs that TMDLs must contain a reserve capacity for anticipated future loading, seasonal variation and margin of safety. It is not clear to us how this ''reserve capacity'' is to be calculated or what ''margin of safety'' means.
EPA proposes to require improving the water quality of an impaired stream to a standard more stringent than applicable drinking water maximum contaminant levels (MCLs) or aquatic habitat water quality criteria. We believe this is unreasonable and probably unattainable. MCLs for treated tap water are not appropriate for use on source waters under the TMDL program.
Overall, we are concerned that EPA is gravitating toward a regulatory program for nonpoint sources of pollution. Congress enacted Clean Water Act section 319 with the clear purpose of assisting states in developing nonpoint source pollution control programs. That program encourages states, with appropriate Federal financial assistance, to reduce nonpoint sources of pollution ''to the maximum extent practicable.'' While we agree that, in those instances in which a landowner refuses to address a proven water quality problem under a voluntary framework, a regulatory mechanism may be needed, it should be left up to states to determine the type and level of regulation they deem appropriate.
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We have made considerable progress in addressing nonpoint sources of pollution over the last decade. Most states have developed and are implementing—mostly through conservation districts—aggressive nonpoint programs. These efforts, with assistance from initiatives such as section 319 and NRCS's conservation technical assistance program, have done much to stem polluted runoff and progress is still being made. Over the years, farmers, ranchers and other landowners have made remarkable gains in protecting soil and water resources on the nation's private lands. America's conservation districts believe the nonpoint source pollution issues outlined in EPA's TMDL proposal are best addressed through the time-proven voluntary, incentive-based programs implemented by those with best interest in and knowledge of our land and water resources.
We appreciate the opportunity to present our views on this issue.
Statement of John Barrett
My name is John Barrett, I am a fifth generation cotton and grain farmer from Edroy, TX. I am a 1971 graduate of the United States Naval Academy with a degree in Naval Science and Oceanography. I served on the Environmental Protection Agency's (EPA) Federal advisory committee on Total Maximum Daily Loads (TMDL). I currently serve as the agricultural representative on the Texas Coastal Coordination Council and the Management Committee of the Gulf of Mexico Program. My comments today will address EPA's proposed rulemaking to revise the regulations implementing the TMDL program. I will briefly highlight several areas of interest and concern to agriculture.
The proposed regulations are contrary to congressional intent
EPA's proposed regulations are unlawful because they go well beyond the authority of the Clean Water Act (CWA). The proposed regulations empower EPA to regulate nonpoint sources of pollution through the TMDL program. Congress did not intend for EPA to possess such power. Congress made a conscious decision to treat point and nonpoint sources differently and separately in the CWA. Point sources are directly regulated by EPA through effluent limitations and a permitting system. By contrast, nonpoint sources are managed by the states through Federal grant programs that encourage states to develop nonpoint source management plans.
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The proposed regulations permit EPA to list nonpoint source-impaired waters; to develop TMDLs for nonpoint source-impaired waters; and to establish implementation plans for nonpoint source-impaired waters. In other words, the proposal provides for Federal land use regulation. EPA, without the benefit of law, will be telling farmers and ranchers how and when they can harvest their crops and use their land. Cities can regulate land use, some counties can regulate land use, states can do it within limits, but the Federal Government needs unambiguous statutory authority to regulate land use. By this I mean Congress passing a law, not the EPA administrator passing a regulation.
EPA has already begun this unlawful process of regulating land usage through TMDLs. For example, in northern California, EPA established a nonpoint source sediment TMDL for the Garcia River that regulates how farmers and timber harvesters can use their property. The TMDL has been enforced against nonpoint farmers and timber harvesters in the watershed, forcing them to restrict the amount of timber they can harvest and dictating how and when they can use their land. Congress did not provide or intend Federal nonpoint control that allows intervention into local land use issues.
The proposed regulations set unattainable standards
Congress elected to treat point and nonpoint sources distinctly for good cause. Congress realized that because of its diffuse and complicated nature, nonpoint source pollution did not lend itself to rigid point source-type controls. Rather, nonpoint source pollution had to be managed through flexible standards. Watershed managers and nonpoint source professionals are well aware of this problem. Farmers and ranchers can't control the rain! But nonpoint source TMDLs expect them to. All four components of the term-Total, Maximum, Daily and Load-imply a constant, engineered and controllable environment. Many environmental groups have long argued that a TMDL has to be just what it says it is-an enforceable DAILY load. For agriculture, this means that farmers are in jeopardy of breaking the law any time a significant rainfall event occurs. Such an outcome is preposterous. As Congress recognized in 1972, while nonpoint sources can be managed ''to the extent feasible,'' they cannot be expected to meet any quantifiable daily load limitations.
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The proposed regulations are impractical. In its zeal to redefine nonpoint source runoff as a ''discharge'' subject to 303(d), EPA is attempting to drive a square peg into a round hole. The Federal section 319 Nonpoint Source Program merely encourages states to reduce pollution ''to the maximum extent practicable'' through best management practices (BMPs). Section 303(d) has a different bar. Compliance with section 303(d) is not achieved until water quality standards are attained. For nonpoint source runoff, this raises the not-so-hypothetical possibility that a source would have to be eliminated from a watershed in the event that BMPs and modified BMPs ultimately prove ineffective in attaining water quality standards. This does not make sense to reasonable people who understand the vagaries of weather. The TMDL Federal Advisory Committee reached a consensus agreement that BMPs implemented to achieve TMDLs would have to pass the bar of practicability (economically achievable) as established in section 319. EPA has failed to introduce the concept of practicability in either the preamble or the proposed TMDL regulation.
The proposed regulations do not adequately address data issues. Successful TMDL development and implementation will occur when states have attainable water quality standards, when they have 303(d) lists which are derived by an ambient monitoring program, and not by drive-by assessments or windshield monitoring. They will need to devote sufficient resources to the TMDL development process in order to provide scientifically adequate input parameters and robust stakeholder involvement in the entire process. The TMDL program will fail if environmental extremists are permitted to highjack the process to their agenda of Federal watershed zoning.
EPA's proposal requires the inclusion of ''threatened'' waters as well as upstream or downstream areas. Section 303(d) does not require the listing of ''threatened'' waters and listing of upstream or downstream areas should only be based on reliable water quality data. The Federal Advisory Committee drove this point home, but EPA has ignored the FACA's recommendation in its proposed rule. EPA should revise its standard to require states to establish quality assurance/quality control (QA/QC) programs to ensure the reliability of water quality data on which listing decisions and TMDL calculations are based. EPA should revise its standard for data and require only the use of reliable data, e.g., to require the use of ''all reliable and credible existing and readily available water quality-related data and information.''
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The proposed regulations unlawfully regulate pollution as well as pollutants. The statute requires the listing of waters for which technology-based effluent limitations-which govern the discharge of pollutants-are not stringent enough to meet water quality standards. The statute requires TMDLs ''for those pollutants which EPA identifies . . . as suitable for such calculations.'' Placing ''pollution'' impaired waters on the section 303(d) list can only increase confusion among states and the public over the function of the TMDL program.
The proposed regulations allow EPA to designate nonpoint sources as point sources. The proposed regulations unlawfully allow EPA to designate nonpoint sources as point sources. They propose to regulate nonpoint sources, private forestry and livestock activities for such practices as harvesting, site-preparation, road construction, thinning, prescribed burning, pest and fire control, land application of organic nutrients and nutrient utilization plans by requiring landowners to obtain point source discharge permits for these land use activities. This proposed action is an unjustifiable expansion of the agency's authority, constitutes significant Federal intrusion into private activities and overrides state and private control of land-use decisions.
Agriculture is willing to be a part of reasonable and lawful water quality management programs. Farmers and ranchers are determined to halt EPA's unlawful regulation of nonpoint sources through the TMDL program. Despite our belief that EPA's actions are beyond statutory authority, agriculture is working at every level to ensure that farmers and ranchers are up to speed on water quality standards and monitoring programs. Farmers and ranchers are engaged in activities and practices to improve and protect water quality. Conservation tillage practices are being used on more than 60 percent of our nation's farmland, saving hundreds of millions of tons of topsoil annually. Over 600,000 miles of conservation buffers have been installed on farms. Thirty-six million acres are being protected through the Conservation Reserve Program. Voluntary nutrient management plans are prepared annually by USDA's Natural Resources Conservation Service for approximately 10,000 farms.
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The process to protect water quality must be lawful and reasonable. A new cooperative public policy structure will not be easy as it will take a long time to develop stakeholder consensus, effective interpersonal relationships and trust in the agency for the process to succeed. My experience as a member of a National Estuary Program Management Conference and as a participant in the development of a complex and contentious TMDL have convinced me that the only workable solution to watershed management is the ''bottoms up'' approach as opposed to ''command and control.''
CONCLUSION
Over the decades farm and ranch families have achieved extraordinary conservation gains through voluntary, incentive based programs to conserve fragile soils, wetlands, protect water quality and wildlife habitats. I thank this committee for their commitment to authorize and fund voluntary incentive-based approaches and urge EPA to acknowledge the progress our farm families have made. I believe that EPA's current effort to expand the scope of regulation goes far beyond Congressional intent. I believe the nonpoint source issues outlined in EPA's TMDL proposal are best addressed through incentive-driven programs, implemented by those with the most interest in the environmental quality of America's land and water resources. That is the people who own and work with those resources on a daily basis-America's farmers and ranchers.
SUPPLEMENTAL COMMENTS ON TMDL RULEMAKING
The proposed TMDL regulations will have direct economic impact on farmers and ranchers and will affect how landowners can use their land. The American Farm Bureau Federation has brought a lawsuit against EPA designed TMDL restrictions on timber harvesting. The suit was filed in U.S. District Court in San Francisco. Also named as petitioners in the lawsuit are the Mendocino County Farm Bureau and the California Farm Bureau Federation.
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In 1960, Guido and Betty Pronsolino bought the Copper Queen Ranch—800 acres of heavily logged timberland along the Garcia River in Mendocino County, CA—and over the last four decades have expended significant personal resources to restore and replant it. In September 1998, they obtained a permit from the California Department of Forestry to harvest 1.5 million board feet of timber from their Copper Queen Ranch over the next 15 years.
In March 1998, the U.S. Environmental Protection Agency restricted the amount of sediment runoff into the Garcia River stemming from timber harvesting and certain agricultural activities in the Garcia River watershed.
''The EPA's actions require the Pronsolinos to inventory and control sediment loading on the Copper Queen, restrict the Pronsolinos from harvesting certain areas of the Copper Queen and from harvesting any areas during 6 1/2 months of the year, and prevent the Pronsolinos from constructing or using roads and skid trails in certain areas, all resulting in significant losses,'' the lawsuit states.
The lawsuit alleges that the Clean Water Act requires states to identify and submit lists of water segments that fail to meet water quality standards due to point sources of pollution. A point source is defined as any discernible, confined and discrete conveyance, such as a pipe, from which pollutants may be discharged.
The EPA disapproved California's TMDL list because it did not include 17 water segments, including the Garcia River, which the EPA determined failed to meet water quality standards due to non-point sources, such as rainwater runoff from agriculture, forestry and
construction sites.
When California refused to expand its list to include these waters, the EPA took it upon itself to establish a new list that included the non-point source impaired water segments. In March 1998, it took the additional step of issuing a Garcia River Sediment Total Maximum Daily Load (TMDL), which mandates controls on the activities of timber harvesters and farmers in the Garcia River watershed.
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According to the lawsuit, the Federal Government's regulation of the Garcia River has severely injured the interests of many timber harvesters and farmers in the Garcia River watershed. Specifically, landowners face new restrictions on timber harvesting and on the construction, use and maintenance of roads and skid trails on their properties.
The suit asks, among other things, that the court reverse the EPA's actions regulating the Garcia River and declare that the EPA lacks authority to regulate pollution from non-point sources through the TMDL process.
EPA's proposed regulations for the Total Maximum Daily Loads (TMDL) program, as issued in the August 23,1999 Federal Register, would give EPA new authority to treat silvicultural activities as point sources that require an NPDES permit. The current exclusion for silvicultural activities found at 40 CFR 122.3 would be removed. Where a water is designated as ''impaired'' and subject to a TMDL, silvicultural activities could be subject to a permit.
EPA is deliberately misrepresenting the impact Agriculture has on water quality. During his opening statement, Assistant Administrator Fox made a statement to the effect that Agriculture is responsible for impairing forty percent of the waters assessed by States. This leaves a false impression and I state that it is being done deliberately because I have worked for 2 years to stop EPA from mischaracterizing its own numbers. What the data really show is that less than 4 percent of the Nation's streams and rivers are impaired in part by agriculture and that approximately one half of those were evaluated as impaired by ''windshield monitoring.''
EPA is deliberately understating the impact of TMDLs on fertilizer use. Assistant Administrator Fox testified to the effect that EPA would not tell farmers to reduce fertilizer through a TMDL. This is just plain wrong and counter to the past three years of dialog during the TMDL FACA process and is counter-intuitive to the implementation methods available for a water quality based program such as section 303(d). This is exactly why we in agriculture (including USDA and the Forest Service) argue that nonpoint sources should be controlled to the ''maximum extent practicable'' using BMPs as laid out in CWA section 319. The problem with EPA's proposal to unlawfully shoehorn runoff sources such as rowcrop agriculture into the water quality based TMDL program is that if the BMPs don't achieve water quality standards then a source (such as fertilizer) would have to be reduced. This is TMDLs 101.
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The only possible explanation for Mr. Fox's statement is that technically it is the State and not EPA that allocates the assimilative capacity of a water. But that explanation fails in the situation where EPA disapproves a State TMDL and triggers the manditory duty to develop its own TMDL.
Statement of The American Society of Civil Engineers
Mr. Chairman and Members of the committee:
The American Society of Civil Engineers (ASCE) is pleased to submit this statement for the record on the projected revisions to the water quality planning and management regulation proposed in August by the Environmental Protection Agency (EPA).. Proposed Revisions to the Water Quality Planning and Management Regulation, 64 Fed. Reg. 46,011 (Aug. 23, 1999) (to be codified at 40 C.F.R. Part 130).
ASCE opposes the proposed regulation, believing it to be in violation of the Clean Water Act.
ASCE was founded in 1852 and is the country's oldest national civil engineering organization. It represents more than 120,000 civil engineers in private practice, government, industry and academia who are dedicated to the advancement of the science and profession of civil engineering.
The Society's diverse members are directly concerned with the proposed changes to the water quality planning and management regulations in their professional practice areas. Among those areas are environmental engineering, water resources engineering and water resources planning and management. ASCE is a non-profit educational and professional society organized under part 1.501(c)(3) of the Internal Revenue Service rules.
A. Background. The Federal Water Pollution Control Act, or Clean Water Act, is the principal law governing pollution in the nation's streams, lakes, and estuaries.. 33 U.S.C.A. 1251-1387 (West 1999). Originally enacted in 1948, it was totally revised by amendments in 1972 and 1987 that gave the Act its current form and spelled out ambitious programs for water quality improvements that are now being put in place by industries and cities.
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The Act has three major elements. First, states must set water quality standards to protect designated uses of certain bodies of water; the standards then are used to effluent limits for individual sources. Next, the Federal Government is required to set industrywide, technology-based effluent standards for dischargers. Finally, all dischargers must obtain a permit issued by the Federal Government or authorized states that specifies discharge limits under the National Pollutant Discharge Elimination System (NPDES) program. The discharge limits essentially are the stricter of the water-quality-based limit and the technology-based limit.
The Act's regulatory provisions impose progressively more stringent requirements on industries and cities in order to meet the statutory goal of zero discharge of pollutants, and it authorizes Federal financial assistance for municipal wastewater treatment construction.
Industries were to meet pollution control limits first by use of Best Practicable Technology and later by improved Best Available Technology (BAT). Cities were to achieve secondary treatment of municipal wastewater (roughly 85 percent removal of conventional wastes), or better if needed to meet water quality standards. Sometimes, however, the use of BATs does not result in the reduction of pollutant loads in a body of water. In those cases, the Act requires the EPA and the states to establish the total maximum daily load for a body of water.
All of the Act's programs are administered by the EPA, while state and local governments have major daytoday responsibility for implementing the law. More than 40 states currently are authorized to issue NPDES permits. Nevertheless, various Federal agencies continue to invest heavily in the pollution-control programs under the Clean Water Act. ''[T]otal Federal annual spending for nonpoint-related programs remained relatively constant from fiscal year 1994 through fiscal year 1998 at about $3 billion, although obligations among some programs increased significantly during this period.''. U.S. General Accounting Office, Water Quality: Federal Role in Addressing and Contributing to Nonpoint Source Pollution (1999).
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Section 303(d) of the Act requires states to identify pollutionimpaired water segments and develop ''total maximum daily loads'' (TMDLs) that set the maximum amount of pollution that a water body can receive without violating water quality standards. The Act imposes a mandate on the states to identify waters that cannot meet Federal effluent limitations and to establish TMDLs for pollutants identified by the EPA. If a state fails to identify its impaired waters or establish the required TMDLs, the EPA must do so. The first listed waters and TMDLs were due to the EPA in mid–1979, or 180 days afer the Agency published the first list of pollutants regulated under section 303(d).
A TMDL includes a quantitative assessment of water quality problems, pollution sources, and pollution reductions needed to restore and protect a river, stream, or lake. TMDLs may address all pollution sources, including point sources such as sewage or industrial plant discharges, nonpoint sources, such as runoff from roads, farm fields, and forests, and naturally occurring sources, such as runoff from undisturbed lands. If a state fails to develop TMDLs, the EPA is required under section 303(d) to develop a priority list for the state and make its own TMDL determination.
The TMDL program, in effect, helps the various government agencies to identify impaired waters and, after the application of BATs fails to control pollutants, establish priorities for their protection through the formation of plans to manage excess pollutants entering the affected bodies of water.
The EPA's water programs and their state counterparts are increasingly emphasizing watershed and water qualitybased assessment and integrated analysis of point and nonpoint sources. Better Assessment Science Integrating Point and Nonpoint Sources (BASINS) is a [modeling] system developed to meet the needs of . . . agencies. It integrates a geographic information system (GIS), national watershed data, and stateoftheart environmental assessment and modeling tools into one convenient package. Originally released in September 1996, BASINS addresses three objectives: (1) to facilitate examination of environmental information, (2) to provide an integrated watershed and modeling framework, and (3) to support analysis of point and nonpoint source management alternatives. It supports the development of TMDLs, which require a watershedbased approach that integrates both point and nonpoint sources.. U.S. EPA, BASINS 2.0 <http://www.epa.gov/OST/BASINS/basinsv2.htm, updated 5/24/99; downloaded Aug. 25, 1999>.
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Section 305(b) requires states to prepare a water quality inventory every two years to document the status of water bodies that have been assessed. Under section 304(l), states identified all surface waters adversely affected by toxic (65 classes of compounds), conventional (such as BOD, total suspended solids, fecal coliform, and oil and grease), and nonconventional (such as ammonia, chlorine, and iron) pollutants from both point and nonpoint sources. Under section 314(a), states identified a list of publicly owned lakes for which uses are known to be impaired by point and nonpoint sources.
The TMDL program is technically complex and largely dependent upon the states for implementation.
When TMDLs are established, wastewater treatment plants for communities and industry may need new technology. States and EPA enforce the TMDLs through permits which include the pollutant limits and a schedule for compliance. For waters impaired by nonpoint source runoff, because there are no Federal controls over these sources under the Clean Water Act, the primary implementation measures will be staterun nonpoint source management programs coupled with state, local, and Federal land management programs and authorities. Farmers and ranchers may be asked to use alternative methods in their operations to prevent fertilizers and pesticides from reaching rivers. Cities may be required to control and treat runoff from their streets.. Congressional Research Service, Clean Water Act and TMDLs (1997).
Most States have lacked the resources to do TMDL analyses, which involve complex assessment of point and nonpoint sources and mathematical modeling. Moreover, at some point, the cost of reducing the pollutants may become a factor. ''[A] large number of the nation's waters cannot meet water quality standards with point-source control alone. In some cases, it may be cost prohibitive to reduce point-source loading further.''. Carl W. Chen et al., Decision Support System for Total Maximum Daily Load, 125 J. of Envtl. Engineering 653 (1999).
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Moreover, ''[t]he TMDL issue has been controversial, in part because of requirements and costs now facing states to implement this provision of the law. Industries, cities, farmers, and others may be required to use new pollution controls to meet TMDL requirements.. Congressional research service, Clean Water Act Reauthorization (Aug. 6, 1999).
Meanwhile, the EPA has been reluctant to interfere with the states to move the TMDL program along. The Agency also appears to have lacked the resources to do the TMDL analyses itself. Congressional commentators therefore have noted critically that there has been little implementation by the EPA or the states of the TMDL provision since 1979.
Illustrative of this point is the fact that in recent years, national and local environmental groups have filed more than 20 lawsuits against EPA, claiming the Agency has failed to fulfill its Clean Water Act requirements. The EPA is concerned about diverting agency resources from other highpriority water quality activities in order to meet the courts' orders, especially if other lawsuits yield similar results. In October 1996, the EPA created an advisory committee to solicit advice on the TMDL implementation problem. Recommendations from the advisory committee, received in July 1998, form much of the basis for the current TMDL rulemaking.
In 1997, the EPA Office of Water issued guidelines to the Agency's regional administrators in an effort to give greater impetus to the TMDL program. According to those guidelines, ''If a State fails to meet its obligations under section 303(d), [the EPA regional offices] will need to step in. However, it is my goal that every State will succeed in fully meeting the requirements of section 303(d) and taking the needed action to implement approved TMDLs.''
Despite the issues and lack of progress in implementing the 1972 requirements, it is not clear at this point whether Congress will reauthorize the Clean Water Act in the 106th Congress in order to address the TMDL matters. But it is, of course, entirely up to Congress to determine which changes, if any, are needed in the current TMDL program.
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B. The Part 130 Regulations. The EPA carries out the TMDL program under the Part 130 regulations (Water Quality Planning and Management). The overall purpose of the current water quality management program is to establish Federal policy requirements for water quality planning, management and implementation under the Clean Water Act. The Agency intends the management process is to be a dynamic one, in which requirements and emphases vary over time. The TMDL program creates a process for identifying water-quality limited segments that require waste-load allocations under the NPDES permit program.
A TMDL is established to attain or maintain the water quality standard for a specific pollutant that has been identified as the cause of an impairment or threat to a water body.
In the proposed rule, the EPA announces nine major changes to the current regulatory scheme under Part 130. The proposal would:
Revise definitions of TMDL, wasteload allocation, and load allocation.
Amend definitions of impaired water body, threatened water body, pollution, pollutant, reasonable assurance and water body that clarify EPA's existing interpretation of these terms.
Add a new requirement for a more comprehensive list and a new format for the list.
Add a new requirement that states, territories and authorized Tribes establish and submit schedules for establishing TMDLs for all water bodies impaired or threatened by pollutants.
Establish a new requirement that the listing methodologies developed by states, territories and authorized Tribes be more specific, subject to public review, and submitted to EPA on January 31 of every second, fourth or fifth year.
Create a possible change in the listing cycle so that states, territories and authorized Tribes submit lists to EPA on October 1 of every second, fourth or fifth year beginning in the year 2000.
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Make it clear that TMDLs include 10 specific elements.
Create a new requirement for an implementation plan as a required element of a TMDL.
ESTABLISH NEW PUBLIC PARTICIPATION REQUIREMENTS.
On the same date that the Agency proposed to amend the TMDL regulation, the EPA proposed a regulation to revise the National Pollutant Discharge Elimination System (NPDES) program to strengthen the overall Federal water quality management program.
. Revisions to the National Pollutant Discharge Elimination System Program and Federal Antidegradation Policy in Support of Revisions to the Water Quality Planning and Management Regulation, 64 Fed. Reg. 46,058 (Aug. 23, 1999) (to be codified at 40 C.F.R. parts 122, 123, 124 and 131).
That proposed regulation would allow the Agency to object to a State's decision to allow an NPDES permit to lapse for discharges into impaired bodies of water with or without TMDLs. Specifically, the rule would spell out the Agency's discretionary authority to object to, and reissue, if necessary, State-issued expired and administratively continued permits authorizing discharges into water bodies in the absence of an EPA[-]approved or [-]established TMDL. Likewise, it also would grant the Agency the discretion to issue NPDES permits for discharges into impaired bodies of water with established TMDLs. It needs to be stressed that the second proposed rule would not mandate a particular EPA regulatory response under the first proposed rule in the absence of specific TMDLs for discrete bodies of water in any state, regardless of the legal status of a discharge permit for given pollutants, however.
C. The proposed TMDL rule would delay the completion of the TMDL process for many years in violation of the Clean Water Act. One of the principal criticisms of the current TMDL program has been the slowness with which states have developed their TMDLs. ASCE believes that the August 23 proposed rule on TMDLs would exacerbate the problem of long delays in the implementation of the program. The fact that the EPA might invoke the requirements of the second proposed rulemaking of August 23 and issue NPDES permits for those impaired waters where no TMDLs have been established—in effect bypassing the requirements of section 303(d)—could not solve the Agency's long-term problem caused by the lack of the lawful TMDLs, which are required by the Act. Nor could it provide any greater protection for human health and the environment. From a purely environmental perspective, the TMDLs are designed to help identify impaired waters in the first place: if there are no TMDLs, how is the EPA to know where to begin to issue or reissue permits? Without TMDLs there is no way for Federal or state regulators to set priorities or even to know which water bodies are most seriously impaired.
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The EPA, then, must return to section 303(d) to establish rational answers to the national problem of impaired water bodies. We wish to stress that the requirements of section 303(d) are imperative, not discretionary; the section creates a positive duty which the states and, in their failure to act, the EPA were bound to obey expeditiously. The passage of nearly 30 years does not lessen the force of the mandate.
Although a great many routine administrative matters are committed to an agency's discretion, including a limited power to not enforce existing regulations, Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers. A reviewing court, moreover, will uphold the deadlines established in an act of Congress absent specific language in the law granting an agency the flexibility to postpone a congressionally mandated regulatory requirement.
The mandatory nature of the TMDL requirements is beyond dispute.. See, e.g., Scott v. Hammond, 741 F.2d 992, 998 (7th Cir. 1984) (holding that the Clean Water Act *undoubtedly imposes mandatory duties on both the states and the EPA*); Alaska Center for the Environment v. Reilly, 762 F. Supp. 1422, 1429 (1991) (*Section 303(d) expressly requires the EPA to step into the states* shoes if their TMDL submissions or lists of water quality limited segments are inadequate*) aff*d sub nom. Alaska Center for the Environment v. Browner, 20 F.3d 981 (9th Cir. 1994); Defenders of Wildlife v. Browner, 909 F. Supp. 1342 (1995) (same); Natural Resources Defense Council v. Fox, 909 F. Supp. 153 (1995) (same); Sierra Club v. Hankinson, 939 F. Supp. 865 (1996) (same); Raymond Profitt Foundation v. EPA, 930 F. Supp. 1088 (1996) (same); and Idaho Conservation League v. Browner, 968 F. Supp. 546 (1997) (same). See also Idaho Sportsmen*s Coalition v. Browner, 951 F. Supp. 962 (1996) (concluding that the *extreme slowness* of the EPA*s proposed 25-year schedule for implementing TMDLs in Idaho violates the Clean Water Act). As well, the EPA is under court order via consent decrees in at least 18 cases to complete TMDLs in 16 states. u.s. epa, total maximum daily load program, overview of tmdl cases (9/1/99) <http://www.epa.gov/owow/tmdl/lawsuit2.html>.
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The failure of EPA and the states to complete the program has been the subject of protracted litigation from Georgia and New York to California and Alaska. Ironically, it was the states, not Congress, that urged adoption of the TMDL requirements and regulations,. See Oliver A. Houck, TMDLs IV: The Final Frontier, 29 envtl. l. rep. 10,469 (1999).
and the states bear the primary responsibility for the failure of the TMDL program to date.
[T]he states have badly breached their responsibilities to identify waters that remain polluted and then to promulgate total maximum daily loads (TMDLs) for these waters under 303(d) of the Act. The TMDL process is a crucial mechanism for ratcheting down levels of pollution in watercourses that fail to meet water quality standards despite the application of technology based controls to point sources. The goal of the TMDL process is the central goal of the Clean Water Act—to deliver truly clean water to Americans by identifying the additional controls that must yet be made to point and nonpoint sources in order to render waters suitable for uses such as fishing and swimming. Despite the importance of the TMDL process and the plain obligations it imposes on the states, the states have generally sought to avoid their duties in this area in an ignoble way. As one recent commentator put it, ''The states have been all in favor of the responsibility for regulating water pollution through their water quality standards, right up to the point that they had to do it.''. See Drew Caputo, A Job Half Finished: the Clean Water Act After 25 Years 27 Envtl. L. Rep. 10574 (1997).
Moreover, the states' failure to carry out the TMDL program—regardless of the reasons for their dereliction—does not free the EPA from the responsibility of filling the gap left by the states in the regulatory scheme established by Congress. To fail to do so would be to allow the states the power to invalidate an act of Congress through inaction.
Yet despite the abundant case law, the unambiguous mandate of section 303(d) and the fact that the EPA knows the TMDL program has moved at a historically low pace, the Agency's 1997 guidelines and proposed rule can only delay things further. The guidelines could well push the completion of the program even farther into the future by asking—not requiring—the states to develop their TMDLs within 8 to 13 years, beginning with program submissions in 1998.15. See Perciasepe Memorandum, supra note 8 (*These State schedules should be expeditious and normally extend from eight to thirteen years in length, but could be shorter or slightly longer depending on Statespecific factors.*).
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The TMDL rulemaking may well compound the problem of implementation for the future in other ways as well. Significantly, the proposed rule would remove from the Part 130 regulations the current EPA-imposed requirement that states identify the bodies of for which TMDLs will be established in the two years immediately followinga decision to set priority rankings for their impaired waters. Instead, the Agency would substitute a requirement that the states establish TMDL schedules as expeditious[ly] as practicable, but not less than 15 years after the August 23 rule is promulgated. Finally, the EPA recommends that states should make it their goal to establish TMDLs for their impaired waters within five years of the effective date of the revised Part 130 standards. Taken together, these steps do not appear to be picking up the TMDL program pace appreciably.
Therefore, despite the states' admittedly poor showing over the past 20 years, we continue to believe that the agency should keep strict compliance deadlines in the part 130 regulations. We are concerned that—by eliminating the current deadlines in part 130 and by authorizing a further slowdown of up to thirteen years (as in the 1997 guidance)— the EPA is sending the wrong signal to the states, potentially letting them off the Act's strict water-quality hook for many years and providing them with a legal excuse for additional, wholly unnecessary regulatory delays. Assuming that all states were to take until 2011 to complete their TMDL calculations, that would mean the program would not be in place nationwide until nearly 40 years after the TMDL requirement was enacted in 1972 and more than 30 years after the 1979 deadline triggered under section 303(d)(2).
Nothing in the Clean Water Act supports the proposition that Congress authorized or intended for the EPA or the states to delay the implementation of the TMDL program for decades after enactment. Indeed, the language of section 303 requires the states to adopt water quality standards, which must precede the adoption of TMDLs, six months after enactment, i.e., no later than April 1973.16. 33 U.S.C.A. 1313(a)(3)(A) (West 1999). We have already noted that the first TMDLs were due to the EPA by mid-1979.
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With the science and engineering readily available to complete the program rapidly, there is no technical reason for continued delays.
For the foregoing reasons, we believe that Congress must make certain that the Agency establishes and enforces a strict schedule for the states to complete the implementation of their TMDL programs. We suggest that Congress amend the Clean Water Act to ensure that the Agency's recommended five-year goal proposed on August 23 be in the form of a new, mandatory TMDL deadline. At the same time, we believe that Congress must conduct vigorous oversight of the TMDL program to guarantee that the EPA moves expeditiously to adopt state TMDLs in the absence of rapid Federal or state implementation of the proposed rulemaking.
D. ASCE recommends that the EPA improve the scientific validity of TMDLs by adopting a new method of calculating the loads in order to promote their use on a watershed basis. ASCE supports the use of a watershed management program to protect critical water bodies. The Society has encouraged the EPA to consider the adoption of a decision support system to calculate total maximum daily loads and agrees that the Agency should redefine them in order to identify what a TMDL is and what it must contain. We believe these changes would provide greater regulatory clarity, encourage the use of TMDLs and ensure greater consistency among states, territories and authorized Tribes in the use of TMDLs so that the program may protect entire watersheds where necessary and possible.. See Michael M. Wenig, How *Total* Are *Total Maximum Daily Loads*? - Legal Issues Regarding the Scope of Watershed-Based Pollution Control Under the Clean Water Act, 12 tul. Envtl. l.j. 87 (1998) (concluding that the TMDLs process *should be pursued to the fullest practical extent because it provides a technical, flexible framework for addressing cumulative sources of watershed harm; in short, it promotes an ecosystem approach*).
ASCE strongly supports basin-wide water resources management. The Society encourages all government agencies charged with implementing the Clean Water Act to manage and regulate water on a watershed basis. ASCE further supports integrating programs and goals across political boundaries. Any Federal regulations defining the goals and standards for watershed management should permit flexibility and accommodate regional needs, however.
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In order to provide greater scientific certainty, ASCE strongly recommends that the Agency consider the adoption of a new method for calculating TMDLs. We believe that EPA and the states ought to follow a decision support system that goes beyond the established watershed modeling program the BASINS model now used by the government to analyze a watershed approach to TMDL development.
BASINS is strictly a simulation model, which provides no guidance on how to calculate TMDLs. Following the traditional command and control approach, BASINS is used by regulatory agencies to make analyses and decisions on TMDLs. The new environmental policy, however, requires a change in the way TMDLs are determined and implemented. . . . As an alternative to BASINS, a decision support system has been developed hat goes beyond a watershed model. It includes a road map for stakeholders to follow and provides scientific information along the way.
. Chen, supra note 6, at 653 (emphasis added).
A dynamic watershed simulation model such as is contained in the Watershed Analysis Risk Management Framework (WARMF) described in the recent literature accounts for meteorology, point-source loads, reservoir flow release, flow diversion data and, significantly for this rulemaking, air quality. Integration of the effects of air pollution in the calculation of TMDLS for impaired water bodies is important, given the EPA's acknowledged lack of hard data on this problem.. See 64 Fed. Reg. at 46,022 (*EPA recognizes that data, analytical approaches and models to establish TMDLs for pollutants originating from air deposition may not be immediately available, especially for pollutants subject to long range transport in the atmosphere.*)
The dynamic watershed simulation model within the WARMF is superior to the BASINS model. It is easy to adapt the model to any real river basin and check the results against observed data because all observed data were collected under dynamic conditions. WARMF allows its users to specify the intended use and the criteria to be met. It then calculates the TMDL to protect the intended use of the water body. The model's graphical user interface makes it easy for stakeholders, not just technical experts, to run and to understand. In addition, WARMF can calculate multiple possible TMDL solutions, allowing stakeholders to negotiate the most acceptable solution. The model has an algorithm to evaluate pollution trading between point and nonpoint source loads. Each of these features is necessary in order to calculate the proper TMDLs under the EPA's guidelines.
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In addition to its scientific and engineering capabilities, the WARMF would aid in the calculation of TMDLs to a greater degree of certainty and ensure the adoption of a consensus watershed management plan.
Mr. Chairman, that concludes our prepared remarks. We would be pleased to answer questions from the committee. If you have any questions, please contact Michael Charles of our Washington Office at (202) 789–2200 or by E-mail at mcharles@asce.org.
October 22, 1999
THE HONORABLE CAROL M. BROWNER
Administrator
Environmental Protection Agency
Washington, DC 20460
Dear Ms. Browner.
Thank you for the opportunity to review and comment on the Environmental Protection Agency's (EPA) Proposed revisions to the Water Quality Planning and Management Regulations, 40 CFR part 130, regarding Total Maximum Daily Loads (TMDL); and the Proposed Revisions to the National Pollutant Discharge; Elimination System Program and Federal Antidegradation Policy, 40 CFR part 122, 123, 124, and 131, as published in the Federal Register on August 23, 1999. USDA combined comments on these two proposed regulations because many of our concerns are similar for each proposal.
We share with EPA common goals and dedication to water quality protection, and we have a long history of working cooperatively in this regard. Past disagreements were over the approach to meeting our common goals. We continue to believe that programs based on land management decisions, planned with consideration toward water quality criteria are most successful when dealing with nonpoint source (NPS) pollution control. We believe this approach avoids costly analyses that yield information of insufficient precision and accuracy for establishing meaningful NPS pollution control, and it may avoid unnecessary litigation. In developing our water quality programs, we rely on extensive analytical and field tested methods that have been developed over many years using the best science. We offer these comments and emphasize that we wish to work constructively toward a comprehensive water quality program that is efficient, uses best scientific information, reduces litigation, and most importantly, results in improved water quality.
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In general, we feel that if the proposed rules are implemented they will likely cause disruption to existing NPS control programs that have proven to be effective and will unnecessarily divert scarce resources to a top-down, process-oriented approach that may not work for NPS pollution control. We realize that implementation of NPS pollution program has been varied throughout the Nation over the past two decades. We believe this situation is primarily due to a lack of funding and the same commitment that was made for point sources. We would like to work with EPA on developing the following alternatives to the proposed regulations as they relate to agricultural and silvicultural operations:
1. Strengthen activities of sections 208 and 319 so that these become the primary tools for addressing NPS pollution including agricultural and silvicultural operations. As you know, the magnitude of NPS problems is more daunting and complex than with point sources; yet EPA appears intent to manage NPS in the same manner as point sources, but accelerated. It has taken 27 years of hard work on point sources—and billions of dollars—to obtain the water quality improvements we have today. To control NPS, we need a broader timeframe and greater commitment to adequate funding, enhanced partnerships, local decision making, and use of proven land Management techniques, including voluntary incentive-based programs.
2. Use the existing EPA Water Quality Handbook (i.e., ''SAM32'') as: guidance for States and encourage them, through increased funding and flexibility, to develop effective programs to control silvicultural and agricultural NPS pollution. Consistent with sections 209 and 319.
3. Supplement existing agreements between the Forest Service and States to identify management standards for road construction, reconstruction, and operation and maintenance.
Our specific comments on the proposed rules are enclosed. They are organized by background, legal, limitations of science, costs, redefining nonpoint source, scope, relation to Coastal Zone Management Act, threatened waters, episodic events, reasonable progress, and top-down approach.
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If I can be of further assistance regarding our suggestions and comments, please contact me.
Sincerely,
JAMES R. LYONS
Under Secretary, Natural Resources and Environment
cc:
Glenda Humiston, Deputy Under Secretary, Natural Resources and Environment. USDA
Anne Kennedy, Deputy Under Secretary, Natural Resources and Environment, USDA
Michael Dombeck, Chief, Forest Service, USDA
Pearlie S. Reed. Chief Natural Resources Conservation Service, USDA
USDA Comments on Proposed Rules Total Maximum Daily Loads (TMDL) and National Pollutant Discharge Elimination System (NPDES)
INTRODUCTION
The Department of Agriculture has a long working relationship with the Environmental Protection Agency (EPA) and we appreciate the opportunity to comment on the proposed rules for revisions to the Total Maximum Daily Load (TMDL) regulations and revisions to Federal Antidegradation Policy and National Pollutant Discharge Elimination Program (NPDES) in support of revisions to the Water Quality Planning and Management Regulation.
Through our science-based experience, USDA considers that the most effective means for controlling the generation of nonpoint source (NPS) pollution, such as those activities cited in the proposed EPA rules, is by designing and applying preventative and restorative watershed management practices. The success in applying these practices to control NPS pollution on agricultural land, forests, and rangelands is well documented and demonstrated in scientific and historical literature, as well as in anecdotal reports. Consequently, the potential impact of the proposed regulations is problematic because they would alter the manner in which effective NPS control programs have been managed. For instance, changing the designation of silvicultural practices from NPS to point sources is inconsistent with authorities provided in the Clean Water Act (CWA), established management program, scientific evidence and, management experience. Although we agree there is a need for greater efforts to control NPS pollution, the proposed regulations will place an added and unnecessary burden on the continuing progress for effectively controlling NPS pollution in waters of the United States.
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Before providing you with our concerns with the proposed rules, we offer the following commendations on the TMDL rule:
The manner in which the regulations address endangered species.
The recognition of air pollution as a cause of water quality impairment.
The recognition that watershed assessment will be needed to separate point sources from nonpoint sources even in watersheds where both sources impact water bodies.
BACKGROUND
We believe that Congress provided for distinct and separate programs for point and NPS pollution and intended that both silvicultural and agricultural operations would be controlled under the NPS program.
Section 208 requires the control of agricultural and silvicultural sources, to the ''extent feasible'', under a NPS program.
Section 319 requires the identification of waters limited by NPS pollution and the development of Best Management Practices (BMPs) to control those sources to the ''maximum extent practicable''.
Section 319 recognizes that any regulatory program to control NPS pollution is at the State, not at the Federal level.
It is unfortunate that EPA has continually given less emphasis to section 319, perhaps because it is not a required Federal regulatory program. EPA has never published regulations for its implementation, except for the underfunded grant program provided for under that section; rather, EPA has directed its efforts toward incorporation of NPS into point source programs, i.e., section 303 TMDL, and section 402 NPDES permit program. However, section 319 does provide for development of a permit program for NPS pollution control, at a States discretion.
The proposed regulations will undermine 27 years of the USDA working cooperatively with EPA, States and the communities at large in the development of an effective NPS control program. Instead, we encourage the strengthening and proper funding of sections 208 and 319 activities and increased commitment to making NPS control programs work under these authorities.
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In the spirit of the President's Clean Water Action Plan, the Forest Service and Natural Resources Conservation Service (NRCS) are available to help, through review and comment, EPA prepare regulations for the effective, science-based control of NPS pollution under sections 208 and 319 of the CWA.
LEGAL
We have numerous legal concerns with the proposed regulations. We are concerned with the applicability of CWA sections 303 and 402 to silviculture and agriculture; the distinction between point versus NPS pollution; the consistency of the proposed regulations with Executive Order (EO) 31332 on federalism, issued August 5, 1999, and with the proposed definitions of ''pollution'' and ''pollutant.''
Federal courts have long recognized that Congress specifically drew a distinction between point sources and NPS pollution, and excluded the latter from control under TMDL and NPDES. Please refer to Oregon Natural Resources Council v. U.S. Forest Service, 834 F.2d 842 (9th Cir. 1987); Natural Resources Defense Council v. EPA, 915 F.2d 1314 (9th Cir. 1990): Oregon Natural Desert Association v. Dombeck, 172 F.3d 1092 (9th Cir. 1998); and Idaho Conservation League v. Caswell, 1996 U.S. Dist. LEXIS 21980 (Idaho 1996). These court decisions found that silvicultural activities, including road building, were examples of NPS pollution excluded by Congress from NPDES; see Oregon Natural Resources Council, and Idaho Conservation League supra; see also Trustees for Alaska v. EPA, 749 F.2d 549 (9th Cir. 1984). We believe Congress did not think it necessary to expressly exclude silviculture and agriculture from coverage under 303 or 402 because pollution from those sources was already addressed in sections 208 and 319.
The control of NPS under section 319 mirrors the control of point sources under section 303, but specifically leaves the development of control programs, including the consideration regulatory approach, with the States (section 319(b)(2)(B)). Therefore, Congress recognized that additional processes such as Federal permits to control NPS pollution were duplicative and not needed to comply with section 101. Since the States have either voluntary or regulatory approaches to NPS pollution control, and all States with voluntary approaches have ''Bad Actor'' laws, the draft proposed NPDES regulations appear to ignore the Congressional intent of sections 101(b) and 319 of the CWA for the control of silviculture and agriculture related pollution. Moreover, the proposed regulation appears to be in conflict with EO 31332, section 4(a), which states that a Federal statute can only preempt State law where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law. Section 319(b)(2)(B) specifically gives the responsibility for development of NPS controls to the States including the determination of the need for a regulatory enforcement program.
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We disagree with the proposed redefinition that would differentiate between ''pollutant'' and ''pollution''. The proposal is legally incorrect, is not in keeping with the intent of Congress, and it complicates a rather simple issue. The CWA currently defines ''pollutant'' (paragraph 502(6)) with an exhaustive list of chemical, physical, biological, and radiological water quality constituents that, when evident in water, constitute pollution. The CWA currently defines ''pollution'' (paragraph 502 (19)) as that ''caused by man-made or man-induced alteration of water quality.'' Congress simply defined what a pollutant is and then said for the pollutant to become pollution; it had to be caused by human intervention, thereby excluding natural background levels of water quality constituents. We believe it inappropriate for EPA to use an artificial distinction between ''pollutant'' and ''pollution'' to exceed the CWA authorities related to ''low flow'', ''degraded aquatic habitat'' and ''riparian habitat.''
Based on science, we know of the relationship of water quality to water flow, aquatic habitat, and riparian areas. However, the CWA (paragraph 101(g)) authorized States to control water flows and allocate water quantities within its jurisdiction. A low flow, even caused by human intervention, cannot be regarded as pollution unless a CWA-defined pollutant is present. Additionally, we agree with the EPA view that aquatic habitat is essential in reflecting the assurance of the ''biological integrity of the nation's water'' However, we do not agree that ''degraded aquatic habitat'' is either a ''pollutant'' or ''pollution'' in accordance with the CWA. The condition or health of aquatic habitat is the result or consequence of water quality, not the cause of pollution.
We are equally troubled by the EPA view of riparian habitat. We recognize the important role of riparian areas in providing for and protecting water quality. We also know of the importance of riparian habitat for its aquatic and terrestrial fauna and flora. We do not agree that 'riparian habitat' is a pollutant or pollution; like aquatic habitat, riparian habitat is a product of its associated water quality and other environmental and anthropogenic factors.
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LIMITATIONS OF SCIENCE
A weakness of trying to apply the TMDL process and NPDES permits to NPS water quality compliance, load determination, and load allocation is the current technical and scientific barriers to connecting water quality standards to specific NPS and BMPs. We are concerned with the lack of appropriate recognition of these weaknesses in the subject regulations.
We are also concerned that the full breadth of scientific knowledge may not be used appropriately by EPA when dealing with NPS. For instance, the proposed revisions to the NPDES regulation reference a piece of scientific literature as stating that ''silviculture contributes approximate 8 to 9 percent of the nonpoint source pollution to the Nation's waters,'' We have been informed that this statement is not contained in the paper to which it is attributed (D.G. Neary and J. L. Michael, 1989, ''Effect of Sulfometuron Methyl on Ground Water and Stream Quality on Coastal Plain Forest Watersheds''). It is vital to public decision making that scientific findings are used and referenced correctly.
The USDA strives to meet and assist others to meet water quality standards (WQS) because they have legal status in that they are the measures of success or indicate the need for more stringent pollution controls, Due to natural background and variability of water quality, it is very difficult to relate WQS to the effectiveness of individual BMPs and measured water quality values in the water column. An expectation that land managers can provide certainty that WQS will be met under all circumstances before activities take place as may be required by National Environmental Protection Act and/or by a NPDES permit, is neither reasonable nor achievable. Available time and funding for applying science and current models of NPS pollutants do not allow sufficient precision and reliability to:
relate the effect of NPS pollution to WQS;
allocate water column or in-channel parameters by individual BMP or land user, and,
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allocate effects/loads by individual BMP or land user.
This lack of precision and reliability significantly limits the validity of the TMDL and NPDES permitting process in establishing load allocations for specific management practices or for individual landowners in agricultural, forest, and rangeland environments. It is expected that More sophisticated models will be too expensive for project-level monitoring due to high data demands and cost of operation- For these reasons, BMPs are currently based on technology and not based on current WQS (existing 40 CFR 130, and the EPA's ''Nonpoint Source Controls and Water Quality Standards).'' USDA has and will continue to work with others to improve:
science and technology to control NPS pollution;
estimates of the magnitude and sources of NPS pollution;
relationships between NPS pollution and WQS; and,
relationships between land management practices and water quality.
The variability of agricultural, forest and range environments and the limited time and funds available to measure actual concentrations of pollutants for each watershed, lead to the alternative of using properly verified and calibrated models for estimating pollutant loads for TMDL and permitting purposes. However, the development and use of models may also tie up scarce funds and time that could be used for effective field surveys to identify pollution sources and design and apply BMPs to protect and improve water quality. Therefore, developing and using models should be done very judiciously. Confidence and reliability for most modeled estimates of pollutants of concern in agricultural, forested or range environments are expected to be less than what current science can provide with sufficient time and funding. Based on available science, USDA would expect that a modeled estimate for sediment in forested environments for instance, to have a precision and reliability less than plus or minus 100 percent, at the 95 percent confidence interval. This level of precision and reliability is the best that can be expected when requiring TMDLs and NPDES permits for some agricultural and silvicultural practices. It seems this level of precision and reliability would be inadequate when placing a performance requirement on a permitee or anyone to meet specified pollutant loads for these NPS situations.
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Due to the lack of precision and reliability of modeling results, pollution trading between point source and NPS should only be considered with the understanding that the certainty, associated with estimates and control of point sources is generally greater than the certainty associated with estimates and control of NPS. When addressing pollution trading, the regulations should recognize limits imposed by our scientific understanding.
COSTS
The cost analyses for the TMDL and NPDES proposed rules are inadequate and incomplete. There are no costs displayed for Federal agencies affected by the rule, such as the NRCS and Forest Service, and costs for the private sector are not adequately recognized and accounted for. For instance, the proposed rule would impose significant cost on the Forest Service for the more than 192 million acres of public lands that are under its direct management as well as the millions of acres under local or private control where it provides assistance. The proposed rule's impact on the private sector will create additional workload and costs for USDA in providing technical and potential financial assistance for TMDL development and implementation. Despite the requirements of EO 12866, the proposed rule ignores these costs, as well as the direct impact on farmers, ranchers, and small woodlot operators.
The following are our specific comments for each proposed rule:
TMDL
The Regulatory Flexibility Act (RFA) as amended by the Small Business Regulatory Enforcement Fairness Act, generally requires Federal agencies to conduct an initial regulatory flexibility analysis describing the impact of the regulatory action on small entities. The EPA Administrator certified that this proposed rule would not have a ''significant economic impact on a substantial number of small entities '' Based on many years of planning and implementing watershed protection projects with State and local government entities, we do not believe this to be an accurate statement. The calculated costs of implementing TMDLs set out in the rule appear to be limited to the impact on State water quality agencies only. This ignores the impact on cooperating Federal agencies Tribes, or other State agencies such as departments of agriculture, natural resources and forestry, soil and water conservation districts, and others which will be involved. Additionally, the costs of implementing the TMDL management strategies will be very significant and will, very likely, be borne by small entities such as agricultural producers, forest landowners, and rural communities. Unlike many point source polluters, most of these small entities will not be able to pass on the cost of implementing these pollution controls to their customers because food, fiber, and timber producers control the purchase price of their products.
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Under the Federal Unfunded Mandates Reform Act, the EPA must prepare a written statement, including cost-benefit analyses, for proposed rules with ''Federal Mandates'' that may result in State, local and Tribal governments' costs in the aggregate, or costs to the private sector, of $100 million or more in one year. The EPA is suggesting that this rule will cost less than $25 million in any one year. Planning and implementing BMPs and pollutant management strategies will cost more than $100 million annually based on past similar experiences in USDA. If the cost of the proposed rule imposes costs in the hundreds of millions of dollars, and potentially billions of dollars, then it is essential that Federal agencies, States, and the public have a greater awareness of these costs and alternative means of achieving the desired end.
We, expect the assistance to States, Tribes, and the EPA in the development and implementation of TMDLs to significantly add to USDA workload during the next 8 to 15 years. This workload and associated costs will result from watershed assessments and prioritizing, developing land treatment plans, monitoring; and evaluating progress and adapting to needed changes in management, and working with other landowners and stakeholders within a watershed. We feel that the analyses in the proposed regulations for the RFA, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, and EO 12866 may be inadequate. Once a TMDL is in place we understand that the landowners within the watershed will need to implement preventative and/or restorative land management practices to achieve water quality when impairment is caused by NPS pollution. This will increase the need for Forest Service assistance to non-industrial forest landowners through State foresters, and NRCS assistance to farmers and ranchers to support landowners in the application of additional or different practices. We believe there is a cost to the Federal Government that is not recognized in the current analyses. In addition, there may be additional operating costs incurred by the private landowner.
NPDES
Contrary to paragraph three, section V of the preamble, ''...if adopted, would not directly regulate, impose any new or additional requirements, on small entities,'' we feel that significant costs will be incurred by Federal agencies, State, Tribes, local agencies, and many small entities. Section V actually describes the significant added costs to the private sector when each respondent will spend an average of 82 hours per silvicultural activity to collect information required by this proposed rule. Nine million small entity private landowners own 58 Percent of the Nation's productive non-industrial forestlands. Most contractors working with these landowners to conduct forest management, build roads, plant trees and other practices, are small, independent businesses. Approximately 85 percent of timber purchasers and road-building contractors on forestlands meet the definition for small businesses. As currently written, the proposed regulations put Federal primacy over these businesses and make the business environment more uncertain for long-term investment and growth.
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Additionally, the costs do not estimate those that will be incurred by Federal, State, Tribes, and local governments. It would be more helpful to the public and the large and small entities affected by the proposed rule, if the costs for implementation were more adequately considered and disclosed.
REDEFINING NONPOINT SOURCE
NPDES. We are concerned about the source of information used in the proposed NPDES rule to judge that State NPS control programs have failed to the extent that regulations need to be expanded for silviculture. There is credible literature cited, albeit misused, as to silvicultural operations contribution to NPS pollution, but not to its affect on the beneficial uses of water. The citations in section IIIB of the preamble are not clear a to whether or not BMPs were appropriately applied. In May 1996, the EPA and senior officials, of State agencies (Association of State and Interstate Water Pollution Control Administration) issued guidance for an approach for States to strengthen their NPS pollution programs. Since it is unclear what published information EPA is using to substantiate the need for redefining silvicultural situations as point sources we wonder whether the May 16,1996, guidance was not enough, inappropriate, not in place long enough to be effective, or failed to effectively strengthen NPS control program by the States. We also are concerned that redefining silvicultural situations as point sources may be viewed as the first step to redefining other agricultural situations as point sources.
It appears in sections IIIA and IIIB in the preamble that EPA is assigning to itself additional authorities at the Federal level that it is hesitant to assign to States. In addition, EPA does not require of itself the same rigor as it does of a State in making a determination as to the need for a permit. We understand that states are required to conduct an assessment of beneficial uses to determine if the uses are adversely affected when water quality standards are exceeded, or if the standards are to be changed. Based on this assessment, the States determine what additional measures are needed. The proposed EPA assignment of additional authorities to itself and requiring less of a standard of itself than it does of a State to determine if a permit is required appears to be contrary to section 101(a)(5), 101(b), and 101(f) of the CWA. This may leave EPA open to questions of arbitrary and capricious actions by the community it is regulating.
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It appears that the proposed regulations are focusing NPDES permitting requirements on land use and not on activities that effect water quality. This may unnecessarily lead to questions regarding the traditional roles of States and local communities having primacy over land use. Some examples where the proposed rule is focused on land use are:
The proposed regulations do not recognize the vast extent that Federal agencies practice and/or support private landowners to practice silviculture and build and maintain roads for silvicultural purposes. These agencies include the Fish and Wildlife Service Bureau of Land management, National Park Service, Department of Defense, Department of Energy, Bureau of Indian Affairs, NRCS, and the Forest Service These same agencies usually have or assist with activities that have similar effects on water quality as silvicultural roads (e.g. prescribed burning for domestic and wildlife grazing road building for access for grazing and recreation sites, and Federal Highway Administration Forest highway construction), but these activities are not addressed in the regulations. Lack of inclusion of these other activities furthers the impression that EPA is changing the definition for NPS pollution contrary to Congressional intent and case law.
States and counties practice silviculture and provide and operate Forest Highways and roads for access to practice silviculture and other management activities. Counties manage 10 percent of the Nation's forests. As written the draft regulations will provide Federal primacy on these lands contrary to section 101(b) of the CWA. Therefore, the proposed regulations do not seem to be a practical approach to controlling NPS pollution due to silvicultural use on these lands.
The term ''reforestation'' is not qualified and one must assume a permit could be needed if reforestation occurs subsequent to catastrophic events, such as wildfires or restoring a road after a flood. In addition, the proposed draft regulations are unclear about prescribed fire for the reduction of fuels to reduce the risk of wildfires. This is not a practical situation for land managers and subjects them to a high degree of uncertainty and potential increased costs.
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A more practical approach is already in place in sections 208 and 319 of the CWA to control pollution from problems caused by silvicultural operations.
TMDL
Many of the proposed TMDL rule changes are based on EPA's new interpretations of the existing law and redefinition of terms that appear to reinforce the position that EPA has the authority to include NPS pollution under sections 301 and 303. By treating NPS pollution like point sources, most normal agricultural activities, such as growing crops, grazing activities, animal husbandry, and silvicultural operations could become subject to future, unreasonable regulatory action. This position causes concern within USDA.
The effluent limitations that are required by section 301 and 303 of the CWA apply to point sources only. In the existing regulation for TMDLs, the EPA established a new term, ''load allocation.'' This term does not appear in the CWA. The basic concept in the existing regulation is that for water quality-limited waters, TMDLs are to be established that include ''wasteload allocations'' for point sources, ''load allocations'' for NPS, and ''natural background loads. A calculated TMDL is the sum of all three, elements. It was commonly understood that NPS and natural background loads were to be estimated for the purpose of setting appropriate waste load allocations, not for establishing NPS load limitations. The proposed regulation could be perceived as a move toward future regulatory controls for NPS based on load allocations.
Relative to this issue, we are concerned that the EPA confuses the CWA and existing EPA regulation. In the TMDL preamble, background item 1, second paragraph, it states that ''Section 303(d) of the CWA requires States, Territories and authorized Tribes to identify and establish a priority ranking for water for which existing pollution controls are not stringent enough to attain and maintain...water quality standards'' (emphasis added). Section 303(d) actually refers to ''effluent limitations'' not ''existing pollution controls.'' Following the language of section 303(d) a reasonable person would conclude that TMDLs are to be focused on controlling point sources. One would need to ignore the Act's actual wording to bring control of NPS under the TMDL process.
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The EPA's rationale for the blurring of section 303(d)'s original intent is explained in the TMDL preamble, item 4(b). The proposed direction will probably prevent the EPA from effectively addressing NPS in their existing programs. Congress drew a distinction between point sources and NPS in the CWA that is not adequately recognized in the proposed regulations. Section 319 outlines a NPS program for this purpose that is parallel to the section 303(d) process for point sources. The proposed regulations will eliminate the effectiveness of section 319. If Congress had meant for all pollution sources to be covered under section 303, there would have been no need for the 1987 amendments that added section 319. This new direction may unnecessarily trigger significant public controversy and break-up partnerships that have been forged to address water quality. USDA is prepared to assist the EPA to address NPS pollution on USDA public lands, and to provide assistance to private land owners/users through a voluntary, incentive approach.
SCOPE
Although the proposed NPDES regulations are limited in scope. Section V of the preamble, leaves room for eventual efforts by EPA to not recognize any part of silviculture as NPS of pollution (see paragraph 7 of section V). The rule also duplicates already existing guidance for TMDLs the address a watershed improvement plan when water quality is found to be impaired. Therefore, the proposed rule is redundant to regulations under section 303, and to sections 209 and 319 of the CWA. This redundancy is contrary to section 101 (f) of the CWA.
RELATION TO COASTAL ZONE MANAGEMENT ACT
Another concern is the relationship of the proposed TMDL and NPDES regulations with the regulations for controlling NPS pollution control under the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA), administered by EPA and the National Oceanic and Atmospheric Administration (NOAA). There is an appearance that the proposed TMDL regulations will supercede section 6217 of CZARA because NPS is being treated differently than administered under section 6217.
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Section 6217(g) of CZARA requires EPA to publish (and periodically revise thereafter), in consultation with NOAA, the U.S. Fish and Wildlife Service and other Federal agencies, ''guidance for specifying management measures for sources of nonpoint pollution in coastal waters'' Management measures are defined in paragraph 6217(g)(5) as:
''Economically achievable measures for the control of the addition of pollutants from existing and new categories and classes of nonpoint sources of pollution, which reflect the greatest degree of pollutant reduction achievable through the application of the best available nonpoint pollution control practices, technologies, processes, siting criteria, operating methods, or other alternatives.''
State Coastal Nonpoint Pollution Control programs must provide for the implementation of management measures that are in conformity with this management measures guidance.
In the management measures guidance published by EPA, a description of section 6217 and the legislative history was included. This description indicated:
''The legislative history (floor statement of Rep. Gerry Studds, House sponsor of section 6217, as part of debate on Omnibus Reconciliation Bill October 26, 1990) confirms that, as indicated, by the statutory language, the 'management measures' approach is technology-based rather than water-quality-based. That is, management measures are to be based on technical and economic achievability, rather than on cause and effect linkages between particular land use activities and particular water quality problems. As the legislative history makes clear, implementation of these technology-based management measures will allow States to concentrate their resources initially on developing and implementing measures that experts agree will reduce pollution significant. As explained more fully in a separate document 'Coastal Nonpoint Pollution Control Program: Program Development and Approval Guidance', States will follow up the implementation of management measures with additional management measures to address any remaining coastal water quality problems.''
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The EPA guidance document further states:
''The legislative history also indicates that the management measures guidance, while patterned to a degree after the point source effluent guidelines terminology-based approach (See 40 CFR parts 400–471 for examples of this approach), is not expected to have the same level of specificity as effluent guidelines. Congress has recognized that the effectiveness of a particular management measure at a particular site is subject to a variety of factors too complex to address in a single set of simple mechanical prescriptions developed at the Federal level. Thus, the legislative history indicates that EPA's guidance should offer State officials a number of options and permit them considerable flexibility in selecting management measures that are appropriate for their State. Thus, the management measures in this document are written to allow such flexibility in implementation.
''An additional major distinction drawn in the legislative history between effluent guidelines for point sources and the management measures guidance is that the management measures will not be directly or automatically applied to categories, of nonpoint sources as a matter of Federal law. Instead it is the State coastal nonpoint program backed by the authority of State law that must provide for the implementation of management measures in conformity with the management measures guidance. Under section 306(d)(16) of the CZMA, coastal zone programs must provide for enforceable policies and mechanisms to implement the applicable requirements, of the State Coastal Nonpoint Pollution Control program, including the management measures developed by the State 'in conformity' with this guidance.''
In light of the EPA guidance and EPA's description of the legislative history, we believe there needs to be a more extensive identification of how the TMDL process will relate to the CZARA process. For instance, the proposed TMDL regulations should specify how implementation plans will relate to ongoing NPS activities under the CZARA. How will a State's section 6217(g) 15-year program implementation strategy be coordinated with respective TMDLs? If a State receives approval for its coastal nonpoint program why would a waterbody to be addressed under section 6217 need to be listed an a section 303(d) list or have a TMDL established? How does EPA intend to manage on the one hand section 6217 with its NPS control approach closely aligned with section 319, and on the other hand, manage a TMDL and NPDES program that is more oriented to a point source regulatory approach? If the ''management measures'' approach of CZARA is technology based rather than water-quality-based, and is not expected to have the same level of specificity as effluent guidelines how would that relate to the specific assignment of pollutant loads for NPS under TMDL? In the 'Final Administrative Changes to the Coastal Nonpoint Pollution Control Program Guidance for section 6217 of CZARA', EPA and NOAA recognized AU all water quality problems attributable to NPS way not be resolved within 15 years. If this is the EPA, position, how would this type of situation be managed under a TMDL implementation plan?
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Additionally, the proposed NPDES regulations should disclose how silvicultural operations under the CZARA will be permitted.
SECTION 303(D) LIST OF IMPAIRED OR THREATENED WATERS
There is a very close relationship between section 303(d) lists of impaired or threatened waters and the section 305(b) Water Quality Assessment Reports submitted by States. There is also a very high likelihood that States will identify the same waterbodies on each. This is problematic, due to the questionable value of section 305(b) reports. Numerous concerns have been raised by various groups and organizations about the credibility of section 305(b) reports. For instance the United States Geologic Survey (USGS) wrote in its 'Water Supply Paper 2400', published in 1993, that ''two major difficulties preclude the analysis of use-support data for determining national water-quality conditions and trends. First State-to-State differences in the standards and criteria, used to determine use support make it difficult to interpret regional patterns in water quality; and second, methodological changes over the history of the 305(b) program preclude any analysis of trends.'' In light of 'USGS' position, USDA wonders whether the 305(b) reports, will be helpful to accurately portray the conditions for waterbodies that cross State borders. It has also been reported by others that them have been problems with the accuracy of ''measured'' miles of rivers and streams in the 305(b) reports along with the number of miles of assessed'' or ''surveyed'' rivers or streams. If the simple matter of measuring miles of a river or stream are not accurately portrayed in 305(b) reports, how credible will the identification of impaired or threatened waters be when the information is transformed to a 303(d) list?
Threatened waters are water bodies that presently meet WQS but, because of trends in water quality data, may not meet standards in the future. The Federal Advisory Committee Act (FACA) Committee, which the EPA established, recommended that those waters be put on a special list. The EPA has chosen not to implement the recommendation and will require threatened waters be included on the impaired water list. Since there is a difference between threatened and impaired waters, and each may receive different management and incentive approaches EPA should accept the FACA Committee recommendation and not co-mingle these categories of waters on the same list.
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The definition of part 4 waterbodies as proposed at 130.27 may cause the development of a TMDL when effective controls are already in place. Part 4 waterbodies must become part 1 waterbodies if WQS are not met at the next listing cycle (2 years). In fact, appropriate land management controls may be in place and water quality may be improving, but WQS may not yet be attained. This may be because it takes longer than 2 years for a given watershed to respond to treatment, and not because the treatment is incorrect. The recovery process often takes more than 2 years. Establishment of an improving trend in water quality for a waterbody should be sufficient to maintain part 4 waterbody status.
Regarding the data and information used to determine which waterbodies to include or remove from the section 303(d) list at paragraph 130.23(e) of the TMDL proposed regulation indicates that the methodology used must ''specify exactly what conditions must exist before the waterbody is removed from the list of impaired and threatened waterbodies.'' Identifying conditions that could remove a waterbody from the list of impaired and threatened waterbodies, in many instances, is difficult at best. There are many conditions, both individually and cumulatively, that can impact water quality. To ''specify exactly what conditions must exist'' excludes the States' ability to utilize adaptive management techniques. The removal of the word ''exactly'' from the subject paragraph would provide more leeway for states to better adapt to new science and technology that address water quality issues. The methodology should also provide alternatives to allow new information/technology to become incorporated into assessment protocols.
NATURAL BACKGROUND, EPISODIC EVENTS, AND WATER QUALITY STANDARDS
The TMDL and NPDES rules assume that all NPS pollutant loads can be controlled all the time, regardless of seasonal variations or frequency of occurrence of large storm events. It appears the proposed rules ignore the fact that large storms and significant snowmelt events may contribute large loadings that cannot be controlled in a. practical and economical manner. Rather. BMPs are usually designed to control the runoff from 10-to 25-year frequency storm events as a maximum. Some of the larger storms will have runoff that carry loads that are greater than the total average annual loading and cannot be reasonably controlled by BMPs. A permitting process will not overcome the basic physical and natural phenomenon, either. The proposed rules need to reflect these natural and extreme variations.
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Moreover, many episodic violations of WQS are caused by poor land use and practices that were applied more than 50 to 100 years ago which produce sediments that are still in the stream channel or by the ''natural'' variability of water quality. Where State WQS provide that these episodic events do not exceed the criteria, there is no violation of WQS. Where State WQS do not allow criteria to be exceeded by these episodic events, WQS will be violated regardless of the activity, or lack of activity. However, where the beneficial uses of the water are not impaired by the criteria being exceeded, or the violations are caused by the ''natural'' variability of water quality, the State should be encouraged to amend its WQS in the interest of effectively controlling NPS.
REASONABLE PROGRESS
The Antidegradation Policy proposed at section 131.12 of the NPDES Regulation states that a new discharger into a water body that does not attain WQS must show reasonable progress toward attaining the standard. While it may be possible to prevent further impairment from a land disturbing activity, it will be difficult or impossible to show improvement from such an activity. This requirement, coupled with the large number of waterbodies identified as limited, may preclude land management activities on a large number of watersheds.
TOP-DOWN APPROACH
Although EPA provides States much of the authority to implement TMDLs and NPDES permits, the proposed regulations generally establish a top-down approach. Such an approach usually alienates the very partners and cooperators with a whom working relationships should be fostered. It can also serve to stifle creativity and the development of cost-effective implementation approaches at the State level. Although the proposed rule seems to envision extended public involvement and calls for multi-party agreements and action, EPA is proposing a prescriptive approach with short, unrealistic deadlines. USDA recommends that EPA incorporate a greater level of flexibility, incentives, and assistance for States, Tribes and local governments, and their partners in these proposed rules.
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October 22, 1999
Mr. Gregory Beatty
Environmental Protection Agency
TWashington D.C. 20460
Dear Mr. Beatty.
Thank you for the opportunity to review and comment on the Environmental Protection Agency's Draft Guidance Manual and Example National Pollutant Discharge Elimination System Permit for Concentrated Animal Feeding Operations (CAFO).
The Department of Agriculture shares EPA's common goals and dedication to water quality protection. However, we are concerned with the approach that EPA is fostering in the proposed Guidance Manual. The proposed manual appears to be establishing policy (not guidance) without the authorization of statute or regulation. Additionally, the proposed manual would cause most animal feeding operations (AFO) with more than 300 animal units (AU) to be defined as CAFOs, thus requiring a permit. We feel that regulating and issuing permits for many of the livestock production facilities in the United States will create unnecessary financial burdens. Also, the capacity for technical assistance does not presently exist to address the workload effectively in the timeframe proposed in the Guidance Manual. In general we feel that the course of action and criteria, outlined in the proposed Guidance Manual would cause a disruption to existing nonpoint source control programs and may create a potentially cumbersome permitting process, in addition to widespread litigation.
We offer these comments and emphasize that we wish to work constructively with EPA and others toward a comprehensive water quality program that is efficient, uses the best scientific information and technology, reduces bureaucratic burden, minimizes potential for litigation, and, most importantly, results in improved water quality.
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Section 2.3.3 Pages 2–6. The defining criteria for AFOs with 300 to 1,000 AU that could cause them to be classified as CAFOs states: ''A man-made channel or ditch that was not created specifically to carry animal waste but nonetheless does so during storm events should be considered a man-made conveyance.''
USDA Views this clarification statement as problematic and detrimental to voluntary natural resource conservation efforts. Conservation practices or Best Management Practices (BMPs) such as terraces, filter strips, grassed waterways, and restored or created wetlands installed on land units that may have manure applied on or adjacent to them could be identified as man-made conveyances. These conservation practices are frequently used in combination with other practices, such as proper waste utilization and nutrient management in a resource management system that is intended to prevent polluted run-off. Under this proposed identification criteria, most AFOs that USDA and others provided technical assistance for in the installation of these conservation practices would be classified as CAFOs. This would mean that an extremely large number of AFOs would become CAFOs just because the operators are attempting to be good stewards. In other words, voluntarily applying conservation systems would make the conservationist open to more rigid regulation. Also, as a result, livestock operators with less than 1,000 AU would resist future voluntary implementation of land treatment conservation practices for fear of being designated a CAFO.
Voluntarily installed conservation practices that improve the ability of the land to use nutrients in animal waste and minimize their presence in surface water run-off and ground water should not be the deciding criteria for classification as a CAFO. EPA should encourage installation of these types of practices, not discourage them. The mere presence of these practices does not create a greater risk than that which would exist had the practices not been installed. Many of these conservation practices or BMPs are planned and designed to divert run-off; control erosion, and filter pollutants from run-off. We recommend that criteria should focus instead on quantity of animal waste applied in relation to the ability of the land to assimilate and crops to use the nutrients applied. A distinction needs to be made that BMPs or conservation practices installed on a field to correct a natural resource problem should not be included in the broad category of man-made conveyances which may carry animal wastes directly to a receiving water body without appropriate assimilation of treatment.
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Also, with respect to the man-made conveyance criteria, the presence of field tile lines (subsurface drains) needs to be better addressed. A large percentage of the cropland fields in the United States have some subsurface drainage present, and including all these operations as potential CAFOs is unrealistic and not based on sound science. Moreover, the negative water problems that have been associated with subsurface drains are commonly the result of over application of waste water through irrigation systems or manure. Land with subsurface drains receiving manure applications in accordance with acceptable nutrient management guidelines should not be included in the ''conveyance'' definition.
Section 3.2,2 Pages 3–8. This section addresses discharges in excess of a 25-year, 24-hour storm. The terms ''chronic rainfall events'' and ''catastrophic events'' are ambiguous; they need to be defined. The phrase ''exceedance of water quality standards'' needs to be defined, as well as the basis for this determination. Does ''exceedance of water quality standards'' refer to the discharge of the point source, or the water body the point source outlets into? We have a concern that if this ''exceedance'' refers to the point source, that this statement could be applied to all CAFOs. If all CAFOs are required to have zero discharge up to a storm event, left to the discretionary decision of a permit writer, development of a Comprehensive Nutrient Management Plan (CNMP) Would be almost impossible.
Section 3.2.3. We strongly disagree with the last paragraph. Operational records and detailed plans required as part of a CNMP should NOT be available to the public. The Natural Resources Conservation Service has a policy of not releasing conservation plan to the public. This is a ''right to privacy'' issue making these plans public will increase the 'number of unwarranted nuisance suits brought against livestock producers.
Section 3.2.3. The Certified Crop Advisory Program of the American Society of Agronomy does not have a certification program for individuals to develop CNMPs. The section of the Guidance Manual should be changed to reflect this matter.
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Section 3.3.2.1. Testing soils annually to determine nutrient contents (except possibly nitrogen) is too frequent. The proposed guidelines will create an unnecessary burden. Most Land Grant Universities recommend 3 to 5 years.
Section 3.3.2.2. A sound, scientifically developed CNMP will include all of the necessary components to address water quality concerns related to manure, organic waste and waste water management. This section implies that EPA will require additional BMPs above and beyond those in a CNMP. This requirement is not part of the Unified National Strategy for Animal Feeding Operations and should not be part of the Guidance Manual.
In addition, while chemical handling may need to be addressed, it should not be part of a CNMP.
Section 5 and section 1.2 . These sections state ''Round 1 CAFO permitting is to be coordinated with the Coastal Non-point Pollution Control Program and the Total Maximum Daily Load (TMDL) program'' and ''Large CAFOs are encouraged to be permitted by January 2000 and smaller CAFOs not latter than the end of 2002.'' These timetables are not possible to achieve since TMDLs have not been developed in most States and may only be developed 10 to 15 years in the future. A clarification is needed to resolve this conflict. Additionally, if the proposed criteria in section 2.3.3 are not changed, the number of CAFOs needing CNMPs and technical assistance will far exceed the capacities of the available qualified public and private consultants who provide these services.
General. It is suggested that the following terms used in the proposed manual should be defined or explained in order to avoid confusion and misinterpretation, and allow uniform application and interpretation:
Section 1.2 ''significant manure production''; section 2.2 ''commonly owned fields''; section 2.3.5 ''director''; section 2.3.1 ''Best Professional Judgement (BPJ)''; section 3.2.2 ''chronic and Catastrophic rainfall events''; section 4.3 ''exceptionally large'', ''significant expansion''; Appendix F. ''significant environmental concern''; Appendix F, part V, section C ''representative sampling''
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If we can be of further assistance regarding our comments and suggestions, please feel free to contact us.
Sincerely,
James R Lyons
Under Secretary, Natural Resources and Environment
cc:
Glenda Humiston, Deputy Under Secretary, Natural Resources and Environment, USDA
Pearlie S. Reed, Chief, NRCS