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 yo