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PLEASE NOTE: The following transcript is a portion of the official hearing record of the Committee on Transportation and Infrastructure. Additional material pertinent to this transcript may be found on the web site of the Committee at [http://www.house.gov/transportation]. Complete hearing records are available for review at the Committee offices and also may be purchased at the U.S. Government Printing Office.
CLEAN WATER ACT REAUTHORIZATION: AGRICULTURAL, ENERGY AND ENVIRONMENTAL PERSPECTIVE
FRIDAY, FEBRUARY 24, 1995
House of Representatives,
Subcommittee on Water Resources and Environment,
Committee on Transportation and Infrastructure,
Washington, DC.
The subcommittee met, pursuant to call, at 10:12 a.m., in Room 2167, Rayburn House Office Building, Hon. Sherwood L. Boehlert (chairman of the subcommittee) presiding.
Mr. WAMP [presiding]. Good morning and thank you for all joining us at the Water Resources Subcommittee.
Again, I am Zach Wamp, the Vice Chairman of this subcommittee. This morning, we will be looking into the agricultural, environmental and energy concerns of the Clean Water Act reauthorization.
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I am pleased that Chairman Boehlert has asked me to start this morning's hearing, and he has been called away to testify before the Rules Committee, should be joining us a little later. When he returns, I will gladly yield the Chair back to him.
I have a few brief comments before I call on our Ranking Member this morning. And I want to let you know that today we will hear from three critical interests in the Clean Water Act reauthorization process: the agriculture community, the environmental community and representatives of our Nation's energy interests. As we move forward in the development of clean water legislation, I will be looking to each of these groups for input on how we can most responsibly protect our Nation's waters and most effectively spend our limited water infrastructure dollars.
Over the last two decades, the Clean Water Act has been one of our Nation's most effective environmental statutes, and with proper tuning it can continue to serve our Nation's enormous thirst for clean water.
Our first panel this morning will be comprised of representatives from the American Farm Bureau, the American Soybean Association, the National Cattlemen's Association and the National Council of Farm Cooperatives.
I would like to extend a special welcome to Steve Hoefer, a friend of Chairman Boehlert's and valued counsel on agricultural issues from upstate New York.
Our second panel today is comprised of representatives from the National Resources Defense Council, the Sierra Club and Trout Unlimited.
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Incidentally, Chairman Boehlert's district in upstate New York is home to some of the Nation's finest trout streams and trout fishermen, and he says he is continually reminded back home that clean water is our region's most valuable natural resource.
And, finally, our last panel will be comprised of representatives from the National Mining Association, the Edison Electric Institute, the National Hydropower Association, and the Northern California Power Agency.
Clean, efficient power is a critical element to our Nation's environmental health, and we look forward today to insights of this panel on the workings of the Clean Water Act.
I would now like to recognize the subcommittee's Ranking Member, Mr. Borski.
Mr. BORSKI. Thank you very much, Mr. Chairman.
I want to congratulate Chairman Boehlert once again for holding this series of hearings on the Clean Water Act, a law that touches the life of every American.
Today, we are looking at the issue of nonpoint source pollution, the next frontier of the Clean Water Act. We have heard from many witnesses that the Clean Water Act has been a success. The condition of our Nation's waters have improved greatly during the past two decades. During this period, local governments and industries have played a great role in reducing pollution from point sources. Much of the cleanup has been achieved through the enforcement of statutory deadlines, administrative deadlines and court-approved compliance orders.
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The use of deadlines does not in any way demean the effort to reduce pollution. Virtually all action in every walk of life is taken through the use of deadlines. As a matter of fact, Mr. Chairman, we are now sitting through a 100-day deadline, if you will, the contract of America.
I would ask unanimous consent for the entire statement to be made part of the record. I look forward to hearing from our witnesses today.
Mr. WAMP. Without objection.
[Mr. Borski's prepared statement follows:]
[Insert here.]
TESTIMONY OF DEAN KLECKNER, PRESIDENT, AMERICAN FARM BUREAU FEDERATION; JOHN LONG, FIRST VICE PRESIDENT, AMERICAN SOYBEAN ASSOCIATION; LES McNEILL, MANAGER, CARSON COUNTY FEEDYARD, ON BEHALF OF THE NATIONAL CATTLEMEN'S ASSOCIATION, THE AMERICAN SHEEP INDUSTRY ASSOCIATION AND THE NATIONAL PORK PRODUCER'S COUNCIL; AND STEPHEN HOEFER, VICE PRESIDENT, PUBLIC AFFAIRS/GOVERNMENT RELATIONS, AGWAY, INC., SYRACUSE, NY, ON BEHALF OF THE NATIONAL COUNCIL OF FARMER COOPERATIVES
Mr. WAMP. Our first witness this morning will be introduced by Mr. Tom Latham.
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Mr. LATHAM. Thank you, Mr. Chairman.
I just wanted to give a special Iowa welcome to Mr. Kleckner. He lives 40, 50 miles I guess from my home, served the Farm Bureau so extremely well for so many years. And I just want to welcome you here as a fellow Iowan. Thank you.
Mr. WAMP. Mr. Kleckner.
Mr. KLECKNER. Thank you, Mr. Chairman.
Thank you, Congressman Latham. We do farm about 40 or 50 miles apart in north central Iowa.
I am Dean Kleckner. I am a corn hog farmer from Iowa. I am President of American Farm Bureau, and we do appreciate the opportunity you are giving to us to speak on reauthorization of the Clean Water Act.
From the perspective of farmers and ranchers, there are three aspects to the Clean Water Act that need your attention: Very briefly, first, a nonpoint source program that retains the basic tenants of the current 319 program. That is number one. Second is the need for a clear, comprehensive wetlands policy. And, third, an adequate commitment of time and financial resources to make it work.
We believe that H.R. 961 provides a good framework from which to begin debate. Farm families have an inherent self-interest in protecting water quality. The issue has been a priority for farmers and ranchers for many years, and there is a tremendous amount of activity now on the farms and ranches across the country. Farmers are reducing erosion and increasing efficiency of chemical use.
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As a kid in Iowa—let me just digress for a minute. As a kid in Iowa growing up, thinking back, there was tremendous amounts of soil erosion. That isn't there any longer.
Chemical use on my farm is down 20, 30, maybe 35 percent over the past decade. So it is happening the chemical use is going down.
Despite the perceptions, all indications are the surface water quality is improving, and the trend is more than likely to continue.
Senator Chafee has noted that 80 percent of the Nation's waters now meet the Clean Water Act's goal of being fishable and swimmable. That is something we ought to be shouting about, not being defensive about. We are making great progress. We have just come a long ways in 23 years.
It is important for the general public to know that whatever water problems exist in rural America they are manageable problems. We do not have a water quality crisis.
As this committee prepares to revise the Clean Water Act, I would like to offer several observations that come from our experiences in working with landowners and, in fact, being landowners.
Number one, farmers and ranchers want do what is right for the environment. We will respond to problems when provided with sound, scientifically based information and reliable, cost-effective solutions.
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Two, our public policies affecting water policies, affecting water quality should be based on fact, not perception. There is a critical need for a continued funding of research and a greater understanding of the complex site-specific linkages between on-farm practices, off-farm factors and water quality.
Three, we believe the programs and solutions that work best are those that come from the grassroots up. Achieving improved water quality practices is best accomplished by voluntary, locally designed and implemented, site-specific solutions. We should retain the emphasis on State primacy.
It is equally important to realize that these practices must be put into use before any benefit is to be achieved. Therefore, we need a sound, trusted and reliable delivery system of information, technology and assistance at the farm gate.
Fourth point, achieving water quality improvements is a process that takes time to see results. You just don't do it overnight. We should take a reasoned, long-term approach to water quality improvement and avoid the temptation to make decisions or set deadlines based on historical snapshots.
Fifth point, there is an urgent need to consolidate efforts. One of the major problems that we farmers face today is the multitude of duplicate programs. Each can have a positive impact on water quality, but it makes no sense for our landowner to have to deal with the paperwork for what could be numerous and separate programs. We need to better coordinate these programs to avoid redundant or conflicting requirements and to improve public understanding. There are horror stories out there about farmers having to deal with so many Federal and State agencies.
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Sixth point, emphasis should be directed to priority watershed areas based on scientific assessments. Strategy should be developed on a watershed-wide basis.
Seven, the success of the efforts to address nonpoint source pollution will require financial resources, the necessary resources in order to succeed. We believe a sustained financial commitment similar to that devoted to point source pollution needs to be made in order to overcome economic impediments and achieve the long-term success.
In conclusion, Mr. Chairman, our farmer and rancher members realize that neither they nor the Nation can afford the goals of zero pollution and zero risk when it comes to controlling soil erosion and ag runoff or any other human activity. However, we are willing to pursue excellence in conservation. We believe that H.R. 961 provides a good framework from which to begin debate, and we will be providing you and the other committee Members, Mr. Chairman, with detailed comments on H.R. 961 in the near future.
Thank you.
Mr. WAMP. Outstanding, Mr. Kleckner.
And may I say that today's schedule is going to be very packed; and, as a result, what we are going to attempt to do, in the event the bells go off again, a Member will come and take the Chair, and I will sprint and then come back. We are just going to keep going because we have got three panels.
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And now we have our Chairman here. And, without further ado, I think I will yield back to the Chairman and finish by saying that I was going to—I will still be available to sprint. So if the bells go off, I will sprint; and the Chairman will remain in the Chair. And when I come back he can go and vote.
And, with that, I would like to recognize our Chairman, Sherry Boehlert. We are in between our first witness and our second witness, Mr. Chairman.
I will go ahead and introduce our second witness, Mr. McNeill, who is representing the National Cattlemen's Association, American Sheep Industry Association, the National Pork Producer's Council.
If you could hold your testimony to five minutes, we can then have more time for questions in the order of those that have arrived. Mr. McNeill.
Mr. MCNEILL. Thank you. The National Cattlemen's Association appreciates this opportunity to provide testimony on reauthorization of the Federal Clean Water Act.
Mr. Chairman and Members of the subcommittee, my name is Les McNeill, and I am manager of Carson County Feedyard in Panhandle, Texas, a medium-sized feedyard with 15,000 head capacity. I have been with the feedyard for over 21 years.
Our written statement has been submitted for the record on behalf of the NCA, the American Sheep Industry and the National Pork Producer's Council. Today, I would like to summarize our written comments.
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Animal agriculture is the only agriculture entity which has the distinction of being considered a point source. Large feedlots considered to be concentrated animal feeding operations—or CAFOs—by Clean Water Act regulations are subject to the point source provisions of the act. CAFOs are a unique class of point sources which are prevented by the Clean Water Act from discharging wastewater into the waters of the United States, except in the event of an extreme 24-hour/25-year storm.
CAFOs are also small businesses who cannot pass on the cost of environmental regulations. Because of their inability to set prices, subjecting these small businesses to extreme citizen suit liability, which can be fines of up to $25,000 a day, is inappropriate; and the Clean Water Act should be modified in this respect.
The beef cattle industry has several proactive programs to protect and improve water quality. Studies have been conducted for both groundwater and surface water quality, proving that feedlot retention facilities do not impair water quality.
Feedlot owners consider manure to be a resource, a source of plant nutrients, rather than a waste to be disposed of. Feedlots employ rigorous nutrient management plans, which include soil and manure testing and plant nutrient needs. As a result, manure is applied at economic rates which provide enough nutrients for the needs of the crop without creating runoff which would impact water quality.
NCA is also developing a handbook of water quality practices which cattle producers nationwide can use to protect and improve water quality.
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NCA supports several point source and nonpoint source provisions of H.R. 961. We will reserve our comments on the wetland issue until a later time, and we would urge that the following provisions be maintained and improved as this bill proceeds.
First of all, the goal of the Clean Water Act must continue to be reducing discharges of toxic pollutants to waters of the United States and not include numerous ecological health goals. Risk assessment and cost-benefit analysis should be maintained throughout this reauthorization of the Clean Water Act. NCA questions the exception found in H.R. 961 which may cause EPA to step up its regulatory efforts to avoid risk or cost-benefit analysis.
H.R. 961 also provides adequate protection against inadequately funded Federal mandates. Nonpoint source programs should continue to be State-based, targeting limited Federal funds to impaired waters and include appropriate and realistic funding authorizations.
Point source issues. In light of recent court decisions, NCA would recommend modification be made to the storm water discharge permit program found in H.R. 961. In C.A.R.E. v. Southview Farms, the court held that land application of manure can be considered a point source activity, subject to citizen suits of up to $25,000 per day. It is NCA's opinion that the law remains unclear on this subject. This case will be appealed to the U.S. Supreme Court.
NCA would recommend that any discharge from land application of manure be considered an agriculture storm water discharge, exempt from storm water permit requirements. NCA feels it is inappropriate to subject all point sources to the same level of liability, including monetary penalties and citizen suits under the Clean Water Act. We recommend that a category of point source facilities be exempted from these excessive penalties. This exemption could be based on the flow of discharge allowed by the facility's permit, i.e. facilities whose permit allows no discharge, up to a specified storm event, would not be subject to citizen suits or other monetary penalties.
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Nonpoint source issues. NCA would like to reiterate what we deem to be important components of any reauthorized nonpoint source program. These points are based on the statement of principles developed and supported by the Clean Water Working Group, a coalition of over 40 ag and agribusiness organizations.
First, Section 319 is not broken. Therefore, its integrity should be maintained throughout this reauthorization.
Second, enforceable nonpoint source programs will be costly and ineffective and impossible to fully fund in the current budget climate. Section 319 should continue to promote voluntary nonpoint source programs.
Third, to optimize program effectiveness within current budget constraints, States should maintain the flexibility granted to them when Section 319 was passed in 1997—1987.
These three points are the parameters against which NCA will assess any nonpoint source proposal.
NCA appreciates this opportunity to provide our views on the point source and nonpoint source sections of H.R. 961, the Clean Water Act Amendments of 1995. Mr. Chairman, we look forward to working with Members of the House Transportation and Infrastructure Committee to develop workable and realistic clean water authorization this next year.
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Thank you, and I will be glad to answer any questions.
Mr. BOEHLERT [presiding]. Thank you very much, Mr. McNeill.
Mr. Hoefer.
Mr. HOEFER. Mr. Chairman and Members of the subcommittee, my name is Steve Hoefer; and I am Vice President of Public Affairs for Agway. Agway is a regional farm supply and food marketing cooperative. It is headquartered in Syracuse, New York, and is owned by 90,000 farmer members in 12 northeastern States.
Near the end of last year, I had the opportunity to meet with groups of our farmer members in New England, New York and Pennsylvania to discuss farm-related water quality issues. And prior to our meeting, I surveyed those who would be participating in the meeting, which was about 200 of our farmer members, to determine what they are thinking about these water quality issues. And the results of that survey were quite enlightening. I would like to share a few things with you from that.
Four out of the five farmers changed their farming practices during the last few years—specifically for environmental reasons. Nearly every farmer believes that better management of farm nutrients such as manure and fertilizer can save them money and that cost sharing, tax incentives and information that shows that they can save money are the primary incentives that would encourage farmers to develop a farm nutrient management plan.
What we are hearing from our members is that they want to be part of the solution in addressing real water quality issues. They want to work in partnership with the local government, land grant university and the private sector on a voluntary basis. They want sound information on what works, and they want financial assistance. They also believe that agriculture is unfairly facing the brunt of criticism for nonpoint source pollution and that efforts should be directed at other contributors as well.
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Mr. Chairman, we also recognize the public's concern about the impact farms have on the environment, and for this reason Agway and many other cooperatives from around the country are participating in the National Forum on Nonpoint Source Pollution. The National Forum is cosponsored by the National Geographic Society and the Conservation Fund to demonstrate voluntary, nonregulatory approaches to addressing nonpoint source pollution issues in agriculture and other sectors.
At Agway we are working with our members to deal with these issues. For example, at our Farm Research Center we are working to develop new dairy feeds and feeding practices which will maximize the conversion of nitrogen and phosphorus in milk production and minimize excretion of these nutrients.
We have also designed new systems for manure handling and storage, including the anaerobic biogas digester system at USDA's research facility in Beltsville, Maryland. And we have introduced satellite-guided field mapping and farm soil test mapping to help farmers match what is in their fields with the requirements of the crops they plant.
In talking with the people in our company who are directly involved in bringing these new technologies and services to the farm, I have found that one of their biggest fears is that government is going to slow them down and increase the costs of these products and services to farmers. Mr. Chairman, I believe that this is an area where H.R. 961 can help us out by reducing the mixed signals coming down from Washington.
For example, in New York, four different State agencies—Department of Environmental Conservation, the Department of Health, Department of Agriculture and Markets, and even the Department of State—administer the many Federal and State laws that affect water quality and regulate how farms impact water quality; and there is no formally designated leadership among them at this time.
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We are currently working with the new administration in Albany to develop a nonregulatory strategy for addressing statewide farm environmental issues. There is a Dairy Manure Management Working Group that was convened by the Department of Agriculture and Markets, and they suggested a strategy that we believe may serve as a national model for addressing farm environmental issues.
That strategy employs a voluntary, incentive-based approach consisting of four key elements: first, an educational outreach program to farmers; second, utilization of certified planners to develop farm environmental plans; third, development of a one-farm plan that would meet the requirements of all Federal and State water quality laws; and finally, utilization of incentives to encourage farmers to voluntarily develop and implement farm environmental plans.
Examples of potential government incentives include regulatory relief, especially in the area of enforcement policies, and cost sharing grants to farmers. Private sector incentives such as preferential interest rates from the farm credit banks could also be incorporated into this program.
Mr. Chairman, we believe that farmers and their cooperatives are already making great strides to address water quality issues, and we look forward to working with you and other Members of the subcommittee to design reasonable solutions.
Mr. BOEHLERT. Thank you very much, Mr. Hoefer.
Mr. Long.
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Mr. LONG. Thank you, Mr. Chairman, and good morning to everyone.
I am John Long. I am a farmer, currently serving as First Vice President of the American Soybean Association. On my farm in Newberry County, South Carolina, I raise soybeans, corn, wheat, timber and cattle.
Today, I am here representing four commodity groups: the American Soybean Association, the National Association of Wheat Growers, the National Corn Growers Association and the National Cotton Council.
I appreciate the opportunity to be here today and to share the views and concerns of our memberships on legislation regarding nonpoint source pollution on agricultural lands. This is an important issue for today's American farmer and one that greatly affects the success or failure of our businesses.
I would like to begin today with the illustration of the basic principles which our organizations have helped develop through the Clean Water Working Group, a coalition of 37 agricultural and soil and conservation associations. We hope these principles can be embodied in the Clean Water Act Amendments to be considered by Congress.
In watersheds where impairment has been specifically related to agriculture, farmers have been willing participants in cooperative watershed projects. In fact, for the past several years, I have been personally involved in two projects in the Camping Creek/Bush River watershed in the Piedmont area of South Carolina. Although the two projects vary in objectives and goals, both are examples of landowners voluntarily adopting best management practices to improve water quality with local, State and Federal agencies providing the technical information and some cost-sharing incentives.
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The first project began in 1986 as a watershed project to treat cropland erosion and improve the water quality of the Camping Creek/Bush River watershed. With the cooperative efforts of the local Soil Conservation Service and the Newberry Conservation District, producers were made aware of the sedimentation problems in the region, and we were educated on the latest farming methods to reduce erosion.
Forty-eight producers participated in the program, and the concentrated effort resulted in the implementation of such practices as strip cropping, parallel buffer strips, conservation tillage, terraces and waterways. The results that we achieved I feel are worth bragging about. Today, 7,000 plus acres in this area or in this program; and, to date, we have saved over 76,000 tons of soil.
In a more recent effort, many of the same leaders and farmers came together to develop a hydrological program for the Bush River area. This area is a heavy crop and livestock production region that was contributing significantly to water quality impairment of the Bush River. This fact caused serious concern for local, State and Federal officials because Bush River feeds into the 55,000 acre multiuse Lake Murray. Lake Murray serves not only as a local favorite for swimming, fishing, boating and other activity, but it is the main source for generation of electric power. And, probably more importantly, it is a major water supply for the City of Columbia, which is one of South Carolina's largest cities.
Once again, with the leadership of the Conservation District, the Soil Conservation Service and other agencies, producers were offered technical assistance and education regarding the benefits of implementing management practices that minimize nonpoint sources of pollution. Thirty-eight waste management systems were implemented that are treating over 76,000 tons of dairy, poultry and swine waste yearly. Over 100 producers voluntarily participated in the initial program. And, in fact, farmers who did not participate in the original program have adopted many of the practices on their own after realizing that a lot of the changes in nutrient management actually improve their efficiency and productivity.
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I would like to add that many of the practices are costly, such as fencing to limit livestock access to waterways. So I want to emphasize the importance of cost-sharing programs and the continued need for the development of new technologies and conservation practices that are not so expensive.
Soil conservation agencies currently monitor the water quality of Bush River, and they report that we have made great improvements. There are numerous other examples of watershed projects in other parts of the country that are also working because of the desire on the part of the landowners to contribute to water quality improvement.
Wheat growers are voluntarily implementing conservation tillage and nutrient management in Kansas, where Wichita has assisted in the cost—the City of Wichita has assisted in the cost-sharing effort there.
In South Dakota, wheat producers and cattle ranchers are implementing things such as rotational grazing and conservation tillage to improve the water quality in the Bad River watershed. And, in this area, over 80 percent of the folks in that area are participating.
These projects and others like them where farmers are voluntarily adopting best management practices to reduce runoff have are based on some very important principles. Number one is targeting resources to priority impaired watersheds; number two is working partnerships between private landowners and government agencies; three is voluntary participation; four, site-specific planning; and, five, respect for private property rights.
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Key Members of this committee have introduced legislation which we understand is to serve as a starting place for the clean water debate. H.R. 961 would allow States and local watershed authorities to design flexible, voluntary, site-specific solutions to nonpoint source problems. It is essential that top-down programs, which rely on enforceable measures and practices to demonstrate progress in water quality goals, not be implemented.
As demonstrated by my earlier examples of voluntary projects, USDA provides valuable technical guidance and expertise to the producers involved. For this reason, we believe USDA should be the lead agency in providing technical assistance for all agricultural nonpoint source projects.
Thank you very much for allowing me to share our views. I look forward to any questions.
Mr. BOEHLERT. I want to thank the entire panel for your excellent testimony. I think it is very obvious that what you have to say is of a great deal of interest to this subcommittee, because you can see there are a number of Members here. With the many demands on our respective schedules, this is not often the case. So you should feel complimented. We want to hear what you have to say.
We will get the green light, red light on. I will adhere to that five-minute rule myself.
We have heard from a number of witnesses and we will hear from the next panel that we made some substantial progress dealing with the subject of point source pollution and that if we ratchet down further the cost will be exorbitant for the gain. So everyone seems to be concentrating on nonpoint source pollution, which is a subject of great interest to all of you. You have all mentioned it. A great deal of interest to me, too.
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The governors have said that, the Council of Mayors, the National Association of Counties, the industrial groups have all said we have got to deal with the subject of nonpoint source pollution. And I want to do so in the vehicle that we report out. But I want to do so in a way that is not heavy-handed. And one of the things I am most aware of is the need for some financial assistance as we do the deed that needs to be done.
And I am particularly sensitive to the needs, Mr. Kleckner, of the small farmers and farmers, Mr. Hoefer, that your fine establishment serves. What would be your reaction to the suggestion that maybe we should consider supplementing the State revolving fund with an additional amount of money earmarked exclusively for dealing with nonpoint source pollution?
I say this because I am mindful in the history of the Clean Water Act we have spent on a government basis about $60 billion to deal with point source. When you add what the nongovernmental sources have put in, you are talking about 150, 160 billion. One of you mentioned it in your testimony.
But when we talk about what the government has committed for nonpoint source pollution, it is less than a billion dollars. Now, comparatively speaking, where is the equity there? Is something like——
Two questions. One, can we do what needs to be done if we just continue to make it voluntary? And I am not convinced that we can. Two, if we put a little more teeth into the legislation, as I think a number of people have and will testify we need to do, then would a State revolving fund make that more palatable?
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Who wants to venture an answer first on that one? Do you all want to run away from it?
Mr. HOEFER. Well, I will offer a comment.
As far as can we do it just voluntarily, I think we have had tremendous experience in the last couple of years with some of the programs that our company has been bringing out to work with farmers addressing this particular issue. And I am very excited that we can deal with it in that regard.
One of our biggest challenges in dealing with it in your State has been in noncoordination of the programs. You know, we have the Coastal Zone Program, as an example, that is run by our Department of State in New York; the Clean Water Program that is run by the Department of Environmental Conservation; the Safe Drinking Water Program, which comes up in the New York City watershed in the Delaware County area and part of your district, Mr. Chairman, that is administered by the Department of Health, and the Department of Agriculture and Markets has its own program.
Our biggest challenge is in trying to bring some of that together. And, in particular, we think the Federal legislation—it can give some guidance on how to bring more of these voluntary, incentive-based programs out to farmers.
As far as the revolving fund money is concerned, I agree wholeheartedly that if money can be used as a cost-sharing fund for farmers, we can be far ahead. When I did my survey of our members throughout the Northeast on this, cost sharing came out to be the number one reason why they would engage in voluntarily doing environmental planning on the farm.
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Mr. BOEHLERT. Anyone else care to tackle that? Mr. Long?
Mr. LONG. Yes, sir, thank you. I would a like to make a comment, if I could.
As I mentioned in my testimony, I have been personally involved with some voluntary efforts on my own farm. I think if farmers are given the incentives to do some of these voluntary things I really believe they will, in fact, incorporate them.
I know on my own farm there were things that I wanted to do and I knew I needed to do, but when I got the technical assistance from the USDA people and got the cost-sharing incentives, then it really made me go ahead and do them. And I know a lot of other farmers in our area did the same thing.
I think our—the groups I represent would be very supportive of increasing funding for cost-sharing efforts. However——
Mr. BOEHLERT. That response doesn't surprise me, incidentally. But I have found from my own experience that our farmers are among our most responsible conservationists and are most sensitive to the environment.
But I recognize the plight many of them have. They would like to do some things that they simply can't afford to do. And if we are serious about this business of dealing with the problem, it seems to me that we ought to develop some sort of mechanism where we have a few more bucks in the kitty from the Federal Government. And I don't pride myself on being a big spender, but I am willing to spend some money from the taxpayers that I think serves a very useful public purpose. And if we get into some sort of cost-sharing program, I think it would be very beneficial.
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Mr. LONG. Yes, sir, thank you.
Mr. BOEHLERT. But I am not convinced—and I am sure you are going to stick around for the next panel. I am not convinced that just continuing the existing program as it is, hoping that the best intentions will do the job, will do the job. I am not convinced of that. But I am receptive to anything you might say.
Mr. Kleckner.
Mr. KLECKNER. Mr. Chairman, I might point out something that I think you all know very well, that ACP funds have been cut 50 percent twice in a row. So the funding is not increasing; it is going down. And you are certainly right about farmers—these things cost money and farming isn't the most lucrative business to be in. The revolving loan program does make some sense. I think it has to be worded carefully or it could be an unfunded mandate. I don't think that is the intent. You are talking about it being a voluntary program.
Mr. BOEHLERT. We are running away from unfunded mandates these days.
Mr. KLECKNER. I understand that. But I think—I think farmers have made amazing progress.
As I said in my testimony right before you were able to get here, Senator Chafee says—and this was as of a few years ago—that now 80 percent of the waters have become fishable and swimmable in the past 23 years. Now a lot of that change has come from point source, but nonpoint source farmers are just plain doing a better job. This is with a few exceptions, as there always are. And I think we have to keep in mind that while farmers are given—I think are bad-mouthed on occasion or the perception is that we are the nonpoint source polluters, there are a lot of other sources of nonpoint pollution also.
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Mr. BOEHLERT. Could not agree with you more.
But we have made tremendous progress. I mean, it wasn't too long ago——
My time is up. I was going to—well, two quick things.
I will point out the Cuyahoga River, you know, used to be you could light a match and it would burn in beautiful downtown Cleveland. Now it is a source of great pride to that community, that State. And Lake Erie was essentially dead. Now it is revised. So we are doing a lot of things right, I think, because we made some substantial progress in dealing with the problem of point sources of pollution.
But to go much beyond where we are—and we have got to keep striving to do so—is going to be very, very costly. I think the biggest bang for the buck comes in the nonpoint source area, and I am trying to figure out how we can best effect a partnership that is productive for both the government and the communities you represent. Thank you.
Mr. Borski.
Mr. BORSKI. Thank you, Mr. Chairman.
Mr. Hoefer, let me follow up a question the Chairman raised with you about the importance of coordinating the various Department of Agriculture and clean water programs that farmers may participate in. Have your organizations developed specific proposals on how that might be accomplished?
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Mr. HOEFER. I didn't catch some of your question there, sorry.
Mr. BORSKI. You—in response and in your testimony, you emphasized the importance of coordinating various Department of Agriculture and clean water programs that farmers may participate in. Has your organization developed specific proposals on how that may be accomplished?
Mr. HOEFER. Yes, Mr. Borski. We have worked in cooperation with some of the States, most notably in New York but also in Pennsylvania. About two-thirds of our business is in those two States.
Basically, what we have recommended is an approach that couples an outreach program to farmers that we would see carried out by several groups, including cooperative extension, that we would look for the States to give us some help in coordinating the development of what we like to call the one-farm plan concept; and that one-farm plan concept, in essence, means having the State develop one plan that would allow a farmer to comply with that plan, and be in compliance with any of the Federal or State laws that are on the books.
Now who would do that plan? We are recommending that certified planners, certified or approved by the State, would be the ones to do that. And how do you get farmers to engage in this undertaking, to voluntarily do these plans? This is where we see the private sector role and the government incentives to be offered.
Mr. BORSKI. I might recommend, if you will, if you have these specific proposals, that you submit them to the subcommittee. I think it would be helpful to us.
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Mr. Long, let me start with you and then ask anyone to jump in on this one, if you will. You have advocated voluntary nonpoint source control programs, and you provided some very positive examples of voluntary programs working. I am wondering if you have any information on the level of farmer participation in voluntary programs to control nonpoint source pollution.
Are there any figures, for example, on percentage of participation in an impaired watershed, both with and without cost sharing? I think this information would be useful in determining whether there is validity to the suggestion whether voluntary programs would do the job.
Mr. LONG. I can't comment on that on a national scale. I do know one of my examples in my testimony, on a voluntary basis there was 80 percent participation in a watershed. I believe it was the one in South Dakota. So I am sure these figures could be readily available.
Mr. BORSKI. Anyone else familiar with? Again, I think that—yes.
Mr. KLECKNER. It is an appropriate question. And visiting with our staff here we can work to come up with some numbers that should help you, specific numbers. That is what you are asking for.
But let me just say that the trend with farmers—with farmers today—is moving toward conservation tillage, less tillage of the soil, either no till or minimum till. It is all lumped together. And a third of the acres in the country are now in the conservation tillage area. I mean, we are just running over the ground less, less erosion, less pollution as a result of that.
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So farmers I think are doing it for conservation reasons and cost reasons. It doesn't cost as much to do it with equipment we have today once you get the equipment. So I—we will come up with some figures I think that ought to give you a pretty good answer.
Mr. BORSKI. I think that would be very helpful.
One final question, Mr. Chairman. What if we decide to proceed with allowing participation to be purely voluntary? How long should we wait to determine whether this approach has sufficient participation to achieve the water quality improvements needed to meet quality water standards? What should we do, say, after 10 years, we have come no closer to meeting water standards and the pollutants for which standards are not met are associated with agriculture? Mr. Long?
Mr. LONG. I think if we put the appropriate funding in it—I heard some awfully big figures cited here earlier that I wasn't aware of that that much money might be available. I don't know whether it is available, but it has been spent on I guess point source pollution. If we put some money there and we monitor how things are progressing, maybe have some benchmark points to see how things are going—I mean, I think it is only fair that if results aren't being achieved under a voluntary program, then you know some other things we may have to look at. But certainly you would want to have plenty of time for these things to go into effect. And I don't know arbitrarily saying whether 10 years is the right number or not, I don't know.
Mr. KLECKNER. Mr. Borski, I just say that we all want to move in the direction—in the direction of less pollution, to just be cleaner. We are moving that way.
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What I guess my caution would be, I think there are plenty of figures available—I know there are figures available to show that we can't expect this to happen overnight. It just is going to take a long time. I think we have to be very careful to even say 5 years or 10 years. We haven't moved fast enough. But it is a rolling, it will keep on getting better.
I have been at the Beaver Creek project in Tennessee a year or two ago. I think that is an example of the close monitoring that has been done with many agencies of government that is showing in the stream sediment, for example. The farmers are doing things right. There are filter strips. They are doing—they are not putting on chemicals. They are doing things right.
But you simply have erosion of stream banks which is keeping those streams dirty. I think the average person would say it is coming from the farmland, and it is not.
So even the year 2009, which I think is projected in the bill for certain things to happen, I suggest to you that, well, while that seems like an awful long time, some of us won't be around then perhaps, that is probably not a long enough period to get the answers we want, even though it is now, nine—what, 14 years in the future. We have to be very careful about setting parameters of time too short.
Mr. BORSKI. Mr. Chairman, if I may, just in closing, we have put time limits in most other areas in the Clean Water Act, even if they were extended at some point in time. We have seen very little cooperation if there hasn't been some limit set, however reasonable.
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Mr. Chairman, thank you.
Mr. BOEHLERT. Thank you.
Mr. Wamp.
Mr. WAMP. I am going to pass, Mr. Chairman. I have been in and out too much here to know what is going on.
Mr. BOEHLERT. Mr. Latham.
Mr. LATHAM. Thank you very much, Mr. Chairman.
I guess my first question would be very much in line with your concerns as far as, you know, do we have the money and the resources to go along with the requirements.
And I would ask maybe all of you, starting with Mr. Kleckner, I am gravely concerned about proposals today with the farm programs, the huge reductions in spending there. And to qualify for many of those programs there has to be a conservation compliance to get the funds from the ag programs.
My question to you is are we going to set back the advances we have made as far as minimum tillage, no till, by reducing the funding on the ag budget and coming almost directly, going the other direction here from what we would like to see? People are just going to opt out of the program. You are not going to have the requirement to comply with conservation, with good practices. Just your feeling on that.
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Are we to that—I think we are almost to that point right now where the large producers who have most of the acres are saying that—enough with the bureaucrats. I am just going to jump out of the program anyway and farm it the way I want to. What is your feeling?
Mr. KLECKNER. Congressman Latham, I think you are right. None of us know for sure. However, I am—I think you are right in that the larger producers are saying it isn't worth it. That is the bottom line. And the new farm program, whatever it may be, may intensify that movement.
However, I guess I am not as pessimistic or as concerned as some of the maybe more extreme green groups are that we are going to go back to where we were a generation ago, unless the hammer is held over our heads. I don't think that is going to happen.
I—my own feeling is that farmers that drop out of the farm program are probably going to drop out more for the fact that they are just fed up with the overall regulatory climate, the filing out of the papers, the standing in line waiting, having every agency tell them something different. They are saying who needs this? I will step out of the program.
But I don't think that means that they are going to back up and start plowing up and down hills and plowing up grass waterways and doing those things. I think that is locked in now to our farming mentality, especially the younger farmers that are computerized, college trained. They have the ethic of environmental and conservation that is not going to change, even if the hammer of government is removed. And they will remove it, because they are fed up.
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Mr. LATHAM. I would appreciate anything, Mr. Long.
Mr. LONG. I agree completely with what Mr. Kleckner has said.
I guess the concern I would have is if the perception is that this hammer of these commodity programs is removed, then the farmer's concerned is what is going to be the other hammer that is going to keep us in these environmentally sensitive programs? And that would be a concern I think the farmers would have.
Mr. MCNEILL. Mr. Latham, of course, a cattle producer is not subject to conservation compliance, but I think I would agree—and I feel NCA would—with the comments of our colleagues hearing this morning.
Mr. HOEFER. I say from the Northeast there is not a lot of participation in the programs. I think what we have seen in the last couple of years is a very high interest of farmers in adopting new technologies to the farm where it can be shown that they are going to save some money on their input costs and the like.
I mentioned some of the things that we are doing with global positioning systems to do some soil testing and do field mapping of farms. The farmers have seen these as excellent management tools for them on the farm, saving them some money, but also it has a tremendous potential benefit for water quality improvement, too.
Mr. LATHAM. I might address Mr. McNeill. In Iowa, we have a large concern today about the confinement, hog setups, and the environmental impact. What is your feeling? Should this—and the soil in Iowa is very much different than maybe in your home in Texas, I believe, and a lot of different situations. Should there be a one-size-fits-all Federal program? Should that be a State issue as far as the—protecting the environment? Mr. McNeill.
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Mr. KLECKNER. Me or——
Mr. LATHAM. Go ahead.
Mr. KLECKNER. I was going to say you cannot have a one-size-fits-all. It is impossible. It doesn't make sense. In fact, even in the State, you can't have that rule—it more likely should be on a watershed basis. That would make more sense than anything else. Or you can get finer than that, but at least on a watershed basis.
Mr. MCNEILL. I go along with Mr. Kleckner. I don't believe you can have a one rule fits all. There is too much difference in geographical regions and topography and hydrology. I just don't think it would be possible.
Mr. LATHAM. Thank you, Mr. Chairman.
Mr. WAMP [presiding]. Mr. Poshard.
Mr. POSHARD. Mr. Chairman, may I ask permission of the Chair for my colleague from Texas to go out of order for 30 seconds?
Mr. LAUGHLIN. It will take longer. I will wait until the turn is determined by Chairman Boehlert. I understand he has got a system that we are going to follow, and I will do that. Thank you.
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Mr. WAMP. Without objection, Mr. Poshard.
Mr. POSHARD. Thank you, Mr. Chairman.
I have some other meetings I have to go to, but I just want to state for the record that I believe very strongly that we ought to maintain the voluntary approach to the wetlands—not the wetlands, but the watershed management practices that we have begun in this country. I look at the various programs that are going on now, especially the conservation reserve program and others, and see tremendous progress.
And given my concerns about the budget deficit and the debt in this country, I think it is highly unlikely that we are going to develop another financial incentive program to get people to conserve in a way that is already voluntarily taking place to a much greater extent than the people of this country think it is.
Now, the CRP and the other multiplicity of things that are going on right now in the agriculture community I think have made tremendous progress over the years on nonpoint source pollution. I would hope that we can maintain the voluntary nature of that. And I would hope that for everybody's benefit we can get the considerations with respect to wetlands delineation and oversight in this country in the hands of SCS and out of the hand of three or four Federal agencies at the same time.
So, thank you, Mr. Chairman. I just wanted to be on record for those comments.
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Mr. WAMP. Good.
Mr. Poshard's prepared statement follows:]
[Insert here.]
Mr. WAMP. Mr. Horn.
Mr. HORN. Thank you very much, Mr. Chairman. I have enjoyed this panel's presentation. They are very thorough.
And I think I only have time to ask one question, but let me ask it of Dean Kleckner, the President of the American Farm Bureau Federation. I was particularly interested in the case you mentioned on pages 7 and 8, which is the Concerned Area Residents for the Environment v. Southview Farm. Now that went on appeal, and what I am curious, first, is has the second circuit decision been appealed to the Supreme Court? Is that on appeal or certiorari or whatever, further up?
Mr. KLECKNER. I think so. Yes, it is.
Mr. HORN. You think it is.
One part I just didn't quite understand was you mentioned the concentrated animal feeding operation exemption for any lot or facility where crops, vegetation, forage, growth or post-harvest residues are sustained in the normal growing season over any portion of a lot or facility. And, as I read it, it seemed to imply that any large animal feeding operation that also grew its own crops would not have to meet the point source regulations imposed on a large feeding operation that did not grow its own crops. Am I wrong on this? How should I read that language? I am just curious.
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Mr. KLECKNER. That is—you are correct.
Mr. HORN. And you feel that makes sense that way? Or is that what is bothering you, primarily?
Mr. KLECKNER. Well, we are just concerned, Mr. Horn, that as livestock operations get larger—and that is the trend—that it is ominous if the C.A.R.E.—if C.A.R.E. v. Southview holds with the appeals court. If the Supreme Court doesn't look at it or agrees with the appeals court, I think you are putting—you are going to be putting some of these operations out of business if they were going to be called point source. And if we read it correctly, a manure spreader spreading manure in the field may be point source of pollution.
It was a bit of levity perhaps, but in the testimony I said the only way they will avoid that is start growing crops in the barn. That is where—the court said, as I remember, and I am not an attorney, because the animals are confined in a barn, that makes them different than it would be if they were out on the pasture. So somehow we've got to figure out crops that will grow in the barn to—which, you know——
Mr. HORN. Hydroponics or something.
Mr. KLECKNER. Yes, something.
But this is—this is an issue. This case is one that could set a precedent for the country. That is why Farm Bureau is so interested in it. I think every—everyone knows about it. It seems to be a test case.
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I am not sure whether it started out as a nuisance suit or not. I understand some people moved into the community, into that area. For whatever reasons—they don't like the noise, the smell, et cetera. The farm was there before they moved in. Although I think the expansion of the farm has taken place during that time also.
Whether I like it or not as a family farmer, I just say that the trend toward bigness in livestock is out there, it is accelerating, and we are going to have to figure out some ways to live with what is happening, what is developing.
Mr. HORN. Any other comment on that case, any of you have?
Mr. HOEFER. I would just comment that Southview Farm is one of our members. They are in western New York. And this is a major area concern to farmers, as Dean Kleckner said, throughout the country and in particular in our neck of the woods since this is a farmer that we know, and he is a farmer that is well respected in the community.
The ruling from the appeals court really goes much further than anybody had ever anticipated, in particular in the area where a manure application equipment could be considered itself a point source. And that really needs to be addressed I think within this legislation. Because it is not just—they talk about manure application here, but it could be application of many other things.
Mr. HORN. As a result of the Court of Appeals decision, have any other administrative actions been taken as a result in using that decision as backing that you are aware of? Or does it just sit in the sort of limbo for a while?
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Mr. HOEFER. When that appeals court decision came down, in essence it said to our State Environmental Department that you should have been regulating this. Because the State Environmental Department told the farmer that he didn't need to have a permit. And so now the appeals court said, well, you guys erred. And our Environmental Department prides themselves on not making those kinds of errors.
And, in essence, they said, well, how the heck do you regulate—how do you issue a permit, a point source permit, to manure application on a farm?
Mr. HORN. So you know of no further actions that have lead to court actions——
Mr. HOEFER. No.
Mr. HORN. ——so those who won so far might get similar sanctions in other areas?
Mr. HOEFER. Not that I am aware.
Mr. HORN. Thank you.
Mr. WAMP. Thank you, Mr. Horn, for your thoughtfulness.
The Chair recognizes the presence of our full committee Chairman, the most organized man I have met in this Congress, Chairman Bud Shuster, the Chairman of the Transportation Infrastructure Committee, for a brief statement.
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Mr. SHUSTER. Thank you very much. I appreciate it.
I am extremely sympathetic to the problems that you have outlined, and I want to emphasize that the so-called bipartisan coalition compromise that we have introduced, which I understand many of you are very supportive of, is only a starting point. And many of us believe that, from that starting point, we must move further in the direction of flexibility.
And I want to assure you that I will use whatever persuasiveness I have to try to make that happen as we develop our mark. And, indeed, the bill we introduced will not be the mark. The bill we introduced is the starting point, and the mark I think will go further in the direction of what you are interested in.
Thank you.
Mr. WAMP. Thank you, Mr. Chairman.
The Chair recognizes the gentleman from Texas, Mr. Laughlin.
Mr. LAUGHLIN. I thank the gentleman, but I will wait until the order is determined by the Chair.
Mr. WAMP. It is okay. I am being kind and gentle today, and it is your turn, Mr. Laughlin.
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Mr. LAUGHLIN. I don't like the Chairman doing what he did, so I will wait until my time comes.
Mr. WAMP. Mr. Martini.
Mr. MARTINI. Thank you, Mr. Wamp.
Most of the—I guess this panel's testimony is directed towards nonpoint source problems with respect to the agricultural areas. And I guess, Mr. Long, directing my question or inquiry to you, in reading your testimony and listening to it, the emphasis obviously is on maintaining flexibility in a voluntary mode to address the problem of nonsource pollution. And you are speaking, obviously, from the perspective of the agricultural problem with nonpoint source pollution.
To the extent you can address this, do you think maintaining this flexibility in voluntary mode would also apply to urban areas that have nonpoint source problems? It sounds as if from your testimony here it is working in the agricultural area. You may not have enough background in this, but I am asking. It is a concern of mine.
Mr. LONG. I don't know whether I can really comment on that. To me, in the agricultural areas, you have producers that usually have considerable amounts of land that they are dealing with. In the urban areas, you are talking about very small areas of land, but you are talking about a lot—of a lot of people that would have to participate on a voluntary basis. That is difficult to answer.
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Mr. MARTINI. Let me just follow up with that.
It would sound as if there is a greater sensitivity in the agricultural, and the agricultural farmers might have a greater sensitive to the preservation of their acreage, their land, the natural resources, which may be enough of a motive to provide that voluntary incentive. And I guess that is a question that comes to my mind, whether or not an absence of any type of impetus by the government in terms of some regulation or some enforcement would lead to the same type of compliance in the urban areas that you are getting, for instance, in the agricultural areas.
Mr. LONG. I don't know whether I can comment on that.
Again, I would say that on the farm we recognize that protecting that resource base is to protect our own way that we do business so—I mean, protecting the resources, which we make our living. So we obviously are very attuned to that. Also, we live there. So we want things to be clean where we live. I would assume those same types of things as far as cleanliness and respect for the environment would apply to our urban counterparts.
Mr. MARTINI. Thank you very much.
Thank you, Mr. Chairman.
Mr. WAMP. Now, Mr. Laughlin, it is your turn, sir.
Mr. LAUGHLIN. Thank you. I thank the gentleman for his recognition.
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I just wish all of you had been here last week when we had some big city folk in here from some cities that tried to put all the nonpoint source pollution problems off on agriculture. And I compliment you for your testimony, but I want to direct my questions particularly to Mr. Kleckner and Mr. McNeill in the area of citizen lawsuits.
As I appreciate the cattle operation and the feedlot operation, where you are permitted for discharge, it is not on a daily basis or even a weekly basis, as many permits allow other industries to discharge. In fact, yours occurs on a basis, as I understand, where you have a 24-hour, 25-year rain that causes the storm water to run off your property.
In view of that, why is it that you are included in the citizen lawsuits with fines up to $25,000 a day for these type discharges when you don't have a daily or a weekly discharge permit? What puts you into the category of those who are permitted to discharge on a daily or weekly basis and what hardship does this cause your membership or the people you are here representing?
Mr. KLECKNER. Well, you are absolutely right. It doesn't make sense to us that we ought to be. I don't see how you can classify agriculture or farmers as point source. This Southview Farm in New York that we have been referring to is based on we think an erroneous interpretation by appeals court, has said in essence they are point source and subject to $25,000 fines. That is what makes this so ominous. If that stands, you will drive small farmers out of business.
The 750 head limit I think is what they are using now in cattle. That could easily come down. I simply can't understand how they can be—how we can be subject to citizen lawsuits. There are laws that keep me or Congressman Latham, other farmers, from polluting. You can't harm your neighbor.
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Certainly reasonable laws are there for all of our protection. But these could be nuisance suits. I mean, this is in the ordinary, ongoing, daily activities of many farms; and, as I said, it is just ominous for the future for commercial, family-type operations. And I think this committee needs to look at that very seriously.
Mr. MCNEILL. Mr. Laughlin, I think we have the same question you have. We often wonder why we are put in the same category.
Mr. LAUGHLIN. Let me try to pinpoint it for you, Mr. McNeill. As I understand, under your permit you cannot discharge on a weekly or daily basis, as many of those commercial institutions can under their permits. You can only discharge when you have a 24-hour, 25-year rain.
Mr. MCNEILL. That is correct. The cattle feeding industry, CAFOs, can only discharge after a 24-hour, 25-year rain. Our permits other than that say no discharge.
Mr. LAUGHLIN. And some parts your area of the State, and I don't even come within hundreds of miles of that area, that won't happen even once a year.
Mr. MCNEILL. It might not happen in a hundred years in our country.
Mr. LAUGHLIN. I understand. But when it does, you are subjected to the $25,000 fine?
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Mr. MCNEILL. Yes, sir, to a $25,000 a day fine. And you know that can add up pretty quick and wipe a feedyard out in a week or so.
Mr. LAUGHLIN. The red light is on. If you can do it in 30 seconds or less, can you tell us why you should not be in the same category as the commercial institutions?
Mr. MCNEILL. Excuse me? No, why we shouldn't be?
Mr. LAUGHLIN. Should not be. Why the family farmer and the operations that you are representing should not be included in the $25,000 fine per day.
Mr. MCNEILL. Because we do not discharge. We don't have a permit to discharge as other point source industries do. We cannot discharge, on a regular, basis or any way.
Mr. LAUGHLIN. Thank you.
Mr. Chairman, I think that is important for this committee to remember, as the distinguished Chairman of this committee said last Congress. A number of us joined together in a bipartisan effort, and I was part of that along with the Chairman. And I am delighted to hear him say that is our starting point. So your testimony today is very important to us.
Mr. WAMP. Thank you, Mr. Laughlin.
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The Chair recognizes the gentleman from Maryland, Mr. Gilchrest.
Mr. GILCHREST. Thank you, Mr. Chairman.
Understanding the nature of at least in the last 10 years or so—in some areas less, some areas may be more—the nature of farming has changed; and the nature of pesticides, fertilizers, runoff have, putting in buffer strips, buffer zones, waterways, cover crops to take up nitrogen, I think at least in my area the agricultural community is moving in that particular direction. And, like you said, Mr. Kleckner, that the younger farmers especially who are coming out of college are now using, it seems, to the point of laptop computers on their tractors.
So I think we are all becoming much more sophisticated, and we all see the necessity of moving in this direction. So I would continue to support a voluntary effort for efficiency reasons. I think if we do it voluntary, an average farmer probably improvises about 10,000 times more than any other citizen in the country by the nature of the job and the nature of the things that they have to do, so I see a voluntary effort as something that will get the job not only done——
Certainly there has to be built-in incentives because some of these things cost money and that has to be a part of the program if we are going to be successful, but I think we will probably get the job done even better. Because people will be harping not from a sledgehammer perspective but from a need perspective. And we want to do this the right way. There will be a lot more alternatives to this. As we move—I think we are all moving in this direction.
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One of the things we hear up here, however—a lot of the things we hear up here is that we have to protect property rights. I think everybody understands the nature of the fifth amendment and how it has grown from 1787 to 1995.
The question is, given all the things that we are trying to do, what in your perception is the nature of the problem of property rights as we move through the understanding that we need clean water, we need to reduce soil erosion, we need to be more efficient with nitrogen, and the whole thing about clean water, the whole thing about agriculture, the whole thing about nonpoint source pollution? How does that impact, in your perspective, property rights? And how can we figure a way through that problem?
If each of you could just give me a quick little answer on that. Hard to give a quick answer on that one, but point to the main sources of the problem.
Mr. KLECKNER. I don't—I am not sure there is a quick answer. But property rights are so important in this country, and the sledgehammer approach is anathema to property rights. Whether it is right or wrong, farmers are very independent business people; and a little bit of honey will get a lot more here than a sledgehammer or the vinegar. It is a cooperation.
The issue in New York or many other States—we are having some in Iowa now, Congressman Latham, neighbor against neighbor. And you don't get what you want when you pit neighbor against neighbor and have the citizen lawsuits. It is a cooperative effort.
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Some incentives, as you mentioned, will get us so much further, faster, to where we all want to be than the sledgehammer, citizen lawsuit, let's take them to court. And I don't think it is going to take an immense amount of incentives either, which won't be available, monetary incentives in this climate that we are under in this country today and the budget restraints we are under.
Mr. MCNEILL. I think I would have to agree with the comments made by Mr. Kleckner. I think in our country property rights are probably the number one issue. And, sure, in our business we are very concerned with the rights of others and what happens. You know, if your property becomes critical habitat for an endangered species, it limits very much what you can do and not do on it. And we are very concerned about it, and it is a top issue with us.
Mr. HOEFER. Based on my experience in the Northeast, farmers want to work cooperatively with the people in the local area. They live in those communities. They work very closely with soil and water conservation, cooperative extension, and the other agencies in those areas to deal with the water quality issues and are very open to do that. That is our experience, and that is how we approach our work with farmers and the others in their community who deal with water quality issues.
Mr. LONG. I don't think I can add anything to what has already been said, Mr. Gilchrest. Thank you.
Mr. WAMP. Well, thank you, Mr. Long. And time has expired.
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Mr. GILCHREST. I think you did, Mr. Long, earlier, when you mentioned a number of these Camping Creek/Bush River projects that people cooperated, and they became successful. Thank you.
Thank you, Mr. Chairman.
Mr. WAMP. Thank you, Mr. Gilchrest.
The Chair recognizes the Ranking Member, Mr. Borski, for a final question.
Mr. BORSKI. Thank you, Mr. Chairman.
I have a question on behalf of Mr. Oberstar who, unfortunately, cannot be with us now due to a scheduling conflict. But as I am sure everyone in the room knows he has been a terrific leader on the question of nonpoint source.
The question is, who should pay for nonpoint source pollution if not the farmer? Sediments end up in harbors where it has to be dredged. Should the taxpayer pay for this dredging? If the sediments are polluted, they have to be put in confined disposal facilities, which, of course, are very expensive.
The Army Corps is talking about getting out of dredging small ports under these because of the tight budget confines that we have. Who should pay for nonpoint source pollution if not the farmer? Mr. Kleckner. Mr. Hoefer.
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Mr. HOEFER. If I could respond on that.
I guess the question that you are posing presupposes that all nonpoint source pollution is coming from farmers. And I guess I would challenge that. I don't see the facts really out there that say that.
I know up in Pennsylvania, acid rain is said to be one of the biggest contributors to nonpoint source pollution in the Chesapeake Bay. I think there is still a lot of research that needs to be done in that whole area.
So I—you know, I don't think we can comment or I could comment relative to who should pay, because it is not a fair question from the perspective of farmers' contribution to the nonpoint source pollution program.
Mr. BORSKI. What if we limit it to the part that comes from agriculture?
Mr. HOEFER. As far as the part that comes from——
Mr. BORSKI. I am assuming you would agree that there is some nonpoint source that comes from agriculture, not all, and I would agree with that. I think it would be fair to assume that some comes from other sources as well.
Mr. HOEFER. Well, I think the Chesapeake Bay program is a very good example of farmers working cooperatively and in a partnership basis with government. And there are cost-sharing monies involved to help the farmer to develop the plans that are necessary to manage the inputs that they have on that farm.
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Mr. WAMP. Mr. Gilchrest, for one comment.
Mr. GILCHREST. I just want to make a quick comment.
And I certainly understand the problems of dredging and the problems of nonpoint source pollution. And everybody has to have some sense of responsibility in doing that.
If you have one farmer with 300 cows who lets them just graze in the stream and you got another farmer two miles down the road who can't do that because the stream is polluted because of the cow manure, then that has got to be worked out.
But there is a cost factor here. It is not only putting in the buffer strips—and you can probably express this a lot better than I do. It is not only putting in waterways or cover crops to take up the nitrogen. It is the shed—it is—you talked about a barn before, and the cattle are in a stall right outside the barn or a holding area. That holding area has to be geared up for nonpoint source pollution, and there is a certain structure that we have required—certain engineering structure that we have required for that holding area or for that barn or for that poultry house, and you got to meet those specifications in order to meet the Federal regulations.
And I am probably one of the most strongest environmentalists in Congress, I guess, at least people call me names that way, but there is a cost to all this. And your average farmer in my area, they are not very big. You got 150 acres, 300 acres. You got a hundred cows. You might have a hundred sheep, might have a hundred pigs, and you are making a living, and you might have 40,000 chickens. I feel sorry for those guys.
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But in order to meet the specifications, it is a whole range of things. And you got to build your barn right, build your holding tank right, build the recycling bin for the manure just right. And so there is a cost, and we have to recognize that cost. And it is going to have to be cooperation. There is going to have to be sharing for everybody to meet the requirements. Thank you.
Mr. WAMP. Okay. If there are no further questions, I want to thank this panel very much for coming and being with us and tell that you we look forward in the coming months to working with you. The agriculture community certainly has many friends here in Congress. Come back.
And, at this time, we will dismiss this panel and ask our environmental panel, the next panel, to get set up; and we will introduce you as soon as you are in your places.
Okay, ladies and gentlemen, our second panel today, three organizations will be represented. Our first witness is Jessica Landman, the Senior Attorney with the Natural Resources Defense Council. Our second witness will be Stephen Moyer, with Trout Unlimited. And our third witness will be Hank Graddy with the Sierra Club.
TESTIMONY OF JESSICA C. LANDMAN, SENIOR ATTORNEY, NATURAL RESOURCES DEFENSE COUNCIL; STEVEN N. MOYER, GOVERNMENT AFFAIRS DIRECTOR, TROUT UNLIMITED; AND HANK GRADDY, ATTORNEY, REEVES & GRADDY, ON BEHALF OF THE SIERRA CLUB
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Mr. WAMP. Ms. Landman.
Ms. LANDMAN. Thank you, Mr. Chairman and Members of the subcommittee, for the opportunity to testify today on the Clean Water Act reauthorization and H.R. 961.
Since its founding in the early 1970s, NRDC has worked to implement and enforce the Clean Water Act. When the law has been revisited by the Congress in 1977, 1981 and 1987, we have worked with the Congress to highlight the many successes and the notable failures of the law, and we have urged needed reforms. In each reevaluation, this Congress has taken steps to strengthen and never to weaken the clean water law.
Today, the Clean Water Act overall is an important environmental success story, even though there still are critical gaps and shortcomings both in the statute and in the programs to implement that statute. Additional changes must continue with past tradition and make the Clean Water Act stronger, not weaker. We urge that this principle be placed at the foundation of this committee's deliberations.
Unfortunately, H.R. 961 does not adhere to this principle of continuous improvement in the law; and, therefore, NRDC is unable to support it. There are a number of areas in which the bill would undercut existing protections or slow down the ability of the EPA and the States to implement the law effectively. I would like to point out a few of those concerns.
In the area of wet weather flow, namely problems with urban storm water and combined sewer overflows, there are signs of progress in the national program since the Clean Water Act last was reauthorized in 1987. We have a national CSO policy that has been adopted and is beginning to be implemented, and EPA and the States and cities have begun to work on controlling the ravages of storm water pollution and habitat destruction.
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There are clearly important flaws in both of these programs, but these flaws we believe are better addressed through administrative reform than through the provisions of the bill that is before this committee, which we believe would backtrack on current law in several key areas.
We are concerned about the bill's blanket exemption from the storm water permitting program for all small cities under 100,000 and for all commercial and smaller construction sites. These types of sites offer us our very best opportunities for pollution prevention.
The best storm water controls are site design and careful land use, which are the cheapest to introduce before growth occurs. Smaller cities where growth is occurring rapidly offer us our best and most cost-effective opportunities for storm water pollution prevention—prevention of storm water problems. Unfortunately, the exceptions in H.R. 961 are too broad and would leave all small cities out of the picture entirely.
Last October, the moratorium on storm water permits for smaller cities expired. These cities have testified before you. They are concerned about the potential for lawsuits, and they want relief. NRDC is sympathetic to their concerns.
We acted last fall to force EPA carry out the Clean Water Act mandate that it issue Phase II rules for these smaller cities. We are close to reaching resolution of that case. And, along with the Direct Final Rule that EPA intends to publish, this action of NRDC will help to delay the onset of the Phase II rules for 6 years and will ensure that in the meantime EPA prepares to manage the program properly when regulation of small cities that have major storm water problems and potential problems does come on line.
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In short, administrative solutions to the program's problems and gaps will work, but if a legislative fix is made we urge instead the adoption of the compromise provision that was negotiated in the last Congress and was embodied in a bill in the Senate, S. 2507. That bill would have shrunk the list of covered cities to urbanizing areas, established important performance standards for storm water permits, and provided an exemption from numeric end-of-pipe limits in municipal storm water permits.
Turning now to combined sewer overflows, we do support the codification of the CSO policy that was negotiated among EPA, cities, States and environmentalists.
But there are other provisions in H.R. 961 which would undercut the policy: the express authority to extend compliance schemes and the overruling of existing court decisions. These are areas that would both be steps in the wrong direction.
Finally, let me touch very briefly on the risk-assessment and cost-benefit analysis provisions in H.R. 961. These would throw a major monkey wrench into the workings of the Clean Water Act that have been the most successful—namely, the effluent guidelines development process.
The risk-assessment methods and the information base to use them are today inadequate to the task that this bill would assign to them. There remain major problems with the risk-assessment process because we do not have enough information concerning the assumptions, or the database. There are problems with current risk assessment's inability to consider noncancer human health effects, for example, and they are incredibly resource intensive.
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Dioxin is a good case in point on this issue. Four years after EPA commenced a detailed—reassessment of the risk assessment it had done of dioxin, the controversy rages ever more fiercely over the risks of this, one of the most thoroughly understood and studied of chemicals.
The resources that are required for a risk-assessment approach—and this bill would substitute such an approach for the performance-based approach in current law—and the additional litigation that this provision would provoke—because it does not exempt such assessments from judicial review—these things would overstress EPA's limited resources and cause the regulatory system under the Clean Water Act to break down.
Thank you very much for this opportunity to highlight some of our key concerns about H.R. 961.
Mr. WAMP. Thank you, Ms. Landman.
Mr. Moyer, you will have a hard time living up to the one hour we spent on the House Floor yesterday on Ducks Unlimited, but good luck. Mr. Moyer.
Mr. MOYER. I will do my best.
Thank you, Mr. Chairman, for the opportunity to testify today. I represent Trout Unlimited, and Trout Unlimited is a national fisheries conservation group dedicated to the protection and restoration of our Nation's trout and salmon resources, and the watersheds that sustain those resources.
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We have 75,000 members spread out all over the country in 435 chapters around the country. Our members generally are trout and salmon anglers who contribute large amounts of their own personal resources to aquatic habitat protection and restoration efforts. By that I mean doing things like we have talked about today, going out and working with farmers to put fences along streams to keep cattle out of streams to protect riparian areas and trout habitat. We are putting our money where our mouths are.
We consider the Clean Water Act to be the Nation's single most important law for protecting and restoring trout and salmon populations. And strengthening and improving the Clean Water Act, especially its polluted runoff provisions and wetlands provisions, are among our highest legislative priorities in this 104th Congress.
I also serve as the Polluted Runoff Work Group chair of the Clean Water Network. Jessica mentioned them. That is a coalition of over 400 organizations of all shapes and sizes dedicated to improving the Clean Water Act and strengthening it.
To get right to the point, Trout Unlimited strongly opposes H.R. 961. We appreciate the Chairman's willingness to call this a starting point, and we look forward to working with him on improving it. But we are here to tell you that it has a long way to go before it can truly be what we would call a clean water bill. Right now, we would have to call it a dirty water bill, because of the way it rolls back current law in several important areas. And I will get to those straightaway.
Three important areas that I have highlighted in my testimony where the bill would roll back current law:
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First, it would allow States off the hook for complying with any—that is any—of the already inadequate requirements of the Section 319 nonpoint program for each year that Congress fails to fund the Section 319 program at 100 percent of its authorization level. Since 100 percent funding has never been achieved for this program and a mere $1 less than 100 percent gets States off the hook, this provision appears to us to gut what already is an inadequate part of the Clean Water Act.
Second, the watershed management provision of the bill would dramatically undermine the only mandatory Federal runoff prevention program, the Section 6217 program of the coastal zone reauthorization amendments of 1990, by allowing States off the hook on CZRA requirements if they institute a statewide watershed management program that contains requirements that are far weaker than CZRA's.
Lastly, I will just mention that the wetlands protection part of the bill would completely gut the Section 404 program, and we consider it to be completely unacceptable to us. We won't go into detail because we realize that is a subject of another hearing.
But, in sum, in the face of what we think is widespread public support for improving our Nation's water quality, the staggering loss of fish and other aquatic species due to aquatic habitat loss—for example, there are 10 species of trout and salmon right now that are on the Federal Threatened and Endangered Species Act list; there are many more that may be soon listed, including, I think astonishingly, coho salmon, which used to be one of the most abundant salmon species in the world—it makes no sense to us to roll back the Clean Water Act. In fact, we must move forward; and we look forward to working with the Chairman to do that.
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I just wanted to say to Mr. Boehlert, we appreciated his opening statement about his care about trout streams in his district. We have appreciated his work on the Clean Water Act and his good record on environmental quality.
And I will just leave you with this. We have spent 4 years now trying to reauthorize this law. We have made a lot of progress I think in the last couple years on developing a polluted runoff, a nonpoint provision, that would be mandatory, yet flexible and targeted, which we think is the way to go. Let's revisit that work as we work through this clean water bill and not just throw 4 years of good work out the window.
Thanks for the opportunity to speak to you.
Mr. BOEHLERT [presiding]. Thank you very much, Mr. Moyer.
Our final witness, Hank Graddy, of the Sierra Club.
Mr. GRADDY. Mr. Chairman, good morning.
Mr. Chairman, and Members of the committee, thank you for the opportunity to comment on reauthorization of the Clean Water Act. I am an attorney in private practice in Versailles, Kentucky. My practice includes environmental law and tort litigation.
I come from a farming family. My family has farmed in Woodford County for 200 years, and I am a lifelong Republican and a 20-year Sierra Club member.
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My comments to you in writing summarize two cases that I think illustrate both the strengths and weaknesses of the Clean Water Act, and the cases deal in part with the question Congressman Gilchrest had of the previous panel.
I discuss a case in Harlan County, Kentucky, that resulted in a $2 million property damage settlement to people downstream from a contaminated groundwater plume; and a second lawsuit in Bell County, Kentucky, that went to the jury about 2 weeks ago culminating a long 20 or 30 year period of uncontrolled pollution.
My point is, in these two places the safe Drinking Water Act finally arrived in Harlan County in 1989, and the Clean Water Act finally arrived in Bell County, Kentucky, in about 1986. Both of these cases are cases where property damages for downstream property owners were recovered.
But that is not the reason that brings me here. I am here to talk about toxics. In the second case, the Bell County case, there was testimony that when the sediment from Yellow Creek was put under clean water and fish eggs were exposed to it, the fish eggs died. Seventy-five percent of them died as a result of the degree of contamination in the sediment. Of the remaining 25 percent, the fish eggs that lived, a high percentage of those fish eggs resulted in deformed fish, fish with corkscrew spines, L-shaped spines, and, in some cases, two heads on one body. That was part of the testimony in the Bell County case. And this was from a result several years ago.
There was also testimony in that case of mothers and grandmothers, about their births and the births of their granddaughters and about children born with birth defects, children born with incomplete spines, children born with fatal defects, a higher-than-expected incidence of leukemia, a collection of very exotic diseases—Krone's disease, Wegner's disease, Kawasaki disease, Graves' disease.
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I asked the jury at the close of that trial to create a medical monitoring fund and to award punitive damages in the amount of $10 million. The jury deliberated for 2 hours and returned a verdict of $15 million. Now I mention that because that, in fact, from my perspective, is the wrong way for this Nation to address toxics.
We have two ways. We can either have an effective program of toxic pollution prevention—keeping the toxics out of the water in the first place, keeping them out in dangerous quantities but also working towards zero discharge of toxic pollutants—that must be our goal—and we can use the tort law system only to fill in the gaps between an effective and strengthening pollution prevention program. That is one approach, and that is the way the Clean Water Act is supposed to work.
The other approach is to weaken the pollution prevention features of the Clean Water Act and put more of a burden on tort law to try to seek compensation for damages after they occur if we are able to measure the damages.
The far better approach is the pollution prevention approach that is at the heart of the Clean Water Act as enacted in 1972. I tell you this because, the bill before you, H.R. 961, does not make progress in the area of pollution prevention. It, in fact, weakens the concept of pollution prevention.
It does extend coverage of the act to Federal facilities. It does encourage water conservation. But on the critical issue of trying to reduce toxics exposure it weakens rather than strengthens.
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The specific sections that I think cause trouble begin with Section 303, the risk and cost-benefit analysis section. That section, as Ms. Landman has said, will only serve to add greater uncertainty and greater subjectivity to decision-making at a time when we need more precision and clearer direction.
The other area where I believe there is a major problem is Section 304, the section that adds a number of factors to the determination of what is a toxic pollutant. Quite simply, the determination of what is a toxic pollutant should be health based. It should not be based on interests of national security, as one of the factors has been added here, or risk of other toxics.
What we believe needs to be done is regulatory reform. We need regulations that state a clear purpose. What we do not need is to make the law more difficult to enforce, more difficult to interpret, less able to accomplish the goal of pollution prevention.
There are a number of other specific concerns that we have, but the bottom line is from Harlan County, Kentucky, and from Bell County, Kentucky, we would urge that you strengthen the Clean Water Act pollution prevention provisions and not weaken them.
Thank you very much, Mr. Chairman.
Mr. BOEHLERT. Thank you very much.
I appreciate the input from all the panel.
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We have been joined by the Ranking Member of the full committee, and I would now recognize Mr. Mineta.
Mr. MINETA. Thank you very much, Mr. Chairman. Let me thank you for your continued leadership. It is always hard for me to, frankly, look to the right and see you there, politically, as well as seated to the right, rather, I should say.
Mr. Graddy, I really appreciate your—all three of you—taking time from your own busy schedules to be here and testifying.
And I would like to ask you specifically about—some have argued that we have already achieved what is economically achievable, and if we continue to push for greater environmental improvement the cost of that improvement will be prohibitively high and we will destroy jobs, make our industries uncompetitive or even force many companies out of business. I was wondering what your opinion is of this argument as justification for relaxing water quality standards.
Mr. GRADDY. Thank you very much.
On the last page of my written comments I make reference to an historical example. This Nation a generation ago made the decision to outlaw lead in gasoline. And we were told at the time that that was prohibitively expensive, that it was technologically undoable, that it would put us at a great disadvantage.
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Now, 20 years later, the President of Ashland Oil 2 years ago spoke before the Rio to the Capitals Conference in Louisville, and he pointed with great pride to the fact that our air is now free or substantially free of lead because of the decision made a generation ago to begin the phaseout of lead.
My point is that if we focus on identifying the true serious culprits—chlorine, for example, and certain other aspects of our point source program—that are not getting the job done and if we commit to phase them out of our water supply, we can do that I think in a cost-effective way and a way that the generation after us will applaud.
If we waste money in battling over how risky is this particular chemical and we spend the time and money, frankly, giving it to lawyers and consultants instead of to the engineers that it needs to go to, then we will spend a lot of money; and we will not accomplish very much. But I think we can do much better than that, and I say that as a lawyer.
Mr. MINETA. And you say that today the industries are better off and society is better off as a result of that process?
Mr. GRADDY. The petroleum industry and the automobile industry are proud of their accomplishment, and society is much better off.
Mr. MINETA. Ms. Landman or Mr. Moyer, both of you have testified that State nonpoint programs should include enforceable policies and mechanisms. In the 103d Congress, in the Boehlert-Mneta bill, what we were doing as it relates to nonpoint source was to give that to the States to develop on their own and have them do the enforcement. In your instance, what could you mean by enforceable? Who should be able to enforce these programs? Citizens, Federal Government, State government? Who should be able to enforce?
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Mr. MOYER. Well, one key point I think that we would welcome the chance to clarify is that we have not advocated citizen suits for enforcing Section 319, the nonpoint program. There was a lot of misinformation in the last Congress about that particular point. So let me make that clear from the start.
What we envisioned was a lot like the concepts of the Mineta-Boehlert bill last year, also found in the administration's position, also found in the Senate bill that passed the Senate Environment Committee last year. And that was a shared enforcement responsibility between States and the Federal Government, EPA, but largely borne by the States with EPA backup.
The other important element is having enforcement tied to a water quality goal, setting a water quality goal to be met in a certain time period. We think 8 to 10 years would be a reasonable time period, but we are flexible on that. So trying to achieve results, I think that is the most critical thing, achieve mandatory results in a reasonable time period. That the States and EPA would enforce but allow tremendous flexibility that landowners and the States would have in achieving those results.
Mr. MINETA. And that could be determined by, let's say, a discussion by EPA, NOAA, State organizations, looking at the Clean Water Act, looking at the coastal zone and reauthorization amendments, those kinds of agencies as well as those acts?
Mr. MOYER. Yes. Right.
Just to be clear, though, we think that the Federal enforcement needs to be there, Federal oversight needs to be there, but the States should have the lion's share of responsibility in enforcement.
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Mr. MINETA. I think you made that good distinction. Federal oversight and State enforcement is probably the kind of flexibility that would allow the best combination.
Again, I want to thank the panel very much. And, Mr. Chairman, I just want to continue to thank you for your leadership.
Mr. BOEHLERT. Thank you very much.
Mr. Moyer, you touched on something, and I would like to expand on it. I would like all the panelists to expand on it.
Last year's bill was the source of a great deal of misinformation. You just said that citizen suits were not possible against nonpoint source polluters, and I want to stress that. Would you care to comment on some of the other unfounded allegations against last year's bill?
Because, as we deal with this year's bill, more than anything I want to provide aid and comfort to the agriculture community. We are not the enemy. I think we want to work in partnership. And I stress to you, as I stressed to the previous panel, it is my firm belief that the overwhelming majority of people in agriculture in America today are among our finest conservationists and are most sensitive to the environment.
But I know what happens. Someone suggests something, and pretty soon it gets magnified manyfold. And people have visions of bounty hunters coming on their property and $50,000 a day fines. And when you talk about that to a small family farmer in upstate New York or any part of this country that is cause for concern.
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So would you characterize or come up with some of the two or three most often heard misstatements about the last year's bill?
Mr. MOYER. Well, one that I would like to address is this statement about ''one-size-fits-all'' approach of nonpoint source control. I think that the bills that I just mentioned—your bill last year, the Senate bill that was passed, and the administration's positions—were good examples of the exact opposite of ''one size fits all.'' They allowed the States and individual landowners multiple choices about what they could do on their properties and what the States could do to achieve water quality results, to achieve water quality standards.
So all the things that the last panel talked about, about what they are doing on their properties, are perfect examples of the kinds of things that could be done to achieve a particular water quality standard.
Ms. LANDMAN. If I may, Mr. Chairman, two other examples that were mentioned last year: one was the suggestion that the objective, of either the bill, or of those of us who advocate additional measures for polluted runoff sources, is that we wanted every farmer to have a permit. That is not a correct characterization of what we think is going to be an effective program.
As Mr. Moyer alluded to, we are looking for flexible programs where the farmer, him or herself, helps to fashion an appropriate, site-specific water quality management plan suitable to that property. And a permit need not play a role there at all, although we do very strongly advocate that there be available enforcement mechanisms for those farmers, as with all other nonpoint sources, who fail to deliver on the need to address pollution problems that begin on their property.
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Another frequently heard and inaccurate assertion about last year's bill was that it was going to create an army of citizen vigilantes. There was a misinterpretation of provisions in the bill that would have called for increased citizen monitoring programs—something that, incidentally, the agencies have found to be a very important supplement and helpful supplement to government monitoring programs.
Somebody conceived the notion that the combination of citizen monitoring and the polluted runoff provisions in the bill equaled citizens unharnessed, untrammeled, marching onto farmer's property, finding pollution problems and then bringing them into court. And that is a completely inaccurate characterization of last year's bill.
Mr. BOEHLERT. All three of you heard the previous panel. They are all good, fine, distinguished citizens who want to contribute to the development of responsible public policy. Did you hear anything in the previous testimony with which you would find yourselves in complete agreement? And I think the answer is yes.
Are there some things that you might disagree with? And I think the answer is yes.
Have you ever sat down, the four previous groups and yours—Sierra Club, Trout Unlimited, NRDC—sat down with the American Farm Bureau and try to talk things through?
Mr. GRADDY. May I speak to that?
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Mr. BOEHLERT. Sure. Please.
Mr. GRADDY. Congressman, I have over the past 6 months spoken to the Kentucky Farm Bureau at a program on the 1995 Farm Bill, the Kentucky Fertilizer and Ag Chemical Society, to a recent Kentucky Agricultural Integrated Pest Management Conference, and I have taken advantage of every opportunity to speak with the agricultural community in Kentucky.
Frankly, in Kentucky, we have passed a piece of legislation that I think will require farmers to work toward technology-based farm plans, as Mr. Hoefer described, and it ultimately recognizes the concept of a bad actor, that is someone who has been given all the tools to do right, but doesn't.
Now, I think that kind of State plan is something that the Clean Water Act could encourage all States or perhaps require all States to put in place. That is not heavy-handed. It is not a sledgehammer. But it does address the problem of the 5 percent or the 1 percent that will not maintain what they are supposed to maintain. And that is what I think the environmental community is asking for.
Mr. BOEHLERT. Anybody else care to add?
Mr. MOYER. Well, I certainly would, because our—as I said in my testimony, our members routinely work directly with farmers and other landowners to help them do things on their property that protect trout and salmon, riparian areas in particular.
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Furthermore, I just wanted to mention Water Quality 2000, which was a diverse group of interests that come together, including us and agricultural interests, to develop a plan for improving water quality protection and improving the Clean Water Act. And one of the provisions of the Water Quality 2000 report was a mandatory yet targeted and flexible nonpoint program.
Mr. BOEHLERT. Well, my time is up, and I am going to strictly adhere to the time limit, but I would conclude by saying a small percentage on each side of the argument makes it more difficult for all the rest of us who find ourselves somewhere in the middle.
There are some within the environmental community who are just absolute and will not yield a millimeter. And there are some in the community that fears regulation who think that the government has no role whatsoever in imposing any regulations on anybody under any circumstances. Those are the extremes.
I find that the overwhelming majority of people with whom I talk and people who appear before this panel recognize that you make some good points and so do the people on the panel that just preceded you. And the more you talk, the more you understand each other and, in the final analysis, we get better public policy. Thank you very much.
Mr. Latham.
Mr. LATHAM. Thank you, Mr. Chairman.
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Where to start here? All three of you in your testimony talk about your opposition to risk-benefit assessment. And I——
Let me give you an example. In my community, 168 people, they have one town well. I don't know if you are familiar with Iowa, but we don't raise many pineapples in Iowa. But they are required to spend, these 168 people, about $10,000 a year testing that one well for real, acute dangers like pineapple pesticides.
I am—I guess my question to you is I don't know whether your concern about cost-benefit ratio has more to do knowing that regulations, mandates like that, cannot stand up to the test or if—I mean how can you justify something like that and not having any semblance of using common sense, any kind of ratio as to understanding what problems are in communities?
I mean, I am as much an environmentalist, conservationist, as anybody around here. But when you are asking communities to waste tremendous amounts of their resources and dollars on absolute foolishness, how can you justify not bringing some common sense into the argument?
Ms. LANDMAN. Thank you for the opportunity to clarify what I said earlier, since clearly I must have said something that would make you think that I would be against common sense or the sensible use of risk assessment and cost-benefit analysis.
We certainly do not oppose making use of the available information that there is on risk and on cost as a component of regulatory decision-making. The problem arises when one elevates these tools in the tool chest to be the paramount tools in decision-making.
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The reason that the Clean Water Act was structured as it was—you are alluding, incidentally, to a safe Drinking Water Act issue. The Natural Resources Defense Council and others in the environmental community have supported reforms to the drinking water law that would in some respects increase flexibility in issues like monitoring and so forth.
I feel compelled to mention, though, that the pineapple pesticide example that you alluded to is about a pesticide that is no longer in use in areas of the United States other than Hawaii because its registration has been limited today to use on pineapples, but was in use and is, in fact, present in the groundwater supply in many places in the Midwest. So it is a frequently recorded——
Mr. LATHAM. I would question that. What they found with the new techniques of being able to get down to parts per billions or part per trillion, that they can actually find residue on glass or whatever that has been used in testing before from other areas. So that is very questionable. Go ahead.
Ms. LANDMAN. In any event, the Clean Water Act itself contains a very careful balance of using the risk information that we do have to impose from time to time specific effluent limits on particularly pernicious pollutants. Section 307 that Mr. Graddy testified about is the relevant provision of the law—that is, the risk-based provision of the law. That provision of the Clean Water Act has virtually been shelved for the past 15 years, in large measure because it is extremely difficult to meet the risk-analysis types of tests that, even under current law, are required to be met in order to exercise that authority.
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The successful part of the Clean Water Act's implementation program over the past dozen years has been the performance-based part of the law, that is the effluent guidelines program, which is not—does not ignore risk issues. Risk is an important component of deciding which industry to regulate. EPA does comparative risk analyses to see which ones pose the largest risk and makes that the priority for regulation. But it uses economic achievability and cost effectiveness as its measure. And we don't want to see that successful program destroyed by an overlay that this bill would impose of using an only risk-based analysis as the test.
Mr. LATHAM. I mean, I couldn't agree more that we have to get at what are the problems. But we continually waste vast resources in absolutely outrageous requirements like that. And let's get to what the problems are here. And if, you know, rules and regulations don't stand up to just a simple cost-benefit assessment, I mean we should be putting our resources where they are doing some good rather than wasting it.
Anyone else?
Mr. GRADDY. I was only going to say it was my understanding that what you were referring to as the pineapple pesticide was used for many years throughout parts of the U.S. as a fumigant, as part of insect killing in houses. And it has been found in a number of water supplies. It seems like the right way to begin a Safe Drinking Water Act program is to test to see if it is there. Now, if it is not there, then how frequently you test after that is a matter of flexibility.
But everybody should be entitled to——
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Mr. LATHAM. But it continues to be on the list—and I think there was testimony this morning. Out of 126 pesticides, I think only 16 have ever been found, but they continue to have to test for it.
Thank you, Mr. Chairman. My time is up.
Mr. BOEHLERT. Did anyone else care to—I don't want to end. If anyone else cares to comment on Mr. Latham's question.
Ms. LANDMAN. I did want to return, Mr. Latham, to your question about cost-benefit analysis, with a recent example of the problem with elevating that to such a key component of environmental decision-making under the Clean Water Act. Oftentimes it is easy to estimate costs, and it is extraordinarily difficult to estimate benefits.
Furthermore, the costs of an individual regulation almost always have been overestimated by the industry prior to those regulations coming into place—not necessarily because they deliberately overstate the costs but because, as the new regulation comes on board, innovation and the capability of American industry comes to bear on that question and they find cheaper ways to achieve the necessary environmental results under the regulation.
But we also see that with the benefit analysis we are far behind where we are in the cost analysis.
In the recent pulp and paper regulations, which have been the subject of a lot of concern here on the Hill, when EPA was struggling to figure out how to estimate the benefits of safe fish and a safe water supply downstream of pulp and paper mills, they had no choice but to try to estimate those benefits by looking at contracts that the Federal Government had signed with Native American tribes whose fishing rights had been destroyed, calculating how much those destroyed fishing rights were paying those Native Americans per fish, and then saying that is the value that we are going to attribute to a fish—and try to assign that as a benefit to those regulations.
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Well, some things just don't lend themselves to simple number crunching. You cannot assign a dollar benefit to an infertility problem avoided, to a childhood cancer avoided, to premature death and illness on the part of healthy people. And that is the problem with making cost-benefit analysis the paramount component of a regulatory program.
Mr. BOEHLERT. Thank you very much.
Mr. Latham, are you finished?
Mr. Horn.
Mr. HORN. Thank you, Mr. Chairman.
Ms. Landman, you have presented a very thorough brief here, and I am sorry you didn't have a chance to read all of it.
But I picked up on pages eight and nine—I would like some elaboration—where you say the current law already provides for pollutant trading yet suggests we are not seeing more of this today because of the technical problems and because, in your words, we cannot trade certain reductions from permitted point source categories for the highly uncertain reductions from nonpoint sources. You go on to state that the only way to get effective pollutant trading is to enact requirements for enforceable mechanisms for nonpoint source pollution prevention and control.
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Having laid that premise from your testimony, you are aware, I am sure, that myself and others on this committee and other committees have been asking previous witnesses whether or not we have the technical and scientific ability to measure discrete loadings from nonpoint sources. The answer I have been getting is a consistent no, though we can split the total maximum daily loadings roughly between point and nonpoint sources.
Thus, it seems that even enforceable limits will not decrease the uncertainty in trading between point sources and nonpoint sources. Therefore, you seem to be demanding the impossible and throwing up a guaranteed roadblock to the advancement of sensible trading schemes. Can you comment?
Ms. LANDMAN. Thank you for the opportunity to comment.
There are a number of different uncertainties that are alluded to in my testimony. One is the uncertainty that those performance mechanisms will even be put into place on farms or in other agricultural settings or on other nonpoint sources.
So, therefore, when I talk about uncertainty in that context it is in reference to the fact that, in the absence of an enforceable program, there isn't even certainty that those measures will be implemented.
It is accurate to say that, unlike point sources where you can measure what comes out the end of a pipe, it is not possible to measure with precision from any individual nonpoint source—if you can even say an individual nonpoint source—precisely what the reduction to loadings are going to be.
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However, we do have fairly broad performance measures that tell us what types of practices are going to reduce by what general range of percentages nonpoint source loadings to a water body, particularly for nutrients. Therefore, the way to develop an effective trading scheme is to build in a sufficient range of uncertainty protection—a margin of safety—into the trading scheme.
Frequently, that is done by, in the cases where it has been successful, a two-to-one assumption, that for every pound of pollutants that you hope to reduce, you set up a system that would call for an approximate two pounds to be prevented from being added to the water body. So it is, as I said, technically difficult, but it is not an insurmountable obstacle.
Mr. HORN. Well, let me pursue another point that you made because we have got limited time.
In the 2 years of hearings in this last Congress on this, I have heard nothing but unrelenting criticism of the national pollution discharge elimination system program for urban storm water. Yet, on page 11, you state that many officials are positive in the assessment of the overall benefits of that program.
First, I would like to see which municipal officials you know of who like this program. If you have some, let me know. I would like to call them and just find out their side. Because we haven't heard that side.
Second, beyond specific criticisms with the program, the perceived problem is that we are trying to solve a nonpoint problem with a point source regulation. Do you disagree with this characterization?
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Ms. LANDMAN. Congressman, I must disagree with that, yes.
First, let me, in response to your question about municipal officials who like the program—there is, in fact, a quotation from such an official in our testimony from Montgomery County, Maryland. Montgomery County is one of the neighboring jurisdictions here that is recognized as having one of the most successful storm water management programs in the Nation. And they recognize the need to do more because, even with their very successful program, the rate of contamination from storm water in urbanizing areas continues to outstrip their ability to even stay even in terms of impacts on the Chesapeake Bay. So there are officials who like the idea of the program and like the fact that it is being implemented.
They—and we—have a lot of problems with the implementation practices right now under current law. And many of the reforms that we are seeking, which are things like performance measures for a successful program, municipal officials agree with us on.
We don't want a program that just consists of paper permitting and that doesn't really achieve environmental results. We want an effective and more targeted program. And so, in that regard, I think we see eye to eye with many of those local officials.
Mr. HORN. Just one last, brief question, Mr. Chairman, to finish this up.
Finally, you state in various places in your testimony you are working to resolve all those problems in a cooperative and productive manner. I am aware of at least two lawsuits in my area on this issue, one against Caltrans, one against the port of Long Beach. On page 16, you imply that you have also sued the EPA on storm water.
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What I would like you to do—if you want to file it for the record, fine. Can you elaborate on your record of constructive and collaborative working relationships when we have got all these lawsuits floating around? So maybe I would like a brief comment on that. Then file anything else for the record.
Ms. LANDMAN. Our lawsuit against EPA is a deadline lawsuit. It is a lawsuit that is, essentially, to make sure that the Environmental Protection Agency issues the regulations under which cities will know precisely what is expected of them.
Right now, smaller cities in particular are basically twisting in the wind. They have an obligation to submit storm water permits applications, but they have no direction from the agency as to what those applications for permits are to contain. Under the case that we hope to settle with EPA, those smaller communities will have certainty, and they will also have an extended period to come into compliance with those regulations.
So we think it helps small communities, and we have been meeting on a regular basis with the National League of Cities, National Association of Counties and so forth, as those discussions with EPA have gone forward.
The specific other cases that you mentioned are cases that our California office has brought on behalf of NRDC and other environmental groups in those areas, where significant storm water pollution problems have been affecting water quality. And in fact, storm water is the principal cause of water pollution problems in the receiving waters there.
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So that is just a factor showing how important storm water pollution can be, both from the standpoint of biological contaminants and toxic contaminants in receiving waters.
Mr. HORN. Thank you.
Mr. BOEHLERT. Thank you very much.
The Chair will recognize Mr. Laughlin in the order of appearance before the committee in what he now realizes is a fair system of recognition.
Mr. Laughlin, it is my pleasure to recognize you.
Mr. LAUGHLIN. Thank you, Mr. Chairman.
Ms. Landman, I want to talk to you about citizen lawsuits. And while many come here and profess attacks on lawyers, I want you to know I am very proud to be a lawyer. I litigated—proud to have been a litigator and think it takes a certain amount of skill to litigate.
I represent an agricultural area, as you probably determined from the last panel with the questions I had. And a concern I have, when you talk about citizen lawsuits from your side of the table, we are not talking about Joe Schmuck from the 14th congressional district going down and filing a lawsuit. We are talking about an organization such as yours that has hundreds if not thousands of people that pay dues or contributions to file a lawsuit. Isn't that correct?
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Ms. LANDMAN. We do have 170,000 members and supporters. Yes, sir.
Mr. LAUGHLIN. And that—that really isn't a citizen lawsuit, filing a lawsuit against a citizen, is the point I want to make.
The concern I have is one where we have farming operations, and we have to recognize our Nation is changing. When it was founded, this Constitution that we live and operate and govern under was written, this was about 99.9 percent an agrarian society where most were involved in agriculture. In every census, that has diminished, and our suburbs are growing out to our farms.
And the citizen lawsuits filed by the citizen of 170,000 members, you might—can imagine will cause people to have substantial emotional distress that the citizen made up of 170,000 members are getting ready to sue them. And I hope that y'all would take that into consideration and realize why the agriculture community is most often insensitive to the citizen approach.
And then while Mr. Horn was talking I flipped over to one of—I flipped over, and I saw on page 16 that you say right in the middle of the page and even emphasize it with underlining, we support well-reasoned, tailored fixes to the problems with the program, in an administrative context.
Yet we have the cattle feedlot operations which do not get permits like many others to discharge on a daily, weekly, even monthly basis, but they are put into the category of all the other commercial institutions even though they don't have a regular discharge because they have this 25-year, 24-hour rain gives them the exemption. Yet they are at the $25,000 per day fine incorporated with others that are subjected to that. That doesn't quite fit in with your well-reasoned, tailored fines, does it?
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Ms. LANDMAN. Let me address the issue of concentrated animal feeding operations, which is the situation that was alluded to by the previous witnesses. It is correct that these large factory farming operations, essentially where you have a large number of animals in a confined feedlot situation, are subject to the NPDES permitting program—the National Pollutant Discharge Elimination System program. As it happens, the permit requirement for this group of operators is a zero discharge permit.
It is true what you said: that people who are CAFOs are not required to have a permit in the sense that they don't have to have a permit in their hand that says zero discharge. But the applicable regulations do treat them as point source dischargers in recognition of the fact that there are large quantities of manure, that are potentially water polluting, that arise from these types of operations.
Because they are point source dischargers, these large, concentrated animal feeding operations are in fact source dischargers under the Clean Water Act. That means that if they violate their permits or fail to get a permit, they might be subject to a lawsuit and enforcement action by a citizen. That does not mean that nonpoint source pollution sources are subject to citizen suits under the Clean Water Act.
I must add, in fact, that the facility that was referred to, in the lawsuit that was mentioned by the previous panel, did not involve what I would consider to be a small business. This was an operation that had five different manure storage lagoons on its property, one of them with the capacity of approximately six to eight million gallons of liquid cow manure. This is a lot of manure. And this is not the type of operation that most people would consider to be inconsequential from an environmental standpoint, should problems arise, or really to be a small business.
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Mr. LAUGHLIN. Well, the point I want to make though—and I will close, Mr. Chairman—is the citizen lawsuits are not small operations for the small farm and the rural interests. And you can respond or—but I told the Chairman I will be brief, and I have been longer.
Mr. BOEHLERT. I appreciate that. Ms. Landman represents a group that has 150,000, 160,000, 170,000 people—170,000?
Ms. LANDMAN. Of course, when I say that, that is our national membership. When we bring a citizen suit enforcement action with respect to a particular polluter, it is because of a pollution problem in the receiving waters. Our members who live in that neighborhood are the ones on whose behalf we are suing, and we generally do so only in conjunction with a local environmental group and other environmental interests concerned about the impacts of the discharge.
Mr. BOEHLERT. I appreciate that. I thought it was a very valuable exchange.
Mr. LAUGHLIN. Let me ask one further question then, Mr. Chairman.
Ms. Landman, would you be willing to agree to a statutory provision that only those citizens in the affected area could pay toward the legal fees of the lawyer bringing the lawsuit and the court costs?
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Ms. LANDMAN. Could you repeat the question? I am sorry. I didn't hear it.
Mr. LAUGHLIN. You indicated that the lawsuit—the citizen lawsuits are only brought on behalf of those who live in the immediate area. Would you be willing to agree on behalf of your 170,000 member organization that only those who live in the impacted area could pay the attorney fees and the court costs for bringing the lawsuit?
Ms. LANDMAN. No, sir.
Mr. LAUGHLIN. I didn't think so. Thank you very much for your candor.
Mr. BOEHLERT. Thank you. And I think it was a very valuable exchange.
And I think the point that—I am particularly pleased it was brought out once again and reinforced—is that citizen action suits do not apply in cases of nonpoint source pollution.
Now, unfortunately, because of the call of the House—you have heard all the bells; you have seen the lights—we are going to have a series of votes. So this panel will have to recess to approximately 1 o'clock. We will get back sooner if we can, but for your planning purposes let's think in terms of 1 o'clock at the earliest. Sorry that it is this way.
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You are excused. Thank you very much.
[Whereupon, at 12:21 p.m., the subcommittee recessed to reconvene at 1 p.m., the same day.]
Mr. BOEHLERT. First of all, before we resume, let me apologize to the panelists. We have invited you to testify. We value very highly what you are going to present to us. And I want you to know that we can't control the schedule of the Floor of the House.
We have had a whole series of votes. Believe me, it was my intention to start this and keep it going in an orderly fashion. And I have not been successful, because I am not the Speaker, I am just the Chairman of a subcommittee. But I know how frustrating it must be for people like you. I thank you for sharing with us your time and your thoughts, and apologize for what you see up here.
Members are dashing hither and yon, and hopefully more will arrive shortly. I want to also assure you that your full statements will appear in the record in their entirety and will be shared with all the Members of the subcommittee.
Now, for the final panel of the day, representing the National Mining Association, Douglas McAllister. From the Edison Electric Institute, Winifred Perkins. Roger Purdom from the National Hydropower Association, the American Public Power Association, the National Rural Electric Cooperative Association, the Large Public Power Council, as well as the Edison Electric Institute. And Roger Fontes from the Northern California Power Agency.
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Once again, your statements will appear in the record in their entirety. I would appreciate it if you could summarize the statements.
We will go in the order announced. First, Mr. McAllister.
TESTIMONY OF DOUGLAS E. McALLISTER, ESQ., ON BEHALF OF THE NATIONAL MINING ASSOCIATION; WINIFRED PERKINS, EDISON ELECTRIC INSTITUTE; ROGER PURDOM, NATIONAL HYDROPOWER ASSOCIATION, ON BEHALF OF THE AMERICAN PUBLIC POWER ASSOCIATION, THE NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION, THE LARGE PUBLIC POWER COUNCIL, AND THE EDISON ELECTRIC INSTITUTE; AND ROGER FONTES, NORTHERN CALIFORNIA POWER AGENCY
Mr. MCALLISTER. Thank you, Mr. Chairman.
I am with the law firm of Fennemore Craig in Phoenix. I am here representing the National Mining Association. This association was formed this month with the merger of the National Coal Association and the American Mining Congress. Its 381 members represent producers of most of America's coal, metals, industrial and agricultural minerals, manufacturers, transporters and other businesses supporting the mining industry.
We as an industry do think the Clean Water Act has worked well and that it has resulted in the improvement of water quality over the last two decades. We are not urging or recommending wholesale changes to the act. We do have some specific problems with the way the act has been implemented. Some ideas that were good in concept when adopted, have been difficult and problematic when implemented.
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I want to identify seven issues and talk about three of those seven.
First, EPA should develop scientifically defensible criteria appropriate for ephemeral streams, rather than assuming that criteria developed to protect perennially flowing streams are appropriate for dry washes that flow only in response to storm events.
Second, inactive and abandoned coal mines that are eligible to be reclaimed under the Federal abandoned mines program of the Surface Mining Control and Reclamation Act should not be subject to remediation under the Clean Water Act storm water program. All coal mine sites that are or have been regulated by the Interior Department under the comprehensive SMCRA should be regulated under that act and not under the Clean Water Act storm water program.
Third, storm water runoff at inactive non-coal mines should be deferred in order to allow EPA, in conjunction with other agencies such as the Interior Department, to develop a phased, cost-effective, risk-based, prioritized approach to addressing these particular sites.
Fourth, storm water that falls on ore mining facilities, that is, copper, gold, silver mining operations, and that is not commingled with either process wastewater or mine drainage should be regulated under the best management practices and pollution prevention plans of the storm water program rather than the zero discharge and numeric limit of the NPDS system.
Fifth, the act's current provision to eliminate disincentives to coal remining at abandoned, previously mined sites should be amended to encourage remining where it will not result in degradation of the receiving stream as long as the overall water quality discharged from the operation is improved. Similar provisions should be added to encourage remining of non-coal inactive sites.
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Sixth, Congress should clarify that States retain their traditional primary role in regulating groundwater quality and that the Clean Water Act does not establish a Federal regulatory program for the protection of groundwater.
And finally, the act should clarify that the process or treatment impoundments at mining sites should not be regulated except to the extent that they discharge to a navigable water.
I will focus my testimony on three of these issues. First, water quality standards for ephemeral streams. The Clean Water Act has been interpreted to apply not only to lakes and flowing streams, but also to ephemeral streams, which are essentially dry channels that contain water only in the event of a storm. Such streams are common throughout the country, particularly in the arid West where many mining operations are located.
At present, surface water quality standards that were developed for perennial streams apply to ephemeral streams and the aquatic life in perennial streams do not exist in the gullies and arroyos that make up ephemeral streams in the West. EPA should be required to develop surface water quality criteria that are appropriate for ephemeral streams, and States should have the flexibility to use such criteria, or develop their own, to protect the streams within their jurisdictions.
Second, clarification of storm water process wastewater distinction. EPA regulates mine drainage, that is, water pumped from a mine, by permits that impose numeric limits on the discharge. Discharge of process wastewater is prohibited unless the discharge results from a storm event beyond the design capacity specified in the regulations.
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Prior to the implementation of the 1987 amendments to the Clean Water Act, storm water runoff at ore mining sites, such as runoff from overburden piles, that had not been commingled with mine drainage or process wastewater was not regulated.
The 1987 amendments required EPA to develop a program to regulate storm water associated with industrial activity. EPA's initial storm water regulations were designed to address storm water at ore mining sites, basically through pollution prevention plans and best management practices.
The flexibility of this approach provides cost-effective protection to the environment. However, recently EPA has announced essentially a new approach to mining that virtually classifies all runoff at mining sites as either mine drainage or process wastewater, subject either to zero discharge or numeric effluent limits.
This approach essentially nullifies the storm water program for the ore mining industry. It will result in enormous costs without producing consistent environmental benefits. The flexibility that existed in the storm water program for the mining industry will no longer be available if this policy is implemented.
The Clean Water Act should be amended to clarify that storm water run off from ore mining sites that is not commingled with process wastewater or mine drainage should be regulated under the storm water program.
Third, storm water regulation at inactive non-coal mining sites. There are numerous inactive and abandoned mine sites on Federal lands and many on private lands.
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President Clinton's clean water initiative of last year identified the regulation of inactive and abandon sites under EPA's storm water program as a major problem that requirs regulatory relief. The environmental hazards of these sites vary widely. Some may pose little threat while others are significant in their threat of environmental degradation.
Many of these sites have not been operated for decades. They exist in remote locations or rugged terrain where access is difficult for purposes of monitoring and remediation. The costs of complying with the current storm water regulatory program for these sites could run into the billions of dollars, according to the Clinton administration. Such costs discourage exploration and environmentally beneficial remining and have in fact motivated many companies to drop claims because of the potential costs of this program.
It is important that these sites be inventoried and that a storm water control program be developed. For these sites that is cost effective. To this end, the industry proposes that an independent scientific study in consultation with Federal agencies, States and the mining industry be conducted regarding storm water run off at inactive sites and that EPA develop a cost-effective, risk-based regulatory approach to such sites based on the results of this study.
That concludes my statement, Mr. Chairman. Thank you very much.
Mr. BOEHLERT. Thank you very much.
Ms. Perkins.
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Ms. PERKINS. Mr. Chairman, Members of the subcommittee, my name is Winifred Perkins. I am a manager in the Environmental Affairs Department at Florida Power and Light Company. I am here today to represent the Edison Electric Institute, EEI, where I am the chairman of the Water Resources Subcommittee. EEI is pleased to have this opportunity to present its views on H.R. 961 as well as Clean Water Act issues.
Basically we believe the Clean Water Act as it stands today is a good piece of legislation and doesn't require major overhaul. However, there are four areas that we would like to address.
First of these is the issue of intake credits. EEI is pleased to note that section 404 of H.R. 961 specifically provides that dischargers are not required to remove pollutants from their discharge if those pollutants are present in the intake waters. This provision provides a good starting point for addressing the issue of intake credits.
EEI strongly believes that the point-source dischargers should not be held responsible for pollutants added by other sources or attributable to natural sources. Requiring dischargers to take responsibility for contaminants they have not added to the water is not in keeping with the intent of the act, which is to regulate the addition of pollutants to the Nation's waters.
Moreover, requiring dischargers to treat or remove pollutants in their intake water poses a number of very practical problems. For example, it presents significant technological difficulties because it would require dischargers to anticipate and treat pollutants over which they have no control. As a result, they cannot design and install technology for reliably achieving limits on such pollutants.
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Therefore, EEI considered it imperative that Congress confirm that dischargers may not be required to treat or remove intake pollutants which they do not add.
A second issue we would like to address is that of jurisdictional waters of the U.S., another issue of great concern to EEI and its members. To date, treatment ponds and impoundments have not been considered waters of the U.S. for obvious reasons. They were and could not be used for their intended purpose if they were considered waters of the U.S. That intended purpose is to treat waters prior to entering waters of the U.S.
With this common-sense principle as a long-standing precedent, EPA has recently indicated it may amend or interpret differently its definition of waters of the U.S. and apply it to certain treatment impoundments.
EEI urges the subcommittee to confirm that water impoundments used as treatment systems are not considered jurisdictional waters of the U.S.
Section 401 of H.R. 961 specifically provides that waste treatment systems, including ponds or impoundments used to treat waste from concentrated animal feeding operations are not waters of the U.S. This subcommittee should clarify that this amendment applies to all wastewater treatment systems.
The third issue we would like to touch upon is that of risk assessment. It is important to our Members that risk assessment and cost-benefit principles to each of the Clean Water Act programs be applied. In this regard, EEI is pleased to see that H.R. 961 includes a risk and cost-benefit analysis provision that addresses these concerns and which serves as a good starting point.
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Although EPA has acknowledged the value of risk assessment in certain area, it has failed to establish or apply regulatory or guidance programs for the performance of uniform risk assessments in the implementation of the Clean Water Act.
Where EPA has applied risk assessments of sorts, it often has not attempted to measure even qualitatively the costs and benefits associated with a particular requirement. Nor has EPA assured that the costs and benefits are properly balanced.
EEI believes that all Clean Water Act programs should be subject to uniform scientifically sound comparative risk analysis and cost-benefit principles.
The final issue I would like to address is that of hydroelectric licensing. We are going to defer most of our comments to the National Hydro Association, who is here today. However, EEI is also extremely concerned that the current Clean Water Act impediments to licensing new hydroelectric projects and particularly relicensing existing hydroelectric project facilities.
EEI believes the present interpretation of section 401 of the Clean Water Act as expanded in the Supreme Court's Tacoma decision poses a threat to a balanced, comprehensive licensing process administered by FERC under the Federal Power Act.
EEI therefore urges Congress to either exempt FERC license hydroelectric facilities from the Clean Water Act regulations or to make any Clean Water Act regulation of such facilities advisory as opposed to mandatory.
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Without such a change in the Clean Water Act's interpretation, the continued viability of hydroelectric power in this country is severely impaired.
EEI would like to thank you, Mr. Chairman, and other Members of the subcommittee, for your attention on these important issues.
Mr. BOEHLERT. Thank you very much.
Mr. Purdom.
Mr. PURDOM. Mr. Chairman and distinguished Members of the subcommittee, my name is Roger Purdom. In my real life I am the managing director for power management for Newland County utility district. We are located in the east side of the other Washington. That land generates about 10 million megawatt hours of hydroelectric power with about 2,000 megawatts of facility capacity. And we sell that power to our own customers as well as four investor-owned utilities in the Northwest in a region that spans some four to six States.
I appear before you on behalf of the National Hydropower Association, of which I am currently the president, and the American Public Power Association, the Edison Electric Institute, the National Rural Electric Cooperative Association, and the Large Public Power Council.
Each of these associations share the same concerns regarding the reauthorization of the clean water law. In fact, this is the first time in my recollection that we have seen all of these five diverse organizations presenting joint testimony.
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The theme of my comments is process, that is, too much process. We continually seem to be replowing the same field two or three times in the hydropower industry. I am here today to urge you to not take any action that would frustrate that regulatory process.
In the last Congress, reauthorization of the Clean Water Act raised a number of issues which if enacted would frustrate an already Byzantine regulatory process, further hurting hydro's ability to compete with other generating resources at a time when competition has been mandated by Federal law.
The issue here is not whether environmental regulation of hydropower will occur. It already does, very thoroughly, occur. The issue is, how many agencies will get to do it, and how much duplication and unnecessary process will be added.
Our associations strongly believe in the value of hydropower and the role it does and continues to play in meeting our Nation's energy needs. We appear before you today to ask that you give serious consideration to our concerns and that you recognize the need to provide regulatory relief, not more unnecessary regulation, as you move forward to reauthorize this important statute.
I want to emphasize that the hydropower industry supports the environmental objectives of the clean water statute. We are not asking Congress to dismantle its environmental law. We ask only that in the rush to improve the statute we don't expand its scope as it relates to hydro regulation.
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We fully recognize the important responsibility we carry in managing water resources, providing not only energy but recreation, irrigation, and water supply.
Water as a shared resource must be regulated within the context that furthers the goals of many. For energy production, that balancing occurs within the context of the FERC regulatory scheme.
Our testimony speaks to how we can proceed to reauthorize the statute and move closer to a hydro regulatory scheme that will delicately balance the need for energy with nonpower concerns.
I believe that we can produce hydropower in the new competitive environment while protecting the water resource and preserving high water quality. But progress towards this goal will require strong leadership and recognition that more process doesn't necessarily result in better decisions.
This year's reauthorization proposal, H.R. 961, is moving in the right direction, in that it is more flexible and balanced in its approach than previous initiatives. I am hopeful that the committee will continue to work to see that new proposals can be effectively integrated into existing regulatory structures.
I have a few specific remarks on issues of concern. I would like to provide a brief summary of these concerns for you, Mr. Chairman. The current state of the hydropower regulatory process. Existing licensing process is duplicative and often contradictory. Intergovernmental and interagency conflict is common due to continued fragmentation of the Federal Energy Regulatory Commission's authority under the Federal Power Act.
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FERC's role is to consider all public interest at stake in hydropower development and make balanced decisions. However, narrowly focused agencies now have the authority to place final conditions on hydropower licenses without consideration of energy and economic impacts.
This doesn't make good public policy, costly and inefficient processes resulting in lost renewable energy generation, and is damaging the ability of hydropower to compete in the competitive electric market.
Too often, we see narrow interest agencies choosing mitigation measures that take the last tiny increment of environmental protection at a huge increment of cost. It is not surprising, since their job doesn't require balancing with other public needs.
The State water quality certification, this issue arises as a result of the last year's Supreme Court decision in the case that we have called the Tacoma decision, which broadens the authority of State water quality agencies under section 401. This court decision has created duly regulatory processes at the State and Federal levels. That is resulting in inefficiency and a lack of balance in the existing regulatory process.
States play an important role in the protection of water quality. However, we urge the committee to clarify section 401 of the Clean Water Act to prevent State water quality agencies and the Environmental Protection Agency from reaching beyond water quality and pollution prevention to regulate the operations of hydropower.
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Finally, three issue areas, nonpoint source control standards, watershed management, and planning and anti-degradation policy were areas of concern to the hydropower industry during the 103rd Congress. We raised these topics to encourage you to be aware of our concerns as you proceed with the reauthorization process this year.
I have tried to keep my remarks to the point. We can talk for hours about hydro's process horror stories. In your packet you will find a copy of what we have come to call the chart. It shows you what optimistically is a six-year process to get into the relicensing arena. We say optimistically. We have many examples that range as far as 20 years of projects that have been involved in relicensing.
We are here today to urge you, again, to not add additional regulatory complexity to this process. And that concludes my remarks.
Mr. HORN [presiding]. Thank you very much, Mr. Purdom. You made some very helpful comments.
Mr. Fontes, who is the assistant general manager of the Northern California Power Agency. Please go ahead.
Mr. FONTES. Thank you, Mr. Chairman.
I appreciate this opportunity to testify before you today. NCPA is a joint power agency that provides power to 14 consumer-owned utility members. Hydropower is a significant percentage of our energy capacity needs including the 230 megawatt North Fork Stanislaus River hydro project.
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Many of our members hold individual hydropower licenses including the city of Santa Clara. We are a member of NHA and the APPA and we share their concerns about the impact of the Clean Water Act on hydropower projects and provisions contained in or excluded from H.R. 961, the reauthorization bill recently introduced by Chairman Shuster.
I am here today to offer an explicit yet simple proposal to solve some of those concerns. For nearly a hundred years the Congress has recognized the complexities of interstate water resource management and the need for a single arbiter charged with balancing the often conflicting demands placed on large river systems. The Federal Power Commission and now the Federal Energy Regulatory Commission were established by the Congress as the central decision maker for licensing non-Federal hydroelectric projects.
FERC can only issue a license that is best adapted to a given waterway and balances environmental and energy needs. As you have heard, the 1994 Supreme Court Tacoma decision upsets that process, effectively transferring to the States principal authority for resolving key decisions and operational criteria for all hydroelectric projects.
While it would appear that the States now have authority under section 401 of the Clean Water Act to decide the fate of hydropower projects, they do not have the balancing responsibilities that Congress vested with the FERC. To ensure that a comprehensive planning process, the Congress could either reverse or modify Tacoma and return to FERC its exclusive authority, or direct the States to assume FERC-like responsibilities in reviewing 401 permit applications.
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NCPA supports a reversal of Tacoma and recognizes that for hydro developers it provides the assurance of comprehensive planning. However, we are really more interested in the licensing process than we are with who administers it. This policy reflects the fact that for major rivers of California, few cross State boundaries, and in our State we have already established an agency that, with the exception of hydro and nuclear plants, with a one-stop shop for license applications.
Moreover, we are also firmly committed to protecting States' water rights in any resolution of this issue.
Under our proposal, State water quality agencies would give equal consideration to environmental, recreational and developmental purposes on a given waterway. State water quality agencies would consult with other State agencies, river users, conservationists and others when devising balanced policies to maximize the benefits of vital yet limited renewable resources.
Our proposal recognizes the rights and authorities of States, encourages greater coordination within and between States, balances competing needs among the States and avoids potential stalemate, provides developers with greater flexibility and predictability, and reduces the likelihood of a future preemption by the Congress of State authority.
Thank you.
Mr. HORN. We thank you, Mr. Fontes.
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Let me ask some questions on behalf of the Chairman until he returns. Several of you addressed the recent Supreme Court case, the Tacoma case, and the expanding State authority under section 401, State water quality certification of the Clean Water Act.
Does this case have implications beyond licensing of hydropower projects? Why don't we just go down the line, if you want to comment on that.
Ms. PERKINS. I think the Edison——
Mr. HORN. Why don't we start with Mr. McAllister.
Mr. MCALLISTER. I think it does have implications because of the authority it gives States essentially to address issues beyond simply surface water quality. So yes, I would say it does.
Mr. HORN. Ms. Perkins?
Ms. PERKINS. Yes, the Edison Electric Institute believes——
Mr. HORN. I can't quite hear you, get that microphone a little closer.
Ms. PERKINS. Yes, the Edison Electric Institute does believe that it potentially does.
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Mr. HORN. And, Mr. Purdom, if you want to add to what you said.
Mr. PURDOM. I want to agree, the answer is yes. Since we are dealing with a Federal permit it could apply to any similar Federal process. However, it is probably clear to us that hydropower is the most seriously affected.
Mr. HORN. Mr. Fontes, do you want to add to that?
Mr. FONTES. I agree with the other panelist, sir.
Mr. HORN. I guess I just ask you, what is the best way to resolve some of these differences between States? Have any of you got some new wisdom on this subject? I mean, do we have to depend on the Federal Court system, or are there interstate compacts that can be worked out? Are there arbitration schemes, be they private or public, that States can agree to? Or do we need a special water court that specialize in this, or what?
Mr. FONTES. I think our proposal tries to deal with this rather complex question of States' rights versus Federal good. In the discussions we have had with others about our idea, you know, there are critics, and I will acknowledge that. Few of them, however, would say that States are incapable of doing comprehensive planning. On the face of it, that is not a good argument.
A legitimate question occurs whether States will in fact do comprehensive planning absent a Federal arbiter like the FERC. We do have some examples around the country of State compacts on interstate waterways, the Chesapeake, Colorado. Most of those have come after many years of contentious argument.
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For that reason, NCPA does in fact prefer a reversal of the Tacoma decision, returning clear and complete final authority with the Federal Energy Regulatory Commission in resolving these licenses.
If the Congress does not think that is a good idea, we believe States can do comprehensive planning and we would like to put a process in place that requires they do it when they consider projects like this.
Mr. HORN. Mr. Purdom.
Mr. PURDOM. I think to a point we agree with Mr. Fontes. Where we would differ is the fact that the hydropower issues span many Federal issues. They can include issues such as the Endangered Species Act, rivers that cross State lines. There are questions of national energy policy. These things require that the decisions be made in our view on a Federal level.
We do agree that the States have a legitimate role in being involved in that licensing process. However, because of the onerous nature of the regulatory process we have in place, we think it could be best served by States recommending their proposals to the Federal Energy Regulatory Commission, and that agency serving as the final arbiter.
Mr. HORN. Ms. Perkins.
Ms. PERKINS. I think we would basically agree with the National Hydro Association as well.
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Mr. HORN. Mr. McAllister.
Mr. MCALLISTER. Since we really haven't taken a position on this issue as the National Mining Association, I want to defer responding to the question. We can respond in writing later, if it would be helpful.
There are many issues on which we very much favor States' rights. Personally, I would like to see section 401 analysis be a narrow analysis that focuses on surface water quality standards and does not give the State authority to range broadly over whatever interests it might have.
But that is something where I am speaking personally and not on behalf of the association.
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Mr. HORN. Why don't we start the next one with you, Mr. McAllister, since we are talking about runoff from abandoned mines, which is a concern.
Could you address the extent to which this problem is being addressed currently and have any improvements been achieved? Is there a need for further legislative action? Go ahead.
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I will switch chairs with the Chairman.
Mr. BOEHLERT [presiding]. Mr. McAllister.
Mr. MCALLISTER. Mr. Chairman, there has been an improvement in addressing inactive and abandoned mines, both on public and private land. The SMCRA statute and the abandoned mine land fund are addressing inactive and abandoned sites in the coal mining industry.
The storm water program has and does now apply to inactive sites, and there has been progress in filing pollution prevention plans and implementing best management practices for some of those sites.
There has been voluntary action on the part of companies to address storm water issues. So yes, I think there has been progress made.
The concern that we have is with a one-size-fits-all kind of a program, particularly where mine sites are so different, and vary so greatly in topography, terrain, size of the sites and so on. We feel that there needs to be further study and prioritization. We agree wholeheartedly with the recommendations for addressing these sites that were set forth in the Clinton administration Clean Water Act initiative published in 1994. The initiative sites that there are 400,000 inactive and abandoned sites on Federal lands and recognizes that there is a vast difference in these sites. This is a complex problem that needs to be addressed carefully.
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We essentially take the same position. The sites on private land are no different than on public land. There ought to be a cost-effective, risk-based, site-specific approach taken to those sites, and a program developed that will essentially address the problems that those sites pose.
Mr. BOEHLERT. Mr. Horn, do you have any questions?
Mr. HORN. I will have some later.
Mr. BOEHLERT. Fine. Some of your members are potentially Phase II storm water dischargers. Have any of you been involved with the NRCD's negotiations with EPA over Phase II sources, and are you aware of the results of the negotiations, and if so, do these results adequately address the problem?
I would ask that of Mr. McAllister.
Mr. MCALLISTER. To my knowledge, our industry has not been involved in any negotiations. I am not aware of any sites that really are in the Phase II program from the mining industry perspective.
Mr. BOEHLERT. I do have here and we will get these questions to you in writing, Mr. Borski, the Ranking Minority Member, has three questions that he wishes to have posed, and rather than take up the time now for these questions, we will submit these questions to you in writing with a request that you respond in writing. I think that might make life a little easier for all of us.
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Mr Horn.
Mr. HORN. Thank you very much, Mr. Chairman.
Let me ask Mr. McAllister this question. That will sort of finish the round.
You suggest that the storm water runoff from inactive or abandoned coal mines eligible to be reclaimed under the Federal abandoned mines lands program and from inactive non-coal mines should be either deferred or not subject to the Clean Water Act regulation.
Yet my understanding is that in some areas, abandoned mines are one of the largest contributors of nonpoint water pollution. As I am not familiar with the Surface Mining Control and Reclamation Act, could you elaborate on its provisions, its differences with the Clean Water Act storm water program as it applies to mines, and give us your appraisal on which gives us more effective water pollution control?
Mr. MCALLISTER. We are talking about coal mines when we talk about SMCRA, because SMCRA does not regulate non-coal mines.
Mr. HORN. So it is strictly applicable to coal mines, not gold mines, not silver mines, not anything else?
Mr. MCALLISTER. That is correct. SMCRA addresses the coal mine universe, and while the abandoned mine fund can apply to some non-coal operations, it is principally focused on coal mining operations. There are very stringent provisions in SMCRA, which is administered by the Office of Surface Mining in the Department of Interior, that deal with reclamation associated with active operations. Provision is made under the abandoned mine land fund to deal with sites that were closed or became inactive before SMCRA took effect. It is a program essentially where the Federal government and the States work together to prioritize these inactive sites and reclaim them. Many of the ''priority one'' sites are in fact being reclaimed. The contamination that may be resulting from those sites is being addressed.
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Mr. HORN. Very good.
Mr. MCALLISTER. What we are talking about here is overlap in duplication. The Clean Water Act would be a second program that would overlap SMCRA for those inactive and abandoned coal mine sites.
Mr. HORN. You mentioned you want to see a study regarding storm water regulation of inactive non-coal mining sites, which would prioritize the sites according to the environmental risk posed. Obviously that is a very popular theme with most of us, to get at the actual environmental risk.
Can you be a little more descriptive of the scope and the time frame of that proposed study? What are we talking about?
Mr. MCALLISTER. We need to work out the details of that proposal, and we don't have legislative language crafted yet, Mr. Horn. Essentially, this is an idea that did not originate with us; it originated with the Clinton Administration when they looked at the size and the nature of the problem of inactive and abandoned mines on public lands.
Basically, it is our position that the problem is similar on private lands. There are many varied sites. The topography differs, the climate differs, the terrain differs, the volume of storm water differs, the types of metals involved in the contamination may differ. Some sites may pose almost no problem while other sites may seriously threaten the environment.
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Rather than taking a one-size-fits-all approach, which essentially the Phase I storm water program does, we think it would be better to tailor the approach in order to be more cost effective and focus on, frankly, the most important risks.
Mr. HORN. Just one last small one. You use the word overburden pile on page 5. Pardon on my ignorance. What does that mean?
Mr. MCALLISTER. That is a good question, Mr. Horn. The overburden is basically the soil and the rock that is removed in order to get at the valuable metal or mineral. So this is the top soil, if you will, the top rock, under which the valuable metal lies. It has to be removed in order to extract the metal.
So you have these piles of rock that come into contact with storm water. Historically, EPA has not regulated those rock and soil piles under the NPDES program. But under this recent policy EPA would plan to treat storm water runoff from those piles as point source discharge of mine drainage subject to numeric limits in a NPDES permit.
There may be active facilities that have been mining for decades, big open pit copper mines that have for the better part of a century that have been developed and planned under a regime that classified storm water runoff waste rock piles as different than process wastewater and mine drainage. Now suddenly these mines will be out of compliance with the NPDES effluent guideline program under this new EPA policy. So we are asking that the more flexible best management practices approach apply to the storm water run off from these soil and rock piles.
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Mr. HORN. Thank you. Very helpful.
Thank you, Mr. Chairman.
Mr. BOEHLERT. Mr. Purdom, I have got one more. You waited so long, we will give you a chance to have something.
I would like you to explain your understanding of the applicability of section 313(a) of Clean Water Act.
Take, for example, a flood control reservoir operated by the Federal Government. Water use is designated by a State downstream of such a reservoir could under certain circumstances be temporarily and unavoidably violated due to releases from the reservoir for flood control. Do you believe that such discharges would violate the Clean Water Act?
This is catching you off guard. If you would prefer to provide something in writing, I want to be fair to you.
Mr. PURDOM. I think that is not a question that I am prepared to answer at this time. I am not actually a very good practitioner of the details of the law. We would prefer to provide a response to that question.
Mr. BOEHLERT. I would appreciate that. I could see where somebody is faced with the lesser of two evils. What do you do? Do you violate the Clean Water Act to protect the homes and the businesss from flooding or—well, it is not easy. And guess what?
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None of the things we are dealing with are easy. I wish that I could just wave a magic wand and find a solution to all the problems.
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Mr. BOEHLERT. I want to thank all of you for your indulgence. I hope I am viewed as being as sincere as I mean to be in apologizing for keeping you so long and interrupting the whole thing and having my Members scatter to the airports so they can go home and spend about 3 hours with their kids before they come back here. Can you imagine what it is like to be a West Coast Congressperson or from Alaska or Hawaii? They have to fly, get home about midnight tonight, then turn around Sunday afternoon and come back here. It ain't easy.
Mr. MCALLISTER. It is a tough commute.
Mr. BOEHLERT. Yes. I want to thank all of you.
The only thing I would encourage—we don't see enough of this, people from the environmental community and from the organizations you represent talking more with a shared interest in coming up with responsible public policy that responds to a national need. I think too often some of the people we have seen in this room today at this important hearing have viewed the other guy as an adversary.
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I don't share that point of view. I think we can work together. Thank you all very much.
Mr. HORN. Could I just say, Mr. Chairman.
Mr. BOEHLERT. Mr. Horn.
Mr. HORN. I would like to file a question with the record and send it to you, and if you wouldn't mind responding, I would appreciate it. It concerns the Tacoma decision. And I would just as soon you reflect on it and respond.
Mr. BOEHLERT. I might point out, if you are interested, our next hearing is scheduled for March 7th and it deals with a noncontroversial issue, wetlands.
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Mr. BOEHLERT. The hearing is adjourned.
[Whereupon, at 2:35 p.m., the subcommittee was adjourned.]
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