Segment 3 Of 5 Previous Hearing Segment(2) Next Hearing Segment(4)
SPEAKERS CONTENTS INSERTS
Page 212 PREV PAGE TOP OF DOC Segment 3 Of 5
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.
REAUTHORIZATION OF THE FEDERAL WATER POLLUTION CONTROL ACT
TUESDAY, FEBRUARY 21, 1995
House of Representatives,
Subcommittee on Water Resources and Environment,
Committee on Transportation and Infrastructure,
Washington, DC.
The subcommittee met, pursuant to call, at 2 p.m., in Room 2167, Rayburn House Office Building, Hon. Sherwood L. Boehlert (chairman of the subcommittee) presiding.
Mr. BOEHLERT. Good afternoon and welcome to our third hearing on the reauthorization of the Clean Water Act.
Today we will hear from the Honorable Robert Perciasepe, representing the Environmental Protection Agency. Earlier this year, Mr. Perciasepe provided the committee with an informative briefing on the workings of the Clean Water Act. And, Bob, I want to welcome you back here. I look forward to working with you and the Office of Water Quality as we move Clean Water Act reauthorization legislation forward this spring.
Page 213 PREV PAGE TOP OF DOC Segment 3 Of 5
Representing the Department of Agriculture is the Honorable James R. Lyons, Under Secretary for Natural Resources and Environment. I look forward to learning more about how USDA programs can be used to further supplement ongoing efforts to improve the quality of America's waters.
The Conservation Reserve Program, a farm program that receives $1.8 billion annually to take highly erodible land out of production, should be used to a greater extent to meet the enormous challenge nonpoint source water pollution poses for America's farmers. USDA has a major role to play in the protection of our Nation's lakes and streams. We must do a better job of coordinating our Nation's clean water and agriculture programs. Resources are too scarce and the challenge is too great to not have better coordination between USDA and EPA.
We will also hear this afternoon from the Honorable Douglas Hall, Assistant Secretary for Oceans and Atmosphere at the National Oceanic and Atmospheric Administration. Mr. Hall will provide us with an overview of NOAA's role in implementing Section 6217 of the Coastal Zone Act reauthorization amendments. Again, we must look to better coordinate programs such as Section 319 of the Clean Water Act with Section 6217 of the CZARA.
As noted by each of our witnesses, controlling nonpoint source pollution is the single greatest challenge before us in improving the quality of America's waters. In order to effectively control nonpoint source pollution, we are going to need the best efforts and most innovative ideas that the Environmental Protection Agency, the Department of Agriculture and NOAA have to offer.
Page 214 PREV PAGE TOP OF DOC Segment 3 Of 5
Before turning to the subcommittee's Ranking Member, Mr. Borski, I would like to thank each of our witnesses for having their testimony in early. We really appreciate that.
And I would also like to observe that the committee hearing started on time, and this is the third of seven hearings we are going to have here in Washington, one in the field. And it is my determined goal to start on time, to have as many Members here as possible, and I see this is sort of a scarce attendance here, but we will have others come in. This is a get-back day from the first long weekend we have had in this new Majority session featuring the Contract With America.
What we will do is have your entire statements appear in the record. We would ask that you summarize it in five minutes or thereabouts. We are going to restrict questions up here to each our colleagues to five minutes, and we are going to try to adhere to that five minutes. And if there are questions unanswered we will go to a second round of questioning. But we are going to try to run this in an orderly, bipartisan manner.
Mr. Borski.
Mr. BORSKI. Thank you, Mr. Chairman.
I have no opening remarks. I want to say I appreciate your leadership in calling this hearing, another in a number of hearings on this most important issue. I fully concur with your ability to get the hearing started on time. It is a change for the positive. And we look forward to hearing from our witnesses. Thank you.
Page 215 PREV PAGE TOP OF DOC Segment 3 Of 5
TESTIMONY OF THE HON. ROBERT PERCIASEPE, ASSISTANT ADMINISTRATOR, OFFICE OF WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY; THE HON. JAMES R. LYONS, UNDER SECRETARY FOR NATURAL RESOURCES AND ENVIRONMENT, U.S. DEPARTMENT OF AGRICULTURE, ACCOMPANIED BY THOMAS R. HEBERT, DEPUTY UNDER SECRETARY FOR NATURAL RESOURCES AND ENVIRONMENT; AND THE HON. DOUGLAS K. HALL, ASSISTANT SECRETARY FOR OCEANS AND ATMOSPHERE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
Mr. BOEHLERT. Mr. Perciasepe.
Mr. PERCIASEPE. Mr. Chairman, thank you very much for inviting us today to give presentation to the committee. I will summarize my written testimony as you suggest, and I am going to use some charts to help me do it.
First, I also want to thank the committee Members themselves for all being interested in moving this legislation as quickly as you are.
Mr. BOEHLERT. I am going to be lenient because your testimony—this testimony today is extremely important, so don't get nervous if you see that red light go on.
Mr. PERCIASEPE. I don't have copies of these for you yet. Some of them are in color, and we are trying to get them made. We hope to have them to you for all the Members tomorrow, but they would be supplement to the testimony that you already have.
Page 216 PREV PAGE TOP OF DOC Segment 3 Of 5
The first thing I to say is that the Clean Water Act is a remarkable law in that the congressional foresight in putting together a law that has been and has been touted as one of the more successful environmental statutes that we have.
And the Nashua River in Massachusetts, which I show here, is probably typical of the testament to the progress that has been made. Here you see the river in the late 1960s running in the downtown area. And here you see it as it is today—a vibrant part of the community where people come from miles around to go fishing and recreating. It is a remarkable success story.
And one of the most remarkable success stories has been the Clean Water Act's contribution to the economic vitality of communities around the country. Here on this map is not an exhaustive inventory but it is a summary of some of the studies that have been done around the country on the relationship between clean water and economic vitality—whether it is urban renewal in urban areas, whether it is fishing, and some of these studies relate to recreational use of waters. The bottom line is that there are billions of dollars just on that select group of studies shown on that map of benefit to local economies because of clean water.
And I can give you my own anecdotal story on this. As I young city planner in Baltimore, before I even thought of working for the Federal Government, one of the things that was most on our minds was cleaning up the Baltimore Inner Harbor so that we could have more people come down to the waterfront. And in the last 20 years as that has transpired and the water has gotten cleaner with the aid of both the construction grants program and the revolving fund program we have now have over 15 million visitors a year to the Baltimore Inner Harbor.
Page 217 PREV PAGE TOP OF DOC Segment 3 Of 5
And if you don't think that has an important part to play in that city's downtown vitality, the tourism, the convention business, the hotels, it is a very strong drawing card. I can't say it happened because of the Clean Water Act, but it would not be possible if we didn't have that kind of progress being made.
The other important point I want to make—and this is probably the most important point I want to leave with the committee—and that is if you do anything with the Clean Water Act this year, please reauthorize the State revolving fund. The State revolving fund was a tremendous idea. One dollar of Federal contributions equals $4 in protection as the money is reloaned and recycled over a 30- or 40-year period. It is a tremendous investment.
And already between the SRF and the construction grants program, we have doubled the number of people in the United States, up to 160 million, who are served by adequate public facilities and sewage. I think this is an incredible investment. This has incredible impacts and beneficial impacts on water, and it is something that we need to be proud of and concentrate on as we look to reauthorization.
I am telling you how great the law is. I truly believe that, but there are many improvements that need to be made. As we have made progress, we have unmasked other problems that were not apparent 20 years ago. For example, in the colored states here, red being more and white being less, these of States that have different advisories on fish consumption due to toxic contamination in fish, in the water.
Now, these are State advisories. These are not Federal advisories. And the point I want to make here is that there is still a problem with toxic materials getting into the food chain and eventually into—causing fish advisories.
Page 218 PREV PAGE TOP OF DOC Segment 3 Of 5
We also have, if you add up the number, there is over 1,300 water bodies that have some kind of fish advisory. And I think you have heard testimony in the last couple of weeks——
Is that a red light already? Thank you.
Mr. BOEHLERT. It is great to be Chairman.
Mr. PERCIASEPE. You have heard that 60 percent of the waters are now meeting the State water quality standards. That is true. But 40 percent are not. And one of the things that you have heard over and over again is that we have to figure out a way to deal with the runoff problem. Whether it is called nonpoint sources or runoff, we have to find a way to deal with that. And we need common-sense solutions, and I pose a couple of ideas to the committee.
First, we were already doing a lot of watershed level work. This is a combination of State and Federal projects that are related to watersheds on the map. And we will have that to you, a list of where the places are. But implementing the watershed approach I think makes sense when you are dealing with runoff problems. Coordinating all the different programs and giving the States the flexibility and the source of pollution, the flexibility that they need to solve the problem in that place.
Second thing we need to make sure we hold up the bargain that was made when the law was originally passed and that is a strong State-Federal partnership. This is not a law that is a completely command-and-control approach. This has State and Federal partnership. We develop water quality criteria, and they set the standards. We do the research on effluent guidelines, and they designate the uses in the streams. Over 40 States are implementing the NPDES program. We need to maintain that flexibility and improve that flexibility to deal with the more difficult problems.
Page 219 PREV PAGE TOP OF DOC Segment 3 Of 5
We need to address wet weather pollution. We have talked about that. We need to do it in a way that involves all the stakeholders. We need to streamline some of the existing programs so that they are focused on the right problems at the right place at the right time. And we need not to back away from achieving the environmental goals that we have set for ourselves. Flexibility and involvement but no backing off of the goals that we have set.
And we need to advance sound science. There is ample opportunity in the existing structure of the law for science to apply, whether it is in setting the criteria or whether it is in looking at economic achievability inside the effluent guidelines and setting best available control technology. We need to enhance that. We need to make sure that we keep common sense on our minds when we do this reauthorization, and we need to reauthorize the revolving fund.
And, Mr. Chairman, I am sorry for going over a couple of minutes.
Mr. BOEHLERT. No problem. This is sufficiently important, and we will allow flexibility today.
Mr. Lyons.
Mr. LYONS. Thank you, Mr. Chairman. I appreciate the opportunity to appear before the committee today.
I especially want to thank you for inviting us to join in this hearing with our partners in dealing with water quality and water pollution issues, the Environmental Protection Agency and NOAA. We have long felt that between the three of us, not unlike the analogy of the three-legged stool, we all play critically important roles in addressing these particular issues related to nonpoint source pollution.
Page 220 PREV PAGE TOP OF DOC Segment 3 Of 5
I thought I might take a little time to describe the programs of the Department of Agriculture that relate to issues related to nonpoint source pollution and the water quality, and the role we play and the role we might play in the future in dealing with this significant issue.
First of all, I want to state up front that USDA is committed to the conservation and stewardship of the Nation's natural resources. I have two agencies under my administration, the Forest Service and the Natural Resources Conservation Service, recently transformed from the Soil Conservation Service, that certainly play a significant role in water quality and natural resources management.
The Forest Service administers 191 million acres of public lands and more often than not administers the headwaters for much of the significant water sources for the cities and suburbs of the west.
Also in partnership with the State foresters, the Forest Service provides technical advice and cost-share assistance for the protection and management of private nonindustrial forest land, and these lands constitute the bulk of the forested acres in the United States.
The Natural Resources Conservation Service has a 60-year track record of success in working cooperatively with agricultural producers and other private landowners in promoting the sustainable use of their lands, curbing soil erosion and improving the farmer's most important asset, their land. NRCS works cooperatively with individual conservation districts in a public-private partnership that is a model of cooperation and teamwork in every county throughout the United States.
Page 221 PREV PAGE TOP OF DOC Segment 3 Of 5
Between these two agencies, the Forest Service and the Natural Resources Conservation Service, we constitute fully half of the employees in the Department of Agriculture, 20 percent of the Department's discretionary budget, and together we affect approximately 75 percent of the American landscape, be it public or private lands.
Obviously, we are well-equipped to deal with challenges like nonpoint source pollution, and we believe issues like this provide us both a challenge and an opportunity.
My testimony will focus primarily on our efforts to work in the area of curbing nonpoint source pollution. Two basic assumptions form the basis of our nonpoint source programs: first, nonpoint sources are best controlled by prevention. It is often much more expedient and less expensive to prevent the creation of pollution rather than try to correct the damage once it is done.
Second, as it may be difficult to comply with fixed standards, management on a watershed basis provides a meaningful way to deal with variable factors such as weather, soils, geology, combination of land uses and mixed ownership, and cumulative effects that come into play in dealing with nonpoint source pollution.
Our experience over the years has taught us some valuable lessons. First, local solutions and local investments work best. Solutions that come from the bottom up as opposed to the top down are usually most effective and involve a buy-in from landowners that is critically important.
Page 222 PREV PAGE TOP OF DOC Segment 3 Of 5
Second, a local delivery system is vital. And for that reason, as I said, in dealing with forested lands we work cooperatively with State forestry organizations. In dealing with agricultural producers we work hand in glove with conservation districts.
Third, many environmental objectives can be achieved at minimal cost using incentive-based approaches in achieving relative performance objectives such as work quality. We have a proven track record in working on a voluntary basis with landowners, and we feel that the proof is in the pudding in terms of the results that we have realized over 60 years.
Fourth, as Bob has alluded to, use a watershed the last approach. The most effective way to target resources to the most important problems in a particular region is to use such an approach. And with the limited resources we are all facing these days it is critically important that we target assistance where it is needed most, and the watershed approach is the best way to get there.
Fifth, we need patience. It takes time for water resources to respond to reduced nonpoint source loads, and it is a job that is going to take a number of years to get done.
Sixth, rely on observable results. We feel that we are making progress in that regard in monitoring physical and chemical characteristics of water, providing important information for the success that we have realized.
Seventh, on-site application is essential. Nonpoint sources can be controlled with site-specific processes which need to be designed and developed at the ground level.
Page 223 PREV PAGE TOP OF DOC Segment 3 Of 5
Eighth, as I said earlier, prevention works best. Therefore, the farmer, rancher or Federal land manager must understand how their activities affect water quality objectives. The manager, whether farmer, rancher or Federal official, must make and implement management decisions which affect water quality. The manager must understand how his or her decisions regarding the land will influence the water quality, watershed or groundwater. This requires a continuing focus on water quality through education and technical assistance.
Mr. Chairman, we have a number of programs in the Department of Agriculture which have helped us address issues of nonpoint source pollution. You mentioned one, the Conservation Reserve Program, which has been in effect since 1985. Through that program, 90 million tons of sediment from cropland no longer enters streams, and the program has saved the use of 61 million pounds of fertilizer and pesticides during the life of the 10-year contracts that the firms sign up for.
In addition, the program has provided wildlife benefits. It has helped to redouble the pheasant population in the Midwest and increased duck populations in the Dakotas and Montana by three million. In addition, in 1985 the Conservation Compliance Program was put into effect. Preliminary data from spot checks conducted in 1994 estimated that nearly 95 percent of farmers were applying their conservation plans, and erosion rates have been reduced by nearly 64 percent.
NRCS estimates that fully implemented conservation compliance plans on highly erodible croplands, combined with the grass and trees planted on 36.5 million acres enrolled in the CRP, have cut soil erosion rates on highly erodible cropland in the U.S. by about 74 percent.
Page 224 PREV PAGE TOP OF DOC Segment 3 Of 5
The other programs I will not go into in detail, Mr. Chairman, include the Swampbuster Program which helped to reduce the loss of agricultural wetlands, down to 31,000 acres a year, as well as the Water Quality Improvement Program authorized by the 1990 Farm Bill and we are just in the process of implementing.
With regard to private forestlands, the Department of Agriculture supports the implementation of State silvicultural nonpoint source pollution control programs, and we work closely with the States in the development of BMPs for State silviculture. Sixteen states routinely monitor BMP compliance presently. While additional gains in BMP compliance can be achieved through expanded stewardship, many States have also adopted regulatory backup programs. Currently, 26 States have such programs for silviculture.
With regard to public land management in on the national forest system, we use a watershed management approach in emphasizing the need to prevent pollution problems associated with nonpoint source pollution and to target our efforts to rehabilitate watersheds which may have been overharvested or overused in the past.
All the forest plans that we generate under the National Forest Management Act contain standards and guidelines for nonpoint source pollution controls that meet or exceeds State standards. The Forest Service has invested an average of $22 million a year in improving watersheds on approximately 33,000 acres in the country.
In addition, I point out that under the President's forest plan for the Pacific Northwest we pioneered a new approach to management based on a process involving analyzing the needs of individual watersheds in an interagency fashion to assure that our activities would not impact negatively water quality, fish and wildlife or other values of concern to the public.
Page 225 PREV PAGE TOP OF DOC Segment 3 Of 5
We work closely with our sister agencies, and certainly our working relationships can improve, and we look forward to working with you on that as you work through the reauthorization of the Clean Water Act.
Let me offer three recommendations related to using a watershed concept in dealing with water quality:
First, be sure to make the programs flexible. No two watersheds are alike. Some may need intensive evaluation and others may not need comprehensive pollution control measures. In some instances, different approaches will have different effects and will be more cost-effective than others. We are currently redesigning our watershed program, our Public Law 566 program, to focus on different strategies for maintaining the integrity and improving watersheds such as using biological approaches.
Second, involve local people and institutions in developing solutions. The people involved in the problem must be involved in the solution. Without general support, a water quality program is doomed to failure.
And, finally, it is critical that continued coordination between Federal land management agencies and States continue to occur. Federal agencies must continue to coordinate programs developed for the management of public lands with States in order to assure that State water quality requirements are met, and also we must work closely with other agencies at the State level to ensure that we get the job done.
Page 226 PREV PAGE TOP OF DOC Segment 3 Of 5
We believe the challenge of dealing with nonpoint source pollution affords us a tremendous opportunity to demonstrate how collaborative work, grassroot solutions and tailored approaches to dealing with pollution can get the job done.
We have a unique opportunity this year, Mr. Chairman. As you work on the reauthorization of the Clean Water Act, the 1995 Farm Bill also comes up for consideration. This provides us a unique opportunity to work collaboratively to come up with an approach that is consistent between both pieces of legislation and provides a simpler approach so that agricultural producers understand what is required of them and how they can contribute to achieving the mutual goal of improving the quality of America's waters.
Thank you.
Mr. BOEHLERT. Thank you.
Thank Mr. Hall.
Mr. HALL. Thank you, Mr. Chairman. I appreciate the opportunity to come here with Jim Lyons and Bob Perciasepe to talk about this important program.
In your remarks, you accurately described how important this effort to control nonpoint source pollution is to the Nation. And I think we are all committed to making sure that this program is effective and that it works and it is done in the most efficient way possible.
Page 227 PREV PAGE TOP OF DOC Segment 3 Of 5
I will talk about section 6217 of the Coastal Zone Management Act and how that program is being implemented.
The Coastal Zone Management Act is really a model for how the Federal-State partnership should work, and we believe that the decisions that are best made by the States were made in that program and that the role of the Federal Government is a very effective and constructive one in dealing with the proper management of our coastal areas. And, in developing 6217, Congress sought to build on the expertise that has been developed in the States in effectively managing coastal problems and protecting fragile coastal ecosystems and developed the 6217 program.
We are concerned about the problem of coastal nonpoint source pollution not only because of the impact that it has on the environment but also the impact that it has on the economy. So today I would like to talk a little bit about the problem that we see in that area.
We have 110 million people, almost half of our population live in the coastal areas. And these are some of the most rapidly growing and densely populated counties in the United States. The population of some coastal States, including Florida, will have increased 200 percent from 1960 to the year 2010. So the degraded water quality will affect millions of coastal residents in the future, residents who want and demand clean water.
There are several points I would like to make: first, that tremendous economic benefits generated by coastal tourism are threatened by nonpoint source pollution; second, that development pressures which amplify impacts to water quality are greatest in coastal areas; third, that NOAA recognizes the challenges facing many coastal States regarding the development of coastal nonpoint programs and that NOAA is working hard to provide further flexibility to the States; fourth, that NOAA is committed to working with States to successfully accomplish the goals of the program to protect and restore coastal waters.
Page 228 PREV PAGE TOP OF DOC Segment 3 Of 5
In passing the Coastal Zone Reauthorization Amendments of 1990, Congress recognized that nonpoint sources of pollution are often the dominant form of pollution affecting coastal waters, particularly for agricultural and urban sources.
Nonpoint source pollution is a complex problem because it comes from many diffuse sources. Individually, a nonpoint source may be difficult to identify, but the cumulative effects of nonpoint source pollution are all too apparent—closure of beaches and shellfish beds and the loss of biological productivity in coastal habitats severely impacts important commercial and recreational fisheries. Nonpoint pollution can ultimately undermine coastal economies that depend on revenues from coastal tourism and related businesses. Coastal-based recreation and tourism generates between $8 and $12 billion annually. The commercial fishing industry contributes $25 billion a year to the Nation's economy.
At the Federal level, the 6217 program is administered by NOAA and the EPA. NOAA provides funding under section 6217 for program development. NOAA and EPA have provided States with technical information and facilitated workshops to exchange ideas and give early feedback on the States' progress in developing their programs. We have already conducted reviews in 19 States, and the 20th, Louisiana, is currently underway.
From working so closely with the States it has become clear that many will not be able to submit an approvable program by July, 1995, which is the 30-month deadline set in the act. As a result, we have had many discussions with the States about the challenges they have encountered; and we have taken steps to help overcome these obstacles.
Page 229 PREV PAGE TOP OF DOC Segment 3 Of 5
In a letter dated January 6th that Bob Perciasepe and I wrote to the Coastal States Organization we outlined several measures that we are taking to provide greater flexibility to the States. We have agreed to adopt a more flexible approach to the program submission deadline by granting conditional approval of some programs. We have extended the time allowed for States to fully implement their programs from 3 to 5 years. We will provide an opportunity for States to show that voluntary efforts combined with existing State authorities are sufficient to ensure that management measures are implemented. We will defer to States in identifying the geographic scope of their program unless the State's proposal excludes sources that would reasonably be expected to have a significant impact on coastal waters either now or in the foreseeable future.
[The information follows:]
[Insert here.]
Mr. HALL. NOAA and the EPA have worked with the States to address most of their concerns with 6217 so that they can successfully develop and implement nonpoint programs. States are making good progress, and we are working with them to resolve the remainder of the problems. We think this is going to be an effective partnership for dealing with this problem.
Mr. BOEHLERT. Thank you, very much.
Before yielding to Mr. Borski I wanted to ask one question of Mr. Perciasepe. It doesn't appear that the administration is giving a very high priority to reauthorization of the Clean Water Act. And in the 103rd Congress you stated repeatedly that this is one of the highest priorities, but as I look over EPA's legislative agenda for the 104th Congress I don't sense that same degree of urgency and importance. Could you comment on that, please?
Page 230 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. PERCIASEPE. I think that the administration is totally committed to reauthorization of the Clean Water Act. I think that our priorities may have shifted slightly.
For instance, we feel very strongly that the SRF ought to be reauthorized. Its authorization expired last year. And as I showed earlier, $1 gets us $4 worth of benefits, not to mention the economic development and the jobs from construction.
On the other issues, I don't think we are out of sync with what the committee has been looking at in their bipartisan bill. The kinds of common-sense things I talked about are many of the issues being addressed by the committee's work. I think we are not out of sync.
How many laws can be the highest priority is another matter that has to be looked at in the context of everything else we have to do in Congress.
Mr. BOEHLERT. You have looked at the bipartisan initiative, as it is now called, that has been introduced in this Congress. And do you find yourself not out of sync with that?
Mr. PERCIASEPE. We have had a preliminary look. I believe the bill was introduced last week, and I think there are many components in there that were in last year's bill that I think we started to work with the committee on. Our major concern is that in the area of wet weather, whether it is nonpoint sources or storm water, that we not take any steps backwards. We may need new approaches but we need not to take a step backwards.
Page 231 PREV PAGE TOP OF DOC Segment 3 Of 5
But it is very important that we stick to the major objectives of the current law and build new approaches into the reauthorization. I know we are going to have a separate meeting on the wetlands part of the bill on the 7th of March, I believe.
Mr. BOEHLERT. It will take many separate meetings on that one.
Mr. PERCIASEPE. I will be back for that one, as well.
Mr. BOEHLERT. Mr. Borski.
Mr. BORSKI. Mr. Perciasepe, we have heard a lot in these and previous hearings about Clean Water Act horror stories, from commercial laundries undertaking pretreatment unnecessarily to one broken thermometer causing a city to fail its limits on discharge of mercury. If the subcommittee receives specific allegations, would you be prepared to provide us with a quick response?
Mr. PERCIASEPE. Yes, sir, we can respond very quickly to any information that you receive and you wanted to get our response. In fact, I would welcome the ability to do that. I have been able to review some of the testimony to date and, clearly, some clarification of some subjects would be helpful to the committee.
Mr. BORSKI. What is your reaction to amending the law to respond to specific allegations rather than on a general basis?
Page 232 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. PERCIASEPE. I have to say I have never been a legislator, but I have worked with legislators from city councils to the Maryland General Assembly and now with Congress, and it is my view that Congress and/or other legislators ought to put in a flexible approach to deal with the variances that occur in real life. But if you make too rigid a structure, you don't allow implementation to be done flexibly; but if you legislate specific items you could create these same exact effects. So I think we would be much more willing to look at a flexible structure to allow for the variability.
Mr. BORSKI. Could you also for the record provide us with a record of Clean Water Act success stories?
Mr. PERCIASEPE. Certainly. We could do that. I had one this morning I believe, though, in the Baltimore harbor, not to mention the Georgetown waterfront.
[The information follows:]
[Insert here.]
Mr. BORSKI. During last week's hearing there was a allegation made that all the information and data that EPA gathered regarding the storm water group permit was thrown out. Was that accurate? And, if not, how has the agency used the data?
Mr. PERCIASEPE. We are working on a multi-sector permit for storm water. And we have not thrown out the data that has been provided to us by the industry. Far be it from the truth. In fact, it has become the central component of what we are doing to put together our sector permit.
Page 233 PREV PAGE TOP OF DOC Segment 3 Of 5
In fact, we think that the sector permit is an extremely—we have 29 different industrial sectors that are included in that permit which we hope to finish this summer which will provide States with a flexible approach to dealing with storm water permits for different industrial types. And we have some industry groups like the Airport Association and others that are very actively supporting our approach to that.
And I have never been familiar with that number of 150 million. Our estimates are something like 18 million worth of data. But the most important thing is that represented only 2 percent of the facilities that will be covered by these storm water permits. So with 2 percent of the facilities providing data, we will be able to provide the permit framework for the States for all the other facilities. I think it is a good deal, and it will save probably hundreds of millions of dollars.
Mr. BORSKI. We have had a lot of fingerpointing at these and other hearings with cities blaming farmers for nonpoint pollution and farmers blaming cities. How do we get beyond the fingerpointing to get everyone to work together to solving our water pollution problems?
Mr. PERCIASEPE. Common sense. Everybody has to play a role in achieving the goals that we set. The structure of the act has EPA providing criteria. It has States setting designated uses and standards.
Then you have to, I think, look at a watershed and say what are the problems in this watershed. And we have done a lot of work and made a lot of improvement through some of the programs we have, but this next stretch, trying to sort out between agriculture, urban runoff and the nonpoint source community, I think is a difficult step.
Page 234 PREV PAGE TOP OF DOC Segment 3 Of 5
But a watershed provides the great organizing principle to do that and we think that is the place it has to happen. You have to partition responsibility out by involving the stakeholders and getting a common agreement on the goals at State level.
Mr. BORSKI. H.R. 961 prohibits any new regulations unless the social, environmental and economic benefits are reasonably related to the anticipated costs. Can you tell us your reaction to this proposal and give us some idea of how costs and benefits are calculated? Is this an exact science?
Mr. PERCIASEPE. Well, costs and benefits are not an exact science, and they never have been, and they probably never will be. But they are a very important and essential tool for making management decisions. We think that that role can be strengthened. And in other forms in the Congress the administrator has testified to that effect, and we are working with Congress to see the overriding approaches or on an organic, statute-by-statute approach to dealing with that.
We think that the Clean Water Act already has some very substantial ability to do that. Those words that you just mentioned are already in the law in one place or another. And unifying that and building that as a stronger tool is not a bad idea.
Mr. BORSKI. You mentioned earlier you were pretty much in sync. Could I take your answer to suggest that you are not particularly in sync with this particular piece of it?
Page 235 PREV PAGE TOP OF DOC Segment 3 Of 5
No further questions at this time, Mr. Chairman. Perhaps on another round.
Mr. BOEHLERT. Save that one.
Mr. Wamp.
Mr. WAMP. Thank you, Mr. Chairman.
Let me say I serve on three full committees and four subcommittees, and the leadership that Chairman Boehlert and Full Committee Chairman Shuster has demonstrated is outstanding. They are very organized, and it is the most efficient committee and subcommittee structure that I am involved in. I appreciate that, Mr. Chairman.
Two questions for the EPA and one general question that I would like for all three of our witnesses to answer.
On the EPA, on nonpoint source you were talking about your flexibility earlier. But on nonpoint source flexibility, how flexible are you with the States—specifically on Section 319 programs?
Mr. PERCIASEPE. There is two parts of a 319 program. One is the programmatic part and States putting together their nonpoint source programs. And the second part is the grant part where funding—we have $100 million in the President's budget that we provide to implement those State programs.
Page 236 PREV PAGE TOP OF DOC Segment 3 Of 5
On the program side, I think we have been very flexible; and I think virtually every State has an approved program. On the grant side, we are working in a committee structure with the State environmental agencies and their water quality directors to come up with even a more flexible approach to dealing with the grant program.
So I think that, in general, we have been flexible. I think that we can improve on the flexibility on the grant side, and we are working with the States actively to do that.
Mr. WAMP. Second, on the Phase 2 of the storm water permits, now that we are moving under the 100,000 population, do these smaller municipalities really need to obtain storm water permits?
Mr. PERCIASEPE. I think, honestly, that that is going to vary from place to place, as part of what I was just talking about with the Minority Chair over here, and that is that in some watersheds that is going to be very important and the States are going to need the flexibility to deal with it and in some watersheds it may not be that important.
We would want to implement the Phase 2 storm water program in a flexible way. We are proposing with the municipalities and with the businesses that would be covered under Phase 2 to do just that and to provide an open forum with those regulated entities both in the municipal and in the business community to get together and figure out how to develop a streamlined, targeted program.
Page 237 PREV PAGE TOP OF DOC Segment 3 Of 5
And, in fact, as we learn how to do that and get better techniques to even look back at the Phase 1 and do some mid-course corrections in terms of streamlining the Phase 1 program we are actively pursuing that even now.
Mr. WAMP. Thank you.
I would like all three of to you give a brief answer, if you could—and I know this may be controversial, but pretend that your left hand were on the Bible and your right hand is in the air, and I want to know what you think about the proposed moratorium on regulations that is coming up next week.
Mr. LYONS. I will answer that first, Mr. Chairman, and I will answer as if I am under oath. It is going to hurt us. It is going to hurt us in a number of ways, most especially with regard to some of the work that we are trying to do in forest planning and moving ahead with forest management issues.
We have seen the need to streamline activities and reduce guidance and burdens on our own people and trying to move forward and prepare updated plans to meet water quality standards and other habitat standards as quickly as possible. And if we cannot implement those new rules that is going to force us to continue to use the technology and the science of 10 or 15 years ago when we know that there are better and more improved ways of doing business.
Mr. HALL. Congressman, I guess I will be next.
For us, we manage the Nation's fisheries, so one thing that is lost in the regulatory debate is that regulations not only prohibit activities, they also allow activities to go forward—for example—to open up fisheries in a timely manner when the fish are running—and some of these fisheries are billion dollar fisheries. We have a pollack fishery in Alaska that opens on January 15th and again on June 15th. If we were not able to open those fisheries then we could have a billion dollar industry that is jeopardized by not being able to issue regulation.
Page 238 PREV PAGE TOP OF DOC Segment 3 Of 5
Jim and I have particularly worked together to try to make these regulations less burdensome, more effective. But the legislation in our analysis puts so many more burdens on the agency that we are concerned about what that would do to our ability to deliver the regulation. And it would distract us, add more bureaucracy, more people to do the analysis for it.
Mr. PERCIASEPE. Just in answering the straight moratorium question, I think it would be a one-size-fits-all solution to a problem. And I think that we need to look carefully at doing that when we might cut off our nose to spite our face.
For instance, I just talked about storm water from your earlier question. And we would want to do a rulemaking soon to protect the various sources that are currently obligated to have a permit under the Phase 2 program that took effect in October, and we want to do a rulemaking that will provide the legal cover for us to do a 6-year review of that storm water program.
So I think that there are unanticipated consequences to a straight moratorium that would be problematic.
Mr. WAMP. Thank you, Mr. Chairman.
Mr. BOEHLERT. Thank you. I think it is fair to say we don't have any votes for that on this panel.
Page 239 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. Laughlin.
Mr. LAUGHLIN. Thank you.
Mr. Lyons, since you made your fourth point in your lessons learned to use the watershed approach I want to direct this question to you. Because last year's clean water bill, as proposed, required the establishment of State-run watershed management programs to monitor, implement and prioritize the levels of water quality in a particular watershed.
The problem I want you to address is I represent a large geographic area of the Gulf Coast of Texas; and we have, without counting them up, seven to 15 watersheds on the coast. We also have a very large pipeline industry that carries not only natural gas but crude oil and other refined products.
The concern I have is that, as we interpreted last year's clean water bill as it was written at one point, it would require anyone proposing to construct a linear pipeline to carry whatever product they wanted to carry, would have to go to each separate watershed to get a permit. And perhaps in the efficiency that we often have to deal with with government, one watershed would have one set of rules and another would have a little different, justifying it on alligators, as we have in several of the rivers that I represent, and endangered other species and different soils—and you can get the picture. Before long, you have got a lot of different sets of criteria to meet, and you cannot cross the rivers to get your product to the consumer, most of whom rely on these products.
So I want to know if you feel the administration would support a provision to simply consolidate the regulatory and permitting requirements so that a pipeline can get from point A to point B without having to go through multiple watershed permitting processes.
Page 240 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. LYONS. Congressman, I honestly cannot address the issue of permitting for pipelines since that is far from the area of my expertise. I can talk to the issue of watersheds as a framework for analyzing the impacts of any action.
Mr. LAUGHLIN. I want you to try to hone in on pipelines. A lot of Americans rely upon what is traveling through pipelines, and you are here advocating the watershed approach.
And perhaps in Rhode Island they may only have one watershed. I don't know Rhode Island geography. But in Texas I have five river authorities whose membership is appointed by the governor of my State and then we can request onto other watersheds. Your proposal creates a serious impediment. We don't understand what we are going to require of the pipelines.
Mr. LYONS. Let me clarify that I am not proposing a watershed approach as a regulatory framework. Rather, I am proposing that watersheds be used as a mechanism for assessing the impacts of actions individually or collectively on the watershed in its entirety, on mixed ownerships, on water quality and other activities.
USDA is not a regulatory authority nor are we the permitting authority for pipelines. That goes well beyond our jurisdiction and my area of expertise. I would be glad to refer that to one of my colleagues or to someone else in the administration who is better prepared to deal with that issue, but I can't address that express issue in particular. But I want to make clear that I am not proposing watersheds as a new regulatory body.
Page 241 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. LAUGHLIN. Can either of the other panelists address that?
Mr. HALL. Congressman, I think the Interior Department has the responsibility, so I am not clear exactly—I don't know what in terms of pipeline regulations. Bob?
Mr. PERCIASEPE. I think pipeline regulations are a complicated matter, Congressman, between the Department of Transportation and the other regulatory agencies. I do believe, though, that Jim hit the nail on the head and that is I don't think any of us are proposing a subState regulatory entity at the watershed level that would require or develop different watershed level regulations but rather an organizing principle to set priorities in using—under existing authorities, not any new regulatory authority.
Mr. LAUGHLIN. Well, any time you show up talking about the watersheds, we have transportation problems. And I cannot tell you how great they are in another parts of our country, but if they are anything like they are in the area I represent you cannot talk about watersheds without talking about impeding the pipeline industry which has a safety record that many industries would like to emulate.
And so, Mr. Chairman, I would ask that Mr. Lyons, who seemed to volunteer—and if he didn't, then he can tell me he didn't—if he would take my question back to the administration and provide it to you and to the Ranking Member of this committee. And I would like a copy of it.
And I have got to say, Mr. Chairman, that 6 years of being a Member of this committee, every time I have asked for information in response to a question in a hearing, I have never seen the response. And under your leadership——
Page 242 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. BOEHLERT. It is a new day.
Mr. LAUGHLIN. ——from the other end of our republic, could I ask that you see that I get a copy of this response?
Mr. BOEHLERT. Mr. Lyons, will you accept that charge?
Mr. LYONS. Mr. Chairman, I have never been asked a question by the gentleman. If he asked me, I would have given him the answer.
Mr. LAUGHLIN. And I have never gotten a response that we have asked for.
Mr. PERCIASEPE. And I will be happy to work with you on that.
Mr. BOEHLERT. The staff has made the notation. Mr. Lyons, you have accepted the charge and in a timely fashion will respond, and we will share it with all the Members of the subcommittee.
Mr. LAUGHLIN. I agree a watershed approach is appropriate, but we can't take a watershed approach without addressing the various modes of transportation that cross the watershed and, in particular, the pipeline industry.
Thank you very much, Mr. Lyons.
Page 243 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. BOEHLERT. Thank you.
Mr. Horn.
Mr. HORN. Thank you very much, Mr. Chairman.
Let me address this to the Assistant Administrator of EPA, if I might.
I think we all agree that the majority of the remaining water pollution problems are a nonpoint source concern. Yet in testimony before this subcommittee last week—and I want to just recite a few of these as the basis of the question—we heard that EPA is continuing to move toward regulatory programs on point sources that have little environmental benefit for the huge costs imposed, do not recognize the relatively small level of risk posed by a particular point source, tend to insist on a regime of command-and-control regulation versus an approach that is flexible in nature, although you mentioned a desire to be flexible.
One witness noted that EPA has given little or no consideration to the, quote, economically achievable, unquote, guidance with respect to the implementation of the best available technologies regulations. Similarly, another witness last week noted that 304(a)(1) of the Clean Water Act calls for the development of water quality criteria, quote, accurately reflecting the latest scientific knowledge, unquote. Yet this has not been done.
Finally, a third witness implied that EPA has a command-and-control mentality by default—in other words, the first approach it looks to when examining a water quality problem. This witness said the EPA does not have the resources to review and consider all the data it asks for and, thus, proceeds to implement regulations in a manner which ignores the evidence.
Page 244 PREV PAGE TOP OF DOC Segment 3 Of 5
First, do you dispute this characterization?
Mr. PERCIASEPE. Yes.
Mr. HORN. Okay. If you do dispute it, what does Congress need to do to get the Environmental Protection Agency to change its direction? Obviously, a number of witnesses feel—while you might not feel and you come here and talk about let's talk flexibility, folks, but it doesn't seem to be the way the oratory from the administrators of the EPA, last year, the year before, this year, combines in terms of how actual actions occur when decisions are made.
So I guess what I am saying is a lot of us are not convinced that there is flexibility. We do see a command mentality down there. And what do we need to change the act to get some flexibility?
Mr. PERCIASEPE. Well, I appreciate the perception—concern. It would be helpful—and, of course, I don't know to what extent we could do that here, but if I knew the specific examples that someone was raising.
I know that there are a number of concerns about a number of our current proposals that are out on the street that we are continuing to work on, but I can assure you that they have not gone final yet and will not go final until they go through the kinds of reviews that you are talking about.
Page 245 PREV PAGE TOP OF DOC Segment 3 Of 5
I think a discussion about some specifics so we can both be talking—whoever was testifying and myself and you—could be talking about the same thing and find out where our points are different, why we think we might be using the best science or using appropriate flexible approaches and they think we are not and where we can find out if we have different definitions that might be the problem.
Mr. HORN. Let me file those questions with you. But what I don't want to do is pick on three witnesses or so that have the guts to come here and tell us what hundreds of witnesses would tell us if we asked hundreds of witnesses.
What worries me—and having spent a quarter of a century of my life in civil rights matters, what we are talking about is a pattern and a practice. And it isn't just one or two examples. It seems to be repetitive examples. And maybe as an administrator you could tell me. Does a subculture of command and control exist somewhere in EPA? Maybe it isn't in your organization. Maybe it is the other fellow's organization or the other gal's organization.
Mr. PERCIASEPE. Let me just say, I don't want to make you feel like I think that there is not any command-and-control activity going on at the agency. I mean, the laws that we are primarily responsible for implementing are, by and large, command-and-control oriented. I think what I was trying to say——
Mr. HORN. That would help answer my first question to you which is what, if anything, do we need to do to change the law so you can have the flexibility you testified earlier today on that you want to apply in this field?
Page 246 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. PERCIASEPE. I think one of the things that can be provided in the Clean Water Act is this framework we have been talking about on watersheds and—as a way to provide even more on-the-ground flexibility in how the different components of the law are implemented.
The other area is when you move away from point sources, which by and large have a regulatory program in place, and you move to the nonpoint sources or the runoff problems we will need a new model. The model of command and control won't—the specific command-and-control model won't work there. We need a new model. And watersheds may be the right model, and providing a lot of creativity between the States, EPA and the regulated community could be the way to go.
We are still going to have to post a very strong goal. Congress is going to have to say this is where we want to go, water quality benefits, water quality standards that the States set. But we have to provide a more flexible way to get to that goal for those more ubiquitous problems.
Mr. HORN. We would appreciate the specific language so that we could use some of that in markup if you feel that you don't have that authority.
Mr. Chairman, I see that my time is up. Are we going to have a second round on the witnesses?
Mr. EWING [presiding]. Yes.
Page 247 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. HORN. I would like to participate then. I am next door in another hearing. We are running back and forth. I will get someone to get me out of the hearing because I would like to pursue two more questions.
Mr. EWING. Mr. Poshard.
Mr. POSHARD. Thank you, Mr. Chairman.
Mr. Lyons, what is the administration's official position on the extension of the Conservation Reserve Program? Are we going to get up to the 45 million acres that we originally intended for that program?
Mr. LYONS. Congressman, late last year we announced a decision to continue the CRP program with the intent of extending enrollments, providing those individuals with contracts that would terminate the opportunity to re-up, if you will, but with the added flexibility of targeting new signups to achieve greater environmental benefit.
Our hope goal is to maintain this highly effective means of both controlling soil erosion, managing supply and also improving wildlife habitat and other benefits on into the future. The specifics of the approach we might take in the 1995 Farm Bill are in the process of being worked out now and soon will be coming to the Congress with more specifics.
But, yes, we would like to see the CRP continue.
Mr. POSHARD. I represent an agricultural district that extends for about 265 miles, and everything that I have seen with respect to that program tells me it has been an excellent program. It has achieved the objectives set out for it. We would like to see it continue, but if I could get a little dialogue between you and Mr. Perciasepe here, I would appreciate it.
Page 248 PREV PAGE TOP OF DOC Segment 3 Of 5
Are we talking about from EPA's standpoint when we talk about a watershed management program on a State-by-State basis? Are we talking about a voluntary program or a mandated program from the perspective of EPA? And would it be possible to model this approach after something like the CRP? Or how do you see this in the future?
Mr. PERCIASEPE. Well, I will start out, and we will have a dialogue.
Mr. POSHARD. All right.
Mr. PERCIASEPE. I think mandatory is in the eye of the beholder. When I was talking to Mr. Horn or trying to answer his question, I was talking about we have to make sure we set our sights on a goal that we can all agree to, and we have to get to that goal. And we need to participate with States and folks in those watersheds more strongly than we have in the past in trying to determine how to get to the goal. And the States do have some flexibility in how they set the standards and the use designation.
But, given that, getting to that point, somebody has to be responsible for it. And we can provide a lot of time and programs, which I agree with you are excellent to help things along the way, but somewhere down the road somebody has to agree we are going to achieve some kind of goal. I think this is what this country is known for and what has made us great is that we set our sights on something and we get there. And this one may be a lot harder than we thought in 1972, but if we can create more flexibility in how to get there, I think that is what is important.
Page 249 PREV PAGE TOP OF DOC Segment 3 Of 5
So if I say that we have to get to that goal sometime and get all the different sources in the watershed working together, someone will say we are not getting there. What are we supposed to do? And maybe that will be the subject of future reauthorization. But it seems to me that there has got to be some incentive for people to achieve at some point when 80 percent of their neighbors have. And so from that perspective any approach that would provide that kind of impetus for achievement I think is something that we are interested in.
Mr. POSHARD. And I can appreciate that.
The concerns that are expressed to me from the agricultural community are simply that if we are going to set a goal and we are going to attempt to achieve that let's let the folks at the local level determine how best to get there and use an incentive approach to get us as close to that goal as problem. If at some future point down the road there has to be penalties invoked, that is for a future discussion. But I don't think that is what we set out initially.
I think, given an example like the CRP, it is entirely possible to reach a long way toward our goals with a voluntary approach to the situation. I think that would be much more appreciated by the folks.
But I will let Mr. Lyons——
Mr. LYONS. I kind of enjoyed the dialogue the two of you were having.
Page 250 PREV PAGE TOP OF DOC Segment 3 Of 5
Let me address your second point first, if I could. CRP is a significant success story. I would point out that it is simply one tool in the tool kit that we use to address issues related to soil erosion and, by virtue of that, issues related to improving or maintaining the sustainability of soils and natural resources.
We also have the wetland reserve program which we have piloted in a number of States and hope to go nationwide with this year. We have mechanisms and programs that were designed into the 1985 and 1990 Farm Bill that provide a conservation benefit, if you will, in return for the producer's ability to receive program payments such as Swamp Buster and Sod Buster and conservation compliance. And conservation compliance has shown its utility.
The land retirement tools like CRP and WRP, the technical assistance, we find that producers are more interested in technical assistance than in simply cost-share assistance. But we believe that for those producers who need that, we need to have the flexibility to offer cost-share assistance as well. These are critical parts of the tool box for us to get the job done.
With regard to voluntary approaches, I agree completely with Bob about the need to set goals. I would only offer that I believe that it is important that we remember that watersheds are not simply units of analysis; they are where people live, and we need to ensure that we involve individuals who live in those communities who are the beneficiaries or the individuals impacted downstream from the activities that occur in a watershed in setting those goals and priorities and then use approaches, such as the tools that I suggested, to help get the job done.
Page 251 PREV PAGE TOP OF DOC Segment 3 Of 5
If we can do that, I think we can be much more efficient and effective because then the communities who are impacted will be a part of designing the solution and ultimately implementing it.
Mr. POSHARD. Thank you.
[The prepared statement of Mr. Poshard follows:]
[Insert here.]
Mr. BOEHLERT. Thank you.
Mr. Ewing.
Mr. EWING. Thank you, Mr. Chairman. A couple of questions for Mr. Lyons.
How do you rate the current Clean Water Act as it applies to, particularly, farmland and the nonpoint source pollution problem? Are we making headway?
Mr. LYONS. Yes, I believe we are making headway, Mr. Chairman, but clearly, as evidenced by the focus on nonpoint source pollution during last year's Clean Water Act reauthorization and our decisions here, there is more progress to be made.
Page 252 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. EWING. Have we stopped making progress under the current law? Aren't things getting better every year? The reports we see are fairly positive as to the amount of pollution that is being cut down.
Mr. LYONS. Yes, we are making progress, Mr. Congressman. I believe that we are. That is not to say that we cannot make better progress, and we could be more efficient in using the resources that we have to achieve the goals that we set.
Mr. EWING. I think that is true. We could always make more progress, but whether it is cost effective and it is effective in the amount of mandatory requirements, you have to put on the multiple producers out there in rural America to make that progress.
Do you believe in the new reauthorization that we should allow the States or require the States to have enforceable policies and mechanisms and the key word is ''require'' the States to have that in their plan?
Mr. LYONS. Bob was informing me that that was part of what was addressed in last year's Clean Water Act reauthorization.
Mr. EWING. We are not reauthorizing last year. We have a new Congress and we are reauthorizing this year.
Mr. LYONS. I understand that. But I view this in the context of the reauthorization of farm programs in the 1995 farm bill and have not focused on the requirements that might be placed on individual States but rather a focus more on the tools and the delivery systems we might use to achieve whatever goals are set, whether they are set by States or are set more at a national level. So it is difficult for me to address that question since we have taken a slightly different tack.
Page 253 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. EWING. Maybe the gentleman from the EPA would address that then, whether we should have enforceable policies required that are not now, as I understand it.
Mr. PERCIASEPE. There are two parts that you have to consider. First is, there are waters in the United States that are not impaired and then there are waters that are impaired; and we want to have something in place that the nonimpaired waters don't get any worse. And I think the answer to your question is that we are making some progress in the impaired waters.
It is not clear whether the unimpaired waters are getting better or worse or holding their own. And you are getting at the central issue that Mr. Poshard and I were just talking about and that is, if you set a goal, who is to say and how do you say that we are going to get there eventually? And this is where the whole issue came up in the last Congress about what would be the mechanism to make that happen.
I think that it is open for discussion about what kinds of mechanisms. We have to put our thinking caps on to figure out what kind of mechanisms can we develop that will get us to the point where we can achieve those goals, so those who do it are not penalized for doing it and those who don't do it are not rewarded for not doing it, and figure out a way to make that a reality in combination with the other laws that we have to address.
Mr. EWING. Well, why are we—do we have evidence to substantiate that we should be fearful that the nonimpaired waters are getting worse if, under the current law, the impaired waters are getting worse and that law covers the whole country? Why should we fear that the unimpaired waters are getting worse? Do we have evidence to show that they are under the current law?
Page 254 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. PERCIASEPE. We are probably in a situation where we don't have enough evidence to say one way or the other for sure whether the unimpaired waters are being impaired or not or being degraded up to the point of impairment from the uses that are designated by the States.
Mr. EWING. You are telling me with all the regulations and rules we have on clean water under the current law and what we know is happening and the statistics that we can get from your agencies, we don't know whether the unimpaired waters are more in danger than they were?
I would think, though—let me say, I would think that we would want to know that before we started making new rules to govern it.
Mr. PERCIASEPE. We do a survey with the States under section 304—305 of the Clean Water Act that they go and, in cooperation with us, do an assessment of the waters in the State. And it is an assessment; it is not a census. And based on those assessments, we see some unimpaired waters degrading and some impaired waters improving.
Overall—overall, I think Mr. Lyons was correct, and I think you were correct that things are getting gradually better overall. But we don't have enough specific information on every watershed in the country from an assessment, as opposed to a census, as to whether each one is making the same level of progress. The answer is probably very much a little bit of both, but we know that some are degrading and some are improving. Overall, we think we are making progress.
Page 255 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. EWING. Thank you.
Mr. BOEHLERT. Thank you very much Mr. Ewing.
Mr. Mineta.
Mr. MINETA. Thank you very much, Mr. Chairman.
Mr. Perciasepe, let me ask you about a bill that has been introduced in the House recently. This bill provides that municipal treatment facilities will be deemed to have met secondary treatment standards if they meet conditions within that legislation. I would like to ask you, what is your reaction to that bill?
Mr. PERCIASEPE. Is this in terms of ocean discharges?
Mr. MINETA. Yes, sir.
Mr. PERCIASEPE. I think it is another one size fits all kind of solution to a complicated problem. All ocean discharges are not the same, and the existing Clean Water Act set out a specific way for the Agency to address the scientific situation in each circumstance and evaluate whether or not secondary treatment was required. In fact, over 280 applications for that waiver from secondary treatment were sent to EPA and almost 50 have been granted.
Page 256 PREV PAGE TOP OF DOC Segment 3 Of 5
Last year, the Congress approved a bill and the President signed into law one that would allow one more municipality an additional chance to apply for that waiver. And the Agency is in the process of reviewing the scientific information, waiting for the final information, and will make the decision based on the circumstances present in that location.
Mr. MINETA. That waiver application period ended at what year? Do you recall?
Mr. PERCIASEPE. I am sorry; I don't recall the year.
Mr. MINETA. The 208 applications that came in were prior to the expiration of that period? So that was sometime in 1985 or 1986?
Mr. PERCIASEPE. I am told that it was 1988.
Mr. MINETA. 1988, okay. And those 50 were granted up through 1988?
Mr. PERCIASEPE. And sometime after, as long as the application was in. We are still reviewing a few of them in Puerto Rico where there are some very unique circumstances.
Mr. MINETA. Given this legislation that was dropped in, are there other coastal municipalities that would be able to not have to do secondary treatment if they meet the requirements of this bill?
Page 257 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. PERCIASEPE. I suspect—I suspect the answer would be yes. My memory of the bill, it has got a certain distance and a certain depth——
Mr. MINETA. Four-mile outfall——
Mr. PERCIASEPE. Whether or not that had any environmental validity or not is not addressed in the bill.
Mr. MINETA. No, the bill I think just doesn't name the name of the community, but it names all the circumstances that would fit that community.
Mr. PERCIASEPE. That is correct. So each community in the coast——
Mr. MINETA. Given then the fact that you said the President signed a bill in October to allow San Diego to apply for a waiver, have they applied for that waiver?
Mr. PERCIASEPE. They are doing it. We are working with them. We have staff in our San Francisco office that meets every couple of weeks with their staff. They are working on putting that application together. We fully expect that they will submit it in the next month or so, and we will expeditiously act on it.
Mr. MINETA. I assume that EPA is working with the City of San Diego in submitting an application and, hopefully, a response to them.
Page 258 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. PERCIASEPE. Right. We are working with them. We are not doing it; they have to do it. But we are working with them whether they submit it. Based on what we already know——
Mr. MINETA. Well, this letter from Carol Browner to the Mayor of San Diego, dated February 3rd, says: My agency has been working with the city, and San Diego is close to completing a cost-effective plan that provides the necessary measure of public health protection and avoids the need to construct expensive sewage treatment facilities.
So now somehow that tells me that what we passed last year is in the process of working.
Mr. PERCIASEPE. Absolutely. Absolutely.
Mr. MINETA. So what is your reluctance to say, we don't need this bill that was introduced last month?
Mr. PERCIASEPE. I am not reluctant. We don't need the bill.
Mr. MINETA. Let me ask, recently H.R. 961 was dropped in the hopper. One of the provisions in that bill provides that compliance dates are delayed 1 year for each year that the Congress does not appropriate 100 percent of the authorized funds for that section as it relates to nonpoint provisions.
Page 259 PREV PAGE TOP OF DOC Segment 3 Of 5
What is your view of this bill?
Mr. PERCIASEPE. I find it a troubling provision. I mentioned earlier, Congressman, that the issues being addressed by that bill are not out of sync with the issues that I think the administration wants to address. I think that some of these particulars that you are bringing up are troubling.
We have heard time and time again from witnesses today and witnesses before you over the last several weeks that this is an area that we need to address, the runoff problems, whether it be nonpoint sources or storm water. While we need to be flexible and find new approaches that may not be the approaches that we were thinking of last year, we still need to not go backwards and not set up an off-ramp that is likely to be where every car is detoured because of the problems of appropriations.
Mr. MINETA. I am wondering, given the wording of this section of page 41 of that bill, it seems to me that even though you have said it is troubling, it seems to me that it really is unacceptable. Can I get you to say that?
Mr. PERCIASEPE. I would think it would be unacceptable.
Mr. MINETA. Thank you, sir. Let me ask the panel in general, one of the things that we were trying to do in writing the Clean Water Act—the Boehlert-Mineta bill, one of the——
Mr. BOEHLERT. Now I get first billing,.
Page 260 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. MINETA. That is right. Absolutely. It happened on the 8th of November, as I recall.
One of the things you talked about was flexibility, Mr. Perciasepe; and when it came to the different areas, we wanted to have flexibility. And I see in Mr. Lyon's testimony, he talked about incentive-based approaches for improving water quality.
The other problem that I see is that if funding is not there to support significant incentive-based programs, I am wondering if the United States Department of Agriculture is still committed to requiring control of nonpoint source pollution as it relates to agriculture and forestry?
Mr. HEBERT. Mr. Mineta, within certain of our legal authorities, we do have a role in working with farmers in dealing with highly erodible lands and the soil erosion problems on those lands. But we are not, in the Department, in the business of requiring farmers and ranchers to do these types of things.
We believe in the incentive approach and we are committed to pursuing those funds that are necessary to achieve that work. And I would rather cross this other bridge if those funds do not appear; we believe they will be there.
Mr. MINETA. You have been able to do that by working with them and certain incentives that you have based your program on and with their voluntary compliance, with that kind of approach. I guess you have also been able to cite some very successful stories, and I am just wondering whether those programs have been costly to farmers. For example, what does it cost a farmer to develop and to implement a conservation compliance plan?
Page 261 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. HEBERT. The cost of that is highly variable. These are very site-specific measures that depend on the farm in question and the watershed in question. So it is very hard to give you a precise estimate of that number. By and large, though, we can say that for about 100 million acres of highly erodible land in cultivation, nearly 95 percent of those plans are moving forward as they were designed, which is an indication that if not very cost-effective, that there is minimal cost there to the growers.
I make the point that a large number of these plans, dealing with an erosion problem, have adopted residue management as their principal means of impeding soil erosion, and we find that by and large that makes farmers money.
Mr. MINETA. And how does that get to pesticides and fertilizers?
Mr. HEBERT. Those provisions are not described to address pesticides and fertilizer problems. There are other activities— Jim cited the Conservation Reserve Program, which was retiring cropland from production, which has a direct impact on the use of pesticides and fertilizers; and we have other incentive programs that are designed to improve the efficiency of their use and reduce the potential of nonpoint source contamination.
Mr. MINETA. Do you ever get to the point of saying, Farmer Jones, you can't farm within 50 feet of the main river? Or you cannot have your cows going into the stream?
Page 262 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. HEBERT. No, we do not mandate such things.
Mr. BOEHLERT. Let me, if I may, jump in here and ask all three of the panelists a question. Should there be a requirement that State nonpoint source programs meet water quality standards by a specific date? For example, 2009?
Mr. Perciasepe?
Mr. PERCIASEPE. I think that gets at the goal that I was talking about earlier. I think there ought to be a goal set in the nonpoint source program that is coordinated with the other goals in the Act and allows a flexible approach on a watershed level.
But, yes, we should set a goal and keep to it that, at some time in the future, we are going to achieve the water quality standards that the States set and it is going to require mixing and matching some of the attack plans in each watershed. But we need to set that goal.
Mr. HEBERT. I agree, Mr. Chairman. It is important that we set for ourselves some time certain that we will hold ourselves to. If, in fact, we don't make that, we have to look at those circumstances and make our judgment accordingly. But without such a goal, it is very hard to direct our efforts and keep everybody focused on where we want to go.
Mr. BOEHLERT. I should say that Mr. Hebert is substituting for Secretary Lyons who had to depart for a flight. Mr. Hebert is Deputy Under Secretary of Natural Resources and the Environment, and I appreciate you being here with us.
Page 263 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. Hall, you had a comment?
Mr. HALL. We have to have measurable results, and I think that monitoring and keeping track of this program and setting very specific goals is key to the success of the program.
Mr. BOEHLERT. We have some Members who were not able to be here today for one reason or another, and there are a lot of questions about the Great Lakes initiative. I will ask you, Mr. Perciasepe, what is the current status of EPA's Great Lakes initiative and will it be published by the March 13, 1995 deadline?
And then I will go further. Mr. Petri particularly asked me to ask this: One area which continues to cause a lot of concerns between States and municipalities in the Great Lakes region is the issue of whether the final guidance issued by EPA will be guidance, or will it have to be adopted verbatim as suggested in the past?
Mr. PERCIASEPE. The status is that we think we are on track. We have been working hard with all the different interests, environmental, business groups, and directly with the States and the governors. We think we are working very well to take the proposal and build in the necessary flexibility that we have talked about here several times.
I suspect that there has been a lot of testimony about the Great Lakes initiative and its approach. I think that the final product will be very different than the proposal in its approach, but not in its goal of reducing the biocumulative toxins which are a particular problem in the Great Lakes where the memory time, the amount of time pollutants water to take to get from Lake Superior out of the Great Lakes is on the order of two centuries. We have a long memory there that we have to deal with.
Page 264 PREV PAGE TOP OF DOC Segment 3 Of 5
I think that we are working very hard. And right now we are on track to try to do it by the deadline or sooner. I think we have some hurdles to overcome and we are working hard to overcome them.
On the issue of guidance versus regulation, the name of this thing will be ''guidance,'' if that means anything. It will be published in the Federal Register as a regulation.
Mr. BOEHLERT. ''Guidance'' means one thing and——
Mr. PERCIASEPE. The States will not be required to adopt, verbatim, the approaches. In fact, I think of it in two different parts. One is the part that is the criteria that the States will use to adopt their standards. The criteria—again, under the Clean Water Act, the States do have some flexibility in how they designate uses and how they develop standards. However, we would expect that they will probably adopt those numbers.
On what I would call the ''implementation apparatus,'' the approach that is taken to implement those numbers into permits, we are providing some flexibility in terms of how a State would deal with mixing zones or intake credits or things of this nature. And the State will have some ability to be creative around the general performance that we would like to see in there. So the verbatim part is not what is in the cards.
Mr. BOEHLERT. I should note that our March 9th hearing will be a panel on the Great Lakes initiative.
Page 265 PREV PAGE TOP OF DOC Segment 3 Of 5
Congressman Barcia was detained because of a flight delay. He has some specific questions that he has asked be asked of all the panelists, and we have them and will give them to you in writing with a request that we get a response in writing and staff will take care of that.
[The information follows:]
[Insert here.]
Mr. BOEHLERT. Mr. Borski.
Mr. BORSKI. Thank you, Mr. Chairman.
Mr. Perciasepe, how has pollution prevention been used in the water quality programs you administer and with what levels of success?
Mr. PERCIASEPE. I will give you two examples, and one is in the effluent guidelines part of the Clean Water Act where we look at the technology available in different sectors or different types of industrial discharges.
We have in the past, and we will be doing more of it in the future, looking at ways that the effluent limit that would be derived from that effluent guideline is a performance standard that the industry would have a variety of approaches to tackle. They could tackle it with a traditional technology approach, or they might be able to look at some other approach in terms of how they make their products or whatever approach might be necessary to meet that limit. There would be and there has been flexibility in the past to do that.
Page 266 PREV PAGE TOP OF DOC Segment 3 Of 5
Likewise, those effluent guidelines as they translate into discharges into sewage treatment plants through the pretreatment plan, there has been and will continue to be some flexibility between the publicly owned treatment work and the discharges to the sewer system as to how they best achieve the ultimate limit, which is the one that is at the end of the sewage treatment plant's pipe.
We provide the technology as a guidance, and the POTWs, working with the industry, can do pollution prevention approaches to deal with that. Those are two examples where we have used it in the past, and we want to use it more in the future, provide flexibility in how you achieve the goal, but set the goal at the appropriate standard.
Mr. BORSKI. My understanding is that pollution prevention has been dropped from 961. Would you prefer that it be in?
Mr. PERCIASEPE. That depends on how it is in. I would have to be honest with you. I am not sure what was dropped and how it was put in. We would be willing to work with the committee to find ways to enhance the ability to do pollution prevention. I think it was part of our overall thrust last year, and it is certainly one that is, I think, a cost-effective and worthwhile approach.
Mr. BORSKI. We look forward to working with you on that. H.R. 961 would require compensation for landowners whose land has been designated as valuable wetlands. Why shouldn't owners of land which cannot be developed receive compensation?
Page 267 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. PERCIASEPE. Again, I know we are going to have a fuller hearing on this, but let me just say that the administration is in favor of private property rights, and there is plenty of judicial activity in this area that sets out what is of value and when compensation is needed. In many cases, you know, partial restrictions are not a takings under the Constitution. And the example I would give would be setbacks for fire codes.
I live in the City of Baltimore. I have setbacks from fire codes, where I cannot build a tool shed, so that fire trucks can drive between my house and the next house. I cannot build anything there, but it is not considered a taking. So I think that these things are more case by case rather than by some broad-brush stroke, a one-size-fits-all definition of what a takings might be.
Mr. BORSKI. You would not necessarily be in sync with this section of the bill?
Mr. PERCIASEPE. No. In fact, we have some synchronization problems with that bill.
Mr. BORSKI. One further question on categorization of wetlands.
What is your position on advanced categorizations?
Mr. PERCIASEPE. Again, I think an up-front, laborious process of trying to precategorize wetlands is not a productive approach. You are going to have the classification bureaucracy that will evolve, and we will be back here in a couple of years trying to figure out who is responsible for doing this. I think taking values into account is not out of the cards and not inappropriate.
Page 268 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. BOEHLERT. Let me point out to Mr. Borski, our March 7th hearing will be on wetlands.
Mr. BORSKI. I understand that, Mr. Chairman, and let me just follow up with Mr. Perciasepe.
It seems that there are some troubles, at least you have, with takings, with wetlands classification, delaying compliance, and I expect several others. My point being that we need from you the areas that you are in disagreement with H.R. 961 if we are going to be successful at all in making any changes. I was just a little troubled in your opening testimony and your response to questioning that you are in sync. I think that can be taken the wrong way.
Mr. PERCIASEPE. I think we are in sync with the intent of the nonwetlands part of it. I think we need a little more work in that area. And as the Chairman said, we are going to have a whole hearing on that.
But on the other parts of the bill, I think some of the approaches that are being attempted there are not out of sync with what we would like to see. But there are some very troubling and problematic parts to it that take it beyond where we would want to go or take it backwards from existing law. And I think that those are important distinctions.
We want more flexibility. We want a watershed approach; we agree with that. We want to maintain the SRF; we agree with that. I hope I am clear that we think those things are important. But when you start talking about deferral in the absence of full appropriations down to the penny, and when you start talking about some of these other provisions, we definitely have some problems.
Page 269 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. BORSKI. Thank you.
Let me just say there are large portions of this bill that I agree with and there are pieces that I don't, and it is just helpful to us to get your viewpoint on the areas that you are very happy with.
Mr. BOEHLERT. Mr. Borski, we are going to reason together.
Mr. Latham.
Mr. LATHAM. Thank you, Mr. Chairman. Apparently Mr. Lyons had to leave, so I guess I will direct this at Mr. Hebert. And maybe you don't want to be held responsible for his testimony, but in that, talking about conservation compliance, he said random spot checks conducted in 1994 show that 94.8 percent of the farmers were applying their compliance plans, and erosion rates have been reduced by 64 percent.
And in that, I think we all well know to remain eligible for the USDA farm program benefits, you have to be in compliance, I guess my question would be, in the administration's budget 2 years from now, after the next election, there are Draconian cuts in the farm support programs. What effect is that going to have on compliance when you have a large number of farmers—and I believe the largest farmers will no longer see any benefit in enrolling in farm support programs and, therefore, will have no reason to remain in compliance—what effect do you see, as far as the reduction that you are proposing, in farm programs on compliance?
Page 270 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. HEBERT. Congressman, really very little. The President's budget that he just submitted has approximately 1.5 billion in reductions over the next 5 years in the commodity programs, approximately 3 percent on the farm program, the income and price support side.
Mr. LATHAM. I think it goes from 8.7 billion down to 5.3 after the election.
Mr. HEBERT. I think if you look at the 5-year totals, the totals are down about 1.5 billion dollars. And we believe if that is something that Congress could achieve in addressing budget reconciliation with regard to agriculture, we would be happy with that.
The administration has taken the position that agriculture has already made major contributions to budget reconciliation over the past several years, and that 3 percent or so is more than enough to ask from the commodity programs and from the farmers that use those programs.
But, in particular, when you look at the set-aside rates that—the ARP rates, the amount of land that farmers set aside without payment, those rates are very, very low in the outyears, and as a result, most farmers will still find it profitable to participate in the commodity programs even as the support levels are reduced modestly under the President's proposal. So we don't see any problems on the compliance side in terms of farmers dropping out of the program and therefore losing the conservation protections.
Page 271 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. LATHAM. I might respectfully disagree. There are many of the farmers today who, because of the caps in place currently, that are to the point of opting out. And these are the large ones. That is where the acres are, if you are not aware. A lot of smaller farmers, yes, they might stay in compliance. I guess I disagree with you.
Mr. HEBERT. You will find in the conservation compliance program about 75 percent of those plans are using residue management. And as I said earlier, that tends to be a profitable practice for farmers. By and large, it is very profitable and it explains in part the rapidness with which the practice has been adopted in the country. And that is a change in farming that has occurred, and if the farmers were to leave the price and income support program they would not necessarily change the way they farm. They have bought new equipment, new tractors, a new way of doing business. A lot of these conservation improvements, we think, are now part of infrastructure in the industry.
Mr. LATHAM. You are saying then the reason that they are in compliance is for economic reasons rather than program reasons; is that correct?
Mr. HEBERT. A combination of both. By and large, the economics have helped, but without the conservation compliance program, the rate of adoption would not have been nearly as great.
Mr. LATHAM. I think if you found economic benefit, that people would. I think what outrages many people in agriculture, and farmers when they have been farming a piece of ground for two, three, four generations; and one day a bureaucrat walks in and automatically proclaims that to be a wetland, and it has been in continuous cultivation, and then they cannot use that land anymore. I mean, I think we are a little top-heavy as far as bureaucratic oversight.
Page 272 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. HEBERT. I understand the concerns that you are hearing from your constituents, but with regard to a piece of property, a piece of farmland like that, if it is delineated as a wetland, they can still farm it as they always have under Swampbuster and Section 404.
Mr. LATHAM. If they get special waivers and approval on the local level, and it is changed again on a different level. They are hearing different voices up and down the stream. And I can cite cases for you if you would like to see it. But that statement is really not being forthcoming, I don't believe.
Mr. HEBERT. We would be happy to deal with you and address those specific concerns of specific constituents. I can guarantee that you under Swampbuster, for instance, if you have a wetland or a farmed wetland that you have been farming 3 years, 4 years or 20 years, that you do not have to change the way you are farming in order to stay eligible for farm program benefits.
Mr. LATHAM. I have been on places with Mr. Johnson and seen exactly that case.
So thank you, Mr. Chairman.
Mr. BOEHLERT. Thank you. Once again, let me stress on the 7th of March we will have a hearing devoted exclusively to the question of wetlands.
Page 273 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. Oberstar.
Mr. OBERSTAR. Thank you, Mr. Chairman. I apologize for not having been here earlier.
You talk about increasing flexibility and getting away from what you called, and what is sort of fancy language, a one-size-fits-all approach. And you address with great sensitivity the Chesapeake Bay, which is probably the greatest estuary in the world, the greatest of meeting places of fresh and salt water where new life forms take shape, and which defines the challenge to the managers of lands and waters because of its richness and its vastness and its diversity.
What is one-size-fits-all? What are you talking about when you say flexibility; what do you mean?
Over the years, I get a little nervous about words like that. The one thing means there is a straightjacket regulatory approach; the other means—flexibility means maybe getting away from regulations at all, getting away from deadlines and getting away from results-oriented, and I want to understand what it is you are talking about.
Mr. PERCIASEPE. I think I am not talking about getting away from results-oriented, goals-driven environmental programs. But what we are talking about is trying to take what is happening, for instance, in the Chesapeake Bay and say that whatever is going on there is not necessarily good for the Rio Grande River or vice versa. They are very different places, and we have to have enough ability in our implementation of the law to recognize those differences. And that is what we are talking about.
Page 274 PREV PAGE TOP OF DOC Segment 3 Of 5
And in particular, when you get to nonpoint source pollution or runoff pollution, whether it be urban or rural or agriculture, there are differences around the country—differences in how cities developed, differences in how agricultural practices are carried out.
The part of the Chesapeake Bay drainage area where in Lancaster, Pennsylvania, where one kind of agriculture—very dense, very intensive type of agriculture—to a range situation in the western part of the country are different, and we need to fess up that they are different.
We don't need to back off from trying to achieve the goals that we will set for those areas, the water quality standards that the States set, the water quality criteria. We don't want to back off from that. But what we have to do is make sure that our programs, when we get to these kinds of complexities, will deal with it. And it is much more so, I think, Congressman, than if we were dealing with—although my friends in the paper industry would say that every paper mill is different, and I don't disagree with them, but there are certain technologies related to paper, although that is evolving even faster than it used to, but if you have a paper mill on the East Coast and a paper mill on the West Coast, how it makes paper and the basic structure of fiber and refining and the screens and the drying, those things are sort of essential to that industry, but agriculture in Pennsylvania is different from agriculture in Wyoming, and we have to recognize that.
So I don't want you to feel negative to what I am saying there, but I certainly want us to be able to have dialogue as a Congress; and the implementing arms of your laws, that we need to make sure that we don't try to do it in a way that is overly constraining.
Page 275 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. OBERSTAR. Well, that is quite true, and I have long felt that the EPA has indeed treated the Great Lakes differently than the Chesapeake Bay—they are two very different sets of challenges—and has not insisted on pollution cleanup or pollution prevention approaches in the Great Lakes that are identical to those of the Chesapeake Bay. And no way could you; we are talking about fresh water on one side and salt water estuary on the other.
It just—I am still trying to understand what it is when you say that, you know, we are entering a new era in environmental protection. We have been in that era for a long time, and I am trying to understand——
Mr. PERCIASEPE. There is a context to that. Let me try again.
The context is that we have made a lot of progress. And earlier, when I was going through that, there has been a tremendous amount of progress and that progress has unmasked these much more ubiquitous problems, runoff and——
Mr. OBERSTAR. But those have always been there since 1972 and that legislation was crafted right here in this room. And I sat through that long period and the large march of a nine-month conference with the Senate to shape the Clean Water Act of 1972.
But we needed to get at the point source issue first, before we could get to nonpoint source, and section 208 of the bill did set up the mechanism that brought us to the point where we could now have watershed plans that deal with runoff.
Page 276 PREV PAGE TOP OF DOC Segment 3 Of 5
And the Chairman says we are going to have extensive hearings on watershed. I await those hearings. But I am trying to get a better understanding of what you folks are thinking about there.
Mr. PERCIASEPE. I hope I have alleviated your concerns there. But certainly the tools that are there in the law, whether it is 303(e) or 208 or any of those parts of the law that were created when it was first devised, they were designed, as I say, to deal with some of these issues and we think that as we move toward them, that is what we need.
Mr. OBERSTAR. Will your Great Lakes initiative regulations be out prior to our next hearing?
Mr. BOEHLERT. He said they hoped to meet the 13th deadline. Not before our next hearing, no; our next hearing is the 7th. Then we have another one on the 9th.
Mr. PERCIASEPE. Our deadline is to be done by the 13th of March. It will be somewhere right around those hearings.
Mr. OBERSTAR. Thank you.
Mr. BOEHLERT. Mr. Hayes.
Mr. HAYES. Thank you, Mr. Chairman.
Mr. Perciasepe, I was reading with interest the fact that you were also the secretary of a state environmental department, as was Ms. Browner. And following what led to Mr. Oberstar's discussion about the relatively one-size-fits-all versus policy, you made the comparison of the Chesapeake Bay and the Rio Grande.
Page 277 PREV PAGE TOP OF DOC Segment 3 Of 5
I would hope to elicit from you whether you view the Great Lakes initiative not as a good or bad program, but as a national program, compared, for example, with the Gulf of Mexico. Would that also fall under the statement that you believe there can be regional differences or would you believe that the outlines——
Mr. PERCIASEPE. I think there are differences in the Great Lakes. One, in particular, is the fresh water versus salt water. But the other one that is the most important that we are trying to deal with in the Great Lakes is the fact that it takes two centuries to flush through the Great Lakes and, in recognition of that long memory, that toxic materials will be residing there and have a chance to accumulate into the fish and wildlife and humans. That is a very different situation than we have in many other areas.
Mr. HAYES. I had simply assumed from your statements that environmental standards are one set of standards, that implementation has a great deal to do with what might be varying geography, varying ecosystems, and varying, sometimes, human activities in different parts of the country such as the way farming is conducted. That is all I was leading toward.
I have some high goals for environmental quality in the Gulf. We are just concerned about trying to impose another region's means of getting there with some concern.
The second point I want to make is not to quarrel with you, but ask you to take a look at something the next time you testify. You made a statement about a case-by-case permit determination. That is what we do now in many of these activities, especially such as Section 404.
Page 278 PREV PAGE TOP OF DOC Segment 3 Of 5
With that vantage point from your agency, I can see where that would be the most valuable way to look at it. However, there are other Federal agencies which are removing that luxury. Right now, regulators are meeting with bank boards across the Nation and telling them to make a predetermination before renewing loans as to what is the configuration and environmental quality of the property held for collateral.
You can't do both. You cannot tell them to find out what it is on the one hand with one agency. That is, in effect, saying that they are going to take criminal action against boards of directors for renewing loans, not knowing what the topography means in terms of Federal permits on property; and on the other hand, say, take it on a case-by-case basis and wait until they get a permit. We have got to have the same system at all of our agencies, or we will be foreclosing on property in the name of Federal guidance on the one hand and saying, let's way until it is case-by-case on the other.
Or, frankly, we will be telling people that don't have enough money to mortgage their property that they are one category of citizen and those who do are another, with the full realization that many of these loans are under $8,000 or $10,000, and it would cost more than that to do a case-by-case delineation of a few acres.
I am very concerned that the Federal agencies are not on the same page. Whatever they do, they both have to do.
Mr. PERCIASEPE. I think we are more on the same page than you think. I don't want to say that the only way to deal with wetlands is on a case-by-case basis. I think there was a little bit there between the delineation and the takings issue and the compensation issue. And certainly on the permits and on the delineations, we are actively pushing along with our Federal partners in this program.
Page 279 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. HAYES. The point I am making is, the determination now is made by permit. These are not requesting permits; this is property that is being subject to loans for an activity elsewhere. This is raw land not being subject to any use. However, since it is a collateral for the loan, the institutions are told, find out what it is and what the categories are. And the point I am making is that unless we build a system that has some means by which you do that, we are going to say that the collateral is valueless, and we are going to be foreclosing on loans with no mechanism to predetermine.
It is one thing when a company is seeking a permit and wants to finance in accordance with it. But these folks nine out of ten of them are not seeking any kind of permit to do anything. It is merely collateral for a loan unrelated to that parcel of land. And I have great fear that—right now, this is not speculative, right now—I used to be the commissioner of finance for the State of Louisiana—right now they are being told before reloaning, even on 90-day loans, evaluate that property. And I am telling you they cannot do it; there is no mechanism.
And, second, there is no means. And I think we need to get the agencies together on having at least a coordinated program on what we are demanding of people, how and why.
Thank you, Mr. Chairman.
Mr. BOEHLERT. Thank you.
Page 280 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. Horn.
Mr. HORN. Thank you, Mr. Chairman. Let me continue what I started in the last round of questioning, but move to some more of last week's finding, just trying to bring this together and get your reactions.
The Water Environment Federation testified that Federal funding for basic water quality research has fallen from $67 million a year in 1980 to $5 million in 1994, with grave implications for EPA's ability to justify the science behind its water quality criteria. Yet, as you know, States are setting water quality standards on the basis of EPA's water quality criteria and accepting those criteria without change, as I understand it.
This says to me that if the science is not there, you almost guarantee that your water quality standards are flawed. I am especially concerned by this situation because of the move to implement the national toxics rule from water quality standards at the State level.
The question then becomes a simple one. Does the EPA have the resources to do the necessary good science to justify its water quality criteria, or are you simply being reduced to guesstimates?
Mr. PERCIASEPE. I think we do have the resources. And let me say something about the research budget. The EPA's Office of Research and Development is undergoing a restructuring where a lot of the funding for research is under a multimedia category. We need to be able to coordinate between air and water and waste management, et cetera.
Page 281 PREV PAGE TOP OF DOC Segment 3 Of 5
And there is over $300 million in the Agency's Office of Research and Development under what we would call ''multimedia''; and large amounts of that go to water-related research, and an estimate might be a quarter of it. While in our 1996 budget proposal we have $8-or-so million specifically targeted for water quality research, there is also a large component of the multimedia part that goes to it as well. So I think we are able to put the resources to the problems that we have.
I mean, I could always say more research money will get the answers sooner on the water toxics issue. To give you an example of the flexibility that we are trying to build in as the science emerges, we have learned that the bioavailability of certain metals is different than what we thought it was 10 years ago, and while we promulgated a national rule in water toxics using a certain approach, total recoverable metals, we realize now a more accurate depiction of what is bioavailable is total dissolved metals, and we are working with the regulated community to do a quick swap on our national standards where on one day we would repeal—this is another interesting one for the moratorium—we would repeat total recoverable metals and then do a promulgation of the total dissolved metals all on the same day in the Federal Register under what is called a ''direct final rule.'' It takes effect even though we continue to take comment.
That is based on how the science is emerging. We are doing more work with the regulated community. We have work going on with silver and in some other areas in textiles where we are looking at what is—what's happening with some of these metals in terms of what is going on in the industrial processes.
We want to get at the answer and we want to be dynamic and be able to change course in midstream as we learn new things, and I give you that one thing because you mentioned the national water toxic samples, where very soon we are going to propose that change.
Page 282 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. HORN. Let me move to my last question, which was brought up in the first round by several Members, on the watershed management and to what degree is this sort of an accurate and adequate and reasonable way to manage these resources. But in implementing that idea of watershed management it seemed to be necessary to know how much each of different categories of sources of pollution are contributing to the water quality problems that a particular stream has, river, or lake. And what is the pollution loading from each of those particular sources?
Now, in your mind, do we have the ability to measure those loadings?
Mr. PERCIASEPE. We have the ability to estimate them, Congressman. I can give you some firsthand. When I was secretary of environment in Maryland, where we were dealing with phosphorous and nitrogen in the tributaries of the Chesapeake Bay, we were setting specific reduction limits or goals for each subwatershed; and we went in and looked at the urban land and the point source discharges, industrial and sewage treatment plants. We looked at agriculture as a broad category.
We had specifics on the point sources, and we made estimates based on the runoff model as to what the contribution was from the different sources. And then we were, on a watershed basis, able to say there is 100,000 acres of crop and pastureland in this base. And I know we know if everybody did nutrient management, everybody did buffer strips, everybody did crop rotations or winter wheat or winter rye cover—you list the BMPs and you make a calculation as to what the nutrient reduction would be—you can aggregate that up to the 100,000 acres; and you say, we need to get 80 percent of these acres doing these practices and that will equal this benefit. It provides a good tool for making judgments.
Page 283 PREV PAGE TOP OF DOC Segment 3 Of 5
And then you get the soil conservation districts out there with not a number of pounds of nitrogen, but a number of acres to aim at and the acres is a lot easier to aim at in a land area than it is, the pounds of nitrogen.
Mr. HORN. On that point, with your experience as secretary of the environment in Maryland, do you feel that both at the State level and nationally that can you establish the daily maximum loadings that a particular water body can take and still meet water quality standards? Is that feasible?
Mr. PERCIASEPE. Yes, in fact, that is exactly what we were trying to do with the nitrogen and phosphorus, and we were trying to set the maximum daily load as a term to aggregate on an annual or seasonal basis as well.
But there are many different techniques to do this. You don't have to have the gold-plated version to get to the answer. You can do very simple approaches to come up with a broad, goal-oriented depiction of where the source reduction needs to be. And I think what the Federal Government needs to do is make sure that it is providing those flexible tools to the States to do that work.
Mr. HORN. And we can tie those loadings up to their particular sources, can we not, in your judgment?
Mr. PERCIASEPE. I am going to say you cannot tie it to farmer X's field that is in soybeans in the summer, but you can tie it aggregately on a broad watershed basis.
Page 284 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. HORN. You could tie it to a particular plant or industry. Could you tie it to rainwater as opposed to the plant or the industry?
Mr. PERCIASEPE. You can partition between the point sources and the nonpoint sources.
Mr. HEBERT. Congressman, could I add that in this case almost every watershed is going to be different. There are a number of watershed projects that we have had going for a number of years where there is a fair degree of certainty. We can identify those nonpoint sources and work with them appropriately. Bob was correct; you don't need a gold-plate version to do the work in each of these circumstances.
Mr. HORN. If the science is there—and you are telling me, based on those answers, that you feel that some of the science is adequate to make the distinctions we are talking about—do State agencies, which would have the responsibility for watershed management, have the resources necessary to perform these assessments? Or is it only EPA that has the resources, as pitiful as they might be, if money means anything? Although I feel that what you are doing is adequate and is the basis for these judgments, what about the State agencies?
Mr. PERCIASEPE. I would always like to go faster, Congressman. We are developing new techniques that make it easier to do these kinds of watershed analyses. We need to do more. That is something we need to do. To get it down to be the most transferable and readily adaptable tools that we can.
Page 285 PREV PAGE TOP OF DOC Segment 3 Of 5
When you are talking about resources, there are a lot of different kinds of resources. One is money, but the other one is time. Time is a very valuable resource to an environmental manager. And as we go through these discussions on watershed management, time is an important part of the resource mix in terms of how to get to the end. And one of the things that I feel strongly about is, if we give ourselves enough time, we can get to these answers in an appropriate way.
Mr. HORN. Thank you.
Mr. BOEHLERT. Mr. Oberstar.
Mr. OBERSTAR. I just wanted to pick up on a point that our colleague, Mr. Horn, made a moment ago questioning about whether the science is available to set the standards.
One of the problems, I want to say to my colleague, is that there was research under way on a wide range of toxics in the last 5 years, and the task became so big that the Agency began to contract out some of that work. And contract researchers were working at the Federal environmental research laboratories including the one in my district in Duluth.
Unfortunately, the contracting out ran afoul of contract law and the Energy and Commerce Committee, and the work was disrupted for almost a year and a half or 2 years. Regrettably, some of that work was far delayed beyond what it should have been. It is now back on track.
Page 286 PREV PAGE TOP OF DOC Segment 3 Of 5
For the Agency to take enforcement action, it needed good science to underlie some of the enforcement actions. That is back on track, and the work is being accomplished. And I want to make sure—I want to encourage the administration to stay on track with it and make sure that you reaffirm vigorously your commitment to the cleanup in the Great Lakes.
There are 45 toxic hot spots—five in Canada and forty-plus in the U.S. —and without intensive work in dredging the bottom sediments, where the toxics repose and get into the food chain and keep recirculating, we are not going to have the clean water that we expect and that we pay billions of dollars for already in closing off point source.
You rightly point out that the Cuyahoga River no longer catches on fire and the fish are back, but they are back with sores and cancers and with toxics that cause continuing, lingering deformities in fish-eating birds and in people. If you live anywhere in the United States, you have five parts per billion PCBs in your body, but if you live within 25 miles of the Great Lakes it is much, much higher. That is persistent. And it will last—as a researcher told us, it will last six generations passing from mother to female child for six generations.
We have got to attack that problem and get those bottom sediments out without reintroducing the pollutant into the water column in the Great Lakes, 20 percent of the fresh water on the face of the earth. That is all I have to say.
Mr. PERCIASEPE. I can just agree with the Congressman.
Page 287 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. OBERSTAR. Please.
Mr. BOEHLERT. Mr. Latham.
Mr. LATHAM. No questions.
Mr. BOEHLERT. Let me exercise the prerogative of the Chair and address the questions of the New York City watershed. And dream a little bit with me, if you will, Mr. Perciasepe.
Perhaps I am oversimplifying it, but New York City is faced with the prospect of constructing a very costly filtration plant estimated somewhere in the neighborhood of $6 to $8 billion. The last time I checked, Mayor Giuliani doesn't have $6 to $8 billion lying around, so he would like to avoid that.
Some people say—they have a waiver right now, a waiver which I support. And some people are saying—my environmental friends say, here is the way to solve that problem: Shut off all agriculture and all development in the watershed area, upstate New York. Well, no one in that area wants to have the obituary written for that area, so there are some people like me who try to look at the situation and put a common-sense approach to it.
I say, let's continue that waiver for the filtration plant, saving the city $6 to $8 billion. Let's go forward with a comprehensive watershed management program with flexibility as the cornerstone and say to the city that this plant would cost you $350 million a year just to operate. If you put a fraction of that money into upstate New York in the watershed towns' building treatment plants, having a source of funding for farmers who are hardpressed and strapped financially to draw from, to have best management practices employed, doesn't that make a lot of sense?
Page 288 PREV PAGE TOP OF DOC Segment 3 Of 5
Does that pass the common-sense test?
Mr. PERCIASEPE. It definitely does pass the common-sense test, but I have to say that it passes the common-sense test with a little grain of caution and that is, the filters we are talking about are the main barrier between the humans drinking the water and the pathogens that might get in the water; and we are not talking about a 70-year cancer risk that we can sit around and debate the science on. We are talking about people getting sick tomorrow, and some of them that may be immune depressed, dying if we don't have proper controls.
So we are in a very high stakes game there, one that I wholeheartedly support, that the right, cost-effective, common-sense approach is to make sure that the watershed, the source of the waters, particularly on the Catskills side, is left in a situation that allows the communities to do what they want to do up there, but at the same time puts in the provisions that are appropriate to protect that water from contamination.
Recognizing that there is nothing in the way, if something happens there, is nothing in the way between what happens there and 8 million people who drink that water—I mean, I worry about this when I go to sleep at night—I think this that is the right thing. And I agree with you 100 percent, and we are working hard to make this happen, but we have to make sure that it happens right.
You also know that the Croton side, the side of New York City's drinking water that comes out of Westchester, Putnam County, the Croton River watershed, that is so developed that there will be filters needed on that side. But that is a small or some smaller component of their overall water supply system.
Page 289 PREV PAGE TOP OF DOC Segment 3 Of 5
I do believe that we are on the right track; I do believe it will be the cost-effective solution. But we can't just—and you know this—we can't say, we will do the watershed thing and hope for the best. We have to make sure that what we do up there works because there is nothing in the way.
Mr. BOEHLERT. I understand that. Do you feel that all the parties to this are now cooperating?
Mr. PERCIASEPE. From what I could tell, yes. You know—and I have been in your office listening to and working on the very long-term mistrust between some of the parties—but I think that cool heads will prevail and that cooperation is under way. I know that they are working on the watershed regulations now and going through that process. I hear good things.
Our regional office in New York has been saying that a great deal of progress is being made. So I am the eternal optimist on this one. I do think it is the right approach, and I think it will prove that if you take common sense and if people work together, that you can provide drinking water that passes the public health requirements in a way that is very cost-effective.
Mr. BOEHLERT. Speaking about working together, and I will ask each of you this, do you feel comfortable that you have the type of working relationship that is required among the three agencies to deal with the problem of nonpoint source pollution?
Page 290 PREV PAGE TOP OF DOC Segment 3 Of 5
Mr. HALL. I think we do. Bob and I work very closely together. EPA and NOAA have a relationship going back to the amendments to the Act, and before that, in terms of overall coastal zone management responsibilities and coordinating those with the water quality programs of the Environmental Protection Agency. I think it is a good relationship. It always can be strengthened. But I think this is one area where we have demonstrated that we can work together.
Mr. HEBERT. The same applies to the Department. We have employees of USDA who act as liaisons at field levels with the regional administrators of the EPA, working on a daily basis on the problems in the Chesapeake Bay and New York State and other parts of the country. And at the Washington office level, we are in communication, if not daily, weekly, about these issues. And if there are any shortcomings, we have full administrative flexibility to find ways to address those problems.
Mr. PERCIASEPE. I would add, a perfect symphony to what was just said, Doug and I, whenever we have to work on some flexibility or some interpretations of what has to be done on the Coastal Zone Management Act, I think between us and our staff, it is a high-level professional and productive relationship.
And, likewise, even going back to what you were just talking about, USDA is active in the New York City watershed areas in terms of working with the State department of agriculture and the State agencies in terms of targeting resources under their various programs. And it shows how even on something that is drinking-water related, we are indirectly cooperating with each other on the ground. I feel pretty good about it.
Page 291 PREV PAGE TOP OF DOC Segment 3 Of 5
And even in the wetlands program, we just in the last year under the President's wetlands policy and initiative, we have worked harder with the USDA to have them more involved with wetland delineation so that there is better cooperation between the Swampbuster provisions of the farm bill and 404 of the Clean Water Act. So I think that we are endeavoring to max out on our administrative abilities to coordinate.
But I think I would also echo Doug, that we have to be duly diligent on this, and we have to continue reminding ourselves of the importance of working as a team.
Mr. BOEHLERT. Well said. You have the last word.
The next hearing of this subcommittee will be on Friday the 24th, and it will hear environmental groups and will deal with energy and resource development and agriculture.
This meeting is adjourned.
[Whereupon, at 4:11 p.m., the subcommittee was adjourned, to reconvene, Friday, February 24, 1995.]
[Insert here.]
Next Hearing Segment(4)