SPEAKERS CONTENTS INSERTS
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74–381 PS
2001
THE NATIONAL ACADEMY OF SCIENCES' NATIONAL RESEARCH COUNCIL REPORT ON ASSESSING THE SCIENTIFIC BASIS OF THE TOTAL MAXIMUM DAILY LOAD APPROACH TO WATER QUALITY MANAGEMENT
(107–29)
HEARING
BEFORE THE
SUBCOMMITTEE ON
WATER RESOURCES AND ENVIRONMENT
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
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HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
JUNE 28, 2001
Printed for the use of the
Committee on Transportation and Infrastructure
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
DON YOUNG, Alaska, Chairman
THOMAS E. PETRI, Wisconsin, Vice-Chair
SHERWOOD L. BOEHLERT, New York
HOWARD COBLE, North Carolina
WAYNE T. GILCHREST, Maryland
STEPHEN HORN, California
JOHN L. MICA, Florida
JACK QUINN, New York
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VERNON J. EHLERS, Michigan
SPENCER BACHUS, Alabama
STEVEN C. LATOURETTE, Ohio
SUE W. KELLY, New York
ROBERT W. NEY, Ohio
RICHARD H. BAKER, Louisiana
JOHN COOKSEY, Lousiana
JOHN R. THUNE, South Dakota
FRANK A. LOBIONDO, New Jersey
JERRY MORAN, Kansas
RICHARD W. POMBO, California
JIM DEMINT, South Carolina
DOUG BEREUTER, Nebraska
MICHAEL K. SIMPSON, Idaho
JOHNNY ISAKSON, Georgia
ROBIN HAYES, North Carolina
ROB SIMMONS, Connecticut
MIKE ROGERS, Michigan
SHELLEY MOORE CAPITO, West Virginia
MARK STEVEN KIRK, Illinois
HENRY E, BROWN, JR, South Carolina
TIMOTHY V. JOHNSON, Illinois
BRIAN D. KERNS, Indiana
DENNIS R. REHBERG, Montana
TODD RUSSELL PLATTS, Pennsylvania
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MIKE FERGUSON, New Jersey
SAM GRAVES, Missouri
C.L. (BUTCH) OTTER, Idaho
MARK R. KENNEDY, Minnesota
JOHN ABNEY CULBERSON, Texas
BILL SHUSTER, Pennsylvania
JOHN BOOZMAN, Arkansas
JAMES L. OBERSTAR, Minnesota
NICK J. RAHALL II, West Virginia
ROBERT A. BORSKI, Pennsylvania
WILLIAM O. LIPINSKI, Illinois
PETER A. DeFAZIO, Oregon
BOB CLEMENT, Tennessee
JERRY F. COSTELLO, Illinois
ELEANOR HOLMES NORTON, District of Columbia
JERROLD NADLER, New York
ROBERT MENENDEZ, New Jersey
CORRINE BROWN, Florida
JAMES A. BARCIA, Michigan
BOB FILNER, California
EDDIE BERNICE JOHNSON, Texas
FRANK MASCARA, Pennsylvania
GENE TAYLOR, Mississippi
JUANITA MILLENDER-MCDONALD, California
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ELIJAH E. CUMMINGS, Maryland
EARL BLUMENAUER, Oregon
MAX SANDLIN, Texas
ELLEN O. TAUSCHER, California
BILL PASCRELL, JR., New Jersey
LEONARD L. BOSWELL, Iowa
JAMES P. MCGOVERN, Massachusetts
TIM HOLDEN, Pennsylvania
NICK LAMPSON, Texas
JOHN ELIAS BALDACCI, Maine
MARION BERRY, Arkansas
BRIAN BAIRD, Washington
SHELLEY BERKLEY, Nevada
BRAD CARSON, Oklahoma
JIM MATHESON, Utah
MICHAEL M. HONDA, California
RICK LARSEN, Washington
(ii)
SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT
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JOHN J. DUNCAN, Jr., Tennessee
SHERWOOD L. BOEHLERT, New York
WAYNE T. GILCHREST, Maryland
STEPHEN HORN, California
VERNON J. EHLERS, Michigan
STEVEN C. LaTOURETTE, Ohio
SUE W. KELLY, New York
RICHARD H. BAKER, Louisiana
ROBERT W. NEY, Ohio
RICHARD W. POMBO, California
DOUG BEREUTER, Nebraska
MICHAEL K. SIMPSON, Idaho
HENRY E. BROWN, Jr., South Carolina
BRIAN D. KERNS, Indiana
DENNIS R. REHBERG, Montana, Vice-Chair
C.L. (BUTCH) OTTER, Idaho
JOHN ABNEY CULBERSON, Texas
BILL SHUSTER, Pennsylvania
JOHN BOOZMAN, Arkansas
DON YOUNG, Alaska
(Ex Officio)
PETER A. DeFAZIO, Oregon
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ROBERT MENENDEZ, New Jersey
GENE TAYLOR, Mississippi
EARL BLUMENAUER, Oregon
JAMES P. McGOVERN, Massachusetts
NICK LAMPSON, Texas
BRIAN BAIRD, Washington
FRANK MASCARA, Pennsylvania
MARION BERRY, Arkansas
ROBERT A. BORSKI, Pennsylvania
BOB FILNER, California
EDDIE BERNICE JOHNSON, Texas
JUANITA MILLENDER-MCDONALD, California
BILL PASCRELL, Jr., New Jersey
MICHAEL M. HONDA, California
JAMES L. OBERSTAR, Minnesota
(Ex Officio)
(iii)
CONTENTS
TESTIMONY
Reckhow, Kenneth, Professor, Duke University, Durham, North Carolina, accompanied by Leonard Shabman, Professor, Virginia Polytechnic Institute, Blacksburg, Virginia
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PREPARED STATEMENT SUBMITTED BY WITNESSES
Reckhow, Kenneth
SUBMISSION FOR THE RECORD
Reckhow, Kenneth, Professor, Duke University, Durham, North Carolina, report, Assessing the TMDL Approach to Water Quality Management
THE NATIONAL ACADEMY OF SCIENCES' NATIONAL RESEARCH COUNCIL REPORT ON ASSESSING THE SCIENTIFIC BASIS OF THE TOTAL MAXIMUM DAILY LOAD APPROACH TO WATER QUALITY MANAGEMENT
Thursday, June 28, 2001
House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Water Resources and Environment, Washington, D.C.
The subcommittee met, pursuant to call, at 10:05 a.m. in room 2167, Rayburn House Office Building, Hon. John J. Duncan, Jr. [chairman of the subcommittee] presiding.
Mr. DUNCAN. I want to welcome everyone to the hearing this morning. I apologize for the late start. As many of you know, I try to start my hearings right on the minute, but obviously we couldn't do that this morning because of the votes on the Floor.
We will be joined by the Members as they have time to get from that last vote which has just ended.
I want to welcome Dr. Reckhow and Dr. Shabman and thank them for being here at this hearing with us today about the recommendations of the National Academy of Sciences on the EPA's TMDL program.
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TMDL, as most people here know, stands for Total Maximum Daily Load. This is quite simply the amount of a pollutant that a body of water can assimilate and still meet water quality standards. It also is the basis of a program for completing the job of restoring and maintaining the quality of our nation's water.
Under the Clean Water Act, if a lake or a stream or other body of water does not meet water quality standards--after factories, municipal sewage treatment plants and other point sources have installed the required water treatment technology--then the State or the EPA is required to develop a TMDL.
While we have made tremendous improvements in water quality over the past 30 years, and we all should be very proud and pleased with what has happened in that regard, according to the information provided by the States to the EPA, over 20,000 water bodies do not meet water quality standards because most water bodies are impacted by more than one pollutant.
The EPA estimates that we need to develop over 40,000 TMDL's nationwide. However, we don't really know if this number is accurate. Many water bodies have been included on a State's list of impaired waters without any supporting water quality data. Even where there is data, it is unclear how reliable the data is.
In some cases, even where States have decided not to list waters because they don't have any supporting data, the EPA has overruled that decision.
As it stands today, the EPA's TMDL program relies on the assumptions based on land use or even anecdotal information to bring a water body into the TMDL program, beginning a resource-intensive process that requires identifying sources of pollutants and figuring out their relative contributions to a water quality program.
This is a problem across the nation. According to a General Accounting Office report issued in March of 2000, only six States have enough data to accurately determine whether or not their waters meet standards. Nonpoint sources, only three States have enough data to identify sources and develop TMDLs.
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But despite this lack of data, in July 2000, the EPA issued a new TMDL regulation that would require the States or the EPA to develop and implement over 4,000 TMDLs a year for the next ten years.
EPA's new TMDL rule has generated a great deal of concern. Last year, under the leadership of Chairman Boehlert this subcommittee conducted extensive oversight over the EPA's TMDL program.
Over a dozen hearings were held by House and Senate Committees. Many stakeholders and people involved in this process expressed great concern about the direction that the EPA was heading.
The National Governors Association said, ''The one-size-fits-all approach proposed by the regulations will inevitably fail, resulting in mountains of paperwork and no appreciable improvement in water quality. That has been the problem with many Federal programs, too much paperwork, too much bureaucracy and no real action on the problem, at great, great expense to the taxpayers.
The State Water Pollution Control Administrators said, ''This set of rules is technically, scientifically and physically unworkable.''
Let me repeat that. The State Water Pollution Control Administrators said, ''This set of rules of technically, scientifically, and fiscally unsupportable.''
Any one of those areas would be a big problem, but to have all three, the technical aspect, the scientific aspect, and the fiscal aspects all to be unworkable, that raises serious problems and concerns.
Due to this controversy, the Supplemental Appropriations Bill for fiscal year 2000 prohibited EPA from using fiscal year 2000 or 2001 funds to implement this new TMDL rule.
To try to resolve some of the controversy while the new TMDL rule was on hold, the fiscal year 2001 VA-HUD Conference Report directed EPA to conduct additional studies on the TMDL program costs and monitoring data needs, and also directed EPA to contract with the National Academy of Sciences to conduct a review of the quality of science used to develop and implement TMDLs.
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The National Academy of Sciences completed its work on June 15 and the Chairman of that Committee that prepared the report is here today to present their findings.
In many ways the NAS report confirms the fears expressed by stakeholders and those who have raised concerns about the program and its new rules governing the TMDL program.
The NAS report confirms that many water bodies are brought into the TMDL program without any water quality data showing that the waters are impaired.
The NAS report confirms that under pressure from unrealistic deadlines the TMDL program is becoming an administrative exercise. Many States are focusing on numbers of permits issued and numbers of TMDLs completed and are not focusing on actual improvements in water quality.
The NAS report confirms that as it stands today the TMDL program does not allow use of its best available scientific information.
But the good news is that the NAS report also provides us with many recommendations on how to improve the scientific basis for the TMDL program beginning with the water quality standards that a TMDL is require to meet.
Right now, most water quality standards are based on a goal of swimmable, fishable waters. In fact, EPA required States to adopt these goals as the ''designated uses'' for almost all waters back in the 1970s. However, the NAS report questions whether that policy choice was the correct one.
This is not the first time we heard about this issue. In March at our hearing on water infrastructure needs, Mayor Tobey of Gloucester, Massachusetts told us about the costs his community is facing to correct a combined sewer overflow problem. According to the Mayor, Gloucester is expected to meet the same fishable, swimmable water quality standards in its inner harbor, a working harbor where it is illegal to fish or swim, as its outer harbor, which is used for recreation purposes.
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You can't treat all these bodies of water the same. There are major difference, many difference from one body of water to the next. Mayor Tobey asked the subcommittee, ''Why spend a whole lot of money to make the inner harbor fishable and swimmable when State law prohibits those uses?''
This is a legitimate policy question raised by NAS in this report and it should be closely examined by this subcommittee, EPA, the States and local communities.
In my view, one of the most significant recommendations in this report is the recommendation to apply the scientific method to the TMDL process. The NAS report calls this ''adaptive implementation.''
Under this process a TMDL would be a process where stakeholders constantly adjust their actions as they improve their understanding of a particular water quality problem and its solutions.
The program that we must struggle with is how to incorporate that recommendation into a regulatory program.
I am going to stop there and ask if we have any statements from any of our Members.
I understand former Chairman Boehlert has a statement. Chairman Boehlert.
Mr. BOEHLERT. Thank you very much, Mr. Chairman. The total we set and the actions we take on Total Maximum Daily Loads will help determine the future direction and, I believe, the success or the failure of the Clean Water Act.
I want to welcome today's witnesses and thank the National Academy of Sciences for its efforts not only on this report, but on the many reports and briefings we have.
I believe the June 15 report on TMDLs sounds a clarion call for strengthening the science behind the TMDL process and even more fundamentally, the water quality standards program under the entire Clean Water Act.
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I want to warn my colleagues, however, about the report's findings and recommendations. Don't be fooled by the spin-doctors and the hired guns in this town. The report is not saying ''study and delay,'' paralysis by analysis. It is not calling for a moratorium on doing TMDLs or a time-out on meeting the Clean Water Act's goals, nor is it taking a stand on the Clinton Administration's TMDL revisions.
Instead, the Academy is recommending improved data collection, analysis and monitoring; smarter, more sophisticated or stratified water body use designations and listing of impaired waters. It is also calling for a broader perspective on watershed management that encompasses biological criteria as well as chemical and physical criteria and adaptive implementation-an underlying concept in the $7.8 billion Everglades restoration project approved by Congress last year.
The report recognizes that while ''scientific uncertainty is a reality within all water quality programs,'' policymakers should continue to move forward using the best available science and the most cost-effective strategies.
As a member of this subcommittee, I intend to join with you, Mr. Chairman, in exploring the issue thoroughly and looking for ways to improve not only the process, but also the results of the program that virtually everybody loves to hate.
Some of the report's findings are recommendations such as those relating to the two-tiered listing process and the need to encompass not only pollutants, but also pollution, deserve serious consideration.
As Chairman of the House Science Committee, I intend to focus on the many science and technology issues raised by the National Research Council. As stated in their report, and I quote, ''The best available science, especially with regard to nonpoint sources of pollution, will be needed for regulatory and non-regulatory actions to be equitable and effective.
Mr. Chairman, I look forward to working with you and our colleagues on this committee and the Science Committee to strengthen the science and make the TMDL program for equitable and effective.
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Thank you very much.
Mr. DUNCAN. Thank you, Chairman Boehlert.
Next we will turn to the Ranking Member of the Subcommittee, Mr. DeFazio.
Mr. DEFAZIO. Thank you, Mr. Chairman. Mr. Chairman, I appreciate your having this hearing today on the vital issue of TMDLs and clean water.
I am old enough to remember when I left the East Coast and moved to the West Coast driving over the Cuyahoga River and other places where they actually had signs, they really did and a lot of younger people find this hard to believe, that said: ''Flammable substance below. Do not throw lighted objects from bridge.''
What was below was the river. That is pretty extraordinary to think of in this day and age. We have made phenomenal progress since the late 1960s and early 1970s.
But we now need to apply science and a new generation of rules and laws to other hazards and concerns with our clean water. Of course, the Act itself and the language has not yet been updated and reauthorized.
One of the most contentious issues has been TMDLs. Dealing with nonpoint source pollution and other related aspects of that problem is very difficult. It doesn't necessarily lend itself to a one-size-fits-all regulatory approach.
The problems of nonpoint source pollution, TMDLs, vary from region to region, State to State, and watershed to watershed within regions. I hope that we can approach this is next generation of assuring clean water with an eye toward practicality and science and also that the federal government be partners in this, not just send down some new mandates to the States and counties and cities and say, ''Well, here are the new rules. Have fun. You are on your own.''
We used to substantially, and we did for point source pollution, have very robust Federal funding for cleanup of polluted waters, particularly for municipal sewer systems. In fact, I sat on a metropolitan wastewater commission for a number of years as a county commissioner. We would not have been able to afford to build it without the Federal match we got at that time, a Federal match which is no longer available.
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So, if we are going to meet this next generation of challenges, it not only involves good science and understanding what the problems are and how we can discretely deal with them in different parts of the country; it also involves a new effort on the part of the federal government to help States, counties and cities meet these new goals.
So, I look forward today to hearing some of the scientific bases that underpin this new effort. I hope we can go forward in a way that makes sense for all Americans.
Thank you, Mr. Chairman.
Mr. DUNCAN. Thank you, Mr. DeFazio.
Does anyone else have a statement that they wish to make? Yes, Mr. Pascrell.
Mr. PASCRELL. Thank you, Mr. Chairman and Mr. DeFazio for holding this hearing to continue our study on TMDLs. This has been an ongoing approach of this committee in the last three years.
I think that the intentions with TMDL regulations are good. The goal is to protect as many bodies of water as possible. But of the over 100 rivers, streams and lakes in the priority ranking in New Jersey, at least six of them are in my district and go through my hometown, Paterson.
Of these, two streams and one river have been ranked as high priority under the Clean Water Act. It is, of course, my desire to have them cleaned up, and I am sure your desire.
The NAS report brings up some troubling questions. I hope Dr. Reckhow can help address those questions and concerns with the effect that the proposed regulations will have on three categories of national pollutant discharge elimination systems permits. They are the combined sewer overflows.
We have been struggling with that, trying to put in some money to help localities deal with that aspect of this. They are all interconnected. Sanitary sewer overflows in urban stormwater runoff, municipalities don't have the resources to address that.
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I have been particularly concerned with urban sewage and runoff issues because they are costly to the municipalities and they have been burdened with inconsistent standards for cleanup. I think you would have to agree with that. We go back over the last 20 years and see that they have changed.
They are especially troublesome in light of the administration budget's lack of commitment to assisting local governments in their request to keep the water clean. That is why last year we introduced, in a bipartisan way, Members of this Committee, Mr. LaTourette from Ohio, myself, Mr. Baird, to create a grant program to assist towns with the costs.
As a former Mayor, I understand the costs very well. We must remain aware of the effects to municipalities with everything we do and make sure that the proper science is there to back up the regulations.
I am so happy to see that we are putting such faith in the National Academy of Sciences on this issue when we haven't on other issues that you have come out strong in support of, like the Census and the data that was provided for us over a year and a half ago.
I am also interested to hear from you, Dr. Reckhow, what is the relationship between what the EPA is doing and the U.S. Geological Survey, which this administration also tried to remove money from the budget and we put that money back in, thanks to bipartisan attempts. These are fifty-four institutions throughout the United States of America that evaluate, that help localities address the issue of clean water.
What is the relationship between the EPA and the U.S. Geological Survey?
With that, Mr. Chairman, thank you for bringing us together again on this very, very important matter.
Mr. DUNCAN. Thank you very much. Does anyone else have a statement they wish to make?
If not, we are very pleased at this time to have Dr. Kenneth Reckhow, who is a Professor at Duke University in Durham, North Carolina. He was Chairman of the National Academy of Sciences' National Research Council Report on Assessing the Scientific Basis of the TMDL Approach to Water Quality Management. He will testify here this morning.
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He is accompanied by Dr. Leonard Shabman who is a Professor and Visiting Scholar at the Virginia Polytechnic Institute in Blacksburg, Virginia.
Gentlemen, we are very pleased and honored to have both of you with us. Dr. Reckhow, you may begin your testimony.
TESTIMONY OF KENNETH RECKHOW, PROFESSOR, DUKE UNIVERSITY, DURHAM, NORTH CAROLINA; ACCOMPANIED BY: LEONARD SHABMAN, PROFESSOR, VIRGINIA POLYTECHNIC INSTITUTE, BLACKSBURG, VIRGINIA
Mr. RECKHOW. Thank you. Good morning Mr. Chairman, Representative DeFazio and Members of the Committee. As just mentioned, I am Dr. Kenneth Reckhow, Chair of the National Research Council, or the NRC Committee To Assess the Scientific Basis of the Total Maximum Daily Load Approach to Water Pollution Reduction.
As mentioned, I am a Professor at Duke University. Also as mentioned, I am accompanied by Dr. Leonard Shabman, who is a Professor at Virginia Polytechnic Institute and State University and who worked very closely with the committee and assisted in the writing of the final report.
As you know, in October, 2000, Congress suspended EPA's implementation Federal TMDL rules until further information could be gathered on several aspects of the program. In particular, Congress requested that the National Research Council examine the scientific basis of the TMDL program.
The National Research Council is the operating arm of the National Academy of Sciences, the National Academy of Engineering and the Institute of Medicine, chartered by Congress in 1863 to advise the government on matters of science and technology.
The U.S. Environmental Protection Agency sponsored this study of the TMDL program. I am here today to report on some of the principal findings and recommendations in our report.
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Our central message can be summarized in a short sentence. We have the scientific capability to identify the polluted waters and develop plans for their cleanup. Underlying this very general message are specific key points.
Number one, current scientific knowledge and techniques are sufficient to proceed with the TMDL program.
Number two, using current science, we recommend several changes in how EPA and the States conduct the TMDL program. These changes can be immediately implemented leading to improvements in the TMDL program. Many of these recommendations simply involve changes in the techniques used in the TMDL process, not development of new techniques.
Specific point number three, in the long run, science advances through the scientific method, as mentioned, through a process of research and improved understanding. We can improve the science used to support the TMDL program over time. We recommend in the report it is activities to do that.
The first and third points I just mentioned are worth restating by analogy with the field of medicine. We would all agree that today's medical knowledge is sufficient for the successful practice of medicine. Still, we fund medical research knowing that this will improve the practice of medicine, leading to improvements in health care over time.
As much as we might hope that medical practice will eventually be perfect, that is all diseases correctly diagnosed and cured, in reality we know that medical uncertainties will always remain. Those uncertainties, however, do not prevent us from benefiting greatly as a result of chemical knowledge.
In a similar manner, our NRC Committee strongly believes that water quality knowledge is sufficient for the practice of water quality assessment and management within the context of the TMDL program.
As with medical science, water quality science will never be perfectly known. There will always be uncertainties. But those uncertainties do not prevent us from making good decisions based on existing scientific knowledge.
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To improve practice over time, we continue to engage in medical research. Likewise, we should continue to fund and conduct water research with the expectation that such research will improve the TMDL process over time.
Let me now elaborate on my second point, which was that there are several changes that EPA and the State could immediately implement to improve the science underlying the tremendously program. I will provide two of the several examples that are in the report.
The first one: As part of the TMDL program, EPA requires a margin of safety factor that is protective of water quality. This factor is intended to reflect the uncertainty in the TMDL forecast.
However, EPA allows the margin of safety to be arbitrarily chosen, resulting in a variable and unknown level of protection. We can do better. Techniques exist now to base the margin of safety on an explicit calculation of uncertainty.
My second example: A TMDL is required for water bodies listed by the States as in violation of a water quality standard. Unfortunately, many States have not required well-designed monitoring programs with statistical hypothesis testing to diagnose standard violations.
We know how to do this now. But States are just not using the best science in many situations. Using the medical analogy, this issue is equivalent to using outdated techniques for diagnosing a disease.
This second example I just gave addresses a vital feature of the TMDL program, the listing or what we might consider with the medical analogy, the diagnosis of water bodies in violation of a water quality standard.
Clearly, what we want to do is correctly identify all water bodies in need of a TMDL. We believe that statistical hypothesis testing procedure will add the necessary scientific rigor to that identification task.
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At this point, however, the States already have identified and listed on their 303(d)lists water bodies they believe to be in violation of water quality standards and hence in need of a TMDL.
However, due to limitations in the State water quality monitoring and assessment programs, many of these lists appear to be in error. That is, we believe that some water bodies have been identified as in violation when in fact standards are being met, while other water bodies that truly are in violation of the standard have not yet been identified.
To correct this problem, we propose that EPA approach a two-list process in which States would create a preliminary list of water bodies suspected of being in violation of water quality standards. They would then have a limited period of time to undertake the necessary monitoring and statistical hypothesis testing to define the preliminary listing decision.
Those water bodies thus determined to be in violation would then go on an action list, the 303(d)list, and require a TMDL to meet the standard and achieve the designated use.
So, in conclusion, it is important to recognize the tremendous variability among the estimated 40,000 projected TMDLs. Some are accompanied by a great deal of data and existing knowledge. For others, very little may be presently known. Some have self-evident solutions while for others the problem is exceedingly complex and solutions are unclear.
Again, consider the medical analogy. There are many different diseases and a great variety of treatments. Thus, doctors must be prudent in diagnosis and must make appropriate treatment choices and then monitor patients until health is achieved.
Likewise, the variety of water quality problems under the TMDL program means that the States must strive to correctly diagnose standard violations. They must make judicious choices on the TMDL treatments and they must continue to monitor the water body until the designated use is achieved.
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Both a medical doctor and a TMDL scientist face uncertainty in their tasks. We believe that the NRC report outlines the strategy for using the best science to move ahead with the TMDL program.
Mr. Chairman, I would like to thank you and this subcommittee for your interest in this vital program to improve the quality of our nation's waters. My colleagues and I would be glad to answer any questions on specific aspects and recommendations from our study. Thank you.
[Mr. Reckhow's prepared statement may be found on p. 25]
Mr. DUNCAN. Dr. Reckhow, thank you very much.
Let me ask you this: You heard me in the statement that I made quote from the letter that the National Governors Association sent last year saying, ''The one-size-fits-all approach proposed by the regulations will inevitably fail, resulting in mountains of paper work and no appreciable improvement in water quality.''
What do you think about that statement?
Mr. RECKHOW. I believe that there is a mix in the nature of the response, in the nature of the science. I think to some degree in certain aspects of the program there are indeed procedures that one might follow.
I think the two-stage listing process with the hypothesis testing approach for the listing/de-listing decision is one that could be easily and immediately developed and could be relatively, uniformly applied across the States. In that sense, I see where a one-size-fits-all may work.
But inconsistent with your comment, I also feel, as stated towards the end of my remarks, using the medical analogy, we have a variety of diseases, so, too, do we have a variety of pollution problems, TMDLs, a wide range of knowledge across the States and within the States concerning what is the nature of the problem and how to address the problem. In that sense, this notion that one-size-fits-all, as you indicate, is very likely inappropriate.
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That is why I mentioned the States, EPA guidance to the States and the States themselves need to be judicious and flexible in how they approach this variety of problems, just like the good medical doctor is judicious and thoughtful in how he or she diagnoses and treats problems.
Mr. DUNCAN. Well, you also heard me say that you can't treat all bodies of water the same.
Mr. RECKHOW. That is right.
Mr. DUNCAN. They differ in all sorts of ways. The problem is worse in some places than in others. Also, I had a quote in my statement from the State Water Pollution Control Administrator which said, ''This set of rules is technically, scientifically and fiscally unworkable.''
What do you think about that statement?
Mr. RECKHOW. Well, as I mentioned in my comments, we believe that the knowledge and the scientific techniques are there to move ahead, but with those qualifiers that I just mentioned, there is great value to be gained by taking some existing techniques and implementing those within the TMDL program.
We also believe that there are TMDLs for which the knowledge base is limited and for which additional information is likely to guide us and improve the decision over time. So, what might occur is that the States would look at the standard violations they confront and make decisions. In some cases, as I mentioned, some of the TMDLs are going to be quite apparent, along the lines of what you just stated.
There is great range in terms of the nature of the water bodies and the nature of the problems. The States should be able to look at what they confront and make choices toward working expeditiously on some TMDLs and moving forward and recognizing prudently that in other cases there is a need to collect more information, better understand the problem and move ahead in a more cautious manner along the lines, and it was mentioned by one of the members of the committee but I didn't directly get into it, and I could, along the lines of the adaptive implementation approach that we have as really a cornerstone of how the TMDL is to proceed once it is developed.
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Mr. SHABMAN. Let me try also to respond to that. I think that one of the things that is in the report that ought to be recognized is that there are some TMDLs where the analytical requirements that exist are unnecessarily cumbersome and costly in the sense that the problem is obvious, the solution is obvious and yet there is a series of analytical requirements that are required to just go through and check things off.
So, there is a whole set of watersheds or water bodies where problem solutions jump right out at you and, really, there is just a lot of paperwork involved in moving forward with the program. The States have to go through that paperwork drill because of some of the rigidities in the program.
There is another set of water bodies where the opposite exists and the opposite situation is the one that Dr. Reckhow just described where we are not exactly sure even what the nature of the goals are, let alone what the problem is. In those instances, we really have to move with a very different kind of understanding and a very different kind of implementation plan and in fact have to be very careful in terms of what we recommend, what actions are taken.
In that case, I think the committee is suggesting that not only should the cost and effectiveness of actions be considered, but also the certainty with which we feel that those actions will have an effect on the system.
The problem is then that there is a standard protocol that every single water body has to go through in terms of what scientific assessments are done, what models and so forth and that really is putting everything in the same kind of scientific box.
We think that there is a lot more opportunity for flexibility there.
Mr. DUNCAN. If I understand what you are saying, there are some bodies of water where the problem is obvious, the solution is obvious and it is ridiculous, it is even frustrating to those involved to have to go through all the delays, all the paperwork, all the bureaucracy. We should be able to just get in there and take some action.
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Mr. RECKHOW. Yes, and we identify in an example in the report a situation just as you describe. Yes, we agree with that.
Mr. DUNCAN. You say one example in the report. Have you given us a list of all of those places where you feel that situation exists?
Mr. RECKHOW. Unfortunately, that was really beyond the scope of what we could do in the time period.
Mr. SHABMAN. But I think that one of the recommendations says the achievement of the designated use should be the goal of the program and not going through the protocols and the analysis.
Then that, I think, falls into a recommendation or at least a suggestion that is at the latter end of the report where more reliance on the States to be responsible for meeting the designated uses, especially in waters that don't have nationally-significant impacts.
More reliance on the States to use their best judgment to move ahead on the cases we have talked about without having together through a series of check-offs, would be one change that might be looked at.
Mr. DUNCAN. Then you got into situations, and this will be my last question, where the opposite situation exists where no real assessment has been made, no real plan has come forward. I understand, I have one report that says only 32 percent of the bodies of water have been properly assessed. In March of 2000, the GAO put out a report on the TMDL program that said only half of the assessments EPA is relying on were based on current site-specific monitoring information. So, that gets the percentage down.
In other words, the EPA has previously said 40 percent of assessed waters are too polluted for fishing or swimming, but 40 percent of 32 percent equals 12 percent of the total number of bodies of water. If the GAO report is right, that 12 percent then goes down to 6 percent. It seems like we may be flying blind in a lot of places.
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Mr. RECKHOW. The States are facing a difficult situation with their surface water or ambient water quality monitoring program. In most cases there are many objectives that they are trying to achieve. What you mentioned was their reporting requirements every two years on the state of the State's waters.
Of course, another objective is to identify standard violations for the need for a TMDL. The way one would typically monitor a water body for these objectives may be quite different. So, as a consequence, what one has is, you cited the language correctly in that the States and EPA will report a percent of the water bodies assessed instead of saying a percentage of the nation's water bodies, because the nature of their sampling programs doesn't allow them, in most cases, to make scientific inferences about the unsampled waters.
That ties into our point with regard to the errors that are likely to have been made in the listing process, errors in both directions, of course, with inadequate monitoring and hypothesis testing, we believe the States have probably listed some water bodies in need of a TMDL that, upon reexamination with more rigorous monitoring and hypothesis testing would be found to be in compliance.
Correspondingly, consistent with what you are saying, is that there are certainly or very likely water bodies that have not been monitored that may indeed be in violation of a standard but we don't know because we have not gone in and looked at them.
Mr. DUNCAN. I have far exceeded my time and I apologize. We will go to Mr. DeFazio.
Mr. DEFAZIO. Thank you, Mr. Chairman.
As I read the NAS report, it doesn't say that the TMDL objectives are unrealistic or immeasurable or unattainable. But it does raise concerns, particularly at the State level in how we have set the goals and objectives and how we are moving toward attainment.
Is that a fair summary?
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Mr. RECKHOW. That is a reasonable statement. As I say, we believe the program can proceed. There are changes that we can make immediately in terms of improving the science and in the long run I think the science can continue to improve.
Mr. DEFAZIO. One thing that intrigued me was that we talked about the States developing appropriate use designations. That certainly gives a lot of latitude to the State; is that correct?
Mr. RECKHOW. Latitude, except of course, standards, as you may know, have three features. They have a designated use. They have a criterion. A scientist will measure to assess the degree to which the designated use, and they have anti-degradation aspect to them.
Mr. DEFAZIO. Yes, but the State does have the capability of designating the use. They can chose different categories which would require different levels of attainment. So, that is one area where, it seems to me, we have certainly given the States some flexibility here. I mean, they are not required to return every water body to pre-settlement standards. Isn't that correct?
Mr. RECKHOW. Yes, that is correct.
Mr. DEFAZIO. In particular, in my part of the country, I note that they are under a court agreement and working with the regional EPA. Our most prevalent problem is being pointed to as temperature. But I am a bit puzzled.
I mean they have set sort of an achievement for cold water fish in rivers that probably pre-settlement were warmer than they are today. I'm a bit puzzled by that. I suppose we can chose to say that we want to actually attain a level the exceeds what existed pre-settlement.
Mr. RECKHOW. Well, this is an interesting issue because it gets at where we often found ourselves staying within the scientific arena and commenting on the quality of the science. There are clear policy implications and policy decisions.
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Our observation is that the States might be prudent in looking more broadly at the nature of the designated uses and the classes of designated uses within a State. How they called that was clearly a policy decision and not ours to say.
The other thing we mentioned was the need for so-called use attainability analysis and for EPA to update their guidance on obtaining a use attainability analysis to aid them in the designated use characterization.
Mr. SHABMAN. If I could embellish just slightly. I think that we deal with this in Chapter One of the report. The TMDL program represents a fairly substantial historical shift in the focal point of national water quality management back to something we had prior to 1972.
When we moved from effluent, end-of-pipe focused management to the watershed perspective, suddenly water quality standards that nobody had paid a whole lot of attention to and they had just been sort of—your example of temperature is a good example—had been put in place but they really had not consequence because we weren't implementing ambient-based planning.
All of a sudden, these standards, which really, for many, many years they were important to have, but they had no significant consequence, suddenly they became the focal point of a TMDL program. So, really, there are some serious questions, and I think that is what the committee is saying, not only about the social policy goals, but I think even the scientific foundation for those standards. That is really going to have to be looked at, I think, with a whole new eye, now that we have a different kind of program.
Mr. DEFAZIO. Sort of related to that is this margin of safety issue. How is that calculated?
Mr. RECKHOW. That is an interesting point and one that we address, I think, fairly strongly. It is supposed to be an indication of the uncertainty in the forecast.
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One uses a mathematical model, a judgmental model to predict what is the total maximum daily or allowable load of a contaminant, let us say nitrogen, in order to meet a water quality criterion or standard.
The uncertainty in that forecast is supposed to be the basis on which the margin of safety is determined. In effect, what you are doing is, your hedging toward extra protection of the water body. The amount of hedging is, in direct proportion to the uncertainty in the forecast.
EPA practice has been almost invariably not to do uncertainty analysis, but rather to arbitrarily select a factor for the margin of safety and hedge in the direction of protection. We strongly believe the techniques are available for EPA and the States to do the uncertainty analysis and indeed they ought to. There ought to be a rational basis for computation of the margin of safety.
Mr. DEFAZIO. That seems to me like a very crucial point because often just the slightest addition to an attainment can be the most expensive increment because you have to go from one set of rules to something entirely different and more encompassing.
Mr. RECKHOW. There is an additional feature there if in fact research in developing and improving models focuses on reduces the uncertainty in the models, so, too, do you reduce the margin of safety and that carries with it a reduction in the over-design necessary for the implementation of the TMDL.
Mr. DEFAZIO. One last follow-up on this. Mr. Chairman, I realize my time has expired. But on this point of the uncertainty analysis, there is now a body of science that deals with the issue of old growth and spotted owls in the Northwest where they ultimately ended up with what they called a Delphic process which means they all sit around and they all sort of hope for enlightenment and agree with the consensus, with no quantitative basis.
There is a quantitative basis for this?
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Mr. RECKHOW. There are indeed methods for estimating errors. This ought to be an area for research. We can do better, but this, ironically, is an area of my research for the past 15 years, uncertainty analysis in water quality models.
Mr. DEFAZIO. Thank you.
Thank you, Mr. Chairman.
Mr. DUNCAN. Thank you.
Dr. Horn.
Mr. HORN. Thank you, Mr. Chairman.
Gentlemen, we are glad to have you here. The National Academy's report spends a lot of time, as we have already said, in many ways discussing water quality standards. In fact, the report says, and this is a quote: ''Water quality standards are the benchmark for establishing whether a water body is impaired. If the standards are flawed,'' and that is the report's language, ''as many are, all subsequent steps in the total maximum daily load program and process will be affected.''
Could you explain that commitment there and the language?
Mr. RECKHOW. Well, the standard, of course, has these two critical elements, the designated use and the criterion. The designated use might reflect something dealing with protection of certain type of fish or fishable or swimmable, aspects of that nature that the public relates to.
The criterion may be a chemistry measure or a biology measure, concentration of a chemical contaminant or some indication, let us say, the density of algae. But ultimately, the purpose is to protect the designated use. So, the criterion in some sense is a surrogate for the designated use. It is relatively easily measurable by the scientist surrogate of whether or not the designated use is achieved.
What we recognize is that we have looked historically at the setting of State standards when, as Dr. Shabman mentioned earlier, the standards were often set in a time when there was not this dependence on the standard being a foundation. Our sense is that the standards were often set without this careful consideration of the linkage between the criterion and the designated use.
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So, what we believe is likely to happen in the adaptive implementation of the TMDL, and adaptive implementation is, quite frankly, to some degree, learning by doing. It is a stage implementation where we understand how the system responds and we efficiently move toward achievement of the designated use.
In that learning process we expect that we are likely to have a better understanding of the adequacy of the criterion as a measure of the designated use and our expectation, too.
I had that personal experience with standards in working on a TMDL in North Carolina and that is that we will have an improvement in the standard setting in many of the States where the designated uses might truly be more reflective of what the expectations of the public are and the criterion will be a better scientific surrogate of the achievement of the designated use.
Mr. HORN. Would some of those standards be both qualitative and quantitative or a mixture there of which would lead to a judgment?
Mr. RECKHOW. We have urged that the criteria be quantitative, so that tends to make them more operational in terms of assessing whether or not the designated use is being met and also tying back to a quantitative TMDL.
We also urge that there been increasing consideration to biological criteria under the think that the biological criteria are likely to be better surrogates for the designated use than would be chemical of physical criteria.
Mr. HORN. Your report makes it pretty clear that the total maximum daily load should be a process of moving from limited information to more information, moving from uncertainty to certainty and moving from limited actions to larger and more costly actions.
Could you explain how that process works? You are touching on it there and is there anything else you want to say on that, both for determining whether a body of water is impaired and for implementing total maximum daily load?
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Mr. RECKHOW. There are a number of aspects of that, but certainly in focusing on the adaptive implementation, we envision that the TMDL plan will be developed and approved through the normal State process with the EPA oversight and it will be implemented in a phased manner.
We believe that the actions that are implemented are likely to be chosen on the basis of where would we get the most effective control of the contaminant for the resources invested? Where would we learn the most about how the system responds so that we can make good choices on improving the TMDL over time as we learn about how the system goes.
We also see that to some degree in the area that the agency needs to think about operational procedures that would actually make this work. We have a broad plan as to how we would see it proceeding. But on the ground there are going to be more specific features that will enlighten us as to how that would be most effective.
Mr. SHABMAN. Let me try to explain it this way: The current expectations are that there is a TMDL plan done and there is a schedule in that plan that says on such and such a date the water quality standard will be achieved and it will be achieved because we will do these things in this sequence and we are fairly certain these results will occur.
What we are actually suggesting here is that in complex water bodies that is just unrealistic. Really, what you need to do is to not assume that you have that kind of knowledge going in. But rather, if you can get a consensus of the stakeholders, for example, that maybe a 20 percent reduction of some particular pollutant can be done and is cost effective and you are as certain as you can be that it is going to move you in a positive direction toward your designated use, you do that and agree to that.
Then the next step is: Do we need 10 percent more or 20 percent more? Sometimes it is the question about the additional 10 to 20 percent where the uncertainties get very large and people can't seem to reach agreement.
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So, we are arguing here in a way that as you have certainty and you can get agreement that you move forward with those things continuing to see if the system is responding, how it is responding and what might work. Because as you make larger and larger commitments to reductions, the uncertainty associated with whether they are going to actually work expands. We are just saying move slowly but deliberately in that way.
Mr. HORN. Thank you.
Mr. DUNCAN. Thank you very much.
Mr. Pascrell.
Mr. PASCRELL. Based on what I just heard, we don't assume that there is definitive knowledge. You use the word ''uncertainty'' throughout this report, that there is uncertainty. How do we know or at what point do we know that we are making actual progress in cleaning our rivers and therefore how do we know that we are going to move towards cleaner water and implement the Clean Water Act?
Mr. RECKHOW. That is an excellent question. Rephrasing your question, how do we know that we are moving in the direction that we need to move and we are at the point where the designated uses are achieved?
Basically, what we are proposing, and drawing on my medical analogy here, just as the doctor monitors a patient's progress, so, too, will the scientist need to monitor the progress of the water body after the strategies for the TMDL are implemented and through the monitoring data assess, in effect, the trajectory of improvement on the water quality, on the criterion.
It is through that monitoring process that we gain an understanding of whether or not we have achieved what we have set out to do, which, of course, as we have emphasized, is not checking off the TMDL as implemented, but, of course, we have achieved the designated use.
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Mr. SHABMAN. I think that perhaps running through the report is not so much uncertainty well, that is there as well, admittedly but also the need for continuous monitoring and assessment.
There seems to be this idea also that you decide what the problem is. You take some actions. You fix it and in fact maybe even assume the actions have worked.
What we are saying is no, there really needs to be a much broader spatial, over time assessment process that is always going on in most watersheds, if not all watersheds. You could set some priorities.
The resources for that are another question. But if you are really going to do a scientifically valid water quality management program for the nation, it is going to have to rest fundamentally on a monitoring and assessment program, which is fairly substantial.
Mr. PASCRELL. Well, who will do the monitoring and assessment? I mean where is the central force here, the State or the federal government?
Secondly, what kind of backtracking are you suggesting that the States need to do in view of this state of the art changing in the science? That is two questions.
Mr. RECKHOW. I will answer the second question and perhaps turn it over to Len for the first question.
I don't see so much backtracking on the States' part to improve the science. What I think we need to do is to see that as quickly as possible we can have guidance to the States on the improved technologies for the listing decision and for the TMDL development through the modeling for the uncertainty analysis and the margin of safety.
In many of those areas, as I mentioned in my opening remarks, the technologies are there. They need to be required. The States need to do those. I think in a number of those areas we can see pretty rapid progress on the part of the States to do that.
Mr. SHABMAN. On who does the monitoring, I think no doubt it is a shared Federal-State responsibility. With respect to the actual implementation of the TMDL program and the actions under 303(d), the monitoring is probably going to be a State responsibility. But if we think about this as the nation's water quality management program, then you have programs like NAQWA, like other programs in other Federal agencies that can supplement and parallel and work with and coordinate with all those good words with the State programs.
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So, I think it is not that the federal government should do it or the State should do it, but I do think there is going to need to be some careful consideration, given the programmatic objective, who is responsible for the different programs, whether it is the State, whether it is the Federal government.
There are efforts and there need to be more efforts to better coordinate those, to share data and do that sort of thing. I know that is being worked on both at EPA as well as USGS, as well as with the States.
But with respect to the reason we are here today, which is the TMDL per se, I believe that will be a State responsibility.
Mr. PASCRELL. Thank you, Mr. Chairman.
Mr. DUNCAN. Thank you.
Mr. Gilchrest.
Mr. GILCHREST. Thank you, Mr. Chairman. I appreciate this hearing and the kind of information that we are gathering. This is gold to a lot of our eyes so that we can peruse this and see how we can help improve water quality in our individual districts.
I report much, if not most, of the Chesapeake Bay. Several years ago when the idea was floated about a clean water action plan, which most of us for the first time ever heard of TMDLs, I got together with the Maryland Department of the Environment in our State, the Department of Natural Resources, USGS, along with EPA and we went from county to county to county explaining what this concept was.
To some extent I on the under guise that human initiative is probably one of the most important characteristics in solving problems where there is ample opportunity for that to flower. To offset the confusion, the misunderstanding, the perspectives of liberal versus conservative ideologies in all of this, we boiled down TMDLs to be fundamentally two things: storm water runoff and in some cases storm water sewer runoff and best management practices for agriculture.
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When we went to each county with this concept we said we can do better by improving our streams and waterways and so on if we all work together in this flexible, adaptive implementation of this process. So, there was farmers in the room, county commissioners in the room, people in planning and zoning in the room. The stakeholders were in the room with the basic presentation of the early understanding of the concept of TMDLs.
As a result, now nothing ever runs smoothly when you have more than two people in the room, but as a result, some of this has been implemented. Some of the standards are beginning to be assessed. Some of them have been implemented and the rapid improvement in water quality in some areas has been quite profound, especially in the agricultural areas.
But the key component of all of this, and your report is going to be very helpful as we continue to pursue this, it seems to me the key component is leadership, accepting the fact that we have the knowledge to improve water quality, let us bring everybody in the room and discuss how this can happen.
And I represent a piece of Baltimore City, in fact the biggest industrial area in Maryland, chemical industrial areas in South Baltimore. I represent the suburban area around the city of Annapolis and a large agricultural area.
But if we just get in there and say, here is a stream; here is a river. This is brackish. This is salt. This is fresh. Here is a chemical factory. Here is a dairy farm. Here is a suburb. Here is the outfall. You know, what can we do?
So, I want to compliment both of you on this report. The analogy of the medical doctor is you know, they don't have a cure for kidney stones, so I am not going to go to a doctor if I get a kidney stone. There is no cure for heart disease, ultimately, so I am not going to go to the doctor if I have chest pains.
I think that was a good analogy, which I think we will continue to pursue and use in our collective districts. I just want to thank you for the report and the things that you have done.
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Mr. RECKHOW. Thank you.
Mr. DUNCAN. Thank you very much.
Governor Otter is next.
Mr. OTTER. Thank you, Mr. Chairman.
I, too, want to congratulate you both on a great report that was very enlightening in many ways, but also a little bit alarming in others. I know, unlike my friend and colleague from Maryland, I do report many of the same kinds of constituencies and characters of constituencies that he enumerated.
But my district is 680 miles long and 120 miles wide. I have two time zones in it. But more importantly, I guess, I have over 87,000 miles of streams in it. I have got 119 water municipality systems and sewer systems.
I could go on and on and on with the effect, the whole concept the TMDL has had on us. But we have accomplished a lot in Idaho and, I think, in the west because we represent a good neighbor policy to the west. We know that our water doesn't stop at our borders. We wish it would in many cases. But we know that it doesn't.
But of concern to me, and it has been a concern for a lot of years, because for 14 years as lieutenant governor, I saw much more activity in the court system than I saw on the ground, in the water, in the testing and in the effort to improve it.
It seems to me that we have maintained a broad threshold of the possibilities for TMDL setting standards and measuring them and everything else so as not to narrow down and focus the legal targets. The wider it is the more we can explain that, hey, you know, we are operating within a much broader perimeter.
The more narrow it is, obviously, the more opportunity there is for the legal side of an argument, a law suit to say they are not meeting their own standards. Is this right? Is that assumption right?
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Mr. SHABMAN. I think this actually relates to Representative Gilchrest's comment as well. I think there is a perception, and I am reluctant to say it is right or wrong, but there is a perception that the TMDL program as it is necessarily being implemented and driven by a series of legal proceedings is causing there to be deadlines which may not be meet-able, focus on particular pollutants or stressors that may not be the principal sources of the problem. That is a perception that people have.
I think our report doesn't stray into the policy area that you are asking us to get into. But I do think that what we do say is to the extent that the problem, because of the legal structure, is too narrowly focused on particular pollutants as opposed to a broader problem of stressors, to the extent that the problem or the legal and regulatory structure is too narrowly focused on a particular kind of instrument, an NPDES permit or something, then the science that is necessary to get our water quality program suffers.
I think that is as far as we go in the report.
Mr. OTTER. I understand that it is a double-edged sword. I know you are not a doctor of laws, thank God. But it still strikes me that talent and limited resources and money and effort and ability and time, most of all, has been wasted on process and more has been done in the courtroom, I say again, than has been done at ground zero where the real problems are.
Then, we overlay the Endangered Species Act and we overlay assumptions that were made and that verification and time did not prove out. My colleague from Oregon mentioned the Spotted Owl. Heaven forbid, when they found that a Spotted Owl had put a nest in a K-Mart sign, the next thing we thought we were going to have to do was go out and put K-Mart signs up in the forest. You know some people were relieved by that, but others were concerned. But the whole systems reaction was ''We made a wrong assumption and we have done an awful lot of harm with this assumption.''
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One of the reasons we were pushed into these assumptions was because of the pending lawsuits that we were going to have to go through.
So, I guess my question comes down to as much a statement as it really is an inquiry. I fully respect the limitations of the report and I fully will accept your perhaps not wanting to stray this far. But if we were to provide in a reshaping of the Clean Water Act, if we were to provide for a more limited access to court-pursued remedies, would that not enable the process that you have pretty well described in this and that my colleague from Maryland mentioned where everybody sits down and we say, ''Hey, this is what we are going to agree to and this is where we are going to go?
Exhaust our ability to get along and exhaust our ability to do the right thing before we exhaust our limited resources by paying lawyers?
Mr. RECKHOW. It is a fascinating question. It is one that, as an environmental systems analyst, I don't feel totally qualified to answer, but at the same time, it is something that in my experience working over the past couple of years on a large TMDL in the Neuse Estuary in North Carolina I have thought about a great deal because what I have observed is that EPA Region 4 has become involved to a greater degree than EPA might prudently chose to, because of lawsuits in Region 4 and the perhaps understandable concern on the part of the EPA scientists that they need to be rather controlling at the State level with regard to the TMDL.
So, as a consequence, we had what I would consider more resources devoted to that particular TMDL in Region 4 than perhaps should have been when some of those resources could have been assigned to other TMDLs for which there were fewer resources. The timetable was extremely ambitious, again, with the lawsuit lurking in the background.
On the other hand, and of course, we only have one realization of this set of events, on the other hand, one might argue, had the lawsuit not occurred, the State of North Carolina likely would have proceeded along their current strategy with regards to nitrogen management which is, as it has turned out in the TMDL assessment, is likely to be inadequate with regard to meeting the designated use.
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So, it is one of these very difficult issues that it is quite clear the courts are driving us and forcing us to look at certain problems in a sequence that we as scientists might say we might say we might chose a different sequence.
At the same time, it is clear they are alerting us to issues.
Mr. OTTER. Mr. Chairman, if I could just continue very quickly. Do you believe that the EPA is more concerned about the quality of life in North Carolina than the Governor and the State Legislature and the people who reside in North Carolina?
Mr. RECKHOW. No.
Mr. OTTER. Thank you.
Mr. DUNCAN. Dr. Ehlers.
Mr. EHLERS. Thank you, Mr. Chairman.
I just want to pursue this a little bit. I appreciate your report and your emphasis on achieving results. You outlined some of the difficulties. Do you think that the TMDL approach is flawed in it is very essence as an approach or is it simply a matter of the way it is administered?
Mr. RECKHOW. In a brief answer to that my response is the latter. It needs improvement in the way it is administered.
Mr. SHABMAN. If I could elaborate, I think that the committee report believes that the concept of focusing on the conditions of our water bodies and the designated uses are important.
I think the committee is also stressing here that there are more stressors on our water quality conditions than just chemical pollutants and that in fact the TMDL program runs the risk of focusing on only one of the potential problems in watershed.
So, in a sense it has the right target in mind, but when you get down to the implementation there may be either too narrow a focus on particular kinds of stressors to the exclusion of others or particular kinds of solutions to the exclusion of others.
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Mr. EHLERS. I happen to be a strong environmentalist. I got elected on that platform initially, but I am a great believer in common sense. I think your approach has much more common sense, ''let us look at the problem and decide on the solution,'' rather than concentrating on one or more particular pollutants.
I am wondering how we got off on that wrong track? Was it the lawsuits that my colleague, Mr. Otter, referred to or is it a flaw within the EPA? If it is a flaw within EPA, does it lie in the administrative end of it or in the scientific end by choosing to zero in on particular pollutants rather than look at the broad issue.
Do you have any insight on that?
Mr. RECKHOW. I think we have arrived at where we are with regard to the difficulties in the TMDL program and certainly in part because of the lawsuits, which are driving us toward certain problems, that again, the public as a whole and their values might direct us somewhat differently and science might suggest something different.
But I also think we have arrived at it in part along the lines of what Dr. Shabman said earlier on how the program has evolved over the past 30 years from one where we were focused, of course, on NPDES permits and end of pipe from wastewater treatment plants and the successes we had there to a realization that that was in total inadequate and we now confront an estimated 40,000 standard violations.
It has forced EPA and the scientific community and my colleagues in the universities to come forward with a program rather rapidly. The outcome, and again I am not sure why this has occurred, has been a science that does not really fully take advantage of what we know and can do.
That is why we as a committee feel really quite confident that a number of changes can occur in the science rather quickly and without additional research that will have immediate improvements on the practice and the TMDL process.
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Mr. EHLERS. Let me pin this down a little. I am not throwing stones at anyone. I am trying to find out what went wrong. Was it the scientific community at large? Was it the scientific community within EPA or was it the administrative community within EPA?
Mr. RECKHOW. To some degree, all of us had a role in this issue. We talked earlier about the standards. I look at the standards, for example, in North Carolina. We have gone back to understand the process of some of the water quality standard setting. It is not what, as a scientist, I would say is a good process, given the fact that the standard is now such a foundation of the TMDL program.
But at the time the standard was set back in the late 1970s, it was not expected to have this preeminent role in water quality management. So, actions then in a group and at a time when there was not an appreciation for the consequences of the good decisions are now coming back to affect us. I think that is one of many, many things that have led to where we are. But the good news out of all of this is that in our view the program, the concept is sound and the science, the techniques can be improved and improved rather quickly.
Mr. SHABMAN. If I could try to also respond, I think that the ''L'' in TMDL says ''Load.'' When rivers are catching on fire, as was mentioned earlier, you sort of know what the problem is. There are these floating oil slicks or whatever it might be. There are chemicals in the water. You have a pretty good idea, this is now in the 1970s, you have a pretty good idea what you need to do to fix it.
So, you develop a regulatory structure and a legal structure behind that that is targeted at that kind of set of stressors in the system. As you begin to fix those problems, and we have over time, and you start asking questions about ''What do I want these waters to achieve?'' the negative is you don't want them to catch on fire. But that is the negative. There is a positive out there. You want them to be by some definition swimmable, fishable, whatever it might be, hopefully appropriately defined.
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Suddenly, just focusing on these very limited loads, if you will, to the system of particular chemicals isn't good enough to get you there. I think that is one of the messages the committee wants to suggest.
There is no villain here. We have solved the problem that was really the important problem of its time. The question is: Is the TMDL program as it is narrowly conceived the right focal point for the problems of water quality that are coming on line now and in the next 20 or 30 years.
I think that is just simply the way the world worked. We have solved one problem. Now, we have a different kind of problem. I think that is one of the messages in the report.
Mr. EHLERS. My time has expired. I will yield back.
Mr. DUNCAN. Mr. Gilchrest.
Mr. GILCHREST. I appreciate the Chairman's yielding.
Mr. DUNCAN. I could tell by the look on your face that you wanted to say something.
Mr. GILCHREST. I wanted to respond to my two colleagues from Michigan and Idaho as far as the implementation of some of these Federal programs and whether or not EPA is more concerned about the State or whether EPA is flexible enough.
We had a problem. We have the highest concentration of poultry, I think, in the United States on the Delmarva Peninsula. So, we had a problem with phosphorus in the soil. Then you have TMDLs coming in. You have Physteria coming in. You had EPA coming in. EPA, quite honestly, was going to come down with a sledgehammer. We got EPA to come into our district and walk the farms, to understand the nature of the problem and talk to the farmers.
Then we had a big meeting with EPA and about 300 farmers, dairy farmers, chicken farmers, hog farmers, you name it. EPA is Region 3 out of Philadelphia. Really, none of the EPA people from Philadelphia had ever walked these farms. But when they did, we both began to understand each other's issue. EPA was then flexible enough for us to work this issue out so that we really do now, believe it or not, have put phosphorus into nutrient management plans, whereas before it was just nitrogen.
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If you know anything about agriculture, putting phosphorus into a nutrient management plan is a profound change. But we figured out how to do it and do it so the water was cleaner and the farmers could even make more of a profit.
Mr. EHLERS. Would the gentleman yield?
Mr. GILCHREST. Yes.
Mr. EHLERS. I agree totally with that approach. I find that some of the most valuable time I spend in the Congress is visiting the plants and the farms and wastewater treatment plants, and so forth in my district. You really get a good hands-on feel for the district.
It is sometimes very frustrating to deal with the bureaucrats in the region, in the case of the EPA, and many other issues who have never gone out and walked a plant or a farm. Perhaps we should set up a program requiring our governmental employees to do that, spend one day a month actually out in the field slogging around in hip boots.
Mr. GILCHREST. With their Members of Congress.
Mr. EHLERS. That is a good idea. I think it would be great. I yield back.
Mr. DUNCAN. Well, thank you very much. Object the NAS recommendations are intended to bring good science into the TMDL process so that the actions that we take will actually lead to water quality improvements. We have not had some of that good science in the past.
If we don't have that, then sometimes we spend great amounts of money trying to clean up bodies of water that are already about as clean as we can get them or we spend money in the wrong ways.
Mr. DeFazio mentioned the lake that caught on fire, the Cuyahoga in Cleveland. That is true. But it is also true that many bodies of water throughout the country were very clean even at that time. So, we have made great progress. We still need to do more.
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Obviously, we want to spend the money in the most cost-effective way that we can because as important as clean water is and water quality is to all of us, obviously, we cannot spend the entire Federal budget on improving our water.
There are several young people here today in this hearing room. Some of them may think, well, why don't we just spend whatever it takes to make all the waters fishable and swimmable. But as I mentioned in my statement, the Mayor from Massachusetts, from Gloucester, said his inner harbor is a working harbor with huge boats coming in there and fishing and swimming is prohibited in that area by the State in the first place.
If we tried to spend all the money, whatever anybody could dream up, you would wreck the entire economy, you would drive up the prices on everything. You would destroy jobs. You would hurt the poor and the lower income and working people in the biggest ways.
So, you have to have some balance and moderation in all of these things. Unfortunately, as long as you have people alive, I don't care how clean or how green they are, if we had 270 million members of the Sierra Club living in this country, they would still pollute in a big, big way, just by living.
We want so many products from other countries and we want so many things that companies have to manufacture and so forth. So, these problems are not easy to solve. These questions are not very simple, but we do have to do a better job in making sure that our decisions are based on good science and that the money is spent in a cost-effective way and spent where there are actually problems or at least where the problems are the greatest.
I want to thank Dr. Reckhow and Dr. Shabman for being with us today. You have been outstanding witnesses before us and very helpful in this process as we continue to look at a very difficult and important problem facing this country.
Also, I should say this: I have traveled extensively throughout Europe and South America and other parts of the world. We actually are doing better than just about any other country in the world. Many of the countries that you might assume have cleaner water than we do really do not many times.
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So, we have done a good job, but we need to keep doing more and doing better and improving what we are doing. That is what this all about.
With that, we will conclude this hearing. Thank you very much.
[Whereupon, at 11:35 a.m., the subcommittee adjourned, to reconvene at the call of the Chair.]